David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicants are: Ms Sara Borenstein, born in 1914, living in Israel, and Mr George Shrier, born in 1953, Ms Sabina Weinreb, born in 1928 and Ms Anne Leichtman, born in 1954, all three living in the United States of America.

They were represented before the Court by Ms B. Krzesak, a lawyer practising in Bielsko-Biała, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

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

The applicants’ grandfather M.W. owned a house in Oświęcim that had been divided into flats. He survived the Holocaust and in 1948 left Poland, having appointed W.B. as a representative for the purposes of managing the property. They remained in constant contact and W.B. – and subsequently his wife – kept the applicants’ grandfather informed about the situation and financial affairs of the property until his death in 1968.

In 1963 the local municipality in Oświęcim took over the management of the house, having stated in the relevant decision that the property had not been managed and supervised by its owner at all since 1948 and that, as a result, it was in a bad state of repair. This decision was served on Ms K.B., the widow of the late manager of the property, W.B., who subsequently stayed in touch with the applicants.

In 1978 the State Treasury requested the Oświęcim District Court to declare that it had acquired ownership of the property by way of adverse possession. The court accepted the claimant’s submission that the owner was at that time of unknown abode and appointed a guardian ad litem for the applicants’ grandfather.

On 30 August 1978 the court allowed the State Treasury’s request. No written grounds were prepared for that decision, as the court was obliged to prepare such grounds only if a judicial decision was being appealed against. Accordingly, the State Treasury became owner of the property.

On an unspecified later date, but in any case before 1989, an entry in the land register was made to confirm the State’s ownership of the property concerned.

In 1990 the State Treasury’s ownership of land was transferred to local municipalities as part of a countrywide legal reform of local government. Accordingly, the Oświęcim municipality took over the rights to land within its borders that had previously been owned by the State Treasury.

In 1992 the applicants obtained decisions from various Polish courts to the effect that they were the legal successors of their grandfather M.W.

In 1995 the applicants requested that the proceedings concerning the acquisition of ownership by adverse possession that had ended with the 1978 decision be reopened. They argued that these proceedings were invalid in law since they had been flawed as a result of serious procedural shortcomings. The court had appointed a guardian ad litem for their father, which was obviously incorrect as he had died in 1968 and no guardian ad litem could be appointed in respect of a deceased person. Further, the court had failed to publish an announcement about the guardian having been appointed for the applicants’ grandfather, which resulted in the proceedings being invalid in law as it thereby became impossible for the parties to have their rights properly represented in the proceedings.

Their request was eventually dismissed on 30 December 1996, the appellate court having upheld the lower court’s conclusion that the applicants had failed to submit their request within the one-month time-limit from 10 August 1990, the date on which they had learned about the 1978 decision.

On 23 June 1997 the Minister of Justice brought an appeal on points of law against the 1978 decision on the applicants’ behalf. The Minister argued that the decision should be quashed for the following reasons:

i) in the proceedings the court had failed to take into consideration that the property had not in fact been abandoned by the owner but had been managed, at least until 1962, by his representative, who had been validly appointed in 1948;

ii) the claimant had failed to disclose to the court the fact that in 1962 the defendant had been alive, and that it was not true that at that time it had been impossible to get in touch with him;

iii) this failure had a direct incidence on the finding that the State Treasury had been in de facto possession of the property for the period required by law for adverse possession;

iv) the court had erred in that it had appointed a guardian ad litem for a person who was dead at that time;

v) in the 1978 decision the court had failed to indicate a) the date from which the State had acquired ownership by adverse possession, b) whether it had regarded the State as being in possession in bad or in good faith and c) how it had calculated the period of adverse possession necessary for the acquisition of ownership by adverse possession.

Following the appeal, on 22 October 1997 the Supreme Court quashed the 1978 decision, invalidated the proceedings which had led to it and ordered that the State’s request for a declaration that it had acquired the ownership by adverse possession be re-examined. The Supreme Court shared the view of the Minister of Justice concerning the error that the court had committed in appointing a guardian ad litem for a person who was dead. It observed that, contrary to the relevant legal obligation, no press announcement had been made about the proceedings having been instituted. Importantly, the court had also failed to make any effort to establish the whereabouts of the former owner or his legal successors.

The Supreme Court further noted that when giving the 1978 decision the court had failed to make findings crucial for the legal assessment of the case, such as the determination of the beginning of the period of possession, the manner of its calculation and the legal basis for considering that the State had been in possession of the property in question cum animo rem sibi habendi.

The Supreme Court did not pronounce on the Minister’s submission that the State’s representatives had failed to disclose to the court in 1978 certain relevant information regarding the status of the property.

Subsequently, the proceedings concerning the State’s original request for a declaration that it had acquired the property through adverse possession were resumed. In these proceedings the applicants submitted that because of all the procedural shortcomings identified by the Supreme Court, the State should be considered to have acquired ownership in bad faith. Under the relevant law, the period necessary at that time for acquisition of ownership through adverse possession where there was bad faith was twenty years. This period could only be calculated as running, at the earliest, from 30 August 1978. Hence, it had not ended by the date on which the present set of proceedings was already pending, the running of the period of adverse possession having been interrupted by the appeal lodged on the applicants’ behalf by the Minister.

On 19 June 2002 the Oświęcim District Court held that the State Treasury had acquired ownership of the property through adverse possession on 8 October 1988. The court noted that two conditions had to be fulfilled for such acquisition to be effective: 1) the property had to be in the possession of the claimant acting cum animo rem sibi habendi and 2) the statutory period of possession had to have expired.

The court found that the period between 1963 and 1978 could not be taken into account as regards adverse possession of the property since during this period the State had been acting only as its manager. However, as from 8 October 1978, the date on which the decision of 30 August 1978 had become final, the State had to be regarded as being in possession of the property “like a property owner” (cum animo rem sibi habendi). The 1978 decision authorised the State to dispose of the property, even if the decision itself had been procedurally flawed.

The District Court further found that the 1978 decision had justified the State’s assertion that it had become the owner of the property concerned. Accordingly, on 8 October 1978 the State had obtained possession in good faith since that possession had arisen from a valid judicial decision. The period of adverse possession required by law in case of good faith was ten years.

The District Court further noted that the point in dispute was whether the State Treasury could count towards the period of adverse possession required for acquisition of the property the period of its occupation arising from a judicial decision which had been quashed after the period of adverse possession had expired. That question was answered in the affirmative by the Supreme Court in the Resolution of 25 October 1996, no. III CZP 83/96, and the District Court applied that conclusion to the present case. Accordingly, the period of adverse possession in good faith having come to end on 8 October 1988, it was on that date that the State had acquired title to the property concerned.

The applicants appealed. They submitted that the lower court had erred in holding that the claimant had acquired title through adverse possession in the absence of good faith and of the requisite character of possession (cum animo rem sibi habendi).

It was wrong, in their view, to disregard the period preceding the 1978 decision since the State had come into possession of the property when it had taken over its management in 1963. That coming into possession had been unjustified, and thus in bad faith, since the owner’s representatives had at the relevant time duly managed the property. The State Treasury had continued to manifest its bad faith by withholding relevant information from the court when making its application in 1978.

The applicants contested the argument that the State could be regarded as being in possession in good faith as a result of the 1978 decision having become final. Having regard to the circumstances in which the State had taken over the management of the property in 1963, they argued that after 1978 the State had simply continued to manage the property. Thus, its possession could not be regarded as possession cum animo rem sibi habendi. Furthermore, the State could not benefit from the 1978 decision because that decision had been rendered in proceedings in which the applicants – as a result of the State’s actions – had been deprived of any possibility to defend their interests. If the court were to hold otherwise, the very concept of good faith would be undermined.

The applicants also argued, referring to the Supreme Court’s Resolution of 25 October 1996, that it was necessary to consider whether the State authorities’ actions had led to the deprivation of their property. They disagreed with the automatic conclusion that since the possession had arisen from a judicial decision it would always have to be considered possession in good faith.

On 6 December 2002 the Kraków Regional Court dismissed their appeal as unfounded. It analysed in detail all the arguments raised in the appeal.

The Regional Court firstly noted that, contrary to the applicants’ assertion, it was not necessary to determine the circumstances relating to the State’s taking over the management of the property in 1963 since the State’s rights stemming from an administrative decision on management could not be considered as possession cum animo rem sibi habendi. This view had been expressed by the Supreme Court in its decision of 22 October 1997.

The Regional Court stressed that the date of the decision on acquisition of title by adverse possession, and in particular the date on which this decision had become final, was of crucial relevance for the calculation of the period of adverse possession. It was from that date that the claimant (the State) had obtained a judicial decision declaring that it had become the owner of the property concerned. It noted that the Supreme Court’s Resolution of 25 October 1996, no. III CZP 83/96 allowed the State Treasury to count towards the period of adverse possession the period throughout which the State had exercised the right to dispose of the property “like a property owner” on the basis of a judicial decision which was quashed after the period of adverse possession had expired. In the present case the court was dealing with precisely such a situation.

The Regional Court observed that that situation was different from the one which was analysed in the Supreme Court’s decision of 29 October 1996, no. III CKU 8/96 (published in OSNC 1997/4/38) in which the Supreme Court had held that:

“if the State Treasury’s right to dispose of a property “like a property owner” is based on an administrative decision which is subsequently set aside with retrospective effect (ex tunc) on account of a manifest mistake of law, then the State Treasury may not take into account the fact and period of such occupation when calculating the period of adverse possession referred to in Article 172 of the Civil Code”.

The Regional Court noted, however, that as the Supreme Court had underlined in its Resolution no. III CZP 83/96, and by contrast to the above situation, adjudication by civil courts did not amount to State sovereign interference in private-law relations since the courts were established to apply the law in civil cases. In the same Resolution the Supreme Court had emphasised that even manifest breaches of procedural rules in deciding a case may not – as such – be qualified as manifestation of State exercise of its sovereign powers. The Regional Court noted that the District Court when deciding the case in 1978 had committed flagrant errors which resulted in the decision being quashed, but nevertheless that did not deprive the claimant of a possibility to have its application granted.

In these particular circumstances the Regional Court concurred with the District Court that certainly from the date on which the decision of 30 August 1978 had become final the claimant should be regarded as being in possession of the property cum animo rem sibi habendi. That date marked also the beginning of the period of adverse possession. In this respect, the Regional Court noted that the applicants had not rebutted the legal presumption established in Article 339 of the Civil Code that the actual possessor of a property should be considered to be in possession of it “like a property owner”. Instead, they had focused their submissions on showing that the taking over of the property’s management in 1963 had been unlawful and had not analysed the relevance of the 1978 decision which declared that the State had become the owner of the property.

Lastly, the Regional Court considered the issue of good or bad faith on the part of the State which was relevant for the calculation of the period of adverse possession. In this respect, it referred to the legal presumption in favour of good faith laid down in Article 7 of the Civil Code and found that the applicants had not discharged the burden upon them of proving bad faith on the part of the claimant. In this respect the Regional Court held as follows:

“If bad faith on the part of the claimant were to be assumed at the time when that (1978) decision was given and when it became final, it would have to mean that, regardless of such content of the decision supported by the authority of the court vested with determination of civil-law cases, the claimant would have still to believe that the title did not belong to him or suspect that another person was the owner. Such a view, in the appellate court’s opinion, cannot be sustained”.

At the same time, the Regional Court noted that the above conclusion could not be seen as its approval of the manner in which the 1978 proceedings had been conducted.

Consequently, the Regional Court held that the ten-year period of adverse possession in good faith having come to an end on 8 October 1988, the State had acquired ownership of the property concerned with effect from that date.

On 19 August 2003 the Supreme Court refused to entertain a cassation appeal lodged by the applicants, finding that no serious legal issue arose in the case such as to justify examination of the appeal.

Article 7 of the Civil Code provides:

“If a law makes legal consequences dependent upon good or bad faith, good faith shall be presumed”

Article 339 of the Civil Code reads:

“It shall be presumed that a person in actual possession of property is in possession “like a property owner” (cum animo rem sibi habendi)”

Adverse possession is regulated in Article 172 of the Civil Code. Up until 1 October 1990 that provision provided that a person could acquire ownership of land after ten years’ continuous and independent possession in good faith. Otherwise, a longer period of twenty years applied.

In 1990 the Civil Code was amended and the statutory periods of adverse possession in good and bad faith were extended by ten years. Article 172, in force since 1 October 1990, reads:

“§ 1. Persons in possession of property, although they are not the owner, shall acquire title thereto if they have been in continuous and independent possession thereof for twenty years, save where they came into such possession in bad faith.

§ 2. After thirty years, persons in possession of property shall acquire title thereto even if they came into possession thereof in bad faith.”

Persons in possession of the property can apply to the district court for a declaration that, as of a specific date, they acquired ownership of property on the strength of adverse possession for a statutory period.

In its Resolution No. III CZP 83/96 of 25 October 1996 (published in OSNC 1997/5/47), the Supreme Court held that:

“the State Treasury may count towards the period of adverse possession, within the meaning of Article 172, the period of occupation “like a property owner” on the basis of a court judgment which was [subsequently] quashed as a result of an extraordinary appeal (rewizja nadzwyczajna) after the period of adverse possession had elapsed.”

In the written grounds the Supreme Court observed that the manner in which the possessor came into possession of the property, including whether he was aware of any unlawfulness in this respect, was immaterial for the validity of adverse possession. The latter circumstance was relevant for the calculation of the period of adverse possession. Furthermore, the Supreme Court noted that the validity of adverse possession would not be affected in a case where the final court judgment declaring acquisition of title was subsequently quashed on appeal.

The Supreme Court further observed that in exceptional circumstances it might be possible to disregard the legal consequences of the application of civil law. In particular, such a possibility might arise when an unlawful interference by the State exercising its sovereign prerogatives (imperium) in private-law relations was a determining factor which led to the deprivation of a civil right. By contrast, adjudication by civil courts did not constitute State sovereign interference in private-law relations, since the courts had been established to apply the law in civil cases. Accordingly, even grave procedural errors committed by a court when determining a case could not of themselves be qualified as a manifestation of State exercise of its sovereign powers. There would have to be some additional, exceptional circumstances indicating that the State had abused its sovereign prerogatives or acted unlawfully with a view to depriving a person of his or her civil right.


The applicant, Mr Mikhail Anatolyevich Kolotkov, is a Russian national who was born in 1972 and lives in Moscow. The respondent Government were represented by Mr P.A. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

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

The applicant was a civil servant in the Federal Ministry of Foreign Affairs. From 1998 to May 2001 he was assigned to the Russian embassy in the Republic of Uganda as an attaché. By an order of 17 July 2001 he was dismissed from the Ministry of Foreign Affairs on the ground of expiration of the term of his labour contract.

On 30 July 2001 the applicant brought proceedings for reinstatement. On 19 October 2001 the Presnenskiy District Court of Moscow found that the applicant had been employed for an indefinite period and that his dismissal had, therefore, been unlawful. It ordered the respondent Ministry to reinstate him in his post of an attaché at the Russian embassy in Uganda and update his labour records accordingly. It stated that the judgment was subject to immediate enforcement. The Ministry appealed against the judgment. On 18 December 2001 the Moscow City Court rejected the Ministry’s appeal and upheld the judgment which came into force on the same day.

On 9 November 2001 the Ministry ordered the applicant’s reinstatement in his post in accordance with the judgment of 19 October 2001. However, as the three-year term of his assignment in Uganda had been expired and no extension was possible the applicant was offered, in January 2002, posts of an attaché available in the central office of the Ministry in Moscow. He refused to accept the offers and requested the continuation of his work in the capacity of an attaché at the embassy in Uganda.

On 25 April 2002 he applied to the bailiff requesting the enforcement of the judgment. On 6 May 2002 the bailiff brought enforcement proceedings.

By an order of 16 May 2002 the applicant was appointed an attaché at the historical and documentary department of the central office of the Ministry as of 15 January 2002. He refused to assume his office.

By letters of 16, 22 and 28 May 2002 the Ministry informed the bailiff of their efforts to enforce the judgment and to settle the situation with the applicant’s employment. They explained, inter alia, with reference to the applicable legislation and the rules of rotation of diplomatic staff that there was no legal basis for the applicant’s continued service in the embassy in Uganda.

By an order of 15 August 2002 the Ministry dismissed the applicant on the ground of his refusal to work.

On 3 October 2002 the bailiff imposed a fine on the head of the personnel department of the Ministry for his failure to enforce the judgment. The Ministry challenged the bailiff’s decision in the District Court which on 28 November 2002 stayed the enforcement proceedings pending its decision. The applicant’s request to join the proceedings and his appeal against the decision to stay the enforcement were rejected. On 3 June 2003 the District Court found the bailiff’s decision imposing the fine lawful.

On 15 August 2003 the Ministry quashed their order of 15 August 2002 on the applicant’s dismissal and ordered his reinstatement with his place of work in the central office of the Ministry. The applicant was paid remuneration for the preceding period and compensation for the late payment. On 29 August 2003 the Ministry fixed the applicant’s remuneration which included an allowance for his diplomatic rank of an attaché and an allowance for work with information involving State secret.

By a decision of 11 September 2003 the bailiff discontinued the enforcement proceedings in view of the enforcement of the judgment.

On 15 September 2003 the applicant appealed against the bailiff’s decision to discontinue the proceedings. On 31 October 2003 the District Court rejected the applicant’s appeal and upheld the bailiff’s decision. It found that the term of the applicant’s assignment to the embassy in Uganda had expired on 10 May 2001 and that thereafter the Ministry had provided him with work in its central office in accordance with the labour law requirements. It held that the judgment of 19 October 2001 as upheld on 18 December 2001 had been fully enforced. On 2 March 2004 the Moscow City Court upheld the judgment of 31 October 2003.

On 2 December 2002 the applicant brought an action challenging the Ministry’s order of 15 August 2002 by which he had been dismissed on the ground of his refusal to work.

On 22 September 2003 the Presnenskiy District Court of Moscow found for the applicant. The enforcement proceedings were brought on 3 October 2003 and discontinued on 14 October 2003 in view of the applicant’s actual reinstatement. The applicant’s appeal to the District Court against the termination of the enforcement proceedings is pending. The judgment of 22 September 2003 was upheld on appeal by the Moscow City Court on 26 January 2004.

On 3 November 2003 the applicant was dismissed from the Ministry on the ground of his absence from work. On 20 November 2003 he brought proceedings in the Presnenskiy District Court of Moscow to challenge his dismissal. On 15 June 2004 the District Court found for the Ministry. The applicant lodged an appeal against the judgment. The proceedings are pending.

On 29 July 2001 the applicant brought proceedings claiming pecuniary and nonpecuniary damages caused by his dismissal in July 2001. On 19 November 2001 the Presnenskiy District Court of Moscow stayed the proceedings pending the outcome of the first set of proceedings concerning the applicant’s reinstatement.

On 8 July 2002 the District Court granted the applicant’s claims in part and ordered the Ministry of Foreign Affairs to pay the applicant 12,548 roubles (“RUR”) in damages, including the applicant’s salary for the period between the date of his dismissal in July 2001 and 19 October 2001. On 10 July 2002 the District Court corrected the judgment stating that the amount awarded to the applicant was RUR 12,595.11. On 22 August 2002 the Moscow City Court dismissed the applicant’s appeal and upheld the judgment.

On 10 October 2002 the applicant applied for the enforcement of the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002. On 24 October 2002 the bailiff brought enforcement proceedings. The Ministry considered that the applicant should have submitted the writ of execution to the Federal Treasury in accordance with the procedure provided by the applicable legislation.

On 17 June 2003 the bailiff ordered that the Ministry’s money on their bank account be seized in order to enforce the judgment. Following the Ministry’s appeal against the bailiff’s decision, on 7 July 2003 the District Court stayed the enforcement proceedings. By a decision of 18 March 2004 the District Court quashed the bailiff’s decision of 17 June 2003 as unlawful.

On 3 March 2003 the applicant lodged a request for reopening the case in view of newly-discovered circumstances. On 3 September 2003 the Presnenskiy District Court of Moscow granted the applicant’s request, quashed the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002, and ordered a fresh examination of the case. On the same day the District Court granted the applicant’s request for withdrawing the writ of execution issued in respect of the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002.

Hearings listed for 17 September and 12 October 2004 did not take place since the applicant, who had been duly notified of the hearings, had failed to appear. On the latter date the Presnenskiy District Court of Moscow ordered that the case not be examined on the ground of the applicant’s failure to appear in court. The applicant did not appeal and the decision became final on 22 October 2004.

On 14 March 2002 the applicant brought proceedings claiming his remuneration and damages for the period after 19 October 2001. On 25 July 2002 the District Court granted his claims in part and ordered the Ministry to pay him RUR 13,478.56 covering the salary arrears for the period between 19 October 2001 and 25 July 2002. Following the applicant’s appeal the Moscow City Court quashed the judgment on 26 September 2002 and remitted the case to the firstinstance court for a fresh examination.

In November 2002 the applicant submitted new claims for the payment of his salary until then. In January 2003 he requested to seize the Ministry’s bank accounts. The request was dismissed by a final decision of the Moscow City Court of 18 February 2003. In October 2003 the applicant submitted new claims concerning his salary arrears. The proceedings are pending.

The applicant also brought other proceedings concerning his disputes with his employer.

Thus, on 23 August 2002 the applicant lodged an application with the Constitutional Court of Russia challenging the constitutionality of the Government’s regulations which laid down terms and conditions of service for State employees abroad. On 16 September 2002 the secretariat of the court informed the applicant that the court did not have jurisdiction to examine the constitutionality of by-laws, that it dealt exclusively with the issues of the constitutionality of laws, and that therefore his application could not be examined.

On 19 September 2002 the applicant lodged an application before the Supreme Court of the Russian Federation challenging the lawfulness of the same regulations. On 22 January 2003 the Supreme Court terminated the proceedings because the Government had quashed the regulations in issue. The applicant’s appeal was dismissed on 3 April 2003.


CASE OF PRISYAZHNIKOVA AND DOLGOPOLOV v. RUSSIA

Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial awards;Non-pecuniary damage - financial awards

The applicants were born 1966 and 1934 respectively, and live in Neryungri in the Sakha (Yakutiya) Republic of the Russian Federation.

The applicants brought a civil action against the Government, seeking to enforce State promissory notes for purchase of a Russian-made car or to recover the monetary value thereof.

On 17 March 2003 the Ust-Yanskiy District Court of the Sakha (Yakutiya) Republic found for the applicants and awarded 112,441.80 Russian roubles (“RUR”) to the first applicant and RUR 107,327.82 to the second applicant against the Ministry of Finance.

On 23 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic (hereinafter – “the Supreme Court”) rejected an appeal by the Ministry of Finance and upheld the judgment.

The enforcement proceedings were opened on 15 May 2003, but the judgment was not enforced.

By interim decision of 11 August 2003, Judge R. of the Supreme Court of the Sakha (Yakutiya) Republic refused a request by the Ministry of Finance for obtaining the case file for the purpose of initiating supervisory-review proceedings. The Ministry had claimed that the courts had incorrectly applied the substantive law.

By letter of 20 October 2003, the Supreme Court's President rejected a renewed request by the Ministry of Finance for launching the supervisory-review proceedings.

On 9 June 2004 the Ministry of Finance introduced a new application for supervisory review of the judgments in the applicants' favour, founded on the same grounds as before.

On 30 September 2004 the Supreme Court's President issued an interim decision on remitting the applicants' cases for examination on the merits to the Supreme Court's Presidium by way of supervisory review. In the procedural part, the interim decision of 11 August 2003, but not the letter of 20 October 2003, was mentioned.

On 14 October 2004 the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic, in a five-judge formation presided over by the Supreme Court's President, found that the lower courts had not taken into account certain provisions relating to reimbursement of State promissory notes. On that ground, relying on Articles 388 and 390 of the Code of Civil Procedure, the Presidium quashed the judgments in the applicants' favour and dismissed their claim as having no basis in the domestic law.

A judicial decision becomes legally binding after the appeal court has examined the matter (Article 209 § 1). A judicial decision must be enforced once it became legally binding, unless the law provides for its immediate enforcement (Article 210).

The relevant provisions governing the supervisory-review proceedings read as follows:

“1. Courts may issue judicial decisions in the form of judicial orders, judgments and interim decisions...”

“1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.

Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”

“An application for supervisory review must contain:

(1) the name of the court to which it is addressed;

(4) a reference to the first-instance, appeal or cassation courts that examined the case and a summary of their decisions;

(5) a reference to the judgment or decision which is being appealed against...”

“2. Having examined an application for supervisory review, the judge issues an interim decision on –

(1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;

(2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.

The President of the regional Supreme Court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”

“2. Having examined the case file obtained by the supervisory-review court, the judge issues an interim decision on –

– refusing to remit the case for examination on the merits by the supervisory-review court;

– remitting the case for examination of the application for supervisory review on the merits by the supervisory-review court.”

“2. The President of the regional Supreme Court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory-review court.”

“1. A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain:

(7) a reasoned description of the grounds for remitting the case for examination on the merits...”

“1. Having examined the case by way of supervisory review, the court may

(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.”

Once instituted, enforcement proceedings must be completed within two months upon receipt of the writ of execution by the bailiff (Section 13).


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych

The applicant was born in 1974 and lives in Donetsk. At the material time he was a tax inspector.

On 4 July 1997 the Kyivsky District Court of Donetsk (hereinafter “the District Court”) fined the applicant UAH 225 under an administrative procedure for a corruption offence. The applicant was consequently dismissed from his position.

On 17 November 1997 the Donetsk Regional Court quashed this judgment and terminated the proceedings.

On 22 May 2000 the District Court awarded the applicant UAH 500 in compensation for moral damage to be paid by the State Treasury of Ukraine.

This judgment was not appealed and became final on 2 June 2000.

In June 2000 the Kyivsky Office of the Bailiffs’ Service in Donetsk initiated the enforcement proceedings.

On 22 October 2004 the writ of execution was transferred to the Pechersky Office of the Bailiffs’ Service in Kyiv, which on 7 December 2004 refused to open the enforcement proceedings and transferred the writ to the Department of the Bailiffs’ Service of the Ministry of Justice (hereinafter “the Department”).

On 24 January 2005 the Department refused to open the enforcement proceedings on the ground that it fell outside of its competence.

Since May 2005 the enforcement proceedings are pending before the Donetsk Department of the Bailiffs’ Service.

The judgment of 22 May 2000 remains unenforced.

The relevant domestic law is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004).


No violation of Art. 3;Violation of Art. 5-3;Not necessary to examine Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1 (composition of state security court);Not necessary to examine remaining complaints under Art. 6;No violation of Art. 13;No violation of Art. 14;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicants were born in 1960 and 1967 respectively and live in Diyarbakır.

On 16 November 1993 the applicant was taken into custody by the security forces at the Sağırsu Gendarmerie Command.

In a report drafted by the gendarmes and signed by the applicant on the same day, it was stated that he was taken into custody on the basis of information contained in a document found on a PKK terrorist.

In his statement taken by the gendarmes on 30 November 1993 the applicant confessed in detail to his involvement in the activities of the PKK.

On 1 December 1993 the applicant and five others were examined by a doctor at the Siirt Forensic Department, who concluded there were no traces of blows on their bodies.

Later on the same day, the applicant was first brought before the Siirt Public Prosecutor then before the judge at the Siirt Magistrates Court where he refuted his statements dated 30 November 1993 and he contested his involvement in the activities of the PKK. He confessed to having possessed a Kalashnikov rifle without a permit. The court ordered his detention on remand.

In his petition dated 2 December 1993 filed with the Siirt Assize Court, the applicant alleged that he had been severely tortured for eighteen days while in police custody. He stated that he had been told to strip, blindfolded, severely beaten and strung up by his arms. Moreover, he objected to the court’s decision to detain him on remand.

On an unspecified date the Siirt Public Prosecutor issued a decision of non-jurisdiction as the charges against the applicant fell within the competence of the State Security Courts.

On 21 December 1993 the Public Prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicant with engaging in acts aimed at the separation of a part of the territory of the State, under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.

At the hearing held on 24 February 1994, the applicant denied the allegations against him and claimed that he had been forced to sign the statements drafted in police custody. The court refused the applicant’s request for release pending trial, in view of the state of the evidence and the nature of the offence of which he was accused. It further decided to join the applicant’s case to the second applicant’s case, as they raised similar issues.

On 24 October 1993 the applicant was taken into custody by the security forces at the Siirt Gendarmerie Command. According to the arrest report drafted by the gendarmes and signed by the applicant, he was taken into custody in the village of Koçlu in the course of an investigation concerning the PKK.

On 26 October 1993 the applicant took the police officers of the Prevention of Terrorism Department of the Siirt Security Directorate to where he was hiding weaponry, namely a Kalashnikov rifle, a hand grenade and bullets. The police officers later drafted an on-site inspection report, describing the location of the hideout and the weapons found there.

In his statement taken by the gendarmes on 3 November 1993, the applicant confessed in detail to his involvement in the activities of the PKK.

On 5 November 1993 the applicant and six other suspects were taken to the Siirt Forensic Department for an examination. According to the medical report drafted on the same date, no traces of blows were found on the applicant’s body.

On the same day, the applicant was brought before the Siirt Public Prosecutor where he accepted having possessed a rifle, a hand grenade and bullets, but denied having participated in the activities of the PKK. Later he was brought before the Siirt Magistrates Court where he reiterated that he had no involvement in the activities of the PKK. The court ordered his detention on remand.

In a petition dated 30 November 1993 filed with the Siirt Assize Court, the applicant refuted all the charges brought against him and requested to be released. He alleged that while he was held in police custody, he had had to accept all the allegations against him as he had been severely tortured. Moreover, he maintained that, as the police officers had threatened him, he was afraid to complain about these acts before the public prosecutor and the judge at the criminal court.

On an unspecified date, the Siirt Public Prosecutor issued a decision of lack of jurisdiction as the charges against the applicant fell within the competence of the State Security Courts.

On 6 December 1993 the public prosecutor filed a bill of indictment with the Diyarbakır State Security Court, accusing the applicant and six others of having engaged in acts aimed at the separation of a part of the territory of the State. The public prosecutor requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.

On 24 March 1994, upon the request of the judge at the Diyarbakır State Security Court, the Siirt Assize Court took the statements of eight police officers from the Prevention of Terrorism Department of the Siirt Security Directorate, who had questioned the second applicant and had drafted the on-site inspection report. The police officers described the course of events during the on-site inspection. They also maintained that no pressure had been inflicted on the accused.

At the hearing of 29 March 1994, the applicants were not present before the Diyarbakır State Security Court. It therefore issued summonses to them for the next hearing, scheduled for 10 May 1994. The court requested that a ballistic examination be carried out by the Diyarbakır Forensic Institute concerning the rifle found in the possession of the second applicant. It continued the applicants’ remand in custody pending trial, but released four other accused persons.

At the hearing of 10 May 1994, some of the accused, including the applicants, were present in court. The statements of the police officers who had signed the on-site inspection report were submitted to the court. The court also heard two defence witnesses and asked the accused for their comments. The lawyers of both applicants maintained that they did not have any comments to make concerning these statements. They also demanded the applicants’ release pending trial, contending that the accusations brought against them were unfounded. The court ordered the prolongation of their detention on remand considering the nature of the charges and the content of the case-file.

At the nine subsequent hearings which were held between 10 May 1994 and 5 July 1995, the Diyarbakır State Security Court was unable to reach a decision as the relevant ballistic report had not been received. At each hearing, the court rejected the applicants’ requests for release pending trial, in view of the state of the evidence and the nature of the offence.

On 25 September 1995 the court received the ballistic report. At the following hearing, held on 21 November 1995, the public prosecutor submitted his opinion on the merits. He proposed that the applicants be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The court rejected once again the applicants’ request for release pending trial because of the serious nature of the charges and the state of the evidence.

At the hearing of 5 December 1995, the Diyarbakır State Security Court was unable to give a final decision as the prison authorities had failed to bring the first applicant to court. On 26 December 1995 and 27 February 1996, the court rescheduled the hearing to a later date in order to obtain this applicant’s final statements.

On 26 March 1996 the prison authorities again failed to bring the first applicant before the Diyarbakır State Security Court. His lawyer maintained that the applicant was absent against his will and requested the court to postpone the hearing in order to take his last statements. The second applicant repeated his previous statements. The court convicted the applicants of engaging in acts aimed at the separation of a part of the territory of the State. The court sentenced them to twelve years and six months’ imprisonment under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The decision was given in the absence of the first applicant.

The applicants appealed against the decision of the Diyarbakır State Security Court.

On 12 May 1997 the Court of Cassation quashed the decision on the ground that the Diyarbakır State Security Court did not respect the rights of defence during the proceedings. It emphasized in its decision that the court had convicted the first applicant in his absence, depriving him of his right to submit his final defence. It held that, due to the close connection between the accused, it was appropriate to quash the decision in favour of all the accused.

On 1 July 1997 the Diyarbakır State Security Court served a summons on the applicants for the following hearing.

On 27 August 1997 the court sent a notice to the Public Prosecutor to ascertain the prison in which the applicants were detained and the address of two of the accused who were released pending trial. Moreover, it requested the population registry office to confirm the apparent death of one of the accused.

At the hearing of 7 October 1997 the court requested the transfer of the applicants, who were detained in Amasya and Bartın prisons, to the Diyarbakır Prison.

On 18 November 1997 the court postponed the hearing once again as the applicants were still not present and the addresses of the other accused were not yet known to the court.

On 27 January 1998 and 10 March 1998 the applicants were present before the court. They submitted their opinion concerning the decision of the Court of Cassation. However, as the other accused, who had been released pending trial, failed to appear, the court was once again unable to reach its final decision.

The applicants did not attend the following nine hearings. According to the prison records it was their express wish to not to attend. Moreover during this period neither the office of the public prosecutor nor the population register office submitted to the court the requested information concerning the other accused.

At the hearing of 6 April 1999, in the presence of only the applicants’ lawyers, the Diyarbakır State Security Court gave its final decision. It convicted the applicants as charged and sentenced them to twelve years and six months’ imprisonment. It acquitted one of the accused and decided to sever the case concerning the others whose addresses were still unknown to the court.

On 2 June 1999 the applicants appealed to the Court of Cassation. In their petition they maintained that, according to Article 135 (a) of the Code on Criminal Procedure, statements that are obtained using forbidden methods, such as torture, pressure or ill-treatment, cannot be taken into consideration by the court. They contended that they had signed their statements under pressure, without knowing their contents. They therefore requested the quashing of the State Security Court’s decision, arguing that it was mainly based on their statements taken in police custody.

On 9 November 1999 the Court of Cassation upheld the decision of the first instance court.


CASE OF HASAN AND EYLEM ZENGİN v. TURKEY

Violation of P1-2;No separate issue under Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

Hasan Zengin, who was born in 1960, and his daughter Eylem Zengin, who was born in 1988, live in Istanbul.

At the time Mr Zengin lodged the application on his own and his daughter's behalf, she was attending the seventh grade of the state school in Avcılar, Istanbul.

Hasan Zengin stated that his family were adherents of Alevism.

Alevism originated in central Asia but developed largely in Turkey. Two important Sufis had a considerable impact on the emergence of this religious movement: Hoca Ahmet Yesevi (12th century) and Haci Bektaşi Veli (14th century). This belief system, which has deep roots in Turkish society and history, is generally considered as one of the branches of Islam, influenced in particular by Sufism and by certain pre-Islamic beliefs. Its religious practices differ from those of the Sunni schools of law in certain aspects such as prayer, fasting and pilgrimage.

According to the applicant, Alevism is a belief or philosophy influenced by other cultures, religions and philosophies. It represents one of the most widespread faiths in Turkey after the Hanafite branch of Islam. It advocates close contact with nature, tolerance, modesty and love for one's neighbour, within the Islamic faith. Alevis reject the sharia (code of laws in orthodox Islam) and the sunna (forms of behaviour and formal rules of orthodox Islam) and defend freedom of religion, human rights, women's rights, humanism, democracy, rationalism, modernism, universalism, tolerance and secularism. Alevis do not pray by the Sunni rite (in particular, they do not comply with the obligation to pray five times daily) but express their devotion through religious songs and dances (semah); they do not attend mosques, but meet regularly in cemevi (meeting and worship rooms) for ritual ceremonies. Equally, Alevis do not consider the pilgrimage to Mecca as a religious obligation. They believe that Allah is present in each person. According to Alevism, Allah created Adam in his image and all his manifestations in this world are in human form. Allah is neither in the sky nor in paradise, but in the centre of the human heart.

On 23 February 2001 the applicant submitted a request to the Provincial Directorate of National Education (“the Directorate”) at the Istanbul Governor's Office, seeking to have his daughter exempted from religious culture and ethics classes. Pointing out that his family were followers of Alevism, he stressed that, under international treaties such as, for example, the Universal Declaration of Human Rights, parents had the right to choose the type of education their children were to receive. In addition, he alleged that the compulsory course in religious culture and ethics was incompatible with the principle of secularism.

On 2 April 2001 the Directorate replied that it was impossible to grant the exemption request. In particular, it stated:

“... Article 24 of the Constitution states that 'Education and instruction in religion and ethics shall be conducted under State supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual's own desire, and in the case of minors, to the request of their legal representatives.'

Article 12 of the State Education Act (Law no. 1739) ... provides that 'secularism shall be the basis of Turkish national education. Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools, and in schools of these levels.'”

For these reasons, your request cannot be granted.”

Following the Directorate's refusal, the applicant applied to the Istanbul Administrative Court for judicial review. He alleged that the compulsory classes in religious culture and ethics were essentially based on the fundamental rules of Hanafite Islam and that no teaching was given on his own faith. He challenged, inter alia, the compulsory nature of this school subject.

In a decision of 28 December 2001, the Administrative Court dismissed the applicant's request, holding, inter alia:

“Article 24 of the Constitution has established that religious culture and ethics are among the compulsory subjects taught in primary and secondary schools, and section 12 of Law no. 1739 [states] that religious culture and ethics are among the compulsory subjects taught in primary and upper secondary schools of the equivalent level.

In this context, the dismissal of the plaintiff's request is not contrary to the law...”

The applicant appealed on points of law against that judgment, relying, inter alia, on the Convention.

In a judgment of 14 April 2003, served on 5 August 2003, the Supreme Administrative Court dismissed his appeal and upheld the first-instance judgment, holding that the latter complied with the procedural rules and the legislation.

Article 24 of the Constitution, in so far as relevant, provides:

“1. Everyone has the right to freedom of conscience, religious belief and conviction.

Acts of worship, religious services, and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14.

No one shall be compelled to worship, or to participate in religious ceremonies and rites, to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions.

No one shall be allowed to exploit or abuse religion or religious feelings, or things held sacred by religion, in any manner whatsoever, for the purpose of personal or political influence, or for even partially basing the fundamental, social, economic, political, and legal order of the State on religious tenets.”

Section 12 of the State Education Act (Law no. 1739) provides:

“Secularism is the basis of Turkish state education. Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools and in schools of an equivalent level.”

On 9 July 1990 the Supreme Council for Education adopted a decision on religious culture and ethics classes and pupils who were entitled to exemption from them. It stated:

“Following the proposal by the Ministry of Education, pupils of Turkish nationality who belong to the Christian or Jewish religions and who attend primary and secondary schools, with the exception of schools for minorities, are not obliged to follow the classes in religious culture and ethics, provided they affirm their adherence to those religions. If, however, such pupils wish to attend such classes, they must submit a written request from their legal representative.”

At the hearing the Government explained that this exemption procedure could be extended to other religious or philosophical convictions, such as atheism, without however producing specific examples.

Since 1997 compulsory state education has lasted eight years (instead of the previous five) for children aged 6 to 14; the first five years correspond to primary school (1st to 5th grade) and the following three to secondary school (6th to 8th grade).

In decision no. 373 of 19 September 2000, the Minister of Education approved the guidelines for classes in religious culture and ethics (taught in grades 4, 5, 6, 7 and 8).

The principles adopted in this connection are as follows:

“... today, when intercultural influence is increasing, it has become necessary, in order to foster a culture of peace and a context of tolerance to know about other religions.

For this reason, the school syllabus...;

... includes teaching [to the effect] that the aim of all religions is to educate upright individuals. [Religious instruction also aims to educate people] who are informed about the historical development of Judaism, Christianity, Hinduism and Buddhism, their main features and the content of their doctrine, and to be able to assess, using objective criteria, the position of Islam in relation to Judaism and Christianity...

A. The principles to be observed during the teaching and learning experience...

Always bear in mind the principle of secularism. There should be no infringement of freedom of religion, conscience, thought and expression.

Emphasise that differences in religious understanding and practice are of value.

Take advantage, in so far as possible, of pupils' feelings and behaviour in order to socialise them and to educate them as good citizens through religious and ethical knowledge.

Seek to ensure that pupils internalise the principles of love, respect, fraternity and friendship, which strengthen national unity and union, and national concepts and values such as the homeland, the nation, the flag, the martyr...

Emphasise that religion is one of the important principles of the national culture.

Teach the concept of worship in the wide sense; that work, cleanliness and high moral standards are ways of worshipping...

Make pupils aware that acts of worship, as well as being demonstrations of love, respect and gratitude towards Allah, enable the individuals in a group to bond in love and respect, to help each other, to show solidarity...

When studying subjects related to the prophet Mohammed, provide examples concerning his morality.

Base lesson material on verses [from the Koran] and relevant sayings and traditions [of Mohammed]..., the passages for reading should be illustrated by stories and images.

Throughout the entire teaching process, make a careful distinction, in covering topics and the choice of examples, between those from the Koran and those developed subsequently. To this end, taking into account public and community events, emphasise those which have their source in the Koran and those which result from habit, customs, tradition, beliefs, lifestyles and cultural influence.

Using different examples, explain that, far from being a myth, Islam is a rational and universal religion.

7th grade... Units: Unit 1 – Knowledge of the Koran. Unit 2 – Religion is good morals. Unit 3 – Pilgrimage and sacrifice. Unit 4 – Angels and other invisible beings. Unit 5 – Belief in the other world. Unit 6 – Our family. Unit 7 – Knowledge of religions...”

The applicants submitted five textbooks, for grades 4, 5, 6, 7 and 8, on religious culture and ethics. They are used in schools, having been authorised by the Ministry of Education.

In the 4th grade textbook, instruction moved from the concept of religion to examine the relationship between morality and religion, the Creator and the creature, the family and religion, and knowledge of the life of the prophet Mohamed.

The 5th grade textbook begins by explaining the meaning of the expression “I believe in God”. It focuses particularly on teaching the fundamental concepts of Islam: the profession of faith, prayer, the mosque as the place of worship, the nature of the prayers recited during the month of Ramadan, the prophet Mohammed's family life. A general overview is given of the prophets whose names appear in the Koran.

The 6th grade textbook begins by covering the different daily prayers. It is explained that every Muslim is obliged to pray five times daily. The corresponding rituals are illustrated in the book, which then deals with subjects such as charity, love for the homeland and the nation, harmful behaviour, friendship and brotherhood, and the four holy books, namely the Torah, the Zabur (psalms), the Gospels and the Koran.

The 7th grade textbook emphasises knowledge of the Koran, the link between religion and high moral standards, pilgrimage and sacrifice, angels and invisible creatures, belief in the other world and the family. In addition, the main religions, namely Judaism, Christianity, Islam, Hinduism and Buddhism, are presented over fifteen pages.

The 8th grade textbook discusses the prophet Mohammed's high moral standards, culture and religion, the concepts of religion, reason and science, belief in fate and the link between faith and conduct. Subjects such as “differences in approach in religion”, “advice of religions and of Islam”, “secularism”, “freedom of religion and conviction” are also covered in this book.

It appears from reading these textbooks that the pupils are also required to learn several suras from the Koran by heart.

For their part, the Government submitted the textbook for the 9th grade (the first year of upper secondary school).

This textbook begins by dealing with man's place in the universe. It subsequently covers topics such as human nature and religion, the role of religion in human life and the various forms of belief, namely monotheism, polytheism, Gnosticism, agnosticism and atheism. Explanations are also provided for various concepts, such as prayer and the link between prayer and cleanliness; this chapter illustrates the rituals surrounding the partial and total ablutions in Islam (gusul and abdest). In addition, certain essential elements, such as the life of Mohammed, the Koran and fundamental concepts (interpretation, the suras, etc.), are described with the aim of providing information on Islam. The rest of the textbook deals primarily with the concepts of “values and family”, “the homeland, flag, freedom, independence, human rights, secularism, the secular State, Ataturk and secularism, etc”. Finally, it deals with the subject of “the Turks and Islam” in the context of Turkish history; this chapter examines the Turks' former beliefs, such as the concept of “God-heaven”, Manichaeism, Buddhism, the Christian religion and Judaism. Individuals who influenced the Turks' understanding of Islam are also discussed, in particular Ebu Hanife (born 699, died 767, founder of the Hanafite school) and Imam Şafii (born 767, died 820, founder of the Shafite School), as well as Hoca Ahmet Yesevi and Haci Bektas Veli (see paragraph 8 above).

The Government also explained that pupils were assessed in this subject only by written examinations.

The relevant passage of Article 18 of the International Covenant on Civil and Political Rights provides:

“4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”

In Recommendation 1396 (1999) on religion and democracy, adopted on 27 January 1999, the Assembly recommended that the Committee of Ministers invite the governments of the member States, inter alia:

“13. ... (ii) to promote education about religions and, in particular, to:

(a) step up the teaching about religions as sets of values towards which young people must develop a discerning approach, within the framework of education on ethics and democratic citizenship;

(b) promote the teaching in schools of the comparative history of different religions, stressing their origins, the similarities in some of their values and the diversity of their customs, traditions, festivals, and so on; ...

(e) avoid – in the case of children – any conflict between the state-promoted education about religion and the religious faith of the families, in order to respect the free decision of the families in this very sensitive matter...”

In Recommendation 1720 (2005), adopted on 4 October 2005, the Assembly recommended that the Committee of Minsters encourage the governments of member States to ensure that religious studies were taught at the primary and secondary levels of state education, on the basis, inter alia, of the following criteria:

“14.1. the aim of this education should be to make pupils discover the religions practised in their own and neighbouring countries, to make them perceive that everyone has the same right to believe that their religion is the “true faith” and that other people are not different human beings through having a different religion or not having a religion at all;

14.2. it should include, with complete impartiality, the history of the main religions, as well as the option of having no religion;

14.3. it should provide young people with educational tools that enable them to be quite secure in approaching supporters of a fanatical religious practice;

14.4. it must not overstep the borderline between the realms of culture and worship, even where a country with a state religion is concerned. It is not a matter of instilling a faith but of making young people understand why religions are sources of faith for millions;

14.5. teachers on religions need to have specific training. They should be teachers of a cultural or literary discipline. However, specialists in another discipline could be made responsible for this education;

14.6. the state authorities should look after teacher training and lay down the syllabuses which should be adapted to each country's peculiarities and to the pupils' ages. In devising these programmes, the Council of Europe will consult all partners concerned, including representatives of the religious faiths.”

The European Commission against Racism and Intolerance has already given its view on the teaching of religion in schools in General policy recommendation no. 5 on “Combating intolerance and discrimination against Muslims” (CRI (2000) 21, 27 April 2000). After reiterating the principles of respect for equality and non-discrimination between religions and recognising the great diversity intrinsic in the practice of Islam, it recommended that the governments of member States “ensure that religious instruction in schools respects cultural pluralism and make provision for teacher training to this effect”.

In its third report on Turkey (CRI (2005), the ECRI also considered, in particular, that:

“The syllabus covers all religions and is chiefly designed to give pupils an idea of all existing religions. However, several sources have described these courses as instruction in the principles of the Muslim faith rather than a course covering several religious cultures. ECRI notes that only Muslim pupils are required to follow these courses, while pupils belonging to minority religious groups can be exempted. ECRI considers the situation unclear: if this is indeed a course on the different religious cultures, there is no reason to make it compulsory for Muslim children alone. Conversely, if the course is essentially designed to teach the Muslim religion, it is a course on a specific religion and should not be compulsory, in order to preserve children's and their parents' religious freedom.”

In consequence, ECRI urged the Turkish authorities:

“... to reconsider their approach to instruction in religious culture. They should take steps either to make this instruction optional for everyone or to revise its content so as to ensure that it genuinely covers all religious cultures and is no longer perceived as instruction in the Muslim religion.”

In Europe, religious education is closely tied in with secular education. Of the 46 Council of Europe member States which were examined, 43 provide religious education classes in state schools. Only Albania, France (with the exception of the Alsace and Moselle regions) and the former Yugoslav Republic of Macedonia are the exceptions to this rule. In Slovenia, non-confessional teaching is offered in the last years of state education.

In 25 of the 46 member States (including Turkey), religious education is a compulsory subject. However, the scope of this obligation varies depending on the State. In five countries, namely Finland, Greece, Norway, Sweden and Turkey, the obligation to attend classes in religious education is absolute. All pupils who belong to the religious faith taught in the classes are obliged to follow them, partially or fully. However, ten States allow for exemptions under certain conditions. This is the case in Austria, Cyprus, Denmark, Ireland, Iceland, Liechtenstein, Malta, Monaco, San Marino and the United Kingdom. In the majority of these countries, religious education is denominational.

Ten other countries give pupils the opportunity to choose a substitute lesson in place of compulsory religious education. This is the case in Germany, Belgium, Bosnia and Herzegovina, Lithuania, Luxembourg, the Netherlands, Serbia, Slovakia and Switzerland. In those countries, denominational education is included in the curriculum drawn up by the relevant ministries and pupils are obliged to attend unless they have opted for the substitute lesson proposed.

In contrast, 21 member States do not oblige pupils to follow classes in religious education. Religious education is generally authorised in the school system but pupils only attend if they have made a request to that effect. This is what happens in the largest group of States: Andorra, Armenia, Azerbaijan, Bulgaria, Croatia, Spain, Estonia, Georgia, Hungary, Italy, Latvia, Moldova, Poland, Portugal, the Czech Republic, Romania, Russia and Ukraine. Finally, in a third group of States, pupils are obliged to attend a religious education or substitute class, but always have the option of attending a secular lesson.

This general overview of religious education in Europe shows that, in spite of the variety of teaching methods, almost all of the member States offer at least one route by which pupils can opt out of religious education classes (by providing an exemption mechanism or the option of attending a lesson in a substitute subject, or by giving pupils the choice of whether or not to sign up to a religious studies class).


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in 1951 and lives in Taganrog, the Rostov Region.

On 12 March 2003 the applicant purchased a recreation centre (“the centre”), comprising a group of cottages, from a private company. The centre was situated on a plot of land belonging to a collective farm.

The applicant asked the Registration Office to register the transfer of the title to the centre from the company to her. However, the applicant’s request was dismissed, because the company had not duly registered its title to the centre, and therefore was unable to transfer it to the applicant.

The applicant brought proceedings against the company seeking to obtain acknowledgement of her title to the centre.

On 7 April 2003 the Neklinovskiy District Court of the Rostov Region granted the applicant’s claim.

No ordinary appeal was lodged against the judgment.

On 18 April 2003 the judgment became final and enforceable.

On 23 June 2003 the Registration Office registered the applicant’s title to the centre.

On an unspecified date in 2003 the collective farm lodged an application for supervisory review of the judgment of 7 April 2003. It alleged that the said judgment was unfounded since, even though the collective farm owned the plot on which the centre in question was situated, it had not been invited to take part in the proceedings and its interests had not been taken into consideration by the domestic court.

On 3 December 2003 the Rostov Regional Court remitted the supervisory-review application for examination on its merits by the Presidium.

On 25 December 2003 the Presidium of the Rostov Regional Court held a supervisory-review hearing. It held that the first-instance court adopted the judgment with significant violations of substantive and procedural law. In particular, the Presidium pointed out that the first-instance court did not investigate that it failed to identify all the parties to the proceedings, to invite the owner of the land to participate in the proceedings and that it had pronounced judgment by which the rights of the latter were considerably affected. On these grounds the Presidium quashed the judgment of 7 April 2003 and remitted the matter for a fresh examination.

On 25 January 2005 the Neklinovskiy District Court of the Rostov Region dismissed the applicant’s claim, declared the purchase agreement void, annulled the registration of the applicant’s title to the centre and restored the parties to their original position.

On 30 March 2005 the Rostov Regional Court upheld the above judgment on appeal.

The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003. It provides as follows:

“1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against ... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.

Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding ...”

“Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”

“1. Having examined the case by way of supervisory review, the court may ...

(2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination; ...

(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.”


The applicant, Ms Carine Simons, is a Belgian national who was born in 1967 and lives in Ougree. She was represented before the Court by Mr M. Neve, Mrs S. Berbuto and Mrs E. Berthe, lawyers practising in Liège. The Belgian Government (“the Government”) were represented by their Agent, Mr Marc Tysebaert, General Counsel, Federal Public Department of Justice.

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

On 13 March 2010 the Liège police were informed that a man had been stabbed with a knife. At the scene, the applicant told the police officers that the victim was her partner and that she herself had inflicted the wounds. The officers found a trail of blood leading to her home, where they discovered other traces of blood and a blood-stained kitchen knife.

The applicant was arrested that same day at 4 p.m. She was interviewed by investigators between 11.59 p.m. and 2.32 a.m. as a “suspect”. She was not assisted by a lawyer and – she alleged – was not informed beforehand of her right to remain silent, but her rights as provided in the “Franchimont Act” of 12 March 1998 were read to her prior to the interview. She was thus informed that her statements could be used in evidence, that she was entitled to ask for a verbatim record to be made of any questions put to her, together with her answers, and to request any supplementary investigative act or interview, that she could use any documents in her possession, provided the questioning was not delayed, and that, during or after her interview, she could have documents included in the case file or deposited in the registry. The applicant confessed to being the perpetrator of the stabbing and, in response to the investigators’ questions, gave a detailed account of the incident, explaining in particular that it had followed an argument, of which she described the context and circumstances.

The next day, from 11.08 a.m. to 11.34 a.m., the applicant was questioned by an investigating judge. She was not assisted by a lawyer and – she alleged – was not informed of her right to remain silent. She confirmed the statements she had made to the police. The investigating judge then informed her that she was being charged with attempted murder, with intent, and that she had the “right to choose a lawyer”. He issued a detention order with the following reasoning:

“... the offence is punishable by a one-year prison sentence, in respect of a lesser indictable offence, or by an even harsher sentence; ... the maximum duration of the sentence exceeding a 15-year term of imprisonment; ... the documentary evidence in the file, the findings of the reporting officers, the witness statements, and the statement and confessions of the person charged, constitute serious indications of guilt; ... the extreme seriousness of the facts, representing a danger for public safety and entailing bodily harm, requires that a detention order be issued against the person charged; ...”

The applicant appeared, assisted by her lawyer, on 18 March 2010, before the Committals Division (chambre du conseil) of the Liège Court of First Instance, which found the detention order to be lawful and properly served, and remanded her in custody for one month.

On 14 April 2010, after a further appearance by the applicant, the Committals Division ordered the extension of that measure. It did so once again on 12 May 2010.

The applicant appealed to the Indictments Division of the Liège Court of Appeal against the order of 12 May 2010. Referring to the Salduz v. Turkey judgment ([GC] (no. 36391/02, ECHR 2008), the Dayanan v. Turkey judgment (no. 7377/03, ECHR 2009) and the Bouglame v. Belgium decision (no. 16147/08, 2 March 2010), her counsel argued that the fact that the applicant had not been assisted by a lawyer during her police interview or her examination by a judge constituted a breach of the right to a fair trial as enshrined in Article 6 §§ 1 and 3 (c) of the Convention, and also of Article 5 § 1 of the Convention, under which any deprivation of liberty had to be “in accordance with a procedure prescribed by law”. Counsel thus submitted that the records of the interview and examination should be removed from the case-file and that the applicant should be released.

In his submissions of 3 June 2010, the Principal Public Prosecutor at the Liège Court of Appeal called on the Indictments Division to dismiss those arguments. He observed, in particular, as follows:

“... in a judgment of 5 May 2010 (P.10.0257.F/1) ..., the Court of Cassation noted that, having regard to all the statutory safeguards generally afforded to the person charged so as to ensure respect for the defence rights, from the time of the decision to prosecute, it could not be concluded automatically that it was definitely impossible for a person to have a fair trial when the assistance of a lawyer was lacking during the first twenty-four hours of deprivation of liberty.

... on a number of occasions the Court of Cassation has observed that neither Article 5 § 1 nor Article 6 §§ 1 and 3 of the Convention ..., as interpreted by the Court ..., obliges investigating divisions to discharge a detention order with immediate effect on that ground alone (Cass. 29 December 2009, P.09.1826.F/1, Cass. 13 January 2010, P.09.1908.F/1 and Cass. 12 May 2010, P.10.0772.F/1).

... in a judgment of 31 March 2010, confirming its case-law ... the Court of Cassation further indicated that Articles 28 quinquies and 57, paragraph 1, of the Code of Criminal Procedure, concerning the secrecy of the preliminary and judicial investigations, precluded the presence of a lawyer at that stage (P.10.0501.F/1).

... at no stage of the proceedings did the defendant ask to be assisted by a lawyer ...

... furthermore, the decision [Bouglame v. Belgium] ... sums up the lessons of the Salduz judgment but finds that the application is inadmissible, as the proceedings have to be considered as a whole ...”.

In a judgment of 3 June 2010 the Indictments Division agreed with the Principal Public Prosecutor on that point, finding that “[his] submissions ... fully address[ed] the arguments for the defence as to the absence of a lawyer during the defendant’s questioning”. It nevertheless ordered the applicant’s release on the ground that public safety no longer required that she be detained.

According to the information provided by the parties, the judicial investigation is still pending and the case is not yet ready for trial.

In the above-cited Bouglame case, where the applicant had complained of being prevented from having contact with his lawyer before his examination by the investigating judge, the Court found that the refusal to allow contact had been “explained by the applicable law as it [stood], namely section 16(2) of the Law of 20 July 1990 [on pre-trial detention], which [did] not provide for assistance by counsel during questioning by the investigating judge or prior thereto”.

Sections 16 and 20 of the Law of 20 July 1990 on pre-trial detention read as follows:

“§ 1. In cases of absolute necessity for public safety alone, and if the act is punishable by a one-year prison sentence, in respect of a lesser indictable offence, or by an even harsher sentence, the investigating judge may make a detention order ...

§ 2. Unless the person charged is a fugitive or is evading arrest, the investigating judge shall, before making a detention order, question the person [on the acts constituting the charges and potentially justifying a detention order] and hear his or her observations. Failure to question the person charged shall entail his or her release.

The investigating judge shall also inform the person charged of the possibility of an order being made for his or her detention and shall hear his or her observations on that matter. Failure to satisfy these conditions shall entail the person’s release. ...”

“§ 1. Immediately after the first examination, the person charged may communicate freely with counsel. ...”.

The Court of Cassation has, on a number of occasions, been called upon to examine – both in disputes concerning pre-trial detention and in appeals on points of law against appellate judgments on the merits – legal argument alleging a violation of Article 6 §§ 1 or 3 (c) of the Convention on the ground that the suspect had not received assistance from a lawyer during his or her police custody or while being questioned by the police or investigating judge.

For a long time that court took the view that, although Belgian law did not provide for the presence of a lawyer to assist a suspect when he or she was deprived of liberty, this did not automatically entail a violation of the right to a fair trial. In the court’s opinion, the restriction had to be assessed in the light of all the statutory safeguards generally afforded to the accused so as to ensure respect for his or her defence rights from the time of the decision to prosecute: formalities for the suspect’s examination under Article 47 bis of the Code of Criminal Procedure; the brevity of the statutory police custody period (24 hours); the immediate remittance to the person charged, when served with a detention order, of all the documents referred to in sections 16(7) and 18(2) of the Law of 20 July 1990; the right of the person charged to communicate immediately with counsel in accordance with section 20(1) and (5) of that law; access to the case file prior to his or her appearance before the investigating judge, as provided for by section 21(3) of that law; the presence of counsel for the charged person during the recapitulation interview provided for in section 22(3) of that law; and the rights granted, in particular, by Articles 61 ter, 61 quater, 61 quinquies, 136 and 235 bis of the Code of Criminal Procedure. The court found that this series of safeguards prevented the absence of counsel during the first twenty-four hours of deprivation of liberty from irretrievably compromising the fair handling of the case (see, for example, the judgments of 5 May and 22 June 2010, P.10.0257.F/1 and P.10.0872.N/1).

However, in a judgment of 15 December 2010 (P.10.0744.F/1), the Court of Cassation quashed, for a violation of Article 6 of the Convention, a trial court decision that relied on self-incriminating statements given to the police during police custody without any possibility of assistance by a lawyer. It found, in particular, as follows:

“... The right to a fair trial, as enshrined in Article 6 § 1 of the Convention ..., implies that the person arrested or held at the disposal of the courts should have the effective assistance of a lawyer

In so far as it allows such access to a lawyer only after the first examination by the investigating judge, section 20, first paragraph, of the Law of 20 July 1990 on pre-trial detention must be regarded as incompatible with Article 6 of the Convention.

The fairness of a criminal trial should be assessed in the light of the proceedings as a whole, ascertaining whether the defence rights have been upheld, examining whether the person charged has had the possibility of challenging the authenticity of the evidence and of opposing its use, verifying whether the circumstances in which evidence for the prosecution has been obtained cast doubt on its credibility or accuracy, and assessing the influence of any unlawfully obtained evidence on the outcome of the criminal proceedings. ...”

The Court of Cassation has further found that Articles 5 § 1, 6 § 1 and 5 § 3 (c) of the Convention do not oblige investigating divisions to discharge a detention order with immediate effect on the sole ground that prior to his or her examination by the investigating judge the person charged had been interviewed by the police and had given a confession to them without being allowed access to counsel from the very first questioning (see, for example, the judgments of 29 December 2009, 13 January 2010 and 23 June 2010, P.09.1826.F/1, P.09.1908.F/1 and P.10.1009.F/1).

The relevant domestic law was changed by the Law of 13 August 2011 amending the Code of Criminal Procedure and the Law of 20 July 1990 on pre-trial detention, in order to grant rights, including the right to consult and be assisted by a lawyer, to any person who is questioned or deprived of liberty.

Section 2 of that law provides that before the first interview of a person concerning offences with which he or she might be charged, the person has “the right ... to a confidential consultation with a lawyer of his or her choosing or a lawyer appointed to assist him or her, provided that the potential charges concern an offence that could justify a detention order, with the exception of the offences referred to in section 138, 6o, 6o bis and 6o ter”.

Section 4 adds a section 2 bis to the Law of 20 July 1990 on pre-trial detention, reading as follows:

“§ 1. Anyone who is deprived of liberty pursuant to sections 1 or 2 hereof, or in accordance with a warrant under section 3, shall be entitled, from that time onwards and prior to the first subsequent interview by the police or, failing that, by the Crown Prosecutor or investigating judge, to have a confidential consultation with a lawyer of his choosing. If he has not chosen a lawyer or if that lawyer is unavailable, contact shall be made with the duty service organised by the Bar Council of French-speaking and German-speaking Lawyers, and the Flemish Bar Council or, failing that, by the chairman of the Bar or his representative. ...

§ 2. The person concerned shall be entitled to receive assistance from a lawyer during the interviews that take place within the time-limit provided for in the preliminary section and sections 1º, 2, 12 or 15 bis. ...”