CASE OF KASYMAKHUNOV AND SAYBATALOV v. RUSSIA

Remainder inadmissible (Article 35-3 - Ratione materiae);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege);No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants were born in 1964 and 1972 respectively. The first applicant’s whereabouts are unknown. The second applicant lives in Tyumen.

The applicants are members of Hizb ut-Tahrir al-Islami.

Hizb ut-Tahrir al-Islami (The Party of Islamic Liberation – hereinafter “Hizb ut-Tahrir”) is an international Islamic organisation with branches in many parts of the world, including the Middle East and Europe. It advocates the overthrow of governments and their replacement by an Islamic State in the form of a recreated Caliphate. Hizb ut-Tahrir first emerged among Palestinians in Jordan in the early 1950s. It has achieved a small, but highly committed following in a number of Middle Eastern states and has also gained in popularity among Muslims in western Europe and Indonesia. It began working in Central Asia in the mid-1990s and has developed a committed following inside Uzbekistan, and to a lesser extent in neighbouring Kyrgyzstan, Tajikistan and Kazakhstan.

On 14 February 2003 the Supreme Court of the Russian Federation found fifteen organisations, including Hizb ut-Tahrir, to be terrorist organisations and prohibited their activity in the territory of Russia. It held a hearing in camera which was attended by a representative of the Prosecutor General’s office, but not the organisations’ representatives. The part concerning Hizb ut-Tahrir reads in its entirety as follows:

“The Party of Islamic Liberation (‘Hizb ut-Tahrir al-Islami’) is an organisation that pursues the aims of overthrowing non-Islamic governments and of establishing Islamic rule on an international scale by reviving a ‘Worldwide Islamic Caliphate’, in the first place in the regions with a predominantly Muslim population, including Russia and other members of the Commonwealth of Independent States. Its main methods and activities include Islamic militant propaganda, combined with intolerance towards other religions, active recruitment of supporters, and activities aimed at promoting schism and disunity in society (primarily proselytism with massive financial support). It is banned in several Middle East and Commonwealth of Independent States countries (Uzbekistan).”

On 18 June 2003 the Supreme Court rejected as out of time the appeal submitted by one of the banned organisations. It found it established, on the basis of the evidence submitted by the Prosecutor General’s office, that the information about the decision of 14 February 2003 had been published in the mass media in February 2003. The fact that the organisation had not learned about that decision until 28 April 2003 was irrelevant. There had therefore been no reason to extend the time-limit for appealing.

On 28 July 2006 a list of organisations declared to be terrorist organisations by the Russian courts was for the first time published in the official periodical Rossiyskaya Gazeta. The list included, among others, the organisations declared to be terrorist organisations by the Supreme Court’s decision of 14 February 2003, such as Hizb ut-Tahrir.

On 13 February 2004 the first applicant was arrested. On 25 March 2004 criminal proceedings were instituted against him and his partner Ms D. They were accused of being members of Hizb ut-Tahrir and were charged with aiding and abetting terrorism, founding a criminal organisation and using forged documents, offences under Article 205.1 § 1, Article 210 § 1 and Article 327 § 3 of the Criminal Code.

When questioned by the investigator, the first applicant admitted to being a member of Hizb ut-Tahrir and living in Russia under a false name and with forged identity documents. According to him, Hizb ut-Tahrir was a political organisation with a strict hierarchical structure and the aim of establishing the Caliphate through “velvet revolutions”, first in Muslim lands and then in other traditionally non-Muslim countries. It did not resort to, or call for, violence. Its members viewed Islam as a political ideology rather than a religious belief. The first applicant’s main activity consisted in talking to people in an attempt to persuade them to join Hizb ut-Tahrir. He distributed Hizb ut-Tahrir’s literature and explained its ideology. He had succeeded in recruiting five or six people who formed the Moscow section of Hizb ut-Tahrir under his leadership. He gave instructions to the members of his section and was also responsible for maintaining contacts with other local sections of Hizb ut-Tahrir. He knew that the organisation had been banned in Russia and therefore the members of his section had pseudonyms.

His partner Ms D. gave similar evidence. She affirmed that Hizb utTahrir was not a terrorist organisation.

The investigator also obtained statements from several witnesses. The witnesses stated that the first applicant and Ms D. had attempted to persuade them to become members of Hizb ut-Tahrir and had supplied them with Hizb ut-Tahrir’s literature. They gave the leaflets and brochures received from the first applicant to the investigator. Some of the witnesses testified that the first applicant had urged them to fight the unfaithful, including with weapons, and they had the impression that he had called for assistance to Chechen guerrillas. One witness also stated that the first applicant had advocated the establishment of sharia on the territory of Russia.

The first applicant’s flat was searched and guidelines on the use of weapons, explosives and poisons were found there.

In September 2004 the case was sent for trial before the Moscow City Court.

The first applicant pleaded not guilty. He admitted his membership of Hizb ut-Tahrir al-Islami and confirmed his previous description of its activities and ideology. He insisted that it was not a terrorist organisation and that it condemned any use of violence. He repudiated in part his previous statement, stating that it had been given under pressure, and denied any attempts to persuade people to join Hizb ut-Tahrir. He further stated that the guidelines found in his flat had been planted by the police.

The first applicant’s partner Ms D. denied being a member of Hizb ut-Tahrir and stated that she had not known about its being banned in Russia.

The trial court then questioned witnesses called by the prosecution, who confirmed the statements they had given during the investigation.

Finally, the trial court examined the leaflets and brochures distributed by the first applicant.

On 11 November 2004 the Moscow City Court found the first applicant guilty of aiding and abetting terrorism, founding a criminal organisation and using forged documents (Article 205.1 § 1, Article 210 § 1 and Article 327 § 3 of the Criminal Code). Referring to the witness testimony, the first applicant’s statements to the investigator and documentary evidence, the court found it established that the first applicant, being a member of Hizb ut-Tahrir, had founded a local section of that organisation and, in the period from 1999 to February 2004, had recruited new members and distributed the organisation’s literature. The court analysed the contents of the leaflets and brochures distributed by the first applicant and found that they proclaimed the superiority of Islam over other religions and political ideologies, such as communism and capitalism, and advocated intolerance towards non-Muslims. They also rejected democratic principles as incompatible with the rules of sharia. They declared war on governments which were not based on Islam and called for their overthrow, including by violent methods. They urged members of Hizb ut-Tahrir to take part in the sacred war (jihad). By stating that jihad was not a defensive war but a struggle to expand the Islamic State, which had to be carried out even if the “unfaithful” did not attack Muslims, the documents in question openly advocated and glorified warfare in the name of Allah. They also stated that such countries as the United States of America, the United Kingdom, France and Russia were enemy States and that war had to be declared against any State that occupied Muslim lands. Citizens of the above enemy States should not be allowed to enter Muslim states and it should be permitted to kill them and take their property if they were not Muslims. Referring to the contents of the above-mentioned leaflets and brochures, the contents of the guidelines on the use of weapons, explosives and poisons found in the first applicant’s flat and the Supreme Court’s decision of 14 February 2003, the court concluded that the local section of Hizb ut-Tahrir founded by the first applicant was a terrorist organisation. The court also found it established that the first applicant had known about the Supreme Court’s decision of 14 February 2003. His actions had therefore amounted to incitement to participate in the activities of a terrorist organisation, punishable under Article 205.1 of the Criminal Code, and to founding of a criminal organisation, punishable under Article 210 of the Code.

The court sentenced the first applicant to eight years’ imprisonment.

In his submissions on appeal the first applicant stated that he had never called for or resorted to violence. Nor had he been involved in any terrorist activities. His conviction for spreading Islamic ideology had breached his right to freedom of speech and opinion. He also argued that the trial court had incorrectly interpreted the religious terminology contained in Hizb ut-Tahrir’s literature. Given that the trial judge did not have sufficient knowledge of religious matters, an expert opinion should have been ordered. Finally, the first applicant submitted that he had had no knowledge of the decision of the Supreme Court banning Hizb ut-Tahrir as that decision had never been officially published.

On 13 January 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal.

On 2 May 2007 the Udorskiy District Court of the Komy Republic decided to bring the applicant’s sentence into conformity with the recent amendments to Article 205.1 of the Criminal Code. It found that incitement to participate in the activities of a terrorist organisation was no longer classified as adding or abetting terrorism in the new version of Article 205.1 (see paragraph 55 below). The court therefore decided to set aside the conviction under Article 205.1 and reduce the first applicant’s sentence to seven years and four months’ imprisonment. On 3 July 2007 the Supreme Court of the Komy Republic upheld that decision on appeal.

On 10 June 2011 the first applicant finished serving his sentence. He is now facing extradition proceedings to Uzbekistan, where criminal proceedings are pending against him in relation to his membership of Hizb ut-Tahrir. On 14 December 2012 he disappeared from Moscow and his current whereabouts are unknown.

On 18 June 2004 criminal proceedings were instituted against the second applicant and eight other persons by the Tyumen regional prosecutor’s office. They were accused of being members of Hizb ut-Tahrir and charged with aiding and abetting terrorism, an offence under Article 205.1 § 1 of the Criminal Code, and founding and membership of an extremist organisation, an offence under Article 282.2 §§ 1 and 2 of the Criminal Code.

When questioned by the investigator, the second applicant admitted to being a member of Hizb ut-Tahrir and, since the beginning of 2003, the leader of its local sections in Tyumen and Tobolsk. Their aim was to establish the Caliphate in the Middle East. He had learned that the organisation had been banned in Russia in the course of his interview with the police in the autumn of 2003. The meetings of the local sections had all been held in secret. He had chaired the meetings, had admitted new members, had distributed Hizb ut-Tahrir’s literature and had explained its ideology. He had also been responsible for maintaining contacts with the Moscow section of Hizb ut-Tahrir.

His co-defendants gave similar evidence. They confirmed the second applicant’s leadership position and his regular contact with other local sections of Hizb ut-Tahrir in Russia. During their regular and secret meetings they had read Hizb ut-Tahrir’s literature and discussed its aims, among which had been recruitment of new members and dissemination of Hizb ut-Tahrir’s ideology among the population through media publications and distribution of leaflets. The issues they had discussed during the meetings were often political rather than religious. Members of the organisation had to give an oath, pay contributions and obey orders by the leaders. They considered themselves part of the international organisation Hizb ut-Tahrir al-Islami. Some of them stated that they knew that the organisation had been banned in Russia.

The investigator also obtained statements from several witnesses. The witnesses stated that the defendants had attempted to persuade them to become members of Hizb ut-Tahrir and had supplied them with the organisation’s literature.

The defendants’ flats were searched and multiple copies of Hizb utTahrir’s literature and leaflets were found there. Some of those leaflets criticised the authorities’ decision to ban Hizb ut-Tahrir and the ensuing arrests and criminal proceedings against its members. It was also discovered that documents containing Hizb ut-Tahrir’s texts and information about its activities were stored on the hard disk of the second applicant’s computer and several floppy disks.

In June 2005 the case was sent for trial before the Tobolsk Town Court of the Tyumen Region. All defendants, including the second applicant, repudiated their previous statements, stating that they had been given under duress, and pleaded not guilty.

They admitted to being followers of Hizb ut-Tahrir’s ideology but denied being members of the organisation. They had gathered regularly and openly to read Islamic texts and discuss religious issues. All the texts had been printed out from the Internet and none of them had been banned or recognised as extremist. They had never planned or participated in any terrorist activities, nor had they incited others to commit terrorist acts. They were opposed to violence and strived to achieve their aim, namely establishment of the Caliphate, through ideological and political struggle.

The trial court then questioned witnesses called by the prosecution. Some of them confirmed the evidence they had given during the investigation, while the others repudiated their previous statements.

The court also listened to audio recordings and watched video recordings of the defendants’ meetings. During the meetings the defendants discussed the ideology and aims of Hizb ut-Tahrir, its structure and the methods employed by it. The second applicant and his assistant had been the principal spokesmen. They had instructed the others that orders should be immediately obeyed and had warned that those who refused to obey would be punished. They had also explained that the local section’s main activities were to be proselytism, involvement of new members and establishment of contacts with high-ranking State officials. During one of the meetings the defendants had discussed the possibility of obtaining arms and explosives and committing terrorist acts. During another meeting the second applicant’s assistant had stated the following:

“‘I am astonished why you have Jews here, why you have so many of them accumulated?’

‘We have overseers in two towns, I mean our supporters. The criminal world supports us. Hizb supports us. In our town the [criminals] support us.’

‘You should have hate, fury... You should be a wolf, you should attack. You should not be afraid of burying someone in asphalt, when someone is assaulted you should join in, you should make a contribution to violence. You should be like that. Jews are foul people, they act in an underhand way. They will not carry out an attack themselves, they will hire someone. They are sly and rich, they control the town thanks to their money.’”

The court further examined the contents of the Internet site maintained by Hizb ut-Tahrir and the literature found in the defendants’ flats.

Finally, the court examined expert reports submitted by the prosecutor. A panel composed of experts in religious, political and linguistic matters examined the literature found during the search of the defendants’ flats and the audio and video recordings. The experts concluded that the documents and recordings contained religious and political propaganda on behalf of Hizb ut-Tahrir. Some of them contained radical fundamentalist statements accepting and advocating the use of violence and armed struggle in the form of jihad. Therefore, there were reasons to consider that Hizb utTahrir’s literature was extremist in nature and that its dissemination amounted to pro-terrorism propaganda. The documents under examination advocated the idea that all existing States and governments were illegitimate as they were not based on Islam and called for their overthrow, including by violent methods, for the universal Islamisation of mankind and for the establishment of a “Worldwide Islamic Caliphate”; in other words, they called for a coup d’état and the forcible taking over of the government in all countries. The experts noted that although the documents did not indicate clearly the methods by which the organisation’s aims were to be achieved and did not openly call for the commission of terrorist acts, they unambiguously rejected any possibility of the organisation’s participation in the democratic political process. It followed, in the experts’ opinion, that its aim of taking over governments could only be achieved through the use of violence. The documents also contained ideas promoting the superiority of Muslims over adherents of other religions and consistent calls for confrontation between Islamic fundamentalists and all others. They were capable of creating hostility and disunity in society. Finally, the linguistic experts found that the documents under examination were highly manipulative and capable of influencing the mind and the will of the reader. They employed professional manipulation techniques. Thus, they twisted the meanings of some words, for example interpreting “terrorism” as acts of violence against Muslims only, while the same acts against adherents of other religions were described as sacred war against non-believers (jihad).

The trial court questioned one of the experts, who confirmed his findings. He added that Hizb ut-Tahrir was an extremist organisation that was intolerant towards other religions. It called for violence against non-believers, which might be interpreted as incitement to terrorism.

The experts called by the defence disputed the above findings. One of the experts, a co-president of the Council of Muftis of Russia, stated to the court that Hizb ut-Tahrir was not a terrorist organisation and was not involved in the commission of any terrorist acts. Its ideology was utopian and unrealistic. Its main activity was Islamic proselytism. According to its texts, the Caliphate was to be established by peaceful methods. Another expert also testified that the members of Hizb ut-Tahrir were not violent and did not present any danger to national security.

On 3 October 2005 the Tobolsk Town Court found the second applicant and his co-defendants guilty as charged. Referring to the witness testimony, the defendants’ statements to the investigator, the audio and video recordings of the defendants’ meetings and the expert opinions, the court found it established that since the beginning of 2003 the defendants had been members of Hizb ut-Tahrir. That organisation had been declared to be a terrorist and extremist organisation and banned by the Supreme Court. Given that the Supreme Court’s decision had been duly published, that the second applicant had been informed about its contents in December 2003 in the course of his interview with the police in connection with a similar criminal case and that leaflets criticising that decision and the ensuing arrests and criminal proceedings against members of Hizb ut-Tahrir had been found in the defendants’ flats, the Town Court found it established that the defendants knew about the Supreme Court’s decision banning Hizb utTahrir. Despite that fact, they had not stopped their activities as members of Hizb ut-Tahrir and had continued to hold secret meetings, recruit new members and distribute the organisation’s literature. The documents distributed by the defendants were extremist as they advocated violence, rejected the rule of law and encouraged hatred towards adherents of other religions. Their actions had therefore amounted to founding and membership of a banned extremist organisation, punishable under Article 282.2 of the Criminal Code, and to incitement to participate in the activities of a terrorist organisation, punishable under Article 205.1 of the Code.

The court sentenced the second applicant to five years and six months’ imprisonment for the offence under Article 205.1 and to two years’ imprisonment for the offence under Article 282.2. The aggregate sentence was fixed at six years’ imprisonment.

In his submissions on appeal the second applicant stated that he had never committed any terrorist acts or been involved in any terrorist activities. He and his co-defendants had gathered to read Islamic literature and to discuss religious issues. His conviction had therefore violated his rights under Articles 9, 10 and 11 of the Convention.

On 12 January 2006 the Tyumen Regional Court upheld the conviction on appeal.

Information on the nature and activities of Hizb ut-Tahrir is scarce and contradictory. The most comprehensive report was prepared by the International Crisis Group in 2003. The report, entitled “Radical Islam in Central Asia: Responding to Hizb ut-Tahrir”, reads, as far as relevant, as follows:

“Hizb ut-Tahrir is not a religious organisation, but rather a political party whose ideology is based on Islam. It aims to re-establish the historical Caliphate in order to bring together all Muslim lands under Islamic rule and establish a state capable of counterbalancing the West. It rejects contemporary efforts to establish Islamic states, asserting that Saudi Arabia and Iran do not meet the necessary criteria. According to Hizb ut-Tahrir, the Islamic state is one in which Islamic law – Sharia – is applied to all walks of life, and there is no compromise with other forms of legislation.

Hizb ut-Tahrir claims to reject violence as a form of political struggle, and most of its activities are peaceful. In theory, the group rejects terrorism, considering the killing of innocents to be against Islamic law. However, behind this rhetoric, there is some ideological justification for violence in its literature, and it admits participation in a number of failed coup attempts in the Middle East. It also has contacts with some groups much less scrupulous about violence. But despite the allegations of governments, there is no proof of its involvement in terrorist activities in Central Asia or elsewhere.

Government responses have been contradictory and often ineffective. In much of the Middle East, the organisation is banned from acting openly, and many of its members have been imprisoned. Central Asian governments have taken particularly harsh stances, with Uzbekistan leading the way by arresting and sentencing thousands of members to long prison terms. In some other Muslim countries, such as Indonesia, Hizb ut-Tahrir acts more or less openly, as it does in much of Western Europe ...

The party’s writings elaborate three stages of political struggle, based on its interpretation of the historical mission of the Prophet Mohammed in establishing the first Islamic state:

The First: The stage of culturing; this involves finding and cultivating individuals who are convinced by the thought and method of the party. This is necessary in order to formulate and establish a group capable of carrying the party’s ideas.

The Second: The stage of interaction with the Ummah (wider Muslim community) in order to encourage the Ummah to work for Islam and to carry the Da’wah (message) as if it was its own, and so that it works to establish Islam in life, state and society.

The Third: The stage of taking the government and implementing Islam completely and totally, and carrying its message to the world.

The first stage is the most important in present party activity and one of the keys to its longevity. It is based on finding appropriate members and moulding them to its thinking...

The second stage involves: ‘Collective culturing of the masses ... through organising lessons in the mosques, conferences, lectures, places of public gathering, newspapers, books and leaflets...’ Hizb ut-Tahrir is very effective at spreading its views through wide publication of books and leaflets in multiple languages and a network of well-run websites that provide access to most of the party’s literature.

Through these two stages of political work, Hizb ut-Tahrir claims that it can develop mass understanding of its ideas (although not necessarily mass membership), and most importantly that it can persuade influential figures in politics, the military and elsewhere to act in accordance with its program and aims. The party actively attempts to recruit well-educated members of society, particularly those in positions that allow them to influence popular opinion.

Getting from this position – wide acceptance of ideas, and some influence on those who are capable of influencing policy – to establishment of an Islamic state is the essence of the third stage of political struggle. It is this stage, the actual seizure of power, and the establishment of the Islamic state, that is most murky in the literature. In most of its writings Hizb ut-Tahrir rejects participation in parliamentary democracy, or any alliances with other political parties to gain power...

There is little doubt about Hizb ut-Tahrir’s disregard for democracy. It rejects the concept as a Western, anti-Islamic invention and is not interested in acting as a party within an open political system. A recent publication claims: ‘Democracy ... is considered a kufr [unbelievers] system, it is in clear contradiction with the Qu’ran and Sunnah’ ...

It is widely reported that Hizb ut-Tahrir, both in Central Asia and beyond, eschews violence to achieve its ends. Some human rights activists have argued that it is essentially a peaceful group that operates only in the realm of ideas and propaganda. It has never been proven to have been involved in any violence in Central Asia, and in its other global activities it has generally pursued its aims through peaceful propaganda. It is strongly opposed to U.S. policy in the Middle East, but does not call for terrorist actions against America. Indeed, it claims to be opposed to terrorist activity and asserts that the killing of innocent civilians is against Islamic law. Its literature is straightforward, claiming that ‘... military struggle is not the method of re-establishing the Khilafah’ ...

Yet the view that Hizb ut-Tahrir is opposed to political violence per se is mistaken. The situation is much more nuanced than most researchers allow ... One scholar explains:

‘... in practical terms an-Nabhani argued that a regime could be brought down through acts of civil disobedience such as strikes, noncooperation with the authorities or demonstrations, or through a procession to the palace or presidential residence, provided that the movement enjoys exclusive control and leadership ... Alternatively, it could be toppled through a military coup executed by forces that have agreed to hand over power to the movement.’

However, Hizb ut-Tahrir argues that as a political party it does not undertake any physical or violent actions. So how can it justify involvement in a military coup?

‘Hizb ut-Tahrir itself eschews the use of force [but] ... internal sources argue that groups pledging the party their back-up can use arms ... if society stands against the regime its removal even by military force does not constitute an act of violence: this would be the case only if the party were to kill its opponents to arrive in power, for example.’ ...

What this means in practice is not certain, but it could clearly be interpreted as seeking military assistance from other groups, should members be experiencing considerable harm, or in the broadest sense to establish the Caliphate. In this way, the party remains committed to its intellectual and political struggle but does not rule out seeking assistance from other groups, including some that will take military action on its behalf ...

The party’s interpretation of jihad is also somewhat confused at first glance ... A member in Kazakhstan explained: ‘There are two types of jihad: the physical and the spiritual. The physical jihad will come after the establishment of the Caliphate. The spiritual is for now’ ...

Although the main jihad is not expected until the Caliphate is introduced, this does not mean that Muslims should not fight defensive wars. Thus, Muslims, Hizb ut-Tahrir members included, are enjoined to fight against an invader if attacked ...

There is much loose rhetoric about jihad in party leaflets, which does not always underline these distinctions. And there is clearly some potential for a defensive jihad to be interpreted in a very broad fashion. But the main thrust of Hizb ut-Tahrir thinking seems to have remained intact: the jihad will come when the Caliphate is established ...

Historically, the party’s record provides no evidence of it being involved in terrorist activity against civilians, or in military actions against U.S. or Western interests. But there is good evidence of its involvement in a series of failed coups and attempts to overthrow governments in the Middle East. Some of the evidence for these incidents is disputed, but it seems clear that Hizb ut-Tahrir was involved in an attempted coup d’état in Jordan on several occasions in the late 1960s and early 1970s. It was also accused of involvement in an attack on the military academy in Egypt in 1974, interpreted by the government as preparation for a coup. Far from denying involvement, party representatives admit that, ‘It is no secret that Hizb ut-Tahrir has been involved in a number of failed coup attempts in the Middle East’ ...

Thus while it seems clear that ideologically and practically Hizb ut-Tahrir cannot be classified as a terrorist group, it is willing to persuade militaries to overthrow their governments, and in certain cases be involved in such military coups itself. Should it ever come to power, its willingness to use violence as an Islamic state would be more certain: it consistently emphasises that the duty of the Islamic state is to carry out military campaigns to free Muslim lands from the rule of ‘unbelievers’ and to wage war against Israel ...”

The report goes on to describe the position of Hizb ut-Tahrir in western Europe:

“According to the Hizb ut-Tahrir leader in Sweden, Fadi Abdullatif, the party is growing by actively recruiting second-generation Muslim immigrants ... The party’s popularity among Muslims in the West has continued to grow, providing it a strong organisational, and possibly financial, base.

Germany became the first Western state to ban Hizb ut-Tahrir in January 2003, citing its anti-Semitic and anti-Israeli propaganda. However, the German authorities did not provide any evidence of links between it and terrorist groups. German security forces carried out further raids on known activists, now working illegally, in May 2003.

In Denmark the party has also garnered support among immigrants. In March 2003 its leader, Fadi Abdullatif, was convicted of breaking anti-racism laws, after he handed out leaflets allegedly calling for Jews to be killed. The group claims the quotes were taken out of context. The government has apparently considered banning the party, which according to media reports has about 100 members.

In the UK Hizb ut-Tahrir remains very active, particularly in London and in towns with major Muslim populations such as Birmingham, Bradford and Sheffield. It has been notably successful in recruiting students, although it has been banned from many university campuses, because of its anti-Semitism, alleged threatening behaviour towards students of other faiths, and public objections to homosexuality ...”

Human Rights Watch notes in its 2004 report “Creating Enemies of the State. Religious Persecution in Uzbekistan”:

“Hizb ut-Tahrir renounces violence as a means to achieve reestablishment of the Caliphate. However, it does not reject the use of violence during armed conflicts already under way and in which the group regards Muslims as struggling against oppressors, such as Palestinian violence against Israeli occupation. Its literature denounces secularism and Western-style democracy. Its anti-Semitic and anti-Israel statements have led the government of Germany to ban it ... Some in the diplomatic community, in particular the U.S. government, consider Hizb ut-Tahrir to be a political organization and therefore argue that imprisoned Hizb ut-Tahrir members are not victims of religious persecution. But religion and politics are inseparable in Hizb ut-Tahrir’s ideology and activities ... Even if one accepts that there is a political component to Hizb ut-Tahrir’s ideology, methods, and goals, this does not vitiate the right of that group’s members to be protected from religion-based persecution ...

Hizb ut-Tahrir’s designation as a nonviolent organization has been contested. Hizb ut-Tahrir literature does not renounce violence in armed struggles already under way –in Israel and the Occupied Territories, Chechnya, and Kashmir – in which it views Muslims as the victims of persecution. But Hizb ut-Tahrir members have consistently rejected the use of violence to achieve the aim of reestablishing the Caliphate, which they believe will only be legitimate if created the same way they believe the Prophet Muhammad created the original Caliphate, and which can occur only as a result of gradual ‘awakening’ among Muslims ...”

Another report on Hizb ut-Tahrir’s activities, entitled “Whether Hizb ut-Tahrir is an extremist organisation?”, was published on 20 October 2005 by SOVA Centre for Information and Analysis, a Russian nongovernmental organisation. The report states, in particular, that following the Supreme Court’s decision of 14 February 2003 banning Hizb ut-Tahrir, many of its members were charged with aiding and abetting terrorism, membership of a criminal organisation, membership of an extremist organisation or unlawful possession of arms. The first applicant was the first to be convicted at final instance. Many other convictions followed thereafter.

The report further states that the analysis of Hizb ut-Tahrir’s literature reveals that that organisation openly and unequivocally rejects democratic principles and political freedoms, such as freedom of religion and freedom of thought, declaring that they are contrary to Islam. Moreover, the literature declares that it is justified to use violence to fight democracy. However, it affirms that such violence will be used only after the establishment of the Caliphate and the commencement of jihad. Although there are two commonly accepted meanings of this term in Islam, Hizb utTahrir’s literature almost always means holy war when speaking of jihad. Many countries, such as Israel and the United States of America, are declared to be enemy States which should be fought against already, including by violent methods. Hizb ut-Tahrir, however, does not directly call upon its members to participate in that fight. Hizb ut-Tahrir expresses its support to Chechen separatists, even though it condemns terrorist acts against the civil population committed on Russian territory, at the same time denying the possibility of involvement of Chechen separatists in such acts. It should be also noted that Hizb ut-Tahrir does not use the term “terrorism” in its common meaning, considering any violent acts against enemy States, including those that would be normally classified as terrorist acts, to constitute part of holy war. The report cites Hizb ut-Tahrir’s document entitled “The Islamic rule on hijacking aeroplanes”, which states that it is justified to hijack civil aeroplanes of enemy States and kill their passengers because the citizens of such States and their property constitute legitimate war targets. That document was deleted from Hizb ut-Tahrir’s website several years ago, but no statements disavowing its contents have ever been made by the organisation’s leadership, which gives cause to believe that it has been deleted for the purposes of secrecy. As regards the means for the establishment of the Caliphate, Hizb ut-Tahrir’s literature is not clear on this point. It is certain that the organisation rejects the possibility of participation in parliamentary elections or any other democratic process in order to come to power. There remains the possibility of a coup d’état committed by more or less violent methods. The Caliphate must, however, first be established on traditionally Muslim territories, which do not include Russia. Accordingly, the report concludes that Hizb ut-Tahrir is not planning any coup d’état in Russia and its activities there are limited to proselytism.

Finally, the report notes that some of Hizb ut-Tahrir’s documents, including those that can still be found on the organisation’s Russian website, contain anti-Semitic propaganda, glorification of suicide bombers in Israel and calls for violence against Jews and for the destruction of Israel. It thus concludes that Hizb ut-Tahrir is an extremist organisation stirring anti-Semitic hatred and advocating violence. The report recommends, however, that the Supreme Court’s decision banning Hizb ut-Tahrir should be annulled and that prosecution of individuals on the mere ground of their membership of that organisation should be stopped. It considers it advisable that only those of the organisation’s members who have made statements advocating hatred or violence should face criminal or other proceedings.

A report entitled “Hizb ut Tahrir al Islami (Islamic Party of Liberation)”, published on 15 April 2007 by the European research project Transnational Terrorism, Security, and the Rule of Law (TTSRL), financed by the European Commission, reads as follows:

“Hizb ut Tahrir al Islami (Islamic Party of Liberation) presents itself as ‘a political party whose ideology is Islam, so politics is its work and Islam is its ideology ...’ ... In their own eyes, Hizb ut Tahrir (for short) is a political group and not a priestly one ... It is a trans-national party or movement that claims to try to achieve its political goals without the use of violence and has branches in about forty countries, including both Islamic and Western countries. In the Islamic world they are, for instance, active not only in the Middle East, but also in Bangladesh, Malaysia, Indonesia, and the former Soviet republics in Central Asia. In almost all of these countries, Hizb ut Tahrir is perceived as a threat to the state or even as a terrorist organisation. In the Western world, Hizb ut Tahrir has a presence in, among others, the United Kingdom, the Netherlands, Germany, Australia, the United States and Canada. To these countries, Hizb ut Tahrir presents a particularly difficult challenge since it holds radical Islamist views, but openly only advocates peaceful change. Nonetheless, in a number of EU member states, the party is regarded as one that secretly does support the idea of a violent jihad and/or has been involved in anti-Semitic incidents ...

The organizational structure of Hizb ut Tahrir is rather complex ... The identities of Hizb ut Tahrir’s current leader and senior officers have not been mentioned in reliable open sources.

Concrete issues at the level of different national branches are in the hands of national leaders, where the scope and content of the activities within the branches greatly differ. A general distinction can be made between countries in which the party is permitted to operate freely, and countries in which Hizb ut Tahrir is prosecuted. In Uzbekistan, for instance, [Hizb ut Tahrir] is organized in a secretive and hierarchical pyramid structure made up of many five-person cells whose members, after they have completed training averaging about two months, form their own groups or ‘halka’ - also of five to six members. Other sources speak of three-person cells... In EU member states, the branches of Hizb ut Tahrir are organized like most political parties and have a hierarchical structure with a national leader, local groups and the possibility of membership for anyone who supports the party’s ideas. In addition, the European branches of the party also consist of study groups, the above-mentioned ‘halkas.’...

From the beginning, Hizb ut Tahrir’s leadership decreed that members should not participate in terrorist activities. This message has been continuously reverberated. There are, however, many allegations of links between the party and terrorist organisations. It should be stressed that none of these allegations are backed by concrete evidence ...

There are, nonetheless, possible indirect links between Hizb ut Tahrir and terrorist groups and individuals. In Britain, three men, who in 1995 were arrested and charged with conspiring to assassinate the Israeli ambassador, were reported to have been in possession of Hizb ut Tahrir literature and to have helped organize Hizb ut Tahrir meetings in Manchester ... Another man, Muhammad Babar – who is linked to the seven men currently on trial in London on charges of planning terrorist attacks between January 2003 and April 2004 – has stated that he became a member of Hizb ut Tahrir and another radical group, Al Muhajiroun, while at the university, when he became angered by the Gulf War ... In the above mentioned cases, as well as in most cases, those behind the allegations only point at involvement in Hizb ut Tahrir activities while studying, the possession of Hizb ut Tahrir materials, and other rather indirect relations between suspects of terrorism and the party. More serious are the allegations that connect the party to the other radical group mentioned above, AlMuhajiroun, established in 1995 as a splinter group that broke off from Hizb utTahrir. According to leader Omar Bakri Muhammad, the two groups initially split because Hizb ut Tahrir was ‘too soft’ ... His group has been accused of recruiting young Muslims in Britain to fight abroad in places such as Kashmir, Afghanistan and Chechnya ...

Despite the above-mentioned allegations, authorities in the EU have not yet formally accused Hizb ut Tahrir for having links with terrorist organisations. In addition, there are no official reports that members have joined or become involved in the global jihad movement. However, it should be noted that some counties do see the organisation as a possible or potential threat to democracy and the rule of law ...

Unlike more traditional Islamic parties, Hizb ut Tahrir refuses to be involved in local politics, making it impossible for regional leaders to co-opt the group. Although Hizb ut Tahrir describes itself as a political party, it does not want to participate in elections or want to be part of coalition governments ... The process towards the utopian Islamic Caliphate is viewed more as a social or intellectual process rather than a political one.

For the above-mentioned intellectual struggle and intellectual transformation, Hizb ut Tahrir focuses primarily on highly educated Muslims. The method is the socalled Islamic da’wah through which society can be transformed into an Islamic one. Within the EU, the concrete translation of this concept is distributing leaflets at universities and near mosques, or to organise meetings on current political and social issues, such as the situation in Iraq, the cartoon issue in Denmark and Guantanamo Bay ... Although the method of da’wah seems very theoretical and impractical in relation to the stated goal, it cannot be denied that the party has managed to attract tens of thousands of Muslims in Europe who believe in its method ...

As mentioned above, Hizb ut Tahrir has branches in some forty countries, in a number of which the party is considered a terrorist organisation. Within the EU, where religiously inspired political parties enjoy relatively greater freedom than they do anywhere else, only Germany has outlawed Hizb ut Tahrir ...

... [Many] questions remain open with regard to the nature of this party and its impact on society and how to deal with its spreading of anti-Semitic, anti-Western and non-democratic ideas and sentiments ...

A case-study on an organisation such as Hizb ut Tahrir as part of an overall large research project on counter-terrorism might suggest prematurely that Hizb ut-Tahrir falls in the category of labelled terrorist organisations, or at least belongs to a group of organisations that pose a serious threat to our democratic society. However, such qualifications cannot be given to Hizb ut-Tahrir without serious reservations. The question can even be raised whether such qualification is fit for this organisation at all. Although, in its philosophy Hizb ut-Tahrir has anti-democratic tendencies, it also rejects the idea of violent jihad to achieve their goal of a caliphate. Most allegations on the terrorist connection of the organisation or some of its members point at rather indirect links, are not based on solid sources, or should by their numbers be assessed as mere coincidences.

On the other hand, experience shows that organisations such as Hizb ut-Tahrir are ‘very smart in walking the very fine line between propaganda and incitement to terrorism’, according to Paul Wilkinson, director of the Centre for the Study of Terrorism and Political Violence at the University of St Andrews ... However, outlawing this organisation without a proper cause might have the opposite effect. It is therefore important to monitor with prudence and to act on facts instead of allegations.”

Hizb ut-Tahrir’s aims and principles, as well as the details of what an Islamic state would look like, are outlined in a range of literature produced by the organisation. In particular, it has prepared a Draft Constitution which sketches the major provisions of an Islamic State (wording as in the original):

“The Islamic ‘Aqeedah [creed] constitutes the foundation of the State. Nothing is permitted to exist in the government’s structure, accountability, or any other aspect connected with the government, that does not take the ‘Aqeedah as its source. The ‘Aqeedah is also the source for the State’s constitution and Sharia canons. Nothing connected to the constitution or canons is permitted to exist unless it emanates from the Islamic ‘Aqeedah.”

“The State implements the aHkaam Sharia [divine rules] on all citizens who hold citizenship of the Islamic State, whether Muslims or not, in the following manner:

a. The aHkaam Sharia is implemented in its entirety, without exception, on all Muslims.

b. Non-Muslims are allowed to follow their own beliefs and worships.

c. Those who are guilty of apostasy (murtadd) from Islam are to be executed according to the rule of apostasy, provided they have by themselves renounced Islam. If they are born as non-Muslims, i.e., if they are the sons of apostates, then they are treated as non-Muslims according to their status as being either polytheists (mushriks) or People of the Book.

d. In matters of food and clothing the non-Muslims are treated according to their religions within the limits allowed by aHkaam Sharia.

e. Marital affairs (including divorce) among non-Muslims are settled in accordance with their religions, but between non-Muslims and Muslims they are settled according to the aHkaam Sharia.

f. All the remaining Sharia matters and rules, such as: the application of transactions, punishments and evidences (at court), the system of ruling and economics are implemented by the State upon everyone, Muslim and non-Muslim alike. This includes the people of treaties (mu’aahid), the protected subjects (ahludh dhimmah) and all who submit to the authority of Islam. The implementation on these people is the same as the implementation on the subjects of the State. Ambassadors and envoys enjoy diplomatic immunity.”

“No one is permitted to take charge of ruling, or any action considered to be of the nature of ruling, except a male who is free (Hurr), i.e. not a slave, mature (baaligh), sane (‘aaqil), trustworthy (‘adl), competent; and he must [be a Muslim].”

“Muslims are entitled to establish political parties to question the rulers and to access the positions of ruling through the Ummah [Muslim community] on condition that the parties are based on the ‘Aqeedah of Islam and their adopted rules are aHkaam Sharia [divine rules]; the establishment of such a party does not require a license by the State. Any party not established on the basis of Islam is prohibited.”

“The Khaleefah is deputised by the Ummah with authority to implement the Sharia.”

“Every mature male and female Muslim, who is sane, has the right to participate in the election of the Khaleefah and in giving him the pledge (ba’iah). Non-Muslims have no right in this regard.”

“There are seven conditions needed in the Khaleefah... They are to be a male, Muslim, free (Hurr), mature (baaligh), sane (‘aaqil), trustworthy (‘adl) and able (qaadir).”

The Draft Constitution further indicates that all highest Government officials, the chief judge and the judges of the Court of the Unjust Acts (the court which settles disputes between the citizens and the State) must be male and Muslims. Muslim women are allowed to become lower-level officials and judges (Articles 42, 49, 67, 69, 87). Non-Muslims may be appointed only to technical and administrative official positions (Article 97).

The Draft Constitution further continues:

“The members of the Majlis al-Ummah [people’s assembly] are those people who represent the Muslims in respect of expressing their views to the Khaleefah when consulted. Non-Muslims are allowed to be members of the Majlis al-Ummah so that they can voice their complaints in respect to unjust acts performed by the rulers or the misapplication of the Islamic laws.”

“The members of the Majlis al-Ummah are elected by the people.”

“Consultation (Shoora) and the mashoora are the seeking of views in absolute terms. These views are not binding in legislation, definitions, intellectual matters such as discovering the facts and the technical and scientific matters. However they are binding when the Khaleefah consults in other practical matters and actions that do not need scrutiny or research.”

“All citizens, Muslim or not, may express their views, but Shoora is a right for the Muslims only.”

“Jihad is a compulsory duty (farD) on all Muslims. Military training is therefore compulsory. Thus, every male Muslim, fifteen years and over, is obliged to undergo military training in readiness for jihad...”

“Segregation of the sexes is fundamental, they should not meet together except for a need that the Sharia allows or for a purpose the Sharia allows men and women to meet for, such as trading or pilgrimage (Hajj).”

“Women have the same rights and obligations as men, except for those specified by the Sharia evidences to be for him or her. Thus, she has the right to practice in trading, farming, and industry; to partake in contracts and transactions; to possess all form of property; to invest her funds by herself (or by others); and to conduct all of life’s affairs by her.”

“A woman can participate in elections ... and elect, and be a member of the Majlis al-Ummah, and can be appointed as an official of the State in a non-ruling position.”

“Women live within a public and private life. Within their public life, they are allowed to live with other women, maHram males [males forbidden to them in marriage] and foreign men (whom they can marry) on condition that nothing of the women’s body is revealed, apart from her face and hands, and that the clothing is not revealing nor her charms displayed. Within the private life she is not allowed to live except with women or her maHram males and she is not allowed to live together with foreign men. In both cases she has to restrict herself with the rules of Sharia.”

“The custody of children is both a right and duty of the mother, whether Muslim or not, so long as the child is in need of this care. When children, girls or boys, are no longer in need of care, they are to choose which parent they wish to live with, whether the child is male or female. If only one of the parents is Muslim, there is no choice for the child is to join the Muslim parent.”

“Zakaah [property tax] is collected from Muslims on their properties...”

“Jizyah (head-tax) is collected from the non-Muslims (dhimmis). It is to be taken from the mature men if they are financially capable of paying it. It is not taken from women or children.”

“The Islamic creed constitutes the basis upon which the education policy is built. The syllabi and methods of teaching are designed to prevent a departure from this basis.”

“The purpose of education is to form the Islamic personality in thought and behaviour. Therefore, all subjects in the curriculum must be chosen on this basis.”

“Arts and crafts may be related to science, such as commerce, navigation and agriculture. In such cases, they are studied without restriction or conditions. Sometimes, however, arts and crafts are connected to culture and influenced by a particular viewpoint of life, such as painting and sculpting. If this viewpoint of life contradicts the Islamic viewpoint of life, these arts and crafts are not taken.”

“The state’s curriculum is only one, and no curriculum other than that of the state is allowed to be taught. Private schools provided they are not foreign, are allowed as long as they adopt the state’s curriculum and establish themselves on the State’s educational policy and accomplish the goal of education set by the State. Teaching in such schools should not be mixed between males and females, whether the students or the teachers; and they should not be specific for certain deen [religion], madhab [schools of Muslim law], race or colour.”

“It is absolutely forbidden for any individual, party, group or association to have relations with a foreign state...”

“The state’s relations with other states are built upon four considerations. These are:

States with whom we do not have treaties, the actual imperialist states, like Britain, America and France and those states that have designs on the State, like Russia, are considered to be potentially belligerent states. All precautions must be taken towards them and it would be wrong to establish diplomatic relations with them. Their subjects may enter the Islamic State only with a passport and a visa specific to every individual and for every visit, unless it became a real belligerent country.

With states that are actually belligerent states, like Israel, a state of war must be taken as the basis for all measures and dealings with them. They must be dealt with as if a real war existed between us – whether an armistice exists or not – and all their subjects are prevented from entering the State.”

“The State is forbidden to belong to any organisation that is based on something other than Islam or which applies non-Islamic rules. This includes international organisations like the United Nations, the International Court of Justice, the International Monetary Fund and the World Bank, and regional organisations like the Arab League.”

Article 205 § 1 of the Criminal Code of the Russian Federation (as in force at the material time) provides as follows:

“Terrorism, that is an explosion, arson or other acts creating a danger of loss of human life, substantial material damage or other socially dangerous consequences, provided that such acts were committed for the purposes of undermining national security, frightening the population or influencing the authorities in order to make them adopt decisions favourable to terrorists, as well as threats to commit the above-mentioned acts, is punishable by eight to twelve years’ imprisonment.”

Article 205.1 of the Code (as in force at the material time) reads, in so far as relevant, as follows:

“1. Aiding and abetting terrorism, that is incitement of a person to commit an offence under Articles 205 [terrorism], 206 [taking of hostages], 208 [organisation or membership of an armed criminal group], 211 [hijacking of an aeroplane, a ship or a train], 277 [attacking of a State official] or 360 [attacking of a person or an institution under international protection] of the Criminal Code; incitement of a person to participate in the activities of a terrorist organisation; training or arming of a person with the aim of committing one of the above-mentioned offences; or financing of terrorism, is punishable by four to eight years’ imprisonment ...”

On 27 July 2006 that Article was amended. In particular, incitement to participate in the activities of a terrorist organisation was no longer classified as adding and abetting terrorism punishable under Article 205.1.

Article 210 of the Code reads, in so far as relevant, as follows:

“1. The founding of a criminal group (criminal organisation) for committing serious and especially serious offences, as well as the leadership of such group or one of its sections ... is punishable by seven to fifteen years’ imprisonment ...”

Article 15 of the Code provides that serious offences are premeditated offences for which the Criminal Code prescribes a maximum penalty of between five and ten years’ imprisonment. Especially serious offences are premeditated offences for which the Code prescribes a maximum penalty of more than ten years’ imprisonment or a heavier penalty.

Article 282.2 of the Code reads as follows:

“1. The founding of a non-profit, religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities is punishable by a fine ..., four to six months’ detention or up to three years’ imprisonment.

Membership of a non-profit, religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities is punishable by a fine ..., up to four months’ detention or up to two years’ imprisonment.”

Article 327 § 3 of the Code provides that the use of official documents known to be forged is punishable by a fine, correctional labour, or three to six months’ detention.

The Anti-Terrorism Act (Federal Law no. 130-FZ of 25 July 1998, as in force at the material time) defined terrorism as violence or the threat of violence directed against persons or organisations, as well as destruction or the threat of destruction of property or other physical objects, provided that such acts created a danger of loss of human life, substantial material damage or other socially dangerous consequences and that they were committed for the purposes of undermining national security, frightening the population, influencing the authorities in order to make them adopt decisions favourable to terrorists or satisfying their illegitimate pecuniary or other interests; an attempt on the life of a State or public official committed for the purposes of stopping his or her public or political activities or in revenge for such activities; an attack on a representative of a foreign State or a staff member of an international organisation enjoying international protection or on official buildings or means of transport of persons enjoying international protection, provided that such acts were committed with the purpose of provoking war or worsening international relations (section 3 § 1).

Terrorist activities include the following activities:

– organisation, planning, preparation and commission of terrorist acts;

– incitement to commit terrorist acts, violence against persons or organisations or destruction of physical objects for terrorist purposes;

– creation of an illegal armed group, criminal group (organisation) or organised group for the commission of terrorist acts, as well as involvement in such acts;

– recruitment, arming and training of terrorists;

– financing of an organisation or group known to be terrorist or any assistance to them (section 3 § 2).

A terrorist organisation is an organisation created with the aim of carrying out terrorist activities or admitting the possibility of recourse to terrorism as part of its activities (section 3 § 8).

An organisation may be declared a terrorist organisation and dissolved by a judicial decision at the request of a prosecutor (section 25).

On 6 March 2006 a new Anti-Terrorism Act (Federal Law no. 35FZ) was passed to replace the 1998 Anti-Terrorism Act. The 2006 Anti-Terrorism Act provides that a list of organisations which have been declared terrorist by a Russian court is to be kept by the federal security services. That list must be published in the official periodical press, as determined by the Government (section 24 § 5). Pursuant to Government Decree no. 1014-p of 14 July 2006, the list of organisations which have been declared to be terrorist organisations by a Russian court is to be published in the official periodical Rossiyskaya Gazeta.

The Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002, as in force at the material time), which was recently examined by the Venice Commission (see Opinion on the Federal Law on Combating Extremist Activity of the Russian Federation, adopted by the Venice Commission at its 91st Plenary Session (Venice, 15-16 June 2012)), defines extremist activities as activities of non-profit, religious or other organisations, the media or individuals consisting in planning, directing, preparing or committing acts aimed at:

– forcible change of the constitutional foundations of the Russian Federation and breach of its territorial integrity;

– undermining the national security of the Russian Federation;

– taking over or usurpation of power;

– founding of armed criminal groups;

– carrying out of terrorist activities;

– encouraging racial, ethnic, religious or social hatred accompanied by violence or calls for violence;

– creation of mass disorder, commission of disorderly acts or acts of vandalism out of ideological, political, racial, ethnic or religious hatred or enmity, or out of hatred or enmity towards a social group;

– propaganda promoting the exceptionality, superiority or inferiority of citizens on the ground of their religion, social position, race, ethnic origin or language;

– propaganda and public display of Nazi attributes or symbols, or attributes or symbols which are similar to Nazi attributes or symbols to the point of becoming undistinguishable;

– public appeals to carry out the above-mentioned activities or to commit the above-mentioned acts, as well as financing of the above-mentioned activities or the assistance of their performance by other means, including by providing financial support or technical facilities, information services or other facilities (section 1§ 1).

The Suppression of Extremism Act further defines an extremist organisation as a non-profit, religious or other organisation which has been dissolved or banned by a final judicial decision on the ground of its extremist activities as defined by the Act (section 1 § 2).

It is prohibited to publish and distribute extremist material – that is, printed, audio, video or other material meeting at least one of the criteria defined in section 1 § 1. Such material includes official material of banned extremist organisations (section 13).


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in 1949 and lives in Mionica.

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

On 7 November 2001 the applicant, a bus conductor, was dismissed by his employer, “Lasta Strela”, a transportation company based in Valjevo.

On 24 December 2001 he filed a claim with the Municipal Court in Valjevo (“the Municipal Court”), seeking reinstatement and payment of salary arrears.

Following a remittal of 14 April 2003, the next hearing in the case was scheduled by the Municipal Court for 27 September 2004.

Of the nine separate hearings scheduled between 27 September 2004 and 26 January 2006, it would appear that four were adjourned whilst five were held. As regards the former, two hearings were adjourned because the respondent and/or several witnesses had not been duly summoned and the other two because witnesses, of whom two were proposed by the applicant, had, though duly summoned, failed to appear in court (for which omission they were ultimately fined).

On 27 January 2006 the Municipal Court ruled against the applicant.

On 25 April 2006 the applicant was served with this judgment.

On 3 May 2006 the applicant filed an appeal with the District Court in Valjevo (“the District Court”).

On 18 December 2006 the District Court returned the case file to the Municipal Court, requesting it to submit certain missing documents.

On 29 March 2007 the District Court upheld the judgment rendered at first instance.

On 3 April 2008 the Supreme Court rejected the applicant’s appeal on points of law (revizija).

Article 122 § 3 provided that all employment-related disputes were to be resolved by the courts within a period of 6 months from the date of institution of the proceedings.

This Act entered into force on 23 March 2005 and thereby repealed the Labour Act 2001.

The text of Article 195 § 3 of the Labour Act 2005 corresponds to Article 122 § 3 of the Labour Act 2001.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1964 and lives in Maykop, the Republic of Adygeya.

The applicant is a businessman. In 1996 he purchased a saw-mill with the intention of operating it as a going concern.

In March 1998 the local authority ordered him to shut the saw-mill down because it was situated in the vicinity of sewage disposal installations and threatened the town's sanitation.

The applicant brought proceedings against the Maykop municipal maintenance company (муниципальное жилищно-коммунальное хозяйство города Майкопа) and the Maykop municipal water supply company (муниципальное унитарное предприятие «Водоканал», hereinafter “the water supply company”), in which he sought an order requiring them to lift the ban on the operation of the saw-mill and damages.

On 17 December 1999 the Maykop Town Court of the Republic of Adygeya ordered the water supply company not to prevent the applicant from carrying on his activity. The judgment was not appealed against and became final.

However, it was not enforced. Instead, the water supply company blocked the road leading to the saw-mill and switched off the electricity supply.

The applicant was not issued with a warrant of execution until 28 April 2002 pending a decision in another case in which a third party was trying to challenge his title to the saw-mill.

On 14 May 2002 the enforcement proceedings were set in motion.

Three months later the bailiff suspended the enforcement proceedings and applied for clarification of the judgment of 17 December 1999.

On 29 October 2002 the Maykop Town Court held that the judgment of 17 December 1999 had to be enforced exactly as it was worded.

On 8 January 2003 the bailiff brought the enforcement proceedings to an end. However, the access road remained blocked and the electricity supply was not restored.

The applicant appealed against the decision to discontinue the enforcement proceedings.

On 21 February 2003 the Maykop Town Court quashed that decision.

On 25 March 2003 the Supreme Court of the Republic of Adygeya upheld the above judgment on appeal.

On 13 January 2006 the enforcement proceedings were resumed.

On 18 January 2006 the director of the water supply company issued access passes to the applicant and his nominees.

On 19 January 2006 free access to the saw-mill was restored, and the obstacles preventing the applicant from using it were removed. He was invited to collect the passes, but failed to do so. When the bailiffs went to the applicant's home to serve him with papers concerning the enforcement, they were unable to find him, but were met instead by his father, who refused to look at the papers and explained that the applicant had moved to another city.

On 26 January 2006 the enforcement proceedings were discontinued. The applicant did not appeal against that decision.


No violation of Art. 6-1;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in 1976 and lives in Schalchen.

The applicant’s son K. was born out of wedlock on 26 May 2000. The child was given the applicant’s family name by decision of the Braunau District Administrative Authority of 29 June 2000.

At that time K.’s mother was living as a tenant in the applicant’s house, in a separate apartment. The applicant was sharing an apartment with his long-term partner, U., who later became his wife, and their son D. aged six at that time. During K.’s first year the applicant took parental leave and took care of him together with U. Subsequently, K.’s mother took parental leave.

In early January 2002 K.’s mother moved out of the applicant’s house.

On 28 January 2002 the applicant asked the Mattighofen District Court (Bezirksgericht) to transfer sole custody of K. to him under Article 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). He submitted in particular that he and U. had mainly taken care of K. and that the child’s mother was not capable of doing so. The latter opposed the transfer of custody. At that stage and at all subsequent stages of the proceedings the applicant was assisted by counsel.

By letter of 12 February 2002 the Youth Office (Jugendamt), which had been following the case since summer 2001, expressed the view that both parents were capable of exercising custody.

On 12 March 2002 the applicant and K.’s mother appeared before the District Court and were heard by the judge.

According to the minutes, the applicant requested that the opinion of an expert in child psychology be taken. K.’s mother agreed to that request. The court appointed Dr J.-W., an expert in child psychology, and ordered him to submit an opinion on whether the interests of the child were better served by leaving sole custody with the mother or by awarding it to the applicant. The judge then proceeded to discuss the factual and legal issues with the parties. The parties then concluded an agreement to the effect that, pending a decision on custody, K. would spend three days with his mother and three days with the applicant.

The expert, Dr J.-W., submitted his opinion to the Court on 17 April 2002. The opinion was based on interviews which the expert had conducted with K.’s mother and the applicant and his partner. He had also paid a visit to the applicant’s home during which he had observed how the applicant and the other members of his family interacted with K. The expert opinion was served on the applicant.

On 8 July 2002 the District Court held a hearing in the presence of the applicant, his counsel, K.’s mother, Dr J.-W. and a representative of the Youth Office.

According to the minutes, the contents of the file were read out. Subsequently, Dr J.-W.’s opinion was discussed. In the course of the hearing Dr J.-W. supplemented his opinion. He expressed the view that K.’s mother was very immature and not yet capable of taking care of him and recommended the transfer of sole custody to the applicant. The representative of the Youth Office opposed the view that K.’s mother was not capable of raising the child. None of the parties made further submissions.

On the following day, that is, on 9 July 2002, the District Court ordered a second expert in child psychology, Dr R., to submit an opinion on whether or not K.’s mother was capable of taking care of him. In her opinion of 15 July 2002, Dr R. came to the conclusion that K.’s mother was sufficiently mature, did not show any emotional instability and was capable of taking care of him. A copy of this expert opinion was served on the applicant.

In addition the District Court requested the Youth Office to prepare a report. A representative of the Youth Office visited K. and his mother at their home and as a result of that visit concluded that she was able to exercise custody.

On 29 July and 13 August 2002 the applicant requested that a decisive expert opinion (Obergutachten) be commissioned. The motion contained comprehensive submissions on K.’s mother’s alleged incapacity to raise him.

The District Court ordered a third expert, Dr B., to submit a decisive expert opinion on the question whether K.’s mother was capable of exercising custody.

Both the applicant and K.’s mother made further written submissions. Each of them forwarded detailed arguments as to why the other parent was not an appropriate person to take care of K.

On 14 October 2002 Dr B. submitted his expert opinion. Having interviewed the applicant and K.’s mother, he found that both parents were in principle capable of taking care of K. The mother had some issues as regards her own personality development and a somewhat limited capacity to cope with everyday life. The applicant had a tendency to dominate and had given reason to fear that, if custody was awarded to him, he would try to curtail the mother’s access rights. The applicant could provide a more stable environment and a more coherent style of upbringing. However, K.’s best interests would not be manifestly endangered if custody remained with his mother. It was recommended that the applicant be given extensive access rights, in that K. should stay with him from Friday to Sunday every second weekend, spend two weeks with him in summer and one week during the Christmas period.

A copy of Dr B.’s expert opinion was served on the applicant, and he was given 14 days to submit comments. Within that time-limit, the applicant requested that the expert opinion be discussed at a hearing. He did not make any comments in writing.

Without holding a further hearing, the District Court dismissed the applicant’s request for sole custody of K. to be transferred to him by decision of 4 December 2002.

The District Court noted that under Article 166 of the Civil Code the mother of a child born out of wedlock had sole custody. A transfer of custody was only to be ordered if the child’s best interests were at risk. In the present case the applicant would have had to prove that K.’s mother was unable to take care of him. While the first expert, Mr J.-W., had come to the conclusion that this was the case, the second expert, Ms R., had reached the opposite conclusion. Finally, the decisive expert opinion by Mr B. had found it established that K.’s mother was capable of taking care of him. Having regard to the second and third expert opinions and to the view expressed by the Youth Office, it had been established that K.’s mother was able to exercise custody and the applicant had failed to adduce proof to the contrary.

Furthermore, the District Court noted that it had not considered it necessary to hold a hearing to discuss the decisive expert opinion, since it found that opinion coherent and convincing. The factual and legal issues of the case had therefore been sufficiently clarified and a hearing would only have delayed the proceedings. It followed that the applicant’s further requests for the taking of evidence had to be dismissed.

Finally, the court ruled that its decision was immediately enforceable with the consequence that the agreement of 12 March 2002 was no longer effective.

The applicant appealed. He complained about a number of procedural shortcomings. He alleged, inter alia, that the District Court had failed to hold a hearing for the purpose of discussing Dr B.’s expert opinion, and that it had not heard him in person.

In addition, the applicant contended that the relevant provisions of the Civil Code, namely, Articles 166 and 176, were discriminatory and suggested that the appellate court request the Constitutional Court to rule on their constitutionality. Since K. had been born out of wedlock, his mother had sole custody of him and he, as the child’s father, could only be awarded custody if the mother put the child’s well-being at risk. In the case of a child born in wedlock the parents had joint custody and retained it upon divorce or separation unless the child’s best interests required that sole custody be awarded to one of them. The application of different criteria when the parents of a child born out of wedlock separated lacked reasonable justification.

On 24 February 2003 the Ried Regional Court dismissed the applicant’s appeal.

The Regional Court found that the proceedings before the District Court had not suffered from any procedural defects. In non-contentious proceedings it was not always required to question the parties at a hearing. A hearing had been held on 8 July 2002 in the presence of the applicant. Furthermore, the applicant had had the opportunity to file written submissions, of which he had made ample use. He had also been interviewed by the experts. A further hearing for the purpose of discussing the decisive expert opinion of Dr B. would only have been required had there been substantial doubts as to its correctness.

Moreover, the Regional Court did not see any reason to request the Constitutional Court to rule on the constitutionality of the relevant provisions of the Civil Code. It noted that Article 167 of the Civil Code allowed life-companions to request joint custody. The applicant had not claimed to have cohabited with K.’s mother. On the contrary he had cohabited with another woman, U., who had meanwhile become his wife.

A distinction between children born in wedlock and children born out of wedlock was not discriminatory as long as it was objectively justified. The rule contained in Article 176 of the Civil Code that in the case of a child born out of wedlock (unless the parents had requested joint custody under Article 167) custody was only to be transferred if the mother put the child’s well-being at risk, was based on the consideration that in the majority of cases of children born out of wedlock it was actually the mother who took care of the child.

The applicant filed an extraordinary appeal on points of law. He repeated his complaints about the alleged procedural shortcomings. In particular, he submitted that the court had neither held a hearing to discuss the decisive expert opinion of Dr B. nor given him an opportunity to comment in writing. The applicant also reiterated his request for the case to be submitted to the Constitutional Court.

On 26 June 2003 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s extraordinary appeal on points of law. It noted that the courts were not obliged to hold hearings in custody proceedings. The applicant had been given the opportunity to comment on the expert opinion at issue. Moreover, the courts had correctly applied Article 176 of the Civil Code. It had not been shown that the mother put K.’s well-being at risk.

To date, K.’s mother continues to have sole custody of him while the applicant has a right of access under the terms recommended by the courts in the custody proceedings.

The relevant provisions of the Civil Code in the version in force at the material time read as follows:

“The parents shall care for and raise the minor child, manage its assets and represent it in these, as well as in all other matters; care, upbringing and asset management also include representing the child in these matters before the law [in court]. The parents shall proceed on a consensual basis when complying with these obligations and exercising these rights.”

“The mother shall have sole custody of an illegitimate child. Moreover, unless the present provisions stipulate otherwise, the provisions on legitimate children regarding maintenance and custody shall also apply to illegitimate children.”

“(1) Whenever the parents of a child live in a common household, they may agree that both parents will have custody in the future. The court shall uphold the agreement if it serves the interests of the child. If one parent leaves the common household, other than on a temporary basis, § 177 and § 177a shall be applied accordingly.

(2) Whenever the parents do not live in a common household, they can agree that the father shall also have full custodial powers or regarding specific matters in the future, if they present such an agreement to the court indicating the parent with which the child is to stay primarily. If the child stays primarily in the household of the father, the latter must also be assigned full custody. The court shall uphold the agreement if it serves the interests of the child.”

This version of Article 167 of the Civil Code was introduced by the 2001 Law Amending Child Custody Law, which entered into force on 1 July 2001. Before that date parents of an illegitimate child could only agree on exercising custody jointly if they were living in a common household.

“(1) Whenever the parents put the well-being of a minor child at risk, on account of their conduct, the court will take the steps necessary to secure the interests of the child, irrespective of which party has applied to the court. In particular, the court may withdraw all or part of the custodial rights in respect of the child, ...”

“(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters.

(2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters.

(3) The court must approve the agreement of the parents, if it serves the interests of the child.”

“(1) If an agreement in accordance with Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if it is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail.

(2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.”

“The above provisions shall also be applied if the parents of a minor legitimate child live apart, other than on a temporary basis. However, in such a case the court shall decide on custody only upon application by a parent.”

A recent case concerning similar complaints (Zaunegger v. Germany, no. 22028/04, §§ 22-27, 3 December 2009) contains the following summary of comparative law:

“22. A survey on comparative law taking into account the national laws of a selection of Member States of the Council of Europe shows that basically all Member States included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock. The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the parents’ agreement to exercise joint authority.

However, the solutions in the Member States vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect.

In only a limited number of countries do the statutory regulations explicitly address this issue. In a few countries, such as Austria, Norway and Serbia, the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non-consenting parent has a right of veto. By contrast, the laws in Hungary, Ireland and Monaco appear to provide for a joint exercise of parental authority even without the parents’ consent.

In some Member States such as the Czech Republic and Luxembourg, while the law itself is not clear on the subject, the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents, whereas for example the Dutch Supreme Court has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees. A similar approach seems to be followed in Spain.

With the exception of the few countries where a right of veto of one parent is explicitly stipulated in national law, the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of one of the parents bearing in mind the best interests of the child. All Member States emphasise the importance of the child’s best interest in decisions regarding the attribution of custody. In determining the child’s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child and the particularegards, inter alia, the demonstrable interest in and commitment to the child by the respective parent.

In summary, ... , the survey confirms that while different approaches exist in the Member States, the majority provide for paternal participation in custody if the parents were not married to each other, either irrespective of the mother’s will or at least by court order following an evaluation of the child’s interests.”