No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Alejandro Saiz Arnaiz;Alvina Gyulumyan;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Egbert Myjer;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Paul Lemmens

The applicant was born in 1937 and lives in Cieza. He is married and the father of five children.

He was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. At that time he did not receive any answer. The following year he was married in a civil ceremony. He has had five children with his wife, to whom he is still married. The parties have not submitted any details concerning his status as a priest not having received a dispensation.

From October 1991 onwards, the applicant was employed as a teacher of Catholic religion and ethics in a State-run secondary school of the region of Murcia under a renewable one-year contract. In accordance with the provisions of a 1979 Agreement between Spain and the Holy See, “religious education shall be taught by the persons who, every school year, are appointed by the administrative authority from among those proposed by the Ordinary of the diocese” (see paragraph 50, below). In accordance with a Ministerial Order of 1982, “the appointment is to be made annually and renewed automatically, unless an opinion to the contrary is given by the Ordinary before the start of the school year, or unless the public authority, for serious academic or disciplinary reasons, considers it necessary to annul the appointment, in which case the Church authority shall be heard ...” (see paragraph 51, below). Furthermore, Article VII of the Agreement provides that “at all levels of education, the remuneration of teachers of Catholic religion who do not belong to the State teaching staff shall be decided jointly by the central administration and the Spanish Episcopal Conference, such that it will be applicable from the entry into force of the present agreement” (see paragraph 50, below).

In November 1996 the Murcian newspaper La Verdad printed an article about the Movement for Optional Celibacy of priests (MOCEOP), which read as follows:

A representative of the diocese explained that the protest-oriented nature of the gathering might disturb the peace of the monastery.

m. de la vieja – murcia

Father Francisco Tomás, head of the community of the Brothers of La Luz, in Murcia, has refused to allow access to the monastery to about a hundred married priests who wished to celebrate mass and spend the day there with their wives and children. Francisco Tomás stated that the monastery was a place of private worship and that the priests had not applied for the necessary authorisation. He added that, because of the advanced age of Brother Manuel (80 years old), the only monk residing at La Luz, he did not feel it was appropriate to hold a meeting that might disturb the peace of the monastery as a result of the publicity given to the event and the protest-oriented intentions of the Movement for Optional Celibacy.

Yesterday, the diocesan delegate for cultural heritage, Francisco Tomás, refused to allow the members of the Movement for Optional Celibacy (MOCEOP) to celebrate mass inside the monastery of La Luz, in El Valle. Father Tomás explained that the married priests had not sought permission to use the monastery’s church. In addition, the movement had intended to make the most of the day to hold an information meeting about the IVth International Congress of married priests held in Brasilia last July on the theme ‘Ministries of the third millennium’.

Francisco Tomás also explained that only one 80-year-old monk lived in the monastery and that it was not desirable to disturb the peace of this brother with protests that would attract media attention to this place of private worship.

For his part, the regional coordinator of MOCEOP, Pedro Sánchez González, stated that the requisite authorisation had certainly been applied for but the Movement had not received a reply and he did not think that such a permit would be indispensable for the celebration of mass in a hermitage.

The publicity given to the event in the press had dissuaded a large number of the Movement’s members from attending the gathering in La Luz. Others, seeing the monastery’s doors closed, merely waved to their colleagues without getting out of their cars and turned round. Only about ten secularised priests stayed there with their families to explain their situation to the media and those present. Some of their children even held up a banner. They eventually went away to have lunch together, intending to celebrate mass amongst themselves.

Lorenzo Vicente, Pedro Hernández Cano, Crisanto Hernández and José Antonio Fernández – a former seminary director – are among the married priests who gathered at La Luz yesterday to advocate optional celibacy and a democratic rather than a theocratic Church in which laymen would take part in electing their parish priest and their bishop. The rule of celibacy is Church-made and not divinely inspired. They also expressed their disagreement about certain economic issues: ‘Those of us who paid contributions to the clergy’s mutual insurance fund, which was subsequently incorporated into the social security system, lost all our rights when we became secularised. Moreover, nuns are in an even worse situation than priests because they donate their property to the community and lose everything’, they declared.”

The article also contained a separate part, under a different heading:

On issues such as abortion, birth control, divorce or sex, Pedro Hernández Cano and his friends from the MOCEOP said that they were in favour of responsible paternity.

They added that abortion was ‘a personal problem which should not be prohibited by law, but [that] a social structure is needed to support women facing maternity. To castigate a woman as a sinner if she gets pregnant out of wedlock just encourages abortion’. The married priests emphasised that birth control was clearly necessary ‘and that, consequently, everyone should be free to choose the means that they find most appropriate’.

‘Sex is a gift from God and not a scourge, and even the Pope does not believe that it leads to damnation. If that were the case, he would not have put on hold the current 6,000 requests for secularisation’, they concluded.”

By a “rescript” of 20 August 1997, the Pope granted the request for dispensation from celibacy that the applicant had submitted thirteen years earlier, stipulating that the applicant was dispensed from celibacy and lost his clerical “state”. He forfeited the rights related to that “state”, as well as the ecclesiastical honours and functions (dignitates et officia ecclesiastica in Latin). He no longer had the obligations associated with the clerical “state”. The rescript further noted that the applicant was barred from teaching the Catholic religion in public institutions, unless the local bishop decided otherwise, for lower-level schools (in institutis autem studiorum gradus inferioris), “according to his own prudent judgment [prudenti iudicio] and provided that there [was] no scandal [remoto scandalo]”. The applicant was notified of the rescript on 15 September 1997.

On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education in a written memorandum about the applicant’s termination of service as a teacher in the school where he was working.

The Ministry informed the applicant on 9 October 1997 that his employment had been terminated with effect from 29 September 1997.

In an official memorandum of 11 November 1997 the Diocese observed as follows:

“[The applicant], a secularised priest, taught classes in Catholic religion and ethics ... by virtue of the powers conferred on bishops by the rescripts ...

Those powers ... may be exercised for the teaching of subjects related to Catholic religion, provided there is no ‘risk of scandal’.

When the [applicant’s] situation became a matter of public and common knowledge, it was no longer possible for the bishop of the diocese to make use of the powers conferred upon him by the rescript; accordingly, the document authorising [the applicant] to teach Catholic religion and ethics was not signed, with effect from the current academic year. [The applicant]’s personal and employment situation has also been taken into account, since [he] is entitled to receive unemployment benefit for at least a year and a half.

The Diocese of Cartagena regrets this situation, while pointing out that the decision was taken also out of respect for the sensitivity of many parents who might be upset to learn of the situation of [the applicant], who was teaching Catholic religion and ethics in an education centre.

Lastly, the Diocese trusts that Christian people and society in general will understand that the circumstances surrounding these facts cannot be assessed solely from an employment or professional standpoint. For the Catholic Church, the sacrament of the priesthood is of a nature that surpasses the strictly employment or professional context.”

The director of the secondary-education centre where the applicant had been teaching sent a note to the Bishop of Murcia in which the centre’s board of teachers expressed its support for the applicant and stated that he had given his classes during the school year 1996/97 to the full satisfaction of the teachers, the pupils and their parents, and the centre’s management.

Initially, the applicant lived on unemployment benefit. In 1999 he found a job in a museum, where he worked until his retirement in 2003.

Having been unsuccessful in his administrative complaint against the decision of the Ministry to terminate his employment, the applicant filed an appeal against that decision with an administrative court. The appeal was dismissed on 30 June 2000 on the ground that the decision to formalise the termination of the applicant’s employment was “the only course of action open to the administrative authorities” once the Diocese had decided not to propose the applicant for appointment.

The applicant then brought proceedings for unfair dismissal before Murcia Employment Tribunal no. 3. The Employment Tribunal gave its judgment on 28 September 2000.

The tribunal began by examining the facts as established and noted that the applicant had held various posts within the Catholic Church, such as director of the seminary of Murcia or that of episcopal vicar of the region of Cieza and Yecla. It further observed that the applicant was a member of MOCEOP.

The tribunal then referred to the arguments used by the Diocese to justify the non-renewal of the applicant’s contract, namely the fact that he had made public his situation as a “married priest” (he had not received a dispensation from the Vatican until 1997) and father, together with the need to avoid scandal and to respect the sensitivity of the parents of the school’s pupils, as they might be offended if the applicant continued to teach Catholic religion and ethics. In this connection the tribunal took the following view:

“[I]n the light of the facts thus presented, Mr Fernández Martínez was discriminated against because of his marital status and his membership of the Movement for Optional Celibacy, his appearance in the press having been the cause of his dismissal.”

The tribunal further pointed out:

“The principle of non-discrimination at work encompasses the prohibition of discrimination on account of belonging to a trade union and union activity, and this applies to membership of any other association.”

Lastly, the tribunal noted that the applicant’s situation as a “married priest” and father had been known to the pupils and their parents and to the directors of the two schools where he had worked.

Consequently, the tribunal upheld the applicant’s appeal, declared his dismissal (as it was described in the judgment) null and void, ordered the Region of Murcia to reinstate him to his former position, and ordered the State to pay him the outstanding salary. It dismissed the applicant’s claim in so far as it was directed against the Diocese of Cartagena.

The Ministry of Education, the Education Authority for the Region of Murcia and the Diocese of Cartagena lodged an appeal (suplicación). In a judgment of 26 February 2001, the Murcia High Court of Justice allowed the appeal, finding as follows:

“... The teaching [of Catholic religion and ethics] is associated with the doctrine of the Catholic religion ... Accordingly, the bond created [between the teacher and the bishop] is based on trust. [As a result,] it is not a neutral legal relationship, such as that which exists between citizens in general and public authorities. It falls on the borderline between the purely ecclesiastical dimension and a nascent employment relationship.”

Moreover, the court referred to the bishop’s prerogatives in such matters and took the view that in the present case there had not been a violation of Articles 14 (prohibition of discrimination), 16 (freedom of thought and religion), 18 (right to respect for private and family life) or 20 (freedom of expression) of the Spanish Constitution, since the applicant had taught religion since 1991, the Bishop of Murcia having extended his employment from year to year even though his personal situation had been identical. The court concluded that, when the applicant had decided to reveal that situation publicly, the Bishop of Murcia had merely used his prerogative in accordance with the Code of Canon Law, that is to say, ensuring that the applicant, like any other person in that situation, carried out his duties with discretion and without his personal circumstances causing any scandal. In the court’s view, if such a situation became public knowledge, it was the bishop’s duty to cease proposing the person concerned for a post of that nature, in accordance with the requirements of the rescript granting dispensation from celibacy.

In addition, as regards Article 20 of the Constitution in particular, the court noted that for the purposes of Article 10 § 2 of the European Convention on Human Rights, the restrictions imposed on the applicant’s rights had to be considered legitimate and proportionate to the aim pursued, namely the avoidance of scandal.

Furthermore, the court analysed the question of the bond of trust and concluded as follows:

“... Where such a bond of trust is broken (and in the present case there are circumstances that reasonably allow such a conclusion to be reached), the bishop is no longer obliged to propose the person in question for the post of teacher of Catholic religion.”

Lastly, as to the nature of the contract, the court took the view that, since its renewal was subject to annual approval by the bishop for the following school year, it was a temporary contract, which in the present case had simply expired. It was thus not possible to consider that the applicant had been dismissed.

Relying on Articles 14 (prohibition of discrimination), 18 (right to respect for private and family life) and 20 (freedom of expression) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. He alleged in particular that the decision not to renew his contract on the ground that he had made public his membership of MOCEOP and his dissenting opinions on the celibacy of Catholic priests constituted an unjustified interference with his private life and was incompatible with his right to freedom of religion.

By a decision of 30 January 2003, the chamber to which the case had been allocated declared the amparo appeal admissible and, in accordance with sections 50 to 52 of the Organic Law on the Constitutional Court, notified the decision to the parties and requested a copy of the case file from the courts below.

In its mandatory intervention before the Constitutional Court, the public prosecutor’s office (Ministerio Fiscal) argued in favour of granting the applicant’s amparo appeal. In this connection, it criticised the reasons given by the High Court of Justice, which had considered the non-renewal of the contract justified in so far as the applicant had acted in a manner that was contrary to the rescript of dispensation when he had agreed to make his family situation public. The public prosecutor’s office noted that the applicant’s public appearance had taken place well before the dispensation from celibacy was granted to him, and therefore before the existence of that rescript. It further pointed out that the applicant’s membership of the movement in question had been known to the Church authorities. It took the view that since the applicant’s conduct which had served as the justification for the non-renewal of his employment – namely, his attendance at an event organised by the movement – came within the scope of his freedom of thought, the dismissal amounted to a violation of his right to equality (Article 14 of the Constitution), read in conjunction with his right to freedom of thought (Article 16 of the Constitution).

In a judgment of 4 June 2007, served on 18 June 2007, the Constitutional Court dismissed the amparo appeal.

The Constitutional Court first examined the alleged violations of Articles 14 (right to equality) and 18 (right to respect for private and family life) of the Constitution and dismissed those complaints, the first because the decision not to propose the applicant for appointment as a teacher was not based on any intention to discriminate against him on account of his marital status, and the second on the ground that he himself, of his own free will, had made public both his personal and family situation and the fact that he was a member of MOCEOP.

The Constitutional Court then addressed what it regarded as the main question in the amparo appeal, namely, the alleged violation of Articles 16 and 20 of the Constitution. It thus sought to ascertain whether the facts in issue could be justified by the religious freedom of the Catholic Church (Article 16 § 1 of the Constitution) in conjunction with the State’s duty of religious neutrality (Article 16 § 3 of the Constitution), or whether, by contrast, they constituted a breach of the applicant’s right to freedom of thought and religion (Article 16 § 1 of the Constitution) in conjunction with his right to freedom of expression (Article 20 § 1 (a) of the Constitution). For that purpose, the court relied on the criteria laid down in its judgment no. 38/2007 of 15 February 2007 concerning the constitutionality of the system of selection and recruitment of Catholic religion teachers in State schools. In this connection it emphasised the special status of teachers of religious education in Spain and took the view that this status justified the fact that the religious beliefs of such teachers would be taken into account in the selection process.

At this point, the Constitutional Court explained as follows:

“... the task of the Constitutional Court in the present case, as in other cases where there is a conflict between fundamental rights of a substantive nature, is to ascertain whether the courts [below] weighed up the competing rights at stake in a manner that reflected their constitutional definition ... In doing so, it is not bound by the assessment already made by those courts. In other words, the assessment of this Court is not confined to an external review of the adequacy and consistency of the reasons given for the decision or decisions ...; rather, in its capacity as the ultimate guarantor of fundamental rights, it must resolve any conflict that exists between the affected rights and determine whether those rights have indeed been infringed in terms of their individual constitutional content. However, for this purpose it is necessary to apply different criteria from those applied by the courts [below], as the reasons given by the latter are not binding on this Court nor do they limit its jurisdiction to merely reviewing the grounds of their decisions. ...”

As regards the facts of the case, the Constitutional Court began by noting that the reason for the non-renewal had been the article in a regional newspaper, which had caused a scandal according to the arguments put forward by the Diocese of Cartagena in its official memorandum of 11 November 1997. That article had made public two personal characteristics of the applicant already known to the Diocese, namely his family situation as a married priest and father, and the fact that he was a member of a movement that challenged certain precepts of the Catholic Church. That publicity had formed the factual basis of what the Diocese had referred to in its memorandum as constituting a scandal.

Noting that the High Court of Justice had effectively reviewed the Bishop’s decision, in particular concerning the latter’s inability to propose candidates who did not have the requisite professional qualifications for the post and the obligation to respect fundamental rights and civil liberties, the Constitutional Court found as follows:

“The extensive passages cited from the judgment appealed against demonstrate that it neither rejects the possibility of judicial review of the ecclesiastical authority’s decision nor does it shy away from weighing up the fundamental rights competing in this particular case with the right to religious freedom (Article 16 § 1 of the Constitution), which it does in an unequivocal manner.”

The Constitutional Court then engaged in its own balancing of the competing fundamental rights:

“Having dealt with the balancing of the rights at stake in the impugned judgment, this Court must now assess, above and beyond the reasoning of that judgment, the conclusions reached by it after weighing up the conflicting fundamental rights. In doing so the Court must consider not just the rights contemplated in that judgment, but also the right to freedom of thought and religion, an issue which it submitted, of its own motion, for the consideration of the parties...

The actions and opinions which resulted in the appellant in the present case not being proposed by the Diocese as a teacher of Catholic religion and ethics were his public disclosure, firstly, of his situation as a priest who was married and the father of five children and, secondly, of his membership of the Movement for Optional Celibacy (as made clear by the judgments of the courts below and expressly conceded by the amparo appellant himself). It is clear that, from the State’s (secular) perspective, these actions and opinions must be considered in terms of a possible infringement of the right to freedom of thought and religion (Article 16 § 1 of the Constitution) in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution), relied on in the application for amparo relief.

In order to resolve this issue it must be borne in mind that no rights, not even fundamental rights, are absolute or unlimited. In some instances the provision of the Constitution recognising a right expressly limits that right; in other cases, the limitation stems from the need to preserve other constitutional rights or values which warrant protection. In that connection this Court has repeatedly held that the fundamental rights recognised by the Constitution can yield only to the limitations expressly laid down by the Constitution itself or those which can be indirectly inferred from the Constitution as being justified in order to preserve other rights or values protected by the law. In any case, the limitations imposed may not impede the exercise of the fundamental right in question to an unreasonable degree (see Constitutional Court judgments no. 11/1981 of 8 April 1981, legal ground 7; no. 2/1982 of 29 January 1982, legal ground 5; no. 53/1986 of 5 May 1986, legal ground 3; no. 49/1995 of 19 June 1995, legal ground 4; no. 154/2002 of 18 July 2002, legal ground 8; no. 14/2003 of 28 January 2003, legal ground 5; and no. 336/2005 of 20 December 2005, legal ground 7).

In the present case the interference with the appellant’s right to freedom of religion, in its individual dimension, and his right to freedom of thought (Article 16 § 1 of the Constitution) taken in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution), as a result of his not being proposed by the Diocese for appointment as a teacher of Catholic religion and education for the 1997/98 school year – in the context, therefore, of his claim to continue teaching the creed of a particular religious faith in a public educational establishment – was neither disproportionate nor unconstitutional, since it was justified by respect for the lawful exercise of the Catholic Church’s fundamental right to religious freedom in its collective or community dimension (Article 16 § 1 of the Constitution), in conjunction with the right of parents to choose their children’s religious education (Article 27 § 3 of the Constitution). The reasons determining the decision not to propose the appellant as a teacher of Catholic religion and ethics were of an exclusively religious nature, related to the rules of the faith to which he freely adheres and whose beliefs he sought to teach in a public educational establishment.”

The Constitutional Court referred to its judgment no. 38/2007 of 15 February 2007, observing as follows:

“As this Court held in judgment no. 38/2007 of 15 February 2007, and reiterated in point 5 of the legal grounds of the present judgment, ‘it would be quite simply unreasonable, as regards the teaching of religion in schools, if the religious beliefs of those who decide of their own free will to apply for such teaching posts were not taken into account in the selection process, on the basis of guaranteeing the right to religious freedom in its external and collective dimension’ ...

It should certainly be reiterated, as regards the justification and constitutionality of the impact on or modification of the appellant’s fundamental right to freedom of religion and thought (Article 16 § 1 of the Constitution) taken in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution) that, as this Court held in the aforementioned judgment no. 38/2007 of 15 February 2007, ‘the relationship between religious-education teachers and the Church is not entirely the same as that found in organisations which pursue ideological aims, as examined on a number of occasions by this Court, but represents a specific and distinctive category which, while it presents certain similarities, is also different in some respects’. In that connection the Court stated in the same judgment, referring to one of the factors which distinguished the relationship between religious-education teachers and the Church from the relationship within an organisation pursuing ideological aims, and allowed teachers’ rights to be modified in line with the educational ethos of private educational establishments, that the requirement imposed by the ecclesiastical declaration of suitability ‘does not merely consist in a duty to refrain from actions contrary to the religious ethos but extends in a more profound manner to a determination of the individual’s capacity to impart Catholic doctrine, understood as a set of faith-based religious convictions. Since the object of religious instruction is the transmission not only of specific knowledge but of the religious faith of the person who teaches it, this will in all probability imply a series of requirements that transcend the limits of an organisation pursuing ideological aims, beginning with the implicit requirement that persons who seek to transmit a religious faith must likewise profess that faith’ ...”

Finally, the Constitutional Court turned to an argument made by the appellant, based on the fact that he advocated changing the rules of the Catholic faith itself, and concluded as follows:

“The conclusion reached in the present case as a result of the balancing of the conflicting fundamental rights – on the one hand the Catholic Church’s fundamental right to freedom of religion in its collective or community dimension (Article 16 § 1 of the Constitution) read in conjunction with the State’s duty of religious neutrality (Article 16 § 3 of the Constitution), and on the other hand the appellant’s fundamental right to freedom of thought and religion (Article 16 § 1 of the Constitution) read in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution) – is in no way altered by the appellant’s claim that through his reforming views on celibacy for Catholic priests he sought to defend evolutionary change to rules of the Catholic faith which he considered to have become outdated with the passage of time. As pointed out in the Government law officer’s submissions, the State is debarred by its duty of religious neutrality (Article 16 § 3 of the Constitution) from entering into or determining possible disputes within the Church, in this specific case between proponents and opponents of celibacy for priests. Nor is it for the Court, in more general terms, to pass judgment on the suitability or compatibility of the actions, opinions and conduct of persons appointed to teach a particular religion vis-à-vis the orthodoxy of the religious faith in question. As a State body exercising public authority, the Court must confine itself in the present amparo appeal, in accordance with its duty of neutrality, to finding established the strictly religious nature of the reasons given by the religious authority for its decision not to propose the appellant as a teacher of Catholic religion and ethics. It further finds that the appellant’s fundamental rights to freedom of thought and religion and freedom of expression, within the ambit of which his actions, opinions and choices in this regard might in principle fall, were affected and modified only to the extent strictly necessary in order to ensure their compatibility with the freedom of religion of the Catholic Church. Accordingly, the present amparo appeal must be dismissed.”

Two judges appended a dissenting opinion to the majority judgment. They criticised the fact that the balancing of the rights by the Constitutional Court had been confined to a reference to the religious grounds given in the decision to discontinue the applicant’s employment. In their view, the publicity given to a form of conduct that was already known beforehand could not justify the non-renewal of the contract.

The applicant subsequently submitted an application requesting that the Constitutional Court’s judgment be declared null and void, on the ground that two of the judges of the Chamber which had given the judgment were known for their affinities with the Catholic Church, one of them being a member of the International Secretariat of Catholic Jurists.

In a decision of 23 July 2007, the Constitutional Court rejected the application on the ground that, under section 93(1) of the Organic Law on the Constitutional Court, the only possible remedy against a judgment of that court was a request for clarification.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of criminal proceedings.


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant, Mr Frantisek Příplata, is a Czech national who was born in 1948 and lives in Uherske Hradiste, in the Czech Republic. He was represented before the Court by Mr D. Strupek, a lawyer practising in Prague.

The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.

The Czech Government exercised their right under Article 36 § 1 of the Convention to intervene in the Court’s proceedings, and submitted written observations.

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

The applicant is a Czech business man who had invested in Romania after 1990. As he was familiar with the Romanian business environment, he was empowered by a Czech company (“the company ZV”) to represent it in the process of the privatisation of the company S.C. Tepro S.A. (“Tepro”), which had its headquarters in Iași. The company ZV won the bid, which was managed by the State Property Fund (Fondul Proprietatea), and the contract for the transfer of shares was concluded on 21 July 1998.

The transfer of control of the company Tepro to company ZV was followed by the dismissal of many local employees. The privatization was strongly opposed by the workers’ trade union, Sindicatul Liber Tepro (“the SLT”) led by Mr S. (“the SLT leader”) who challenged the validity of the privatisation contract in court and organised strikes.

In June 2000, the applicant recommended to the Czech manager of company ZV the services of a company (“company P.”) for guarding and security services, headed by Mr C. (“the manager of company P.”). It was the same company which was providing similar security services to the applicant’s companies in Romania.

The terms of the contract between the two companies were discussed on 10 August 2000 at a hotel. All the Czech managers were present. A press conference was organized on that occasion. The applicant was present at a drinks reception after the press conference there; however, he denied that he had taken any part in a conversation between Mr Z. (“the manager of ZV”), the manager of company P., and Mr B. (“the manager of Tepro”) during which it was allegedly decided to eliminate the SLT leader.

The contract on provision of security services was signed by company P. and Tepro on 16 August 2000.

On 19 August 2000 an attempt by the manager of company P. and his employees to take over the security posts in Tepro was physically prevented by the SLT. According to the applicant, on that day the manager of company P. indicated to his employees that the SLT leader should be assaulted to prevent him from organising the workers of the SLT against the takeover of the security posts at Tepro.

On 20 August 2000 staff members of company P. succeeded in taking over Tepro’s security posts. However, the next day they were forced out again.

According to the prosecuting authorities, the manager of company P. gave B., S. and V. the address of the SLT leader so that he could be attacked.

B. invited his friend T. to take part in the assault. On 5 September 2000, he allegedly informed the manager of company P that he and T. had agreed to use a knife during the assault. The manager of company P. allegedly consented to the use of the knife, stating that the reward they had been promised would be doubled if the SLT leader was killed.

On 7 September 2000, at about 8 a.m., B. and T. attacked the SLT leader in the hallway of the building where he was living and caused him fatal injuries. He died shortly after being transported to hospital.

The perpetrators of the killing and the manager of company P. were arrested on 9 September 2000. They did not mention any involvement by the applicant in their initial statements. However, on 11 September 2000 the manager of company P. did mention that the applicant was involved in the attack.

The manager of Tepro was also arrested on 10 September 2000. On 18 September 2000 he gave a statement which began by mentioning the applicant’s involvement in the discussions which took place at the hotel on 10 August 2000.

Mr. P., a friend of the manager of company P., was heard as a witness on 20, 21, 22 and 28 September 2000. On 10 October 2000 he alleged that he had been present when a conversation took place between the manager of company P. and the applicant, during which the latter had allegedly told the former that the problems could be solved by the physical elimination of the SLT leader.

On 13 September 2000 the prosecutor began an investigation in respect of the applicant too, and instructed the police not to allow him to leave the country.

In the evening of 19 September 2000 the applicant was stopped at the Romanian border in Borș, while he was trying to leave the country. He was transported to Iași by police officers. He was questioned on arrival there. He pleaded not guilty and denied any involvement in the killing of the SLT leader.

The applicant was assisted by two lawyers of his choice during the investigation stage.

On 21 September 2000 the prosecutor in charge set up a confrontation between the applicant and the manager of company P.

On the same day the applicant was officially arrested and remanded in custody.

On 2 November 2000 the applicant was heard in connection with another charge against him concerning fraud in respect of public assets.

On 25 November 2000 the prosecutor filed with the Iași County Court an indictment of the applicant for fraud in respect of public assets, conspiracy to commit an offence, and incitement to aggravated homicide. The killers of the SLT leader and the managers of the companies P. and Tepro were also charged.

By a decision of 23 January 2001 the Supreme Court of Justice granted the applications of the applicant, the Czech embassy and the Ministry of Justice for the referral of the case from the Iași County Court to another court, because of the political pressure in Iași. The file was transferred to the Satu Mare County Court.

Initially the applicant was assisted by three lawyers of his choice. Starting from 4 September 2001 he was assisted by one lawyer of his choice, H.C.

On 5 February 2001 the Satu Mare County Court appointed a Czechlanguage interpreter (C.E.). The applicant requested the appointment of the same authorised interpreter used by the prosecutor during the investigation stage and the hearings before the Iași County Court. His request was refused on the ground that the cost would be too great since he resided in Iași.

On 3 April 2001 the court appointed a new authorised interpreter, G.I., on the ground that the applicant alleged that he had not understood the interpretation done by the previous one. He acted as the applicant’s interpreter at the subsequent hearings before the county court.

On 19 July 2001 the Oradea Court of Appeal allowed the appeal lodged by the applicant and the manager of Tepro against the interlocutory judgment on the extension of their pre-trial detention. It replaced their detention with an obligation not to leave their place of residence, and ordered their release. It also stated that the events as described in the indictment were not completely confirmed by the statements of the defendants and the witnesses heard before the court. The judgment had a dissenting opinion which stated that the extension of the detention was justified, as the grounds for taking the preventive measure had not changed.

After the applicant had been released from detention, workers of Tepro gathered in the streets of Iași protesting against the release. On 21 July 2001 the Prime Minister of the time attended one of these meetings and expressed support for the workers. He called the killing of the SLT leader a “political murder” and promised to ask the General Prosecutor to explain to the people of Iași why those considered by the citizens of Iași to be guilty of the murder were being prosecuted without being detained.

After two days, the decision to release the applicant was challenged by the General Prosecutor, who submitted a complaint of breach of law to the Supreme Court of Justice. He also ordered that the applicant be rearrested.

By an interlocutory judgment of 24 July 2001, the Satu Mare County Court ordered the suspension of the decision of the Oradea Court of Appeal of 19 July 2001 until the examination of the General Prosecutor’s complaint. It also ordered the re-arrest of the applicant and of the manager of Tepro and the extension of his detention

On 26 September 2001 the Supreme Court dismissed the extraordinary appeal lodged by the General Prosecutor, and consequently the Satu Mare County Court replaced the detention of the applicant and of the manager of Tepro with an obligation not to leave their places of residence. They were released from prison.

On 27 July 2001, the Ministry of Justice applied to the Supreme Court of Justice for referral of the case to another court than the Satu Mare County Court. The request was justified by the wide media coverage of the case and its effect on public opinion. The Ministry stated that the request for the referral of the file to another court had been made at the insistence of the Czech embassy. The Czech embassy attended the hearing at the Supreme Court and contested that measure. The request of the Ministry of Justice was dismissed.

On 18 December 2001 the hearing was adjourned until 22 January 2002 because the applicant’s interpreter and part of the witnesses were absent.

At the hearing of 22 January 2002 the applicant and his lawyer consented to the hearing of three witnesses in the absence of the interpreter. Interpreter G.I. was present at the following hearings before the Satu Mare County Court. Neither the applicant nor his lawyer complained about the services provided by him during the proceedings before the Satu Mare County Court.

At the hearing of 12 March 2002, the applicant requested the hearing of four witnesses in his behalf. The Satu Mare County Court had granted the applicant’s request for the hearing of three witnesses, while it considered that the hearing of the fourth witness was not relevant as he had heard about the facts of the case from the applicant indirectly during their detention in the same cell.

By a judgment of 5 November 2002 the applicant was acquitted of the charge of fraud and found guilty of conspiracy to commit a crime and of incitement to battery with fatal results (instigare la infracțiunea de lovituri cauzatoare de moarte). He was sentenced to six years’ imprisonment. The court held that the applicant and the managers of the companies P. and Tepro had instructed the attackers only to cause the SLT leader injuries that would stop his activities in Tepro for a few weeks. It also held that the attackers had exceeded their instructions. The applicant’s conviction was based on evidence that comprised the statements of coaccused and witnesses whom he had had the opportunity to cross-examine in the presence of his lawyers.

The applicant, the other defendants and the prosecutor’s office all lodged appeals with the Oradea Court of Appeal.

In the appeal proceedings the applicant was assisted by two lawyers of his choice (one of them was the same lawyer who had assisted him before the Satu Mare County Court, H.C.).

At the first hearing before the appellate court the interpretation services were provided by the same interpreter as before the county court, G.I. On 8 May 2003 the appellate court ordered an adjournment of the hearings because the applicant’s lawyer required the services of another interpreter claiming that the applicant was not satisfied with the services provided by G.I. A new interpreter, R.P., was appointed for the hearing of 5 June 2003.

On 5 June 2003 the newly appointed interpret was absent. The court appointed another interpreter, D.M. from the list of authorized interpreters provided by the Ministry of Justice. The hearing was adjourned for 26 June 2003.

On 10 July 2003 the appelate court adjourned again the hearings at the request of D.M., who informed that she was abroad.

According to the applicant, at the hearing of 21 August 2003 the court had informed the applicant that the next hearing, scheduled for 10 September 2003, would take place in the absence of an interpreter if he did not secure one himself. In response to that statement the Czech embassy sent a note to the Supreme Court of Justice, which subsequently informed the appeal court that the services of an interpreter must be secured by the judicial authorities. The interlocutory judgment of 21 August 2003 did not contain such a statement. The hearings were adjourned at the request of one of the applicant’s lawyers.

The appellate court had difficulties in finding an available interpreter. It contacted by telephone most of the eleven interpreters found on the list provided by the Ministry of Justice and none was able to ensure interpretation services at the hearing of 10 September 2003. At that hearing the applicant did not accept the interpretation ensured by a person who knew Czech language, invited by the Czech Embassy to help the applicant. The court adjourned the hearings in order to find an authorized interpreter for the applicant.

At the last hearing before the appeal court, on 24 September 2003, the interpretation services were provided by an authorized interpreter, L.A. The applicant asked the court to allow more witnesses to be heard on his behalf, submitting a list of eight names in this respect. The list included the name of four Czech managers of Tepro, among whom were Z.Z. and the interpreters who had provided the service for the meeting held on 10 August 2001. The list also included witness R., who had shared a prison cell with the applicant. His request was refused, on the ground that the hearing of these new witnesses did not appear to be necessary at this stage of the proceedings.

By a decision of 8 October 2003 the Oradea Court of Appeal quashed the judgment of the Satu Mare County Court in part. It found the applicant guilty of fraud in respect of public assets, conspiracy to commit a crime, and incitement to aggravated murder. He was sentenced to fourteen years’ imprisonment, with deprivation of civil rights for a period of five years. He was also ordered to pay a monthly allowance to the daughter of the victim until she reached the age of 25, provided that she continued her studies after reaching the age of majority. He was also ordered to pay the costs of the interpretation provided by A.L., which had been paid for by the Court of Appeal.

The applicant lodged an appeal on points of law against the decision, submitting that Article 6 § 3 (e) of the Convention had been violated. In this respect he claimed that most of the written procedural acts had been delivered to him in the Romanian language, and that interpreting services at the Satu Mare County Court were provided by non-authorised interpreters who were not well understood by him. He also contended that he had been ordered to pay for the interpreting services provided by interpreter A.L. at the Oradea Court of Appeal.

He also complained that his right to defence had been infringed, because his request for further evidence made before the appellate court was dismissed without sufficient reasons.

Another complaint concerned lack of impartiality on the part of the domestic courts, because certain judges who had examined his appeal against the extension of his pre-trial detention had also examined the merits of the case. He referred in particular to Judge P.N.

In the proceedings before the High Court the interpretation services were ensured by two interpreters. The fees for interpretation were paid by the State.

The applicant was assisted before the High Court by the same two lawyers who had assisted him before the appellate court.

By a decision delivered on 2 June 2005 the High Court of Cassation and Justice quashed the decision of the Oradea Court of Appeal in part. It acquitted the applicant of the charge of fraud in respect of public assets, maintained the other two charges, and sentenced him to eight years’ imprisonment with five years’ deprivation of civil rights. It also rescinded the applicant’s obligation to pay the costs of interpretation provided at the Oradea Court of Appeal.

As regards the alleged infringement of the applicant’s right to an interpreter, the High Court held that from the examination of all interlocutory judgments it could be noted that no hearing had been held in the absence of an interpreter. Whenever the interpreter was absent the hearing was adjourned, and the court took all necessary steps to ensure the presence of an interpreter for the subsequent hearing.

As regards the applicant’s allegation that he could not understand the translation offered by the court-appointed interpreters because some of them were authorised to provide interpretation in the Slovak language and not in the Czech language, the High Court noted that according to the statements of A.C., a Romanian citizen of Slovak origin, the applicant had no difficulty in communicating with her. It also referred to B.G., who was hired as an interpreter at Tepro and also used as an interpreter at the meeting held on 10 August 2001. It noted that he was of Slovak origin too. The High Court further stated that “Whenever the applicant requested the replacement of the interpreters they were changed”. The court also noted that the applicant’s counsel had never complained before any court of difficulty in establishing proper communication with the applicant through the court-appointed interpreters.

As regards the applicant’s complaint about the dismissal by the Oradea Court of Appeal of his request for new evidence, the High Court noted that the Czech witness, Z.Z., had been summoned to be heard in different proceedings in connection with offences related to the applicant’s case, but he had not returned to Romania to be heard. The court also noted that taking into account his involvement in the applicant’s case it could not be expected that Z.Z. would give accurate statements. Moreover, there was enough evidence in the file attesting to the applicant’s involvement in the killing of S.V. The other three Czech managers indicated by the applicant in his list of witnesses were only involved in economic activities. As regards the statements by the two interpreters of Slovak origin, B.G. and A.C., who had attended the meeting 10 August 2001, the High Court noted that both of them had often provided interpretation to the Czech managers in their economic activity and were very much involved in profitable activities with the latter. Furthermore, A.C. was not only his business partner but also his life partner. The court concluded that their testimony in connection with the discussions held on 10 August 2001 could not be considered reliable, as both had provided interpreting services for the conversations held on that occasion. They could not acknowledge that they had thus become aware of the defendants’ intention to eliminate the leader of the SLT, because they could thereby have been held responsible for not preventing his killing.

For medical reasons the applicant was allowed to start serving his sentence on 7 September 2005. However, taking advantage of the lack of vigilance of the border authorities, he escaped from Romania to the Czech Republic in July 2005.

The Oradea District Court issued a European Arrest Warrant in his respect on 24 April 2008. By a decision of 9 October 2008 the Brno District Court refused to allow his extradition to Romania.

The Romanian Ministry of Justice requested the Czech Republic to take over the execution of the prison sentence. The Czech Ministry of Justice submitted, in accordance with the relevant provisions of the Czech Code of Criminal Procedure, a request to the Brno District Court for approval of the Romanian courts’ decisions.

In the course of the proceedings before the Brno District Court there were three hearings. The court heard several witnesses, who included one of the applicant’s defence counsel before the Romanian courts, two employees of the Czech embassy in Romania, and the applicant’s interpreter and partner A.C.

By a judgment of 2 September 2009 the Brno District Court refused to approve the Romanian courts’ decisions, on the ground that the applicant had not benefitted from a fair trial in Romania. The main reason for the refusal was infringement by the Romanian court of Article 6 § 3 (e) of the Convention, as the applicant had not been provided with the free assistance of an interpreter.

In accordance with Article 8 of the Romanian Code of Criminal Procedure (“the CCP”), in force at the material time, parties who did not speak or did not understand the Romanian language, or who could not express themselves in it, were given the opportunity, free of charge, to acquaint themselves with the documents in the file, to speak in court and to submit conclusions, through the services of an interpreter and translator.

The Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures between the Member States, transposed into Romanian law since 2004, has as main purpose to simplify and expedite procedures for extradition of persons convicted or accused of crimes between the EU member states.


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants were born in 1933 and 1949 respectively. The first applicant lives in the village of Shalushka in the Republic of KabardinoBalkariya, whilst the second applicant is resident in the village of Pervomayskoe, Stavropol Region.

Early in the morning of 13 October 2005 law-enforcement agencies in the town of Nalchik, the Republic of Kabardino-Balkariya, were attacked by a number of heavily armed people, who appear to have been local insurgents. The agencies included the Republican Department of the Ministry of the Interior, Centre T of the Main Department of the Ministry of the Interior, various district departments of the Ministry of the Interior, the Special Purpose Police Unit of the Republican Ministry of the Interior, various checkpoints of the Traffic Police, the Republican Department of the Federal Security Service, the Republican Department of the Federal Service for the Execution of Penalties and the office of the Border Guard Service of the Federal Security Service. Also, a few privately owned weapon shops were attacked. According to the Government, there were over two hundred and fifty participants in the attack.

The ensuing fight between the governmental forces and the insurgents lasted until at least 14 October 2005.

The applicants submitted that they were relatives of the persons who participated in the attack and died on 13 and 14 October 2005 or shortly afterwards.

The first applicant refers to the death of his son Zamir Mikhaylovich Zalov, born on 13 November 1978, whilst the second applicant refers to the death of her son Murat Abubovich Khakulov, born on 26 March 1978.

The Government stated that the authorities had killed a total of ninety-five insurgents in the anti-terrorist operations mounted in response to the attack of 13 October 2005. In essence, they acknowledged that the deceased referred to by the applicants were among those killed by the authorities.

It appears that on 13 October 2005 the authorities instituted criminal proceedings no. 25/78-05 in connection with the attack in Nalchik.

In the course of the investigation it was established that between 1999 and February 2005 a group of individuals, including A. Maskhadov, Sh. Basayev, I. Gorchkhanov, A. Astemirov, Abu-Valid Khattab and AbuDzeit, had formed a terrorist group. It was this group that organised the attack. Thirty-five law-enforcement officers and fifteen civilians were killed, whilst one hundred and thirty-one law-enforcement officers and ninety-two civilians were injured. Massive damage was done to property.

The applicants did not have any procedural status in the criminal proceedings in case no. 25/78-05.

It appears that on several occasions the applicants requested various officials, including the prosecutors, to return the bodies of their sons for burial.

The requests either remained unanswered or were refused.

The applicants were furnished with death certificates in respect of their sons, indicating 13 October 2005 as the date of death in respect of both individuals and 23 January 2007 (in respect of Zamir Zalov) and 7 April 2008 (Murat Khakulov) as the dates of issue.

On 13 April 2006 the investigation authority terminated the criminal proceedings in respect of the ninety-five deceased on account of their deaths, having taken an individual decision in respect of each deceased person. Each decision described the degree and character of their individual involvement and concluded that these persons had taken part in the attack and died in the course of the ensuing gunfight. It appears that the deceased referred to by the applicants were among those concerned by this decision.

The decision of 13 April 2006 in respect of Zamir Mikhaylovich Zalov stated that his body was located on 13 October 2005 at 127 Malbakhov Street, Nalchik. The investigators found a Makarov pistol containing four cartridges near the corpse and a Makarov pistol containing seven cartridges in his trousers. The deceased held an armed hand grenade in his left hand. The subsequent expert report identified the cause of death as a gunshot wound to the chest, which damaged his heart and caused a massive loss of blood and traumatic shock.

In view of the collected evidence, the investigation concluded that at around 9 a.m. on 13 October 2005 the deceased, acting in concert with other participants, carried out a pre-planned and armed attack on an arms shop with a view to capturing arms and ammunition. The attack resulted in the deaths of at least three persons and the wounding of two more. The deceased personally killed one of the victims and ordered the killing of another.

The decision of 13 April 2006 in respect of Murat Abubovich Khakulov stated that his body was located on 13 October 2005 in the vicinity of the local premises of the Special Purpose Police Unit of the Republican Ministry of the Interior. The investigators found eighty used bullet cartridges nearby. The subsequent expert report identified the cause of his death as multiple gunshot wounds to the legs, leading to massive loss of blood and traumatic shock.

Based on the collected evidence, the investigation concluded that the deceased, along with four other persons, organised and carried out an armed attack on the building of the Special Purpose Police Unit. The deceased took part in the attack for two hours, by shooting at police and passer-bys from an automatic rifle and throwing hand grenades at them. He was later killed when the police returned fire. The attack resulted in the death of one civilian, the wounding of two more and injuries to four police agents.

The Prosecutor General’s Office notified the applicants of the above decisions on 14 April 2006, but no copies of the decisions in question were attached to the notifications.

According to the Government, ninety-five corpses of the presumed terrorists were cremated on 22 June 2006. From the applicants’ submissions, it appears that they first learned of the cremations from the Government’s observations in the present case.

According to the Government, the cremations took place pursuant to a decision not to return the bodies of the deceased to their families, dated 15 May 2006. In contrast to the individual decisions of 13 April 2006, the decision of 15 May 2006 referred to the deceased persons collectively. The decision stated, in particular:

“... the head of investigation group ... [official S.], having examined the materials in case file no. 25/78-05, established: ... [that] in the course of the counter-terrorist special operation aimed at tackling the attack, 95 terrorists were eliminated, namely:

[the decision names among the deceased the persons referred to by the applicants]

At present all forensic expert examinations, including molecular genetic examinations, involving ... the corpses of the deceased terrorists, have been finalised and their identities have been established by way of proper procedure.

By decisions of 13-14 April 2006 the criminal proceedings in respect of these 95 persons, who had committed ... the attack on various sites and law-enforcement agents of the town of Nalchik ... was discontinued on account of their deaths, under Article 27 part 1 subpart 2 and Article 24 part 1 subpart 2 of the Code of Criminal Procedure.

Pursuant to section 14.1 of the Federal Interment and Burial Act (Law no. 8-FZ): ‘the interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.’

Pursuant to part 3 of Decree no. 164, ‘On interment of persons whose death was caused by the interception of terrorist acts carried out by them’, approved by the Government of the Russian Federation on 20 March 2003, ‘the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...’.

[In view of the above, official S. decided to:]

bury the bodies of the 95 terrorists...

forward the decision to the President of the Republic of Kabardino-Balkariya for execution;

inform [his superiors] of this decision”.

The Government alleged that the authorities had notified the applicants of the decision of 15 May 2006, but acknowledged that no copy of that decision had been provided to them.

It appears that on several occasions the Prosecutor General’s Office informed the applicants, in substance, of the refusal to return the bodies. It does not appear that the applicants were furnished with a copy of the decision of 15 May 2006.

The applicants’ initial attempts to obtain judicial review of the decisions of 13 April and 15 May 2006 were unsuccessful, as the courts refused to examine their arguments.

The relatives of other deceased participants in the attack contested the legislation governing the interment of terrorists before the Constitutional Court. Their initial complaints were rejected as premature. Eventually, some complaints were accepted for examination.

On 28 June 2007 the Constitutional Court delivered a judgment (no. 8-P) in which, in essence, it rejected their complaints alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation of 20 March 2003 were unconstitutional. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question:

“... At the same time, the interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts.

3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms.

The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension.

In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity.

In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...”

The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review.

In sum, the Constitutional Court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority’s decision. It reasoned as follows:

“... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time, location and cause of death ...”

Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows:

“... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial.

At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multi-ethnic society, transmitted from generation to generation. ...”

Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted:

“... The impugned norms banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ...

The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...”

After the Constitutional Court’s judgment of 28 June 2007 the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of 13 April and 15 May 2006. The domestic courts still could not review the need for application of the measures set out in section 14 (1) of the Interment and Burial Act and Decree no. 164 of 20 March 2003 in individual cases.

The applicants contested the actions of the authorities before the courts.

In April 2008, in order to prepare the cases for examination, the presiding judge made repeated requests to the officials of the Prosecutor’s Office, including the Head of the Investigation Committee of the Prosecutor General, seeking copies of the materials relating to the investigation of the deaths of both applicants’ sons. It appears that these requests remained unanswered.

By a judgment of 29 May 2008 the Nalchik Town Court of the Republic of Kabardino-Balkariya partly granted the claims of the second applicant in respect of his son. In particular, the court quashed both the decision dated 13 April 2006 to terminate criminal proceedings in respect of the second applicant’s son because of his death and the decision dated 15 May 2006 not to return the body of the second applicant’s son to his family. The court noted that the decision of 13 April 2006 had failed to take account of the new law on terrorism, adopted on 6 March and 27 June 2006, and that therefore the decision of 15 May 2006 had been premature. The court ordered the prosecution authorities to examine the relevant issues afresh.

A similar judgment was taken on 3 July 2008 by the Nalchik Town Court of the Republic of Kabardino-Balkariya in respect of the first applicant’s son.

The judgments were appealed against by both parties.

The Supreme Court of the Republic of Kabardino-Balkariya upheld the judgments on 15 July and 12 August 2008 respectively.

The parties have not submitted any information about the subsequent events in the applicants’ domestic cases.

According to those relatives of the deceased who took part in the identification of the bodies, for several days following the events of 13 and 14 October 2005 the corpses were kept in the town morgue and other locations in wholly unsatisfactory conditions. In particular, the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of each other.

The applicants did not participate in identification of their deceased relatives in person.

The Government submitted that Zamir Mikhaylovich Zalov had been identified by his cousin Z.Kh. on 19 October 2005, whilst Murat Abubovich Khakulov had been identified by his cousin A.R. on 24 October 2005.

The Government submitted that the corpses in question had been initially held in the Nalchik morgue. Between 14 and 18 October 2005 the applicants examined the corpses and the clothing. Thereafter the bodies were placed in two refrigerator wagons. On 1 November 2005 the wagons were moved to the town of Rostov-on-Don for molecular genetic examinations and on 22 June 2006 all of the bodies were cremated. Between 13 and 22 October 2005 the person in charge of the identification proceedings was the head of the investigation group, investigator P. From 22 October 2005 he was replaced by investigator S. The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies.

According to the Government’s most recent submissions, the overall amount of human casualties as a result of the events of 13 October 2005 was twelve civilians, thirty-five police and law-enforcement officers and eightyseven participants in the attack.

For a summary of the relevant domestic law, see Sabanchiyeva and Others v. Russia, no. 38450/05, §§ 33-37 and 65-90, ECHR 2013 (extracts) and Maskhadova and Others v. Russia, no. 18071/05, §§ 116-146, 6 June 2013.

For a summary of other relevant sources referred to by the applicants, see Sabanchiyeva and Others, cited above, §§ 91-96 and also Maskhadova and Others, cited above, §§ 147-150.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Alvina Gyulumyan;André Potocki;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Erik Møse;Ganna Yudkivska;Guido Raimondi;Ineta Ziemele;Josep Casadevall;Krzysztof Wojtyczek;Mark Villiger;Paul Lemmens;Paul Mahoney

The applicant was born in 1917 and lives in Ternopil.

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

Since 1997 the applicant has claimed, so far unsuccessfully, title to part of a house, owned by Mr M. at the material time, and to the land on which it stands. Her claim is based on the following arguments: that the part of the house in question was constructed at her and her late husband’s expense; that her husband lawfully obtained title to the property, which she subsequently inherited; that it was not sold to Mr M. despite there having initially been an agreement with the applicant’s son to that effect; and that the sales contract on which Mr M.’s claim to the property was based was forged.

The applicant’s property claim was considered on numerous occasions by the domestic courts. Eventually, following the reassignment of the case by the Supreme Court to lower courts with different territorial jurisdiction, the applicant’s claim was dismissed. Relying on the statements of 17 witnesses, one of whom was heard in person, and documents submitted by Mr M., the courts at two levels of jurisdiction found that Mr M. had bought the foundations of the part of the house in question from the applicant’s son in 1993 and had subsequently built it at his own cost. Mr M., accordingly, was the lawful owner of that part of the house and had the right to use the land on which it had been constructed. The final decision, upholding the rulings of the lower courts, was taken by the Supreme Court on 22 August 2002.

On 17 July 2001 the applicant lodged an application with the Court, complaining in particular of unfairness in the domestic court proceedings concerning her claim. She also complained about the length of the proceedings and alleged a violation of Article 1 of Protocol No. 1 to the Convention taken alone and in conjunction with Article 14 of the Convention on account of their outcome.

On 3 May 2007 the Court delivered a judgment in the case, which became final on 3 August 2007. The Court held that there had been a violation of Article 6 § 1 of the Convention, having regard to the circumstances in which the applicant’s case had been reassigned by the Supreme Court and to the lack of sufficient reasoning in the domestic decisions, these issues being taken together and cumulatively (see Bochan, cited above, § 85).

The Court reasoned as follows:

“74. ... [The] reassignment [of the applicant’s case] was ordered by the Supreme Court after having expressly disagreed with the findings of the lower courts as to the facts and having stated its position concerning one of the principal aspects of the case ... even before the new assessment of facts and taking of evidence by the lower courts took place ... Considering in addition the Supreme Court’s failure to provide reasons for the reassignment, the Court is of the opinion that the applicant’s fears that the judges of the Supreme Court, including its Deputy President, had a prefixed idea concerning the outcome of the case and that the judges to whom the case had been transferred on 9 October 2000 would have to consider the case in accordance with the Supreme Court’s view could be held to be objectively justified.

The Court considers that this overall procedural situation also disturbed the principle of legal certainty (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003IX). The fact that the Supreme Court’s views on the subject of the applicant’s case differed from those of the lower courts could not be a sole ground for its repeated re-examination. Higher courts’ power of review should be exercised for correction of judicial mistakes, miscarriages of justice, and not to substitute the lower courts’ assessment of facts.”

The Court further noted that the domestic courts had afforded no reply to the applicant’s submissions concerning the reliability of the witnesses’ statements and the validity of the documentary evidence, which had been decisive for the outcome of the case (see Bochan, cited above, §§ 81-84).

Relying on the above findings under Article 6 § 1 of the Convention, the Court decided that it was not necessary to rule on the applicant’s complaint based on Article 1 of Protocol No. 1, as it raised no distinct issue (see Bochan, cited above, § 91).

The applicant’s complaints about the length of the proceedings and a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention were dismissed as unsubstantiated (see Bochan, cited above, §§ 87 and 93).

The applicant was awarded EUR 2,000 by way of just satisfaction in respect of non-pecuniary damage. The Court also noted “that the applicant was entitled under Ukrainian law to request a rehearing of her case in the light of the Court’s finding that the domestic courts had not complied with Article 6 in her case” (see Bochan, cited above, §§ 97 and 98).

To date, the Committee of Ministers of the Council of Europe has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention.

On 14 June 2007 the applicant lodged with the Supreme Court an “appeal in the light of exceptional circumstances” pursuant in particular to Articles 353-355 of the Code of Civil Procedure of 2004 (see paragraph 24 below). Relying on the Court’s judgment of 3 May 2007, she asked the Supreme Court to quash the courts’ decisions in her case and to adopt a new judgment allowing her claims in full. She joined to her appeal copies of the Court’s judgment and of the domestic decisions.

On 14 March 2008 a panel of 18 judges of the Civil Division of the Supreme Court, having examined the appeal in chambers and relying on Article 358 of the Code of Civil Procedure of 2004 (set out in paragraph 24 below), dismissed the applicant’s appeal. The relevant part of the Supreme Court’s decision reads as follows:

“By the judgment of 3 May 2007, the European Court of Human Rights declared the applicant’s complaints of unfairness in the proceedings and of a violation of Article 1 of Protocol No. 1 admissible, and the remainder of the application inadmissible. A violation of Article 6 § 1 of the Convention ... was found in the case. [The Court] ordered that the respondent State was to pay the applicant, within three months from the date on which the judgment became final according to Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage ...

In paragraph 64 of the judgment of the European Court of Human Rights, it is noted that the applicant’s submissions mainly concern four issues, namely:

(a) whether the courts, which dealt with [the applicant’s] case, were independent and impartial;

(b) whether the fact that the case was heard by the Chemerovetsk Town Court prevented the applicant from participating in the proceedings;

(c) whether the principle of equality of arms was observed with regard to the failure of the domestic courts to hear the witnesses whose written statements the courts admitted as evidence;

(d) whether the final decisions given by the courts of first, appeal and cassation instances were sufficiently substantiated.

As can be seen from the case materials, the applicant was represented in the [domestic] proceedings by her son, a lawyer ... During the entire duration of the proceedings she failed to appear before the court, although she was duly informed of the hearings.

None of those taking part in the case, including Mr B.I. [the applicant’s son], asked for the witnesses to be summoned ... Mr B.I. failed to submit witness statements ... capable of proving that the house was constructed at his (or his father’s or his mother’s) expense.

None of the parties, including Mr B.I., sought the withdrawal of the [first-instance] judge. Complaints of the court’s lack of objectivity ... were only raised by Mr B.I. after the judgment had been adopted in the case.

As can be seen from the case materials, the validity of the sales contract of 18 March 1993, according to which Mr M. purchased from Mr B.I. half of the foundations and some of the construction materials, was not challenged ... There is also a document confirming that the left-hand side of the house was constructed at Mr M.’s expense and a document according to which Mr M. paid Mr B.I. 1,550,000,000 karbovanets [the former transitional currency of Ukraine before September 1996] for the foundations of the left-hand side of the house. These circumstances were not refuted by the expert examination in the case.

In its judgment, the European Court of Human Rights also noted that the applicant ... had failed to provide evidence that she had suffered discrimination in the enjoyment of her property rights, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, on account of the outcome of the civil proceedings. [The Court] concluded that the applicant’s complaints [under these provisions] were to be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. Therefore, the European Court of Human Rights concluded that the [domestic] courts’ decisions were lawful and well-founded and decided to award the applicant compensation in the amount of EUR 2,000 only for the violation of the ‘reasonable-time’ requirement by the Ukrainian courts.

In the light of the foregoing, the courts’ decisions in the case may not be quashed on the grounds mentioned in Mrs Bochan’s application.

Relying on [Article] 358 of the [Code of Civil Procedure of Ukraine], the panel of judges of the Civil Division of the Supreme Court of Ukraine

[Decided]:

To refuse to allow the appeal [of Mrs Bochan M. I.] for review in the light of exceptional circumstances of the judgment of 19 January 2001 of the Chemerovetsk Town Court of the Khmelnytsk Region, the decision of 1 March 2001 of the Khmelnytsk Regional Court of Appeal and the decision of 22 August 2002 of the Supreme Court of Ukraine.”

On 8 April 2008 the applicant lodged a new “appeal in the light of exceptional circumstances” with the Supreme Court. She argued that the decision of 14 March 2008 had been based on an incorrect “interpretation” of the Court’s judgment of 3 May 2007 and requested the Supreme Court to reconsider the merits of the case in the light of the Court’s findings under Article 6 § 1 of the Convention in that judgment as noted in paragraph 15 above.

On 5 June 2008 a panel of seven judges of the Civil Division of the Supreme Court, relying on Article 356 of the Code of Civil Procedure of 2004, declared the appeal inadmissible, as it contained no arguments capable of serving as grounds for reconsideration of the case in the light of exceptional circumstances pursuant to Article 354 of the Code of Civil Procedure of 2004 (see paragraph 24 below for the text of Article 354 and for the relevant extracts from Article 356 of the Code).


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)

The applicant was born in 1989 and is currently detained in Garbalin Prison.

On an unspecified date before 2010 the applicant was convicted of homicide and sentenced to imprisonment. The term of his imprisonment was to end in 2016.

At the relevant time he was detained in Włocławek Prison.

On 23 December 2010 the applicant’s grandmother died.

On 29 December 2010 in the morning the applicant received a telegram from his relatives informing him of the death of his grandmother and of the date of her funeral. The funeral was scheduled to take place on 30 December 2010 at 12 noon in Zgierz, a town located at a distance of approximately 100 kilometers from Włocławek.

On the same day the applicant made an application for leave from prison to attend his grandmother’s funeral. His application was transmitted by the penitentiary authorities to the Włocławek Regional Court via fax at 2.46 p.m. It read, in so far as relevant, as follows:

“I kindly ask the Regional Court to grant me leave to attend the funeral of my grandmother. She was very close to me, she was the person who had raised me. Thank you very much for considering my request.”

By a decision of 30 December 2010 the Penitentiary Judge of the Włocławek Regional Court (sędzia penitencjarny), refused the applicant’s request. The reasons given for the decision were as follows:

“... the convicted person’s application for compassionate leave under Article 141a § 1 of the Code of Execution of Criminal Sentences was refused due to the nature of the committed offence, negative opinion about the convicted (negatywna opinia środowiskowa) and the remote date foreseen for the completion of his sentence.”

The decision was notified in writing to the applicant on 31 December 2010. The applicant did not appeal against it as the funeral had already taken place and he considered that this would be purposeless.