Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Just satisfaction)

Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits

The applicant was born in 1986 and lives in Chișinău.

The applicant lived with her four-year-old daughter, A., and with her mother, G.

Following a call from C.I., on 22 September 2011 the police removed A. from her home and placed her in the care of the Municipal Children’s Hospital “V. Ignatenco”. A medical report drawn up on the same day found that the applicant had severe alcohol intoxication.

C.I. later stated to the police that, as a salesman in a shop on a street near the applicant’s house, he would regularly see the applicant and her mother drinking alcohol and failing to take care of A., who often had an unkempt appearance and would wander around without adult surveillance, asking for food. He called the police on the evening of 22 September 2011 after A. had asked him to call for an ambulance because her mother and grandmother had been fighting.

On an unspecified date the Ciocana Police Office reported to the Ciocana Child Protection Service the circumstances of their intervention on 22 September 2011:

“On 22 September around 8.45 p.m. [a call] was registered about domestic violence occurring at [the applicant’s address]. At the scene [the applicant and her mother], both visibly drunk, were found exhibiting aggressive behaviour and were unkempt in their appearance. Physical and psychological violence was exercised in the presence of the child.

A child was found in the yard ... she looked unkempt and said that she had not eaten anything the whole day.

From discussions with the neighbour who had called the police, it was established that the child had been without surveillance for a week, in an unkempt state and sometimes asking for food. Subsequently the child was identified as A.

At the scene it was also established that the child lives in unsanitary conditions, without electricity. The child does not have the basic requirements for her physical and intellectual development, and is not enrolled in any pre-school institution. ... [S]he does not have a healthy diet [because she] begs food from neighbours.

...[The applicant] was directed to undergo an examination in order to assess the level and the nature of her intoxication.

...On 22 September 2011 the child inspector who was present at the scene called for an ambulance which took the child to [hospital] for medical investigation and appropriate medical assistance ....

The Ciocana Police Office is currently investigating whether [the applicant] had committed an offence under Article 63 (2) of the Code of Administrative Offences. ...

[We request] ... adoption of a decision on the placement of the child in a special institution and the lodging of an action in court seeking withdrawal of [the applicant’s] parental authority”.

On 23 September 2011 a social worker and a psychologist from a non-governmental organisation visited the applicant’s home and found that the house was in disorder and lacked running water, electricity and gas.

On 27 September 2011 the applicant was interviewed by a Ciocana police officer. On the same day a police report concluded that the applicant was failing to duly fulfil her parental duties of educating and caring for her child because her abuse of alcohol, quarrelling or fighting with her mother in the child’s presence, and at times using physical violence towards her mother. The report concluded that the applicant had committed an offence under Article 63 (1) of the Code of Administrative Offences and took into account the applicant’s personal and family circumstances as a mitigating factor. On 19 October 2011 the Ciocana prosecutor confirmed the police’s finding that the applicant had committed an offence under Article 63 (1) of the Code of Administrative Offences and sentenced her to an administrative fine in the amount of 200 Moldovan lei (MDL) (equivalent to 12.5 euros (EUR)).

Also on 27 September 2011, the Ciocana Child Protection Committee examined A.’s situation. When the applicant appeared before the committee she was allegedly intoxicated. The applicant disputed that allegation. Based on the findings of this meeting, on 28 September 2011 the Ciocana Child Protection Committee concluded that A.’s return to her biological family would put her life and health in danger. The Committee decided to place her in the Municipal Children’s Centre and to initiate proceedings to withdraw the applicant’s parental authority.

A. stayed in hospital from 22 to 30 September 2011. She was diagnosed with “residual encephalopathy with delayed motor skills, mild leg movement disorder, thyroid gland disease, decreased need for sleep (“hyposomnia”), urinary insufficiency and disorder of the function of the pancreas.” She was prescribed treatment.

On 30 September 2011 A. was transferred to the Municipal Children’s Centre. A psychological evaluation dated 14 February 2012 described A. as displaying “well-developed gross motor skills, corresponding to her age, at a slow tempo. Free, balanced and directional walking. Weak fine motor skills. ... Balanced and quiet behaviour, delayed development of cognitive processes and of communication abilities, with chances of recovery. Psycho-social deprivation.”

On 20 December 2012 the Municipal Child Protection Service approved A.’s placement with the family of C., a professional parental social worker. On 22 January 2013 C. took A. from the Municipal Children’s Centre and noted that A. was physically healthy, clean and without any skin eruptions.

On 29 September 2011 the Ciocana Child Protection Service instituted proceedings seeking the withdrawal of the applicant’s parental authority. They relied on four grounds for the withdrawal of authority under Article 67 of the Family Code: neglect of a child, a parent’s immoral conduct, a parent’s chronic alcoholism, and other reasons taking into account the interests of the child. They relied on the information provided by the police (see paragraphs 8-11 above) and the conclusions of the committee meeting of 27 September 2011 (see paragraph 12 above).

In a note dated 7 November 2011 the Municipal Children’s Centre informed the Ciocana District Court that on 30 September 2011 A. had been transferred to the centre and that on 7 October 2011 she had been registered as a child in difficult circumstances. The note also stated that the applicant had neither visited nor inquired about A. since her placement in the centre.

In the course of the proceedings, the Ciocana Child Protection Service submitted the applicant’s character assessment drawn up by the Ciocana Police Office on an unspecified date, which read:

“...[The applicant’s] family has been classified as a family unfit to educate (“needucogenă”) since 26 September 2011. It was found that [the applicant] drank alcohol at home with her mother, followed by violent behaviour in the child’s presence. Before the child’s placement in the centre, she was often seen without any parental surveillance and looked unkempt. The child did not attend any pre-school institution. [The applicant’s] family does not have electricity, water or gas in their house.”

It also submitted a letter dated 2 November 2011 in which the Ciocana polyclinic stated that A. was registered with that medical institution and that “P.E. (the applicant’s first name is N.), the child’s mother, abused alcohol, and did not look after the child’s health; a neighbour accompanied the child on medical visits.”

At the hearing on 24 January 2012 the representative of the Ciocana Child Protection Service submitted that during the visit to the applicant’s home on 23 September 2011 the applicant and G. had been intoxicated and displayed signs of physical violence. The applicant had been behaving inappropriately and had an unkempt appearance. The neighbours reported that A. was not attending any pre-school institution, was generally neglected by her family, was usually dirty, and often asked for food. She also alleged that the applicant had been intoxicated when she appeared before the Child Protection Committee at the meeting on 27 September 2011.

In court the applicant argued that she was a single parent and was receiving no support from anyone, including social services. She had financial difficulties, which prevented her from improving her living conditions, which were very basic. She explained that they used wood for heating and that the electricity had been cut off six months previously after an electrical accident. She contended that she cared for her child, supplying her with toys, clothes and shoes, and that A. had been provided with medical assistance by a medical institution other than the local polyclinic, submitting a copy of A.’s immunisation record. She stated her wish to be with A. and her commitment to discharge her parental responsibilities. She referred to the letter of 27 October 2011 (see paragraph 31 below) as evidence that she had requested access to her child, but to no avail. She argued that the incident of 22 September 2011 had not been typical and could not constitute grounds for the removal of her parental authority. She submitted that she had left in order to work in Turkey for a period of only two weeks, after which she had returned to unofficial employment in different jobs, and supplied confirmation that after the incident she had found official employment in Moldova. She also supplied confirmation that she had obtained the documents necessary to enrol A. in a pre-school institution. She denied having been intoxicated at the Committee meeting on 27 September 2011 and stated that she consumed alcohol only occasionally.

The court file also contained a statement signed by fifteen persons living in the applicant’s neighbourhood, according to which A. had never been seen wandering around dirty and hungry, or begging.

The applicant attended the first three hearings. She did not appear in court at the fourth and last hearing.

On 14 February 2012 the Ciocana District Court decided to withdraw the applicant’s parental authority, relying essentially on the arguments of the Child Protection Service. The court found, inter alia, the following:

“The representative of the [Municipal Children’s Centre] submitted that A. had been transferred from the [hospital] and was undergoing treatment for residual encephalopathy with delayed motor skills, mild leg movement disorder, thyroid gland disease, decreased need for sleep (“hyposomnia”), and urinary insufficiency.

...[the applicant] lives together with her daughter A. ... in unsanitary conditions. She is unemployed and claims to leave periodically in order to work in Turkey. ... On 22 September 2011... the police found [the applicant] drunk and... quarrelling violently in the presence of A., who was dirty, crying, hungry and scared.

According to the representative of the [Ciocana Child Protection Service], during her visit [on 23 September 2011] she had found [the applicant] and her mother drunk, aggressive and with an unkempt appearance, the house and the yard disorderly and in a completely unsanitary condition. Citing neighbours, [the representative of the Child Protection service submitted that] A. was neglected by her mother and grandmother, was not enrolled in a pre-school institution, was often seen wandering around dirty and asking for food. ...[The applicant] was drunk at the meeting on 27 September 2011 of the Child Protection Committee. The Committee concluded that the child’s return to the family would put her life and health in danger.

... [The applicant] had neither visited nor asked about [A.] since her removal from home, which was evidence of [the applicant’s] indifference towards [A.], and her immoral life style and inappropriate behaviour prove that she is unfit to raise a child.

On 22 September 2011 a medical examination confirmed [the applicant’s] severe alcohol intoxication. ... On 19 October 2011 the Ciocana prosecutor’s office found [the applicant] guilty, under Article 63 (1) of the Code of Administrative Offences, of failing to discharge her parental duties and fined her 200 Moldovan lei (12.5 euros).

... [A.’s] psychological assessment reported balanced and quiet behaviour, delayed development of cognitive processes and of communication abilities, introversion, and a positive emotional state.

... [The applicant] neglected her parental duties, did not appear in court to object, did not take care of the child, did not provide material or emotional support, and had a negative influence on the child through her immoral conduct.”

The applicant appealed, arguing, inter alia, that she had been in legitimate employment since 4 October 2011, was making significant efforts to improve her life and wished to be with A. She referred to the evidence in the file that she had repeatedly attempted to visit her daughter but had been allowed to do so on only two occasions. She referred to the statements of a social worker before the court, according to which there had not previously been any reason to remove the child from the family or to withdraw the applicant’s parental authority and no family support measures had been undertaken. The applicant submitted that she had not attended the last hearing due to health problems.

In the appellate proceedings, the representative of the Ciocana Child Protection Service stated that the applicant had been warned on several occasions that she needed to bring order to her house. She also submitted that A. had described to social services “horrifying” (“de groază”) moments experienced with her mother, entire days spent without eating anything and that she had expressed her wish not to be returned to her mother.

On 24 October 2012 the Chișinău Court of Appeal dismissed the applicant’s appeal as ill-founded, reiterating the reasons relied upon by the district court.

The applicant appealed again, arguing, inter alia, that her rights under Article 8 of the Convention had been violated. She submitted that in 2012, while the proceedings were ongoing, she had cleaned up her house and improved the living conditions. She submitted that she had regularly visited A. at the Municipal Children’s Centre and had brought parcels for her. She denied having been intoxicated at the meeting on 27 September 2011 of the Child Protection Committee and noted that no evidence to support this allegation had been presented. She agreed that, in the light of her difficult material situation, A.’s placement was an appropriate solution if applied in conjunction with measures to provide her with the necessary support, with a view to reuniting the family as soon as possible. She did not agree that the withdrawal of her parental authority was a proportionate measure under Article 8 of the Convention.

On 8 May 2013 the Supreme Court of Justice upheld the previous judgments for identical reasons. That judgment was final.

The applicant complained to the Ciocana prosecutor’s office about A.’s removal from her home on 22 September 2011. On 7 October 2011 the Ciocana prosecutor’s office informed her that A. had been lawfully removed from home and sent to the hospital for medical examination, given that on 22 September 2011 the Ciocana police officers had found the applicant and her mother intoxicated and aggressive, their house in an unsanitary condition and the child A. hungry and looking unkempt. The applicant was informed that A. had been placed in the Municipal Children’s Centre under the care of the Ciocana Child Protection Service and that proceedings had been instituted on 29 September 2011 to withdraw her parental authority.

On 27 October 2011 the applicant submitted a request to visit A., stating that she had not been kept informed about A.’s fate and that all her previous verbal enquiries had been refused. On 23 November 2011 the Ciocana Child Protection Service refused the request and informed her that visits were prohibited while court proceedings concerning the withdrawal of her parental authority were pending.

In a letter dated 17 January 2013 the head of the Municipal Children’s Centre stated that the Ciocana Child Protection Service had placed A. in the care of the centre on 30 September 2011 and had prohibited any visits by the applicant until the end of the court proceedings. The letter confirmed that the applicant had requested visits. Even though her requests had been refused, the applicant had managed to see her child on 1 and 12 August 2012. During the winter holidays, she had brought several parcels with sweets and toys and had asked for further meetings. The applicant had been redirected to the Ciocana Child Protection Service to obtain an authorisation to visit A. before the end of the court proceedings.

In a letter addressed to the Municipal Child Protection Service dated 22 August 2013, the Ciocana Child Protection Service submitted that it was inappropriate to examine the applicant’s request of 1 August 2013 to visit A. because the applicant’s parental authority had been withdrawn, the child was to be placed under a relative’s guardianship and it was for that guardian to decide on the frequency of contact between A. and her biological mother.

On 31 October 2013 H., an aunt, was appointed as A.’s guardian and the beneficiary of her child-care allowance. The applicant’s requests to visit A. were refused by H. on the grounds that she no longer had any parental rights.

Following the applicant’s repeated requests to visit A., on 26 December 2013 the Municipal Child Protection Service allowed visits on Saturdays in the presence of A.’s guardian.

On 20 February 2014 the applicant gave birth to her second child. Four days later, citing the lack of a home or resources to take care of the child, she declared her consent to the child’s adoption.


GROMADA UKRAYINSKOYI GREKO-KATOLYTSKOYI TSERKVY SELA KORSHIV v. UKRAINE

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant, Gromada Ukrayinskoyi Greko-Katolytskoyi Tserkvy Sela Korshiv, is a Ukrainian religious community registered in the village of Korshiv. They were represented before the Court by Mr Fedir Boychuk.

The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.

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

In 1843 the local community of the Ukrainian Greek Catholic Church in the villages of Korshiv (Ivano-Frankivsk Region) built a church to the Holy Virgin Mary’s Assumption. In 1946, after the relevant territory had been joined to the USSR, the community of the Ukrainian Greek Catholic Church formally became a part of the Russian Orthodox Church. The church of the Assumption was nationalised and transferred to the Russian Orthodox Church for religious purposes.

In 1991 part of the former Russian Orthodox Church community members decided to create a community of the Ukrainian Greek Catholic Church (the applicant) and another part decided to join the Ukrainian Autocephalous Orthodox Church. The church of the Assumption remained municipal property, managed by the Regional State Administration. On 5 March 1991 the newly created Ukrainian Autocephalous Orthodox Church community entered into an agreement on the use of church premises with the Korshiv District Municipal Council.

On 15 October 1991 the Ivano-Frankivsk Regional Council decided that the Ukrainian Autocephalous Orthodox Church and the Ukrainian Greek Catholic Church communities in Korshiv could use the church jointly. They had to agree on the details of the agreement. The applicant stated that the Ukrainian Autocephalous Orthodox Church did not agree to use the church jointly and prevented the applicant from having its religious ceremonies in the church.

On 20 June and 2 August 2000 and on 16 May 2001 the applicant applied to the IvanoFrankivsk Regional State Administration, seeking to be declared owner of the church of the Assumption. Having received no answer the applicant brought civil proceedings against the State Administration.

On 12 February 2002 the Kyiv City Commercial Court (the “Kyiv Court”) allowed the applicant’s claim and declared it owner of the church. The Ukrainian Autocephalous Orthodox Church appealed.

On 13 August 2002 the Higher Commercial Court quashed the judgment on the ground that the Ukrainian Autocephalous Orthodox Church had not been informed about the proceedings. The case was remitted for examination to the Kyiv Court.

In the course of the new examination, the applicant brought additional claims seeking to annul the agreement of 5 March 1991 concluded by the Council and the Ukrainian Autocephalous Orthodox Church (see paragraph 5 above). The court refused to entertain this action, indicating that the applicant was free to institute separate new proceedings concerning the agreement of 5 March 1991.

On 22 January 2003 the Kyiv Court found against the applicant, stating that transfer of the church to the applicant would lead to an infringement of the rights of the Ukrainian Autocephalous Orthodox Church community. On 6 May 2003 the Kyiv Commercial Court of Appeal upheld this judgment. On 15 July 2003 the Higher Commercial Court rejected the applicant’s appeal in cassation. On 13 November 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.

The relevant domestic law and practice with regard to the activities of religious associations is summarized in Svyato-Mykhaylivska Parafiya v. Ukraine (no. 77703/01, 14 June 2007), and Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, §§ 21-32, 28 February 2008). Other relevant domestic regulations and administrative and judicial practice are briefly summarised below.

Under section 17 § 2 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991, the State undertook to transfer title to or possession of religious premises and property belonging to the State to religious organisations. The transfer of property had to be done free of charge, on the basis of decisions of the Kyiv and Sevastopol City State Administrations, regional administrations or the Government of the Crimea.

The relevant extracts from the text of section 17 of the Act (in force at the material time) read as follows:

“Religious organisations shall be entitled to use buildings and property placed at their disposal by the State, by organisations and by private individuals, on a contractual basis.

Religious buildings and property which constitute State-owned property shall be transferred by the organisations that administer them to the religious association for their unpaid use or shall be returned into their ownership without payment, in accordance with decisions by the regional, Kyiv and Sevastopol City State Administrations, and in the Republic of the Crimea, by the Government of the Republic of the Crimea ...

Religious buildings and other property of historical, artistic and other cultural value shall be transferred into the use ... of the religious organisations and shall be used by them in compliance with the rules on protection and use of historical and cultural monuments ...

Requests made by religious organisations for transfer of religious buildings and property into ownership or unpaid use shall be considered within a period of one month, and information in writing sent to the petitioners.

Decisions by the State bodies with regard to ownership or use of religious buildings and property may be appealed against to a court in compliance with the procedure envisaged by the Code of Civil Procedure ...”

The relevant extracts from the Resolution of the Verkhovna Rada (Parliament) of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”, as amended on 23 December 1993, read as follows:

The Cabinet of Ministers of Ukraine, the Government of the Crimea and the regional, Kyiv and Sevastopol State Administrations shall ensure in accordance with the Act the return to the ownership of or free use of religious buildings and property by religious groups, taking into account the following:

- the rights of the religious organisations which owned these buildings and property when they were nationalised;

- the rights of the religious organisations which use these buildings and property in accordance with the procedure established by law;

- investments made by the religious organisations in the property, rebuilding of the religious premises and length of use of such premises;

- existence in the same residential area of other religious premises and their use by other religious organisations ...;

- other important matters in their entirety.

The decision of the relevant State body shall be reasoned ...”

Under the Presidential Decree of 4 March 1992 “On Measures Relating to the Return of Religious Property to Religious Organisations” it was established that all religious premises and property owned by the State and used “contrary to their mission” should be returned to the religious associations within the period 1992-1993. This period was further extended until 1 December 1997 by a Presidential Executive Order of 22 June 1994. On 21 March 2002 the President issued another decree “On Urgent Measures Relating to the Final Overcoming of the Negative Impact of the Totalitarian Policy of the Former Soviet Union with regard to Religion and on Restoration of the Breached Rights of Churches and Religious Organisations”, in which he recommended that regional bodies of local selfgovernment finalise the transfer of church premises that were being used “contrary to their designation”, and other buildings, to religious organisations.

Resolution No. 83 of the Cabinet of Ministers of Ukraine of 5 April 1991 (in force until 5 February 2002) “On the List of Historical Architectural Monuments which shall not be subject to Transfer to Permanent Use by Religious Organisations”, provided that the following cathedrals in Sevastopol were not to be returned to religious organisations: Volodymyrsky Cathedral (XIX century), Petropavlivsky Cathedral and Mykhaylivsky Cathedral (XIX century).

By Resolution No. 137 “On the Conditions of Transfer of Religious Premises which are Architectural Monuments to Religious Organisations”, adopted on 14 February 2002 by the Cabinet of Ministers, it was decided that such religious premises could be given to religious organisations for permanent use if the relevant educational institutions, archives or cultural institutions were moved to other premises.

On 14 July 1997 the Constitutional Court rejected a request for interpretation of section 17 § 3 of the Act, stating, inter alia, that complaints concerning the use of religious buildings and property were to be examined by courts of general jurisdiction. It also referred to the recommendations of the Presidium of the Higher Commercial (former Arbitration) Court in that regard.

On 21 October 1997 the Constitutional Court rejected a request for interpretation of the provisions of section 17 § 2 of the Act, lodged by the Greek-Catholic community “Preobrazhenska”, finding, inter alia, that there was no proof of inconsistent application of its provisions by the domestic courts.

According to paragraph 7 of the Practice Recommendation, the religious premises and property that belonged to State property were to be transferred into unpaid use or ownership of the religious organisations on the basis of the decisions taken by the regional, Kyiv and Sevastopol city state administrations and the Government of Crimea. The above-mentioned authorities were under an obligation to return such property, not used for religious purposes, within a period from 1992-1993. The return of property included transfer into unpaid use or ownership. The property could be returned to religious associations, which proved that they had owned the property before nationalisation. Thus, the Recommendation, with reference to Presidential Decree of 22 June 1996, mentioned that the transfer of ownership of the religious premises was one of the measures envisaged by law. Moreover, religious premises or property could be transferred to another religious association if there was no “legal successor” (правонаступник) religious association found in the vicinity where the religious premises or property were situated.

Paragraph 9.3 of the Practice Recommendation provided that property was to be returned to the same religious confessions which had owned the religious buildings before nationalisation (orthodox church to be returned to orthodox community, Roman-catholic church to Roman-catholic community, etc.). Information or written evidence as to the previous ownership of religious premises was to be sought from the parties, State archives, or State Religions Committee (paragraph 9.4 of the Recommendation). Claims for the return of religious premises to their original ownership could be lodged under the provisions of the Property Act with the commercial courts, and the lodging of complaints with the courts of general jurisdiction did not impede the examination of such claims (paragraphs 9.4–9.6 of the Recommendation).

Paragraph 9.8 of the Practice Recommendation stated that all property belonging to religious organisations before the entry into force of the Act was deemed to belong to the State and the State was to be regarded as the proper owner of such property. In particular, this ensued from the provisions of Article 366 of the Administrative Code of the Ukrainian Soviet Socialist Republic of 1927. Therefore, in accordance with section 4 of the Property Act, State bodies, which are mentioned in Section 17 of the law, could perform any lawful acts with respect to such property and the courts were to reject any claims against such lawful acts, unless these acts contravened the law.


CASE OF BEKTASHI COMMUNITY AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 9 - (Art. 9) Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The Bektashi Order has existed and practised its religion in the respondent State for many centuries. The applicant association’s headquarters were at the “Teke Sersem Ali-Harabati Baba” in Tetovo. Until the applicant association was refused registration in 2010 (see paragraphs 23-33 below), it practised its religion in full compliance with the relevant legislation applicable at the time. In the past, it was also known under the name “Islamic Bektashi Community”.

On 31 July 1997 the Religious Communities and Groups Act (“the 1997 Act”) entered into force. It repealed the Legal Status of Religious Communities Act 1977 (“the 1977 Act”) and provided that the Commission for Religious Communities and Groups (Комисија за односи со верските заедници и религиозните групи – “the Commission”) would be responsible for dealing with religious matters, which up until then had been the responsibility of the Ministry of the Interior (“the Ministry”).

On 25 August 1997 the Commission requested that the applicant association submit a copy of its application (копија од пријавата) to be listed in the register of the Ministry and the related certificate of registration (потврда за постојано пријавување) so that it could “transfer (into its register) the religious communities and groups of which the Ministry of the Interior had been notified (пријавени)” (section 35 of the 1997 Act, see paragraph 37 below).

On 4 September 1997 the applicant association (under the name “Islamic Bektashi Community” in Tetovo) contacted the Ministry, seeking a copy of all relevant documents related to its application submitted in 1993. According to the applicant association, on 16 September 1997 it forwarded to the Commission all the documents obtained from the Ministry save for the certificate, which had never been issued.

At the request of the applicant association, on 1 March 1999 the Ministry issued a certificate (потврда) attesting that on 17 February 1993 the applicant association (under the name “Islamic Bektashi Community” in Tetovo) had submitted an “application for registration” (барање за регистрација) and other relevant documents. On 5 April 1999 the applicant association forwarded the certificate to the Commission. No information was provided as to the follow-up procedure, if any, concerning the Commission’s request for the applicant association to be registered under section 35 of the 1997 Act.

On 23 June 2000 the Commission issued a certificate (“the 2000 certificate”), attesting that on 13 June 2000 the applicant association had filed “an application (пријава) in accordance with the 1997 Act”. The certificate further stated:

“Since the statutory conditions are met, the Bektashi Community of the Republic of Macedonia is listed (пријавена).”

By a decision of 18 July 2000, the State Statistics Office specified the applicant association’s main activities (“the activities of religious organisations”), its headquarters (the “Arabati Baba” site); and attributed corresponding indexes and business codes.

In a letter of 13 June 2002 sent to a trial court regarding unrelated proceedings, the Commission confirmed that “the Bektashi Community of the Republic of Macedonia [had been] registered (регистрирана) ...”

In 2003 a local non-governmental organisation (“the Macedonian Centre for International Cooperation”) published the “Directory of Religious Communities in Macedonia”, which included the religious entities recorded in the Commission’s register. The applicant association was listed on the basis of the 2000 certificate.

On 20 February 2007 the Commission authorised the first applicant to carry out “religious ceremonies and rituals on authorised premises of the Bektashi Community of the Republic of Macedonia”.

On 28 September 2007 the Legal Status of Churches, Religious Communities and Religious Groups Act 2007 (“the 2007 Act”) entered into force. It came into operation on 1 May 2008 (section 36). It specified that the Skopje Court of First Instance (“the registration court”) would be competent to deal with religious matters (section 11). It also provided that the Commission would transfer all documents regarding the existing religious entities recorded in its register to the registration court. All religious organisations registered by the Commission up until 1998 could retain their existing legal personality and status.

On 10 June 2008 the applicant association, represented by a local lawyer, requested information from the Commission about its status. In reply the Commission stated that it had only been required to transfer to the registration court information regarding existing religious communities registered up until 1998. Since it had only been notified about the applicant association in 2000, the latter should have made an application for reregistration in the Single Court Register (“the court register”) in accordance with the 2007 Act.

On 4 June 2009 the applicant association requested, under section 35 of the 2007 Act, that the registration court recognise its continuing legal status and record it in the court register.

On 2 October 2009 the registration court dismissed the applicant association’s request. Referring to section 35(1) of the 1997 Act, it held that “[the Commission] had been obliged (должнa) to transfer to its register the religious communities and groups of which the Ministry had been notified up until the 1997 Act had entered into force. However, since the applicant association had not given notice to the Ministry, at the time, it had not been transferred to the Commission’s records, as provided for in that provision.”

It further established that in June 2000 the applicant association had given notice to the Commission, which the latter had acknowledged with the 2000 certificate. That practice had been in compliance with decision U.br.223/97 of December 1998 (see paragraph 42 below), in which the Constitutional Court had declared unconstitutional the statutory provisions which had provided for registration of new religious entities conferring on them legal status.

The court also established that the applicant association had never been recorded (запишан) and registered (регистрирана) by the Commission either before 1998, as required under section 35(2) of the 2007 Act, or up until the 2007 Act had entered into force. The applicant association had only given notice (пријавена) to the Commission in 2000. Consequently, the Commission had not been required, as specified in section 35(1) of the 2007 Act, to transfer the data “recorded in its register” to the registration court. That requirement concerned only registered religious organisations and not entities which were listed by the Commission. The court concluded that the applicant association had never obtained the legal status it sought to have recognised in the request.

On 18 February 2010 the Skopje Court of Appeal (“the Court of Appeal”) dismissed an appeal by the applicant association and upheld the established facts and reasoning given by the registration court.

On 22 November 2010 the applicant association, represented by local lawyers authorised to act on its behalf by the second applicant, filed an application for registration in the court register as “Bektashi Religious Community of the Republic of Macedonia”. It also enclosed several documents, including a description of the doctrinal sources. On 30 November 2010 the registration court requested further documents to complete the application. The applicant association submitted the requested documents.

On 20 December 2010 the court refused to register the applicant association on the following grounds: (a) the name “Bektashi” had already been used by another religious entity registered in the court register; (b) the doctrinal sources were the same as the doctrinal sources of another already registered religious entity; and (c) the applicant association had not submitted proof of ownership of the “Arabati Baba” site in Tetovo, indicated as its headquarters in the application for registration.

The applicant association appealed against this decision and asked the Court of Appeal to hold a public hearing.

At a hearing held in private on 14 April 2011, the court allowed the applicant association’s appeal and quashed the lower court’s decision as it had not specified which registered religious entity used the name “Bektashi” or which statutory provision forbade the use of identical doctrinal sources by multiple religious communities and groups. Furthermore, there was no statutory provision under which an application for registration could be refused owing to lack of proof of ownership of the headquarters of a religious community.

On 27 May 2011 the registration court again refused to register the applicant association as its intended name contained the term “Bektashi”, which had already been used by another religious entity, namely the “Ehlibeyt Bektashi Religious Group of Macedonia” registered in the court register on 10 September 2010. The court stated that “the existing Act [did] not allow for the registration of a new religious entity under a name that [had] already been recorded in the register for another registered religious entity”. Furthermore, its doctrinal sources were no different from the doctrinal sources of the Islamic Religious Community, which had existed for centuries and which had been registered in the court register on 14 November 2008. As to the doctrinal sources as described by the applicant association, the court stated as follows:

“... [they consist of] the Islamic religion and the teaching of the Holy Koran, which is supplemented and interpreted by the knowledge and practices of prophet Mohamed and Imam Ali, the Holy Ehlibeyt (the prophet’s family) and the Holy Journey of Haji Bektash Veli ... it is about the sources of the Islamic religion, for which there is already a registered religious community ... whose teaching includes the Koran and the practices of Mohamed Aleyhisselam. According to Islamic teaching, Ali was his son-in-law and a member of the family (or ehlibeyt), the fourth elected caliph who ruled the Islamic state, and Haji Bektash Veli was the founder of the Bektashi Order of Islam and one of the prominent Islamic philosophers. In other words, the doctrinal sources of [the applicant association] are not at all different from the doctrinal sources of the ... Islamic Religious Community ...

In the court’s opinion, the doctrinal sources are to be regarded as official insignia of a church, religious community or group within the meaning of section 10(1) of the 2007 Act. It would be a violation of [that provision] if they did not differ i.e. did not have specific characteristics, elements that were different from the doctrinal sources of the teachings of an already registered [religious entity].”

In such circumstances, the court held that the “substantive conditions” for registration of the applicant association in the court register had not been fulfilled. Accordingly, it refused its application for registration under section 16 of the 2007 Act (see paragraph 38 below).

The applicant association challenged the grounds on which the registration court had based the refusal of registration. It argued that there was no other religious entity registered under the same name. In this connection, it submitted that there were six registered religious entities that contained the term “Christian” in their name and two registered entities that used the term “Islamic”. The intention of the 2007 Act was not to ban the use of terms that had a generic and not exclusive meaning. Otherwise, it would mean that the law would only allow the registration of one religious entity containing the term Christian, Islamic, Bektashi, Jewish, Tarikat, Buddhist, Zen or Zoroastric. It also argued that it had sought registration as a religious community, as opposed to “Ehlibeyt Bektashi”, which was registered as a religious group. Its intended name was substantially different from the name of that entity; it had existed for decades and centuries, as was evident from the directory and correspondence with various State institutions. As regards the doctrinal sources, it argued that they could not be regarded as official insignia within the meaning of section 10(1) of the 2007 Act. Doctrinal sources could be identical for multiple religious entities (as the Bible was common for Orthodox Christians and Catholics, and the Koran was common for the Islamic Religious Community, the Bektashi Order and Shia or Sunni Muslims). They were of an ideological nature and were not constant, nor could they be interpreted in that way. Official insignia concerned symbols (crosses, crescents, graphic symbols), a flag or a totem that represented something. In this connection, it stated that the interpretation which the court had given regarding its doctrinal sources, namely that they were identical to the doctrinal sources of all Islamic teaching, was wrong. The mere fact that the court had interpreted its doctrinal sources implied that the State was not separated from religion. Furthermore, if that interpretation had been based on some material, it had not been communicated to the applicant association. Nor had it been given the opportunity to present its views at a public hearing. In this connection, it requested that the Court of Appeal hold a public hearing. Lastly, it complained that the refusal of registration was discriminatory.

At a hearing held in private on 17 November 2011, the court dismissed the appeal and upheld the lower court’s decision. It held that although the intended name of the applicant association was not entirely identical to the name of the “Ehlibeyt Bektashi Religious Group of Macedonia”, it contained the term “Bektashi”, which was “decisive and represented a synonym for the religious entity”. Consequently, the registration of the applicant association could create confusion among the believers. The Court of Appeal made no mention as to the lower court’s findings regarding the doctrinal sources of the applicant association. It accordingly held that section 16 of the 2007 Act had been correctly applied.

On 20 February 2012 the applicant association and the second applicant (and two other individuals) lodged a constitutional appeal with the Constitutional Court complaining that they had been discriminated against contrary to Article 110 § 3 of the Constitution. They summarised the factual background described above and reiterated the arguments raised in the appeal against the court’s decision of 27 May 2011 (see paragraph 29 above). They complained that the use of the term “Bektashi” could not be exclusive (like the use of “Christian” and “Islamic”). Furthermore, the registration of the “Ehlibeyt Bektashi Religious Group of Macedonia” implied that the domestic authorities had implicitly accepted that the doctrinal sources of that religious group were allegedly identical to the teaching of the Islamic Religious Community. They requested that the Constitutional Court hold a public hearing (јавна расправа) in accordance with section 55 of the Rules of Procedure of the Constitutional Court (see paragraph 41 below).

At a hearing held on 20 November 2012 in the absence of the parties, the Constitutional Court dismissed the constitutional appeal. The relevant parts of its decision (U.br.24/12) read as follows:

“... in the present case, the court considers that it should examine whether the refusal to register the Bektashi Religious Community violated freedom of religion and whether there are elements of discrimination on religious grounds.

As regards the first part of the question and having regard to section 9 of the Legal Status of Churches, Religious Communities and Religious Groups Act, it appears that registration in the Single Court Register is a requirement for a religious entity to obtain legal status, but it is not a precondition for religious ceremonies, rituals and prayers, which believers ... can hold irrespective of whether they are organised as a registered religious legal entity.

In the present case, having regard to the arguments put forward in the application and the established facts, it appears that the applicants, who define themselves as members of the Bektashi Community, have freely practised their religion for many years. They participate in public life, communicate with State bodies, and participate in religious gatherings and conferences. This leads to the conclusion that, although they are not formally registered under the [2007 Act], they can practise their religion freely and hold religious ceremonies in accordance with the Islamic religion, without any pressure or persecution. Consequently, the applicants’ freedom of religion has not been violated.

In order to reply whether there are elements of discrimination in the dismissal of the application for registration of the Bektashi Religious Community, the Constitutional Court assesses whether the courts which decided in the registration proceedings ... gave sufficient reasons and whether the refusal to register the Bektashi Religious Community was based on relevant and reasonable grounds, namely whether the refusal of registration pursued a legitimate aim and whether there was a measure of proportionality between the means used and the aim pursued ...”

The court then referred to the grounds on which the registration court had based its decision and stated as follows:

“... the [registration] court refused to register the [applicant association] on two grounds: (1) the intended name of the [applicant association] contained the term ‘Bektashi’ which had been incorporated into the name of an already registered religious entity, the ‘Ehlibeyt Bektashi Religious Group of Macedonia’ ... and (2) its doctrinal sources were the same as the doctrinal sources of an already registered religious entity, the Islamic Religious Community.

The refusal to register the [applicant association] was based on grounds specified by law ... which, in the court’s view, was correctly applied. The [dismissal decision was based on] section 10(1) of [the 2007 Act] ...

The Constitutional Court endorses the findings of the first-instance court that the name and the doctrinal sources are official insignia of a religious entity and distinctive elements through which it is identified and recognised by the public ...

This particularly concerns smaller religious entities, namely [those] that ... manifest their distinctiveness through these two elements. Hence, equating the complainant [the applicant association] with another already registered religious entity can mislead the public, that is, it can confuse believers, which is at the same time itself a violation of their religious beliefs. It is not in dispute that the right of a religious entity to be registered should be secured in the context of freedom of religion, but nor should it violate the religious rights and feelings of the members of already registered religious entities.

... Each religious entity, church, religious community or group has the right to be distinct and be recognised in public by its identity. The absence of such [distinctiveness] or competition leads to confusion and misunderstanding by the public.[Such is the case] if there are multiple similar entities which are in competition, indefinite parallelism and division.

The aim of the statutory requirement for the name and official insignia of religious entities, including doctrinal sources, not to be identical (неидентичност на името и официјалните обележја) ... is to prevent confusion among believers, incorrect perceptions, and lawful indefinite division of same-faith believers in several religious communities or entities. In the court’s view, these aims are legitimate and necessary in order to protect the freedoms and rights of others, to secure religious tolerance and prevent religious conflicts, as part of ensuring public safety, which is the responsibility of the State.

In view of the foregoing, the Constitutional Court considers that the refusal to register the Bektashi Religious Community did not violate [the applicants’] freedom of religion of the applicants, nor were they discriminated against on the basis of their religion.”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1963 and lives in Novo mesto.

The applicant served his prison sentence in the period between 24 November 2008 and 25 March 2010, in the semi-open and closed sections of Ljubljana prison as well as in the open section Ig, Ljubljana prison (the open section).

From 24 November 2008 to 22 January 2009 and from 15 July 2009 to 10 August 2009 he was held in the closed section. From 24 November 2008 to 22 January 2009 he was held in cell 3 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). From 15 July 2009 to 16 July 2009 he was held in cell 6 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). From 16 July 2009 to 10 August 2009 he was held in cell 4 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility).

From 23 January 2009 to 12 July 2009 and from 10 August 2009 to 16 November 2009 he was held in the semi-open section. From 23 January 2009 to 12 July 2009 he was held in cell 138 (third floor) measuring 18.6 square metres (including a separate 1.72 square metre sanitary facility). From 10 August 2009 to 16 November 2009 he was held in cell 145 (third floor) measuring 18.8 square metres (including a separate 1.72 square metre sanitary facility).

All the cells in the closed and semi-open sections contained, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held in each of the cells during his detention. The Government, however, submitted that the number varied between four and five. Each cell had one 107 x 110 cm double casement window, which the prisoners could freely open or close.

As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.

As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (see Štrucl and Others, § 86).

As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years.

From 12 July 2009 to 15 July 2009 and from 16 November 2009 to 25 March 2010 the applicant was held in the open section in cell 2 measuring 40 square metres, which contained six sleeping places. The Government submitted that four prisoners were held in that cell during the applicant’s detention. On 15 July 2009, he was transferred back to the closed section on the ground of abuse of a more liberal prison regime in the open section.

In the open section cells were open twenty-four hours per day and prisoners could, except when sleeping, move around freely, inside the open section (in a dining room, classroom, recreation room) and in outdoor areas (a park and sports ground). Further, the prisoners were allowed to exercise for four hours per day, they could do shopping in a shop outside the prison, their visits were unsupervised and their correspondence with people from outside the prison and the use of a telephone were not limited and supervised. The open section had a capacity for twenty seven prisoners in five cells. The prisoners shared sanitary facilities with five showers, five washbasins in the lavatory, three toilets on the ground floor and four toilets on the first floor of the section and a laundry room with a washing machine and a drier, which prisoners could freely use. Prisoners in the open section were also entitled to unsupervised visits outside prison for five hours during weekends, unsupervised leave and annual leave if working in Ljubljana prison.

During his imprisonment the applicant had twenty five consultations with a general practitioner and visited a dentist on two occasions. He never requested treatment by a psychiatrist.

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.


András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants, spouses Ms Jolanta Mach and Mr Bogusław Mach, are Polish nationals who were both born in 1933 and live in Łódź. They are represented before the Court by Ms M. Szereda, a lawyer practising in Łódź.

The application concerns national bonds issued by the State Treasury in 1936. The bonds were to have been redeemed by 1995. However, the Treasury failed to undertake any steps to redeem them or to pay interest to the holders of those bonds.

The applicants’ claim was not subject to limitation because on 28 July 2003 they had asked the State Treasury to arrange a friendly settlement before the Warsaw District Court.

On 20 June 2008 the applicants instituted civil proceedings for payment against the State Treasury represented by the Ministry of Finance. They claimed 55,000 Polish zlotys (PLN), with interest.

On 12 February 2009 the Warsaw District Court granted the applicants PLN 35.48 (approximately 9 euros (EUR)). The amount granted was calculated in the following way.

The court first referred to § 2 of the 1949 Decree (see paragraph 15 below) and found that by introducing this provision the lawmaker had deprived the applicants’ claim of its economic value. According to the court, by 1949 the applicants’ claim had already been worth only about 2% of the average monthly salary at that time. On the day that the 1949 Decree entered into force – that is to say on 6 August 1949 – the nominal value of the applicants’ bonds had been PLN 1,000 each.

It further referred to the 1950 Act (see paragraphs 16 and 17 below) and concluded that after the entry into force of the relevant provisions the value of the applicants’ bonds had been PLN 10 each.

Relying on the 1994 Act (see paragraph 18 below) it further found that the nominal value of the applicants’ bonds in 1994 was 1 grosz.

Finally, the court, relying on the judgment of the Constitutional Court of 24 April 2007 (see paragraphs 22 and 23 below), ruled that it could recalculate the applicants’ claim on the basis of Article 3571 § 3 of the Civil Code. It based the indexation of the applicants’ claim on the official average salary and considered that the State Treasury should bear 90% of the inflation costs and the applicants 10%.

On 22 March 2009 the applicants appealed against that judgment.

On 10 August 2009 the Warsaw Regional Court quashed the firstinstance judgment and remitted the case. The Regional Court did not accept the basis of indexation of the applicants’ claim applied by the District Court and held that the indexation should have been based on the real value of the claim in 1936, when the bonds in question had been issued, and on the price of gold at the time the applicants instituted civil proceedings. The court further considered that while recalculating the value of the applicants’ claim, the District Court should have weighed the interests of both parties and taken into account the effects of the Second World War in order to assess the extent of participation of the defendant in the process of bringing about “a significant change in the purchasing power of money” (istotna zmiana siły nabywczej pieniądza).

On 22 March 2010 the Warsaw District Court, having re-examined the case and having recalculated the applicants’ claim on the basis of the instructions contained in the Regional Court’s judgment, found that the claim’s value amounted to PLN 17,016. The court, having weighed the interests of both parties, considered that they should bear the effects of inflation in equal parts. Accordingly, the above amount was divided by two and the applicants were granted PLN 8,508. The Court dismissed the remainder of the claim.

Both parties appealed against that judgment.

On 18 March 2011 the Warsaw Regional Court found the applicants’ appeal ill-founded and the defendant’s appeal partly well-founded, amended the challenged earlier judgment, and granted the applicants PLN 169 (approximately EUR 42). The Court considered that the District Court, in its judgment of 22 March 2010, had failed – when recalculating the value of the claim – to apply the 1949 Decree and the 1950 Act, which had never been repealed or declared unconstitutional; they thus remained in force and had to be applied to the present case. Having set the value of the applicants’ claim at PLN 169, the Court considered that it would be “contrary to the principles of community life” (sprzeczne z zasadami współżycia społecznego) to reduce this amount further by placing on the applicants part of the burden of the effects of inflation; accordingly, it granted them the whole of the recalculated amount.

The Court then referred to the applicants’ argument that the value of the claim had been decreased by the 1994 Act. It found that this Act had not significantly influenced the value of their claim because after the entry into force of the 1950 Act the claim had been of only symbolic value, namely PLN 10. The Court further considered that for the more than 40 years that had followed the entry into force of the 1950 Act the applicants’ claim had lost its value as a result of economic developments in Poland and that it was in fact immaterial whether an assessment of the claim’s value was made with or without reference to the 1994 Act.

Article 4 provides:

“The payment of dues resulting from pecuniary obligations arising from any title of a private or public nature before the entry into force of the present decree and not redeemed until that day may only be effected in the Polish currency.”

At the relevant time, Article 5 (subsequently repealed) provided:

“(1) The change in the purchasing power of money during the time between the creation of an obligation and its payment date or performance does not constitute a basis for a change in the amount of the obligation or in the means of the execution of the contract or dissolution of the contract.

(2) Payment of an obligation, specified in Polish currency on the basis of this decree, shall be made in banknotes of the Polish National Bank according to their nominal value, which is equal to the nominal value of banknotes or other means of payment, which were expressed in zlotys and which were in circulation on the territory of Poland or a part thereof before the introduction of the National Polish Bank’s banknotes into circulation.

(3) For the establishment of the value of pecuniary obligations referred to in the present Decree and expressed in the Polish currency, it is irrelevant what means of payment was in circulation at the time of the creation of the obligation.”

Article 6 § 2 provides:

“The amount of obligations expressed in zlotys in gold is calculated at 1 zloty for 1 zloty in gold.” (Wysokość nalezności z zobowiazań pieniężnych wyrażonych w złotych w złocie liczy się jeden złoty za jednego złotego w złocie).

The Change of Monetary System Act of 28 October 1950 (o zmianie systemu pieniężnego) provided that all public and private obligations expressed in zlotys (irrespective of the time at which they came into existence) were to be recalculated with effect from 30 October 1950 according to the following ratio: 100 “old” zlotys = 1 zloty.

Under section 9 of the 1950 Act, all amounts expressed in “old” zlotys and mentioned in legal provisions binding on the day of the entry into force of this Act were to be recalculated, by virtue of law, according to the following ratio: 100 “old” zlotys = 3 zlotys.

The Polish Zloty Denomination Act of 7 July 1994 (ustawa o denominacji złotego) introduced a new payment unit: with effect from 1 January 1995 the new unit of PLN 1 was to be worth 10,000 “old” zlotys.

Article 32 of the Constitution reads:

All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.

No one shall be discriminated against in political, social or economic life for any reason.

Article 64 of the Constitution reads, in so far as relevant, as follows:

Everyone shall have the right to ownership, other property rights and the right of succession.

Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession...

Article 3581 § 3 of the Civil Code provides:

“In the case of an essential change of the purchasing power of money after an obligation falls due the court may, after considering the interests of the parties and in accordance with the principles of community life, change the amount or the mode of payment, even if these were fixed in a decision or a contract.”

On 24 April 2007 the Constitutional Court gave a judgment (SK49/05) in which it held that section 12(1) of the Act of 28 July 1990 amending the Civil Code – in so far as it limited the possibility of judicial indexation referred to in Article 3581 § 3 of the Civil Code as regards pecuniary obligations which had come into existence before 30 October 1950 as a result of bonds emitted by the State Treasury – was inconsistent with Article 64 §§ 1 and 3 in conjunction with Article 32 § 1 of the Constitution.

In the part named “effects of the judgment” the Constitutional Court noted:

“Taking into consideration the effects of this judgment and the impossibility of claiming the full value of claims arising from national bonds issued before 1939, the matter of possibility and scope and, in particular, the amount of just satisfaction for persons holding such bonds, should be resolved by the lawmaker. As stressed on many occasions in its case-law, the Constitutional Court should not replace the lawmaker.

The finding by the Constitutional Court that section 12(1) of the Act of 28 July 1990 amending the Civil Code was inconsistent with the Constitution ... will enable the holders of national bonds to access the indexation of their claims guaranteed by Article 3581 § 3 of the Civil Code. However, in practice, the expiry of limitation periods may effectively deprive claimants of a chance to achieve a positive outcome in the relevant proceedings.

If [the Parliament] does not enact new provisions before section 12 (1) of the Act of 28 July 1990 expires, holders of national bonds, who have been patiently waiting for the settlement of their claims, will be able to lodge [with civil courts] their claims for payment in an amount which will be calculated with the application of the indexation clause.

However, the present judgment of the Constitutional Court does not indicate to the courts the scope, direction or scale of the indexation.”

The provisions which had been found unconstitutional were subsequently repealed, which opened the way for applicants to seek their claims before the courts and to demand that the value of their claims be judicially increased.


Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicant, Mr Mark Peacock, is a British national, who was born in 1969 and lives in Preston. He was represented before the Court by Tuckers Solicitors, a law firm based in London. The Government were represented by their Agent, Ms R. Sagoo, of the Foreign and Commonwealth Office.

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

On 7 January 1997 the applicant pleaded guilty at the Crown Court to conspiracy to supply drugs. On 8 January 1997 he was sentenced to twelve years’ imprisonment. On 5 October 1998 the Court of Appeal reduced the sentence to ten years’ imprisonment. Meanwhile, the prosecution applied for confiscation orders under section 2 of the Drug Trafficking Act 1994 (“the 1994 Act” – see paragraphs 22-25 below).

On 10 July 1997 the Crown Court judge found that the applicant had benefited from drug trafficking in the sum of 273,717.50 pounds sterling (“GBP”). He was found to have realisable assets in the sum of GBP 823. A confiscation order was made for the latter sum to be paid within fourteen days. The applicant paid the order.

On 9 November 2000 the applicant was released from prison. He entered a business partnership with his father. The business was successful and the applicant acquired substantial assets.

The prosecution subsequently became aware of the value of the applicant’s equity in the business. It applied to the High Court for a certificate under section 16(2) of the 1994 Act (see paragraph 23 below) declaring that the amount that might be realised from the applicant’s assets was greater than it had been at the time when the original confiscation order was made. On 18 May 2005 the High Court issued a certificate under section 16(2).

The prosecution subsequently applied to the Crown Court under section 16(4) of the 1994 Act (see paragraph 24 below) for an increase in the amount to be recovered under the confiscation order.

A hearing took place over a seven-day period. Evidence was lodged of the further assets identified. The applicant lodged witness statements and gave oral evidence on oath. He accepted that he had acquired further assets since his release from prison but submitted that he had taken a conscious decision to live an entirely honest, law-abiding and hard-working life.

On 26 October 2007 the Crown Court judge handed down his judgment. He identified two issues: the first was a factual question as to the existence and value of further recoverable assets; the second concerned the exercise of the court’s discretion to order further payment and impose a term of imprisonment in the event of non-compliance. The judge indicated that his assessment of the applicant’s credibility would be a significant factor in both aspects of the case. He declined the prosecution’s invitation to take account of adverse credibility findings made in the context of the earlier confiscation proceedings, explaining that he began on the basis that convicted criminals were able to rehabilitate themselves and to turn from crime. However, taking into consideration the incomplete details of his assets in his first witness statement made in 2006 and his subsequent evasiveness when giving oral evidence, the judge concluded that the applicant was not a reliable witness.

After considering in some detail the applicant’s assets and business activities, the judge found the applicant to hold realisable assets to the value of GBP 348,315.54. However, he added:

“40. ... [T]hat is not, necessarily, the end of the matter. I preface this section by specific remarks about [the applicant’s] credibility ... [H]e failed, at the outset, to make proper disclosure of his finances. The discovered torn up paper relating to matters in Spain was revealing, particularly with its reference to a few business interests and to not wishing to declare matters. His explanations were risible. Furthermore, despite his protestations of honesty since his release from prison, there was clear evidence of fraudulent dealing with mortgage lenders in the supply of financial information ... I find [the applicant] to be an intelligent man, fully aware of all aspects of his business dealings. I find, too, that he has over a period dealt to a large extent in cash, with the specific intention of frustrating any enquiries by Authorities into his financial affairs ...”

In the light of his findings, the judge then turned to consider how to exercise his discretion as to whether the confiscation order should be increased. He explained that had he found the applicant a credible witness, who had set out to lead a law-abiding and responsible life, he might have felt able to give sympathetic consideration to submissions that the court’s discretion should be exercised in his favour. However, he was satisfied that the applicant had lied to the court and had set out quite deliberately to deceive the court as to the truth as to his financial affairs and assets. In the judge’s view, this was entirely the type of case for which statute had provided the opportunity for society to recoup some of the damage caused to it by criminality. The judge also considered the length of time which had elapsed since the applicant’s release from prison but decided that this did not prevent the modification of the confiscation order. He accordingly exercised his discretion to substitute for the GBP 823 originally recoverable the full amount of the benefit previously assessed, namely GBP 273,717.50. The order was to be paid within six months, with a period of imprisonment of three years in the event of non-compliance.

The applicant appealed to the Court of Appeal, contesting the calculation of his assets by the Crown Court judge and seeking a reduction in the recoverable amount. The appeal was dismissed by the Court of Appeal (Criminal Division) on 20 February 2009.

The applicant subsequently appealed the decision of the High Court to issue a section 16(2) certificate (see paragraph 6 above). He argued that section 16(2) was not intended to allow confiscation of after-acquired assets (i.e. assets acquired after the date of conviction). If that had been the intention of Parliament, the statutory provision should have been unequivocal. He emphasised in particular that other provisions of the 1994 Act set a time-limit of six years to revisit a confiscation decision, but that no time-limit appeared in section 16(2). He contended that the definition of realisable property in section 6(2) of the Act was restricted to property held at the time of the original confiscation proceedings. Finally, he submitted that section 16 no longer had effect after the entry into force of the Proceeds of Crime Act 2002 in 2003 (see paragraph 22 below).

The appeal was dismissed by the Court of Appeal (Civil Division) on 20 December 2010. The court held that section 16 applied to assets lawfully acquired post-conviction, referring to the absence of any time limitation in that section. This conclusion was not undermined by the fact that the Proceeds of Crime Act 2002 contained clearer provisions on the matter. Finally, the court held that the savings provisions in the relevant commencement order made under the 2002 Act clarified that section 16 remained in force for the purposes of the present proceedings.

The applicant appealed the December 2010 judgment to the Supreme Court. The agreed statement of facts and issues before the Supreme Court identified the issues which had arisen before the Court of Appeal as follows:

“i. Whether, having regard to the transitional provisions contained in the Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions, Savings and Amendment) Order 2003 ..., section 16 of the 1994 Act (which was repealed by the Proceeds of Crime Act 2002) was in force at the material time (‘the Commencement Order issue’).

ii. Whether the High Court had jurisdiction to issue a certificate under section 16 in respect of after-acquired assets (‘the section 16 issue’).

iii. whether in the Appellant’s case the delay between the making of the confiscation order and the application under section 16 amounted to a breach of the Appellant’s right to have his case heard within a reasonable time (‘the reasonable time issue’).”

It clarified that the issues before the Supreme Court were the following:

“1. Whether section 16 of the 1994 Act was in force at the material time.

Whether the High Court has jurisdiction to issue a certificate under section 16 in respect of after-acquired assets.”

The applicant’s written case included the following argument:

“C. The Compatibility Issue

The interpretation of the statute by the Court of Appeal ... is in conflict with a defendant’s rights under Article 6(1) of the Convention ... For a defendant to be liable in perpetuity to an increased penal sanction is submitted to amount to a clear breach of his right to determination of any criminal charge within a reasonable time, as well as raising issues under Article 8 ... and the First Protocol (protection of property). The construction of Article 16(2) contended for by the Appellant is compliant with the Human Rights Act whereas the interpretation adopted by the Court of Appeal arguably is not.”

As regards the section 16 issue, in particular, the written case included the following statements:

“The definition of the words ‘the amount that might be realised’ in section 6 and 64 of the Act provide a clear definition of the scope of the legislation.”

“If, which is not accepted, there is any ambiguity in the words of the statute, an examination of the debates of the Bill in the House of Lords and the House of Commons and in the Home Affairs Committee Report make it clear that the scope envisaged did not include ‘after acquired assets’.”

“The Appellant’s case was not that Section 16(2) was unclear and ambiguous ... To the contrary, it was submitted that the words of the section clearly do not refer to assets acquired after the confiscation order was made.”

On 22 February 2012 the Supreme Court delivered its judgment. On the question whether section 16 was still in force at the time of the second confiscation proceedings, the court was satisfied that it was.

As to the correct interpretation of section 16(2), the justices were divided by three votes to two, with the majority finding that the section applied to after-acquired assets and dismissing the applicant’s appeal after careful consideration of the legislative framework. Lord Brown, for the majority, explained:

“29. As for the main argument, based on fairness and rehabilitation, naturally I recognise that Parliament could have chosen a different policy with regard to after-acquired assets. But it seems to me perfectly understandable that in fact Parliament decided (as indisputably it did when later enacting POCA [the Proceeds of Crime Act 2002]) to leave it open to the courts as a matter of discretion to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth.

That the court does indeed have a discretion in the matter is plain both from the wording of section 16(4) and from a number of authorities ... This is not, however, the occasion to explore the approach to the proper exercise of that discretion – or, indeed, the question whether its exercise could ever be affected by considerations arising under the Human Rights Act 1998. As already noted, there is no challenge here to the exercise of the Crown Court’s section 16(4) discretion, only to whether the section 16(2) certificate was lawfully issued.”

Lord Hope, in the minority, referred to the general principle of construction that a statute should not be held to take away property rights without compensation unless the intention to do so was expressed in terms which were clear and unambiguous. He was therefore of the view that where assets were subsequently acquired entirely legitimately, it ought not to be assumed that Parliament intended their confiscation unless it provided for this in clear terms. While the relevant provision in the Proceeds of Crime Act 2002 satisfied this test, Lord Hope considered that section 16(2) of the 1994 Act did not.

The applicable legislation at the time was the Drug Trafficking Act 1994. The 1994 Act has now been replaced by the Proceeds of Crime Act 2002.

Section 16 of the 1994 Act allowed for the increase in the value of a confiscation order in certain circumstances. It applied where the amount which a person was ordered to pay by a confiscation order was less than the amount assessed to be the value of his proceeds of drug trafficking. Pursuant to section 16(2) and (3), if, on an application by a prosecutor, the High Court was satisfied that the amount that might be realised was greater than the amount taken into account in making the confiscation order, it had to issue a certificate to that effect, with reasons.

Section 16(4) allowed a prosecutor who obtained a section 16(2) certificate to apply to the Crown Court for an increase in the amount to be recovered under the confiscation order. Upon such an application, the court had discretion to:

“(a) substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) above) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and

(b) increase the term of imprisonment or detention fixed in respect of the confiscation order ... if the effect of the substitution is to increase the maximum period applicable in relation to the order ...”

Section 6(1) of the Act provided that the amount that might be realised at the time a confiscation order was made was the total of the values at that time of all the realisable property held by the defendant, less the total amount of any obligations having priority, together with the total value of all gifts caught by the Act. Pursuant to section 6(2), “realisable property” meant any property held by the defendant and any property held by a person to whom the defendant had made a gift caught by the Act.

The Human Rights Act 1998 (“the 1998 Act”) incorporates the Convention into United Kingdom law. Section 3(1) of the Act provides that so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention rights concerned in any legal proceedings. Section 2 of the Act requires a court determining a question which has arisen in connection with a Convention right to take into account the case-law of this Court.


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Ganna Yudkivska;Vincent A. De Gaetano

The applicant was born in 1929 and lives in Krasnyy Liman. He had a son, V., who lived in Severodonetsk, Lugansk Region.

On the evening of 11 August 2002, V. was sitting in the courtyard of the apartment block in which he lived. At about 7.45 p.m. a man approached V., shot him in the head, and ran away. Several people witnessed the incident. V. died an hour later in hospital.

On the same date the police instituted a criminal investigation into the murder and questioned the eyewitnesses, who stated that the killer had been 25-30 years old and around 175-180 centimetres tall. He had been wearing sunglasses, dark jeans, a red T-shirt and a cap.

On the same date the police examined the crime scene, found the bullet and sent it for forensic examination, and collected fingerprints and biological material.

On 12 August 2002 the police searched V.’s apartment and questioned his wife, T. She did not know who might have wanted to kill V. or for what reason. He never spoke to her about his business or other activities.

On the same date the forensic experts established that V. had been shot with a TT pistol.

On 13 August 2002 the police questioned K.Y., who had previously stolen money from V., and established that he had an alibi for the period of time when V. had been murdered. His fingerprints did not match those found on the crime scene. The police thus concluded that K.Y. was not involved in the murder.

On the same date the police questioned employees of the bar owned by V., who stated that on 10 August 2002 P. – a member of the criminal gang led by a certain Bo. – had been looking for the applicant’s son. P. was 25-30 years old and 180 centimetres tall.

The Severodonetsk Prosecutors’ Office established that P. had been wanted by the police since 1999 as they suspected that he had killed a certain L. with a TT pistol on Bo.’s instructions. The Office concluded that P. might have been involved in V.’s murder and declared P. and Bo. wanted.

On 14 August 2002 the police recognised T. as an injured party to the proceedings. The next day, it identified the telephone numbers from which V. had received calls on the day of his death and proceeded to identify the names and whereabouts of the people who had called him.

On 16 August 2002, V.’s business partner K. was questioned. He stated that Bo. had threatened V. with violence. On the same date a list of Bo.’s acquaintances was drawn up which included P. (see paragraph 11 above), Lu., Kl., Lit., Kr. and R.

In August 2002 the police established that there was no match between the fingerprints of Kl., Lit., Kr. and P. and those found on and near the crime scene. The police searched Lit.’s home and seized his clothes. The clothes were later destroyed, not being needed as evidence.

On 23 and 26 August 2002 the police searched the apartments of V.’s acquaintances, but found no evidence that they might have been involved in his murder.

On 27 August 2002 K. was questioned again. He said that a certain Vo. and Bu. both worked for Bo. After V.’s murder, Bo. had called K. and had threatened that he would be “broken”.

The police searched Vo.’s home, but found no evidence of his involvement in V.’s killing.

On 5 September 2002 the police showed the eyewitnesses several persons suspected of the murder, including Vo. The witnesses did not recognise the man who had shot V. amongst them.

By 2 October 2002 the police had identified and questioned everyone who had called V. on 10 and 11 August 2002. There was no evidence that any of them had been involved in the murder.

Later in October 2002, the police found the TT pistol with which V. had been killed in the possession of a certain Sh. The latter explained that he had bought the gun in September 2002 from A., a boy aged under 18.

The police questioned A., who stated that he had found the gun and some sunglasses on 12 August 2002 near garages in Lisichansk Town. He had subsequently sold the gun to Sh.

The police questioned the owners of the garages and individuals living near the garages. None of them had seen who had left the gun near the garages. There was no evidence that the boy, Sh., or the garage owners had known Bo. or V. or had had a motive for killing V.

On 22 October 2002 the police questioned Lit., who said that he knew nothing about the murder.

During November 2002 the police continued questioning V.’s acquaintances and checking whether their biological material and fingerprints matched those found at the crime scene.

On 14 November 2002 the police collected blood and saliva from Lu. and a certain Buk., whom the eyewitnesses had seen near the crime-scene on 11 August 2002. They also questioned Lu., who stated that on 11 August 2002 he had been in hospital, where many people had seen him. Lu. did not know anything about the murder.

The forensic medical examination established that both Lu. and Buk. might have smoked one of the cigarettes found near the crime scene.

On 22 November 2002 the police organised an identity parade and showed Sh. to the eyewitnesses of the murder. However, they did not identify him as the man who had shot V.

On 25 February 2003 the police suspended the investigation on the grounds that it had proved impossible to establish who had committed the murder.

On 5 August 2003 the investigation was resumed but suspended again on 8 August 2003.

On 27 October 2003 the Lugansk Regional Prosecutor quashed the decision to suspend the investigation, observing that it was necessary to carry out “additional investigative measures”. However, he did not specify what those measures were. The case was sent to the Severodonetsk Prosecutors’ Office for further investigation.

On 27 November 2003 the police arrested Bo. within the framework of the investigation into the murder of L. (see paragraph 12 above). In December 2003 it questioned Bo. in connection with the death of V. He stated that V. had been his friend, and he had known nothing about his killing.

In 2004 the Severodonetsk Prosecutors’ Office examined a number of witnesses who had been questioned earlier and collected information about people who had stayed in hotels in Severodonetsk on 11 and 12 August 2002.

On 29 September 2004 the prosecutors prepared a plan of additional investigative measures to be carried out. In particular, they suspected that V. had been involved in illegal metal trafficking and proposed finding his partners in that business. It was also planned to question Ly. with whom the applicant’s son had had “tense relations”, and to find and question Lu., Li. and R.

On an unspecified date the prosecutors questioned Ly. and K. and found no evidence that they had been involved in V.’s murder. K. and several other of V.’s acquaintances who were questioned by the police denied that the applicant’s son had been involved in any illegal business, including metal trafficking.

On 25 May 2005 the Severodonetsk Prosecutors’ Office suspended the investigation, stating that despite all the measures taken it had proved impossible to find V.’s killer.

On 2 August 2005 the police arrested P. within the framework of investigation into the death of L. (see paragraphs 11 and 12 above).

On 12 August 2005 the Severodonetsk Prosecutors’ Office resumed the investigation into the death of V. because it was planned to question P., Li., R. and Bu.

On 2 September 2005 the police compared P.’s fingerprints to those collected at the crime scene and found that they did not match.

On 15 October 2005 it showed P.’s photo to the eyewitnesses of V.’s killing. They were unable to say whether it was P. who had shot V. because the murder had occurred a long time before.

The Severodonetsk Prosecutors’ Office informed the police that since July 2005 a certain F. had been wanted for killing H. with a TT pistol in the Lugansk Region. The prosecutors instructed the police to check whether F. could have been involved in V.’s murder. The police informed the prosecutors that it would look into F.’s involvement in the killing after establishing his whereabouts.

On 27 October 2005 the Severodonetsk Prosecutors’ Office instructed the Lisichansk Prosecutors’ Office to find and question Kl., R., Kr., and Li.

On 3 November 2005 the Severodonetsk Police questioned P., who stated that he had been living in Moldova in 2000-2003 and had not been involved in V.’s murder.

On 13 November 2005 the Lisichansk Police stated that R. and Li. had not been found at their permanent places of residence.

In November 2005 the Lisichansk Police questioned Kl., who stated that he did not know V. or anything about his murder. He had heard about Bo., but had not known him personally.

On 15 November 2005 the Lisichansk Police informed the Severodonetsk Police that it could not question Li. and R. because their whereabouts were unknown. Kr. could not be questioned because he was in prison. No further steps were taken to find and question Li., R., and Kr.

On 22 December 2005 the police questioned Bo., who said that V. had been his friend and denied that he was involved in the murder.

On 8 August 2006 the Severodonetsk Prosecutors’ Office suspended the investigation but resumed it on 19 July 2007 and transferred the case to the Severodonetsk Police.

On 21 August 2007 the Lugansk Regional Police Directorate noted that not all the necessary measures had been taken in order to investigate V.’s murder and ordered that the investigation be accelerated. The Severodonetsk Police were ordered to: i) show photos of F. to the eyewitnesses; ii) search the homes of R., Lu. and Li.; iii) investigate whether Sh. might have been involved in V.’s murder; iv) continue to search for persons who might have been involved in the murder.

On 2 June 2008 the Severodonetsk Police suspended the investigation, stating that it had proved impossible to find V.’s killer. On 1 September 2008 the proceedings were resumed but were suspended once again on 30 September 2008.

On 29 May 2009 the Lugansk Regional Prosecutor’s Office quashed the decision of 30 September 2008, stating that not all the necessary measures had been taken in order to investigate the murder. The case was submitted to the Severodonetsk Prosecutors’ Office for further investigation.

On 10 September 2009 the Severodonetsk Prosecutors’ Office suspended the investigation stating that it had proved impossible to identify the killer.

On 27 January 2010 the higher prosecutors quashed that decision, and ordered the Severodonetsk Prosecutors’ Office to carry out further investigative measures.

On 11 February 2010 the Severodonetsk Prosecutors’ Office gave instructions to find and question V.’s parents and wife.

On 3 March 2010 the police questioned the applicant, who stated that he did not know who had killed his son.

On 15 March 2010 the prosecutors suspended the investigation, stating that it had proved impossible to find the killer of the applicant’s son. The applicant was informed on 23 March 2010.

On unspecified dates the applicant asked the authorities to inform him about the progress of the investigation. He received the following replies.

On 9 December 2002 the Severodonetsk Prosecutor’s Office informed him that the police had found and examined the crime weapon and were looking for Bo.’s acquaintances. On 26 December 2003 the prosecutors informed the applicant that the police had questioned Bo. in connection with V.’s murder. On 25 February 2005 the prosecutors informed the applicant that they were looking for Bo.’s acquaintances.