Remainder inadmissible (Article 35-3-a - Manifestly ill-founded;Ratione materiae);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev

The applicants were born in 1964, 1935, 1963, 1965 and 1963 respectively.

The status of Churches and religious societies is governed mainly by Articles 137 to 141 (known as the “Church Articles” – Kirchenartikel) of the Weimar Constitution of 11 August 1919 (Weimarer Reichsverfassung), as incorporated into the Basic Law by Article 140 of that Law. A couple of Churches and religious societies, including the Catholic Church (about 23.7 million members) and the Protestant Church of Germany (about 22.2 million members), commonly known as the two “big Churches” (Grosskirchen), have the status of publiclaw entities. Other religious denominations have legal capacity under civil law.

As regards their financing, churches and religious societies with the status of public-law entities are entitled to levy a church tax, which accounts for a significant portion of their total budget. The churches decide independently whether to levy a tax and what its rate should be. The rate of church tax has been over many years either 8% or 9% of the tax on an individual’s income and, in most German Länder, is collected by the State tax authorities on behalf of churches and religious societies, which in return pay 3% to 5% of their tax revenue to the State.

The church tax is guaranteed by Article 140 of the Basic Law read in conjunction with Article 137 § 6 of the Weimar Constitution (see paragraph 49 below). Only members of a particular religious denomination authorised to levy the tax are obliged to pay it. Any church member who does not want to pay church tax can leave that church by declaration towards the authorities.

If spouses are members of different churches entitled to levy taxes (konfessionsverschiedene Ehe) and if they have opted for a joint income tax assessment (gemeinsame steuerliche Veranlagung), both churches levy the tax on the spouses in the form of an additional levy on the income tax of both spouses. The amount of each spouse’s church tax is calculated on the basis of half of the declared income tax.

In marriages where only one spouse belongs to a church entitled to levy taxes (glaubensverschiedene Ehe), the church entitled to the tax levies it in accordance with that person’s tax assessment. Churches calculate the tax on the basis of the income tax attributable to the spouse liable to pay tax rather than on the basis of that spouse’s share of the total income. According to the Federal Constitutional Court’s settled case-law, if the spouse belonging to a church has no income in terms of the regulations of the Income Tax Code, the church tax cannot be levied (see 56 paragraph below). In that case, in some German Länder (inter alia, BadenWürttemberg, Bavaria and Thuringia), the church entitled to levy taxes charges its members a special “church fee” (besonderes Kirchgeld). Although called a fee, the levy is, however, treated legally as a tax. The church fee amounts to about one-third of the relevant church tax.

Churches only levy the special church fee if spouses decide on a joint income tax assessment. The special church fee is not levied if spouses make separate tax declarations (getrennte Veranlagung). It is important to note that in case of a joint income tax assessment the spouses benefit from a special calculation method for the income tax (the so-called “incomesplitting”, “Splitting-Verfahren”) and furthermore from the progressive effect (Steuerprogression) of the German tax system, which generally leads to a lower tax burden.

If spouses decide on a joint income tax assessment, they submit a tax declaration (Steuererklärung). In most of the German Länder (except of the Land of Bavaria), in their tax calculation procedure (Steuererhebungverfahren) the tax authorities set the special church fee according to the calculation regulations of each church. The basis for calculating the special church fee is the church member’s living expenses (Lebensführungsaufwand), which are calculated on the basis of the spouses’ joint income. The special church fee is only levied on the spouse who is a church member. The remaining tax liability is applied to both spouses.

If a tax authority’s calculation on income tax leads to a tax reimbursement for the spouse not being a member of a church and who is liable to pay income tax, only that spouse will be credited with it. At the same time, the special church fee levied on one spouse can be offset against any tax reimbursement due to the other spouse. If the calculation of the income tax leads to a demand to pay more tax, offsetting cannot take place.

Either spouse can file an objection (Einspruch) against that part of the tax bill which applies to them. If the special church fee has been offset against a tax reimbursement due to the spouse who is not a member of a church that spouse can apply for a settlement notice (Abrechnungsbescheid) in accordance with Article 218 of the Fiscal Code (Abgabenordnung, see paragraph 51 below) and thus have the possibility to be repaid the offset amount.

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

The first applicant lives in Heidelberg, in the Land of BadenWürttemberg. He is married. His wife is member of the Protestant Church, which is authorised to levy church taxes. In 2005 the first applicant left his church and was no longer obliged to pay church taxes.

For the tax assessment period of 2008 the spouses opted for a joint tax assessment.

Their 2008 tax bill, dated 22 April 2010, included a special church fee for the first applicant’s wife of 2,220 euros (EUR). As the spouses were jointly liable for income tax and the applicant’s wife’s income was below the minimum taxable amount, the wife’s special church fee was calculated as a proportion of her living expenses, which in turn were calculated on the basis of the spouses’ joint income (see paragraphs 12-14 above).

The tax bill applied to both the first applicant and his wife. Page one showed the authority’s tax calculation (Ergebnis des Steuererhebungsverfahrens) in a table, with one column for income tax (Einkommensteuer), one for solidarity tax (Solidaritätszuschlag) and one headed “Protestant Church tax, wife” (Kirchensteuer evangelisch Ehefrau). The third column showed the amount of EUR 2,220. The table further showed that the first applicant had a tax reimbursement claim of EUR 3,423.00, which had been offset against the church fee of EUR 2,220 of his wife. It finished with a credit for the first applicant of EUR 1,203.00.

Pages two to four of the tax bill contained a detailed assessment of the taxable annual income of the first applicant and his wife. The document then had explanations of the items. Line 40, out of 114 lines of explanations altogether, stated as follows:

“Only the wife is liable for church tax.”

Following the explanations, the tax bill provided information on possible legal remedies. As regards the special church fee, it stated as follows:

“An objection can be raised to the setting of the church tax and to the fixing of advance payment of church tax. ... An objection can be filed by the person on whom the church tax has been levied” (“Gegen die Kirchensteuerfestsetzung und die Festsetzung der Kirchensteuervorauszahlung ist der Einspruch gegeben. ... Zur Einlegung des Einspruches ist derjenige befugt, gegen den sich die Kirchensteuerfestsetzung richtet.”).

The first applicant filed an objection against the tax bill. On 17 December 2010 the tax office dismissed the objection, referring to the Federal Constitutional Court’s decision of 28 October 2010, fully endorsing its reasoning (see paragraph 32 below).

The second applicant lives in Sulzbach-Rosenberg in the German Land of Bavaria.

The second applicant is a member of the Protestant Church. In 2005 he had an annual income of EUR 10,144. His wife, who was not member of a church, had income of EUR 162,522. In 2005, the second applicant and his wife were jointly liable for annual income tax.

On 7 February 2007 the competent tax office charged the second applicant a special church fee of EUR 1,500. The fee was calculated on the basis of his living expenses, which in turn were calculated on the basis of his and his wife’s income (see paragraphs 12-14 above).

The second applicant filed an objection to the decision. On 12 December 2007 the tax office dismissed the objection, relying on the Federal Constitutional Court’s case-law that has been settled since 1965 (see paragraphs 56-58 below).

The second applicant lodged an action with the Nuremberg Tax Court, asserting a violation of his basic rights.

On 18 June 2009 the Tax Court dismissed the action. It argued that the special church fee had not violated the second applicant’s right to equality or his right to freedom of religion or freedom of action and relied on the Federal Constitutional Court’s settled case-law. It refused leave to appeal.

On 29 January 2010 the Federal Tax Court dismissed an appeal by the second applicant against the decision refusing him leave to appeal and endorsed the Nuremberg Tax Court’s reasoning.

On 14 April 2010 the second applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that he had no income and therefore could not pay the special church fee on his own because it had been calculated on the basis of both spouses’ income. As a consequence, the freedom of religion of both spouses had been violated and spouses in their kind of marriage had been discriminated against when compared with other kinds of marriage. The second applicant argued that he could only remain a member of his religious community if his spouse was willing to pay his special church fee, otherwise he would have to sue her for maintenance.

On 28 October 2010, the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint (file no. 2 BvR 816/10) after joining it, inter alia, with those of the third, fourth and fifth applicants. It considered that the constitutional complaint had not touched on any constitutional questions which needed to be decided as the relevant questions had been settled in a judgment delivered on 14 December 1965 (file no. 1 BvR 606/60, see paragraph 57 below). That judgment was still applicable and there was no doubt that the calculation of a person’s living expenses on the basis of the spouses’ income was in conformity with constitutional law.

The third and fourth applicants are a married couple who live in Gera in the German Land of Thuringia. The third applicant is a member of the Protestant Church and had the higher income of the two. The fourth applicant is not a member of a church. In 2004 the third applicant’s income amounted to EUR 53,511 while the fourth applicant’s income was EUR 11,720. In 2005 the sums were EUR 55,033 and EUR 4,928 respectively, while in 2006 they were EUR 54,996 and EUR 12,640.

On 29 August 2005, 5 February 2006 and 26 June 2008 the competent tax office levied church tax on the third applicant for the years 2004 to 2006. As the applicants had opted for a joint tax assessment, the third applicant’s church tax was calculated with his income tax as a proportion of the income tax attributable to him, rather than in proportion to his share of the spouses’ total income (see paragraph 12 above).

On 23 June 2008 the competent tax office dismissed an objection by the third and fourth applicants against the church tax calculation.

The two applicants lodged an action with the Gera Tax Court, asserting a violation of their basic rights.

On 31 March 2009 the Tax Court dismissed the action, arguing that the calculation had not violated their right to equality or freedom of religion. The court stressed that the German tax authorities had a wide margin of appreciation regarding tax regulations. The fact therefore that the third applicant’s church calculated its church tax on the base of a percentage of his income tax rather than on a percentage of income raised no doubts as to its legitimacy. The tax court refused leave to appeal.

On 8 May 2009 the third and fourth applicants appealed against the decision refusing them leave to appeal, alleging, inter alia, a violation of their freedom of religion. They argued that in spite of the fourth applicant’s decision not to be member of a religious community, the tax authorities had taken her income into account when calculating her husband’s church tax.

On 16 November 2009 the Federal Tax Court declared the applicants’ appeal inadmissible for lack of sufficient reasoning.

On 21 January 2010 the applicants lodged a constitutional complaint with the Federal Constitutional Court, alleging a violation of their right to equality and freedom of religion.

On 28 October 2010, the Federal Constitutional Court declined to consider the third and fourth applicants’ constitutional complaint after joining it, inter alia, with those of the second and fifth applicants (file no. 2 BvR 2715/09, see paragraph 32 above).

The fifth applicant lives in Nuremberg, situated in the German Land of Bavaria. In 2004 and 2005 the fifth applicant, who had no income, was a member of the Protestant Church of the German Land of Bavaria. Her husband was not member of a church. The spouses opted for a joint income tax assessment for 2004 and 2005.

The competent tax authority levied no church tax on the fifth applicant as she had no income, but on 2 February 2007 applied a special church fee of EUR 3,600 for 2005 and on 27 June 2007 it charged her EUR 1,860 for 2004. The amounts were calculated on the basis of the fifth applicant’s living expenses, which were calculated on the basis of her and her husband’s joint income.

The fifth applicant raised an objection against those decisions and applied for a suspension of enforcement. On 23 October 2008 the tax office dismissed her objection, arguing that there had been no violation of the right to equality because there had been an objective and reasonable justification for the difference in treatment.

The fifth applicant lodged an action with the Nuremberg Tax Court, again applying to have enforcement suspended and asserting a violation of her right to equality.

On 15 June 2009 the Tax Court dismissed the request for suspension of enforcement, arguing that the special church fee did not violate the fifth applicant’s right to equality in view of the Federal Constitutional Court’s settled case-law.

On 22 July 2009 the fifth applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging, inter alia, a violation of her right to freedom of religion. She argued that she could not remain in her religious community if her husband, who was not a church member, did not agree to pay her special church fee.

On 28 October 2010, the Federal Constitutional Court declined to consider the fifth applicant’s constitutional complaint after joining it, inter alia, with those of the second, third and fourth applicants (file no. 2 BvR 1689/09, see paragraph 32 above).


KONGRESNA NARODNA STRANKA AND OTHERS v. BOSNIA AND HERZEGOVINA

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicants are the National Congress Party for the Protection of the Human Rights of War Veterans and Citizens, and of Justice and Morals in Bosnia and Herzegovina (Kongresna narodna stranka zaštite ljudskih prava boraca i građana, pravde i morala Bosne i Hercegovine; “the Party“) and 45 citizens of Bosnia and Herzegovina (“the applicants“). A list of the applicants is set out in the appendix.

The applicants were granted leave by the President to be represented by the president of the Party and one of the applicants, Mr. E. Imširović (Rule 36 § 2 of the Rules of Court). The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

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

The Party was established on 25 December 1997 under the laws of Bosnia and Herzegovina. The applicants are members of the Party.

The Party participated in the 2006 elections for the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina. Almost all of its candidates declared themselves Bosniacs.

On 30 June 2010 the Party’s registration for the 2010 elections was refused because it was submitted out of time. The Party failed to lodge an appeal against that decision.

On 11 June 2014 the Party’s registration for the 2014 elections was refused for failure to comply with the procedural requirements (a failure to pay a required deposit and to submit a list of signatures in support of its candidacy). On 18 June 2014 that decision was upheld by the Court of Bosnia and Herzegovina (“the State Court”).

The applicants claim that they do not declare affiliation with any of the “constituent peoples” (namely, Bosniacs, Croats and Serbs). They describe themselves as “a person from Tuzla”, “a Muslim”, “a Catholic”, “a person from Sarajevo”, “a person from Krajina”, “a person from Herzegovina”, “a refugee”, “a war veteran” and the like; while three of them describe themselves as belonging to the Roma and Albanian ethnic minorities respectively.

The relevant domestic law and practice and international documents were outlined in Sejdić and Finci v. Bosnia and Herzegovina ([GC], nos. 27996/06 and 34836/06, ECHR 2009) and Zornić v. Bosnia and Herzegovina (no. 3681/06, 15 July 2014). Notably, the Constitution of Bosnia and Herzegovina makes a distinction between members of “constituent peoples” (persons who declare affiliation with Bosniacs, Croats and Serbs) and “others” (members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage, mixed parenthood or other reasons).

In the former Socialist Federal Republic of Yugoslavia, a person’s ethnic affiliation was decided solely by that person, through a system of self-classification. Thus, no objective criteria such as knowledge of a certain language or belonging to a specific religion existed. Moreover, there was no requirement of acceptance by other members of the ethnic group in question. Since the Constitution contains no provisions regarding the determination of one’s ethnicity it appears that it was assumed that the traditional self-classification would suffice.

In accordance with the 1995 Constitution (Articles IV § 1 and V), only persons declaring affiliation with a “constituent people” are entitled to stand for election to the House of Peoples of the Parliamentary Assembly and the Presidency of Bosnia and Herzegovina.


Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Legal assistance of his own choosing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of counterfeit software under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). The operations led to their criminal conviction for distribution of counterfeit software.

On 6 December 2007 an undercover police officer V called the applicant on the number advertised by him on a job-advertisement site on the Internet and asked him to perform some computer repairs, including the installation of software. The applicant agreed, bought several compact discs with counterfeit software on them and installed the software on V’s computer for 3,300 roubles (RUB) (about 45 euros (EUR)). The relevant part of the recording of the applicant’s conversation with V in the course of the repairs read as follows:

V: how much will [the installation] cost approximately?

Mr Volkov: I don’t know exactly, [it] depends on the programmes to be installed.

V: [I need] Photoshop, [Windows] XP etc.

Mr Volkov: with Photoshop, it is 200 roubles more.

V: We called other companies; they said it would cost about twenty thousand. Why are the prices so different? ...

Mr Volkov: [other companies] are probably being careful, unlike me, I come instantly. They are probably afraid of getting caught; they may have done it before and run into some inspection.

V: What kind of inspection?

Mr Volkov: [Licensing] inspection, if I installed a licensed programme for you, it would cost a lot.

V: How much does the licensed programme cost?

Mr Volkov: Photoshop is 500 dollars.

V: To install?

Mr Volkov: No, the programme itself. ... if it is done like now, in a semi-legal way, the price is obviously lower ...”

Following the above, the applicant was charged with copyright infringement. The applicant retained a lawyer during the pre-trial proceedings but could no longer afford paying for legal representation in court. He was therefore provided with a legal aid lawyer.

On 3 July 2008 the Golovinskiy District Court of Moscow (District Court) examined the applicant’s case. The applicant testified that he had agreed to help V because he had already performed similar services for his relatives and acquaintances. He also testified that V had asked him to have some programmes installed but did not indicate whether V had specifically asked for unlicensed software. V testified that the police had launched an undercover operation after they had received information incriminating the applicant in the distribution of counterfeit software. The applicant pleaded not guilty to copyright infringement and claimed that the police had incited him to commit the crime. The court found the applicant guilty of copyright infringement and imposed a suspended sentence of one year and three months’ imprisonment with one year’s probation.

The applicant lodged an appeal (кассационная жалоба) asking the appellate court (кассационный суд) to examine the case in his presence. In his appeal, he did not request to have a lawyer appointed for the hearing of his case.

On 6 August 2008 the Golovinskiy District Court of Moscow informed by post and telephone Ms D., the applicant’s lawyer in the proceedings before the District Court, that the hearing of the applicant’s appeal had been scheduled for 20 August 2008. The court’s call log indicated that the applicant had no retainer agreement with Ms D. for representation in the appeal proceedings.

On 20 August 2008 the Moscow City Court dismissed the applicant’s arguments on appeal and upheld his conviction. The applicant was present at the hearing. However, Ms D. did not appear and the applicant did not have any other lawyer to represent him during the appeal hearing. It is not clear whether the applicant requested to have the hearing adjourned or to have replacement counsel appointed.

On 10 December 2008 an undercover police officer M called the number advertised by the applicant in the computer-repairs section of a newspaper and asked him to install several computer programmes. The applicant, who was in financial need at the time, downloaded several unlicensed programmes from the Internet and installed them on M’s computer the next day for RUB 3,000 (about EUR 40). The relevant part of the recording of the applicant’s conversation with M in the course of the repairs read as follows:

M: how much does [this programme] cost?

Mr Adamskiy: I did not buy it.

M: You did not?

Mr Adamskiy: To buy means to go bankrupt.

M: [did you get it] from the Internet? Or some other way?

Mr Adamskiy: Got it through my peers, [it was] cracked ...

M: I don’t really understand this stuff ... If I install it at work, will I get arrested?

Mr Adamskiy: I think it is obvious. I would not let any inspections in while the data is downloading.

M: ...why? What can happen?

Mr Adamskiy: just warning, I personally would not [let anyone inspect].

M: what would happen? ... Do they inspect more often?

Mr Adamskiy: yes ...

M: will we get jailed?

Mr: Adamskiy: No, if it is kept quiet ...”

Following the above, the applicant was charged with copyright infringement. On 28 September 2009 the Timiryazevskiy District Court of Moscow examined the applicant’s case. At the trial, the applicant did not claim that M had asked him to have unlicensed software installed. He also confirmed that he had informed M in the course of the installation that the software had been counterfeit. M testified that the police had received information implicating the applicant in the distribution of counterfeit software and had decided to verify that information. The applicant pleaded guilty to copyright infringement but claimed that the police had incited him to commit the crime. The court convicted the applicant and imposed a suspended sentence of one year and six months’ imprisonment with one year’s probation.

On 16 November 2009 the Moscow City Court upheld the applicant’s conviction and sentence on appeal.


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant, Mr Yuriy Leonidovich Yeremenko, is a Russian national who was born in 1963 and is currently serving a prison sentence in the Republic of Tatarstan. He was represented before the Court by Mr E. Markov, a lawyer practicing in Strasbourg.

The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

On 10 June 2002 the applicant was arrested on suspicion of being the organiser of a criminal group which committed dozens of violent offences, including murders.

On 17 July 2006 the Supreme Court of the Republic of Tatarstan found that the applicant had been the organiser of an established criminal group, and had masterminded and participated in a number of aggravated murders, extortion and money laundering offences. The applicant was sentenced to life imprisonment. The judgment became final on 12 December 2007 when it was upheld on appeal by the Supreme Court of Russia.

In the years preceding his arrest the applicant suffered from a slowly progressing second-stage encephalopathy of mixed etiologies at the stage of decompensation, arterial hypertension, chronic hepatitis with hepatic impairment and cirrhosis, pancreatitis and focal duodenitis. In February 2001 he was certified for a period of one year as having a third-degree disability.

Upon admission to a temporary detention facility in June 2002 the applicant underwent a general medical check-up which included the measurement of his height and weight, recording of his blood pressure and body temperature, a chest X-ray examination, and tests for HIV and syphilis. A prison doctor noted the applicant’s assertion that he was suffering from hepatitis C and prescribed him hepatoprotectors to support the liver.

Several months later the applicant complained of pain in the right hypochondrium. The prison doctor diagnosed him with hepatic cirrhosis. Hepatoprotectors, antispasmodic medications, vitamins and dietary nutrition were prescribed and provided.

Over the following two years the applicant was transferred between various detention facilities and each time was subjected to a thorough medical examination. It appears from the submitted documents that he was continuously provided with a special dietary regime and hepatoprotectors. The medical records show that he was examined and treated by prison doctors for an acute respiratory disease at the beginning of 2003, for headaches at the beginning of 2004, and haemorrhoids later in 2004.

In the autumn of 2005 the applicant was seen by a neurologist from a prison hospital and an infectious diseases specialist from a civilian hospital. The neurologist concluded that the applicant had encephalopathy of mixed etiologies and vegetative-vascular dystonia as well as a neuropathy of the right medium nerve. Nootropic medication and vitamins were prescribed. The infectious diseases specialist confirmed the presence of hepatitis and recommended a combined treatment involving cholagogue drugs and injections with both antiviral and hepatoprotective action.

At the beginning of 2006 the applicant complained to the prison doctor of discomfort in the abdominal area. The doctor found no signs of acute hepatitis and prescribed three weeks of treatment with hepatoprotectors and a special diet. In 2007 the applicant underwent regular check-ups performed by an infectious diseases specialist from a civilian hospital. On the doctor’s recommendation he was given antiviral drugs and vitamins. In 2008 the applicant was given a course of nootropics for his brain vascular disorder. According to the medical records, the state of the applicant’s health did not deteriorate over those years.

In 2009 the applicant was successfully treated for a cold, cystitis, orchitis and a perineum boil.

The authorities continued treating the applicant for hepatitis and cirrhosis of the liver. They also addressed his neurological problems and secondary medical conditions, such as seasonal colds. The applicant underwent a thorough medical examination performed by a medical panel comprising a number of specialists. In the report of 8 July 2010 the doctors concluded that the applicant was suffering from chronic hepatitis at a latent stage, first-stage cirrhosis of the liver and a second-stage encephalopathy of mixed etiologies. They also concluded that these primary chronic ailments had not progressed during the period of the applicant’s detention. In late 2010 the applicant was diagnosed with developed chronic prostatitis and acute cystitis. The conditions were brought fully under control with a comprehensive drug regimen.

In 2011 the applicant underwent a number of medical tests and received treatment for hypertension, which seemed to have become a major health issue for him at the time.

On 10 February 2012 the applicant was seen by a surgeon in connection with haemorrhoidal bleeding. A drug regimen was prescribed, but it did not bring the expected results. Two weeks later the doctor recommended inpatient treatment.

The applicant was admitted to the surgical department of the Regional Hospital in Solikamsk. After a number of tests, including a sigmoidoscopy, the doctors established that the applicant had chronic internal haemorrhoids of the first stage. No surgery was required.

On 30 August 2012 he underwent a medical examination by a panel of doctors with a view to establishing whether he should apply for renewed certification as a disabled person. The commission gave a negative answer as his condition did not involve any functional pathology of his organs and his vital activity was not restricted.

On 3 September 2012 the applicant was discharged from hospital.

In 2013 most of the applicant’s medical complaints concerned hypertension which, according to medical reports, had progressed to the second stage. His blood pressure was regularly monitored and he was given hypotensive drugs. The authorities also performed several tests, including an electrocardiogram examination in October 2013. That examination revealed a left bundle branch block. According to his medical records, the applicant continued to receive treatment for his heart, brain and liver conditions.

The applicant neither made any complaint about nor provided any description of the treatment received in the period after 2013.

The relevant provisions of the domestic and international law on general health care of detainees are set out in the judgment of Vasyukov v. Russia (no. 2974/05, §§ 36-50, 5 April 2011).


CASE OF BIBLICAL CENTRE OF THE CHUVASH REPUBLIC v. RUSSIA

Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion) read in the light of Article 11 - (Art. 11) Freedom of assembly and association (Article 11-1 - Freedom of association);Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

On 21 November 1991 the Chuvash Christian mission “Voice of Truth” was registered as a religious organisation under the RSFSR Religions Act of 25 October 1990. It belonged to the Pentecostal movement of the Christian faith.

On 24 November 1998, in connection with the enactment of a new Religions Act of 26 September 1997, the organisation was renamed the Biblical Centre of the Evangelical (Pentecostal) Christians of the Chuvash Republic (Библейский Центр Чувашской Республики Христиан веры евангельской (пятидесятников)).

Under paragraph 2.2 of the organisation’s articles of association, one of the activities of the Biblical Centre was the establishment of educational institutions for training clergymen, organising conferences and seminars and lecturing. To that end the Biblical Centre had the right to found institutions of professional religious education, spiritual educational institutions, including Sunday schools for youth and children, and to establish non-commercial organisations pursuing educational aims (paragraph 2.3 of the articles).

On 20 January 1996 the Biblical Centre founded the Middle Volga Biblical College and a Sunday school, which were not registered as legal entities.

The Sunday school did not have any organised structure as such. It was held once a week as a means of keeping the children of parishioners occupied while the adults attended the religious service. Parents took turns to spend time with the children, to read and discuss the Bible with them. The school was free of charge and did not employ any staff.

The Biblical College recruited students from religious organisations belonging into the same Pentecostal denomination but located in different regions of Russia. Students were trained as evangelical attendants, pastors, preachers, missionaries, Sunday school teachers, preceptors, biblical signers for the deaf, and youth leaders. The subjects taught at the College included theology (dogma), exegesis (interpretation of religious texts), homiletics (the study of preparation and delivery of sermons), apologetics (defence of the Christian faith), history of Christianity, basics of pedagogy, theory of music, memorisation, and others. Upon completion of a training course, students obtained a document, referred to as a “diploma”, which certified training in particular subjects. Education at the College was free of charge.

In April and May 2007 the Novocheboksarsk town prosecutor, together with the Novocheboksarsk Fire Inspection Service and the Consumer Protection Service, conducted an inspection of the applicant organisation’s premises with the declared aim of verifying its compliance with the requirements of the legislation on education, freedom of conscience and religious associations. The grounds for the inspection were not revealed.

On 2 May 2007 the town prosecutor requested the director of the Biblical Centre to provide, within two days, detailed information about the activities of the Sunday school and Biblical College, including a list of subjects taught and the names of the teachers and all students, both past and present.

On 10 May 2007 the State Fire Inspection Service issued a formal note establishing the following violations of fire safety regulations:

(a) the windows of the premises were equipped with solid metal bars;

(b) an automatic fire alarm with smoke detectors was not installed;

(c) fire-safety signs were absent.

By letter of 11 May 2007, the Consumer Protection Service reported the following violations to the town prosecutor:

(a) students were not provided with comfortable work stations adapted to their height, sight and hearing; rudimentary benches were used instead;

(b) walls were covered with paper-based wallpaper which could not be wiped clean;

(c) linoleum on the floor did not offer sufficient protection against the cold;

(d) windows were decorated with flowers in pots;

(e) doors in the toilets for children of both sexes did not have locks; there was no personal-hygiene room for girls;

(f) the staff did not have a separate toilet;

(g) descriptions of course content, methodical literature and timetables did not refer to hygienic requirements;

(h) the delivery and composition of students’ meals had not been agreed upon with the Consumer Protection Service.

All the violations were established by reference to the State-approved hygienic standards binding on institutions of public education and vocational training.

On 28 May 2007 the town prosecutor instituted administrative proceedings against the director of the Biblical Centre for allowing the Centre to conduct educational activities without authorisation (a licence), an offence under Article 19.20 § 1 of the Code of Administrative Offences. On 10 July 2007 the Justice of the Peace of the 4th Court Circuit of Novocheboksarsk heard the charge and found the director guilty of that offence. The Justice found, in particular, as follows:

“The Novocheboksarsk prosecutor’s office inspected [the Centre] and discovered that the educational process [there] follows a specific educational programme and class schedule and is carried out by staff teachers in exchange for pay. Students’ knowledge of subjects is evaluated on a five-point scale or with pass-fail marks; upon completion of a course students obtain a diploma ... These elements indicate that the Biblical Centre engages in educational activities which are not listed in its articles of association ...

The Education Act (law no. 3266-I of 10 July 1992) defines education as the purposeful process of upbringing and learning in the interests of the individual, society and the State, accompanied by the confirmation of achievement of the educational levels established by the State ... Pursuant to section 17 § 1 of the Education Act, an educational institution acquires the right to conduct educational activities upon receipt of authorisation (a licence)... As the materials in the case file show, the Centre has no such licence ...”

The Justice rejected the director’s argument that the activities of the Centre fell outside the scope of the definition contained in the Education Act, holding that the definition “may not be used to describe educational activities that are carried out in breach of the Education Act”. The director was sentenced to pay a fine of 10,000 Russian roubles.

In his statement of appeal, the director pointed out that the Education Act established specific educational levels (basic and intermediate general education, basic, intermediate and higher professional education, and post-graduate professional education), none of which were mentioned in the Centre’s programmes or diplomas. The religious instruction and guidance of followers fell outside the scope of the Education Act and were not subject to any licensing requirements.

On 31 July 2007 the Novocheboksarsk Town Court upheld the Justice’s decision in a summary fashion, without addressing the director’s arguments in detail.

In concurrent proceedings, on 10 July 2007 the same Town Court found the applicant organisation liable for the administrative offence of violating sanitary rules and hygienic requirements in respect of all the points identified by the State Fire Inspection Service and the Consumer Protection Service. The Town Court issued a warning to the applicant organisation.

On 2 August 2007 the Supreme Court of the Chuvash Republic summarily rejected the applicant organisation’s statement of appeal, in which it maintained that the sanitary standards binding on State educational institutions were not applicable to the Sunday school and Biblical college.

On 28 May 2007 the Novocheboksarsk town prosecutor filed a claim for dissolution of the Biblical Centre. He rested his claim on the findings of the two inspections, as described above, and the allegation of illegality of the educational activities conducted at the Biblical College and Sunday school. In his submission, such activities “violated the right of an indeterminate group of people to receive education in conditions that guarantee security, improvement of health and counter the negative influence of unhealthy factors”.

In his comments on the prosecutor’s application, the director of the Biblical Centre submitted that the applicant organisation merely dispensed religious instruction to its followers and did not provide formal education. He invited the court to reject the application and pointed out that the court could issue a separate decision ordering the Biblical Centre to bring its activities into conformity with the requirements of the law. He indicated that, in response to the prosecutor’s claims, the Centre had promptly adopted the Rules on lecture- and seminar-based education, as a result of which it had eliminated the use of ambiguous terminology such as “college”, “diploma”, and others.

The town prosecutor participated in the hearing on 3 August 2007. Responding to questions from the director of the Biblical Centre, he admitted that the initial inspection had purported to uncover elements of extremism in the Centre’s activities and that he had filed a claim for dissolution because “it was within his competence”.

A representative of the Federal Registration Service, the entity in charge of the registration of religious organisations, took part in the proceedings as a third party. She stated that there were 270 registered religious organisations in the Chuvash Republic. When asked by counsel whether those organisations had licences for their Sunday schools, she replied that the majority of them were Orthodox parishes which were entitled to carry out such activities under the provisions of the “standard Orthodox statute”.

On 3 August 2007 the Supreme Court ordered the dissolution of the applicant organisation and its removal from the State Register of Legal Entities. Having examined documents from the archive of the Middle Volga Biblical College, it acknowledged that some of the College’s activities had been one-time seminars and conferences to which the licensing requirement did not apply. However, the organisational chart of the Biblical College, the class schedule, work contracts with teachers, lists of students and diplomas issued to them were held by the Supreme Court to be evidence of ongoing educational activities in the College for which it should have obtained authorisation (a licence). Neither the Biblical Centre nor the Biblical College were registered as an educational institution, nor had they obtained a licence for conducting educational activities. Accordingly, they had acted in breach of the requirements of section 33 of the Education Act and section 19 of the Religions Act.

With regard to the Sunday school, the Supreme Court found that the contents and nature of religious education dispensed to children may be determined by the religious organisation providing it. Nevertheless, the material conditions of religious education should be compatible with sanitary and hygienic standards and other requirements applicable to educational institutions. The Supreme Court held that the above-mentioned judgments of 10 and 31 July 2007, which had acquired the force of res judicata, were sufficient proof of both the fact that the Biblical College dispensed education without the required licence, and the fact that the conditions in which students were educated at the Sunday school and the Biblical College fell short of the sanitary standards.

The Supreme Court held that the educational activities conducted by the applicant organisation without a licence amounted to a “gross and repeated violation” of the requirements of the Education Act and Religions Act and ordered its dissolution on the basis of Article 61 § 2 of the Civil Code and section 14 § 1 of the Religions Act.

On 16 October 2007 the Supreme Court of the Russian Federation, sitting as a three-judge panel composed of Judges Kn. (President), P. and B., dismissed the applicant organisation’s appeal against the dissolution decision, rejecting its arguments in a summary fashion.


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Ms Valentina Nikanorovna Velikoda, is a Ukrainian national, who was born in 1955 and lives in Yenakiyevo, Ukraine.

The applicant participated in the clean-up operations following the Chernobyl disaster and has special status as “1st category liquidator” (ліквідатор першої категорії). She also has a third-degree disability (третя група інвалідності).

The applicant instituted court proceedings to claim pension payments as from 1 December 2008 in the amount of six times the minimum old-age pension and an additional health-damage pension of 50% of the minimum old-age pension, under sections 50 and 54 of the Chernobyl Victims (Status) Act (“Про статус і соціальний захист громадян, які постраждали внаслідок Чорнобильської катастрофи”).

On 19 May 2009 the Yenakiyivskyy Town Court found that the applicant, in accordance with section 49 of the Chernobyl Victims (Status) Act, was entitled to a State pension and to an additional health-damage pension. In accordance with sections 50 and 54 of the Act, from 22 May 2008 the applicant was entitled to a pension of six times the minimum old-age pension and should also receive an additional health-damage pension of 50% of the minimum old-age pension. The applicant had requested the recalculation of her pension on 26 November 2008, so her claims in this respect should have been granted for the period between 1 December 2008 and 1 January 2009. On 1 January 2009 the relevant provisions were changed, so the applicant’s claims were rejected.

On 19 January 2010 the Donetsk Administrative Court of Appeal amended the decision of 19 May 2009 and granted the applicant’s claims in full as of 1 December 2008.

On 14 June 2011 amendments were introduced to the State Budget Act 2011, in accordance with which the amount of the pension under sections 50 and 54 of the Chernobyl Victims (Status) Act was to be determined by the Cabinet of Ministers. The Chernobyl Victims (Status) Act itself was not amended.

Pursuant to the amendments in the State Budget Act 2011, on 6 July 2011 the Cabinet of Ministers adopted decision no. 745, which entered into force on 23 July 2011.

By letter of 25 January 2012 the Pension Fund of Ukraine informed the applicant that as of 1 January 2012 the amount of her pension would be 1,849.50 Ukrainian hryvnas (UAH) (around 176 euros (EUR)). This amount comprised a minimum pension (UAH 822) and various additional payments. The applicant instituted court proceedings, complaining that as of 1 November 2011 her pension had been reduced despite the court decision of 19 January 2010.

On 20 February 2012 the Yenakiyivskyy Town Court rejected the applicant’s claim. It held that as of 22 July 2011 the amounts of the payments under sections 50 and 54 of the Chernobyl Victims (Status) Act were to be established by the Cabinet of Ministers of Ukraine. On 26 December 2011 the Constitutional Court of Ukraine had found these changes to be constitutional. The Cabinet of Ministers had adopted the relevant decision no. 745 on 6 July 2011 and it had entered into force on 23 July 2011. Therefore, from 23 July 2011 the applicant’s pension had to be calculated in accordance with decision no. 745.

On 4 April and 3 May 2012 the Donetsk Administrative Court of Appeal and the Higher Administrative Court of Ukraine, respectively, upheld that decision.

By the Law of 14 June 2011 the following changes were introduced to the State Budget Act, 2011:

“To establish that in 2011 the provisions of sections ...50, 54... of the Chernobyl Victims Act, Children of War Social Protection Act and Military Personnel Pensions Act ... are implemented in the amounts established by the Cabinet of Ministers of Ukraine in accordance with available financial resources in the Pension Fund Budget for 2011.”

The State Budget Act for 2012 has similar provisions.

On 6 July 2011, in its decision no. 745, the Cabinet of Ministers fixed the amounts concerned. This decision was in force between 23 July 2011 and 1 January 2012. On 23 November 2011 the Cabinet of Ministers adopted further decision no. 1210 on the same matter.

The amount of the minimum pension between 1 December 2008 and 1 November 2011 was raised from UAH 498 to UAH 784 (from around EUR 51 to EUR 80).

The relevant extracts from this decision read as follows:

“1. ... members of Parliament addressed the Constitutional Court of Ukraine with a request to declare unconstitutional ... provisions of the State Budget Act, 2011.

According to point 4 of Chapter VII “Closing Provisions” of the 2011 Act, the norms and provisions of sections 39, 50, 51, 52 and 54 of the Chernobyl Victims (Status) Act, section 6 of the Children of War Social Protection Act, and sections 14, 22, 37 and part 3 of section 43 of the Military Personnel Pensions Act are implemented under the conditions and in the amounts determined by the Cabinet of Ministers of Ukraine, in accordance with the available financial resources in the budget of the Pension Fund of Ukraine for 2011.

The Members of Parliament consider that by adopting this Act the Verhovna Rada of Ukraine has given the Cabinet of Ministers of Ukraine the right to establish the modalities and amounts of the social payments provided for by the above laws ..., thereby limiting the citizens’ constitutional right to social protection.

The authors of the request state that the subject matter of the State Budget Act is an exhaustive list of legal matters, provided for by the Constitution of Ukraine and the Budget Code of Ukraine, which excludes the issue or implementation of other legal acts.

2.1 In accordance with part 1 of section 46 of the Constitution of Ukraine citizens have a right to social protection, which includes the right to welfare in the event of total, partial or temporary loss of fitness for work ..., in old age and under other circumstances provided for by law. It is the duty of the State to ensure this constitutional right.

The size of welfare benefits depends on the State’s social and economic possibilities, but they must secure the constitutional right of every person to a decent standard of living for himself and for his family as enshrined in section 48 of the Constitution of Ukraine.

In its decision of 19 June 2001 (case on service record in science) the Constitutional Court of Ukraine pointed out that the amounts of welfare benefits depended on economic factors. The right to a pension, its amount and the amount of separate payments could be related to the financial situation of the State, economic feasibility and social and economic circumstances during different periods of development, as well as to the time of adoption of the relevant legal acts.

Furthermore, in its decision of 8 October 2008 on insurance payments, the Constitutional Court of Ukraine pointed out that the modes and amounts of social services and payments to victims ... were determined by the State based on affordability.

The Constitutional Court of Ukraine, when examining this issue, also took into account international legal provisions. Thus, according to Article 22 of the Universal Declaration of Human Rights the amounts of social payments and assistance are determined in accordance with the State’s resources. The European Court of Human Rights, in its decision of 9 October 1979 in Airey v. Ireland, considered that social and economic rights are largely dependent on the situation - notably financial - reigning in the State. This conclusion also concerns reductions in welfare benefits, as is noted in the judgment of 12 October 2004 in the case of Kjartan Ásmundsson v. Iceland.

Therefore, one of the main elements in the regulation of relations in the social sphere is the principle of proportionality between the social protection of citizens and the financial situation of the State, as well as guaranteeing the right of everybody to a sufficient standard of living.

Therefore, the social and economic rights provided for by laws are not absolute. The mechanism of implementation of these rights can be changed by the State – in particular because it is impossible to finance them – by way of a redistribution of costs, with the aim of securing the interests of society as a whole. Moreover, these measures can be brought about by the need to prevent or remove a real threat to the economic security of Ukraine, which, according to Article 17 of the Constitution of Ukraine, is the most important function of the State. ... It is unacceptable to introduce legal measures under which the amount of pensions and other social benefits and allowances is lower than the amount indicated in part 3 of Article 46 of the Constitution of Ukraine and insufficient to guarantee a decent standard of living and preserve the beneficiaries’ human dignity, which would be contrary to Article 21 of the Constitution of Ukraine.

Thus, the change of method of calculation of certain types of welfare benefits is constitutionally possible until it reaches the limit when the very essence of the right to social protection is impaired.”


András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant, Mr Goran Šubinski, is a Slovenian and Croatian national who was born in 1971 and is currently serving a prison sentence in Dob pri Mirni. He was represented before the Court by Mr Ž. Klun, a lawyer practising in Ljubljana.

On 14 April 2003 the applicant was arrested and remanded in custody on suspicion of having committed a criminal offence. The investigating judge of the Murska Sobota District Court ordered him to be placed in pre-trial detention in the remand section of Murska Sobota Prison, where he remained until a final decision was delivered in his case on 17 March 2005.

On 12 March 2005 the applicant attempted to escape from detention. In the early hours of the morning, he caused a flood in his cell by damaging the pipe under the sink. Two prison officers came to turn the water off, with one of them setting about repairing the leak and the other standing at the cell door. The applicant sprayed them both with pepper spray, stabbed one of them with a piece of wire from a coat hanger and attempted to push past them and get out of the cell. However, the prison officers managed to restrain him and prevented him from escaping. The prison officer who was stabbed sustained minor injuries.

On 14 March 2005 the Murska Sobota Prison administration informed the Murska Sobota District Court about the applicant’s attempted escape.

On 15 March 2005 the president of the pre-trial panel of the Murska Sobota District Court found the applicant guilty of making an item intended to be used as a weapon in an attack and of having physically attacked a prison officer. The applicant had thereby committed disciplinary breaches referred to in the first and second points of the second paragraph of section 213.c of the Criminal Procedure Act (see paragraph 22 below).

The president of the pre-trial panel punished the applicant by prohibiting his visits and correspondence for a period of two months.

On 17 March 2010 the Murska Sobota District Court found the applicant guilty of attempted escape and of an attempt on the life of the prison officer who was stabbed with the wire. He was convicted of attempted escape and attempted murder and sentenced to nine and a half years’ imprisonment.

At the trial, the applicant objected that the institution of the criminal proceedings had violated the principle of ne bis in idem. However, the court held that the disciplinary sanction that had been imposed on him had not excluded prosecution under the rules of criminal procedure. According to the district Court, the principle of ne bis in idem would only be violated if the provisions concerning a disciplinary breach entirely coincided with the elements of a criminal offence, which was, however, not the case in the applicant’s situation. Namely, the elements of the disciplinary breaches that the applicant had been found to have committed were not entirely equivalent to the elements of the criminal offences of attempted murder and attempted escape which were examined in the criminal proceedings.

The applicant appealed against the judgment, arguing, inter alia, that the criminal trial had amounted to a violation of the ne bis in idem principle.

On 9 December 2010 the Maribor Higher Court granted the applicant’s appeal in so far as it related to the nature and legal classification of the offences he had committed and remitted the case to the district court for reconsideration, instructing the lower court to establish the facts more thoroughly. However, the higher court dismissed the applicant’s complaint of double jeopardy, confirming the view of the lower court that the sanction imposed under the rules of disciplinary procedure did not exclude the prosecution of the applicant on criminal charges. The applicant had not been convicted of a criminal offence in the disciplinary proceedings, but merely of two breaches of disciplinary rules. That meant, therefore, that the matter brought before the criminal court had not yet been resolved.

In the course of the retrial, the applicant asked for a different panel of the Murska Sobota District Court to consider his case because the panel that had delivered the first judgment had already taken a position on his guilt.

On 26 January 2011 a newspaper published an article saying that the applicant would be tried before the same panel as in the previous set of first-instance proceedings because the president of the Murska Sobota District Court had dismissed the applicant’s application for a different one.

On 27 January 2011 the president of the Murska Sobota District Court dismissed the applicant’s application for the retrial to be held before a different panel with the reasoning that there existed no statutory grounds for disqualifying the judges who had participated in the first set of proceedings. The fact that they had already pronounced themselves on the issues concerned did not in itself imply that their impartiality was compromised and that the retrial would not be conducted fairly. The president noted that the Maribor Higher Court had quashed the first-instance judgment owing to a failure to fully establish the facts concerning the applicant’s intent to murder the prison officer he had stabbed in the back, which required additional evidence to clarify the matter. Accordingly, a new evaluation of fresh evidence was to be made in the case. In the president’s opinion, there were no indications that such an evaluation could not be made in a fair and impartial manner by the judges who were already acquainted with the case.

On 14 February 2011 the applicant’s counsel requested an explanation from the president of the Murska Sobota District Court of how it had been possible, in the absence of any press conference, for the newspaper to obtain information about the dismissal of the applicant’s application before a formal decision had been issued.

On 11 March 2011 the president of the Murska Sobota District Court replied to the applicant’s counsel that decisions on parties’ procedural motions were taken by him personally, while the drafts were prepared by the district court’s legal advisers on his instructions. The president further stated that he had interviewed the staff working on the applicant’s case, but had not obtained any relevant information. He had also contacted the journalist who had written the article in question, who had explained that it had been based on his experience and expectations.

On 18 May 2011 the Murska Sobota District Court delivered a new judgment finding the applicant guilty of attempted escape and of stabbing the prison officer in the back with a coat hanger wire in order to facilitate his escape, causing him minor injuries. The applicant was convicted of attempted escape under Article 294 in conjunction with Article 22 of the Criminal Code and of causing minor bodily harm under Article 133 of the Code. He was sentenced to two years and five months’ imprisonment.

The applicant again appealed against the judgment, arguing that the ne bis in idem principle had been violated by the institution of criminal proceedings against him. He also alleged that he had only committed one criminal offence, namely attempted escape under Article 294 of the Criminal Code. In the applicant’s opinion, the infliction of minor bodily harm had been a lesser offence incorporated into the definition of “force”, constituting one of the elements of the criminal offence of escaping from custody (see paragraph 23 below). In that connection, the applicant relied on the Commentary to the Criminal Code, stating that if an individual escaping from custody used force which resulted in grievous bodily harm or murder, the offence of escape from custody was merged into either of the more serious offences.

On 22 May 2012 the Maribor Higher Court granted the applicant’s appeal in part, reducing his sentence to one year and two months’ imprisonment. However, the applicant’s complaint of double jeopardy was dismissed. Moreover, as regards the applicant’s view that the injuries he had inflicted on the prison officer should be incorporated into the criminal offence of escape from custody, the higher court took the view that only such force as did not reach the threshold of minor bodily harm could be incorporated into the criminal offence of escape from custody. The higher court added that the merging of offences was only applied when the offence of escape from custody was absorbed by the more serious offences of bodily harm.

The applicant lodged a request for the protection of legality (an extraordinary legal remedy) with the Supreme Court, reiterating, inter alia, the complaints of double jeopardy and that minor bodily harm should be incorporated into the offence of escape from custody.

On 8 November 2012 the Supreme Court dismissed the applicant’s request for the protection of legality, confirming the view of the lower courts that a final decision delivered in disciplinary proceedings did not preclude bringing criminal charges against him. The disciplinary sanction could not be equated with a criminal sentence and, moreover, section 213.c of the Criminal Procedure Act did not exclude prosecution for acts defined as disciplinary breaches. Further, as regards the alleged requirement to incorporate minor bodily harm into the description of the criminal offence of escape from custody, the Supreme Court reiterated the view of the Maribor Higher Court that the facts at issue had constituted two separate criminal offences because the use of force at the threshold of minor bodily harm was not absorbed by the offence of escape from custody. The applicant lodged a constitutional complaint with the Constitutional Court.

On 28 March 2013 the Constitutional Court found the applicant’s constitutional complaint inadmissible.

Disciplinary matters regarding pre-trial detainees are regulated by section 213.c of the Criminal Procedure Act, which provides as follows:

“(1) Detainees may be disciplined for disciplinary breaches. The investigating judge or the president of the [pre-trial] panel may impose a disciplinary sanction.

(2) Disciplinary breaches are:

– physical attacks on other detainees, prison officers or other official persons;

– the production, acceptance or introduction into the facility of items intended for an attack or escape;

– introduction into the facility and production of alcoholic beverages and narcotics and their distribution,

– violations of the regulations on safety at work, fire safety, explosions and other natural disasters,

– repeated violations of the internal rules of the facility,

– causing serious material damage intentionally or through serious negligence,

– insults and undignified behaviour.

(3) For disciplinary breaches, a prohibition of or restrictions on visits and correspondence may be imposed. Restrictions on or the prohibition of visits shall not apply to visits by defence counsel, doctors, the human rights ombudsman and diplomatic and consular representatives of the country of which the detainee is a citizen.

(4) Complaints may be lodged with the panel (sixth paragraph of section 25) against the decision on punishments imposed under the first paragraph of this section within twenty-four hours of receipt thereof. The appeal shall not stay the execution of the decision.”

The relevant provisions of the Criminal Code concerning attempted criminal acts and the offences of minor bodily harm and escape from custody provide as follows:

“(1) Anybody who intentionally initiated a criminal offence but did not complete it shall be punished for an attempted criminal act, provided that such an attempt involved a criminal offence for which a sentence of three years’ imprisonment or a heavier sentence may be imposed under statute; attempts to commit any other criminal offence shall be punishable only when so expressly provided for by statute.

(2) A perpetrator who attempted to commit a criminal offence shall be punished within the limits prescribed for such an offence or the sentence shall be reduced, as the case may be.”

“(1) Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body, his temporary inability to work, the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not more than one year.

(2) If the injury under the preceding paragraph has been inflicted by means of a weapon, dangerous tool or any other instrument capable of causing serious bodily harm or grave damage to health the perpetrator shall be sentenced to imprisonment for not more than three years.

“Whoever, by force or threat of imminent attack on life or limb, escapes from a penal institution or detention centre shall be sentenced to imprisonment for not more than three years.”


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

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

The applicant was born in 1950 and lives in Vienna.

On 29 January 2004 the applicant applied for rent allowance (Mietbeihilfe) under the Vienna Social Welfare Act (Wiener Sozialhilfegesetz).

On 13 July 2004 the Vienna Municipal Authority (Magistrat der Stadt Wien) dismissed the applicant’s request, holding that the applicant was not eligible for rent allowance as his income exceeded the statutory limit (Richtsatzüberschreitung).

The applicant appealed and complained that the Municipal Authority had failed to take into account his maintenance obligations towards his two sons.

On 10 August 2004 the Vienna Regional Government (Amt der Wiener Landesregierung) dismissed the appeal, holding that maintenance obligations were, according to the Administrative Court’s case-law, not to be considered as income-reducing, as long as no enforcement proceedings were instituted against the applicant’s income.

On 6 October 2004 the Constitutional Court granted the applicant’s request for legal aid in order to file a complaint against the Regional Government’s decision.

On 8 November 2004 the applicant filed a complaint with the Constitutional Court, claiming in essence that the Regional Government had wrongly interpreted the Administrative Court’s case-law as regards the nonconsideration of the applicant’s maintenance obligations.

On 1 March 2005 the Constitutional Court declined to deal with the applicant’s complaint, holding that it did not raise any questions of constitutional law and transferred the case to the Administrative Court.

On 11 May 2005 the applicant submitted his amended complaint to the Administrative Court.

On 23 February 2009 the Administrative Court dismissed the applicant’s complaint as unfounded. Referring to its case-law, it held that the applicant had failed to argue that he was in a state of emergency due to enforcement proceedings being conducted in connection to his maintenance obligations. It was therefore not unlawful that the Regional Government had refrained from taking into account the applicant’s maintenance payments when assessing his eligibility for rent allowance.

This decision was served on the applicant’s counsel on 13 March 2009.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

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

The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant, Mr A.Č., is a Lithuanian national, who was born in 1949 and is detained in Kybartai (in the Marijampolė Region).

The application was initially allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). The Court decided of its own motion to grant the applicant anonymity (Rule 47 § 4 of the Rules of Court). On 1 November 2015 the Court’s Sections were reorganised. The application was thus reallocated to the Fourth Section (Rule 25 § 1 and Rule 52 § 1).

The applicant was granted leave to represent himself in the proceedings before the Court. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

Since 1971 the applicant has been convicted more than ten times of various crimes, including sexual assault of minors, possession of child pornography, unlawful possession of narcotic substances, and falsification of official documents. At the time of the lodging of his application with the Court he was serving a prison sentence for sexual crimes against minors, and at the time of the present judgment he was serving another prison sentence for similar crimes.

The applicant claimed to be a board member of several non-governmental organisations, an author of various publications, a member of the anti-Soviet resistance and a political prisoner of the Soviet regime. Meanwhile, the Government submitted that he had falsified documents purportedly proving his participation in the anti-Soviet resistance, and that he was widely known to the Lithuanian public solely because of his long history of sexual crimes against minors.

On 23 December 2000 the newspaper Laikinoji sostinė published a two-page article entitled “Perverts are getting more impudent” (Iškrypėliai įžūlėja) (hereinafter “the first article”). The article had twelve sections, the first eight of which discussed various instances of sexual crimes against minors committed in the city of Kaunas. The last four sections of the article were dedicated to the applicant. The first of those four, entitled “Convicted for paedophilia”, discussed his conviction for sexually assaulting a minor in 1995. The second section, entitled “Suspicion regarding an armed assault”, stated that in 1988 the applicant had established a political party, and that in 1998 he had complained to the police that he had been the victim of an armed assault. The third section, entitled “Pretended to be a doctor”, stated that the applicant had had his first encounter with the police in 1971, after he had pretended to be a doctor and had performed “medical check-ups” on underage girls. The final section of the article (the fourth one dedicated to the applicant) was entitled “Had [sexual] intercourse with his mother” (Santykiavo su savo motina) and consisted of four paragraphs. The first three paragraphs described several instances in the 1980s and 1990s when the applicant, pretending to be a doctor, had examined people in an educational institution and a public bath, and had drugged and sexually assaulted a male university student. The last paragraph of that section read:

“Around 1985, law enforcement officers had a suspicion that [A.Č.] may have had sexual relations with his mother, with whom he lived ... During a search [of the applicant’s apartment], officers found photographs in which the well-known pederast of Kaunas was depicted with his mother in specific positions. It was decided not to open a case.”

The article did not include any photographs of the applicant or his mother.

On 7 June 2004 the magazine Ekstra published a six-page article entitled “Pornography – a flourishing illegal business” (Pornografija – klestintis nelegalus verslas) (hereinafter “the second article”). The article had seventeen sections. The first five sections discussed clandestine photo studios in Kaunas which had pornographic photoshoots. The sixth section of the article, entitled “The ‘classic’ pornographer” (Pornografijos „klasikas“), was dedicated to the applicant. Its relevant parts read:

“In 1985 [law enforcement officers] had many concerns about sexual relations between the well-known paedophile of Kaunas, [A.Č.], and his mother, with whom he lived.

That year, during a search of his home, officers found photographs in which the paedophile, who enjoyed presenting himself as “Doctor Andrey”, was depicted not only with minors, but also with his mother, while having sexual intercourse in non-traditional positions. However, it was decided not to open a case. In November 2003 [A.Č.], who until then had avoided longer prison sentences for sexual crimes, was sentenced to about eight years of imprisonment.”

The article printed a photograph of the applicant with the following caption:

“The ‘classic’ pornographer, [A.Č.], who for a long time used to lure teenagers to his apartment, sexually assault them and take their photographs, was convicted of sexual crimes in November 2003 and sentenced to about eight years of imprisonment.”

The remaining eleven sections of the article contained interviews with photographers involved in erotic photography, and discussed the business of intermediaries taking young Lithuanian women to foreign countries to work as escorts.

On 21 June 2004 the applicant contacted Ekstra and asked it to publish a retraction of the part of the article concerning sexual relations between him and his mother (who had died in 1989). The applicant submitted a draft retraction, but the magazine refused to publish it on the grounds that the text contained insulting language.

Subsequently, the applicant submitted a complaint regarding the second article to the Inspector of Journalistic Ethics. On 20 January 2005 the Inspector concluded that the statements about sexual relations between the applicant and his mother were “of a clearly degrading character” (akivaizdžiai žeminančio pobūdžio), and “undoubtedly caused negative public opinion” (neabejotinai sukelia neigiamą nuomonę visuomenėje).

On an unspecified date in 2005 or 2006 the applicant lodged a civil claim for damages against the journalist who had written the second article, D.D., and the magazine Ekstra. He argued that the claims concerning sexual relations between him and his mother had been erroneous, and that the publication had humiliated him, damaged his reputation and caused him emotional distress.

In their reply to the claim, D.D. and Ekstra submitted that the disputed statements in the second article had been based on the information published in the first article. They therefore argued that, in line with domestic law (see paragraphs 29-32 below), the publishers of the second article could not be held liable for republishing erroneous information which had not been publicly retracted. They further submitted that, in any event, the disputed claims were true and testimony to that effect could be provided by law enforcement officers who had searched the applicant’s apartment in 1985. Lastly, they argued that because of the applicant’s long history of sexual crimes, there was a general interest in making such information public, and that “as far as someone with such a reputation was concerned, it was impossible to cause any more dishonour” (tokios reputacijos asmeniui dar labiau sumenkinti jo garbę nebeįmanoma).

Subsequently, the applicant amended his claim to also include the author of the first article, S.P., and the company which owned the Laikinoji sostinė newspaper. He also alleged that that publication had included erroneous claims about him and his mother, which had damaged his reputation and caused him emotional distress.

In their reply to the amended claim, S.P. and the newspaper company submitted that the first article had not stated that the applicant had had sexual relations with his mother, but only that law enforcement officers had had such suspicions. They also submitted that, in line with domestic law (see paragraph 31 below), the applicant could not bring court proceedings against them, because he had not asked the newspaper to publish a retraction within two months of the disputed publication. They asserted that in December 2000 the applicant had been interviewed by S.P. and some television journalists; subsequently he had sued the television broadcasting company, but not Laikinoji sostinė. Accordingly, S.P. and the newspaper company submitted that the applicant had known about the first article and its contents, but had failed to ask for a retraction within the time-limits provided for in law.

The Vilnius Regional Court held a hearing on 1 February 2007. During that hearing the applicant denied having given an interview to S.P. in 2000, and claimed that he had not been aware of the first article until the current court proceedings had started. However, when asked by the judge how that article could have caused him any emotional distress if he had not known about it, the applicant replied that he had heard rumours about the publication but had not seen it himself. The court also heard the testimony of a witness requested by the applicant, who stated that in 2004 he had been imprisoned together with the applicant and had seen other prisoners insult and humiliate him because of the statements published in the second article. The hearing was adjourned at the applicant’s request, and the court ordered the defendants to provide the disputed photographs of the applicant and his mother.

The next hearing was held on 12 July 2007. The Vilnius Regional Court heard another witness requested by the applicant, who also stated that the second article had led to insults and humiliation of the applicant by other prisoners. The hearing was adjourned at the applicant’s request in order to allow his new lawyer to acquaint himself with the case file.

On 22 November 2007 the Vilnius Regional Court suspended the civil proceedings pending the outcome of the criminal proceedings instituted by the applicant (see paragraphs 17-21 below).

On 7 November 2007 the applicant brought a private prosecution against D.D. and the editor of Ekstra, V.V., accusing them of defamation, insult, and contempt of the memory of a deceased person, under Article 154 § 2, Article 155 § 1 and Article 313 § 2 of the Criminal Code. He also submitted a civil claim for damages.

On 14 April 2008 the Vilnius City Third District Court held a hearing in the criminal case. During the hearing the applicant submitted that the defendants were former supporters of the Soviet regime, and the purpose of the publication had been revenge for his political and public activities. Meanwhile, D.D. stated that his purpose had been to warn the public about the applicant’s dangerous sexual activities and that, when preparing the article, he had spoken to S.P. and a prosecutor, M.R, who had confirmed the existence of the disputed photographs. That prosecutor was called as a witness and testified that he had personally seen such photographs. However, the photographs were not submitted to the court, because the prosecution archives of 1985 had already been destroyed.

The applicant made an application for the court to call additional witnesses who could testify about the damaging effects of the second article, and to obtain documents proving that S.P. and M.R. had participated in anti-independence repression during the Soviet occupation. The court rejected his applications as unfounded and unnecessarily time-consuming with regard to the proceedings.

The next hearing was held on 21 April 2008. The applicant made an application for the Vilnius City Third District Court to call witnesses who could testify about the circumstances of his mother’s death, but the court rejected that application as unrelated to the case. In his final address to the court the applicant insisted that the statements about his sexual relations with his mother were false and unproven, and that D.D. and V.V. had published them to insult and humiliate him. Meanwhile, D.D. and V.V. argued that they had made a sufficient effort to verify the disputed statements – they had relied on the first article, which had not been publicly retracted, and had interviewed law enforcement officers who had had the relevant knowledge. They also submitted that the purpose of the article had not been to insult or humiliate the applicant, but to inform the public about a dangerous person known for his sexual crimes. They emphasised that the article had examined a certain aspect of life in the city of Kaunas, and statements about the applicant had constituted only a small part of it.

On 10 May 2008 the Vilnius City Third District Court acquitted D.D. and V.V. of all charges. The court held that the criminal offence of defamation consisted of the intentional distribution of erroneous information about another person, but D.D. and V.V. had had reasonable grounds to believe that the disputed statements about the applicant and his mother were true, because they had been previously published in another newspaper and not retracted. The court also held that the criminal offence of insult consisted of the public humiliation of another person in an intentionally obscene or offensive manner, whereas a mere negative opinion about another person, presented in a civil manner, would not qualify as criminal insult. The court considered that the disputed statements of the second article, albeit amounting to negative characterisation of the applicant, had been presented in a neutral manner which was not offensive, and that D.D. and V.V. had not intended to insult the applicant. Lastly, the court dismissed the charge of contempt of the memory of a deceased person as time-barred. The applicant’s civil claim for damages was left unexamined.

The applicant appealed against that judgment, but on 16 July 2008 the Vilnius Regional Court upheld the acquittal. It emphasised that, in criminal proceedings, the burden was on the prosecuting party to prove that statements published by defendants had been erroneous, or that defendants had intended to insult a victim. The court considered that the applicant had not discharged that burden. It also held that the first-instance court had been justified in not hearing the additional witnesses requested by the applicant, (see paragraphs 18-19 above), because those witnesses could not have provided any information relating to D.D. and V.V.’s alleged intention to defame or insult the applicant.

Subsequently, the Vilnius Regional Court resumed the examination of the applicant’s claim for damages against the publishers of both articles (see paragraphs 10-16 above). In a hearing held on 5 February 2009 the court heard another witness called by the applicant, who stated that the publication of the second article had led to insults against the applicant among his fellow prisoners. The hearing was adjourned at the applicant’s request.

The next hearing was held on 30 June 2009. At the applicant’s request, the court ordered a linguistic examination of the disputed statements in the first article, in order to determine whether they could be understood as unequivocally stating that the applicant had had sexual relations with his mother. The examination was carried out by the Institute of the Lithuanian Language, which delivered its conclusion on 20 October 2009. It found that the article did not unequivocally state that the applicant and his mother had had such relations, but that it could raise suspicions that such relations may have existed.

On 23 September 2010 the Vilnius Regional Court dismissed the applicant’s claim. It held that domestic law provided for a mandatory out-of-court settlement procedure in cases concerning the publication of allegedly erroneous statements in the media, in accordance with which the applicant should have asked the publisher of the first article to retract it within two months of its publication (see paragraphs 29-32 below). The court noted that the applicant had missed that time-limit and had not asked for its renewal. As a result, he could not claim any damages from the publishers of the first article. The court further held that the disputed statements in the two articles were essentially identical, and thus the publishers of the second article could not be held liable for republishing the contents of the first article, as long as they had not been publicly retracted.

The applicant submitted an appeal in which he insisted that he had not known about the first article until he began the civil proceedings against the publishers of the second article. On 28 December 2011 the Court of Appeal dismissed his appeal and upheld the first-instance judgment. The court underlined that the two-month time-limit to request a retraction was necessary in order to protect journalists from the unreasonable burden of having to prove the truthfulness of information which had been published a long time ago, especially in cases such as the one in question, where the applicant had complained more than four years after the publication of the first article. The court also referred to the submission of S.P. and the newspaper company that the applicant had been interviewed in December 2000 as part of the preparation of the first article (see paragraph 13 above), and concluded that the applicant ought to have known that the impending publication would concern him. Accordingly, the Court of Appeal found that the journalists could not be held responsible for the applicant’s own failure to take timely action in respect of the first article.

On 30 March 2012 the Supreme Court refused to examine a cassation appeal submitted by the applicant on the grounds that it raised no important legal questions.

Relevant provisions of the Constitution of the Republic of Lithuania read:

Article 22

“Private life shall be inviolable ...

The law and courts shall protect everyone from arbitrary or unlawful interference with his private and family life, as well as from encroachment upon his honour and dignity.

Article 25

No one must be hindered from seeking, receiving, or imparting information and ideas.

The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order.

The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation ...”

In its ruling of 15 May 1998 the Senate of the Supreme Court of Lithuania held the following:

“3. A person’s honour and dignity ... shall be protected when all of the following facts are established: a) information has been disseminated; b) that information concerns the claimant; c) it is humiliating to the claimant’s honour and dignity; d) it is erroneous.

The right to a private life ... shall be protected when all of the following facts are established: a) information has been disseminated; b) that information concerns the claimant; c) it concerns the claimant’s private life; d) it has been disseminated without the claimant’s consent; e) there is no legitimate public interest in receiving that information ...

... A civil claim for the protection of honour and dignity ... must specify ... what disseminated information is humiliating or erroneous ... If the defendant is a media source, the claimant must indicate that he or she has exhausted the mandatory out-of-court settlement procedure by requesting a retraction ...

... Acquittal of a person accused of libel on the grounds that no criminal offence has been committed, as well as the refusal to open a criminal case or the decision to terminate it due to the expiry of statutory limitations ... does not preclude a victim from submitting a civil claim for the protection of his or her honour and dignity ...

It must be underlined that Article 71 of the Civil Code and Article 21 of the Law on the Provision of Information to the Public seek to protect two distinct values: a person’s honour and dignity, and a person’s right to private life. They can be violated by different facts and thus must be distinguished ... Information about a person’s private life can be made public without his or her consent only when its publication does not cause any harm to that person, when that information may help to disclose criminal offences and breaches of law, or protect human rights and fundamental freedoms, and when that information is disseminated in a public court hearing ... The right to a private life is protected ... irrespective of whether the disseminated private information is humiliating to the person’s honour and dignity or not ...”

At the material time, Article 7 of the 1964 Civil Code, which remained in force until 1 July 2001, provided in its relevant parts:

“Individuals or organisations have the right to ask a court to retract information which is erroneous and damages their honour and dignity.

If such information was published by the mass media, the court shall examine requests for retraction only after the individual or organisation in question has provided the publisher with a written retraction ... and the publisher has failed to retract the erroneous information ...

If the publisher does not substantiate that the disputed information corresponds to reality, the court shall oblige it to retract the information in question ...”

Article 2.24 of the 2000 Civil Code, in force from 1 July 2001 onwards, provides in its relevant parts:

“1. A person shall have the right to demand the retraction, in judicial proceedings, of information which has been made public and which denigrates his honour and dignity and is erroneous; in addition to the right to compensation for pecuniary and non-pecuniary damage incurred by the placing in the public domain of the aforementioned information ... Information which has been made public shall be presumed to be erroneous, unless the publisher proves the opposite to be true.

Where erroneous information has been made public by the mass media (including the press, television and radio), the person who is the subject of the publication shall have the right to provide a proposed retraction, and to demand that the media source concerned publish the aforementioned retraction free of charge or make it public in some other way. The media source shall publish the retraction or make it public in some other way within two weeks of receipt. The media source shall have the right to refuse to publish the retraction or make it public, only in such cases where the content of the retraction contradicts good morals ...

Media sources which make public erroneous information which denigrates a person’s reputation shall only provide compensation for damage to property, and for any pecuniary and non-pecuniary damage incurred, in cases where they knew or should have known that the information was erroneous ...”

At the material time, Article 45 § 2 of the Law on Provision of Information to the Public provided that a written request to retract information had to be submitted to a producer or disseminator of public information within two months of the information being published.

At the material time, Article 55 § 1 (3) of the Law on Provision of Information to the Public provided that a producer of public information could not be held liable for the publication of erroneous information if that information had been previously published in other mass media sources, and had not been retracted by the media source which published it.

Article 2.23 of the 2000 Civil Code, in force from 1 July 2001 onwards, provides that information about a person’s private life may be made public only with his or her consent.

At the time of the publication of the first article, Article 21 § 1 of the Law on Provision of Information to the Public provided for civil liability of the producer or disseminator of information who published information about a person’s private life without his or her consent, where that information was degrading to the person’s honour and dignity. At the time of the publication of the second article, Article 54 § 1 of the amended version of that Law provided for civil liability of the producer or disseminator of information who published any kind of information about a person’s private life without his or her consent.

In its ruling of 13 January 2003 in civil case no. 3K-3-41/2003, the Supreme Court held:

“[T]he defendant disseminated ... in newspaper publications ... information about the birth of the claimant’s son, his last name, alimony granted by courts, and so forth, and thereby breached the claimant’s and her son’s right to a private life. The district court correctly held that that information was not related to the claimant’s occupation or the public interest ... As provided in law, the court shall determine the amount of non-pecuniary damages, taking into account the defendant’s financial situation, the gravity of the breach and its consequences, and other relevant circumstances ... The courts correctly found that the dissemination of the information about the claimant’s private life had caused her emotional suffering and negatively affected her authority. Her son, a minor, also experienced suffering and distress. In such circumstances, the award of non-pecuniary damages cannot be reduced only because of the defendant’s financial situation ...”

Article 154 § 2 of the Criminal Code provides that the offence of libel in the media or in any other publication is punishable by a fine, arrest or imprisonment for a term of up to two years.

At the material time, Article 155 § 1 of the Criminal Code provided that the public humiliation of another person in an abusive manner by actions, words or in writing is punishable by a fine, restriction of liberty, arrest or imprisonment for a term of up to one year.