CASE OF "ORTHODOX OHRID ARCHDIOCESE (GREEK-ORTHODOX OHRID ARCHIDIOESE OF THE PEĆ PATRIARCHY)" v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 9 - (Art. 9) Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The Ohrid Archdiocese (Охридска Архиепископија), in its original form, existed until 1767, when it was abolished by the Turkish Sultan. As stated by the applicant association, after its abolition the territory over which the Ohrid Archdiocese had jurisdiction, which had included what is now the territory of the respondent State, fell under the jurisdiction of the Ecumenical Patriarchate of Constantinople, which in 1918 issued a canonical release of those territories to the benefit of the Serbian Orthodox Church (SOC). As stated by the Government, in 1943 it was decided that the Ohrid Archdiocese would be restored and continued by an autonomous Macedonian Orthodox Church (MOC). In 1959 the MOC seceded from the SOC, and in 1967 it declared autocephaly. The Head of the Holy Synod of MOC is designated as “Archbishop of Ohrid and Macedonia” (Архиепископ Охридски и Македонски).

In negotiations which have been continuing since then, on 17 May 2002 the two churches signed a draft agreement (known as “the Niš agreement”) which provided for ecclesiastical union between them. It further specified that the MOC would renounce its autocephaly and obtain widest autonomy within the SOC under the name “Ohrid Archdiocese”.

According to the Government, during the negotiations and the signing of the Niš agreement, there had been strong reaction by the public, which regarded the draft agreement as “a scandalous and indecent act of treason” and, owing to strong pressure by the public, on 25 May 2002 the Holy Synod of the MOC ultimately rejected this agreement. The applicant association disagreed that the rejection of the agreement had resulted solely from the reaction by the public and submitted that “the main pressure came directly from the Macedonian authorities who stood behind the protests”.

Mr J. Vraniškovski, a bishop and a member of the Holy Synod of the MOC at the time, was supportive of the Niš agreement. After the Holy Synod of the MOC had rejected that agreement, Mr Vraniškovski accepted a call by the SOC for reunification dated 20 June 2002; on 21 June 2002 he publicly announced that he was prepared for canonical union with the SOC. The Government submitted that that had provoked a public reaction and that there had been street protests in several cities in the respondent State.

On 5 July 2002 the Holy Synod of the MOC dismissed Mr Vraniškovski on the ground that, by his unilateral accession to the SOC, he had violated the oath by which he had bound himself to safeguard the Church’s unity and Constitution (see Vraniškoski v. the former Yugoslav Republic of Macedonia (dec.) 39168/03, 22 June 2010). On 23 September 2002 the SOC declared the dismissal of Mr Vraniškovski null and void and appointed him “exarch of the Peć Archbishop and the Patriarch of Serbia for all eparchies of the Ohrid Archdiocese”.

On 25 December 2003 the applicant association constituted its own Holy Synod and appointed Mr Vraniškovski as its President. By a letter of 16 January 2004, received by the Commission for religious communities and groups (“the Commission”, Комисија за односи со верските заедници и религиозните групи) on 27 January 2004, Mr Vraniškovski requested an opinion as to whether the applicant association should be registered, given that “in all civilised States a church, which is older than the State is accepted without needing to be registered.” The letter, which remained unanswered, further stated:

“... the true Macedonian Orthodox Church is the Orthodox Ohrid Archdiocese. It is a legitimate church, recognised by all churches in the world, so all who want to be Orthodox are welcome, the doors are open. Those who are schismatic should join the schismatic Synod (MOC). The Orthodox Ohrid Archdiocese has nothing against the State registering schisms ... but it is against the State preventing its spiritual and leading operation in the Republic of Macedonia ...”

On 6 September 2004 Mr Vraniškovski submitted an application (барање за регистрирање) seeking that the applicant association be registered as a religious group (религиозна група). In support of the application, the applicant association submitted the following documents: (a) a founding decision of 1 September 2004 rendered by its Holy Synod. Under section 1 of that decision, the applicant association was defined “as a voluntary, non-profit association of Christians that were not associated with any other religious community or group”. Its aim was to acquire legal-entity status and to manage its property. The decision specified the temporary place of registration of the applicant association and authorised Mr Vraniškovski to submit an application for registration on behalf of the applicant association; (b) a list of its adherents; and (c) a Charter on the organisation and operation of the applicant (“the Charter”). The latter provided that the applicant “would be autonomous within the canonical jurisdiction of the Peć Patriarchy (the SOC)”; it specified that its temporary place of registration would be in Bitola, in the respondent State, “until it was possible to designate a permanent seat”; and that the applicant association and its structural units were legal entities and could obtain and manage property. It further provided that all legal persons that the applicant association might set up could have bank accounts.

On 30 September 2004 the Commission found the application to be incomplete, and requested that the applicant association submit the following further documents: a) a copy of a decision appointing the authorised person to seek registration of the applicant association and b) a copy of the minutes of the constituent assembly. On 18 October 2004 the applicant association submitted the requested documents.

On 3 November 2004 the Commission dismissed the application (се одбива барањето за пријавување) for the following reasons:

(a) the application was not submitted by an authorised person. The Commission held that it had been submitted by a certain J.N. (Bishop D.) and not by Mr Vraniškovski, who had been authorised to seek registration of the applicant association;

(b) the application for registration had been submitted outside the thirtyday time-limit specified in section 11 (1) of the Act on Religious Communities and Religious Groups (“the 1997 Act”, see paragraph 47 below), which had started to run on 25 December 2003, the date on which the applicant association’s Holy Synod had been set up (see paragraph 10 above);

(c) relying on the applicant association’s Charter, the Commission established that it would act as an autonomous religious group in canonical union with the Peć Patriarchy (SOC). That the applicant association would operate as part of a foreign orthodox church was, in the Commission’s view, in violation of section 12 of the 1997 Act. The Commission further stated that a religious community could be established only by nationals of the respondent State, and not by a foreign church or State;

(d) the applicant association had emerged from an already existing and registered religious community, notably the MOC, whose position and role had been specified in the Constitution. The fact that the applicant association had sought registration under the name “Orthodox Ohrid Archdiocese” had implied that its real intention was to create a parallel orthodox religious group to the MOC, which had been using that name (Orthodox Ohrid Archdiocese) “constitutionally, historically, actually and continuously” (уставно, историски, актуелно и во континуитет) for over eight centuries. That was not in compliance with section 8 (2) of the 1997 Act, under which only one religious community could be registered for one faith group. The Commission referred to a decision of the Constitutional Court which had found that provision compliant with the Constitution. It had ruled that the provision had protected people from being manipulated and same-faith believers from being divided into several religious groups (U.br.223/97 of 28 October 1998, see paragraph 54 below). The Commission also argued that the Preamble to the Constitution of the MOC specified that it was the canonical successor to the Ohrid Archdiocese. This was confirmed on 17 July 1967 when the Ohrid Archdiocese declared autocephaly, which was continued by the MOC. The Commission further held that on 6 August 2004 the MOC had asked the Industrial Property Bureau (“the Bureau”, Завод за заштита на индустриската сопственост) to register the name “Macedonian Orthodox Church-Ohrid Archdiocese” in its trademark register (TM 2004/574).

Moreover, on 13 August 2004 the MOC had asked the Commission to prevent registration of several names, including the name “Ohrid Archdiocese”, to which it was entitled for historical, religious and moral reasons; and

(e) the Commission held that property-related provisions of the applicant’s Charter were contrary to section 9 of the 1997 Act, according to which a religious group was a voluntary, non-profit association of believers.

In its decision of 3 November 2004, the Commission further referred to several international documents and a Declaration that the Parliament of the respondent State adopted in 2004 regarding the MOC (see paragraph 51 below).

The applicant association complained against this decision, arguing that:

(a) the application for registration had been submitted by Mr Vraniškovski. J.N. had only handed it over to the Commission’s archives;

(b) the applicant association had been founded formally on 1 September 2004. On 25 December 2003, the date to which the Commission referred in its decision, the applicant association had only appointed the members of its Holy Synod;

(c) the applicant association was a new religious community that had no connection with, let alone stemmed from, the MOC, which, in any event, had not been recognised by any Orthodox Church;

(d) the fact that the MOC had sought to have the Bureau add “Ohrid Archdiocese” to its name was irrelevant, since no such name existed in the Commission’s records;

(e) the applicant association had denied that it had been set up by a foreign church or a foreign State. That it would operate in canonical union with another church of same religion did not imply that it had been founded contrary to section 9 (2) of the 1997 Act;

On 11 January 2005 the Government Appeal Commission (Комисија за решавање во управна постапка во втор степен од областа на внатрешни работи, судството, државната управа, локалната самоуправа и работите од верски карактер) dismissed the appeal, finding no grounds to depart from the established facts and the reasons given by the Commission.

The applicant association challenged these decisions before the Supreme Court. In addition to the arguments already raised, it submitted that its name was neither identical with nor similar to the name of any other religious community or group registered by the Commission.

On 9 November 2005 the Supreme Court dismissed the applicant’s claim. It held that the applicant association’s name had implied creation of a parallel religious community, rather than a religious group as claimed, given that its name was substantially the same as the name of the MOC. The court referred to the applicant association’s Charter and found that its determination to operate as an autonomous church in canonical union with the Peć Patriarchy was contrary to the fact that the MOC had canonical jurisdiction in the territory of the respondent State. It also held that property-related rules were in violation of section 16 of the 1997 Act. The court accepted the remaining reasoning given by the administrative bodies. That decision was served on the applicant on 15 July 2006.

On 15 July 2007 Bishop D. applied to the Constitutional Court, claiming that the refusal of the authorities to register the applicant association violated the freedom of belief and religion specified in Article 110 § 3 of the Constitution. While relying on the decisions of the authorities refusing the applicant association’s registration as “Orthodox Ohrid Archdiocese”, he also notified the court that a fresh application for registration had been submitted under the name “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” (see paragraphs 23-34 below). He stated, inter alia:

“... it is obvious that followers of our religious organisation have been deprived of the rights specified in Articles 16 and 19 of the Constitution for seven years ... the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy is a religious organisation which should protect the religious needs of, among others, Serbs and Greeks in the Republic of Macedonia. It is an autonomous church under jurisdiction of the Peć Patriarchy, notably the Serbian Orthodox Church ...”

On 9 September 2009 (U.br.184/09) the Constitutional Court rejected the appeal, which, as specified in the decision, concerned “freedom of belief and prohibition of discrimination on religious grounds”. Relying on, inter alia, Articles 9, 16 and 19 of the Constitution (see paragraphs 4244 below), the court found:

“The complainant did not claim personal protection from discrimination ... but, he acts as a representative of a group of people with which he is associated ...”

It further stated:

“The Constitutional Court has no jurisdiction to decide on the rights and interests of citizens in specific cases before administrative and judicial bodies. Neither has it jurisdiction to decide as a hierarchically superior court and examine the lawfulness and constitutionality of decisions adopted by competent administrative bodies ... the complainant refers to the non-registration as an action, but such an action ... stems from an individual decision which this court is not competent to examine ... the registration of ... a religious community or a group does not determine the religious beliefs and internal religious belief of a person, since expression of beliefs is an individual act, the registration procedure does not affect personal religious belief and rituals, and the court has not been presented with any evidence that they have been violated at any point.”

The court also held that the appeal had been submitted outside the two-month time-limit specified in the Rules of the Constitutional Court (see paragraph 52 below), calculated since 9 November 2005, the date of the Supreme Court’s decision (see paragraph 18 above).

On 20 September 2007 a new Act on the legal status of churches, religious communities and religious groups (“the 2007 Act”) was adopted. It entered into force on 1 May 2008.

On 3 and 6 April 2009 the applicant association inspected the register of churches, religious groups and communities (“the court register”) of the Skopje Court of First Instance, which became, by virtue of the 2007 Act, the registration court. From 11 November 2008 onwards the MOC was recorded in the court register as “Macedonian Orthodox Church-Ohrid Archdiocese”. The registration decision stated that in communication with third parties it would use the name “Macedonian Orthodox Church”.

According to “the minutes of the constituent assembly” (записник од основачкото собрание) “... at the proposal of His Beatitude (Неговото Блаженство), the Archbishop of Ohrid and Metropolitan of Skopje Mr Jovan (Vraniškovski), the Holy Synod of the Orthodox Ohrid Archdiocese composed of (Bishops J., M., and D., all Macedonian nationals) convened a meeting on 27 April 2009 in order to adopt decisions for setting up and registration of “the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy”. The minutes of the constituent assembly were signed by all three bishops (their personal identity numbers and addresses were provided therein).

On the same date a decision setting up the applicant association was adopted. As stated in its introductory part, “at a meeting dated 27 April 2009 the Holy Synod decided to submit a request to the Skopje Court of First Instance for registration of ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’”. It was set up “as a voluntary, non-profit organisation of Christians who are not associated with any other registered religious community, and, in particular, has no connection with (the MOC)”. It further stated:

“It is an Orthodox church in full canonical and liturgical union with all recognised Orthodox churches in the world. For this reason, we consider that we should be registered as a church, but if the court considers otherwise, we would accept registration as a religious community or religious group.”

The decision further indicated that the applicant association’s temporary place of registration would be in Bitola, in the respondent State. Bishop D. was authorised to submit the application for registration. He was also nominated to act on behalf of the applicant association (застапува) in relations with other legal entities until “... Mr Jovan (Vraniškovski) returned from exile”.

The applicant association’s Charter on the status, organisation and operation of the association (“the Charter”) provided that it was “an autonomous church under the canonical jurisdiction of the Peć Patriarchy” (section 2). The Holy Synod was “the highest managerial body” of the applicant (section 6). It was composed of the Archbishop and two eparchy bishops (section 9). The assembly of archbishops (архиепископско собрание) was “the supreme regulatory, administrative, supervisory and executive body concerning internal, financial and religious self-management” (section 12).

On 28 April 2009 Bishop D. submitted an application for registration of the “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” as “one of the churches” in the respondent State. The application expressly stated that the applicant association would agree to be registered as a religious community or group if the registration court found this more appropriate. The applicant association further expressed willingness to submit any documents, if need be, in order to avoid its application being refused. It was also stated that a refusal to register a religious group would be unjustified in a democratic society unless it was proven that the teaching of the group was destructive. That had not been the case with the ‘“Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy’ which is two thousand years old”. It further stated that:

“... any refusal to register ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’ is an obstacle to the Republic of Macedonia’s future membership of the European Union ... It will not be pleasant, at the present time and place in history, if a judge appears as a persecutor of a church. Any person who does not respect human rights and freedoms regarding association of people on religious grounds, especially if he or she is a judge ... does not differ much from famous persecutors of the Holy Church ... we wrote the above in order to warn that it will be unpleasant if the court does not register ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’ ...”

On 10 July 2009, without reference to the applicant, the registration court sought an explanation from the MOC as to the meaning of the notion of “Peć Patriarchy”. On 21 July 2009 the MOC replied (the reply was reproduced in the decision of the registration court of 28 July 2009, see paragraph 31 below) as follows:

‘“Peć Patriarchy’ forms part of the name of the Serbian Orthodox Church and expresses the historical continuity of the Serbian Orthodox Church as canonical heir of the Peć Patriarchy: in the same way the name ‘Ohrid Archdiocese’ is part of the name of the Macedonian Orthodox Church. The name ‘Ohrid Archdiocese’ is protected by the Macedonian Orthodox Church in the Industrial Property Bureau. The Serbian Orthodox Church, specifically the Peć Patriarchy, has no canonical or any other jurisdiction over the Macedonian Orthodox Church or in the territory of the Republic of Macedonia.”

On 28 July 2009 the registration court dismissed the applicant association’s request for registration in the court register (се одбива барањето за упис) for the following reasons:

(a) it was founded by the so-called Holy Synod, as a body, which was contrary to section 2 of the 2007 Act (see paragraph 49 below) according to which a decision to establish a religious entity was to be taken by the founding members at a constituent assembly. No such assembly had been held in the applicant’s case;

(b) the application for registration concerned an organisation which had not been provided for under the 2007 Act. Its name did not specify whether it was a church, religious community or religious group. On the contrary, it implied that it was a divine organisation, which would operate as an autonomous Archdiocese under the canonical jurisdiction of the Peć Patriarchy. “It did not state that it was a voluntary organisation of physical persons” as required under section 2 of the 2007 Act;

(c) the intended name of the applicant association included names or terms that were part of or indicated a relationship with the official names of States or religious communities or canonical territories already registered and under foreign jurisdiction. In this connection it held that the term “Greek” (Грко) was an English translation of “Orthodox Church”. Its use was not in conformity with the 2007 Act (section 10 (3)). The “Orthodox Ohrid Archdiocese” partly covered the generic and historical name of the MOC; it did not differ from the latter’s registered name. That name (Ohrid Archdiocese) has been used by the MOC “constitutionally, historically, actually and continuously” for over 800 years, and only the MOC had the “historical, religious, moral and substantive right” to use it. In this connection the court held that the legal status, name and official insignia of the MOC were safeguarded by the 2007 Act and the Constitution. That the applicant’s intended name implied that it was under the territorial jurisdiction of a foreign church was in contravention of the 2007 Act and other laws. It was so because the MOC had canonical jurisdiction in the territory of the respondent State. It was only formally indicated that the applicant association would operate as an autonomous church. If registration was granted “it would operate in the territory of the respondent State as part of a foreign orthodox church ... it would operate and be managed autonomously within the canonical jurisdiction of the Peć Patriarchy, notably (the SOC) ... which had no canonical or any other jurisdiction over (the MOC) or in the territory of (the respondent State).” That was in violation of Article 1 of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 18 of the UN Universal Declaration of Human Rights and Article 9 of the Convention;

(d) the founding decision had specified only the temporary place of registration of the applicant association, without specifying “a specific seat and address” (точно одредено седиште и адреса), as required under section 13 § 1 (2) of the 2007 Act; and

(e) Bishop D. was nominated to act on behalf (застапува) of the applicant association, but not to represent (претставува) it, as required under section 12 § 2 (5) of the 2007 Act.

The registration court concluded that the applicant association’s registration would run counter to the 2007 Act. It further stated that:

“(such a registration would violate) the freedom of religion ... of all physical persons, which they manifest through already registered religious communities. It would also violate the legitimate legal status of other voluntary associations of persons recorded in the court register ... their management bodies, hierarchy, competencies, titles, religious activities ...”

The applicant appealed, arguing (i) that the court had erred when seeking “an expert opinion” about the meaning of “Peć Patriarchy” from the MOC, which was not neutral; (ii) that the registration of the MOC in November 2008 under the name “Macedonian Orthodox Church-Ohrid Archdiocese” had been unlawful. In this connection, the applicant submitted extracts from several media reports published at the time, according to which the competent body of the MOC, at its meeting held on 4 and 5 October 2008, had refused to change the name in its Constitution; (iii) that the MOC had applied to the Bureau for registration of the name “Macedonian Orthodox Church-Ohrid Archdiocese” as a trademark was irrelevant, since the Industrial Property Act concerned goods and services and not religious organisations. In this connection, the applicant argued that, in any event, the Bureau had confirmed that on 6 August 2004 the MOC had requested registration of seventeen trademarks, including the trademark “Macedonian Orthodox Church-Ohrid Archdiocese”. However, the MOC had never paid the registration fee for any of the trademarks for which registration had been sought. Consequently, those names were never registered as trademarks, nor were trademark certificates ever issued; (iv) the applicant association was set up by three founding members who had signed the minutes of the constituent assembly held on 27 April 2009. Consequently, the court had been wrong to hold that the founding decision had been rendered by the applicant association’s Holy Synod, as that body had no legal capacity to act before the applicant association was registered; (v) no reasonable explanation had been given as to why the applicant association’s intended name did not imply that it concerned a religious organisation; (vi) the court’s interpretation that the expression “Greek” was an English translation of “Orthodox Church” was wrong; (vii) the intended name of the applicant association was different from the name of any registered religious organisation, including the name of the MOC to which “Ohrid Archdiocese” had been unlawfully added. In this connection the applicant stated “(it) differs from the MOC, with which we refuse to be associated.” It further submitted that the court had allowed registration of two churches despite the fact that their names were substantially the same, namely “Christian Adventist Church (church of the Adventists of the Seventh Day) in the Republic of Macedonia” and “Christian Adventist Church in Macedonia”. It concluded the discussion under this head by saying that “had the court had difficulty with the intended name, it could have raised that issue in written correspondence and we would have replied. This clearly suggests that the court would refuse to register [the applicant association] under any name”; (viii) the registration court had given unsubstantiated explanations of a theological and historical nature favourable to the MOC; (ix) the applicable legislation did not preclude a religious community from being in canonical union with other churches in the world; (x) the refusal to register the applicant association violated the freedom of religion of the orthodox Greeks and Serbs in the respondent State, as the intended name suggested that it represented those communities; and (xii) lastly, the applicant association reiterated that it was ready to rectify any error the registration court might ask it to.

On 4 February 2010 the Skopje Court of Appeal dismissed the applicant association’s appeal, reiterating the reasoning given by the registration court.

On an unspecified date thereafter, D.N. (Bishop D.) submitted a constitutional appeal to the Constitutional Court, claiming that the authorities’ refusal to register the applicant as “the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” had affected his religious rights specified in Articles 16 and 19 of the Constitution and Article 9 of the Convention. In this connection, he claimed that the religious organisation with which he was affiliated had not been allowed registration for many years, and thus had been denied the opportunity to obtain legal-entity status. He stated “I’m prevented from exercising my freedom of religious observance in association with other people on a voluntary basis.” He further argued that without legal-entity status the applicant association was prevented from enjoying certain statutory rights: it could not construct religious temples; its members could not conduct religious ceremonies; it could not instruct religion or create religious schools; and it could not manage its property, nor could it hold bank accounts. Bishop D. invited the court to consider his appeal as submitted on behalf of all members of his religious organisation. Since the Constitutional Court had already rejected a similar appeal lodged on behalf of several people (U.br.182/09, see paragraph 55 below), he consented that his appeal be regarded as being submitted only in his name. He further stated:

“I agree, and after having consulted the other members of my religious community, I know that they also agree, that the Constitutional Court orders registration of the Greek Orthodox Ohrid Archdiocese of the Peć Patriarchy under conditions specified by law and we would adjust to any requirements set by the court. If a change in the name is needed, that should be indicated as a condition for our registration and once it is satisfied, (we) should be registered. If another condition should be fulfilled, that should be specified and we will try to accommodate it.”

On 15 December 2010 the Constitutional Court rejected the constitutional appeal of D.N. concerning “the freedom of belief and prohibition of discrimination on religious grounds” (U.br.118/10). Referring to the courts’ decisions rejecting the applicant association’s request for registration as “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” and relying on Articles 9, 16 and 19 of the Constitution and Article 9 of the Convention, the court stated:

“The court cannot examine the appeal on the merits since the complainant did not comply with the formal statutory requirements before a competent court (for registration of the applicant). The complainant is willing to comply with the statutory requirements for registration, but he has failed to do so in practice and (he) does not prove that the competent court was wrong in its judgment that those requirements had not been complied with ... in such circumstances, this court cannot rule on the request for the protection of human rights and freedoms in relation to specific final decisions of competent bodies. It is so since the person concerned (субјектот) did not take any action in the court proceedings to comply with the statutory requirements, which apply similarly to all citizens. This derives from his request that this court suggest to him what needs to be done for (the applicant association) to be registered, which implies knowledge that there were (certain) flaws which led to non-registration. The complainant was not a priori refused registration of his religious community by a final judicial decision. The refusal he received was for non-compliance with the statutory requirements.”

An article published in the daily newspaper Dnevnik on 26 September 2002 quoted the then Chairman of the Commission (see paragraph 10 above), who stated that:

“not at any price will Bishop Jovan (Vraniskoski) be allowed to perform religious rituals or to have a seat in an exarchate.”

An article published in the daily newspaper Vest on 8 April 2004 quoted the following part of a joint statement by the then President of the respondent State and the Archbishop of the MOC:

“The MOC and the Macedonian State are and will remain together. Schismatics and renegades should be marginalised, isolated and rejected. The media attention they receive, irrespective of motives and intentions, affects both the MOC and Macedonian national and State interests.”

An article published in the daily newspaper Večer on 23 November 2006 reported on discussions held between the Prime Minister of the respondent State and the Archbishop of the MOC regarding certain provisions of the 2007 Act. Following that discussion, the majority of bishops in the MOC, as stated in the article, had requested that the MOC should not accept any compromise which would prevent it from protecting itself against a parallel church, led by Mr Vraniškovski, being created.

An article published in the daily newspaper Večer on 2 June 2009 reported on the alleged discontent of the applicant’s followers about its name as submitted in the second registration proceedings. In this connection the article quoted a letter by Mr Vraniškovski in which he allegedly stated:

“The (Holy) Synod was governed by the idea that the name of the religious community in respect of which we seek registration does not betray the essence of our Church. You know well that Greek-Orthodox does not mean Greek (by nationality) of Orthodox faith, but that name refers to all known Christian Orthodox Churches.”

The article continued, stating that Mr Vraniškovski had further asserted that the second part of the name was reasonable because the “Ohrid Orthodox Archdiocese” was a part of the Peć Patriarchy.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1955 and lives in Ljubljana.

On 21 July 1997 the applicant instituted civil proceedings before the Ljubljana Local Court against M.P. and N.M. requesting the court to determine the validity of a sale contract concluded between the defendants concerning an apartment in a building partially owned by the applicant and proposing that a note on dispute be entered in the Land Register. She indicated as the disputed value SIT 500,000 (approximately EUR 2,100).

On 20 August 1997 the court issued a decision rejecting the applicant’s proposal to enter a note on dispute in the Land Register. The applicant appealed.

On 18 February 1998, after several unsuccessful attempts to serve the applicant’s appeal on the first defendant, the court posted the appeal on the court’s notice board.

On 4 March 1998 the Ljubljana Higher Court dismissed the applicant’s appeal against the decision of 20 August 1997.

Following the applicant’s supervisory appeal to the Ministry of Justice, the court on 18 February 1998 reported to the Ministry that the case could not be given priority.

On 21 April 1998 the applicant requested the court to schedule a hearing.

On 27 March 2000 the applicant requested the court to give priority to her claims which she had lodged with the court.

On 5 April 2000 the court dismissed the applicant’s request.

On 16 June 2000 a third party intervener, D.S., who had in the meantime bought the apartment subject to the proceedings from the first defendant, joined the proceedings by submitting a written statement.

On 1 March 2002 the third party intervener lodged a supervisory appeal submitting inter alia that since the proceedings were still pending she was unable to dispose of the apartment.

The first hearing was scheduled for 13 February 2004 but was subsequently postponed to 26 March 2004.

On 18 March 2004 the applicant lodged written submissions raising the value of the claim to SIT 1,100,000 (approximately EUR 4,600).

On 26 March 2004 the first main hearing was held. The court adopted a decision, modifying the value of the claim as requested by the applicant.

On 11 May 2004 the applicant lodged a request for an interim order.

Between 9 April 2004 and 4 June 2004 three further main hearings were held. On the latter date the court issued its judgment partially upholding the applicant’s claim. The decision was served personally on the applicant and the second defendant and to the first defendant and the third party by posting it on the court’s notice board.

On 27 September 2004 the applicant lodged an appeal against the decision.

On 7 December 2005 the Ljubljana Higher Court returned the file to the first instance court instructing the court that the first defendant should be served the documents related to the appeal in accordance with Section 145 of the Civil Procedure Act and that the court should also decide on the applicant’s request for an interim order.

On 6 January 2006 the Ljubljana Local Court requested the applicant to pay the court’s fees and supplement her proposal to issue an interim order.

On 3 March 2006 the judgment of 4 June 2004 and the applicant’s appeal were served on the first defendant by posting them on the court’s notice board.

On 20 March 2006 the Ljubljana Local Court dismissed the applicant’s request for an interim order. The applicant appealed.

On 21 June 2006 the Ljubljana Higher Court dismissed the applicant’s appeals against the judgment of 4 June 2004 and the decision of 20 March 2006. The applicant lodged an appeal on points of law.

On 23 October 2008 the Supreme Court rejected the applicant’s appeal on points of law on procedural grounds. It held that the Ljubljana Local Court wrongly applied the Civil Procedure Act in allowing a modification of the disputed value at a later stage of the proceedings. It therefore considered as the disputed value the value that had been indicated by the applicant in her claim and accordingly concluded that therefore the disputed value had not reached the threshold for lodging an appeal on points of law. The applicant lodged a constitutional appeal.

On 26 November 2009 the Constitutional Court dismissed the applicant’s constitutional appeal. The decision was served on the applicant on 1 December 2009.


CASE OF GORBUNOV AND GORBACHEV v. RUSSIA

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)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The first applicant was born in 1971 and is serving a prison sentence in the Vologda Region. The second applicant was born in 1975 and is serving a prison sentence in the Kostroma Region.

On 24 October 2005 the first applicant was arrested on suspicion of manslaughter. He remained in custody pending investigation and trial. His defence was carried out by a State-appointed lawyer, M.

On 24 July 2006 the Vologda Town Court found the applicant guilty as charged and sentenced him to nine and a half years’ imprisonment. The applicant, but not his State-appointed lawyer, appealed.

On 13 and 21 November 2006 the applicant informed the Vologda Regional Court that he did not wish to be represented by M. in view of the perfunctory nature of the services that she had provided.

On 6 December 2006 another lawyer, Ye., was appointed to represent the applicant before the appeal court. On the same date she studied the case file.

On 7 December 2006 the Regional Court examined the applicant’s case on appeal. The applicant was in a special room in a detention facility from which he could participate in the appeal hearing by means of a video link. Ye. was present in the courtroom. She did not submit fresh grounds for appeal and made oral submissions to the court that appeared to be based on the grounds for appeal originally filed by the applicant. The court upheld the applicant’s conviction.

According to the applicant, at the beginning of the hearing he asked the court to provide him with an opportunity to meet with Ye. in private to discuss his line of defence. His request was refused. He was then removed from the room where the video conference equipment was installed and thus was prevented from following the appeal hearing which took place in his absence.

According to the Government, the applicant had had ample opportunity to communicate with Ye. prior to the appeal hearing via video link. He did not argue before the appeal court that he had been unable to discuss his case with Ye. in order to make sure that she had a sufficiently thorough knowledge of the case as to be able to carry out his defence effectively. The applicant stayed in the video-conference room throughout the appeal hearing and was not prevented in any way from participating in it.

On an unspecified date the second applicant was arrested and charged with murder and robbery. He remained in custody pending investigation and trial.

On 26 December 2006 the Kostroma Regional Court found the applicant guilty as charged and sentenced him to seventeen years’ imprisonment. The applicant appealed, stating that he was not guilty and that the trial court had erred in assessing the evidence before it.

On 12 April 2007 the applicant asked the Supreme Court (acting as the appeal court) in writing to appoint a lawyer to represent him.

On 18 April 2007 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal. The applicant participated in the hearing by means of a video link. According to the applicant, the quality of the sound was very poor. He could not hear or understand the judges. He stated that he reiterated his request to be represented before the appeal court; that request was refused.

On 16 September 2010 the Court gave notice of the application to the Government.

On 16 March 2011 the Presidium of the Supreme Court of the Russian Federation considered a supervisory review appeal lodged by Deputy Prosecutor General. The court acknowledged that the applicant’s right to be provided with legal counsel had been infringed, quashed the appeal judgment of 18 April 2007, and remitted the matter for fresh consideration to the appeal court. The applicant participated in the proceedings by means of a video link. He was represented by a Stateappointed lawyer, U.

On an unspecified date another lawyer, M., was appointed to represent the applicant. Prior to the hearing before the appeal court, she studied the material in his case file.

On 19 May 2011 the applicant discussed his case with M. by means of a video link.

On the same date the Supreme Court held the appeal hearing. The applicant participated in the proceedings by means of a video link. According to the transcript of the appeal hearing, the applicant agreed that his defence would be carried out by lawyer M. He further asked the court for additional time in which to meet with M. to discuss his defence. The court adjourned the hearing in order to ensure that the applicant could meet with M.

On 20 May 2011 the Supreme Court resumed the hearing. The applicant informed the court that he had discussed the case with M. by means of a video link. The court heard the applicant, M., and the prosecutor. M. did not submit any grounds for appeal; she only made oral submissions to the court that appeared to be based on the grounds for appeal originally filed by the applicant. The Supreme Court upheld the applicant’s conviction in substance, but reduced his sentence to sixteen and a half years’ imprisonment.


CASE OF ASSOCIATION FOR THE DEFENCE OF HUMAN RIGHTS IN ROMANIA – HELSINKI COMMITTEE ON BEHALF OF IONEL GARCEA v. ROMANIA

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Locus standi);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect)

Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

Mr Ionel Garcea was born in 1973 and died on 19 July 2007 in Rahova prison hospital. He had no known relatives.

At the material time, Mr Garcea was serving a seven-year sentence for a rape which he had consistently denied having committed. On the date of the criminal conviction, the courts found that he had full legal capacity (discernământ) and was thus capable of taking decisions and acting freely upon them.

Mr Garcea was held in Jilava and Rahova prisons and prison hospitals. He was diagnosed with epilepsy, personality disorder (impulsive and explosive), polymorphic psychosis and phlebitis of both legs. During his detention he had numerous conflicts with the prison warders, the police and the prosecutor. On several occasions he was reprimanded for “insulting authority” (înjurii aduse cadrelor) and for self-harm (inserting nails into his forehead).

In 2002, when he started serving his sentence, Mr Garcea contacted APADORCH from the police headquarters to inform them of his arrest. He also wrote to the association from prison. The association had paid for his legal assistance in a civil suit for damages brought against the State in connection with his detention in a previous case and in previous criminal proceedings, and had occasionally given him material support, such as medicine, paper, pens and prepaid telephone cards.

According to the official prison records, Mr Garcea received regular check-ups for his mental illness. He was admitted on ten occasions to the psychiatric ward of the prison hospitals for a few days each time. While in hospital he was prescribed medical treatment for his condition, which he often refused to take. On a few occasions he also refused medical examinations and often insisted on being discharged from hospital. On other occasions he signed the hospital consent form for treatment and at times he complained that he had not received medical treatment while in hospital.

On 4 August 2004 Mr Garcea inserted a nail in his forehead. On 9 August he was taken to the psychiatric ward of Jilava prison hospital and then to a civilian hospital. Mr Garcea agreed to have the metal object removed from his head, but later that day changed his mind. His two statements were recorded by the hospital personnel in his medical file.

The nail was ultimately removed and on 13 August 2004 he was discharged from the civilian hospital and sent back to the psychiatric ward of Jilava prison hospital.

At the beginning of 2005 Mr Garcea attempted suicide by overdose and as a result fell into a fourth-degree coma. It is mentioned in his medical record that in the psychiatric ward he refused any medical examinations following his suicide attempt and requested to be discharged.

In May 2005, after a week’s stay in Rahova prison hospital where, according to the medical record, he did not receive any treatment for his phlebitis, Mr Garcea was transferred to Rahova Prison.

In June 2005 Mr Garcea was operated on in a civilian hospital in order to have metal fragments removed from his head (pieces of nails which he had inserted into his forehead). After the operation, the doctors performed a brain scan on Mr Garcea, only to discover that some pieces of metal had been left inside his head. Mr Garcea underwent another operation one month later.

According to his prison medical record, Mr Garcea was monitored by a psychologist in order to help reduce the risk of aggressive behaviour towards himself and others.

Mr Garcea alleged that in August 2004 he had been beaten up by the prison intervention force and then handcuffed and chained to a hospital bed for two weeks.

On 17 December 2004, in reply to an inquiry made by APADORCH into those incidents, the prison administration explained that there was no evidence of a breach of prison rules and that Mr Garcea’s immobilisation had been made necessary by his violent behaviour and had been approved by the prison governor. The official prison records from Jilava prison hospital mention three occasions on which Mr Garcea had been tied to his bed: on 19 and 25 August 2004 and again on 4 September 2004.

In August 2005, members of the APADOR-CH paid Mr Garcea another visit. He complained to them that he had been beaten up on several occasions by the warders. In particular, he stated that on 26 July 2005, at the end of a court hearing, the prison guards had pushed and slapped him in order to make him move faster. He had protested. When they had returned to the prison, the warders had tried to push him into a separate room in order to beat him up. He objected, broke a window and kept a piece of the broken glass in his hand with the intention of killing himself. The warders interpreted his gesture as an attack and called the prison intervention forces, who chained him to a bed and beat him until he lost consciousness. He was then transported to Jilava hospital.

The APADOR-CH complained to the prosecutor’s office attached to the High Court of Cassation and Justice about that incident, but received no answer.

The Government submitted an account of the above-mentioned incidents provided by the prison administration, who denied using any physical force against Mr Garcea. According to the prison administration, Mr Garcea refused to allow the prison guards to guide him to a room in order to be searched and instead became abusive, broke the glass in the door of that room and started moving towards the prison guards wielding a shard of broken glass. A member of the prison staff who escorted detainees from the court house dissuaded Mr Garcea from using the broken glass. According to the prison records, the prison staff handcuffed him because they were aware of his mental illness and of his past attempts to commit suicide. As he continued to be verbally aggressive, the guards attached his arms and legs to a bed and requested medical assistance.

Following their visit of August 2005, members of APADOR-CH complained to the prison administration about the conditions of detention in which Mr Garcea was being held, which they considered inappropriate for his situation. They also urged the prison administration to provide him with medical treatment for his various conditions; they pointed out that his mental health was visibly deteriorating and that despite his repeated visits to hospitals, he had not received adequate and prompt medical treatment. The hospitals’ willingness to provide medicines for him had been counteracted by the delays with which the doctors had issued the necessary prescriptions. They contended that, in their view, the lack of medical treatment for epilepsy and phlebitis amounted to torture. They also urged the prison authorities to stop provoking violent reactions from Mr Garcea through their attitude towards him and to stop using force against him. Lastly, the members of APADOR-CH asked the prosecutor’s office to deal more expeditiously with Mr Garcea’s complaint of illtreatment.

In June 2007, while he was being held in Jilava hospital, Mr Garcea inserted another nail into his forehead. On 7 June 2007 he was operated on in a civilian hospital. He was then sent to the Rahova prison hospital with a diagnosis of sepsis, post-extraction symptoms and acute bronchopneumonia.

From 16 to 26 June 2007 Mr Garcea’s condition continued to deteriorate. The Rahova prison authorities decided to send him back to the civilian hospital for examination and possibly another operation. On 4 July 2007 he was returned from the civilian hospital to Rahova prison hospital, on the basis that his general condition had improved. The medical records of the same date from Rahova prison hospital indicated that the patient’s general condition was serious. He remained in the prison hospital until his death on 19 July 2007. According to the official prison records, he was administered the prescribed antiseptic treatment in the prison hospital.

On 20 July 2007 an autopsy was carried out and the observations were recorded in an autopsy report.

On 27 July 2007 the APADOR-CH asked the prison administration to investigate the medical treatment given to Mr Garcea and the cause of his death. It raised several queries, in particular how Mr Garcea could have contracted bronchopneumonia when he had been held only in hospitals for the past few years. It also asked whether the medical treatment had been adequate, given the lack of reaction by the medical personnel to the continuous deterioration of Mr Garcea’s condition in June and July 2007. The applicant association contended that although under the provisions of Joint Order No. 995/2007 issued by the Ministry of Justice and the Ministry of Health on 6 June 2007 (which replaced a similar order of 2003), a joint committee had to be set up to inquire into the causes of deaths in detention, no such steps had been taken in Mr Garcea’s case.

The APADOR-CH asked to be informed about the progress of the investigations, adding that the deceased had no relatives.

On 1 August 2007 APADOR-CH drafted a report into Mr Garcea’s death and sent it to the prosecutor’s office attached to the Bucharest County Court in order to help the investigation.

In the meantime, on 19 July 2007 the prosecutor had ordered a forensic examination of the cause of Mr Garcea’s death. The medical report concluded that the death had been caused by “multiple organ failure, as a consequence of a cerebral abscess developed because of the repeated introduction of a metal object, necessitating neurosurgery and lengthy stays in hospital”. The report also concluded that there was not enough evidence to suggest that there had been inadequate medical assistance in the case.

On 12 October 2007 the file was sent to the prosecutor’s office attached to the Bucharest Court of Appeal, which, on 23 February 2009, decided not to prosecute the prison doctors for improper conduct and endangering a person incapable of taking care of himself. They sent the file back to the prosecutor attached to the County Court in so far as the complaint concerned allegations of ill-treatment in detention.

The prosecutor’s decision was communicated to the APADOR-CH on 3 March 2009.

The association objected to the decision, but on 9 April 2009 the Prosecutor General from the prosecutor’s office attached to the Bucharest Court of Appeal dismissed the complaint. He considered that the association lacked locus standi to make the objection; he then re-examined the evidence of his own motion and concluded that the prosecutor’s decision was correct.

The APADOR-CH lodged a complaint with the Bucharest Court of Appeal against the decision of the Prosecutor General of 9 April 2009, seeking to have the file sent back and to have an indictment filed by the prosecutor. It argued that Mr Garcea had not received adequate medical treatment in prison and that his death had been caused by medical negligence in the prison hospitals. It also argued that the investigation had not been exhaustive, as the prosecutor had done no more than provide details of the medical treatment that Mr Garcea had received, without examining whether there had been medical negligence in his case. The APADOR-CH also complained that the prosecutor had not examined the allegations of illtreatment.

The Court of Appeal gave its ruling on 22 July 2009. It decided that the APADOR-CH had locus standi, as the High Court of Cassation and Justice had decided, in 2006, that non-governmental organisations acting in the field of human rights had the capacity to object to steps taken by the prosecutor. On the merits, the court found that the prosecutor’s decision was correct, and was supported by the evidence in the file. It therefore dismissed the objection.

The APADOR-CH appealed. It reiterated that Mr Garcea had not received adequate medical treatment and care, which had led to his death, and that there had been no investigation into the allegations of ill-treatment. It pointed out that the prosecutor had failed to request an expert examination of the body.

In a final decision of 21 October 2009 the High Court of Cassation and Justice dismissed the appeal. It reiterated that the APADOR-CH had locus standi to pursue the complaint, but found that on the merits, the prosecutor’s decisions were correct as there were no indications in the file that the prison doctors had failed to assist Mr Garcea or to provide him with adequate medical treatment.

As for the allegations of ill-treatment, on 23 March 2010 the prosecutor’s office attached to the Bucharest County Court decided not to pursue the investigation on the ground that there was no conclusive evidence to suggest improper medical care. The decision was quashed by the Bucharest Court of Appeal which, on 10 February 2011 sent the case back to the prosecutor, as it considered that the investigation had not been thorough and relevant evidence had not been administered. The court ordered that the investigation be pursued in order to establish:

– the conditions that had precipitated Mr Garcea’s death;

– whether there was a causal link between his introducing metal objects into his skull and his death;

– whether the hospital procedures had been respected concerning the investigations and treatment for his various illnesses;

– the conditions in 2007 which had allowed the self-harm to occur; and

– whether the internal rules of the Jilava prison hospital had been respected.

The investigation is currently ongoing.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Iulia Motoc;Marko Bošnjak;Nona Tsotsoria

The first applicant was born in 1980 and the second applicant was born in 1981. They live in Jdioara and Darova respectively.

On 16 November 2012 the first applicant’s husband, Mr Ciprian Ionel Piu, went to the forest near Jdioara, accompanied by I.M.R. and L.D. The latter was the son of I.D.D., a local police officer

According to the applicants, they all took part in an illegal logging operation. The person who organised the aforementioned operation was L.D. He regularly recruited young men from the village to do this. He bought them alcohol and took them to the forest without providing them with the necessary protective equipment or with any essential safety information. His practices, known by the locals, had created two other victims previously. One of the victims had died and the other had suffered serious injuries. The investigations opened into the aforementioned two incidents had failed to identify and punish those responsible, because of the alleged involvement of local police officers.

According to the first applicant her husband’s death happened in suspicious circumstances and the perpetrators of the offence were police officers and others protected by them. She further stated that on the day her husband went to the forest she and her family were informed by a third party that her husband had met with an accident. They went looking for him and found him dead in the forest.

On 16 November 2012 the Gavojdia Police Department was informed about the incident by a third party.

On the same date, the aforementioned police department, in particular police officers C.S. and M.S., carried out an investigation at the scene of the accident (cercetare la fața locului) in the presence of two assistant witnesses, namely I.M. and V.A.

On the same date the Gavojdia Police Department, namely police officer C.S., opened of its own motion a preliminary investigation against I.M.R. for involuntary manslaughter (ucidere din culpă).

On the same date police officer C.S. asked the Timişoara Forensic Institute to produce a forensic necropsy report. He asked the aforementioned institute to establish the victim’s cause of death, whether the victim’s body had signs of violence, and if so what had caused them, as well as the alcohol level in the victim’s blood.

On 17 November 2012 and 3 October 2013 police officer C.S. took a statement from I.M.R. with regard to the circumstances of the accident.

On the same date the Timiş Forensic Department produced a medical certificate confirming the first applicant’s husband’s death. According to the aforementioned report, his death had been violent and had been caused, inter alia, by a closed angle cranium-cerebral trauma and by the resulting haemorrhage.

On 15 January 2013 the Timişoara Forensic Institute produced the forensic necropsy report (see paragraph 12 above). It concluded that the victim’s death had been violent and had been caused by an acute cardiorespiratory insufficiency following a cranial cerebral trauma and a resulting haemorrhage. Moreover, the signs of violence discovered on the victim’s body could have been caused by being hit with or striking against a hard object in the context of the impugned forest accident. Furthermore, the alcohol level in the victim’s blood was 1.05 grams for every thousand millilitres.

On 6 February, 26 February and 13 May 2013 police officer C.S. took statements from members of the victim’s family, including the victim’s mother and the first applicant, who had asked the authorities, inter alia, to punish those responsible for the death of their relative.

On 8 February 2013 police officer C.S. took a statement from L.D. with regard to the circumstances of the accident.

By a report (referat) of 19 March 2013 police officer C.S. noted that LDIACR and the victim’s family had made repeated requests for the investigated offence to be requalified from involuntary manslaughter to murder. Consequently, he proposed that the case be referred to the Timiş Prosecutor’s Office, which had the competence to investigate such allegations.

In March 2013 the victim’s mother also asked the Lugoj Prosecutor’s Office to open a criminal investigation against L.D., I.M.R. and I.D.D. for murder (omor).

On 26 March 2013 the Lugoj Prosecutor’s Office noted the victim’s family’s requests for a murder investigation and decided to refer the case to the Timiş Prosecutor’s Office, which had the competence to investigate the allegations.

On 8 April 2013 a prosecutor attached to the Timiş Prosecutor’s Office decided not to open a criminal investigation (neȋceperea urmăririi penale) against L.D., I.M.R. and I.D.D. for murder. Moreover, he referred part of the case back to the Lugoj Prosecutor’s Office for the investigation against I.M.R. for involuntary manslaughter to be continued. The prosecutor held that according to the available evidence and the statements of I.M.R. and L.D., the victim’s death had been the result of an accident and had not been caused intentionally by any of the suspects. That decision was communicated to the victim’s mother.

On 22 and 23 May 2013 both the victim’s mother and the first applicant joined the criminal proceedings as civil parties and claimed pecuniary and non-pecuniary damages.

On 17 October 2013 police officer C.S. took the testimony of I.H., one of those familiar with the events which had resulted in the first applicant’s husband’s death.

By a report of 14 November 2013 police officer C.S. proposed not to open a criminal investigation (neȋceperea urmăririi penale) against L.D. and I.M.R. It established that on the day of the incident the first applicant’s husband had gone to the forest by tractor together with L.D. and I.M.R., the owner and operator of the tractor, to collect dried wood. While they had been using the tractor to tow a tree the aforementioned tree had started rolling uncontrollably and had hit the first applicant’s husband on the head, killing him. Because the victim had not been an employee of a company at the time of the accident, what happened could not have been considered a work accident. The witness I.H. had testified that he did not know how many people had gone to the forest that day or any other details concerning the accident. Also, the witness R.S., another person familiar with the events which had resulted in the first applicant’s husband’s death, was unavailable for questioning because he had left the country.

The report held that the first applicant’s husband’s accident was caused by a flawed logging operation, which had not foreseen solutions that could have reduced or eliminated the risks of him suffering an accident. He had not kept a safe distance from the tree which was being towed with a flexible steel cable, so that the directions of its movement could not have been controlled. Also he did not have the appropriate equipment for working in the forest.

The report further held that L.D. had not been close to the area where the accident had happened, and therefore he could not have been responsible for an act of involuntary manslaughter. Furthermore, the impugned act had lacked one of the elements of an offence, namely guilt. An act which had occurred as a result of unforeseeable circumstances (caz fortuit) could not amount to an offence. The suspects had been unable to foresee that event, notably the fact that the tree had changed direction while it was moving, thus killing the victim.

On 26 November 2013 a prosecutor attached to the Lugoj Prosecutor’s Office examined the aforementioned proposal and decided not to open a criminal investigation against L.D. and I.M.R. The decision was communicated to the first applicant’s mother-in-law.

The first applicant’s mother-in-law challenged the decision before a superior prosecutor.

On 27 January 2014 a superior prosecutor attached to the Timiş Prosecutor’s Office allowed the victim’s mother’s challenge, quashed the decision of 26 November 2013 (see paragraph 27 above), and referred the case back to the Lugoj Prosecutor’

In March 2014 the Lugoj Prosecutor’s Office ordered the Lugoj Police Department to reopen the investigation into the circumstances of the first applicant’s husband’s death.

On 11 March 2014 the Lugoj Police Department decided to open a criminal investigation against L.D. and I.M.R. for involuntary manslaughter.

On 19 March 2014 the victim’s mother lodged a challenge (cerere de recuzare) against the investigators of the case and asked for the investigation to be carried out by investigators outside Timiş County. She alleged that the inquiry had been delayed by the investigators and that they had been trying to unlawfully protect those responsible.

On an unspecified date the victim’s mother informed the Lugoj Prosecutor’s Office that her challenge had not concerned police officer C.A., who was investigating the case after the reopening of the proceedings, or the prosecutor who was supervising the aforementioned police officer.

On 7 April 2014 a prosecutor attached to the Lugoj Prosecutor’s Office dismissed as inadmissible the victim’s mother’s challenge (cerere de recuzare) against the investigators of the case and her request for the investigation to be carried out by investigators outside Timiş County. It held, inter alia, that the victim’s mother had failed to indicate any of the reasons provided by law for a challenge in order to support her application. Furthermore, there had been no evidence that police officer C.A., had lacked impartiality. The decision was communicated to the victim’s mother.

On 19 May, 23 and 24 June 2014 the Lugoj Police Department questioned I.M.R. and L.D. and took R.S.’

On 20 May 2014 the Lugoj Police Department asked an appointed expert to produce a technical expert report by 10 June 2014 in order to clarify the circumstances of the victim’s death and to identify those responsible for the accident.

On 10 June 2014 the aforementioned expert produced his report.

On 24 June 2014 the Lugoj Police Department took the victim’s mother’s statement. In her statement she had acknowledged that she had been given a copy of the technical expert report produced in the case and that she had no objections in respect of the appointed expert or the content of the report.

By a report of 25 June 2014 the Lugoj Police Department proposed to close the criminal investigation against L.D. and I.M.R. It held, inter alia, that once L.D., I.M.R. and the first applicant’s husband were in the forest they had started moving trees from a difficult area to a more easily accessible one, using the tractor being operated by I.M.R. Before they had started moving a fourth tree, L.D. had been sent to collect some of their belongings which had been left in a different location. Meanwhile, the first applicant’s husband had attached the tree to the tractor and had signalled I.M.R. to start moving the tree. During the moving operation, the tree had started rolling uncontrollably and had hit the first applicant’s husband on the head, killing him.

The report also held that according to I.M.R.’s statement the time which had elapsed between the moment he had checked (s-a asigurat) that the first applicant’s husband was at a safe distance from the tree and the moment the victim was hit by the said tree was very short. Once he had realised what had happened he had stopped the tractor immediately and rushed to help the victim. When L.D. had returned with their belongings, I.M.R. had asked him to call the emergency services. As L.D. had not been able to make a phone call in the forest because of poor cellular network, he had decided to rush towards the village in search of a better location for a phone call. Eventually L.D. had reached the village of Jdioara and had managed to call the emergency services. At the same time he had met the victim’s brother and had informed him of the accident. Subsequently, L.D. had gone home in order to wait for the police and the ambulance in order to lead them to the location of the accident. Once L.D. had returned to the location of the accident accompanied by the police, he had been advised to leave again in order to avoid a potential conflict with the victim’s family.

The report further held that R.S., the witness proposed by the victim’s mother, had stated that he had been at work at the time of the accident and had been informed about the victim’s death by telephone.

The report noted that according to the technical expert report the main cause of the accident was the victim’s failure to position himself at a safe distance from the tree and to maintain permanent visual contact with I.M.R. in order to determine whether the moving tree had stopped or had become stuck. Therefore, he had breached the relevant safety and security norms for working in the forest and had not been wearing protective equipment, in particular a helmet. If the victim had been positioned correctly, the accident would not have happened even if the tree had started rolling. Another important cause of the accident was the fact that according to the toxicology report the victim had been working under the influence of alcohol.

Relying on the aforementioned considerations and the conclusions of the technical expert, the report concluded that the individuals responsible for causing the accident could not be identified. However, it was clear that the two suspects had not been at fault. Moreover, the relevant legislation concerning work safety had not been applicable because those involved in the incident were not employees.

On 30 June 2014 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close (clasat) the criminal investigation opened against L.D. and I.M.R. The prosecutor held on the basis of the available evidence that none of the suspects had been responsible for the victim’s death. The incident had been the result of unforeseeable circumstances given that the tree had been towed with a flexible steel cable whose direction of movement would have been impossible to control, and there was no appropriate equipment for working in the forest. It would have been impossible for the suspects to foresee the event, as the tree had changed direction while it was moving and thus had killed the victim. Moreover, L.D. was not near the location of the accident at the time. Consequently, there was no connection between his conduct and the act of involuntary manslaughter.

On 3 July 2014 the aforementioned decision was communicated to the victim’s mother at her home address in Lugoj.

The second applicant is the first applicant’s brother.

On 2 July 2013 the second applicant and two of his brothers lodged a criminal complaint with civil claims against L.D. and R.S. for assault, insult, slander and attempted murder. They also lodged a criminal complaint with civil claims against an unidentified gendarme for assault, abuse of office, and misconduct. The second applicant argued that on 30 June 2013 he had visited the first applicant in Jdioara and had taken part in a ceremony commemorating his brother-in-law. After the ceremony had ended he had been followed by L.D. and R.S.; the former had hit him, rendering him unconscious. Subsequently, both L.D. and R.S. had punched and kicked him. After a police officer and two unidentified gendarmes had arrived at the scene of the incident, he had been threatened, caught by the nose, slapped and cursed by one of the two unidentified gendarmes.

On 4 July 2013 the Timişoara Forensic Institute produced a forensic report concluding that the second applicant had suffered traumatic lesions which could have been sustained on 30 June 2013 and could have been the result of being hit by or against hard objects. Moreover, the lesions had required seven days of medical care, in the absence of complications.

The forensic report noted that the forensic examination had established that the second applicant had suffered a bruised left eye and injuries to the lower and upper lip and to his forehead. Moreover, it noted that according to the medical documents produced by the Lugoj Town Hospital on 1 July 2013 the second applicant had been taken to hospital by ambulance and had suffered, inter alia, an acute closed cranium cerebral trauma and contusions on the nasal pyramid, lower jaw and thorax.

On 27 June 2014 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case on the grounds that there was no evidence that the suspects had committed the alleged offence.

The second applicant challenged the decision before a superior prosecutor.

On 6 October 2014 a superior prosecutor attached to the Lugoj Prosecutor’s Office dismissed the second applicant’s challenge and upheld the decision of the lower prosecutor.

On 20 January 2015 the Lugoj District Court allowed the second applicant’s appeal, quashed the Lugoj Prosecutor’s Office’s decisions, and referred the case back to the aforementioned prosecutor’s office in order for a criminal investigation to be opened against L.D. It held that the prosecutor’

On 23 June 2015 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case in respect of L.D. At the same time it disjoined part of the case and referred it back to the Gavojdia Police Department in order to continue the investigation and identify the perpetrators of the alleged offences. The prosecutor noted that even though the victims of the incident had been heard again and they had repeated their earlier statements as well as their request for those against whom they had complained to be punished, they had not asked for additional evidence to be adduced to the case file. Also, seven witnesses had been heard again in the case, but none of them had provided new information about the events of 30 June 2013. None of the said witnesses could have confirmed that L.D. or another person had hurt or threatened the second applicant. Only one of the witnesses had testified that he had seen the second applicant on the ground at the site of the incident and that the latter had told him that L.D. had hit him. However, the aforementioned witness had also stated that at the moment of his conversation with the second applicant he had not seen L.D. in the area and therefore he could not have confirmed the second applicant’s statement.

The prosecutor also noted that even though the victims of the incident had later declared that they knew the identity of the perpetrators, at the time of the incident and after the police had arrived they had been unable to identify the perpetrators and had stated that they did not know their identity.

The prosecutor further noted that one of the witnesses proposed by one of the second applicant’s brothers had not been heard because he had left the country and no substitute had been suggested. Also the applicant’s other brother, who had also been involved in the incident, was not interviewed after he had lodged his complaint against the alleged perpetrators, and there was no evidence that he had been threatened or coerced to remain silent.

The prosecutor held that even though the occurrence of the incident of 30 June 2013 had not been contested and had been proven by the available forensic report, it was not possible to establish clearly that L.D. or R.S. had committed the alleged offences, as they had not been seen at the site of the incident or in the company of the victim. Given the absence of direct and clear evidence which could have proven L.D.’s or R.S.’s guilt, there is doubt that they committed the alleged offences, which works to their advantage.

The second applicant challenged the decision before a hierarchical prosecutor.

On 21 July 2015 a superior prosecutor attached to the Lugoj Prosecutor’s Office dismissed the second applicant’s challenge and upheld the decision of 23 June 2015.

The applicant appealed against the Lugoj Prosecutor Office’s decisions before the domestic courts. He argued, inter alia, that the decisions of the prosecutor’s office had been unfair and unlawful and had both protected and failed to investigate the State agents involved in the incident.

By a final judgment of 6 October 2015 the Lugoj District Court dismissed the second applicant’s appeal and upheld the decisions of the prosecutor’s office. It held that the investigating authorities had heard evidence from the victims, the suspects and the witnesses in the case and had correctly established the facts of the case.

To the knowledge of the Court the investigation against other possible perpetrators of the incident of 30 June 2013 is still open.

On 14 January, 8 March, 2 July, and 10 December 2013 the applicants or their family informed LDIACR about the abuses that had allegedly been committed against them and against their family by L.D., R.S. and certain local police officers on 16 November 2012 and after that date. Moreover, they voiced their concern that the investigations initiated into the first applicant’s husband’s death and into the incident of 30 June 2013 had been suppressed and delayed because of the family relationships between one of the suspects and several local police officers. Consequently, they asked LDIACR for help in punishing those responsible.

On 8 and 13 February 2013 LDIACR informed the Romanian Ministry of the Interior and the Timiş County Police Department about the applicants’ and their family’s allegations, including the alleged family relationships between one of the suspects and several local police officers, and asked them for an investigation.

On 17 April 2013 the Internal Affairs Department of the Timiş County Police Department informed LDIACR, inter alia, that the issues raised by the non-governmental organisation in its notifications could not be established as fact.

On 17 October 2013 the Internal Affairs Department of the Romanian Police notified LDIACR that its allegations did not refer to acts or circumstances which had clearly attested that certain police officers had willfully (cu vinovăție) breached the relevant ethical and deontological standards and/or those concerning the fulfilment of their professional duties.

On 8 February 2013 LDIACR initiated proceedings before the Timiş Prosecutor’s Office denouncing an abuse of office (abuz în serviciu) allegedly committed by the local police officers involved in the investigation of the first applicant’s husband’s death. It argued, inter alia, that police officer I.D.D., together with two other police officers who were his brother-in-law and son-in-law, had manipulated the investigation, had tried to protect their own interests, and had attempted to distort the truth about what had happened on the day the first applicant’s husband died.

On 2 October 2013 a prosecutor attached to the Timiş Prosecutor’s Office decided not to open a criminal investigation against the aforementioned police officers. It held, inter alia, that the three police officers who were the object of the denunciation were identified as I.D.D., G.B. and C.S. Moreover, given the statements taken from the police officers and from the first applicant, there was no indication that I.D.D. and G.B. had committed any act of abuse of office, as they had not been involved in the investigation into the first applicant’s husband’s death. Also, the first applicant’s husband had been asked to take part in the logging operation by L.D., and therefore there had been no indication that I.D.D. had incited the victim to commit an offence. Furthermore, there was no sufficiently strong indication that police officer C.S. had knowingly failed to fulfil or had insufficiently fulfilled his lawful duties during the investigation into the first applicant’s husband’s death, or that he had affected the legal interest of the victim’s family.

The decision was communicated both to LDIACR and to the first applicant.

LDIACR challenged the decision before a superior prosecutor attached to the Timiş Prosecutor’s Office. It argued, inter alia, that its action had been based on statements made by the victim’s family and by villagers. Moreover, the investigators had ignored I.D.D.’s threats and aggressive behaviour towards the family of the victim, as well as the fact that two other similar incidents had happened in the area before 16 November 2012.

On 9 October 2013 a superior prosecutor attached to the Timiş Prosecutor’s Office dismissed LDIACR’s challenge and upheld the decision of the lower prosecutor. The decision was communicated to LDIACR.


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

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicant company, S.C. Textinc S.A., is a Romanian company whose registered office is in Timişoara.

On 12 December 2008 the Timişoara Finance Inspectorate (hereinafter, “the T.F.I.”) instituted enforcement proceedings against the applicant company on the grounds that it had an outstanding tax liability for the year 2008 amounting to 237,128 Romanian lei (RON).

The applicant company, represented by its appointed lawyer, Mr. P. Sălăjan, challenged before the Timişoara District Court the T.F.I.’s decision to open enforcement proceedings. It claimed that it had no outstanding fiscal debts and submitted documentary evidence in this respect.

At the first hearing in the proceedings the T.F.I. acknowledged that the applicant company had no outstanding tax liability and that the enforcement proceedings had been instituted in error. Invoking Article 275 of the Romanian Code of the Civil Procedure (hereinafter, “the CCP” – see paragraph 15 below), it also contended that as it had acknowledged its error at the first hearing in the proceedings it should not be ordered to pay the costs and expenses incurred by the applicant company.

By a judgment of 16 February 2009 the Timişoara District Court allowed the applicant company’s challenge concerning the T.F.I.’s decision to open enforcement proceedings and ordered the T.F.I. to pay the applicant RON 9,893; this sum represented respectively the fees of the applicant company’s lawyer (9,700 RON), stamp duty and trial tax (193 RON). The court held that although the T.F.I. had acknowledged its error at the first hearing it could not be exonerated from the payment of the costs and expenses incurred by the applicant company, as the challenge proceedings were the result of a mistake on its part. The court further noted that the T.F.I. had started enforcement proceedings against the applicant company for a non-existent debt and that the latter had accordingly had to hire a lawyer and pay the trial fees in order to defend itself. The court also noted that the applicant company had submitted evidence to support its request for the reimbursement of the expenses it had incurred.

The T.F.I. lodged an appeal on points of law against the judgment of 16 February 2009. It claimed that the first-instance court had not observed the principle of adversarial proceedings and of equality of arms, as it had not had the opportunity to challenge the amount paid by the applicant company in lawyer’s fees, which in its opinion were too high.

By a final judgment of 12 August 2009 the Timiş County Court dismissed the appeal as unfounded. While holding that the lawyer’s fees corresponded to his input in the case, the court reiterated that the judge was entitled to increase or to reduce a lawyer’s fees, according the specific criteria set out by Article 274 of the CCP (see paragraph 15 below). The court thus concluded that the judgment given by the Timişoara District Court was lawful and well-founded; it further awarded the applicant company the amount of 7,596 RON in legal costs in respect of the appeal proceedings.

The T.F.I. lodged with the Timiş County Court an application for the judgment of 12 August 2009 to be set aside (contestaţie în anulare – see paragraph 14 below) on the grounds that the County Court had not examined all the arguments that it had raised in its appeal on points of law; the T.F.I. referred in particular to the fact that before the Timişoara District Court they were not given the possibility to bring their arguments concerning the amount requested by the applicant company and then awarded in legal costs and expenses by the first-instance court.

In a final judgment of 19 February 2010 the Timiş County Court, sitting in a different formation from that of 12 August 2009, allowed the request: it set aside the judgment of 12 August 2009 (see paragraph 10 above) and allowed the appeal lodged by the T.F.I. against the judgment of 16 February 2009 (see paragraph 8 above), which it partly amended. The County Court held that the appellate court had not examined the arguments raised by the defendant in their appeal on points of law in relation to the manner in which the first instance court applied Article 274 § 3 of the CCP (see paragraph 15 below); in particular, the first instance court had not allowed the parties to bring their arguments concerning the amount of the legal costs requested by the applicant company. Such an omission was sufficient, in the County Court’s view, to justify the quashing of the previous judgments.

The County Court then re-examined the amount paid by the applicant company in lawyer’s fees and considered that in relation to the lawyer’s input in the case, it was justified to reduce that amount from RON 9700 to RON 700. It also considered that the stamp duty and trial tax in the amount of 193 RON were not to be granted to the applicant company, in so far as this amount could be requested separately from the fiscal authorities, based on the Law no. 146/1997 on stamp duty, as a consequence of the fact that the challenge to the enforcement had been allowed.