CASE OF MANSUR YALÇIN AND OTHERS v. TURKEY

Remainder inadmissible;Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Respect for parents' philosophical convictions;Respect for parents' religious convictions)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants live in Istanbul. They are followers of the Alevi faith. Mr Mansur Yalçın, Mr Yüksel Polat and Mr Hasan Kılıç all had school-age children. More specifically, E. Polat (Yüksel Polat’s daughter), who completed her secondary schooling in 2007, G. Kılıç (Hasan Kılıç’s son), who completed his secondary schooling in 2010, and T. Yalçın (Mansur Yalçın’s daughter), who completed her secondary schooling in 2010, were attending a secondary educational establishment at the relevant time.

Mr Sofuoğlu stated that, at the time the domestic proceedings were instituted, his son and daughter had completed the second cycle of secondary education and were in higher education.

Ms Serap Topçu and Ms Eylem Onat Karataş, meanwhile, stated that they had attended “compulsory religious culture and ethics classes” at school and that their young children – whose ages they did not specify – would likewise have to attend those classes when they went to school.

In Turkey, school attendance is compulsory for all children between the ages of 6 and 13. For the first four years, children attend primary school (Years 1 to 4). The following four years are spent in the first cycle of secondary school (Years 5 to 8). After that, pupils spend a further three or four years in school, depending on the subjects chosen, in an upper secondary school (lise).

On 22 June 2005 the applicants asked the Ministry of Education to initiate a consultation process with Alevi faith leaders with a view to overhauling the syllabus for religious culture and ethics classes and including Alevi culture and philosophy.

They also requested the introduction of compulsory training for teachers of these classes and the setting-up of a monitoring and supervisory mechanism. They cited in that regard extracts from monitoring reports prepared by the European Commission which were critical of the content and the compulsory nature of the religious culture and ethics classes.

In its reply of 15 July 2005 the Religious Education Department of the Ministry of Education (“the Department”) stated that, in the textbooks used in religious culture and ethics lessons in the primary cycle, priority was given to the teaching of ethical and religious values common to society as a whole. As to the content of the classes at secondary level, the Department stated that, while respecting the same principles, the syllabus took a supradenominational approach (mezhepler üstü) and that the religious culture and ethics textbooks also presented other understandings of Islam. It added that the syllabus for the 2005/06 school year had been drawn up on the basis of this supra-denominational approach, which according to the Department was centred on the Koran, did not favour any particular branch of Islam and respected the principle of secularism. The Department also mentioned that the syllabus for Year 9 (the first year of upper secondary school) featured public figures who had been important in shaping the Turkish understanding of Islam, while the syllabus for Year 11 explained the different interpretations of Islam, and the Year 12 syllabus contained a wealth of information on Alevi-Bektashi (bektaşi) culture. In the same letter, the Department further specified that teacher training had been introduced ahead of the entry into effect of the new syllabus. Lastly, it observed that topics relating to the Alevi faith had been included in the religious culture and ethics syllabus for secondary schools for the 2005/06 school year.

After receiving the letter from the Department rejecting their proposal, the applicants and 1,905 other people challenged the Department’s decision in the Ankara Administrative Court. Referring to the Court’s caselaw on the subject, they argued that the teaching provided in religious culture and ethics lessons could not be said to satisfy the criteria of objectivity and pluralism. In support of their argument they presented six reports drawn up by various experts who had studied the textbooks used for the subject. Referring to the findings of those reports, they maintained that the textbooks in question provided instruction based on a “Sunni” interpretation of Islam and could by no means be regarded as neutral visàvis other interpretations of Islam. They relied in particular on Articles 9 and 14 of the Convention and Article 2 of Protocol No. 1 to the Convention.

The Ankara Administrative Court appointed of its own motion a committee of three experts tasked with drawing up a report on the teaching provided in the context of religious culture and ethics classes.

On an unspecified date a nine-page report written by a professor of Kalam (Islamic religious studies), a professor of education and a professor of religious sociology was added to the case file and sent to the applicants. The report stated in substance as follows.

(i) For the purposes of the study the experts had examined the religious culture and ethics textbooks used in schools by Years 4, 5, 6, 7, 8, 10 and 11 as authorised by the Ministry of Education. The religious culture and ethics syllabus for primary schools had been adopted by a decision of 28 December 2006 of the Supreme Council for Education attached to the Ministry of Education and had been introduced in the 2007/08 school year to replace the previous syllabus of 19 September 2000. The new secondary syllabus had come into effect following a decision of 31 March 2005. The textbooks criticised by the applicants had therefore been prepared under the earlier syllabus.

(ii) The textbooks were structured around three main themes: religious culture, ethics and national and spiritual values. The parts concerning ethics and national and spiritual values covered topics common to all citizens. The part concerning religious culture had been drafted using a supradenominational approach centred on fundamental concepts such as the Koran and the Sunnah (Sünnet), and did not favour any particular branch of Islam.

(iii) The syllabus did not give precedence to any particular faith. On the contrary, the textbooks reflected a supra-denominational approach. The syllabus observed the principle of objectivity and did not give priority to any faith or any religious group. The textbooks and the syllabus were designed to deliver information on Islam using pedagogical methods.

(iv) The use of the religious culture and ethics textbooks written by M. Şahinbaş and A. Kabakçı for Years 4, 5, 6, 7 and 8 had been discontinued in the 2007/08 school year following the changes to the syllabus. They had been replaced by new textbooks written by Ministry of Education committees. The same was true of the textbooks for upper secondary schools, which had been replaced in the 2006/07 school year. In drawing up the new syllabus implemented in the 2006/07 school year, the Ministry of Education had taken full account of the points raised by the applicants.

(v) Unlike the former syllabus, the new syllabus covered topics such as the principles of the Alevi faith, the worship, mystical philosophy, ethical understanding, prayers (niyaz) and collective prayer (cem) of followers of the Alevi faith, and also Alevi principles and rites such as the twelve religious services (12 hizmet), the path to God, the Hizir and Muharram fasts (Hızır ve Muharrem orucu), the four gates (4 kapɪ) and forty levels (40 makam), the three Sunnahs (3 sünnet) and the seven obligations (7 farz). In the course of preparing the school textbooks and choosing the topics relating to the Alevi faith, worship and ethics, extensive recourse had been had to publications written by prominent Alevis.

(vi) While the teaching of religion as such took account of the precepts of the Koran and the life of the prophet Mohammed, the other interpretations of Islam were covered in the context of cultural information. Hence, the textbooks provided information on Alevism, Jafarism (caferilik), Hanafism (hanefilik), Shafism (şafilik), Shiism (şiilik) and the Sufi movements. They also provided teaching on the foundations of Islam and in particular the five prayers, pilgrimage, charity and sacrifice. Around thirty pages were devoted to the Alevi faith.

(vii) In conclusion, the report recommended the addition of references to certain aspects of the Alevi faith, for instance festivals, and specified that the cemevi was a place of cultural exchange for Alevis rather than a place of worship.

On 14 September 2009 the applicants contested the expert report and filed additional pleadings. They submitted that the teaching that was provided focused on the Sunni interpretation of Islam and that the Alevi faith was presented in summary fashion. Providing examples, they argued that much of the information presented contained errors. In particular, they claimed that the symbols linked to their faith had been ignored and that the mosque was presented as the Muslim place of worship. They asserted that certain Sunni Muslim rituals, namely the prayers or Salat (namaz) and ablutions (abdest) were imposed and were presented according to the Sunni interpretation of Islam. They also complained that the experts had denied that the cemevi was the Alevis’ place of worship. They criticised the Year 5 textbook, in which the main rituals of Islam were reportedly listed as Salat, fasting, pilgrimage and charity, arguing that the information provided was confined to the Sunni interpretation of Islam, whereas, in their view, a theological debate was under way as to how Salat should be performed. Lastly, they alleged that the textbooks in question treated the Alevi faith as a tradition or culture rather than as a fully-fledged faith.

In a judgment of 1 October 2009 the Ankara Administrative Court rejected the applicants’ claims on the ground that the refusal of their request by the respondent authorities had conformed to the relevant legislation. The court referred to the findings of the report on the teaching of religious culture and ethics (see paragraph 11 above), taking the view that religious subjects were dealt with using a supra-denominational approach in the textbooks for both the old and the new syllabus. The court considered that the principle of State neutrality had thus been respected and that the new topics had been chosen taking into account the country’s educational needs.

The applicants lodged an appeal on points of law against the firstinstance judgment.

In a judgment of 13 July 2010, which was served on 2 August 2010, the Supreme Administrative Court dismissed the appeal on points of law and upheld the first-instance judgment, which it considered to be in conformity with both the procedure and the law.

The Government provided the following additional information.

Between June 2009 and March 2011 a large number of workshops (çalıştay) had been held in Turkey, attended by leaders of the AleviBektashi and other faiths, with the aim of examining issues concerning the Alevi community. The topics covered included the teaching of religious culture and ethics in primary and secondary schools. Following these workshops it was decided that the Ministry of Education would overhaul the existing syllabus. A special meeting was organised, chaired by the Secretary of State and attended by the leaders of different faith groups in Turkey and Ministry of Education experts. It was decided at the meeting that the process of overhauling the syllabus would be overseen by the Ministry’s Religious Education Department.

A series of meetings was held within the Religious Education Department, designed to allow an exchange of views and to identify the wishes of the different faiths. The meetings were attended by AleviBektashi, Jafari and Alawi (nusayri) leaders and examined the current syllabus and textbooks. In addition, on the basis of the findings of a report prepared by the Alevi-Bektashi, Jafari and Alawi representatives, the syllabus and the textbooks were amended in order to respond – in large part, in the Government’s submission – to the concerns expressed by the leaders of those communities. The new religious culture and ethics textbooks were introduced at the start of the 2011/12 school year. After overhauling the syllabus the national authorities organised training seminars throughout the country for teachers of the subject.

In Turkey, pupils belonging to the Jewish and Christian faiths are exempted from religious culture and ethics classes in accordance with decision no. 1 of 9 July 1990 of the Supreme Council for Education. The latter decided on 25 June 2012 and 14 August 2012 to draw up a religious instruction syllabus specifically designed for Jewish and Christian pupils in primary and secondary schools. To that end, a meeting was held in Istanbul on 10 and 11 September 2012 with Christian spiritual leaders. The national authorities also appointed a university-based coordinator to oversee preparation of the syllabus. At the meetings concerning the new syllabus it was made clear that the spiritual leaders of the faiths concerned were free to design the programme of religious instruction in accordance with their own beliefs, lifestyles and traditions. Accordingly, the Christian representatives sent a draft syllabus to the Ministry of Education and the Jewish representatives informed the Ministry that their syllabus was being finalised. The draft syllabuses will be discussed at a meeting to be attended by representatives of the faiths concerned with a view to adoption of a final version.

The Government produced before the Court a document drawn up by the Religious Education Department of the Ministry of Education. According to this document, those responsible for preparing the syllabus had taken care in drawing it up not to favour a particular faith but instead to adopt a supra-denominational approach. The document also stated that the wishes of the different religious groups had been taken into account and that the children of Alevi citizens were not forced to follow a particular religious teaching or practice. It further specified that the new syllabus had been adopted on 30 December 2010 and had been introduced at the start of the 2011/12 school year.

The document was accompanied by a summary of the new course content and extracts from the textbooks dealing with the various interpretations of Islam. It explained, among other things, that topics relating to the Alevi-Bektashi, Jafari and Alawi communities had been incorporated in the syllabus and textbooks in question. Those topics are set out below.

The textbooks for Years 4 and 5 proposed activities related to the sayings of Ali (son-in-law of the Prophet Mohammed). They also contained passages concerning the importance attached to cleanliness by Haci Bektaş Veli (a leading Sufi and founder of the Bektashi brotherhood in the fourteenth century). Under the heading “Different examples of prayers in our culture”, they dealt with the various interpretations of certain surahs and Alevi-Bektashi prayers. They also referred to the significance of certain days and nights in that faith.

The Year 6 textbook dealt with the five compulsory prayers (namaz) and the call to prayer (ezan) and also took Jafari practice into account. It further referred to the role and importance of Ali in Islam. Lastly, it presented leading figures like Ali er-Riza, Ahmet Yesevi and Haci Bektaş Veli, who had contributed to the adoption of Islam in Turkey.

In the textbook for Year 7, an item concerning the Muharram fast had been added to the chapter on fasting, which also contained an account of the Battle of Karbala. The chapter entitled “Different interpretations within Islam” explored the Alevi-Bektashi faith. This last section addressed the following topics: the different types of cem, the twelve religious services, the semah, the spiritual brotherhood (musahiplik), prayers and the Hizir fast. These topics were also covered in the Year 12 textbook.

Lastly, the textbooks for Years 9, 10 and 11 presented important figures in the Alevi-Bektashi faith and, in different passages, highlighted the role and importance of Ali in Islam.

The applicants submitted three documents in particular to the Court. The first was a research report compiled for the “Educational reform initiative” (Eğitim Reformu Girişimi) by Ms M. Yıldırım, an expert on religious freedom and director of the “Initiative for freedom of religion and beliefs in Turkey”. The report is entitled “An assessment of the religious culture and ethics syllabus for the 2011/12 school year” (2011-2012 Öğretim Yılında Uygulanan Din Kültürü ve Ahlak Bilgisi Dersi Programına İlişkin bir Değerlendirme).

After analysing the religious culture and ethics syllabus for the 2011/12 school year, the expert went on to state as follows:

“Syllabus for Years 1 to 8

If we compare the new syllabus for religious culture and ethics with the previous one, we can see that the changes made do not amount to a thorough overhaul based on principles such as impartiality and objectivity. The changes consisted mainly in adding some new information and moving a few chapters. Among the additions, a long chapter is now devoted to the different interpretations of Islam and certain traditions within Islam (primarily the Alevi-Bektashi and Jafari traditions), including terminology, practices and references.

As to the overall content in terms of the teaching goals and the areas covered, the values and concepts dealt with in the syllabus remain close to those in the previous syllabus and no major changes have been made. Reading materials have been added at the end of each chapter in order to reinforce what has been learnt. In addition, certain principles are spelled out, for instance ‘Pupils shall not be compelled to follow religious practices’ and ‘Pupils shall not be required to learn verses or hadiths by heart or to copy out prayers and surahs other than those contained in the textbooks’ ...

Year 7

... The chapter devoted to the different interpretations of Islam in the old Year 8 syllabus ... is now on the syllabus for Year 7. As to the content, the following topics have been added: ‘The Sufi interpretations of Islam ...’ and ‘The fundamental concepts in the Alevi-Bektashi tradition’. In the same chapter, the notion of a ‘branch’ (mezhep) has been replaced by that of ‘religious interpretation’. With regard to the Alevi-Bektashi tradition, it is stated explicitly that only the following concepts will be covered: ‘cem, cemevi, rizalik, kul hakki, the twelve services, semah, spiritual brotherhood, gülbenk and the Hizir fast’ and that ‘the cemevi is to be considered as the place where the cem takes place’, thereby avoiding stating that the cemevi is a place of worship.

Syllabus for Years 9 to 12

If we compare the new religious culture and ethics syllabus with the previous one, we can see that, as for the other year groups, the changes made do not amount to a thorough overhaul based on principles such as impartiality and objectivity, but consist in a number of additions and the moving around of a few chapters.

Year 12

We can observe that, as regards the acquisition of knowledge through revelation (vahiy) and through reason, the content of the chapter headed ‘Sufi interpretations in Islamic thought’ has been enhanced. [It covers topics] such as ‘The role and importance of ethics in Sufi thought ...’, ‘Different types of cem’, ‘Concepts such as semah, spiritual brotherhood and gülbenk’, ‘The importance of the month of Muharram and of Ashura in our culture’ and ‘The nusayri’ ... The activities include one entitled ‘Learning about the Sufi interpretations’, and it is stated that pupils will be asked to research one of the following topics: the yesevilik, the mevlevilik and the Alevi-Bektashi faith ... . It is [also] stated that topics such as ‘The role of Haci Bektaş Veli in the Bektashi understanding and in the development of the Alevi faith’ will be covered and that ‘in terms of its fundamental underpinnings, the nusayri faith is structured around the Koran ...’.

... Can the syllabus for the compulsory classes in religious culture and ethics be said to be compatible with the Toledo principles?

An analysis of the course content shows that it combines elements of ‘classes on a given religion from the perspective of that religion’, ‘classes providing limited, but relatively objective information on other religions’, ‘classes in ethics rooted in a particular religion’ and ‘classes on Islamic-Turkish civilisation’ rather than classes on religions. In that connection, the syllabus does not state that the course comprises classes on religions; on the contrary, it is stated that it is a course of ‘religious instruction. In Article 24 of the Constitution, the term used is ‘instruction in religious culture’, referring to a knowledge of religious culture drawing on a variety of sources, as opposed to ‘religious instruction’ (see Supreme Administrative Court judgments E.2006/6 – K.2007/481, 28 December 2007, and E.2007/679 – K.2008/1461, 29 February 2008). Moreover, the same Article contains another provision dealing specifically with ‘religious instruction’. In the syllabus, the word ‘religion’ is commonly used to denote Islam, but is sometimes, confusingly, used in the general sense.

The most significant changes in the new syllabus compared with the previous one lie in the addition of terminology, practices and references relating to other interpretations or traditions within Islam. One does not need to be an expert in theology to conclude that the approach, structure and priorities have remained the same, with the diversity existing within Islam being reflected only in a few additions to the previous syllabus.

Brief analysis in the light of the Toledo principles

According to the Toledo principles, teaching about religions should be sensitive, balanced, inclusive, non-doctrinal, impartial, and based on human rights principles relating to freedom of religion or belief. ...

Non-doctrinal

The changes made to the syllabus and textbooks are not such as to alter the doctrinal nature of the classes. The expressions ‘our religion’, ‘our divine scripture’ and ‘our prophet’ are used frequently and are taught as religious dogma.

Impartial

The State’s duty of impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs. However, the fact of stating that the cemevi is a place where the cem is practised amounts to an assessment. The rejection of the generally accepted idea among Alevis that the cemevi is a place of worship is incompatible with the State’s duty of impartiality ...

Assessment of the content in the light of the legal requirements – the State, parents and children

... The fact that, at both primary and secondary level, religious culture and ethics classes are compulsory and include the dogmas and practices of the Muslim faith, and that the children are assumed to be followers of that faith, is liable to result in situations of conflict with parents’ religious and philosophical beliefs... Likewise, the use of expressions such as ‘our religion’, ‘my religion’, ‘our sacred book the Koran’ and ‘our prophet’, and the teaching of the surahs of the Koran and the practice of Salat (namaz) mean that parents who do not subscribe to the Muslim faith may find their children receiving instruction other than that which they wish to pass on to them. Furthermore, the fact that the surahs of the Koran and the practice of Salat are regarded as [knowledge] to be acquired means that children are liable to face a conflict of allegiances with the beliefs handed down by their parents, in breach of the individual’s right not to be compelled to act in a manner running counter to his or her own convictions.

In sum, the changes made to the syllabus for religious culture and ethics are not sufficient to put an end to the violation of parents’ right to ensure [their children’s] education in conformity with their own religious and philosophical convictions ...

Conclusion

Looking at the changes implemented in 2011/12, there has been some progress towards the desired goal, which is to ensure pluralist religious teaching, in so far as the compulsory classes in religious culture and ethics reflect the diversity existing within Islam in Turkey. These classes have also maintained their particular feature of dispensing both ‘teaching of the Muslim religion’ and ‘teaching of other religions’...”

The second document provided by the applicants was a study entitled “Issues regarding religion classes” (Din Dersi Sorunu), prepared on 23 January 2013 by M.K. Kılıç, a teacher of religious culture and ethics and education secretary of the teachers’ trade union Eğitim-İş. The parts of the study relevant to the present case read as follows:

“... From the fourth year of the primary cycle until the end of upper secondary school, the syllabus for the classes in religious culture and ethics has been devised on the basis of the Sunni-Matrudi-Hanafite understanding of Islam. Either no instruction is given concerning other branches of Islam or these are considered as dissident branches (aykırı görüş). The main focus is always on Sunni Islam. Hence, the syllabus has not been prepared using a supra-denominational approach, but on the basis of a wholly denominational one (mezhepçi).

In the textbooks, the Alevi faith is not regarded as a branch of Islam (mezhep). The syllabus deals only with the cultural aspects and folk traditions.

In the textbook used in Year 7, in the chapter entitled “Interpretations within Islamic thought”, the Alevi faith is not regarded either as an interpretation of the faith (itikadi mezhep) or as a theological interpretation (fikhi yorum). It is described instead as a Sufi interpretation, with the result that it is not seen as one of the main branches like Sunnism or Shiism. In the syllabus for Years 7 and 12, the Alevi faith is placed in the same category as the Sunni brotherhoods (Sünni tarikatlar), that is to say, in a subcategory vis-à-vis the main branches, which reduces its value.

From both a faith-based and a theological perspective, however, the Alevi faith is an independent branch of Islam. [It is true that], ... in the Alevi faith, the mystical and Sufi interpretation predominates. However, presenting this faith solely as a Sufi entity does not reflect the reality...

In sum, in the syllabuses and textbooks for the classes in religious culture and ethics:

The Alevi faith is not considered as a branch of Islam in its own right, unlike Sunnism and Shiism.

Directly or indirectly, pupils are taught that the Alevi faith is a Sufi movement and that its rites are merely cultural and folk rituals rather than fundamental rites of Islam.

The Alevi faith is not recognised as a branch (mezhep) of Islam; the tenets of its faith and beliefs are disregarded.

Likewise, the following facts are not acknowledged: the cem, which is the fundamental prayer of the Alevi faith, is the equivalent of the Salat (namaz) of the Sunnis and Shiites. The Alevis’ Muharram fast is the equivalent of Ramadan. The cemevi, the Alevi place of worship, is the equivalent of the Sunni or Shiite mosque. The semah is not a cultural or folk ritual, nor is it a zikr (or dhikr) ceremony (a ritual prayer or litany practised by the Sufi brotherhoods); it is actually a form of prayer.

The saz or bağlama is a sacred instrument for Alevis. The Alevi faith is inseparable from [this instrument]. ...

If the syllabus and textbooks for this course are revised in a manner which takes account of these factors, the issue as regards Alevis [in relation to this course] can be considered to have been largely resolved.”

The third document was a study entitled “Compulsory classes in religious culture and ethics: between pluralist ‘supra-denominationalism’ and majority confessionalism”. It was prepared in January 2013 by A. Yaman, professor at Abant İzzet Baysal University and Chair of Political History, who is also an Alevi leader, more specifically a dede (religious and spiritual leader). The parts of relevance to the present case read as follows:

“...The syllabus for the compulsory classes poses the greatest difficulties for Alevis, as the course content and the training given to the teachers are not compatible with the Alevi approach. The teaching is dispensed by staff whose background is in Sunni beliefs and culture and who are graduates of the imam-hatip (imam and preacher) schools or the faculties of theology, where they follow a curriculum [in line with Sunni beliefs and culture]. Such an arrangement may be regarded as suited to the needs of Sunni citizens ... but it can hardly be acceptable for the same syllabus to be taught to Alevis. It is clear from recent developments that the argument that the course content is ‘supra-denominational’ is false. In that connection, why is it that the textbooks which in 2005 were supposedly ‘supra-denominational’ were amended in 2008 and 2011, with passages on the Alevis being added following the meetings? One particular – and admittedly perfectly respectable – school of religious thought predominates in this course, and the Alevi faith is not adequately represented. Alevi children are caught in a stranglehold between the information they receive at school and that which is handed down by their families. Furthermore, problems arise with certain teachers ...

Taking into account the proposals made by the commission [responsible for revising the content of the syllabus] which was set up following the workshops on Alevi issues (Alevi calıştayları) – and some of whose meetings I myself attended – a collection of the proposed amendments to the textbooks was sent to the Minister of State. [Subsequently] ..., some changes were made to the textbooks for Years 4, 5, 6, 7, 8 and 13 published in 2011. However, if we compare the proposals and the changes actually made, we can see that the number of changes is not nearly sufficient, and that a strategy was adopted that was restrictive and/or sought to exclude certain elements (dışlayıcı). This is naturally a source of dismay. [I think it is fair to say that] the fact that the basic Alevi form of worship, the cem, is presented in the Year 7 and Year 12 textbooks under the section devoted to religious interpretations rather than in the chapter on worship clearly demonstrates that [the syllabus] was not devised on the basis of a supra-denominational approach and that the textbooks were written from a specific perspective.

...The commission’s proposal to recognise ‘the cemevi [as] a place of worship’ was disregarded ... Moreover, it is interesting to note that, whereas Salat is explained in detail using drawings [in the Year 5 textbook] and that, under the heading ‘Learning about the mosque’ [the different parts of the mosque] are illustrated with drawings and poems, no description is provided of any Alevi institution or rule. In these compulsory classes, Alevi pupils can learn about the main forms of worship only according to the Sunni understanding of Islam... Although the commission presented proposals concerning the inclusion of topics relating to the cem and the other Alevi forms of worship [in the chapter on worship of the Year 6 textbook], the approach adopted consists in stating that ‘worship takes the form of Salat’... The Alevi faith is presented in the context of the spiritual brotherhoods and Sufism, including the naksilik and kadirilik brotherhoods, etc., instead of featuring in the chapter on beliefs and worship. [Hence] the cemevi is presented merely as a gathering place for the brotherhoods ...”

The Government expressed doubts as to the objectivity and impartiality of the expert reports submitted by the applicants. They maintained in particular that the documents entitled “An assessment of the religious culture and ethics syllabus for the 2011/12 school year” and “Issues regarding religion classes”, submitted by the applicants, were not the work of academics.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence through legal assistance)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1963 and is detained in Riga.

The applicant was charged with several counts of organising, inciting and aiding various crimes against persons and property. Two of his eleven co-accused, A.D. and V.P., had given evidence against him when questioned by the police between January and May 2001; when giving that evidence they stated that the applicant had incited them to engage in certain criminal activities. They also gave evidence as regards the alleged involvement of their co-accused, P.B., in some of those criminal activities. According to the records of the police questioning, on all but one occasion A.D. and V.P. were questioned by L.Z., a police officer, and they did not ask for a lawyer. Subsequently, when questioned by a prosecutor on 17 October 2001, A.D. stated that police officers had coerced him into incriminating his co-accused, including the applicant; V.P. told the prosecutor that he would testify in court.

The trial commenced before the Kurzeme Regional Court (Kurzemes apgabaltiesa) on 16 April 2003 and lasted until 16 July 2003. During that period at least ten court hearings were held in the presence of the applicant and his defence council.

At the trial, A.D. and V.P. testified that they had never before met the applicant, and that P.B., who had died in the meantime, had been the instigator of some of the crimes. The court read out the pre-trial statements of A.D. and V.P. When invited to explain the discrepancies between those initial pre-trial statements and their subsequent evidence, they claimed that they had been forced to sign the initial pre-trial statements. A.D. submitted that the statements had been illegible and that he had not been given the opportunity to engage a lawyer. V.P. stated that police officer L.Z. had been writing a record of his questioning while another police officer had questioned him. On 3 May 2003 V.P. lodged with the first-instance court a written request for the court to take into account his submission that the police had coerced him into incriminating the applicant.

On 5 May 2003 L.Z. appeared before the first-instance court. She testified that she had taken statements from the accused. She stated that it was possible that another police officer, R.S., had participated in their questioning. On the same day, R.S. appeared before the first-instance court. He testified that while he had questioned A.D. and V.P., L.Z. had been keeping a record of their respective questioning. L.Z. and R.S. denied the allegations of physical or psychological coercion. The applicant’s lawyer, A.V., was given an opportunity to put questions to them.

On 7 May 2003 A.D. submitted a written request to the first-instance court for it to disregard his pre-trial statements as he had been ill-treated and tortured during the pre-trial investigation in order to force him to incriminate his co-accused, including the applicant. Specifically, he had been constantly beaten and ridiculed: electric currents had been applied to his body through his handcuffs, and narcotic substances had been forcibly injected into his veins. Nobody had offered to assign him a lawyer. He had not complained about these incidents at the time because he had been afraid of retribution. However, after the completion of the pre-trial investigation he had complained to the prosecutor, who had ignored his complaint.

In his closing statement, the prosecutor denied the allegations of A.D. and V. P., emphasising that they had not lodged any complaints prior to the first-instance proceedings. During their initial questioning A.D. and V.P. had given evidence in respect of facts which at that stage had not been known to the police. The credibility of their allegations of coercion was further diminished by the fact that following the death of P.B. they had stated that he had been the instigator of some of the criminal activities in question.

On 14 July 2003 the Kurzeme Regional Court delivered judgment. The court cited the initial pre-trial statements of A.D. and V.P. incriminating the applicant. It did not regard as credible their submissions that police officers had pressured them into giving those statements. The police officers had also questioned another co-accused, I.T., who, unlike A.D. and V.P., had not incriminated the applicant. Furthermore, had the police officers pressurised them into giving their statements, they would have contained more details as regards the applicant’s involvement. A.D. and V.P had signed the statements. The court did not find that their right to legal assistance had been restricted. No complaints as regards the alleged ill-treatment had been submitted or noted down in procedural documents by A.D. or V.P., or their lawyers. A.D. and V.P. had made the allegations of coercion in an attempt to explain why they had subsequently given evidence in favour of their other co-accused, including the applicant, and against their late co-accused, P.B.

The Kurzeme Regional Court found the applicant guilty and sentenced him to six years’ imprisonment. It also ordered his detention. As the applicant was not present at the delivery of judgment, he could not be arrested in the courtroom. He was subsequently declared wanted by the police and arrested more than six years later – on 23 November 2009.

On 23 July 2003 the applicant’s lawyer, A.V., lodged an appeal against the first-instance judgment. He argued that the police officers had pressurised A.D. and V.P. into incriminating the applicant.

On 17 March 2004 the appeal hearing was held before the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta). The applicant did not attend the hearing. A.V. submitted that he did not know his whereabouts. The court adjourned the hearing. At the following hearing, held on 25 October 2004, the applicant was represented by a different lawyer, V.K., who had been retained by the applicant’s wife.

On 25 October 2004 the Criminal Cases Chamber of the Supreme Court, referring to Article 442(7) of the Code of Criminal Procedure (Kriminālprocesa kodekss), declined to examine the appeal lodged by A.V. It noted that the applicant, even though he had been summoned, had failed to appear at the two appeal hearings without a valid reason. Similarly, he had failed to attend the closing hearing before the first-instance court. He had been declared wanted and was at large. Given that the applicant had retained V.K. to represent him, he had been aware of the proceedings and had intentionally failed to attend, thereby showing disrespect towards the court. In the applicant’s absence the court was unable to ascertain whether he wished to maintain the appeal lodged by his lawyer. Lastly, proceedings in the case – which required the examination of voluminous material – could not be delayed simply because of the applicant’s unjustified absence.

On 5 November 2004 V.K. appealed against the aforementioned decision to the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments). He argued that he had not been retained by the applicant but by his wife, on the applicant’s instructions (uzdevumā). The applicant had not received any summons and his family had no information about his whereabouts or the reasons for his absence. V.K. relied on Article 6 § 1 of the Convention and complained of an infringement of the applicant’s defence rights.

On 30 September 2005 the Senate of the Supreme Court by a final decision refused to examine the appeal lodged by A.V. It noted that the applicant had repeatedly failed to attend the appeal hearings and that “in the criminal case at hand only the accused could maintain the appeals lodged by their lawyers”. This decision was sent to the applicant’s address and to V.K. on 7 October 2005.

On 27 October 2004 the Criminal Cases Chamber of the Supreme Court delivered judgment with respect to the appeals lodged by the applicant’s co-accused. It found that the first-instance court had correctly assessed the allegations of A.D. and V.P. as regards coercion. It also found that they had made those allegations in an attempt to explain why they had subsequently given evidence in favour of their co-accused, including the applicant.

On 30 September 2005 the aforementioned judgment was upheld by the Senate of the Supreme Court.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicants were born in 1954, 1952, 1964, 1926, 1952, 1960 and 1956 respectively and live in Donetsk.

From the beginning of April 2014 armed groups started to seize official buildings in the Donetsk and Luhansk regions and announced the creation of self-proclaimed entities known as the “Donetsk People’s Republic” and “Luhansk People’s Republic” (the “DPR” and “LPR”).

In response, on 14 April 2014 the Government, who consider the armed groups to be terrorist organisations, authorised the use of force against them in the legal form of an “anti-terrorist operation”.

In June 2014 the armed groups started to seize offices of the National Bank of Ukraine and other regional financial institutions in the Donetsk and Luhansk regions.

On 24 July 2014 the Ukrainian postal service Ukrposhta suspended its operations on the territories of the Donetsk and Luhansk regions that were outside the control of the Government, because of frequent attacks on its vehicles and employees by armed groups.

On 6 August 2014 the National Bank of Ukraine suspended all financial transactions on the territories outside the control of the Government (see paragraph 20 below).

Government forces recaptured some territories in the Donetsk and Luhansk regions, but certain parts of the regions have remained outside the Government’s control since that time. One part of the Donetsk region not under the Government’s control is the city of Donetsk.

On 2 September 2014, following changes in the law, jurisdiction of the courts in the non-controlled areas was transferred to the relevant courts in the neighbouring regions on the territory controlled by the Government (see paragraphs 34 to 36 below).

On 11 November 2014 all social benefit payments in the settlements of the Donetsk and Luhansk regions that were outside the control of the Government were suspended (see paragraph 26 below)

In December 2014 the Donetsk Regional Administrative Court and the Donetsk Regional Administrative Court of Appeal were relocated to the cities of Sloviansk and Kramatorsk, territory controlled by the Government (see paragraphs 37 and 38 below).

The applicants were registered as recipients of social benefits with different departments of the Pension Fund of Ukraine in Donetsk. Some applicants had been receiving their social benefits until 30 June 2014, others until 31 August 2014.

On 16 June 2015 the first and second applicants registered themselves with the Labour and Social Security Department of the Krasnoarmiysk District of the Donetsk region (currently the city of Pokrovsk), controlled by the Government. On the same day their social benefits was reinstated, including social benefits due to them for the period 1 July 2014 to 16 June 2015.

The sixth applicant was registered with the Labour and Social Security Department of the Obolonskiy District in Kyiv on 9 September 2015. However, she did not apply for reinstatement of her social benefits.

The other applicants did not apply to the relevant social authorities on the territory controlled by the Government for reinstatement of their social benefits.

According to the Government, the sixth and seventh applicants travelled from Donetsk to the territory controlled by the Government after their social benefits had been suspended. The Government provided a certificate from the State Customs Office stating that the sixth and seventh applicants had entered the territory controlled by the Government on 31 October 2015, through an authorised checkpoint near the frontline between Ukrainian forces and “DPR” armed groups in the town of Zaitseve.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion)

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

The applicant was born in 1961 and is of Chechen ethnic origin. He is currently serving a prison sentence in Azerbaijan.

The applicant appears to have arrived in Azerbaijan in 2009. In July 2009 he was arrested while attempting to illegally cross the border from Azerbaijan to Russia together with several other individuals.

On 5 April 2011 the Assize Court convicted the applicant, together with a number of other accused, of a number of serious criminal offences committed in Azerbaijan in 2009, including: creation of an illegal organised armed unit; illegal border crossing; illegal possession of firearms, explosives and other weapons; and creation of a network of clandestine flats in Baku as temporary accommodation for members of illegal armed units operating in Chechnya. He was sentenced to fourteen years’ imprisonment. His conviction was upheld by the higher courts. The applicant is currently serving his sentence in Prison No. 11 in Baku.

By a decision of 6 September 2011, an investigator of the Vedeno district department of the interior of the Russian Federation (“the Vedeno ROVD”) instituted criminal proceedings against the applicant under Article 208 § 2 of the Russian Criminal Code (participation in an armed unit not envisaged by federal law), on suspicion that during the period 2000 to 2007, he had been an active member of an illegal armed unit operating in the Vedeno district of Chechnya under the command of Khuseyn Gakayev, and that he was still a member of that unit at the time of institution of the criminal proceedings.

On 10 October 2011 the Vedeno ROVD issued a search warrant in respect of the applicant as a suspect.

On 26 April 2012 it formally charged him as an accused person under Article 208 § 2 of the Russian Criminal Code.

On 18 July 2012 it issued an international search warrant in respect of him.

By a decision of 20 July 2012, the Vedeno District Court of the Chechen Republic remanded him in custody in absentia.

In the meantime, in January 2012 the applicant applied to the Baku Office of the United Nations High Commissioner for Refugees (UNHCR) with a request for asylum. It appears that, since the early 2000s, by mutual agreement and understanding between the UNHCR and the Azerbaijani Government, the processing of asylum applications by people originating from Chechnya was separated from the ordinary government procedure, with applications by members of this group being dealt with directly by the UNHCR. In September 2012 the applicant was interviewed by UNHCR representatives but his application was rejected.

On 24 August 2012 the Russian Deputy Prosecutor General formally requested the Azerbaijani Prosecutor General’s Office to extradite the applicant under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). As an alternative, in the event the extradition was subject to postponement under Article 64 of the Minsk Convention owing to the fact that the applicant was serving a prison sentence in Azerbaijan, he requested the applicant’s “temporary extradition” for a period of three months for the purposes of carrying out necessary procedural steps in the framework of the criminal proceedings pending in Russia.

The extradition request contained a number of assurances: that the applicant would only be prosecuted in connection with the criminal offence he was charged with; that he would not be subjected to torture or illtreatment; and that in the event of “temporary extradition” he would be returned to Azerbaijan no later than three months after being handed over to the Russian law-enforcement authorities.

By a decision of 26 November 2012, the Azerbaijani First Deputy Prosecutor General granted the extradition request and ordered the applicant’s “temporary extradition” to Russia for a period of three months.

The applicant, who had a lawyer, lodged an appeal against that temporary extradition order with the Sabayil District Court, arguing that there was a serious risk that he would be tortured or ill-treated by the Russian law-enforcement authorities if he was extradited.

By an inquiry letter of 17 January 2013, the judge of the Sabayil District Court dealing with the case requested the Baku Office of the UNHCR to provide information about the grounds on which the applicant had requested refugee status, and whether any decision had been taken by the UNHCR in this respect.

By a letter of 23 January 2013, the Baku Office of the UNHCR informed the judge that the applicant’s asylum application had been rejected by the UNHCR “at first instance”, but that he had lodged an appeal against the decision which was awaiting consideration. The UNHCR therefore “strongly requested” that the applicant’s forced return to Russia should be “prevented” until a final decision had been taken by the UNHCR in respect of his application for refugee status.

By a decision of 24 January 2013, the Sabayil District Court dismissed the applicant’s appeal against the temporary extradition order of 26 November 2012. The court noted the following: that there were no grounds in the domestic law or relevant international instruments for precluding his temporary extradition to Russia; that his request for refugee status had been rejected by the UNHCR, therefore he did not have refugee status at the time of examination of his appeal; and that the Russian authorities’ extradition request provided the necessary assurances. The court refused to examine the applicant’s complaints concerning an alleged risk of torture or ill-treatment, noting that he had failed to submit any evidence in that regard.

On 28 January 2013 the applicant lodged an appeal against this decision, reiterating his complaint that he would be subjected to a risk of illtreatment if extradited to Russia, and Chechnya in particular.

On 1 February 2013 the Baku Court of Appeal dismissed the appeal, finding that the Sabayil District Court had reached the correct decision. The Baku Court of Appeal’s decision was silent as to the pending examination by the UNHCR of the applicant’s asylum request and as to his allegations concerning a risk of torture or ill-treatment in the receiving country.

In accordance with the procedural rules concerning appeals against the prosecution authorities’ decisions concerning extradition, no further appeal lay against the Baku Court of Appeal’s decision.

According to the Government, on 1 March 2013 the applicant was interviewed again by the UNHCR in Prison No. 11. In his latest communication to the Court (4 November 2013), he provided no update concerning his pending appeal with the UNHCR.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Erik Møse;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Ineta Ziemele;Johannes Silvis;Josep Casadevall;Julia Laffranque;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Lemmens;Zdravka Kalaydjieva;Ksenija Turković

The applicant, who was born in 1960 and lives in Paris, is a lawyer (avocat), member of the Paris Bar.

On 19 October 1995 Mr Bernard Borrel, a judge who had been seconded by France for the past year as technical adviser to the Djiboutian Minister of Justice, in the context of cooperation agreements between the two States, was found dead 80 kilometres from the city of Djibouti. His half-naked and partially burnt body was lying some 20 metres below a remote road. The investigation by the Djibouti gendarmerie in the days that followed concluded that he had committed suicide by self-immolation.

On 7 December 1995 a judicial investigation was opened at the Toulouse tribunal de grande instance to determine the cause of death. Bernard Borrel’s body, which was repatriated and interred in Toulouse, underwent an autopsy on 15 February 1996. The report concluded that the death was not suspicious, although the body’s state of decomposition did not permit a precise cause to be established.

On 3 March 1997 Mrs Elisabeth Borrel, the widow of Bernard Borrel and also a judge, disputing the finding of suicide, filed a complaint as a civil party, in her own name and on behalf of her two minor children, against a person or persons unknown for premeditated murder. She appointed the applicant, Mr Morice, to represent her in the proceedings.

On 8 and 23 April 1997 two judicial investigations were opened in respect of premeditated murder committed by a person or persons unknown.

In a decision of 30 April 1997 the judicial investigation into the cause of death and the two investigations in respect of premeditated murder were joined.

On 29 October 1997 the Court of Cassation accepted a request by the applicant to withdraw the case from the Toulouse court and it was transferred to the tribunal de grande instance of Paris, where it was assigned on 12 October 1997 to Ms M., assisted by Mr L.L. on 7 January 1998, both investigating judges, who were to conduct the judicial investigation jointly.

On 19 November 1999 a lawyer at the Brussels Bar informed the police that A., a former senior officer and member of the Djiboutian Presidential Guard, who had found asylum in Belgium, had certain revelations to make concerning Judge Borrel. The information thus disclosed was transmitted to the French authorities via Interpol. A judgment of the Versailles Court of Appeal of 28 May 2009 (see paragraph 18 below) records the following sequence of events: Judges M. and L.L. did not reply, owing to the fact that the witness wished to remain anonymous, and the information was not followed up; the witness’s Belgian lawyer thus contacted the applicant, who arranged for the witness to be interviewed by journalists from the daily newspaper Le Figaro and the French TV channel TF1, at the end of December 1999; lastly, it was as a result of the publication and broadcasting of that interview in early January 2000 that Judges M. and L.L. decided to go to Belgium to assist the Belgian investigator in taking evidence from the witness.

On 31 January 2000 Judges M. and L.L. interviewed the witness in Brussels. It was subsequently alleged by A. that he had been pressurised and intimidated by Judge M. so that he would withdraw his testimony, those complaints being expressly made in a letter of 2 February 2000 from his lawyer to the Crown Prosecutor. In addition, the witness accused the public prosecutor of Djibouti of having threatened him to make him recant his statement, and alleged that the head of the Djibouti secret services had ordered the head of the Presidential Guard, Captain I., to draft a statement discrediting him. Captain I. confirmed A’s accusations concerning him.

Proceedings were brought in France against the public prosecutor of Djibouti and the head of the country’s secret services for the procuring of false evidence, and Judge Borrel’s widow and son, the witness A., Captain I., and a French lawyer A.M., who was implicated, intervened as civil parties. Evidence was taken from Judge M. in her capacity as witness. The public prosecutor and the head of the secret services of Djibouti were sentenced, respectively, to eighteen and twelve months’ imprisonment, and ordered to pay damages to the civil parties, in a judgment of the Versailles Criminal Court of 27 March 2008, before being acquitted by the Versailles Court of Appeal on 28 May 2009.

On 2 February 2000, in the context of the judicial investigation in respect of premeditated murder, three professional unions of judges and prosecutors, namely the Syndicat de la magistrature, the Association professionnelle des magistrats and the Union syndicale des magistrats, applied to be joined to the proceedings as civil parties.

On 16 March 2000 the applicant, acting on behalf of Mrs Borrel, requested, first, that evidence be taken from the witness, A., in Belgium, and secondly that a visit to the scene of the crime in Djibouti, in the presence of the civil parties, be organised.

In a decision of 17 March 2000 the investigating judges M. and L.L. accepted the request concerning A., finding that a new interview was absolutely necessary. They refused, however, to agree to a site visit, as such a visit had already been made twice, once in 1999 and again one week before the decision in question, as they did not see “how a visit to the site in the presence of the civil party would, at th[at] stage of the proceedings, be helpful for the discovery of the truth”. They added that during their visit to Djibouti a few days before, they had been accompanied by two experts, including the director of the Paris Institute of Forensic Medicine, adding that the scene had been filmed and photographed on that occasion.

The applicant and another lawyer appealed against that decision. They filed their pleadings with the Indictments Division, like the lawyer acting for the Syndicat de la magistrature, arguing that the last site visit in the presence of an expert could be regarded as a reconstruction from which the civil parties had been excluded, and that the sole aim of the investigation was to demonstrate that the victim had committed suicide. They also requested that the Indictments Division take over the case from the investigating judges and continue the investigation itself.

In a judgment of 21 June 2000 the Indictments Division of the Paris Court of Appeal found that after two site visits in the absence of the civil parties, one of which closely resembled a reconstruction, the need to organise an on-site reconstruction in the presence of the civil parties so that they could exercise their rights was indispensable for the discovery of the truth. Accordingly, it set aside the decision of Judges M. and L.L. on that point. In addition, it withdrew the case from them and appointed a new investigating judge, Judge P., to continue the investigation.

On 19 June 2007 the Paris public prosecutor, further to the request of the investigating judge then handling the case, on the basis of Article 11, paragraph 3, of the Code of Criminal Procedure, issued a statement to clarify publicly that “whilst suicide had once been the preferred theory, the evidence gathered, especially since 2002, now point[ed] to a criminal act”, adding that the experts’ reports had determined that “Bernard Borrel was lying on the ground when liquids were poured over him in a random manner”.

The proceedings are currently still pending.

The Minister of Justice, by acts of 29 June and 16 October 2000, referred to the National Legal Service Commission (Conseil supérieur de la magistrature – the “CSM”), in its capacity as disciplinary board for judges, certain shortcomings attributable to Judge M. in the judicial investigation into the “Scientology” case for which she was responsible and in which the applicant also represented the civil parties. Judge M. was criticised for not devoting the necessary care and attention to the case file, leaving it practically untouched for five years, for having recourse to a friendly settlement procedure which went beyond the jurisdiction of an investigating judge and for not making copies of all the documents in the case file, thus making it impossible to reconstruct the file after its partial disappearance from her chambers. Judge M. requested that the referral to the CSM be declared null and void, particularly on account of the fact that it had been made public by the director of the Minister’s private office at a press conference, even before she had been personally notified of the decision. In parallel, on 18 October 2000, the Indictments Division of the Paris Court of Appeal upheld a request by the applicant for the withdrawal of the “Scientology” case from Judge M.

On 4 July 2000, at a general meeting of judges of the Paris tribunal de grande instance, the issue of the disciplinary proceedings against Judge M. was raised, in particular because they had been announced in the press whereas the judge concerned had not been officially informed and the President of that court had not yet been notified. During that meeting a judge, J.M., stated as follows:

“We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.] It is not forbidden to say that Judge [M.] has our support and trust.”

The general meeting drafted the following motion, which was adopted unanimously:

“The general meeting of judges of the Paris tribunal de grande instance held on 4 July 2000, without disputing the authority conferred on the Minister of Justice to take disciplinary proceedings in the conditions prescribed by law, is surprised to learn from the press that such proceedings have been initiated against Judge [M.], investigating judge in Paris, whereas to date neither the judge herself nor her judicial hierarchy have been officially informed thereof.”

In the context of a magazine interview published in July-August 2000, the chair of the Syndicat de la magistrature, a civil party in the Borrel case, criticised the “lack of impartiality on the part of Judge M. in the Borrel and [L.] cases”, adding that the judges who had signed the motion “could not have been unaware that in two sensitive cases, the Borrel case and the [L.] case, her impartiality was seriously called into question”.

In a judgment of 5 January 2000, the Paris tribunal de grande instance, in a case brought by the applicant as counsel acting for two civil parties, had found the State liable for gross negligence on the part of the courts service on account of the disappearance of the so-called “Scientology” file from the office of Judge M. It awarded damages to the complainants.

On 13 December 2001 the CSM dismissed a plea of nullity from Judge M. and, on the merits, while reproaching her for a certain lack of rigour or a failure to keep track of the case sufficiently, did not impose any disciplinary penalty on her.

On 1 August 2000 Judge P., who had been appointed to replace Judges M. and L.L., drafted a report in which he noted the following chain of events. In response to the applicant’s request concerning the video-recording made in Djibouti in March 2000 and cited by Judges M. and L.L. in their decision of 17 March 2000, Judge P. replied that it was not in the judicial investigation file and was not registered as an exhibit; on the same day, Judge P. asked Judge M. whether she still had the video-cassette; Judge M. promptly gave him a closed and undated envelope with her name on, showing no sign of having been placed under seal, bearing the address of Judge M. as addressee and that of the public prosecutor of Djibouti as sender; the envelope contained a video-cassette and a handwritten card with the letter head of the public prosecutor of Djibouti, these items then being taken by Judge P. and placed under seal. The public prosecutor’s card addressed to Judge M. read as follows (translated from French):

“Hi Marie-Paule,

As agreed, I am sending you the video-cassette of the Goubet site visit. I hope the picture will be clear enough.

I watched the show Sans aucun doute (Without any doubt) on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation.

I’ll call you soon.

Say hello to Roger if he’s back, and also to J.C. [D.].

Speak to you soon.

Best wishes,


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

Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1974 and lives in Łódź.

On 6 June 2007 the applicant was arrested on suspicion of committing a number of offences in an armed organised criminal group.

On 15 June 2007 the Łódź District Court (Sąd Rejonowy) remanded the applicant in custody. The court relied on a reasonable suspicion that the applicant had committed the offences in question. The risk of the applicant fleeing was also taken into account since he had spent almost a year in hiding after a ‘wanted’ notice (list gończy) had been issued against him. The court also referred to the likelihood of a heavy prison sentence being imposed on the applicant after conviction.

The applicant’s detention on remand was extended by the Łódź Regional Court (Sąd Okręgowy) on 4 September 2007, 18 December 2007 and 26 March 2008. Subsequently it was extended by the Łódź Court of Appeal (Sąd Apelacyjny) on 4 June 2008, 22 October 2008, 23 December 2008 and on 25 March 2009. The applicant’s appeals filed against some of the above decisions were dismissed by the Łódź Court of Appeal on 6 February 2008, 2 July 2008, 12 November 2008 and 22 April 2009.

In their detention decisions the courts relied on the original grounds for the applicant’s arrest. They stressed, in particular, the danger of the applicant absconding referring to the fact that he had remained in hiding before his arrest. They further referred to the need to apprehend other members of the criminal group and to obtain additional evidence supporting the case against the applicant. In the courts’ view, the applicant, if released, would try to obstruct the proceedings by passing vital information about the preliminary proceedings onto the other members of the criminal group and by influencing witnesses. The courts concluded that in the context of the applicant’s case, which concerned organised crime, detention on remand was the only security measure to guarantee the proper conduct of the proceedings.

On an unspecified date in 2009 the charges against the applicant were severed to a separate set of the proceedings as he was to undergo a psychiatric examination.

On 16 June 2009 the Łódź Prosecutor of Appeal (Prokurator Prokuratury Apealacyjnej) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of robbery and drug trafficking committed in an organised criminal group.

On 24 June 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant appealed against all of those decisions but to no avail.

In their decisions the courts repeated the grounds previously given for the applicant’s detention. They also stressed the likelihood of a heavy prison sentence being imposed on the applicant after conviction.

Meanwhile, on 28 July 2009, the Łódź Regional Court joined the applicant’s case with the case against the other members of the criminal group. The joined proceedings concerned altogether 29 defendants charged with 102 offences. The prosecution authorities requested that 318 witnesses be heard before the court.

The court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place.

The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and due to problems with sound system in the court room.

In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately.

The bill of indictment was finally read out to the defendants at the hearing held on 27 May 2010.

At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. In particular, the hearing scheduled for 16 August 2010 was cancelled because the applicant and another defendant in the case were feeling unwell. One hearing was adjourned because of the motion for disqualification of the judge lodged by one of the co-accused.

In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty-nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.

Meanwhile, the applicant’s detention on remand was lifted on an unspecified date in late August 2011. He continued to remain in custody as pretrial detention was imposed on him in a separate set of proceedings.

The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses.

Of the fourteen hearings cancelled this year, two were adjourned because of a sickleave of the presiding judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties.

Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants. In particular, the hearing of 28 June 2013 was adjourned because of the absence of the applicant.

The criminal proceedings against the applicant are still pending before the firstinstance court.

On 25 February 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and 20,000 Polish zlotys (PLN) in compensation.

On 11 May 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The appellate court found that, considering the complexity of the case and the number of co-accused, who actively tried to obstruct the proceedings, the first-instance court had conducted the proceedings in a correct and timely manner. Consequently, the court refused to award the applicant compensation.