Recent Decisions and Judgments

Janowiec and Others v. Russia (nos. 55508/07, 29520/09) – Admissibility Decision 5 July 2011.  Applicants are 15 Polish nationals living in Poland and the United States. This case is the result of the joinder of two applications concerning the death of the applicants’ relatives at the hands of the USSR authorities in 1940.  It concerns the investigation into their death and the proceedings for their rehabilitation.

The applicants complained that Russian authorities had not discharged their duties under ECHR Article 2 to conduct an adequate and effective investigation into the death of their relatives. The applicants further complained that lack of information about the fate of their relatives and the Russian authorities’ dismissive approach to their requests for information constituted inhuman and degrading treatment in breach of Article 3 of the Convention. Under Article 6 the applicants complained that domestic proceedings had been unfair because they had been refused victim status and the courts had dismissed their appeals, leading to an Article 13 complaint of lack of effective remedy.

Finally, applicants complained of Russian authorities’ refusal of their applications (Article 8, right to family life) and of lack of information on the burial places of their relatives (Article 9, freedom of conscience, religion, or belief). The Court found admissible the complaints concerning the alleged inadequacy of the investigation into the massacre resulting in the deaths of their relatives and the allegedly degrading treatment inflicted on them by the Russian authorities. The remainder of the application was judged, unanimously, to be inadmissible.

For the case related to the Article 9 issue specifically, see Wołk-Jezierska and Others v. Russia (no. 29520/09).

Sotirov and Others v. Bulgaria  (no. 13999/05) – Admissibility Decision 5 July 2011. Applicants are 292 Bulgarian nationals, Christian Orthodox believers. For many years they attended religious services at the St. Anastassiy Temple in Varna. Some of the applicants are members of the church council governing the St. Anastassiy Temple. Since 1991 and until the events at issue, the parish priest at the St. Anastassiy Temple was Mr. L. Popov, also one of the applicants.

For a number of years after the fall of communism and the beginning of the democratic changes in Bulgaria, the Bulgarian Orthodox Church was divided. Two groups of leaders claimed legitimacy and sought to unite the believers under their leadership. The applicants supported the “alternative Synod” presided over by Metropolitan Inokentiy and did not accept the leadership of Patriarch Maxim and the Synod presided over by him.

The applicants complained under Article 9 of the Convention that in an incident at the St. Anastassiy Temple in May 2003 their priest and their church council were forcibly removed in an unlawful manner and that, by refusing to offer protection or take other remedial action, the State de facto legalised and upheld an arbitrary intervention in their religious life. Moreover, applicants allege the authorities’ attitude was motivated by the fact that the applicants did not recognise the leadership of Patriarch Maxim, which was the leadership favoured by the Government. The applicants submitted that the violation of their religious rights continued as they were obliged to perform religious rituals outside their temple and their priest and church council have not been reinstated. They also invoked Article 1 of Protocol No. 1 as they were deprived of the possibility to use and govern their temple.

The applicants further complained, relying on Article 13 of the Convention, that they did not have an effective remedy in respect of the above violations of their Convention rights. The prosecutors refused to assist them in respect of the forcible removal and their decisions were not amenable to judicial appeal. Furthermore, as a result of the adoption of the Religious Denominations Act 2002, which provided for ex lege recognition of the Bulgarian Orthodox Church without a registration procedure, it was impossible for the local religious community, represented by Mr Popov, to institute judicial proceedings. In particular, the Regional Court held that the internal authorisation required by Article 165(12) of the Statute of the Church for the institution of proceedings had to be given by the very person who had ordered the unlawful action complained of – the head of the Varna and Veliki Preslav Eparchy Metropolitan Cyril.

The Court held, insofar as the Article 9 complaints are concerned, that the complaint of the State authorities’ refusal to provide ptoection against the “occupiers” is time-barred, and that Article 9 does not guarantee to believers a right to choose the religious leaders of their communities or to oppose decisions by the religions organization regarding the election or appointment of ministers. This part of the complaint therefore was rejected in accordance with Article 35.

For discussion of similar issues see the 2009 decision of the Court in Holy Synod of the Bulgarian Orthodox Church and Others v. Bulgaria (nos. 412/03 and 35677/04).

Association Les Témoins de Jéhovah v. France (no. 8916/05) – Chamber Judgment 30 June 2011. The Applicant, Association Les Témoins de Jéhovah (Association of Jehovah’s Witnesses), alleged that a 1995 French parliamentary report classifying it as a sect resulted in discrimination against the organization, in particular resulting in a tax audit. When the Association declined to declare donations for the requested years, asking instead for the sort of tax exemption granted liturgical associations, automatic taxation procedure was begun against the Association. After failing to prevail in the French courts, the Association brought the matter before the ECtHR, complaining of violation of numerous ECHR provisions.  On 17 June 2008 the Court declared all complaints inadmissible except those alleging that the tax proceedings against the Association infringed Articles 9 and 14. On 29 September 2010 the Court declared the Article 14 religious discrimination complaint inadmissible, as domestic remedies have not been exhausted. The Court considered, however, that the Article 9 complaint of infringement of the right to freedom of religion “raised complex issues of fact and law which could not be resolved at this stage … but required examination on the merits.”  The Court thus declared this part of the complaint admissible and will deliver its judgment on the merits at a later date.

In its judgment of 30 June 2011, the Fifth Section found a violation of Article 9 (right to freedom of religion), noting that the supplementary tax assessment “had concerned the entirety of the manual gifts received by the association, although they represented the main source of its funding. Its operating resources having thus been cut, it had no longer been able to guarantee to its followers the free exercise of their religion in practical terms.” 

The Court found the Article 41 issue not ready for decision and reserved it. The judgment was issued in French only.  Judge Costa expressed a separate opinion, which is annexed to the judgment.

Ouardiri v. Switzerland (no. 65840/09) – Admissibility Decision 28 June 2011. The applicant, an Algerian-born French citizen living in Switzerland, a Muslim and former spokesman at the Geneva mosque, complained that the ban on the construction of minarets, now attached to the Swiss constitution, contravenes Article 9 and Article 14 guarantees against violation of religious freedom and discrimination because of religion. Citing Article 13 of the Convention, the applicant also complained of the lack of effective remedy in Switzerland that would enable a finding that the constitutional amendment at issue is contrary to the Convention.

In a companion case, Ligue des Musulmans de Suisse and Others v. Switzerland (no. 66274/09), the applicant associations made essentially identical claims to that in Ouardiri, and the applications were considered together in the 28 June decision of the Section Section.

By a majority decision of 28 June 2011, the Court found both applications inadmissible. The Court held that the applicants, though they were offended by the affront to their religious beliefs, could not be identified as victims of an event that might happen in the distant future.  Court “reiterated that Article 13 did not guarantee a remedy allowing a State’s legislation to be challenged on the ground of being contrary to the Covention.” The complaints, therefore, were manifestly ill founded and were judged to be inadmissible.

R. R. v. Poland (no. 27617/04) – Chamber Judgment 26 May 2011.  From the Court’s Press Release:  The case concerned a pregnant mother-of-two – carrying a child thought to be suffering from a severe genetic abnormality – who was deliberately denied timely access to the genetic tests to which she was entitled by doctors opposed to abortion. Her child was born with Turner syndrome. The Court held by six votes to one that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) and a violation of Article 8 (right to respect for private and family life).

Under Article 41 (just satisfaction) of the Convention, the Court held that Poland was to pay the applicant 45,000 euros (EUR) in respect of non-pecuniary damage and EUR 15,000 in respect of costs and expenses.