CASE OF SVYATO-MYKHAYLIVSKA PARAFIYA v. UKRAINE

Preliminary objections dismissed;Violation of Art. 9;Not necessary to examine Art. 6-1;Remainder inadmissible

NORP The applicant association , the NORP - Mykhaylivska Parafiya ( “ the LOC ” ) of ORG of the Kyiv Patriarchate “ Church of DATE in the GPE ” in LOC of GPE , is a religious group . On DATE it had CARDINAL members , a figure which had increased to CARDINAL by DATE according to information provided by its representative on DATE . All the members sit on ORG . The head of the applicant association is PERSON PERSON .

On DATE a group of CARDINAL people , including the head of the NORP , decided to form a religious association under the auspices of ORG . On DATE they decided to build a church and name it the “ ORG of DATE in the PERSON ” . The group lodged a request to register the association with ORG at ORG ( Рада з питань релігій при ORG ) and ORG .

On DATE the ORG registered the group as a religious association of ORG in LOC of GPE ( the “ religious association ” ) .

On DATE ORG informed PERSON that the religious association had been granted permission to build a church for the use of its members .

On DATE the religious association approved its statute and elected its governing bodies ( the Parishioners ' Assembly , ORG and ORG ) . It decided to admit CARDINAL new members to ORG and to elect CARDINAL of its members to ORG and ORG . Mr PERSON was elected as a member of ORG and became its chairman .

On DATE ORG registered changes to the governing bodies of the religious association . Mr PERSON was registered as its chairman , ORG as deputy chairman and ORG as a treasurer of the religious association . The ORG also registered the changes to the composition of ORG .

From the date of its creation in DATE the ORG membership varied from CARDINAL members . In the course of this period the Parishioners ' Assembly was actively involved in making important decisions as to the management and administration of the religious association ( appointment of Chairman , treasurer , supervisory board , approval of appointment of a priest , approval of the statutes of ORG , missions and brotherhoods of the church , important financial and logistical matters and issues related to construction of a new church , etc . ) . Throughout this period My PERSON acted as a Chairman of the religious association and frequently as a secretary during the meetings of ORG .

NORP On DATE the Parishioners ' Assembly passed resolutions for the religious association to change denomination , as it was dissatisfied with the leadership of Archbishop PERSON , the head of the newly registered ORG of Kyiv Patriarchate , and for it to become independent in its organisational , religious and commercial activities . It was also decided that it should act under the religious guidance of the Archbishop of ORG in canonical issues .

On DATE the Parishioners ' Assembly adopted a new statute seeking its registration as a legal entity . The ORG requested Archbishop PERSON of ORG ( Moscow Patriarchate ) to approve the statute . The name of the association was changed to “ Svyato - Mykhaylivska GPE of ORG of the Kyiv Eparchy Church of DATE in the PERSON ” ( the “ NORP ” ; ORG парафія ORG православної церкви Київської єпархії « Храму на честь CARDINAL-ліття хрещення PERSON ) .

On DATE the representative of the President of GPE in GPE made a formal decision to register the statute of the LOC ( статут релігійної організації ) . From that date onwards the LOC , as a registered legal entity , belonged to ORG ( Moscow Patriarchate ) . The new statute stated :

“ ( ... ) CARDINAL . Svyato - Mykhaylivska Parafiya ( a religious group ) is a religious association of ORG of the Kyiv Patriarchate “ Church of CARDINAL,CARDINAL-years of Baptisms in the GPE ” ( hereinafter the ' Parish ' ) and is created for the purposes of mutual affiliation and the spreading of NORP religion and faith . It is composed of secular priests , ministers and laymen and is a part of ORG of the Kyiv PERSON ( PERSON єпархії ORG ) .

( ... ) CARDINAL . The highest governing body of the LOC is ORG , which is eligible in presence of not CARDINAL of members of ORG . Resolutions of the Parishioners ' Assembly shall be adopted by a simple majority .

In its religious activities , the NORP shall be guided by the priest – prior , who shall be elected by ORG . In its administrative - financial activities , it shall be subordinate to ORG .

( ... ) CARDINAL . The Parishioners ' Assembly shall accept new members from clergymen and laymen at their request , provided they are DATE , attend religious services and confession , follow the canonical guidance of the prior and have not been excommunicated by the church or are being judged by the religious court .

( ... ) CARDINAL . All official NORP documents shall be signed by the prior and the chair of ORG ; banking and other financial documents shall be signed by the chair of ORG and the treasurer .

( ... ) CARDINAL . Decisions as to changes and amendments to the statute shall be proposed by ORG and adopted by ORG ...

Changes and amendments to the statute shall be made in the same manner and within the same time - limits as those applicable to the registration of the statute . ”

On DATE the Parishioners ' Assembly , in accordance with a proposal by the new prior , refused to introduce changes and amendments to the statute until the construction of the new church building for the use of religious association was finalised . The proposed statute had to conform to the standard statutes of religious associations belonging to ORG ( Moscow Patriarchate ) .

In DATE and DATE PERSON signed a number of documents relating to the construction of the new church in his capacity as chairman of ORG . These documents , which included contracts and decisions of the architectural and ORG bodies , were accepted by him as the head of ORG and countersigned in a number of instances by various ORG officials .

On DATE the Parishioners ' ORG examined complaints about the management of the church that had been sent to Archbishop PERSON by new lay members . The ORG also decided not to make the changes and amendments to the statute of the NORP necessary for its conformity with the standard statute used by ORG ( Moscow Patriarchate ) ” .

On DATE , the Parishioners ' Assembly examined the construction works at the site of the new church and decided not to make any changes to the statute until the works had been completed . It also heard complaints from ORG members about Mr PERSON 's alleged abuse of funds that had been raised for the construction of the church and against a prior of the NORP , who allegedly had no authority to act .

On DATE a commission set up by the Moscow Patriarchate condemned the economic activities of the NORP , as being badly managed and removed the books of account .

On DATE the Parishioners ' Assembly resolved not to retain Father PERSON as prior and requested Archbishop PERSON of ORG to appoint a different prior . They also condemned the activities of the former prior , Father PERSON , who had allegedly misused charitable aid from GPE and acted fraudulently . ORG also decided to proceed with criminal complaints it had lodged with the police against Father PERSON and Father PERSON .

On DATE CARDINAL members of ORG allowed requests from CARDINAL members of the ORG not to participate in its activities owing to pressure from the GPE Patriarchate on the LOC and the attempts of Father PERSON to split the NORP . CARDINAL members of the ORG were elected as honorary members , with a right of “ advisory vote ” . CARDINAL new member was admitted to the ORG . The ORG condemned the report of CARDINAL November DATE and the decision to remove the LOC 's accounting papers . PERSON also informed the ORG that Father PERSON had unlawfully withheld charitable aid given to the LOC in the amount of MONEY ( ORG ) . The ORG decided not to retain Father PERSON and Father PERSON as their priors and requested their transfer away from the NORP . The ORG was also informed by CARDINAL of its members that Archbishop PERSON refused to discuss with him the internal conflict in the LOC .

According to the applicant association , on DATE the ORG consisted of CARDINAL individuals : Mr GPE , Ms B.I. , Mr PERSON , Mr PERSON , PERSON , PERSON , PERSON , PERSON , Mr K.A. , PERSON K.L. , Mr GPE , PERSON , Mr PERSON ( the Chairman of ORG ) , PERSON , Mr PERSON , PERSON , PERSON , PERSON ORG , Mr S.S. , Mr PERSON , Mr Ts . L. , PERSON . PERSON , PERSON . PERSON , PERSON . PERSON . , Mr PERSON . PERSON , Mr Sch . NORP and PERSON . PERSON

On DATE the Parishioners ' Assembly , with CARDINAL of its CARDINAL members present , decided to withdraw from the jurisdiction and canonical guidance of ORG and to accept that of ORG . The following CARDINAL members of the ORG were not present during the meeting and did not vote for a change of jurisdiction : Mr PERSON , PERSON G.V. , PERSON PERSON , PERSON , Mr M.A. and PERSON . M. The ORG gave authority to CARDINAL members of the ORG , PERSON and Mr PERSON . PERSON . , to lodge a request with the Head of ORG for the registration of the changes and amendments to the LOC 's statute . The ORG requested Archbishop PERSON of the Kyiv Patriarchate to approve the changes and amendments .

On DATE and DATE Archbishop PERSON declared the LOC a part of the Kyiv Patriarchate . He also appointed PERSON Pavlo Osnovyanenko as a prior and spiritual counsellor of the NORP .

On DATE Mr Makarchykov and Mr Ye . Sh . lodged an application with ORG to register the amendments to its statute as a result of the change of denomination .

On DATE Mr PERSON signed a contract on behalf of the NORP with a private contractor “ PERSON ” to ensure the security of the church LOC and the partly - constructed new church .

The applicant association alleges that on DATE the church premises were taken over by CARDINAL clerics and lay people supporting ORG , who had arrived at the church in TIME . All the members of ORG signed a statement condemning this intrusion into their internal affairs by the representatives of another denomination . The construction work on the new church was also disrupted . According to the private firm responsible for security at the church officials of ORG of the ORG had warned them not to intervene in the conflict .

On DATE Archbishop PERSON of the GPE Patriarchate authorised PERSON ( NORP ) , PERSON GPE , PERSON and PERSON and a lawyer of GPE , V.F. Volynets , to hold a meeting of ORG in the ORG .

On DATE , CARDINAL supporters of ORG , who the applicant association alleged were from different churches in the city ( although , according to the ORG , CARDINAL were active members of the LOC ) , held a meeting at which they passed a vote of no confidence in Mr PERSON as chairman of ORG and elected new governing bodies for the church . In particular , they elected a new ORG composed of CARDINAL members ( the “ GPE ” ) , a treasurer and a supervisory board .

The ORG also adopted the model statute for churches belonging to ORG ( Moscow Patriarchate ) . It approved a proposal from PERSON ( NORP ) of ORG to elect Father PERSON ( PERSON ) as the Chairman of ORG . TIME of the meeting of the ORG were approved by the secretary of ORG , PERSON PERSON , on DATE .

On DATE the members of the original ORG requested the Minister of the ORG , the Head of ORG , ORG and other law - enforcement authorities to protect their church and property .

On DATE the Deputy President of the Darnytsky ORG of GPE informed PERSON that he should address his complaints concerning the confiscation of church property to the courts in accordance with Articles CARDINAL and CARDINAL of the Code of Civil Procedure . The Deputy President also advised that any criminal complaints concerning alleged offences had to be lodged with the police or prosecutor with territorial jurisdiction .

On DATE Archbishop PERSON of the Kyiv Patriarchate publicly protested against the “ seizure of the church ” by representatives of ORG . In particular , he stated in letters to the Chairman of ORG , the Minister of the ORG , ORG , the Head of ORG of the ORG , ORG and the Chairman of the ORG that ORG that had resolved to withdraw from the jurisdiction of ORG was the legitimate governing body of the LOC .

On DATE , CARDINAL members of the original ORG composed of CARDINAL members held a meeting to discuss the events of CARDINAL DATE . They elected a ORG with the following composition : Mr PERSON , Chairman ; PERSON , ORG ; and PERSON , Assistant to the Chairman . Mr PERSON was approved as a prior of the NORP , upon a proposal from the Kyiv Patriarchate . The ORG elected ORG and asked Archbishop PERSON to approve their decisions .

On the same date Archbishop PERSON of the GPE Patriarchate informed ORG that the documents that had been submitted for registration of the change of denomination were forged as the majority of the NORP members and its prior opposed the change of denomination to ORG .

On DATE Archbishop PERSON of ORG issued a decree approving the composition of the original NORP governing bodies . He also confirmed that Mr Pavlo Osnovyanenko could serve as a prior of the LOC .

On DATE and DATE CARDINAL private individuals , PERSON and PERSON PERSON , sought membership of the original ORG following their decision of DATE on the change of denomination .

On DATE ORG found a number of infringements of economic regulations by the former managers of the NORP .

On DATE a group of CARDINAL members of ORG ( PERSON ) lodged complaints with the President of GPE seeking his support in resolving the dispute between the GPE and GPE over the church premises and the decision of its members to change denomination .

On DATE the Darnytsky ORG in GPE prohibited access to the church or other NORP property until a court had ruled on the change of denomination . Thereafter , the church LOC and its property were guarded by the police .

On DATE ORG informed ORG that the denomination had been changed as a result of PERSON involvement in financial fraud . It also stated that ORG was illegitimate as it had been convened in violation of LAW statute . Moreover , membership of the NORP was not based on observance of the prior 's canonical guidance , contrary to LAW , as Mr PERSON had influenced decisions not to accept new members who were not loyal to him . The Registry added that the change of denomination was contrary to the current statute of the NORP and ORG internal regulations , including the recommended model statutes ( типовий статут парафії ORG православної церкви ) for religious associations within the GPE Patriarchate .

DATE the NORP members and the Archbishop of the Kyiv Patriarchate lodged a series of formal complaints with a member of parliament ( PERSON ) , ORG , the Minister of the ORG and ORG asking them to take action to prevent the police , who , they said , supported ORG , unlawfully interfering in NORP affairs .

On DATE ORG refused to register the amendments , according to the request of DATE ( see paragraph CARDINAL above ) , on the grounds that they contravened Article CARDINAL of the NORP statute , in that the documents submitted for registration had not been signed by the prior and the Chairman of ORG .

On DATE the Parishioners ' Assembly , composed of CARDINAL members , condemned the actions of ORG in relation to their LOC and its property . They decided to file complaints with the law - enforcement authorities to ensure protection from its unlawful interference with their activities .

On DATE the President of the original Parishioners ' Assembly Mr PERSON complained to the Darnytsky District Prosecutor about the interference in the activities of the NORP . In particular , he alleged that ORG and the police had failed to comply with the resolution of DATE prohibiting access to all the premises of the NORP until the case had been resolved by a court .

On DATE the prior of the NORP and the Chairman of the original ORG lodged a second request for the registration of changes and amendments to the statute of the NORP with ORG . The ORG again informed ORG that on DATE it had decided that Mr Pavlo Osnovyanenko would be its prior and Mr PERSON its chairman and that both had power under the statute to sign documents on behalf of the NORP . No response was received to this request .

On DATE ORG established a committee composed of CARDINAL of its members ( deputies of ORG , PERSON , O.P.K. and PERSON ) and the Head of ORG of ORG to examine the conflict over the ORG - Mykhaylivska Parish .

On DATE the Head of the Darnytsky ORG in GPE warned PERSON that he would be prosecuted if he continued to incite laymen to occupy the church and to confront the supporters of ORG .

On DATE Mr Makarchykov lodged fresh complaints with the Darnytsky ORG asking them to institute criminal proceedings against unlawful occupiers of the church LOC and those responsible for denying him access to the LOC or to his personal belongings in the church .

DATE . On DATE the Kyiv Patriarchate certified that the NORP had been within the FAC since DATE .

On DATE the applicant association instituted proceedings in the ORG claiming that ORG refusal of CARDINAL DATE to register the amendments to the statute of the Svyato - Mykhaylivska Parafiya was unlawful .

On DATE ORG , composed of CARDINAL judges , rejected the applicant association 's claims , finding that the decision of CARDINAL DATE was lawful ( see paragraph DATE above ) . In particular it found that ORG composed of CARDINAL members did not represent the entire religious community , that the documents submitted for registration had not been signed by the authorised persons ( the prior and the chairman of ORG ) and that the members of ORG DATE no longer belonged to ORG , as this minority group had chosen a different denomination . The court concluded that the applicant association was not able to prove that the decision of ORG was unlawful .

ORG held in particular :

“ ... the refusal of ORG to register the amendments to the statute was based on the fact that they had been adopted contrary to the statute and would infringe believers ' rights .

The judicial division holds that the decision [ of ORG ] corresponds to the actual and reflects the rights of both religious communities , and the statute of the LOC ... and the PERSON ' on consciousness and religious organisations ' .

... In accordance with ORG CARDINAL of the statute ... decisions with regard to changes and amendments to the statute must be proposed by ORG and adopted by ORG ...

... As can be seen from TIME of the meeting of ORG of DATE the religious community of the PERSON - Mykhaylivska Parish adopted changes and amendments to the statute of the religious community belonging to ORG [ GPE Patriarchate ] , but was already affiliated to ORG of Kyiv Patriarchate .

... such a method of making changes and amendments to the statute contravenes the PERSON and Articles CARDINAL.CARDINAL and CARDINAL of the statute and undoubtedly infringes the rights of the religious community belonging to ORG [ GPE Patriarchate ] which adopted this statute . Changes to the statute could only be adopted by ORG of this community .

It can be seen that the complaint was lodged by PERSON Makarchykov on behalf of the religious group belonging to ORG [ GPE Patriarchate ] . However this church did not authorise him to act on their behalf , in fact he represents the interests of the religious community belonging to ORG of Kyiv Patriarchate , which was established on DATE and has a right to exist in accordance with the PERSON “ on freedom of consciousness and religious organisations ” ...

Taking into account all of the above , the judicial division considers that the representative of the religious community of ORG of Kyiv Patriarchate , Mr PERSON , failed to prove in court that the refusal of ORG of DATE ... was unlawful . Therefore the complaint must be rejected . ”

On DATE a panel of ORG composed of CARDINAL judges upheld the judgment of DATE . It rejected the applicant association 's cassation appeal because the provisions of the NORP statute contravened the relevant legislation . It also held that the provisions of the statute concerning fixed membership were contrary to the legislation because they did not allow the majority of the religious group to manifest their religion by participating in the administration of church affairs .

In particular ORG held :

“ ... the statute ( articles of association ) of the religious group has to correspond to the legislation in force .

As long as the legislation in force does not provide for a mandatory or other form of fixed membership of the believers with the same religious beliefs , in a legal sense “ parishioners ' assembly ” and the “ general assembly of the religious group ” are identical notions . The judicial division therefore considers that LAW , CARDINAL of the statute ... do not fully correspond to the legislation . This led to the creation of factual obstacles for a majority of the religious community in deciding statutory issues and a violation of their right to manifest their religion ...

The judicial division also finds unsubstantiated the submission that there were no defects in the documents concerning the changes and amendments to the statute of the parish filed on behalf of the religious community . ”

On DATE CARDINAL members of the original ORG lodged a petition with ORG requesting it to initiate supervisory - review proceedings in ORG . No supervisory - review proceedings were initiated , however .

On DATE the Head of the Darnytsky ORG in GPE informed PERSON , in response to his complaints of CARDINAL DATE , that it had found no evidence of the offences alleged in his complaints . He was also informed that he was free to collect his personal belongings from the church to which he had allegedly been denied access .

On DATE the prior of the NORP and Chairman of the ORG lodged new complaints with ORG and ORG requesting them to institute criminal proceedings against those involved in the unlawful seizure of the LOC 's premises and property . They also complained of the refusal of ORG to register the changes to the statute of the LOC on the basis of the joint decision of its members to change denomination .

On DATE ORG asked PERSON to provide it with TIME that had elected PERSON Pavlo Osnovyanenko as its prior , confirmation that the LOC 's prior belonged to ORG and confirmation that the prior 's position had been vacant from DATE to DATE .

On DATE Mr T. , Archbishop of the Kyiv Patriarchate , wrote to the head of the district electricity network asking it to cut off the electricity supply to the church as it had been unlawfully occupied by ORG and ORG was unable to gain access .

On DATE ORG informed Mr PERSON and Mr Osnovyanenko that it had not found any wrongdoing on the part of ORG in relation to the church prosecutor 's inquiries had revealed no unlawfulness whatsoever as alleged by the applicant .

On DATE a Committee of ORG prepared a draft opinion on the situation surrounding the LOC . The opinion was not adopted for examination by ORG as it was signed by CARDINAL of the CARDINAL members of ORG .

On DATE the Parishioners ' Assembly composed of CARDINAL members , CARDINAL of whom were present , decided that Mr S.G. could not remain a member as he had joined a new religious group . ORG discussed the judgment in which ORG had found that ORG contained CARDINAL members . However , it reiterated its view that as from DATE it had been composed of CARDINAL members . CARDINAL of the members of the Assembly ( K.V. and ORG ) reported that their witness statements had been taken incorrectly . The ORG also re - elected the NORP 's governing bodies ( Mr PERSON was re - elected as Chairman ) .

On DATE Mr PERSON lodged a complaint with the Darnytsky District Prosecutor alleging that he had been attacked and injured on DATE by an unknown person who had stolen a briefcase containing official documents belonging to the NORP . He also stated that he had already complained about attacks on him to the police , but that they had failed to act ( the police issued CARDINAL decisions on DATE and CARDINAL DATE refusing to initiate criminal proceedings following allegations by the applicant association ) .

On DATE the Parishioners ' Assembly resolved that a car owned by the NORP should be used for the repayment of the LOC 's debts .

On DATE Mr PERSON was arrested by police officers from the Darnytsky District Department of the Interior and “ invited for a conversation ” at the Department . He was informed that an inquiry was pending in relation to him . In the course of the “ conversation ” it is alleged that Mr PERSON started to curse and swear at the police officers . He was warned that he could be reprimanded , but did not stop . On DATE the judge of the Darnytsky ORG of GPE reprimanded PERSON PERSON for his behaviour ; however , he did not impose any administrative or criminal sanctions on him .

On DATE the Darnytsky ORG of the ORG discontinued criminal proceedings against the applicant association that had been instituted on the basis of a complaint lodged by PERSON the newly appointed prior of the Svyato - Mykhaylivska Parish ( GPE Patriarchate ) , as it had found no evidence of an offence on Mr PERSON 's part .

On DATE the Darnytsky ORG refused to institute criminal proceedings into allegations of abuse of power by the police .

On DATE Mr PERSON requested ORG to register further amendments to the statute of the LOC . A request was signed by CARDINAL members of ORG , CARDINAL of whom ( PERSON ) was a member of the original ORG .

On DATE the Parishioners ' Assembly , composed of CARDINAL members , of whom CARDINAL were present , condemned the ruling of ORG of DATE and decided that the NORP would apply to ORG for the protection of their rights . The ORG gave authority to Mr Makarchykov to represent it in the proceedings before ORG . It also discussed pressure that had been imposed on Ts . O. , PERSON , Mr PERSON and FAC by the domestic law - enforcement authorities and private individuals .

DATE . On DATE the Deputy Minister of the ORG and the Head of ORG of the ORG reviewed Mr PERSON 's complaints and found them unsubstantiated . They further stated that criminal proceedings against Mr PERSON on allegations of theft of property from the church had been discontinued and that the investigator in the case had incurred administrative liability . Similar , complaints were rejected by ORG on DATE .

On DATE ORG decided to register the changes to the statute of the Svyato - Mykhaylivska Parish pursuant to PERSON request of CARDINAL DATE .

On DATE CARDINAL members of ORG held a meeting at which they discussed various pressures that had been exerted on them by the law - enforcement authorities . They decided to seek protection and assistance from ORG of GPE and ORG to resolve the dispute surrounding the LOC . They also accepted a request from PERSON . PERSON , who had been a member of ORG since DATE , to resign her membership owing to pressure that had been put on her brother , a priest of ORG .

On DATE the PERSON ( the successor to the Darnytsky ) ORG reviewed complaints lodged by Mr PERSON 's sister of attacks on her and her son and her allegedly unlawful dismissal from the NORP . It advised her to take her complaint of unlawful dismissal to the domestic courts .

In DATE Mr PERSON 's sister requested asylum in GPE on the grounds of alleged persecution in GPE . She stayed in GPE while her request for political asylum was being reviewed .

The Government informed the ORG that on DATE and DATE the prior of the LOC , PERSON , informed them that Mr PERSON had never been given authority to apply to ORG on behalf of the NORP , as he had ceased acting as the Chairman of ORG on DATE . PERSON also informed the Government that CARDINAL of the original members ( GPE , GPE , PERSON . O. , ORG , Ya . V and ORG ) had decided to remain members . CARDINAL of these ( PERSON . O , ORG and Ya . PERSON ) had withdrawn their signatures from TIME no . CARDINAL of DATE , by which ORG had resolved to change its denomination to ORG .

On DATE ORG of ORG informed the applicant association 's representative that their religious group had separated from the remainder of the LOC and become a religious group within ORG . It noted that they had not registered as a group with ORG .

On DATE the Kyiv Patriarchate informed the ORG that the NORP , consisting of CARDINAL members , was unable to satisfy their religious needs , as they were unable to use their property or LOC . It stated that this was due to the refusal of ORG to register the changes and amendments to the statute of the LOC that had been made in DATE .

DATE . In a letter of DATE , PERSON , PERSON . PERSON . , GPE , PERSON . PERSON , ORG , ORG , GPE , GPE , DATE , PERSON . A. , PERSON . GPE , GPE , GPE . GPE , GPE , FAC and PERSON , all confirmed the complaints made by PERSON to ORG and stated that they were unable to use the church LOC or to practise their religion in the church , which they had previously used for DATE as a religious association .

On DATE Mr Makarchykov and PERSON ( a member of the applicant association ) instituted proceedings against the PERSON - GPE ( GPE Patriarchate ) seeking the return of their personal property that had allegedly been confiscated by ORG in DATE . They also sought compensation for damage .

On DATE the FAC of GPE rejected PERSON and ORG 's claims as unsubstantiated .

It appears from the documents in the case - file that this judgment was upheld by ORG on DATE ( the parties have not provided a copy of the ruling ) . It also appears from the case - file that this ruling was not appealed against .

NORP In DATE PERSON instituted proceedings against the Darnytsky District Department of the Interior for the return of the car that had been transferred into his ownership for the repayment of LOC 's debts before being unlawfully seized by the police . The outcome of these proceedings is unknown .

NORP The applicant association also provided the ORG with a number of documents confirming that PERSON had acted on behalf of ORG from DATE representing its interests in dealings with third parties .

The relevant provisions of LAW read as follows :

“ Everyone has the right to freedom of personal philosophy and religion . This right includes the freedom to profess or not to profess any religion , to perform alone or collectively and without constraint religious rites and ceremonial rituals , and to conduct religious activities .

The exercise of this right may be restricted by law only in the interests of protecting public order , the health and morals of the population , or the rights and freedoms of others .

The ORG and religious organisations in GPE are separated from the ORG , and the school from the ORG . No religion shall be recognised by the ORG as mandatory . ”

The relevant provisions of the LAW read as follows :

“ Religious organisations in GPE shall be created to meet citizens ' religious needs to manifest and disseminate their faith , and shall operate in accordance with their hierarchical and institutional structure , electing , appointing and changing their personnel in accordance with the provisions of their statutory documents ...

Religious organisations in GPE are religious groups , departments and centres , monasteries , religious brotherhoods , missionary societies ( missions ) , religious educational institutions , and also unions composed of such bodies . Religious unions shall be represented by their centres ( departments ) .

No other organisation established on the basis of religion shall be covered by LAW . ”

“ A religious group ( релігійна громада ) is a local religious organisation of believers belonging to a sect , religious manifestation , persuasion , trend or devotion , who voluntarily unite for the purposes of the common satisfaction of religious needs .

The right of the religious group to belong to any church acting within GPE and outside its territorial religious centres ( departments ) for canonical or organisational purposes , and voluntarily to change their affiliation to a particular denomination shall be recognised by the ORG .

There is no mandatory obligation to inform the ORG authorities of the creation of a religious group . ”

Under LAW of the LAW , the statutes of a religious organisation determine its legal capacity . They are adopted at a “ general assembly ” of the believers or during religious assemblies or conferences . The statute must contain information , inter alia , on the type of religious organisation , its religion , current address , place in the structure of the religious union , property status , the rights of the organisation to establish enterprises , mass media sources , other religious organisations or educational institutions , the procedure for making changes or amendments to the statute , and the procedure for deciding property and other issues on the termination of the religious organisation 's activities . The statute must not contravene the law .

In accordance with LAW a religious organisation becomes a legal entity from the moment its statute is registered by the relevant body .

Under section DATE , a religious organisation wishing to become a legal entity must lodge a request for registration on behalf of a minimum of CARDINAL natural persons and the statute of the organisation with the regional , city or ORG , and in GPE with the Government of the LOC . These documents have to be examined within DATE and the relevant body is required to notify the religious organisation of its decision . Changes and amendments to the statute of a religious organisation must be registered in accordance with the same procedure and within the same time - limits . Representatives of the religious organisation attend the meeting of the board which examines the request for registration .

In accordance with LAW , registration can be refused if the statute of the organisation or its activities contravene the law . A reasoned decision refusing registration must be notified to the organisation within DATE .

Under LAW of the LAW the activities of the religious organisation must cease on its reorganisation ( division , merger , consolidation ) or liquidation . New organisations are registered in accordance with section CARDINAL .

Religious organisations have the right to use property , land , buildings and LOC owned by the ORG , non - governmental organisations or citizens ( section CARDINAL ) . Under section CARDINAL these organisations have a right to own , use and dispose of their property . These rights are protected by law ( section CARDINAL ) . Under section CARDINAL religious organisations have the right to create , in accordance with the provisions of their statutes , publishing , commercial , agricultural and other enterprises and charitable institutions have the rights of a legal person .

Religious organisations also have the right to create and maintain places for religious services and ceremonies ( section DATE ) , to acquire religious literature and objects ( section CARDINAL ) , to conduct charitable and other cultural activities ( section CARDINAL ) and to maintain international contacts with foreign religious organisation and believers ( section CARDINAL ) .

The relevant provisions of the rules regulating the activities of religious organisations are as follows .

Under LAW of DATE only registered religious organisations have the right to receive humanitarian aid .

Sections CARDINAL and CARDINAL of LAW of DATE specify that religious organisations have no right to publish and disseminate publications without being registered with the specialised ORG register of publishing organisations .

Under LAW of DATE only registered organisations or legal entities may engage in commercial activities or have capacity to trade .

Under the provisions of LAW of DATE and LAW of DATE religious organisations have the right to use land and water resources for their needs .

In accordance with recommendation no . CARDINAL of ORG of GPE of DATE every religious organisation owns its own property and in the event of a transfer from CARDINAL denomination to another , property and financial matters must be resolved on the basis of the statute of each organisation separately and in accordance with the applicable law .

On DATE ORG refused to institute constitutional proceedings following a request lodged by CARDINAL NORP Members of ORG for an interpretation of the notion of “ church ” which is contained in LAW . In its ruling , ORG recognised the existence of misinterpretations in the legislation of GPE regarding the definition of the notions of “ church ” and “ religious organisation ” . In some instances , these notions were treated as having analogous meanings while in others they were given different meanings .

The relevant extracts from Opinion No . CARDINAL ( DATE ) on the application by GPE for membership of ORG read as follows :

“ ... CARDINAL . Accordingly , in the light of assurances given by the highest authorities of the state ( letter of DATE from the President of GPE , the President of the ORG and the Prime Minister ) , and on the basis of the following considerations , the ORG believes that GPE is able and willing , in the sense of LAW , to fulfil the provisions for membership of ORG as set forth in LAW Every member of ORG must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms , and collaborate sincerely and effectively in the realisation of the aim of the ORG ... ' :

... xi . a peaceful solution to the disputes existing among the NORP churches will be facilitated while respecting the ORG 's independence vis - à - vis the state ; a new non - discriminatory system of church registration and a legal solution for the restitution of church property will be introduced ; ... ”

The relevant extracts from the Report of ORG monitoring committee ' Honouring of obligations and commitments by GPE ' ( doc . DATE , DATE ) read as follows :

“ ... F. Freedom of conscience and religion

GPE undertook to introduce a new non - discriminatory system of church registration and to find a legal solution for the restitution of church property . The present PERSON on freedom of conscience and religious organisations dates back to DATE . Despite the fact that it is regarded as CARDINAL of the best freedom of religion laws in the region , some of its provisions lack clarity . The PERSON limits the forms in which a religious organisation can be created , limits the minimum number of founders to have the statute of the organisation registered to CARDINAL adults ( whereas the same requirement for other civic associations is QUANTITY persons ) , bans creation of local or regional divisions without legal entity status , provides no possibility for granting legal entity status to religious associations , discriminates foreigners and stateless persons . There is a lack of clarity with regard to which organisations are registered by regional state administrations and which by ORG . The law also contains a number of other ambiguous provisions , which leave a wide discretion to the implementing authorities . Hence , the quite progressive law for the time of its adoption now requires significant rewording . At the same time , the current principle of registration of religious organisation statutes in order to obtain the legal entity status and the absence of a requirement for registration of religious organisations as such should be maintained in line with the ORG 's Recommendation CARDINAL ( DATE ) .

NORP The NORP legislation still lacks effective legal tools for restitution of church property . So far restitution was carried out occasionally on the basis of the parliament 's DATE resolution and several presidential decrees . The legal problem of restitution mainly stems from the fact that religious associations have no right to obtain a legal entity status and thus can not possess property . Most of the organisations , which owned the property that should be restituted , ceased to exist and ORG is represented by several organisations . This leads to an ad hoc restitution practice totally depending on the local authorities ' preferences and which in most cases entails not the return of the ownership rights but transfer of property into a gratis rent . We , therefore , call on the NORP authorities to elaborate clear rules on the restitution of religious property . ”

The Report of the monitoring committee of ORG on ' Honouring of obligations and commitments by GPE ' ( Doc . CARDINAL of DATE ) read as follows :

“ C. Freedom of conscience and of worship

One of GPE 's commitments , listed in paragraph CARDINAL , xi . of Opinion No . CARDINAL , is to facilitate ' peaceful solution to the disputes existing among the NORP churches [ ... ] while respecting the ORG 's independence vis - à - vis the ORG ; a new non - discriminatory system of church registration and a legal solution for the restitution of church property should be introduced . '

Following accession , the dispute within the CARDINAL NORP churches in GPE , amongst themselves and with the ORG , has not ended .

Complaints are also expressed by the representatives of various confessions regarding the lack of cooperation by the authorities at local level and the system of taxation . ... There is no sufficiently good coordination between state and local authorities in this respect .

The relevant extracts from Recommendation no . DATE ) ' Religion and change in central and eastern LOC ' read as follows :

“ ... Legal guarantees and their observance

i. to promote conformity of national legislation with LAW , paying special attention to LAW , which states that religious freedoms shall be subject only to limitations prescribed by law and necessary in a democratic society , and to the ruling of ORG ( DATE ) that restrictions on human rights must be motivated by a ' pressing social need ' , and be ' proportionate to the legitimate aim pursued ' ;

ii . to guarantee all churches , religious associations , centres and communities the status of legal entities , if their activity does not violate human rights or international law ... ;

vi . to offer to mediate between conflicting parties , in cases where the latter accept this , for the purpose of settling disputes , while taking care to ensure that government bodies do not interfere in dogma or other internal religious matters ; ... ”

The relevant extracts from the DATE joint report of ORG on GPE reads as follows :

“ ... CARDINAL . NORP The procedure for registration

Courts often do not recognize obstacles placed by executive bodies before the registration of religious organizations as being a violation of the right to freedom of religion and worship .

... In GPE the importance of gaining certain legal status is increased since only in this way can religious formations receive buildings for worship , print and disseminate literature , invite representatives of foreign organizations , organize public actions and receive charitable status , as well as carry out charitable activity . All of this is practically impossible in GPE without the registration of a religious formation , with legal entity status .

... Positive points are the voluntary nature of registration of religious organizations and the possibility for communities to exist without registering themselves . However the status of such unregistered communities and their rights are not defined by the law . Following the positivist logic which prevails in ORG and in other executive bodies , such organizations do not have any rights at all , since they are not set out in law . This applies , for example , to the right of worship in public places , invitations to foreign priests , the right to alternative military service of those who belong to such communities , and many others .

According to the law , religious organizations register their charter ( regulations ) , however they submit far more documents and all of these are checked in accordance with ORG CARDINAL and CARDINAL of the PERSON on religious organizations . That is , in effect , registration is carried out not of the charter , but of the organization itself .

In practice , documents are not checked for their compliance with legislation , but rather the actual religion is assessed . ...

... The procedure for registering a primary religious organization consists of submitting registration documents together with an application signed by not CARDINAL NORP citizens . This application should be considered within DATE , or in exceptional cases , DATE . In practice the application is considered , on average , within DATE , and where a special opinion is needed , and as a precautionary measure , this is deemed necessary in the majority of cases , registration can drag on for DATE . This violation of the law is established administrative practice which has no reasonable justification . ...

No clear grounds are set out in legislation for turning down an application to register a religious organization , and such grounds are substituted by the general phrase : ' the charter of the organization contravenes legislation ' ...

Legislation does not permit the registration of religious organizations with canonical subordination to a spiritual leader ( charismatic organizations ) , since canonical or economic subordination are permitted only to a religious centre ( an organization which unites several religious communities ) , which is already registered . In this way , it is impossible to create religious organizations which belong to new religions and which do not have religious centres . It is similarly impossible to create new churches , since these are understood to be already hierarchical structural unions .

During registration , the ORG bodies return the documents submitted with their comments and their suggestions as far as the charter is concerned , although this is nowhere allowed for by legislation . The ORG bodies ' comments frequently relate to aspects of religious practice and limit the rights of the individual .

There is a general suggestion to move the focus of regulation from the process of registration to monitoring of the activities of religious organizations . ... ”

The relevant extracts from the DATE ORG Report on GPE read as follows :

“ ... CARDINAL . NORP The procedure for registration of religious organisations

In GPE one needs to have a status of a ' legal entity ' in order to engage in virtually any formal religious activities , at least for those involving worship in a building , holding public services or inviting representatives of foreign religious figures , printing or otherwise disseminating literature , etc .

Unregistered communities encounter problems with organizing religious events , inviting religious figures from abroad , arranging alternative ( non - military ) service , etc . Clearly such restrictions are a violation of religious freedom since the right to organize religious services , study and teach religion , publicize ones own beliefs and other activities have a direct impact on the human right to freedom of religion and should not be contingent upon the legal status of an organization .

... The law lacks any clear definition of the legal status of the activities of unregistered religious groups , as a result of which there are sometimes cases of abuse of this status . For example , we are aware of cases where unregistered religious communities rent LOC for religious activities from state or educational institutions which in GPE is prohibited by law .

Although according to the law religious organizations have to register their charter , in practice they are required to provide many other documents as well . That means that essentially it is not the charter which is registered , but the organization itself . It is important to note that the establishment by the legislators of an exhaustive list of forms of religious organizations : a religious congregation , departments and centres , monasteries , religious brotherhoods , missionary societies ( missions ) , seminaries and associations made up of the said religious organizations are a clear violation of the right of individuals to determine the form of their own religious association , as well as of the right to autonomy of the religious group itself , an element of which being able to decide independently on the structure and its form of management .

As regards the time required for registration DATE in accordance with LAW On freedom of conscience and religious organizations ' , this constitutes DATE , including all necessary consultations . However , in practice , the process can drag on for DATE or more . ...

... for multi - religious GPE ... this is not a simple issue . Legal entity status for a religious association or the ORG as an institution would , in the first instance , give property rights to , for example , the churches which are presently in the possession of individual religious organizations ( under the law 's classification communities , monasteries , etc ) . Theoretically they belong to CARDINAL of the faiths , yet the tendency to change , for various reasons , jurisdiction complicates any clear distribution . Current legislation guarantees the right of a particular religious entity in the event that confessional jurisdiction for whatever reason changes to retain the property which that organization acquired . In other words , for the legislators the parish of the ORG can in DATE become the parish of the ORG MP together with its church and property , or vice versa . With the issue remaining unresolved of former property of religious organizations , expropriated under the NORP regime which is now in the possession of another order , is used by several religious organizations , or which belonged to CARDINAL organization and has now been transferred to another – the forcing of the granting of legal entity status to religious associations could heighten old conflict .

At the same time , such a method of regulation violates the structural integrity of a particular religious association , if not de jure , then de facto , and demands if not amendments , then review . Ideally , the state should ensure both possibilities DATE for the existence of separate religious groups which do not form part of any association , and the right of a religious association with clear hierarchical and other structure .

On DATE ORG reversed the resolution of the former Governor of the GPE region , PERSON , on cancelling amendments made to the charter of the PERSON - Pokrovsk Parish of the town of PERSON , according to which the parish had transferred to the jurisdiction of ORG . ORG thus declared as lawful the transfer of the parish from the ORG MP to the jurisdiction of the ORG abroad . The parish also retained their church over which there had been conflict with the other members of the parish who did not wish to change their confessional affiliation . ”


The applicant , Ms Selal Saraç , is a NORP national who was born in DATE and lives in GPE . She is represented before the Court by Mr M. PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the parties , are as follows .

On DATE at TIME the applicant ’s house in PERSON was raided by police officers from the PERSON police headquarters in order to arrest the applicant on suspicion of ORG membership and harbouring ORG members . The applicant had been taken into custody several times in the past , namely in DATE , on DATE and on CARDINAL DATE . During the arrest she was subjected to a body search in the presence of her children , husband and other family members . The applicant , her husband and CARDINAL of her relatives were put in a police vehicle and taken to a doctor for a medical examination . The doctor stated that they were in good health and they were subsequently taken to the police headquarters in GPE .

At TIME the same day the applicant was taken to her house by police officers in order to conduct a search . She took the police officers to the cellar of the house and showed them a bomb which had been given to her by a member of the ORG . The bomb was subsequently destroyed by bomb disposal teams . She was then taken back to the LOC police headquarters .

During her period of detention at LOC police headquarters , the applicant was stripped naked and blindfolded . She was hosed down with cold water , hung from her arms , beaten with a police truncheon and electric shocks were administrated to her sexual organs .

DATE after her arrest , the applicant was transferred to LOC police headquarters . During her detention at GPE police headquarters , the applicant was allegedly blindfolded , stripped naked , held under cold water , given electric shocks , beaten , and raped by a village guard and a police commissioner . She was also forced to walk in a room filled with ice .

While in GPE , the applicant was taken to a doctor at ORG who did not medically examine her but gave her painkillers to relieve her pain . She was then brought back to the PERSON police headquarters where she was detained for DATE during which time she was stripped naked and was interrogated TIME

On DATE a statement was taken from the applicant by police officers while she was still in custody . In her statement , the applicant admitted that she had let the ORG members use her cellar as a shelter , and maintained that the bomb which was found there had been put there by another woman .

On DATE the applicant was brought before the public prosecutor . In her statement , she denied her police statement alleging that it had been taken under duress . She maintained that ORG terrorists had never stayed in her cellar and that the cellar had been designed as a shelter during the Gulf War to protect her family from any possible chemical attack by GPE . As to the bomb found in the cellar , the applicant stated that it had been given to her by a woman whom she did not know and that she had not been aware that it was a bomb . The same day , the applicant was placed in detention on remand .

On DATE the prosecutor at ORG filed an indictment against the applicant together with CARDINAL other accused persons . She was accused of aiding and abetting members of an illegal organisation , an offence defined in LAW . On DATE she was released pending trial .

On DATE , DATE after her release , the applicant ’s house was raided by police officers from the LOC police headquarters and the applicant was taken into custody . She was hung from her arms and hit repeatedly on the head with truncheons as a result of which she lost consciousness . While she was unconscious , her feet were burnt by cigarettes . Following this , she was raped with a truncheon on two occasions . She was threatened by the police officers that if she refused to work as an informer for the police , she would be killed . The applicant refused to work as an informer . She was then taken by car to an isolated place and abandoned .

On DATE the applicant went to ORG where she was medically examined . Following medical examinations carried out DATE in CARDINAL different hospitals and a Nuclear Medical Centre in GPE , and gynaecological and neurological tests , x - rays , thorax graphics , scintigraphic imaging and examinations by an ear , nose and throat consultant as well as a psychiatrist , the doctors drafted a report dated DATE . It was concluded that the applicant ’s allegations of ill - treatment , such as post - traumatic stress , depression , marks on her feet caused by cigarette burns and a pelvic complaint , were compatible with the medical findings .

On DATE the applicant ’s CARDINAL legal representatives filed a complaint with the GPE public prosecutor . In their petition they submitted the applicant ’s allegations of ill - treatment . They also gave the names of the village guard who had allegedly raped her during her police custody .

On DATE ORG found the applicant guilty of aiding and abetting members of an illegal organisation and sentenced her to DATE and QUANTITY months’ imprisonment . The applicant ’s appeal against the judgment was rejected by ORG on DATE .

The Government submitted that the applicant was taken into custody on CARDINAL occasions from DATE to DATE and from DATE to CARDINAL DATE respectively , on suspicion that she was aiding and abetting members of the ORG . However the Government denied that the applicant had been arrested on DATE . In this respect they submitted that the custody records did not mention her name .

Concerning the applicant ’s police custody from DATE until DATE , the ORG maintained that she was held in ORG from DATE and then she was transferred to ORG , where she was held until DATE . She was subsequently transferred back to ORG , where she was held until DATE . The Government further contended that the applicant was taken for a medical examination on DATE and , according to the medical report , there was no sign of injury on her body . It was noted that she had a heart condition . Another medical report was issued on DATE by ORG , which concluded that the applicant had not suffered physical abuse .

The Government further maintained that the applicant had lodged a criminal complaint with the GPE public prosecutor on DATE . On DATE the public prosecutor requested that the ORG submit information about the applicant ’s alleged police custody , and that all relevant doctor reports and official documents be conveyed to the public prosecutor ’s office . Furthermore , on DATE the public prosecutor took a statement from ORG , a village guard , who was accused by the applicant of having raped her . PERSON denied the charges against him . On DATE , the applicant ’s lawyer gave a statement to the public prosecutor , and asserted that she would convey the relevant medical reports and other evidence in the shortest possible time . Despite being notified , the applicant refused to come to the public prosecutor ’s office to give a statement . Moreover , the documents promised by the applicant ’s representative were never conveyed to the public prosecutor . Accordingly , on DATE the public prosecutor delivered a decision of non - jurisdiction on account of insufficient evidence . The applicant did not appeal against this decision .

The Government further submitted that on DATE a search was conducted in the applicant ’s house , as a result of which a shelter and a bomb were found . On DATE the applicant gave a statement to the police , and described in detail her involvement with the ORG . On CARDINAL DATE the applicant was taken before the public prosecutor , and subsequently before the ORG in Criminal Matters . She was remanded in custody . With an indictment dated DATE the ORG public prosecutor instigated criminal proceedings against the applicant and accused her of aiding and abetting an illegal organisation under LAW . On DATE the applicant was released pending trial . On DATE the first instance - court found the applicant guilty as charged and sentenced her to DATE and QUANTITY months’ imprisonment . On DATE , ORG rejected the applicant ’s request for appeal , finding the first - instance court ’s establishment of the facts and evaluation of evidence in line with domestic law and general principles of law .

A description of the domestic law may be found in the Nuray Şen v. GPE decision ( no . PERSON , DATE ) .


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the village of ORG , the Vinnitsa region of GPE .

In DATE the applicant instituted proceedings in the ORG of Vinnitsa against her former employer – the “ PERSON ” Open Joint Stock Company – to be reinstated in her position and to receive compensation .

On DATE the court discontinued proceedings in the applicant ’s case on the ground that she had failed to appear before the court .

On DATE ORG upheld the ruling of DATE . On DATE the applicant appealed in cassation .

On DATE the ORG rejected the applicant ’s request for a cassation appeal as having been submitted too late . The court stated that , under the new wording of LAW ( hereinafter - “ the ORG ” ) , which had entered into force on DATE , the time - limit for lodging an appeal in cassation was DATE , and that the applicant had exceeded that time - limit by only lodging her appeal on DATE . No reference was made in the decision to the actual deadline which had not been complied with .

On DATE ORG upheld the ruling of CARDINAL DATE .

On DATE the panel of CARDINAL judges of ORG rejected the applicant ’s request for leave to appeal in cassation against the rulings of DATE and DATE .

The first paragraph of LAW provides that laws and other normative legal acts have no retroactive force , except in cases where they mitigate or annul the responsibility of a person .

At the time of the second instance appellate decision , the first paragraph of LAW ORG provided that a cassation appeal should be lodged within DATE of the appellate decision or within DATE of the decision of the first instance court , if the latter decision was not appealed under the normal appellate procedure .

On DATE ORG passed a law amending the ORG ( hereinafter DATE “ LAW ) , including the LAW in question . It came into force on DATE . The new wording of Article CARDINAL created a DATE time - limit for lodging a cassation application against the decision of an appellate court .