CASE OF PETUR THOR SIGURÐSSON v. ICELAND

Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

David Thór Björgvinsson;Gaukur Jörundsson;Georg Ress

The applicant is an NORP national , born in DATE . He is a practising lawyer and lives in GPE , GPE .

The applicant instituted proceedings against ORG , claiming compensation under the law of torts , on the grounds that CARDINAL of the ORG ’s legally trained employees had made an incorrect declaration in DATE which was instrumental in ORG finding that a certain claim was no longer enforceable . As ORG found for the defendant bank , the applicant , by a summons of CARDINAL DATE , instituted appeal proceedings before ORG .

In the course of the proceedings before ORG the applicant was given various dates DATE and DATE within which to complete his submissions and the respondent ORG was given until DATE to submit its reply . Subsequently the hearing was scheduled to open on DATE . Meanwhile , sometime DATE and DATE , the case was included in ORG docket .

By a judgment of DATE , ORG , by CARDINAL votes to CARDINAL , rejected the applicant ’s claim . The minority found that the applicant ’s claim should be upheld and that ORG was liable to pay him ORG CARDINAL NORP krónur ( ISK ) in compensation , plus default interest from DATE .

One of the CARDINAL judges forming the majority was PERSON . The applicant submitted that after the delivery of ORG judgment , it came to light that PERSON ORG and her husband , a ORG lawyer , had a financial relationship with ORG of such a nature as to disqualify her from sitting in the applicant ’s case .

In DATE Mr PERSON , husband of PERSON , had sought a solution to certain financial problems arising from the inability of a debtor , Mr PERSON , to pay certain debts with respect to which PERSON was one of the guarantors , and the inability of other guarantors to honour the guarantee . In DATE CARDINAL creditors , CARDINAL of which was ORG , possessed claims under the guarantees amounting to approximately ORG CARDINAL,CARDINAL,CARDINAL . This included a claim of QUANTITY by ORG . Another large creditor was ORG which , on behalf of ORG – “ the ORG ” ) , held a claim of approximately ORG CARDINAL .

NORP In order to solve these problems PERSON attempted to reach a settlement with each of the creditors . An economic consultant company , PERSON , agreed to examine his financial situation and to look into the possibilities of obtaining full settlement against partial payment , starting with the CARDINAL largest creditors and thereafter opening negotiations with the smaller ones , to be completed within DATE .

A settlement request made by the company to ORG lawyer on DATE , included the following observations :

“ ... PERSON has informed us that he had , for the sake of friendship , provided guarantees with respect to Mr Lövdahl ’s debts , as they have been friends for DATE . He also informs us that he owns no property , and that he will foreseeably have to answer for guarantees on account of Mr Lövdahl in an amount of approximately ISK CARDINAL . His other liabilities amount to approximately ORG CARDINAL around ISK CARDINAL of which are taxes . Mr PERSON wife owns [ CARDINAL ] real properties ... [ These ] are owned by her separately under their marriage agreement dating from DATE . She has declared her readiness to use their net value by mortgage or sale for settling the debts , provided that PERSON is released from his personal guarantees and that his bankruptcy is avoided .

We consequently ask you to recommend to your client , ORG , acceptance of PERCENT in final settlement of the total debt to which PERSON must answer as surety . This would release him from his surety liability . The payment would be made simultaneously with the signature of an agreement to this effect . ”

On DATE , in order to obtain funds to pay the creditors , the judge ’s husband PERSON issued CARDINAL debt certificates to Landsbréf hf , PERSON ( Landsbréf , FAC of ORG , a financial institution owned by ORG ) , totalling approximately ORG CARDINAL . The debts were secured on CARDINAL properties owned by PERSON , namely the couple ’s main residence and CARDINAL apartment in which her husband had his law office .

On DATE Landsbréf sold the above CARDINAL debt certificates to PERSON ( ORG – “ the ORG ” ) , a company specialising in high - risk investments . Ever since , the CARDINAL debt certificates have been in that company ’s ownership .

On DATE , in accordance with a settlement agreement of the same date between ORG and PERSON , he paid approximately ORG CARDINAL , of which ORG CARDINAL were towards his debts to ORG and the remainder covering his lawyer ’s fees . Moreover , under the terms of the settlement agreement with the bank , he was released from ORG CARDINAL of debts originating in his guarantees for Mr ORG debts , which amounted to ORG CARDINAL . The above settlement was in conformity with a decision taken on DATE by ORG .

As regards the state of PERSON debts vis - à - vis ORG , the Government relied on the following information provided on DATE by the head of the bank ’s legal department :

“ ORG hereby confirms that a settlement agreement was concluded with PERSON on DATE concerning his undertakings to guarantee the payment of debts to ORG , by which the ORG cancelled PERCENT of its claims against PERSON against a final payment of PERCENT . We confirm that the ORG did not extend a new credit to PERSON for the said PERCENT .

On DATE Mr PERSON ’s total debts to the ORG amounted to ORG CARDINAL ; his debts that did not come under the settlement agreement were a note issued CARDINAL DATE in the amount of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , and a suretyship obligation for payment of a loan originally in the amount of ORG CARDINAL,CARDINAL , which was not in arrears ( remaining amount as at DATE : ISK CARDINAL ) .

Mr PERSON total debts on DATE were a note issued CARDINAL DATE , in the amount of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , and a suretyship obligation for payment of a loan originally in the amount of LAW , which was not in arrears ( remaining amount as at DATE ORG CARDINAL,CARDINAL ) . ”

Under an agreement concluded on DATE ORG too decided to cancel PERCENT of its claim against a final payment of PERCENT by Mr PERSON .

The fact that the CARDINAL largest creditors had accepted the settlement arrangements described above was of significant help in PERSON efforts to obtain settlement agreements with other creditors , all or most of whom accepted debt cancellation against partial payment .

NORP The applicant submitted that there was evidence that on DATE the debts of the husband of PERSON towards ORG amounted to more than ORG CARDINAL,CARDINAL,CARDINAL . Moreover , in DATE , at the time when ORG gave its judgment , the debts in question apparently amounted to approximately ORG CARDINAL .

The applicant lodged CARDINAL petitions to ORG requesting the reopening of the proceedings in his case against ORG on the ground of PERSON alleged lack of impartiality .

The first petition was submitted to ORG on DATE . ORG , sitting as a full court , unanimously rejected it on DATE . Its decision reads :

“ In support of his assertion relating to the disqualification of ORG Judge PERSON , the petitioner refers to CARDINAL debt certificates issued to the name of ORG , which are secured by mortgage upon CARDINAL real estates owned by the judge . By reason of ORG ownership of PERSON , the petitioner considers that this situation disqualified the judge from adjudicating the case . The secured debts in question amount to a total of ORG CARDINAL which , as stated in the certificates , corresponds to PERCENT of the total assessed sale price of the properties . The certificates were issued in DATE for DATE . The petitioner does not maintain that the certificates are in arrears .

It is shown from the information provided by the lawyer for ORG that the debt certificates are not , and were not at the time when the case was being considered by ORG , in the ownership of ORG , ORG or any [ other ] company linked to the ORG . Mortgages on the said properties referred to in the petition , which now have been struck out of the records , and secure debts due to other parties are deemed irrelevant here .

Although the above - mentioned letter of [ the applicant ] does not refer to the particular statutory provisions authorising the reopening of proceedings , it is to be assumed that the petition is based on section CARDINAL of LAW , Law no . CARDINAL/CARDINAL . The petitioner has not referred to any new fact or adduced any new evidence having a bearing on the merits of the case , cf . section CARDINAL(CARDINAL ) , subparagraphs ( a ) and ( b ) of PERSON no . CARDINAL/CARDINAL .

In the light of the above consideration concerning the said mortgages , none of the conditions which provide the petitioner with a reason to believe that the said judge was not impartial and therefore disqualified from adjudicating the case have been fulfilled , cf . section CARDINAL , subsections ( CARDINAL ) and ( CARDINAL ) , of LAW , PERSON no . CARDINAL ; section CARDINAL , subsection ( g ) of PERSON no . CARDINAL/CARDINAL , LAW ( no . CARDINAL/CARDINAL ) , cf . section CARDINAL of LAW no . CARDINAL/CARDINAL , and LAW , cf . Law no . CARDINAL/CARDINAL . Accordingly , since the legal conditions for granting the petitioner ’s request for reopening of the proceedings have not been fulfilled , the request is rejected . ”

NORP The applicant submitted that , after ORG had given its decision of DATE in the first revision case , he realised that PERSON Justice PERSON husband had additional financial ties with ORG . During the period from DATE to DATE he had assumed large - scale financial obligations vis - à - vis the bank and for DATE his debts to the bank had been seriously in arrears . According to the applicant , although this could not be affirmed with certainty , it was possible that ORG had released PERSON husband from a debt of over LAW .

On DATE the applicant filed a new petition with ORG , asking for the reopening of his compensation case . ORG rejected the petition on DATE on the ground that , under the relevant provisions of LAW , a party may apply only once for re - examination of a case .

At the material time of the present case a general rule on the disqualification of judges was contained in LAW DATE ORG , which read :

“ A judge ... is disqualified from handling a case if :

g. Other facts or conditions are at hand which are capable of casting doubt on his impartiality on reasonable grounds . ”

The Government have further pointed to a provision in section CARDINAL(CARDINAL ) of the LAW on ORG no . CARDINAL:CARDINAL ) , which provides :

“ A judge of ORG shall withdraw if :

His attitude to a party or to the matter in dispute is such as to present a risk that he will not be able to examine the case in an impartial manner . ”

Section CARDINAL(CARDINAL ) of that PERSON provides that the court shall decide in plenary session whether a judge is prevented on grounds of lack of impartiality from participating in a given case . It is open to the parties to challenge the participation of a judge on such grounds .

Subsequent to the events at issue in the present case , a new PERSON on the ORG was enacted in DATE ( Law no . CARDINAL ) , which in section LOC ) contains the following provision aimed at codifying a practice that applied at the time of the case :

“ A request by a judge not to be assigned to deal with a particular case may be granted by reason of the judge ’s relationship to the subject matter , the parties , their non - legal representative or their lawyer , even if the judge can not be deemed to be disqualified from handling the case , provided that the judge ’s request is duly reasoned and another judge of the court is available . ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P7-4;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

NORP The events , as described by the parties and related in the relevant documents , unfolded on DATE in the following manner .

On TIME the applicant was taken to police station no . CARDINAL of ORG in LOC of GPE ( “ the police station ” ) for the purpose of establishing how he had managed to take his girlfriend PERSON into a restricted military compound .

At the police station the applicant was firstly taken to the office of the passport service . He was drunk and verbally abusive towards the passport desk employee PERSON and the head of the road traffic department Captain S. The applicant ignored the reprimands and warnings issued to him . After pushing Captain S. and attempting to leave , he was handcuffed . The police officers considered that the applicant ’s conduct amounted to the administrative offence of minor disorderly acts .

The applicant was taken to the office of Major PERSON , the head of the police station . Major PERSON drafted a report on the applicant ’s disorderly conduct which read as follows :

“ This report has been drawn up by Major PERSON , head of police station no . CARDINAL , VoronezhCARDINAL , to record the fact that on DATE at TIME , who had been brought to police station no . CARDINAL with PERSON , whom he had taken into the closed military compound unlawfully , uttered obscenities at police officers and the head of [ unreadable ] , did not respond to reprimands , ignored requests by police officers to end the breach of public order , attempted to escape from police premises and was handcuffed , that is to say , he committed the administrative offences set out in Articles CARDINAL and CARDINAL of LAW . ”

Captain PERSON and Lieutenant - Colonel PERSON were also present in the office while Major PERSON was drafting the report . The applicant became verbally abusive towards Major PERSON and threatened him with physical violence . He again attempted to leave and kicked over a chair .

After the report was completed the applicant was placed in a car to be taken to the LOC district police station ( ROVD ) . The driver PERSON L. , Major PERSON , Lieutenant - Colonel PERSON and PERSON rode in the same car . On the way , the applicant continued to swear at Major PERSON and threatened to kill him for bringing administrative proceedings against him .

On DATE ORG found the applicant guilty of an offence under LAW ( RSFSR ) , on the following grounds :

“ Zolotukhin swore in a public place and did not respond to reprimands . ”

The applicant was sentenced to CARDINAL days’ administrative detention . The judgment indicated that the sentence was not amenable to appeal and was immediately effective .

On DATE a criminal case was opened against the applicant on suspicion of his having committed “ disorderly acts , including resisting a public official dealing with a breach of public order ” – an offence under LAW ( b ) of LAW of GPE – on DATE at the police station . On DATE , the applicant was taken into custody . On DATE CARDINAL further sets of proceedings were instituted against the applicant on other charges .

On DATE the applicant was formally indicted . The relevant parts of the charge sheet read as follows :

“ On TIME Mr Zolotukhin was taken to police station no . CARDINAL in LOC of GPE , for elucidation of the circumstances in which his acquaintance PERSON had entered the territory of the closed military compound Voronezh-CARDINAL . In the passport office at police station no . CARDINAL Mr GPE , who was inebriated , flagrantly breached public order , expressing a clear lack of respect for the community , and began loudly uttering obscenities at those present in the passport office , namely PERSON , a passport official in the housing department of military unit DATE , and Captain PERSON , head of the road traffic department in police station no . CARDINAL ; in particular , he threatened the latter , in his capacity as a police officer performing official duties , with physical reprisals . Mr Zolotukhin did not respond to Captain PERSON lawful requests to end the breach of public order ; he attempted to leave the premises of the passport office , actively resisted attempts to prevent his disorderly conduct , provided resistance to Captain PERSON , pushing him and pulling out of his reach , and prevented the passport office from operating normally .

Hence , through his intentional actions Mr Zolotukhin engaged in disorderly acts , that is to say , a flagrant breach of public order expressing clear disrespect towards the community , combined with a threat to use violence , and resisting a public official dealing with a breach of public order ; the above amounts to the offence set out in LAW ( b ) of LAW .

As a result of his disorderly behaviour , Mr Zolotukhin was taken to the office of Major PERSON , head of police station no . CARDINAL , NORP district , GPE , who was present in his official capacity , so that an administrative offence report could be drawn up . [ Major ] PERSON , in performance of his official duties , began drafting an administrative offence report concerning Mr GPE , under LAW and CARDINAL of LAW . Mr GPE , seeing that an administrative offence report was being drawn up concerning him , began publicly to insult [ Major ] PERSON , uttering obscenities at him in his capacity as a police officer , in the presence of Lieutenant - Colonel PERSON , assistant commander of military unit DATE , and Captain PERSON , head of the road traffic department in police station no . CARDINAL , thus intentionally attacking the honour and dignity of a police officer . Mr GPE deliberately ignored Major PERSON ’s repeated requests to end the breach of public order and insulting behaviour . Mr GPE then attempted to leave the office of the head of the police station without permission and kicked over a chair , while continuing to direct obscenities at Major PERSON and to threaten him with physical reprisals .

Hence , Mr Zolotukhin intentionally and publicly insulted a public official in the course of his official duties , that is to say , he committed the offence set out in LAW of LAW .

After the administrative offence report had been drawn up in respect of PERSON GPE , he and PERSON were placed in a vehicle to be taken to the LOC police station in the GPE region . In the car , in the presence of PERSON , ORG , assistant commander of military unit DATE , and the driver [ Mr ] L. , Mr GPE continued intentionally to attack the honour and dignity of Major PERSON , who was performing his official duties , uttering obscenities at him in his capacity as a police officer and thus publicly insulting him ; he then publicly threatened to kill Major PERSON , the head of police station no . CARDINAL , for bringing administrative proceedings against him .

Hence , by his intentional actions , Mr Zolotukhin threatened to use violence against a public official in connection with the latter ’s performance of his official duties , that is to say , he committed the crime set out in LAW .

On DATE ORG delivered its judgment . As regards the offence under LAW of LAW , ORG acquitted the applicant for the following reasons :

“ On TIME in ... police station no . CARDINAL [ the applicant ] , in an inebriated state , swore at ... PERSON and Captain S. , threatening to kill the latter . He refused to comply with a lawful request by PERSON , ... behaved aggressively , pushed [ Captain ] S. and attempted to leave . Having examined the evidence produced at the trial , the court considers that [ the applicant ’s ] guilt has not been established . On DATE [ the applicant ] was subjected to CARDINAL days’ administrative detention for the same actions [ characterised ] under ORG CARDINAL and CARDINAL of LAW . No appeal was lodged against the judicial decision , nor was it quashed . The court considers that there is no indication of a criminal offence under LAW ( b ) in the defendant ’s actions and acquits him of this charge . ”

ORG further found the applicant guilty of insulting a ORG official under LAW . It established that the applicant had sworn at Major PERSON and threatened him while the latter had been drafting the report on the administrative offences under LAW and CARDINAL of LAW in his office at the police station . Major PERSON ’s statements to that effect were corroborated by depositions from Captain PERSON LieutenantColonel N. and PERSON , who had also been present in Major PERSON ’s office .

Finally , ORG found the applicant guilty of threatening violence against a public official under LAW . On the basis of the statements by Major PERSON , Lieutenant - Colonel PERSON and the applicant ’s girlfriend it found that , after the administrative offence report had been finalised , the applicant and his girlfriend had been taken by car to the LOC district police station . In the car , the applicant had continued to swear at Major PERSON He had also spat at him and said that , once released , he would kill him and abscond . Major PERSON had perceived the threat as real because the applicant had a history of abusive and violent behaviour .

On DATE ORG , in summary fashion , upheld the judgment on appeal .

LAW provides that “ no one may be convicted twice for the same offence ” ( LAW ) .

The Code of Criminal Procedure establishes that criminal proceedings should be discontinued if there exists a final judgment against the suspect or defendant concerning the same charges or a decision by a court , investigator or examiner to discontinue the criminal case concerning the same charges or not to institute criminal proceedings ( LAW and CARDINAL ) .

Article CARDINAL of LAW ( in force at the material time ) read as follows :

“ Minor disorderly acts , that is , utterance of obscenities in public places , offensive behaviour towards others and other similar acts that breach public order and peace , shall be punishable by a fine of DATE wages or by CARDINAL to CARDINAL months’ correctional work combined with the withholding of MONEY of the offender ’s wages , or – if , inoffender ’s character , these measures are not deemed to be adequate – by CARDINAL days’ administrative detention . ”

LAW of the Russian Federation ( version in force at the material time ) , in so far as relevant , read as follows :

“ CARDINAL . NORP Disorderly acts , that is , serious breaches of public order or flagrant displays of disrespect towards the community , combined with the use of violence towards individuals or the threat to use violence or destroy or damage the property of others , shall be punishable ... by CARDINAL years’ deprivation of liberty .

NORP The same acts , if committed

( b ) DATE while resisting a public official or another person fulfilling his or her duty to maintain public order or dealing with a breach of public order ...

– shall be punishable by CARDINAL mandatory work or by CARDINAL years’ correctional work or CARDINAL years’ deprivation of liberty . ”

“ The use of violence not endangering life or health , or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of CARDINAL months’ minimum wages ... or by CARDINAL months’ detention or up to five years’ deprivation of liberty ... ”

“ Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of CARDINAL months’ minimum wages , ... QUANTITY work or DATE correctional work . ”

In Resolution no . CARDINAL of CARDINAL DATE ( with subsequent amendments ) , ORG ruled that in cases where an administrative charge of minor disorderly acts had been brought against a defendant , but his or her actions were socially dangerous enough to be considered a crime , criminal proceedings should be brought against him or her under Article CARDINAL of FAC ( replaced by LAW after DATE ) ( § CARDINAL ) . In ORG no . CARDINAL of DATE ( with subsequent amendments ) , ORG held that the lower courts should not interpret the criminal prohibition of disorderly acts extensively , in order to exclude the criminal conviction of defendants charged only with the administrative offence of minor disorderly acts ( § CARDINAL ) .

Article CARDINAL § CARDINAL of LAW provides as follows :

“ No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country . ”

Article CARDINAL of the Statute of ORG provides as follows :

“ CARDINAL . Except as provided in this Statute , no person shall be tried before the ORG with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the ORG .

No person shall be tried by another court for a crime referred to in LAW which that person has already been convicted or acquitted by the ORG .

No person who has been tried by another court for conduct also proscribed under LAW shall be tried by the ORG with respect to the same conduct unless the proceedings in the other court :

( a ) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the ORG ; or

( b ) otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which , in the circumstances , was inconsistent with an intent to bring the person concerned to justice . ”

Article CARDINAL of the Charter of Fundamental Rights of ORG , which was solemnly proclaimed by ORG , ORG in GPE on DATE ( ORG CARDINAL.CARDINAL.CARDINAL , C CARDINAL/CARDINAL ) , reads as follows :

“ No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the ORG in accordance with the law . ”

Article CARDINAL of LAW of DATE ( “ the ORG ” ) provides as follows :

“ A person whose trial has been finally disposed of in CARDINAL ORG may not be prosecuted in ORG for the same acts provided that , if a penalty has been imposed , it has been enforced , is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing ORG . ”

ORG of ORG ( “ the CJEU ” ) has recognised the non bis in idem principle as a fundamental principle of Community law ( ORG ) and ORG of ORG , Joined Cases C-CARDINAL/CARDINAL P , CCARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P to C-CARDINAL/CARDINAL P and CCARDINAL/CARDINAL P , § DATE , DATE ) :

“ ... the principle of non bis in idem , which is a fundamental principle of Community law also enshrined in LAW No . CARDINAL to the ORG [ the Convention ] , precludes , in competition matters , an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti - competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision . ”

In the area of competition law the ORG applied the following approach to testing compliance with the non bis in idem principle ( ORG and ORG of ORG , Joined Cases C-CARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P , ORG , C-CARDINAL/CARDINAL P and ORG , § CARDINAL , DATE ) :

“ As regards observance of the principle ne bis in idem , the application of that principle is subject to the threefold condition of identity of the facts , unity of offender and unity of the legal interest protected . Under that principle , therefore , the same person can not be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset . ”

The CJEU ’s case - law on police and judicial cooperation in criminal matters is based on a different interpretation of “ idem ” ( PERSON , Case C-CARDINAL/CARDINAL , DATE ) :

“ CARDINAL . In the first place , however , the wording of LAW ORG , ‘ the same acts’ , shows that that provision refers only to the nature of the acts in dispute and not to their legal classification .

It must also be noted that the terms used in that Article differ from those used in other international treaties which enshrine the ne bis in idem principle . Unlike LAW of the ORG , LAW use the term ‘ offence’ , which implies that the criterion of the legal classification of the acts is relevant as a prerequisite for the applicability of the ne bis in idem principle which is enshrined in those treaties .

There is a necessary implication in the ne bis in idem principle , enshrined in that Article , that GPE have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other GPE even when the outcome would be different if its own national law were applied ( [ Case C-CARDINAL/CARDINAL ] GPE and GPE [ [ DATE ] ECR I-CARDINAL ] , paragraph CARDINAL ) .

It follows that the possibility of divergent legal classifications of the same acts in CARDINAL different Contracting States is no obstacle to the application of LAW ORG .

For the same reasons , the criterion of the identity of the protected legal interest can not be applicable since that criterion is likely to vary from CARDINAL ORG to another .

The above findings are further reinforced by the objective of LAW ORG , which is to ensure that no one is prosecuted for the same acts in several ORG on account of his having exercised his right to freedom of movement ( GPE and GPE , paragraph CARDINAL , and Case C-CARDINAL/CARDINAL GPE [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) .

As pointed out by ORG in point CARDINAL of his Opinion , that right to freedom of movement is effectively guaranteed only if the perpetrator of an act knows that , once he has been found guilty and served his sentence , or , where applicable , been acquitted by a final judgment in a member ORG , he may travel within the LOC territory without fear of prosecution in another member ORG on the basis that the legal system of that member ORG treats the act concerned as a separate offence .

Because there is no harmonisation of national criminal laws , a criterion based on the legal classification of the acts or on the protected legal interest might create as many barriers to freedom of movement within the GPE territory as there are penal systems in GPE .

In those circumstances , the only relevant criterion for the application of LAW of the ORG is identity of the material acts , understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together .

... the definitive assessment in that regard belongs ... to the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time , in space and by their subject matter . ”

The ORG confirmed and developed this approach in the most recent case concerning the application of the non bis in idem principle ( PERSON , Case C-CARDINAL/CARDINAL , DATE ) :

“ CARDINAL . ... it should be noted that the ORG has already held that the only relevant criterion for the application of LAW ORG is identity of the material acts , understood as the existence of a set of concrete circumstances which are inextricably linked together ( see PERSON , paragraph CARDINAL ; Case C-CARDINAL/CARDINAL ORG and Others [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ; and Case C-CARDINAL/CARDINAL PERSON [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) .

In order to assess whether such a set of concrete circumstances exists , the competent national courts must determine whether the material acts in the CARDINAL proceedings constitute a set of facts which are inextricably linked together in time , in space and by their subject matter ( see , to that effect , PERSON , paragraph CARDINAL ; ORG and Others , paragraph CARDINAL ; and PERSON , paragraph CARDINAL ) .

It follows that the starting - point for assessing the notion of ‘ same acts’ within the meaning of LAW ORG is to consider the specific unlawful conduct which gave rise to the criminal proceedings before the courts of GPE as a whole . Thus , LAW ORG can become applicable only where the court dealing with the second criminal prosecution finds that the material acts , by being linked in time , in space and by their subject matter , make up an inseparable whole .

On the other hand , if the material acts do not make up such an inseparable whole , the mere fact that the court before which the second prosecution is brought finds that the alleged perpetrator of those acts acted with the same criminal intention does not suffice to indicate that there is a set of concrete circumstances which are inextricably linked together covered by the notion of ‘ same acts’ within the meaning of LAW ORG .

As ORG in particular pointed out , a subjective link between acts which gave rise to criminal proceedings in CARDINAL different ORG does not necessarily mean that there is an objective link between the material acts in question which , consequently , could be distinguished in time and space and by their nature .

... it is for the competent national courts to assess whether the degree of identity and connection between all the factual circumstances that gave rise to those criminal proceedings against the same person in GPE is such that it is possible to find that they are ‘ the same acts’ within the meaning of LAW ORG .

In the light of the foregoing , the answer to the first question must therefore be that LAW ORG is to be interpreted as meaning that :

– the relevant criterion for the purposes of the application of that Article is identity of the material acts , understood as the existence of a set of facts which are inextricably linked together , irrespective of the legal classification given to them or the legal interest protected ;

– different acts consisting , in particular , first , in holding in CARDINAL ORG the proceeds of drug trafficking and , second , in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘ the same acts’ within the meaning of LAW ORG merely because the competent national court finds that those acts are linked together by the same criminal intention ;

– it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible , in the light of the said relevant criterion , to find that they are ‘ the same acts’ within the meaning of LAW of the ORG . ”

Article CARDINAL § CARDINAL of LAW reads as follows :

“ An accused person acquitted by a non - appealable judgment shall not be subjected to a new trial for the same cause . ”

ORG gave the following interpretation of that provision ( PERSON v. GPE , DATE , Series C No . CARDINAL , § CARDINAL ) :

“ This principle is intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause . Unlike the formula used by other international human rights protection instruments ( for example , ORG , LAW ) , which refers to the same ‘ crime’ ) , LAW uses the expression ‘ the same cause’ , which is a much broader term in the victim ’s favour . ”

In GPE the double - jeopardy rule arises out of LAW to the LAW , the relevant clause of which reads :

“ ... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ... ”

In the case of ORG , CARDINAL U.S. CARDINAL ( DATE ) , in which the defendant had sold drugs not in the original package and without a written order of the purchaser , and where the sale had been characterised as CARDINAL statutory offences , ORG adopted the following interpretation :

“ Section CARDINAL of LAW creates the offense of selling any of the forbidden drugs except in or from the original stamped package ; and LAW creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold . Thus , upon the face of the statute , CARDINAL distinct offenses are created . Here there was but CARDINAL sale , and the question is whether , both sections being violated by the same act , the accused committed CARDINAL offenses or CARDINAL .

Each of the offenses created requires proof of a different element . The applicable rule is that , where the same act or transaction constitutes a violation of CARDINAL distinct statutory provisions , the test to be applied to determine whether there are CARDINAL offenses or CARDINAL is whether each provision requires proof of an additional fact which the other does not ... [ T]his court quoted from and adopted the language of ORG in GPE , CARDINAL ORG CARDINAL : ‘ A single act may be an offense against CARDINAL statutes ; and if each statute requires proof of an additional fact which the other does not , an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the CARDINAL . ”

In the case of PERSON v. PERSON , CARDINAL GPE CARDINAL ( DATE ) , which concerned “ vehicular homicide ” by the defendant Mr PERSON , ORG developed a different approach :

“ ... [ A ] technical comparison of the elements of the CARDINAL offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials . This case similarly demonstrates the limitations of the Blockburger analysis . If PERSON constituted the entire double - jeopardy inquiry in the context of successive prosecutions , the ORG could try PERSON in CARDINAL consecutive trials : for failure to keep right of the median , for driving while intoxicated , for assault , and for homicide . The ORG could improve its presentation of proof with each trial , assessing which witnesses gave the most persuasive testimony , which documents had the greatest impact , which opening and closing arguments most persuaded the jurors . PERSON would be forced either to contest each of these trials or to plead guilty to avoid the harassment and expense .

Thus , a subsequent prosecution must do more than merely survive the PERSON test . As we suggested in PERSON , the double - jeopardy clause bars any subsequent prosecution in which the government , to establish an essential element of an offense charged in that prosecution , will prove conduct that constitutes an offense for which the defendant has already been prosecuted . ... The critical inquiry is what conduct the ORG will prove , not the evidence the ORG will use to prove that conduct ... [ A ] ORG can not avoid the dictates of the double - jeopardy clause merely by altering in successive prosecutions the evidence offered to prove the same conduct ... ”

Nevertheless , in the case of GPE v. PERSON , CARDINAL GPE CARDINAL ( DATE ) , ORG returned to the PERSON test :

“ The double - jeopardy clause ’s protection attaches in non - summary criminal contempt prosecutions just as it does in other criminal prosecutions . In the contexts of both multiple punishments and successive prosecution , the double - jeopardy bar applies if the CARDINAL offenses for which the defendant is punished or tried can not survive the ‘ same elements’ or ‘ Blockburger’ test . ... That test inquires whether each offense contains an element not contained in the other ; if not , they are the ‘ same offense’ within the clause ’s meaning , and double jeopardy bars subsequent punishment or prosecution . ...

Although prosecution [ in the present case ] would undoubtedly be barred by the PERSON ‘ same - conduct’ test , PERSON must be overruled because it contradicted an unbroken line of decisions ... and has produced confusion . ... Moreover , the PERSON rule has already proved unstable in application , see GPE v. PERSON , CARDINAL GPE ... Although the ORG does not lightly reconsider precedent , it has never felt constrained to follow prior decisions that are unworkable or badly reasoned . ”


Violation of Art. 9 read in the light of Art. 11;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The first applicant , Mr GPE , was born in DATE and lives in ORG in GPE . He is the President of ORG .

The second applicant , Mr PERSON , was born in DATE and lives in GPE . He is a co - founder and member of the third applicant , ORG , a religious group without legal - entity status .

In DATE the first centre for the study of ORG ( the creed of ORG ) opened in ORG and obtained ORG registration as a social non - governmental organisation under the name of “ ORG ” .

NORP In DATE a new NORP law on non - governmental associations was enacted . It required all non - governmental associations established before its entry into force to be re - registered before DATE . The ORG applied for re - registration ; however , its application was refused on DATE on the ground that the aims of the organisation were religious in nature . On DATE ORG of GPE ( “ GPE Justice Department ” ) sought a court decision terminating the ORG ’s existence .

The ORG applied for registration as a non - commercial partnership regulated by LAW of GPE . On DATE the deputy mayor of ORG rejected the application , referring to the religious purposes of the Centre .

On DATE the first applicant , in community with his fellow believers , resolved to found ORG ” and to hold regular services on DATE . At a subsequent meeting on DATE , the first applicant and other believers passed a resolution to establish a local religious organisation , ORG ( “ the ORG ” ) .

On DATE the CARDINAL founding members , including the first applicant , applied to ORG for registration as a local religious organisation having the status of a legal entity .

On DATE the Khanty - Mansi ORG refused registration in the following terms :

“ You have failed to produce a document issued by a local authority certifying that the religious group has existed in the given territory for DATE , or a document issued by the managing body of a centralised religious organisation certifying that the religious group is a branch of such an organisation , and this does not comply with the requirements of section CARDINAL(CARDINAL ) of the Federal Law on freedom of conscience and religious associations .

The refusal of registration does not prohibit a subsequent new application for registration provided that the grounds for the refusal have been removed . ”

On DATE the first applicant appealed against that decision to the Khanty - Mansi Town Court . He alleged that his constitutional right to freedom of conscience had been violated and that his religious group had been discriminated against . Lacking the status of a legal entity , his religious group could not print , export or import religious books or articles of worship , own property , carry out charitable activities or found organisations for religious purposes .

On DATE the NORP - Mansi Town Court dismissed the complaint . It held that GPE had correctly refused registration because ORG had failed to provide a document confirming it had been in existence in the region for DATE . As to the first applicant ’s reliance on the LAW , it held : “ this reference ... is far - fetched and can not be taken into consideration . ” No further justification was provided .

On DATE the Khanty - Mansi Regional Court upheld the judgment of DATE . The court repeated that the applicant ’s references to the decisions of ORG and LAW were “ groundless ” .

Following a request by the first applicant , on DATE the Presidium of the Khanty - Mansi Regional Court instituted supervisory - review proceedings , quashed the contested judgments and remitted the matter to ORG for a fresh examination . It noted that ORG should have “ left the application unexamined ” until all the documents required by law had been produced .

On DATE the Khanty - ORG commissioned an expert study of the religious teachings of ORG and stayed the proceedings in the case . On DATE the NORP - Mansi Regional Court upheld that decision on appeal .

On DATE the Khanty - Mansi Town Court resumed the proceedings and delivered a new judgment on DATE . It held that the refusal to register ORG had been unlawful because in the absence of a certificate showing its DATE presence in the region , ORG should have left the application for registration “ unexamined ” . It ordered ORG to register ORG .

On DATE the NORP - Mansi Regional Court quashed the judgment in so far as it concerned the order to register ORG , on the ground that the first applicant had not produced all the documents required by PERSON no . CARDINAL of DATE ( “ the Religions Act ” ) , a circumstance which ORG considered to be an impediment to the registration of ORG as a legal entity .

On DATE the second applicant and fellow believers resolved to found ORG as a local religious group .

On DATE the applicant church applied to ORG of GPE ( “ the Registration Chamber ” ) for registration as a local religious organisation .

In a letter of DATE , ORG informed the second applicant that the term for registration had been extended for DATE from DATE in order to allow the ORG authorities to carry out a religious expert examination .

NORP In a letter of DATE , a deputy chairperson of ORG informed the president of the applicant church that the application for registration had been rejected as “ there [ had ] so far been no conclusions from the religious expert examination to which the applicant church ’s documents [ had ] been subjected ” .

The second applicant appealed to a court against the refusal of registration .

On DATE ORG dismissed the second applicant ’s claim , arguing that there was no actual dispute as the authorities had yet to carry out the religious expert examination and the application for registration had yet to be examined on the merits .

On DATE ORG ( “ the ORG ” ) quashed the judgment of DATE and remitted the claim to ORG for a fresh examination .

On DATE ORG again dismissed the second applicant ’s claim . It found that the refusal had been justified because internal Order no . CARDINAL issued by ORG of GPE on DATE prohibited the use of NORP methods in health services .

On DATE ORG quashed the judgment of DATE and remitted the matter to ORG . It found that the absence of a religious expert examination was not a valid ground for the refusal of registration and that an internal order issued by a ministry was hierarchically subordinate to NORP laws and could not have been relied upon to restrict ORG rights .

On DATE ORG granted the second applicant ’s claim and found that the refusal to register the applicant church had been unlawful . It noted that the application for registration had been made in DATE , but that “ the religious organisation [ had ] still not been registered owing to contrived reasons , although the federal law contain[ed ] an exhaustive list of grounds on which registration [ could ] be refused ” . It also held that there was no doubt as to “ the religious nature of the organisation being registered ” , that a religious expert examination was not mandatory and that the absence of such an examination could not be cited as a ground for refusing registration as this would encroach on ORG rights . On DATE ORG upheld the judgment .

In the meantime , on DATE the power to approve the registration of religious organisations was transferred from ORG to ORG of ORG GPE ( “ the NORP Justice Department ” ) . Accordingly , on DATE the application for registration of the applicant church and related documents were also transferred to ORG .

On DATE ORG forwarded a copy of its judgment of CARDINAL DATE to ORG for execution . However , ORG refused to proceed with the registration on the ground that it was not the legal successor to ORG .

The second applicant asked ORG to clarify the judgment of CARDINAL DATE specifically as to which authority was to execute the judgment in view of the fact that the power of ORG to register religious organisations had been transferred to ORG with effect from DATE further to a change in the law .

On DATE the applicant church again requested ORG to grant it legal - entity status , pursuant to the judgment of CARDINAL DATE .

On DATE ORG held that no clarification of the judgment was required as “ no ambiguity could be found in the judgment ” . It also noted that , in the event of improper execution of a court judgment or a violation of the second applicant ’s rights by other ORG officials , he could lodge a complaint with a court on “ general grounds ” .

The second applicant appealed against the decision of DATE to ORG . However , it appears that the appeal was never examined as by that time the case file had been forwarded to the President of ORG in connection with the application for supervisory review lodged by ORG ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE the second applicant sued ORG for its failure to comply with the final judgment of CARDINAL DATE and to register the applicant church . It appears that this action was subsequently stayed in connection with the supervisory - review proceedings described below .

On DATE the head of ORG wrote to a vice - president of ORG , requesting him to exercise his supervisory - review powers in respect of the judgment of CARDINAL DATE with a view to quashing it .

On DATE the President of ORG lodged an application for supervisory review with the ORG of the court . On DATE the ORG granted the application , quashed the judgments of CARDINAL May and DATE and referred the matter back for a fresh examination . It found that a religious expert examination was a mandatory precondition for State registration of a little - known religious organisation such as the applicant church .

On DATE ORG , a body attached to ORG , submitted its opinion concerning the applicant church further to a request by ORG . It concluded that ORG was a religion . However , it did not recommend registration of the applicant church because it had only recently been established in GPE .

On DATE ORG ruled that the application for registration should be left “ unexamined ” in the absence of a document confirming the applicant church ’s presence in GPE for DATE .

On DATE ORG carried out a fresh determination of the second applicant ’s claim . It found as follows :

“ [ The second applicant ] considers that the refusal of registration was unlawful and that it violated his right to freedom of conscience and religion . The court can not agree ... Neither [ the second applicant ] nor anyone else is prohibited or prevented from professing NORP individually or in community with others . The refusal to grant legal - entity status to an organisation may only violate a citizen ’s right to freedom of association ...

The court has established that persons professing PERSON appeared in the town of LOC in DATE . In DATE the group comprising [ the second applicant ] decided to establish the religious organisation ORG and register it as a legal entity ... ORG refused registration by reference to the absence of an opinion resulting from a religious expert examination . [ The second applicant ] complained to a court ... While the case was being examined , the power to approve registration of the religious organisation was transferred to the [ NORP ] ORG , which ... left the application for registration unexamined , referring to the fact that the religious group had existed in the town of GPE for DATE ...

The ground preventing registration is the fact that the religious group has existed for DATE . Admittedly , pursuant to LAW , this ground can be invoked to leave the application unexamined rather than to refuse registration ; however , in either case registration of the organisation is not possible . Hence , given that the outcome of the decision by ORG is correct ( the organisation may not be registered ) , the court can not use a formal pretext to require the [ NORP ] ORG to breach LAW and register the organisation , especially taking into account that [ ORG ] has already corrected ORG mistake and issued a decision in conformity with LAW . ”

On DATE ORG upheld that judgment .

On DATE ORG dismissed the second applicant ’s action against ORG for its failure to execute the judgment of CARDINAL DATE ( see above ) . The court found that the judgment in the second applicant ’s favour had been quashed by way of supervisory - review proceedings and that ORG final judgment of DATE had removed any basis for requiring ORG to register the applicant church . On DATE ORG upheld on appeal the judgment of CARDINAL DATE .

In DATE , jurisdiction over the registration of religious organisations was transferred to the newly created ORG . The second applicant sought registration from the local office of this new body . On DATE the Chief Directorate of ORG for PERSON declined to consider the matter , referring the applicant church to ORG earlier refusals to register it on the basis of the “ DATE rule ” .

The ORG guarantees equality of rights and freedoms of men and citizens regardless of their individual characteristics , including religious beliefs . The LAW prohibits all forms of restrictions on human rights on social , racial , national , linguistic or religious grounds ( Article CARDINAL ) .

Article CARDINAL guarantees the right to freedom of religion , including the right to profess any religion , either alone or in community with others , or to profess no religion at all , to freely choose , hold and share religious and other beliefs and to manifest them in practice .

On DATE the Federal Law on freedom of conscience and religious associations ( “ the Religions Act ” ) came into force . It replaced LAW of DATE and ORG Religions Act of DATE .

In its preamble LAW acknowledges “ the special role of [ ORG ] Orthodoxy in the history of GPE and in the establishment and development of its spiritual and cultural life ” and respects “ NORP , ORG , NORP , ORG and other religions constituting an integral part of the historical heritage of the peoples of GPE ” . Section CARDINAL(CARDINAL ) provides that “ nothing in the laws on freedom of conscience , freedom of religion and religious associations may be interpreted as impairing or infringing the rights of men and citizens to the freedom of conscience and religion guaranteed by LAW or enshrined in the international treaties to which GPE is a party ” .

At the session of ORG of GPE ( the lower chamber of ORG ) on DATE , PERSON , Chairman of ORG and one of the drafters of the PERSON , stated as follows before the PERSON was put to the vote :

“ Nevertheless , I will remind you of the essence of this PERSON . It is this : the PERSON will create a barrier on the path to religious expansion in GPE , it will hinder the development of totalitarian sects and restrict the activities of foreign missionaries , while at the same time creating conditions for the activities of our traditional religions and confessions ... We are confident that the application of this PERSON in practice will help to resolve problems being faced now by society , the ORG and the [ NORP ORG ... I would like to refer to the fact that it is noteworthy that all the confessions whose representatives [ objected to certain provisions of the LAW ] have their headquarters overseas . I say that to those who today feel that our PERSON is unfit and are planning to vote against it . And I want to put this question to you : whose side are you on , dear colleagues ? ”

A “ religious association ” is a generic term for any voluntary association of NORP nationals and other persons permanently and lawfully residing in the territory of GPE , formed for the joint profession and dissemination of their creed , which performs services of worship , religious rites and ceremonies , teaches its religion and guides its followers ( section CARDINAL(CARDINAL ) ) . “ Religious associations ” may take the form of either “ religious groups ” or “ religious organisations ” ( section CARDINAL(CARDINAL ) ) .

A “ religious group ” is a voluntary association of citizens for the profession and dissemination of faith , which carries out its activities without ORG registration and without obtaining legal personality ( section CARDINAL(CARDINAL ) ) . The formation of a religious group , if its subsequent conversion into a religious organisation is envisaged , must be notified to the municipal authority ( section CARDINAL(CARDINAL ) ) . Religious groups have the right to perform services of worship , religious rites and ceremonies , to teach religion and to guide their followers ( section CARDINAL(CARDINAL ) ) .

In contrast to a religious group , a “ religious organisation ” is a voluntary association of NORP nationals and permanent residents of GPE , formed for the profession and dissemination of faith and duly registered as a legal entity ( section CARDINAL(CARDINAL ) ) .

The following rights are conferred solely on religious organisations :

– the right to obtain tax exemptions and other benefits , and financial and other forms of aid for the restoration , maintenance and protection of historically important buildings and religious items and for teaching in educational institutions ( section CARDINAL(CARDINAL ) ) ;

– the right to establish educational institutions and , with the consent of the parents and children , to teach religion in extracurricular courses ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) ;

– the right to establish and maintain religious buildings and other places for worship or pilgrimage ( section CARDINAL(CARDINAL ) ) ;

– the right to perform religious rites , on invitation , in health centres , hospitals , children ’s homes , old people ’s homes , facilities for the disabled and prisons ( section CARDINAL(CARDINAL ) ) ;

– the right to manufacture , acquire , export , import and distribute religious literature , printed , audio and video material and other religious articles ( section CARDINAL(CARDINAL ) ) ;

– the right to carry out charitable activities on their own or through charitable foundations established by them ( section CARDINAL ) ) ;

– the right to create cross - cultural organisations , educational institutions and media outlets ( section CARDINAL(CARDINAL ) ) ;

– the right to establish and maintain international links and contacts for pilgrimages , conferences and so on , including the right to invite foreign nationals to GPE ( section CARDINAL(CARDINAL ) ) ;

– the right to own buildings , plots of land , other property , financial assets and religious artefacts , including the right to have municipal and ORG property transferred to them free of charge for religious purposes and the immunity of such property from legal charge ( section ORG ) to ( CARDINAL ) ) ;

– the right to use ORG and other property for religious purposes , such right to be granted free of charge ( section CARDINAL ) ;

– the right to establish companies and engage in business activities ( section CARDINAL ) ;

– the right to hire employees ( section DATE ) .

In addition , the following rights are explicitly reserved to religious organisations , to the exclusion of other non - religious legal entities :

– the right to found companies publishing religious literature or producing articles for religious services ( section PERSON ) ) ;

– the right to establish licensed educational institutions for the professional training of clergy and auxiliary religious staff ( section CARDINAL(CARDINAL ) ) ;

– the right to invite to the NORP Federation foreign nationals planning to engage in professional religious activities , including preaching ( section MONEY ) ) .

Section CARDINAL(CARDINAL ) provides that a religious organisation may be founded by CARDINAL NORP nationals united in a religious group that has confirmation from the local administrative authority of its existence in the given territory for DATE or confirmation by a centralised religious organisation of the same creed that it forms part of its structure . A religious organisation must seek State registration from the local department of justice ( section CARDINAL(CARDINAL ) ) .

If the founders of a religious organisation fail to produce any of the documents required by law , including the confirmation referred to in section CARDINAL ) , the registration authority may leave their application for registration unexamined and notify them of this ( section PERSON ) ) .

State registration of a religious organisation may be refused , in particular , if its purposes or activities contradict LAW or laws , or if the organisation ’s charter or other founding documents do not comply with the requirements of NORP laws . The refusal may be appealed against to a court ( section CARDINAL ) .

Examining the compatibility with LAW of the requirement of LAW that all religious organisations established before its entry into force should confirm that they have existed for DATE , ORG found as follows ( decision no . TIME of DATE in the case of ORG of Jehovah ’s Witnesses in GPE and ORG ) :

“ CARDINAL . ... Article CARDINAL of LAW , read in conjunction with LAW , LAW , LAW and CARDINAL and LAW , shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law . By virtue of these provisions the federal legislature ... may regulate the legal status of religious associations , including the conditions for granting the status of a legal entity , and the procedure for their founding , establishment and ORG registration , and determine the scope of the rights of religious associations .

Having regard to GPE ’s history of pluriconfessionalism , legislators must respect the provisions of LAW of LAW , which guarantees the rights and freedoms of men and citizens in accordance with generally accepted principles and norms of international law and LAW . Measures decreed by legislators relating to the founding , establishment and registration of religious organisations must not interfere with the essence of the freedom of religion , the right to freedom of association and the freedom of activity of public associations , and any potential restrictions on those and other constitutional rights must be justified and proportionate to aims considered important by LAW .

In a NORP society with its characteristic pluralism , as follows from ... Article CARDINAL § CARDINAL of the Convention ... restrictions may be prescribed by law if this is necessary in the interests of public peace and the protection of public order , health and morals or for the protection of the rights and freedoms of others . The ORG has the right to lay down certain barriers in order not to automatically provide legal status [ to religious associations ] , not to allow the legalisation of associations of citizens that violate human rights and commit illegal and criminal acts , and in order to obstruct missionary activity ( including the problem of proselytism ) if it is not compatible with respect for the freedom of thought , conscience and religion of others and other constitutional rights and freedoms , as in the case of the recruitment of other members into the church , or unlawful influence on people in need or poverty , through psychological pressure or the threat of violence . In particular , this is emphasised in the Resolution of ORG of DATE on sects in LOC and Recommendation CARDINAL ( DATE ) [ of ORG ] of ORG on sects and new religious movements , as well as in the judgments of ORG of DATE ( [ ORG v. GPE ] , Series A no . CARDINAL ) and of DATE ( [ Manoussakis and Others v. GPE ] , Reports of Judgments and Decisions PERSON ) , which clarify the nature and scope of the ORG ’s obligations flowing from LAW ...

... Pursuant to ... LAW ( as amended on DATE ) , all religious associations – both regional and centralised – had , on an equal basis , as legal entities , the rights that were subsequently incorporated in the [ DATE LAW ] ...

Under such circumstances legislators could not deprive a certain segment of religious organisations that had been formed and maintained full legal capacity of the rights belonging to them , solely on the basis that they did not have confirmation that they had existed for DATE . In relation to religious organisations created earlier , that would be incompatible with the principle of equality enshrined in LAW , LAW and LAW and QUANTITY of the LAW of GPE , and would be an impermissible restriction on freedom of religion ( LAW ) and the freedom of [ voluntary ] associations to form and to carry out their activities ( LAW ) ... ”

ORG subsequently confirmed this position in its decision no . CARDINAL of DATE in the case of GPE of the Society of PERSON , and decision no . CARDINAL of DATE in the case of GPE Branch of ORG .

On DATE the ORG delivered decision no . CARDINAL in the case of GPE and Others . The applicants in that case belonged to the religious group “ ORG GPE ” , whose application for legal - entity status was refused in the absence of a document confirming its presence in GPE for DATE . ORG noted that a religious association was not prevented from being formed and operating without ORG registration , but in such cases it could not enjoy the rights and privileges secured only to religious organisations in section CARDINAL(CARDINAL ) and ( CARDINAL ) , section CARDINAL(CARDINAL ) and sections CARDINAL to CARDINAL ( paragraph CARDINAL of the decision ) . It declined , however , to consider the constitutional issue because the applicants had not challenged the refusal in a court of general jurisdiction .

Deciding on appeal on a complaint by a PERSON against the regional justice department ’s refusal to register the local organisation of GPE ’s Witnesses as a legal entity ( civil case no . CARDINAL ) , ORG held as follows :

“ LAW , read in conjunction with LAW , LAW , LAW § § CARDINAL and CARDINAL and LAW , shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law ...

Religious groups may carry out their activities without ORG registration or the legal status of a legal entity . However , if citizens form a religious group for the purpose of making it into a religious organisation later on , then they must notify the local self - government body of its formation and the commencement of its activities ...

The above - mentioned provisions show that nothing legally hinders a religious association from being formed and operating without ORG registration for the purpose of joint profession and dissemination of faith . However , in such circumstances a religious association will not have the status of a legal entity and can not therefore enjoy the rights and privileges secured to religious organisations in the [ Religions Act ] ( section CARDINAL(CARDINAL ) and ( CARDINAL ) , section CARDINAL(CARDINAL ) , sections DATE ) , that is , those collective rights that citizens exercise in community with others , namely within a religious organisation that has legal - entity status , but not on an individual basis or through a religious group .

Therefore , the very fact that the local religious organisation was unlawfully refused registration hinders PERSON and his fellow believers from exercising their constitutional rights ... ”

On DATE the Ombudsman of ORG published his opinion of DATE on the compatibility of LAW with the international legal obligations of GPE . The opinion stated , inter alia :

“ A number of provisions of the LAW are inconsistent with principles set forth in international legal instruments , and , accordingly , can be contested by citizens when lodging complaints with ORG . In essence , these provisions can not operate in the territory of GPE , since the rules established by international treaties [ must ] prevail over domestic legislation , as is envisaged by LAW ( LAW ) ...

The distinction between religious organisations and religious groups provided for in the LAW is contrary to both LAW and the case - law of the LAW bodies , which are an important source of NORP law . In accordance with section CARDINAL(CARDINAL ) of the LAW , religious groups , in contrast to religious [ organisations ] , are not subject to ORG registration and do not enjoy the rights of a legal entity .

Furthermore , the LAW discriminates between ‘ traditional’ religious organisations and religious organisations that do not possess a document proving their existence in a given territory for DATE ( section CARDINAL(CARDINAL ) of the Act ) . ‘ Non - traditional’ religions are deprived of many rights ... ”

On DATE the ORG issued a special report on GPE ’s observance of its commitments entered into upon accession to ORG . The report states , inter alia :

“ Among the commitments undertaken by GPE upon entry into ORG was to bring its legislation on freedom of conscience and religion into line with NORP norms . The [ Religions Act ] , enacted on DATE after ORG had joined ORG , did not take into consideration the existing rules or universally recognised principles of international law .

As a ORG to ORG , GPE assumed express obligations in the sphere of freedom of conscience and religion . A number of provisions of LAW ] are contrary to principles established in LAW and , accordingly , may be challenged by citizens when lodging applications with ORG ...

A number of provisions of the LAW establish rules that in essence discriminate against certain religions in practice . The distinction between religious organisations and religious groups provided for in the LAW is contrary to both LAW and the case - law of the LAW bodies , which are an important source of NORP law . Furthermore , the LAW discriminates between ‘ traditional’ religious organisations and religious organisations that do not possess a document proving their existence in a given territory for DATE ( section CARDINAL(CARDINAL ) ) . ‘ Non - traditional’ religions are deprived of many rights ...

In the current situation one can not exclude [ the possibility ] of decisions of ORG GPE in cases connected with freedom of religion and religious beliefs . ”

ORG of DATE by ORG on the Honouring of Obligations and Commitments by member ORG ( “ the ORG DATE . DATE ) on the honouring of obligations and commitments by GPE states in its relevant parts as follows :

“ CARDINAL . Another of the commitments GPE entered into was to adopt a new PERSON on the freedom of religion . Such a new PERSON has indeed been adopted , but unfortunately , it seems to fall rather short of ORG standards on the matter . ...

The new PERSON on freedom of conscience and on religious associations entered into force on DATE , after having been revised following a presidential veto of the first version . While the PERSON does provide adequate protection for an individual ’s right to profess or not to profess the religion of his choice , it contains some other provisions which seem to be inconsistent with international standards and with GPE ’s international treaty obligations . In particular , the PERSON establishes CARDINAL categories of religious associations : the more privileged ‘ religious ORG and the less privileged ‘ religious PERSON . Religious groups , unlike religious organisations , do not have the status of a legal person , and do not enjoy the rights associated with this status , such as owning property , concluding contracts , and hiring employees . In addition , they are explicitly barred from operating schools or inviting foreign guests to GPE . Religious organisations have these rights , but to be recognised as such must be either classified as a ‘ traditional’ religion or must have existed as a registered religious group on NORP territory for DATE , the latter to be certified by the local authorities . In fact , with the entry into force of this PERSON , a third category of religious associations was created : religious groups registered with the authorities on DATE ( for DATE ) who already enjoy the status of a legal person may keep this status and the associated rights , provided they re - register DATE with the authorities . These provisions may lead to discriminatory treatment especially of non - traditional religions , thus undermining the principle of religious equality before the law . A revision of some of these provisions may be called for to ensure compliance with ORG . ... ”

The ORG by ORG of DATE ( doc . CARDINAL ) on the honouring of obligations and commitments by GPE states in its relevant parts as follows .

“ CARDINAL . The LAW safeguards freedom of conscience and of religion ( LAW ) ; the equality of religious associations before the law and the separation of ORG ( Article CARDINAL ) , and offers protection against discrimination based on religion ( Article CARDINAL ) . The PERSON on freedom of religion of DATE has led to a considerable renewal of religious activities in GPE . According to religious organisations met in GPE , this PERSON has opened a new era , and led to a revitalisation of churches . It was replaced on DATE by a new ORG on freedom of conscience and religious associations . This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions .

On DATE , Mr Atkinson and others presented a motion for a recommendation ( doc . DATE , which was referred to ORG by reference PERSON ) in which they argued that this new legislation on freedom of conscience and religious associations contravened ORG , LAW as well as the commitments entered into by GPE on accession . In DATE , ORG , PERSON , also acknowledged that many Articles of the DATE Law on freedom of conscience and religious associations do not meet GPE ’s international obligations on human rights . According to him , some of its clauses have led to discrimination against different religious faiths and should therefore be amended .

In its preamble the PERSON recognises ‘ the special role of Orthodoxy in the history of GPE and in the establishment and development of its spiritual and cultural life’ and respects ‘ NORP , ORG , NORP , ORG and other religions constituting an integral part of the historical heritage of the peoples of Russia’ . The PERSON then goes on to draw a distinction between ‘ religious ORG , according to whether or not they existed before DATE , and a third category , called ‘ religious PERSON . Religious organisations that had existed for DATE , and religious groups have been subject to legal and tax disadvantages and their activities have been restricted . ”

Resolution DATE ) on GPE ’s PERSON on religion , adopted by ORG of ORG on DATE , noted , inter alia , the following :

“ CARDINAL . The new NORP Law on religion entered into force on DATE , abrogating and replacing a DATE LAW generally considered very liberal DATE on the same subject . The new PERSON caused some concern , both as regards its content and its implementation . Some of these concerns have been addressed , notably through the judgments of ORG of GPE of DATE , DATE and DATE , and the religious communities’ re - registration exercise at federal level successfully completed by ORG on DATE . However , other concerns remain .

The PERSON itself , while posing an acceptable basis of operation for most religious communities , could still be ameliorated . Although ORG has already restricted the application of the so - called ‘ DATE rule’ , which initially severely limited the rights of religious groups that could not prove their existence on NORP territory for DATE before the new PERSON entered into force , the total abolition of this rule would be considered as an important improvement of the legislative basis by several of these groups . ... ”

DATE . The report “ Freedom of Religion or Belief : Laws Affecting the Structuring of Religious Communities ” , prepared under the auspices of ORG in LOC ( ORG ) for the benefit of participants in the DATE OSCE Review Conference , states , inter alia :

“ The most controversial duration requirement in DATE is that adopted in the CARDINAL Russian Law on Freedom of Conscience and on ORG . Unless affiliated with a centralised religious organisation , a religious group under this PERSON can not acquire full religious entity status unless it has been in the country for DATE . What is strikingly unusual about this requirement is that to the best of our knowledge , at the time of its adoption , there were no other LOC participating GPE that imposed a waiting requirement ( other than document processing periods ) with respect to base - level entities ... GPE has taken some steps to mitigate the discriminatory impact on smaller groups by minimising the evidentiary burden required to demonstrate presence in the country for the required period , and by creating a limited entity status for religious groups waiting out their DATE period . But problems remain for smaller groups or for congregations that have split off from FAC , and while limited entity status is better than nothing , it imposes significant constraints on a religious group ’s ability to expand .

Duration requirements of this type are clearly inconsistent with the ORG commitment to grant religious groups at least base - level entity status . The wording of this commitment in LAW of ORG recognises that the precise form of legal personality varies from legal system to legal system , but access to some form of legal entity is vital to LOC compliance . This is clearly violated by the refusal to register religious groups that do not satisfy the DATE rule . The drafters of the NORP legislation apparently attempted to remedy this defect by creating limited entity status , but this also fails to satisfy the ORG commitment , because the limited status does not confer rights to carry out important religious functions . Failure to grant such status constitutes a limitation on manifestation of religion that violates LAW ] . It can hardly be said that denial of entity status , simply due to an organisation ’s failure to ‘ exist’ under a preceding , anti - religious , communist government , ‘ is necessary in a democratic society’ or a proportionate response to a legitimate ORG interest ... ”

The Guidelines for Review of Legislation Pertaining to Religion or Belief , prepared by ORG in consultation with ORG ) and adopted by ORG at its CARDINALth Plenary Session ( DATE ) and welcomed by ORG at its Annual Session ( DATE ) , contain , inter alia , the following recommendations :

“ Religious association laws that govern acquisition of legal personality through registration , incorporation , and the like are particularly significant for religious organisations . The following are some of the major problem areas that should be addressed :

– It is not appropriate to require lengthy existence in the ORG before registration is permitted ;

– Other excessively burdensome constraints or time delays prior to obtaining legal personality should be questioned ;

The relevant provisions of LAW on LAW or Belief , proclaimed by ORG CARDINAL/CARDINAL of DATE , read as follows :

“ In accordance with LAW , and subject to the provisions of LAW , paragraph CARDINAL , the right to freedom of thought , conscience , religion or belief shall include , inter alia , the following freedoms :

( a ) To worship or assemble in connection with a religion or belief , and to establish and maintain places for these purposes ;

( b ) To establish and maintain appropriate charitable or humanitarian institutions ;

( c ) To make , acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief ;

( d ) To write , issue and disseminate relevant publications in these areas ;

( e ) To teach a religion or belief in places suitable for these purposes ;

( f ) To solicit and receive voluntary financial and other contributions from individuals and institutions ;

( g ) To train , appoint , elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief ;

( h ) To observe DATE of rest and to celebrate holidays and ceremonies in accordance with the precepts of one ’s religion or belief ;

( i ) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels . ”

“ The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice . ”

The relevant part of General Comment No . CARDINAL : The right to freedom of thought , conscience and religion ( DATE ) , prepared by ORG DATE , CCPR / C/CARDINAL/Rev.CARDINAL/Add.CARDINAL ) , reads as follows :

“ CARDINAL . NORP The freedom to manifest religion or belief ... in worship , observance , practice and teaching encompasses a broad range of acts . The concept of worship extends to ritual and ceremonial acts giving direct expression to belief , as well as various practices integral to such acts , including the building of places of worship , the use of ritual formulae and objects , the display of symbols , and the observance of holidays and days of rest . ... [ T]he practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs , such as the freedom to choose their religious leaders , priests and teachers , the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications . ”