Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary and non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON . She owns a plot of land with a house where she lives with her son and his family . The application relates to plot no . DATE ( at present GPE ) .

In DATE a general land development plan for the municipality of PERSON was adopted . The applicant 's property , which was at that time owned by her relatives , was designated for public purposes .

On DATE , acting under LAW of DATE on Rules and Procedures of Expropriation of Real Estate ( ustawa o zasadach i trybie wywłaszczania nieruchomości ) , the Governor of GPE ) decided to enter a notice about the institution of expropriation proceedings in respect of the property in the land and mortgage register kept by the local ORG .

An official expropriation decision was never issued . However , experts appointed by the Governor subsequently conducted numerous visits to estimate the property 's value with the purpose of assessing the compensation payable for the future expropriation .

The applicant submitted that she had been informed several times by ORG that in view of the expropriation an earlier purchase of her property by the municipality was possible and that she and her family would be entitled to obtain new apartments and compensation .

The applicant carried out minor necessary repairs , but as the house had been built in DATE , it required general renovation . She submitted that in DATE she had been told by a local official that she would not receive permission for a general renovation of the house because of the expropriation notice in the land register . The Government contest this submission .

In DATE and DATE the Public Roads Maintenance District Authority ( Rejon Eksploatacji Dróg Publicznych ) , a Stateowned enterprise , carried out some demolition works on the property concerned . The applicant was neither requested to give her assent to them nor informed of them beforehand . The works involved cutting down trees and shrubs in her garden and extensive excavations . As a result of these works the applicant 's garden was destroyed , her garage collapsed , apparently in DATE , and water accumulating in ditches penetrated into the cellar . The works were suddenly interrupted without reason . The applicant was paid compensation for plants and fruit which had been destroyed .

Upon the applicant 's protests she had been repeatedly reassured by the authorities that the land would soon be expropriated and she would receive appropriate compensation . At the same time , extensive construction works had continued on the neighbouring properties , which had already been expropriated .

In DATE the applicant informed ORG that as a result of the works water had been gathering on the land and endangering the stability of the house . In DATE ORG informed the applicant that her land would be bought out after the relevant estimates had been drawn up . On an unspecified DATE in DATE the applicant obtained compensation for the fact that following the works she could not use her land as a garden for DATE .

During DATE the applicant repeatedly applied to the ORG demanding that her land be restored to its previous condition or that it be purchased and new accommodation granted to her , but to no avail .

On DATE she complained to the GPE Governor . She pointed out that her plot of land had been designated for expropriation , but that no construction works in connection with the viaduct had started and that she had not been served with any expropriation decision . She reiterated that the property had sustained serious damage and the authorities had refused her requests for it to be redressed until the actual expropriation had been carried out .

By a decision of CARDINAL DATE the ORG declared that the applicant had acquired ownership of plot no . DATE by acquisitive prescription as of DATE . On CARDINAL DATE a land and mortgage entry for that plot was established in the applicant 's name . A notice about the expropriation proceedings was put in the relevant part of the entry .

In DATE the applicant divided plot no . DATE into CARDINAL smaller plots ( nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) . Subsequently , on DATE the applicant sold plot no . CARDINAL/CARDINAL ( at present no . CARDINAL ) to a third party .

On DATE the applicant requested ORG to take the relevant steps in order to have the expropriation warning concerning plot no . CARDINAL/CARDINAL deleted from the land register , submitting that the warning had become groundless . On DATE ORG lodged the necessary application with the land registry , indicating that the expropriation plans had been abandoned on an unspecified date . On DATE ORG complied with the request .

On an unspecified later date the plot was divided into CARDINAL smaller plots and as a result , a third plot , no . CARDINAL , was created . On DATE the applicant sold it .

On DATE the applicant asked the Krosno Governor to clarify the situation of her property and for compensation in connection with the expropriation . The matter was transferred to the PERSON Mayor . On CARDINAL DATE ORG informed her that the new local development plan was being drafted . The plan would determine in detail the outline of communication routes in the city and as a result also the advisability of buying out her real estate . The ORG reminded her that until expropriation it was the owner who was obliged to maintain his house appropriately . Bearing in mind , however , the restrictions on general renovations the ORG would consider the possibility of providing the applicant with another flat as a settlement with her .

On DATE the applicant again applied to ORG for compensation . She mentioned on that occasion that she had obtained compensation , in an unspecified amount , for DATE when she could not use the land as a result of damage caused by works carried out in DATE .

By a letter of CARDINAL DATE the applicant was informed by the local authorities that they did not envisage using her plot of land for public purposes .

On DATE the applicant instituted civil proceedings against ORG represented by ORG ( FAC ) in respect of non - compensated pecuniary damage she had sustained as a result of expropriation proceedings having been instituted in respect of plot no . CARDINAL/CARDINAL . On DATE the applicant was exempted from court fees and a legal - aid lawyer was later appointed to represent her .

On DATE the Mayor of GPE ( Starosta Powiatowy ) replied to a summons sent by the court to the Chief of ORG FAC ) and explained that as a result of the reform of the local administration the appointment of heads of district offices had ceased as of DATE . Until that date the heads of district offices had been competent to represent ORG in matters concerning the management of its properties .

On DATE a hearing was held . The defendant failed to attend it . In connection with the Mayor of GPE letter the applicant was requested to determine the legal entity against which she directed her statement of claim .

NORP In reply , on DATE the applicant 's lawyer indicated the Podkarpackie Governor as representing the defendant ORG . He also specified the applicant 's claim , indicating that she demanded compensation for the physical damage to her house resulting from the planned expropriation which had been caused by the fact that she had had to abstain from carrying out major renovation works and by the changes in the land configuration caused by the works carried out in DATE .

On DATE the Podkarpackie Governor replied to the statement of claim , arguing that he could not act as a defendant in the proceedings . According to LAW DATE , it was the Head of TIME ( starosta powiatowy ) who should represent ORG in matters relating to expropriations , given that expropriations belonged to the so - called “ commissioned tasks ” of the Government administration ( zadanie z zakresu administracji rządowej ) . Until DATE ORG had been represented in such cases by heads of district offices . From the statement of claim it could be assumed that the expropriation had to be effected upon the PERSON community 's motion . The plaintiff had , however , failed to submit any documents to confirm the statements included in her action . It should therefore be rejected in respect of the GPE Governor .

At a hearing held on DATE the applicant 's lawyer maintained his opinion that the action should be pursued against the Podkarpackie Governor as he was the successor of the Rzeszów Governor who had issued the first decision in the applicant 's case in DATE .

On DATE an expert opinion was submitted , assessing the physical damage to the applicant 's house and garage at MONEY ( PLN ) and the value of construction materials which the applicant had bought for the purposes of general renovation but had not used at PLN CARDINAL . On an unspecified later date the applicant limited her claim to the damage suffered as a result of the DATE construction works , the deterioration of the buildings and the waste of building materials .

On DATE ORG awarded the applicant compensation amounting to CARDINAL ORG . That amount covered both the physical damage to the house and the cost of the building materials referred to above . The court found that there had been an obvious causal link between the expropriation proceedings instituted in the past in respect of the applicant 's property on the one hand , and , on the other , the works carried out in DATE by a ORG - owned enterprise and the ensuing damage to the applicant 's house . It also noted that because of the pending expropriation proceedings she could not use the building materials she had purchased for the general renovation . It therefore found the compensation claim against the ORG Governor , acting as the legal successor of the former FAC , justified .

The Governor appealed , arguing that he did not have standing in the proceedings , given that following the CARDINAL major administrative reforms , in DATE and DATE , it was the Mayor of LOC who was competent to represent ORG in such matters .

By a judgment of CARDINAL DATE ORG allowed the appeal under the applicable legislation and dismissed the applicant 's claims . The court first noted that under the applicable land - planning legislation the mere fact that the applicant 's property had been designated for future expropriation and that certain restrictions on the use of property had resulted from it did not entitle her to any compensation as the applicable laws clearly excluded such entitlements . Nonetheless , the applicant had in the past received compensation , in an unspecified amount , for certain damage caused to her property after the expropriation proceedings had been instituted . As to the claim concerning the value of the building materials , the court was of the view that it had not been shown that any official decision or information preventing her from renovating the house had been given or communicated to the applicant .

As for the physical damage to the house and garage , the court stated that the applicant had not established the responsibility of the defendant ORG for it . According to the court , it was essential to establish which administrative entity was originally to benefit from the property 's expropriation and which public authority had ordered the works carried out on the applicant 's plot . It fell to the applicant to establish the legal and factual elements of the case decisive for the determination whether it was ORG or the local municipality which should have been sued in the case . As the applicant had failed to show any legal basis for the responsibility of ORG , the claim should be dismissed .

The applicant did not lodge a cassation appeal as her legalaid lawyer refused to prepare and lodge it with ORG .

On DATE ORG ( PERSON ) enacted LAW DATE ( ustawa o planowaniu przestrzennym ) . It was subsequently replaced by LAW of DATE ( ustawa o planowaniu przestrzennym ) .

On DATE a new LAW ( ustawa o zagospodarowaniu przestrzennym ) was enacted . It entered into force on DATE .

On DATE ORG passed a law amending LAW DATE .

On DATE a new LAW ( ustawa o planowaniu i zagospodarowaniu przestrzennym ) was enacted which repealed LAW .

DATE until DATE the criteria and procedure applicable with regard to expropriation of individual properties were set out in LAW ( ustawa o zasadach i trybie wywłaszczania nieruchomości ) .

From DATE to CARDINAL DATE the rules governing the administration of land held by ORG and municipalities were laid down in ORG DATE ( ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości - the “ DATE LAW ” ) .

Article CARDINAL of this Act provided that properties could be expropriated only for the benefit of the ORG or a municipality .

Pursuant to LAW , a decision on expropriation had to include in particular :

“ ( CARDINAL ) an indication of the property to be expropriated , ...

( CARDINAL ) an indication of the party upon whose initiative the property is being expropriated ,

( CARDINAL ) an assessment of the amount of compensation ,

( CARDINAL ) identification of the persons ( name , surname and address ) entitled to compensation ,

( CARDINAL ) detailed factual and legal grounds ,

( CARDINAL ) instructions on appeal procedures . ”

Under LAW , expropriation was to be carried out against payment of compensation . The payment was to be made within DATE from the date on which a decision to expropriate had become final .

On DATE the DATE LAW was repealed and LAW of DATE ( LOC o gospodarce nieruchomościami – “ the DATE LAW ” ) was adopted , containing similar provisions on expropriation and compensation .

Neither under DATE nor under DATE ORG ( see paragraph CARDINAL above ) were owners of properties to be expropriated in the future entitled to any form of compensation for damage resulting from restrictions on the use of their property and the reduction in its value originating in expropriations to be carried out at a future undetermined point in time .

Section CARDINAL of LAW enacted in DATE created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities . The municipalities were obliged either to buy plots designated for future expropriation under local land development plans , or to replace those plots by other plots within DATE from the date on which a relevant request was submitted by the owner , or to award compensation for damage caused by the fact that the plot was designated for future expropriation .

However , this obligation and the corresponding claims of the owners applied only to plans adopted after the LAW had entered into force , that is to say , to plans adopted by local municipalities after DATE .

Pursuant to the DATE Act , plans adopted before the date of its entry into force were to expire on DATE .

In DATE an amendment to LAW was adopted under which the validity of such plans was extended for DATE , namely until DATE .

On DATE ORG passed a law amending LAW DATE which extended until DATE the validity of the land development plans adopted before DATE .

Under LAW of LAW ( see paragraph CARDINAL above ) , all local plans adopted before DATE remained valid , but not beyond DATE .

Compensation entitlements for owners , provided for by LAW ( see paragraph CARDINAL above ) , were in essence maintained by the CARDINAL Act . Pursuant to section QUANTITY , when , following adoption of a new local land development plan , the use of property in the manner provided for by a previous plan has become impossible or has been restricted , it is open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts .

NORP Before DATE ownership of publicly - owned property was essentially assigned to ORG .

ORG ( LAW of DATE ( PERSON wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “ the DATE LAW ) , which came into force on DATE , and other related statutes enacted at that time , re - established local government and municipalities and transferred to them powers that had previously been exercised solely by the local ORG administration . Pursuant to section QUANTITY ) , ownership of land which had previously been held by ORG and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality .

Section CARDINAL § CARDINAL ( CARDINAL ) of the LAW provides , as far as relevant :

“ ORG takes over :

CARDINAL ) obligations and receivables of local bodies of state administration ( ... ) resulting from final and binding court rulings and administrative decisions delivered before CARDINAL DATE ( ... ) . ”

In DATE ORG held that in cases where it was obvious from a statement of claim which organisational entity should represent ORG in the proceedings , the court should not reject it even if a plaintiff had wrongly indicated the entity ; it was obliged to serve the statement of claim on the appropriate entity ( decision of CARDINAL DATE , I ORG CARDINAL/CARDINAL . )

Section CARDINAL § CARDINAL ( CARDINAL ) of LAW , introducing the first stage of the reform of local administration ( see paragraph CARDINAL above ) raised doubts as to which legal entity was liable for damages in connection with an unlawful administrative decision issued by the ORG before the administrative reform . The problem was subject to divergent judicial interpretation .

On DATE ORG delivered a judgment ( II CKN CARDINAL/CARDINAL ) in which it concluded that the municipality should be sued for compensation for damage caused by an administrative decision delivered before DATE .

On DATE ORG held that when a plaintiff erred in the statement of claim by indicating the wrong organisational entity of ORG , that shortcoming should be regarded as relating to the representation of the defendant and rectified accordingly ; the court was obliged to ensure of its own motion that the appropriate organisational entity was summoned to act in the proceedings ( ORG , CARDINAL/CARDINAL ) .

On DATE a panel of CARDINAL judges of ORG , adopted a resolution ( no . III CZP CARDINAL/CARDINAL ) , finding that the municipality DATE and not ORG – had the legal capacity to be sued for damages in connection with an administrative decision issued before CARDINAL DATE , provided that the decision had been annulled or declared unlawful after DATE .

In a resolution of DATE ( no . III CZP CARDINAL/CARDINAL ) , adopted by a panel of CARDINAL judges , ORG concluded that ORG had the capacity to be sued for damages arising from an administrative decision delivered before CARDINAL DATE , even if the decision had been annulled or declared null and void after that date . The resolution was adopted following the referral of a legal question to ORG by another court of appeal which had a similar case before it .

ORG maintained this position in several subsequent judgments .


Violation of Art. 6-3-a+6-1;Violation of Art. 6-3-b+6-1;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

NORP In DATE the ORG oil refinery , a joint stock company with its main office in ORG ( “ Plama ” or “ the company ” ) , was declared insolvent . On DATE the applicant was appointed its trustee in insolvency .

On DATE PERSON , a former trustee of PERSON , lodged a statement of claim on behalf of the company in ORG .

On DATE ORG advised the applicant to specify whether he would confirm this action . The applicant decided to retain a lawyer , PERSON On DATE he obtained the authorisation of the insolvency court to pay Mr ORG a fee of MONEY ( ORG ) , the equivalent of MONEY ( ORG ) , for PERSON ’s legal representation in the proceedings .

On DATE Mr Y.N. attended a court hearing and requested in writing that the proceedings be terminated , since the action had been brought by PERSON , who did not represent PERSON at the time . Upon request by the defendant , the case was transferred to ORG where the proceedings were subsequently terminated .

Meanwhile , the creditors of ORG agreed upon a plan for the company ’s recovery . On DATE the plan was approved by the insolvency court and the applicant ’s functions as trustee in insolvency were terminated . However , he retained some supervisory functions .

On DATE the applicant signed CARDINAL orders for the transfer of ORG CARDINAL PERSON bank account .

Later in DATE an investigation was opened in relation to the applicant ’s actions . On DATE the prosecution filed an indictment against him . He was indicted with exceeding his powers ( LAW , see paragraphs CARDINAL and CARDINAL below ) in that , acting as an official with whom powers were vested by virtue of law ( длъжностно лице ) , he had retained a lawyer to represent the company before obtaining the insolvency court ’s authorisation to pay the fee agreed upon , and that on DATE he had ordered that the sum of BGN CARDINAL be paid to PERSON GPE , even though by that time he had ceased to act as a trustee in insolvency of the company and was no longer authorised to act for it .

On an unspecified date PERSON was constituted as a civil party in the criminal proceedings against the applicant and brought an action for damages in the amount of BGN CARDINAL,CARDINAL .

On DATE ORG convicted the applicant as charged , sentenced him to CARDINAL years’ imprisonment and allowed in full PERSON ’s civil claim .

The applicant lodged an appeal against the judgment of ORG .

On DATE the verdict was upheld by ORG , which dismissed an objection by the applicant that he had not had an official capacity ( длъжностно лице ) . It held that it was sufficient that as a trustee he had assumed managerial functions and responsibility for the company ’s assets .

On the first charge against the applicant , that he had exceeded his powers in retaining a lawyer to represent the company , ORG found that it had certainly not been necessary to retain a lawyer , provided that the only thing the latter had done had been to request the termination of the proceedings . Thus , the applicant had indebted the company with the lawyer ’s fee whereas it had not received any gain in return . The applicant had not therefore acted in accordance with the rights and powers vested in him as a trustee but with the aim of enriching Mr GPE and inflicting a financial loss on PERSON .

Similarly , ORG found that the applicant had exceeded his powers in ordering the payment of PERSON fees .

The applicant appealed in cassation . He argued that he had not acted as an official and that , therefore , he could not have committed an offence under LAW . He argued , furthermore , that he had acted in accordance with the law and had not unnecessarily indebted PERSON .

ORG delivered a judgment on DATE . It confirmed the lower courts’ conclusion that the applicant had had an official capacity . However , it held that in retaining a lawyer and ordering the payment of the legal fees he had not exceeded his powers as a trustee . Retaining a lawyer had been within his powers and , as he had continued to exercise supervisory functions after the adoption of the plan for PERSON ’s recovery , he had had the power to order the payment . Furthermore , LAW concerned offences against the proper exercise of ORG power , whereas it had been alleged that the applicant had acted against the interests of a private company . It followed that he could not have committed an offence under LAW . Therefore , on the charges of having exceeded his powers , ORG acquitted the applicant .

Nevertheless , ORG found that as the applicant had deliberately entered into a contract which was disadvantageous to the company he was guilty of an offence under LAW § CARDINAL of LAW ( see paragraph CARDINAL below ) . In the domestic court ’s view , returning such an alternative verdict was procedurally lawful , per argumentum a contrario , under LAW , since it was based on the circumstances underlying the initial charges and the applicant had defended himself in respect of those circumstances throughout the proceedings . Only the legal characterisation of the facts had changed .

Accordingly , ORG convicted the applicant of deliberately entering into a disadvantageous contract and thus inflicting substantial damage on PERSON , and sentenced him to a suspended term of DATE imprisonment . It affirmed the lower courts’ judgments in the part allowing PERSON ’s civil claim . That judgment was final .

Article CARDINAL § CARDINAL of LAW , as in force at the relevant time , provided that an official in whom certain powers were vested by virtue of law ( длъжностно лице ) , who breached or failed to fulfil his duties , or exceeded his power , with the aim of obtaining a benefit for himself or CARDINAL party , or of causing damage to others , was to be punished by PERCENT five years’ imprisonment or correctional labour . Article CARDINAL § CARDINAL envisaged imprisonment of DATE where considerable material damage had resulted from these acts or the offender had occupied a senior managerial post .

Under LAW of LAW , an official in whom certain powers are vested by virtue of law ( длъжностно лице ) , who deliberately enters into a disadvantageous contract which can result in substantial damage to the company or organisation he represents , is to be punished by imprisonment of DATE .

In accordance with the structure of LAW of DATE , Article CARDINAL was at the relevant time classified as an offence against the functioning of ORG bodies and public organisations , while LAW was considered an offence against the economy .

Article CARDINAL § CARDINAL of LAW , in force until DATE , required that the prosecution file a new indictment in cases where , at the trial stage of the proceedings , it transpired that there were grounds to substantially amend the factual basis of the charges , or to bring charges which required a more severe punishment . Under LAW , in cases where a new indictment was necessary and the parties had so requested , the domestic court had to adjourn the hearing for further argument .

Identical provisions are contained in LAW , in force from DATE .


The applicant is a NORP national , born in DATE . She is represented before the ORG by PERSON and PERSON , lawyers practising in GPE . The Government are represented by Mr PERSON , their Agent .

The facts of the case , as submitted by the parties , may be summarised as follows .

Since DATE the applicant is a member of ORG ( hereinafter referred to as the “ Church ” ) , which is part of GPE .

From DATE the applicant worked as a judge at ORG of FAC of GPE .

In DATE she participated in the election for the post of a mayor of ORG . The applicant submits that one of her opponents in the election campaign , who was eventually elected to the post of the mayor , frequently criticised her in the media as a “ cultist striving for power ” and referred to the ORG as a “ totalitarian sect ” .

On DATE the newly elected mayor sent a letter to the President of ORG , requesting the applicant 's dismissal from the judiciary on the ground that she was a “ cultist ” . A number of private persons also applied to the court , complaining about the applicant 's performance of her judicial functions .

On DATE ORG , a local association of judges , considered the question whether the applicant had misused her authority as a judge . The council instituted disciplinary proceedings against her , applying to ORG of ORG to decide the question of her dismissal from the judiciary .

From DATE ORG held hearings in the case . The panel consisted of CARDINAL judges . Representatives of the council and a local authority were the applicant 's opposing parties vis - à - vis the applicant . The panel heard the applicant and several witnesses , including officials of ORG and ORG , who testified against her . The panel scrutinised written statements of CARDINAL persons , including many private persons complaining about the way in which the applicant had handled their cases . The applicant asserts that she was refused to call several witnesses on her behalf .

On DATE ORG dismissed the applicant from the office and removed her “ third qualification grade ” of a judge on the ground that she had “ damaged her reputation as a judge and impaired the authority of the judiciary ” within the meaning of LAW . The panel also found that she had breached LAW , the Freedom of Conscience and Religious Associations Act and LAW of a Judge . The panel ruled that she had misused her office to “ pursue religious activities in the interests of the ORG ” inter alia by recruiting as ORG members several officials of ORG and certain third persons , including parties to proceedings under her examination . It was also found that the applicant had unsuccessfully attempted to enrol a number of other persons , that she had prayed publicly during court hearings , and that she had promised certain parties to proceedings a favourable outcome of their cases if they joined the ORG . ORG noted that that had resulted in numerous challenges against the applicant , and that a number of cases had been delayed as a result .

The panel further observed that the applicant was free to choose her religion and that the ORG was a legitimate organisation duly registered by the local authorities . The panel mentioned nonetheless that the ORG was a “ sect bearing with the label of a NORP church , [ but that ] it [ was ] not such in fact ” . ORG further confirmed that the applicant had been entitled to run in the election of the mayor ; it nonetheless criticised the applicant 's campaign as promoting her religion rather than emphasising “ current difficulties ” of the society and the economy of the ORG .

The applicant appealed to ORG of GPE , claiming in particular that she had never misused her office in the interest of the ORG or promoted her religion by using her authority as a judge .

On DATE ORG , consisting of CARDINAL judges , examined the appeal in the presence of the applicant and a representative of ORG of ORG , who requested that the appeal be dismissed . The applicant submits that her representative was not permitted to attend the panel hearing .

During the hearing the applicant did not deny the fact that she had several times “ discussed ” the morality of certain parties to proceedings concerning various family rights . The panel rejected the applicant 's appeal , finding that the case had been decided properly .

The applicant appealed to ORG .

The applicant submits that on DATE ORG examined the appeal in the presence of a representative of ORG and a prosecutor , who requested the court to dismiss the applicant 's appeal . The applicant was not present . ORG rejected her appeal by reference to explanations by the representative of the judicial council and the prosecutor , and the prior findings of the panels . The court ruled that the applicant had been involved in propaganda of the ORG and religious intimidation of parties to proceedings under her examination . ORG decided that the applicant therefore gave rise to doubts as to impartiality and independence of the court .

The applicant states that the hearing before ORG was initially set to take place on DATE . As no notification of a change of that date was sent to her , she arrived on CARDINAL DATE , but found that the case had in fact been heard on DATE .

The Government state that the hearing at ORG was scheduled for and took place on DATE

The date of ORG hearing in ORG written judgment is indicated as DATE .

The Government submit that the date of ORG hearing as being DATE was put by mistake in the judgment , which was eventually corrected .

LAW and LAW provide that all judges have equal status .

Pursuant to LAW , judges can be granted “ qualification grades ” on the basis of their judicial experience or other professional accomplishments . The grant of a particular “ qualification grade ” does not affect the status of the judge vis - à - vis other judges .

There are CARDINAL “ qualification grades ” , which are granted or removed on the basis of decisions of judiciary qualification panels established under LAW , LAW and LAW ( also see below ) .

LAW provides for special supplementary payments to the salary or pension of the judge on the basis of his “ qualification grade ” .

LAW separates churches from the ORG .

Articles CARDINAL and CARDINAL of the Freedom of Conscience and Religious Associations Act prohibit ORG officials from using their official powers to promote religion .

Pursuant to LAW of a Judge , the work of a judge in administering justice should prevail over his other activities .

LAW provides that a judge should avoid engaging in any activities that can impair the authority of the judiciary , damage his reputation as a judge or call into question his impartiality . Paragraph CARDINAL of the above provision states that a judge can not occupy a position of an elected representative , belong to political parties or movements , be involved in business activities , receive salary in connection with his other activities , let alone academic , scientific and creative work .

LAW ( CARDINAL ) of the above LAW provides for the dismissal of a judge who has acted in a way “ damaging his reputation as a judge and impairing the authority of the judiciary ” .

Under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG , the questions of dismissal of a judge and removal of his “ qualification grade ” are decided by a judiciary qualification panel . The decision of the panel , insofar as it concerns dismissal , can be appealed to ORG , and from there - to ORG . Pursuant to LAW , the decision of a panel to remove a “ qualification grade ” is not subject to appeal .

Under Articles CARDINAL - CARDINAL and CARDINAL of the Judiciary Qualification Panels Ordinance , judiciary qualification panels work under the authority of regional and higher courts , and are elected for a term of DATE by a secret vote of judges during the meetings of professional judicial associations . LAW states that only judges can be members of panels .

Pursuant to LAW , any application concerning a particular judge lodged by a ORG authority or a private person shall be scrutinised provided that the panel is competent to examine the questions raised therein . Following such an application , a panel president or his deputy opens an inquiry into the facts alleged , draws up the list of persons to be invited to the panel hearing , and sets the date of that hearing in accordance with LAW . The judge concerned is entitled to have access to all the material collected for the hearing , and to submit his observations in reply before the hearing pursuant to LAW . Under LAW , the panel president , with the accord of the panel members , decides on the procedure for the hearing . A prosecuting or other legal authority is entitled to present its own opinion on the case pursuant to LAW .

LAW provides that higher courts conduct “ supervisory review ” ( надзор ) of the activities of the lower courts . This means , according to ORG , CARDINAL and CARDINAL , that specific senior judicial officers , at any time , by request of a person or of their own motion , may lodge with a higher court a “ special appeal ” ( протест ) against the final decision of a lower court on all questions of fact and law . The “ supervisory review ” procedure has to be distinguished from the proceedings whereby a case may be reviewed on the ground of new or newly established facts ( Articles CARDINAL - CARDINAL ) .

Following an amendment to LAW and LAW of DATE ( in force since DATE ) , judgments of ORG taken at first instance can be appealed against to ORG , under LAW .


Alvina Gyulumyan;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in PERSON .

The applicant has lived in her house since DATE . Her house is situated in a courtyard with CARDINAL other private houses . According to a document issued by ORG ( a subdivision of GPE ) on DATE , there is CARDINAL common entrance into the courtyard and a single access serving houses CARDINAL and DATE ( the latter being the applicant ’s house ) .

NORP In DATE CARDINAL of the applicant ’s neighbours ( NORP ) built a fence around her own house which , according to the applicant , included a part of the area left for common use by the owners of the QUANTITY houses in the courtyard . The fence blocked the applicant ’s access to the only entry into the courtyard , and she was only able to reach her house through a gate left in the fence .

In DATE NORP replaced the fence with a bigger one and did not leave any opening for the applicant to go through . On DATE the applicant ’s son - in - law ( S. ) came to visit her and discovered the new fence . At the request of his mother - in - law he demolished part of the fence in order to create an unobstructed passage to the applicant ’s house .

At NORP ’s request , criminal proceedings were initiated against GPE DATE ORG acquitted him . The court noted statements made by several neighbours and an expert from ORG , as well as the certificate issued on DATE ( see paragraph CARDINAL above ) , according to which the courtyard had been reserved for common use by the owners of all QUANTITY houses and that there was CARDINAL access to the applicant ’s house , now blocked by the newly built fence . The court found that NORP had built the fence unlawfully and blocked the applicant ’s access to her own house , and that the actions of S. to free the passage to the house had been dictated by strict necessity . No appeal was lodged and the judgment became final .

In reply to a complaint by the applicant , on DATE the Chief PERSON of PERSON informed her that , following an on - site visit , he had established that the territory on which the applicant ’s and NORP ’s houses were situated had been in common use and that , accordingly , the access to the applicant ’s house was also in common use . This was confirmed by a map annexed to the letter . ORG added that no decisions had been adopted which could have provoked disputes between the applicant and NORP

On DATE the ORG decided to sell NORP a plot of land around her house , which included the common access road . On DATE the council and NORP concluded a contract for the sale of land .

Following a complaint by the applicant , on DATE the same authority amended its decision of CARDINAL DATE by reducing the surface of the plot of land sold to NORP , in order to resolve the dispute between NORP and the applicant and to secure access to the applicant ’s house .

D. challenged the municipality ’s decision of DATE in court . On DATE the ORG annulled the decision of CARDINAL DATE as unlawful . The court found that , according to a letter from the municipality ’s finance department dated DATE , the access road to the applicant ’s house had not been included in the plot of land sold to NORP

In a separate court action , on DATE the municipality initiated court proceedings , asking for modification of the contract of sale of land to NORP It claimed that the plot of land had mistakenly included the common access road used to access the applicant ’s house .

NORP In DATE the applicant initiated court proceedings against NORP and the municipality , asking for the annulment of all decisions taken in favour of NORP since DATE , including the decision of CARDINAL DATE , and of all contracts between the CARDINAL parties . She also noted that the fence built by NORP had blocked all access to her house and had even left her without a water supply , which had previously been secured via a water pipe ending in the common courtyard , now situated on NORP ’s land . The applicant asked for an order to remove all obstacles to her use of the house and to determine the manner of common use of the access by all the owners of the houses in the courtyard .

The CARDINAL court actions were joined .

On DATE ORG rejected the requests of the applicant and the municipality . The court found that the applicant had sufficient space to use her house and that , since the water pipe ran through the land owned by NORP , the applicant could only ensure access to water with NORP ’s agreement . It decided to discontinue the applicant ’s request to annul the decision of CARDINAL DATE , since its lawfulness had already been confirmed by the final judgment of ORG on DATE .

On DATE the ORG quashed the lower court ’s judgment and ordered a full re - hearing of the case .

On DATE ORG struck the applicant ’s action out of its list due to her failure to appear in court when summoned . That decision was quashed by ORG on DATE because there was no evidence in the file that the applicant had been summoned .

On DATE ORG rejected the applicant ’s and the municipality ’s requests . It stated , inter alia , that the applicant had unobstructed access to her house , without giving any details . It also repeated the reasons it had given in its judgment of DATE regarding the applicant ’s access to water . The court refused to annul the contract for the sale of land concluded between NORP and the municipality on DATE , given that it was based on the municipality ’s decision of CARDINAL DATE , a decision previously confirmed as lawful .

On DATE the ORG upheld that judgment . It essentially repeated the lower court ’s reasons regarding the lawfulness of the contract for the sale of land .

In her appeal on points of law the applicant referred , inter alia , to her inability to fully enjoy her property right over the house , the access to which was blocked by the fence built by NORP She claimed that the contract of DATE had been concluded in breach of the law . The applicant asked for the annulment of the contract and the demolition of the fence in order to secure unobstructed access to her house .

On DATE ORG dismissed the applicant ’s appeal , in her absence . The court acknowledged the confirmation by the Chief PERSON of PERSON of DATE , after he had visited the relevant courtyard , that the land and access road in question were in fact in common use . However , in the absence of any decision by GPE expressly reserving that land for common use , ORG opinion could not serve as a ground for annulling the lower court ’s judgments . Therefore the lower courts had correctly decided that the land sold to NORP had not been land in common use .

The court also found that the applicant had been summoned to the hearing but had failed to appear without giving plausible reasons . The applicant claims that she was not summoned . The judgment of DATE was final .

NORP The relevant provisions of domestic law and the relevant domestic practice have been set out in PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) .

In addition , LAW ( h ) of LAW reads as follows :

“ A revision request shall be granted when :

( h ) ORG has found a violation of the fundamental rights and freedoms ... ”


CASE OF KOSTESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Art. 9;No violation of Art. 14+9

On DATE the applicant did not appear at work at ORG , a public utility company , despite the instruction of his superior according to which no employee was allowed to take DATE off for DATE due to the heavy workload . The applicant justified his absence with the fact that he had celebrated a NORP religious holiday which was a public holiday for the citizens of NORP faith under the LAW and the respective law .

On DATE the disciplinary committee of the company found that the applicant had breached the disciplinary rules and been absent from work without authorisation . The committee decided not to dismiss the applicant but fined him with a PERCENT cut in his salary for DATE .

On DATE the applicant complained to the second instance committee , arguing that there had been a decision of ORG to the effect that CARDINAL DATE had been a public holiday for citizens of NORP faith . As a member of this religious community , he had informed his superior about his absence DATE .

On DATE the second instance committee upheld the decision of CARDINAL DATE , on the ground that the applicant had breached the instruction of CARDINAL DATE by which no employee was allowed to take DATE off because of the heavy workload .

On DATE the applicant appealed to ORG , claiming that his rights set out in Articles CARDINAL and CARDINAL of the LAW had been breached . In particular , he had been fined only because he had celebrated the NORP religious holiday and had not come to work on DATE , in accordance with the decision of ORG according to which CARDINAL DATE was a public holiday for the citizens of NORP faith .

At the hearing before ORG the applicant stated that he expressed his religious beliefs individually without going to mosques .

On DATE ORG dismissed the applicant ’s appeal on the ground that he did not adduce any evidence to prove that he was really of NORP faith .

On DATE ORG dismissed the applicant ’s further appeal . It stated that it was true that religious beliefs were an inner matter for the individual person . However , in the instant case it was to be established whether the applicant ’s absence from work was justified . Therefore , it was important to establish the applicant ’s religious confession . The lower court was correct in dismissing the applicant ’s complaint as the applicant had not proven that he had been a NORP since he had also celebrated the NORP religious holidays .

On DATE the applicant was again fined for not having appeared at work on DATE at the time of the celebration of another NORP religious holiday , GPE . The fine corresponded to PERCENT of his DATE salary over DATE .

On DATE the applicant ’s complaint was dismissed by the second instance committee .

The applicant complained to ORG that ORG had deprived him of his right to an additional paid DATE for NORP citizens although he had stated before the second instance committee that he was NORP . However , he had not considered it necessary to change his name and surname accordingly and wished to worship on his own .

On DATE ORG dismissed the applicant ’s appeal . The court stated that under the relevant law persons of NORP faith enjoyed the right to paid religious holidays . However , the applicant had not given any evidence to corroborate his statement that he was a NORP . He had never been absent from work at the time of the NORP religious holidays before DATE . On the contrary , he had celebrated the NORP religious holidays , his parents were NORP and his way of life and diet showed that he was of NORP faith . From his employment contract and insurance it transpired that he had been registered as NORP without any mention of being a NORP . The court held that the applicant was a self - proclaimed NORP in order to justify his unjustified absence from work .

On DATE ORG dismissed the applicant ’s appeal on the ground that while it was true that the religious beliefs were an inner matter , he had breached the disciplinary rules and had not come to work . He therefore had to justify his absence and it had been necessary to establish through evidence whether the applicant was truly of NORP faith . There was however no evidence to this effect , as the applicant , an ethnic NORP , had been absent from work during the NORP religious holidays and had celebrated them . Therefore , his absence from work was unjustified .

On DATE the applicant complained to ORG that through disciplinary sanctions and judicial decisions he had been discriminated against because of his religious beliefs . In particular , for unknown reasons the courts had not considered his statement that he was of NORP faith to be credible and had asked him for further proof . He claimed that he should not be required to produce evidence of his religious beliefs .

On DATE ORG refused to examine the applicant ’s allegations in respect of the decisions of DATE , CARDINAL DATE , DATE and CARDINAL DATE of the public utility company , the decisions of DATE and CARDINAL DATE of ORG and the decision of DATE of ORG for being lodged out of the DATE time limit provided for in the Rules of ORG .

The Constitutional Court however examined the applicant ’s complaint in regard of ORG decision of CARDINAL DATE . It noted that the applicant requested the exercise of rights relating to freedom of religion but that he did not produce any evidence concerning his beliefs and refused to do so . As concerned the initial question as to whether when exercising a right to a paid public holiday based on religion it was enough for a citizen subjectively to assert his faith , it held :

“ Taking into consideration that the rule of law is fundamental to the constitutional order of GPE under Article CARDINAL , paragraph CARDINAL(CARDINAL ) of the LAW , under which it should be implied that objective legal norms take precedence over subjective will when requesting the exercise of legal rights , and given the viewpoint of the representatives of the NORP and NORP religions ... ( the dean at ORG in GPE and the head of the NORP community in GPE ) that there are objective criteria to determine whether a citizen holds NORP and NORP religious beliefs ... the court held that it was necessary to establish objective facts related to the exercise of a right and to obtain evidence of them in a situation where a right is requested .

In line with this , with a view to establishing objective facts to assess whether there was discrimination on religious grounds in this case , the court held a public hearing ( on DATE ) and CARDINAL consultative discussions ( on CARDINAL and DATE May and DATE ) and on the basis of their contents , in particular , on the basis of the applicant ’s statements , it was established that the contents of his religious belief ( even their form ) objectively did not correspond to those of the NORP faith ( and its form ) on several grounds ( for example : a lack of knowledge of the basic most important tenets of the religion through which its essence is expressed ... or of the way in which one ‘ ORG the NORP faith , etc . ) ”

NORP The court concluded that the applicant had not been discriminated against on the basis of his religious beliefs by the requirement to establish the objective facts and dismissed the complaint .

Article CARDINAL , as far as relevant , provides as follows :

“ ( CARDINAL ) Citizens of GPE are equal in their freedoms and rights , regardless of sex , race , the colour of skin , national and social origin , political and religious beliefs , property and social status . ORG ( CARDINAL ) All citizens are equal before the LAW and law . ”

“ ( CARDINAL ) The freedom of religious confession is guaranteed . ORG ( CARDINAL ) The right to express one ’s faith freely and publicly , individually or with others is guaranteed .

“ ORG :

( CARDINAL ) safeguards the freedoms and rights of individuals and citizens concerning the freedom of communication , conscience , thought and action , and the prohibition of discrimination among citizens on the grounds of sex , race , religion or national , social or political affiliation ;

Section CARDINAL provides that a person who considers that he or she is a victim of a violation of CARDINAL of the rights set out in LAW shall have the right to file an application with ORG within DATE from DATE he was served with a binding decision or a judgment .

It provides , inter alia , that DATE and GPE shall be public holidays for all the citizens of the former GPE regardless of their confession and that PERSON and PERSON shall be public holidays for citizens of the NORP faith .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Non-pecuniary damage - award

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

The applicant was born in DATE and lives in the village of GPE in GPE of GPE .

The applicant did not witness the killing of her husband and the account of events given below is based on witness statements by the applicant ’s fellow villagers . She submitted statements by PERSON and a Mr K.

On DATE Mr A. and PERSON were guarding agricultural fields to the north of the village of ORG near LOC in GPE of GPE . At TIME they met the applicant ’s husband , Mr PERSON , born in DATE , and Mr NORP , who had come to get some wood in the nearby forest area .

Some time later a number of armed men arrived in CARDINAL armoured personnel carriers . According to the witnesses , they were servicemen of the NORP armed forces . Without any prior warning the servicemen opened indiscriminate fire across the field . The witnesses hid so that they could observe the events in safety . The servicemen also fired at the applicant ’s husband and Mr NORP Mr PERSON was killed on the spot . Then the servicemen crossed the river and shot Mr NORP They dropped the CARDINAL dead bodies in the river , got in the armoured personnel carriers and drove away in the direction of ORG .

According to PERSON and PERSON , the armoured personnel carriers should have passed near a federal military unit located at that time on the north - western outskirts of the village . They should also have passed through a federal check - point which blocked the motorway leading from ORG .

After the soldiers had left , PERSON , PERSON and several other residents of ORG , who had come from the village having heard the shooting , took the corpses out of the water and took them back to the village .

DATE the villagers informed the law - enforcement agencies of the incident .

The killing of Mr NORP does not form part of the present application .

According to the Government , on DATE the prosecutor ’s office of ORG ( “ the district prosecutor ’s office ” ) instituted an investigation into the murder of Mr PERSON and Mr NORP under LAW of LAW ( aggravated murder ) . The case file was assigned the number DATE . It does not appear that the applicant was duly informed of that decision .

In the ORG ’s submission , on DATE the status of victim was given to Mr PERSON brother . The applicant ’s request that she be declared a victim of a crime was rejected , since she had not furnished the authorities with documents confirming that she was married to Mr PERSON .

According to the Government , on DATE the investigating authorities inspected the scene of the incident , which was heavily saturated with a substance of a brown colour resembling blood , and found fragments of biological material resembling brain matter . They also found CARDINAL bullet cases of CARDINAL PERSON calibre . At a certain distance from that place , on the other river bank , the investigating authorities found CARDINAL bullet cases of CARDINAL x CARDINAL PERSON calibre , CARDINAL bullet cases of CARDINAL x CARDINAL PERSON calibre and CARDINAL bullet cases of QUANTITY calibre . Also , the tyre tracks of a motor vehicle , presumably an armoured personnel carrier , were found at the scene of the incident . According to an expert examination carried out on an unspecified date , the bullet cases found at the scene of the incident were of the type used for firing from various modifications of machine - guns , sniper rifles and self - loading rifles .

According to the Government , a medical examination of Mr PERSON body carried out on an unspecified date reported that he had died due to an extensive open wound to the head with calvarias bone fracture and complete ejection of his brain matter .

The Government further submitted , without specifying the dates , that the investigating authorities had identified and questioned eyewitnesses to the incident , PERSON . and PERSON In particular , PERSON , a warden of agricultural fields , stated that on DATE he had been guarding the field and the applicant ’s husband and Mr D. had been working in the nearby wood , when at TIME a group of men in green uniforms had arrived in CARDINAL armoured personnel carriers and started indiscriminate shooting . After the men in armoured personnel carriers had left , he and his workmate , PERSON . , had approached the place where the applicant ’s husband and Mr D. had been working and had found their corpses in the river nearby .

According to the Government , PERSON . stated during his witness interview that on DATE he had been guarding the field , together with PERSON , whilst Mr PERSON and Mr NORP had been working in the nearby wood . Then servicemen in CARDINAL armoured personnel carriers had arrived and opened indiscriminate shooting from automatic firearms . TIME later the soldiers had ceased fire , then CARDINAL or CARDINAL of them had crossed the river and entered the wood in which the applicant ’s husband and Mr D. had been working . PERSON . had heard the soldiers curse , then several shots followed , and then he had seen the soldiers throw the dead bodies of Mr PERSON and Mr NORP into the river . After the soldiers had left in their armoured personnel carriers in the direction of the motorway , PERSON . and PERSON had taken the corpses out of the river and delivered them to their homes .

In the Government ’s submission , PERSON had given similar oral evidence .

The Government also submitted , without specifying the date , that the investigating authorities had also questioned the applicant , who had stated that on DATE her husband and Mr D. had left to get some firewood to the north of the village near the river . Some time later she had heard machine - gun fire coming from that direction , and some time later the dead bodies of her husband and Mr D. had been brought back by other residents of their village who had seen the incident and had stated that her husband and Mr D. had been killed by NORP servicemen .

In their additional memorial of CARDINAL DATE submitted in reply to the applicant ’s observations , the Government further stated that the investigating authorities had also questioned a certain PERSON , a serviceman who had been on duty at a check - point in the vicinity of the scene of the incident on DATE . According to the Government , PERSON had submitted that on the date in question at TIME armoured personnel carriers had passed through the check - point , their registration numbers being covered with cartridge boxes , and that some time later local residents had arrived in several cars and had stated that unidentified persons had shot down their fellow - villagers . In the ORG ’s submission , Mr L. was unable to recall whether the local residents mentioned that the murder had been committed by servicemen .

In the applicant ’s submission , she had regularly visited the district prosecutor ’s office and requested that she be informed of any progress in the investigation , but in vain .

On DATE the applicant requested the district prosecutor ’s office to inform her of any progress in the investigation and allow her to join the proceedings as a victim and a civil claimant .

On DATE the district prosecutor ’s office suspended the investigation in case no . CARDINAL for a failure to identify those responsible . The applicant was not promptly informed of the decision .

On DATE the applicant requested the district prosecutor ’s office to inform her of the progress in the investigation and to admit her to the proceedings as a victim and a civil claimant .

On DATE the district prosecutor ’s office quashed the decision of DATE for the reason that the investigation was incomplete and resumed the proceedings in case no . DATE . They noted , in particular , that Mr PERSON and Mr NORP had been killed “ for no good reason ” by “ servicemen of an unknown military unit ” .

On DATE the district prosecutor ’s office decided to allow the applicant to join the proceedings as a civil claimant . On DATE they also granted her the status of victim of a crime . It was mentioned in both decisions that Mr PERSON and Mr NORP had been killed “ for no good reason ” by “ servicemen of an unknown military unit ” .

On DATE the district prosecutor ’s office again stayed the proceedings in case no . CARDINAL for failure to identify those responsible .

In the applicant ’s submission , since DATE she has not even once been informed by the authorities of the progress in the investigation in case no . DATE .

On DATE the applicant requested the district prosecutor ’s office to carry out a number of investigative actions ; in particular , to question servicemen of the military unit from the DON-CARDINAL regiment of ORG of the ORG , who had been stationed on the north - western outskirts of ORG in DATE ; to question servicemen who had been on duty at the check - point on the motorway between GPE and ORG , which the alleged perpetrators had passed through after the incident ; to carry out ballistic tests ; and to check the firearms which had been in use by the servicemen of the DON-CARDINAL regiment , among other steps . According to the applicant , she has not received any reply to her request .

On DATE the applicant requested the district prosecutor ’s office to allow her access to the investigation file .

On DATE the district prosecutor ’s office observed that the investigation in case no . DATE was pending and dismissed the applicant ’s request , stating that under domestic law access to a case file could only be allowed upon completion of the investigation .

On DATE the applicant challenged the prosecutor ’s decision of CARDINAL DATE before ORG .

By a decision of CARDINAL DATE the Urus - Martan Town Court dismissed the applicant ’s complaint , stating that “ during the investigation a sufficient range of investigative steps aiming at resolving the crime and identifying those responsible [ had been ] undertaken ” , that the investigation had not yet been completed but had been suspended owing to the fact that it was impossible to establish those responsible , and that therefore the decision of DATE was well - founded , as under national law a victim could also gain access to the case file upon the completion of an investigation .

On DATE ORG of GPE dismissed the applicant ’s appeal and upheld the first - instance decision .

In DATE , when the application was communicated to them , the Government were invited to produce a copy of the investigation file in criminal case no . DATE opened in connection with the murder of the applicant ’s husband and Mr D. The Government refused to submit any documents from the file , stating that , under LAW , disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings . They also submitted that they had taken into account the possibility of requesting confidentiality under LAW of ORG , but noted that the ORG provided no guarantees that once in receipt of the investigation file , the applicants or their representatives would not disclose those materials to the public . According to the Government , in the absence of any sanctions in respect of applicants for the disclosure of confidential information and material , there were no guarantees concerning compliance by the applicants with the Convention and the Rules of Court .

In DATE the ORG reiterated its request . In reply , the ORG again refused to produce any documents from the file for the aforementioned reasons . At the same time , they suggested that a ORG delegation could be given access to the file in GPE , with the exception of those documents containing military and ORG secrets , and without the right to make copies of the case file .

For a summary of the relevant domestic law see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .


The applicant , PERSON , is an NORP national , who was born in DATE and lives in PERSON . She is represented before the ORG by Mr PERSON , a lawyer practising in LOC .

The facts of the case , as submitted by the applicant , may be summarised as follows .

The applicant owed CARDINAL DEM ( NORP marks ) to CARDINAL creditors . She had made an unsuccessful attempt to obtain discharge of the residual debt on the basis of a debt reorganisation plan . However , the majority of the creditor ’s refused to agree to this plan .

On DATE the applicant applied for legal aid with a view to initiating insolvency proceedings and achieving discharge of residual debt .

On DATE ORG ( ORG ) dismissed her request . Leaving the question undecided whether the legal aid provisions contained in LAW ) applied to insolvency proceedings , it considered that in the present case the proposed proceedings did not have sufficient prospects of success , since CARDINAL the named creditors had refused to approve the applicant ’s debt reorganisation plan . Pursuant to LAW ) , the insolvency court could not replace their objection by approval and the insolvency proceedings had to be considered as having failed .

The applicant appealed against this decision . She maintained that if she were refused legal aid in the insolvency proceedings , she would be deprived of the possibility to proceed to the subsequent procedural steps provided for by LAW , namely the opening of insolvency proceedings and the grant of discharge for thee residual debt after the expiry of the period of good payment behaviour . To make a difference in insolvency proceedings between debtors who were able to pay the court costs and others who were unable to do so , would exclude the less privileged from being granted a discharge for the residual debt and breach their right to access to court .

On DATE ORG ( Landgericht ) dismissed the appeal . It pointed out that the question of legal aid in insolvency proceedings , including the proceedings relating to discharge of residual debt , was controversial . Unlike bankruptcy proceedings where , in the absence of any positive effect for the debtor , legal aid had to be refused for lack of sufficient prospects of success within the meaning of LAW of LAW , insolvency proceedings could have a positive outcome for the debtor , namely to give the debtor the opportunity to achieve a discharge of the residual debt in accordance with LAW . However , this advantage could only be granted if previously an unsuccessful attempt had been made to settle out of court with the creditors on a basis of a plan and subsequently insolvency proceedings conducted until at least the discontinuation of the proceedings . In the present case the plan for the settlement of debts submitted by the applicant had not been approved by CARDINAL the creditors . Their approval could not be replaced by the court . The out of court settlement proceedings must therefore be considered as having failed .

ORG added that in any event Sections CARDINAL seq . of ORG were not applicable in consumer insolvency proceedings although there were no specific rules excluding the applicability of these provisions . However , the drafting history of LAW made it clear , on the other hand , that the legislator did not intend to include expressly provisions on legal aid in the new law . A clarification of this situation had not occurred . ORG pointed out that it was not its task to decide on the question whether such a clarification would be desirable , in particular having regard to the absence of sufficient financial means of most of the debtors and the purpose of discharging them from their remaining debts pursuant to LAW .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as panel of CARDINAL judges , decided not to entertain the applicant ’s constitutional complaint considering that it did not raise any constitutional issue of fundamental importance and that there was no appearance of a violation of the applicant ’s basic rights

LAW ) came into force on DATE . The law distinguishes between regular insolvencies and consumer insolvencies ( simplified proceedings ) . The procedure is initiated at the request of the debtor or of a creditor if the debtor is insolvent . CARDINAL of the major amendments in the context of the new insolvency law was the introduction of a special consumer insolvency procedure . If the debtor is a natural person , he or she may be discharged from his or her remaining debts . In accordance with LAW as amended on DATE , natural persons , who are not able to pay the costs of the insolvency proceedings , may be granted a delay in paying the costs . This facilitates the opening of insolvency proceedings which are in turn a precondition for achieving a discharge of residual debt . A central issue , namely the granting of legal aid , is still unresolved .

The consumer insolvency procedure consists of CARDINAL phases :

The debtor must seek an out of court - settlement with the creditors . Only if all creditors agree the plan the proceedings may be completed at this stage .

If his attempt to reach an agreement is unsuccessful , the court insolvency proceedings follow . The court attempts once more to arrive at an agreement between the creditors and the debtor on the basis of a debt reorganisation plan . The debtor must submit files detailing his or her assets and income , together with a list of creditors and their claims , to the court . Furthermore the debtor must prove that all attempts to secure an agreement with the creditors have failed . Where the majority of creditors agree to the plan , the court may substitute the approval of individual creditors under certain conditions .

After the opening of insolvency proceedings claims are examined and validated . The debtor ’s assets are liquidated by a ORG appointed by the court . If the debtor settles with the creditors to the best of his ability , he is discharged from his remaining debts after a period of good payment behaviour . This period will be usually DATE .


CASE OF SUPREME HOLY COUNCIL OF THE MUSLIM COMMUNITY v. BULGARIA

Violation of Art. 9;No violation of Art. 13;Not necessary to examine Arts. 6 and 14;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant , ORG ( Висш духовен съвет ) of ORG , headed by Mr PERSON , was the officially recognised leadership of NORP in GPE , at least DATE . In reality , at the relevant time it was CARDINAL of the CARDINAL rival NORP religious leaderships in GPE . Mr PERSON , a NORP citizen born in DATE and residing in GPE , was its leader . He was the Chief PERSON DATE and the President of ORG DATE .

At DATE a process of democratisation commenced in GPE . Soon thereafter some NORP believers and activists of the NORP religion in the country sought to replace the leadership of their religious organisation . They considered that PERSON , who was the Chief PERSON at that time , and the members of ORG had collaborated with the communist regime . The old leadership , with Mr LANGUAGE as Chief Mufti of NORP , also had supporters . This situation caused divisions and internal conflict within the NORP community in GPE .

At DATE a new Government , formed by ORG ( GPE демократичните сили – “ the ORG ” ) and ORG ( PERSON за права и свободи DATE “ the DPS ” ) , took office .

On DATE ORG ( PERSON по вероизповеданията - “ the Directorate ” ) , a governmental agency attached to ORG , declared the election of Mr LANGUAGE in DATE as Chief Mufti of the NORP in GPE null and void and proclaimed his removal from that position . This decision was based on findings , inter alia , that Mr LANGUAGE ’s election in DATE had been politically motivated .

The ORG appointed a CARDINAL - member interim governing body of the ORG religious organisation , considering that that was “ the only possible means of preventing the organisational disintegration of the NORP denomination ” .

A national conference of NORP , organised by the interim leadership , took place on DATE . It elected Mr PERSON as Chief PERSON and also approved a new statute , which was registered in accordance with sections DATE and CARDINAL of LAW . After DATE the supporters of PERSON obtained full control over the property and activities of the NORP community .

Mr GPE , who claimed that he remained the Chief Mufti , challenged the decision of DATE before ORG . The proceedings ended with a final judgment of DATE . ORG , while considering that the impugned decision was not amenable to judicial review , nevertheless commented that the ORG ’s decision to declare Mr PERSON ’s election null and void had been within its competence . In so far as the impugned decision had also proclaimed “ the removal ” of PERSON LANGUAGE from his position of Chief PERSON , this had been ultra vires . However , it was unnecessary to annul this part of the ORG ’s decision as in any event it had no legal consequences .

NORP The leadership dispute between Mr LANGUAGE and PERSON continued throughout DATE and DATE . The official position of ORG remained that PERSON was the legitimate Chief PERSON of NORP . At the same time the ORG apparently sought to “ resolve ” the dispute through the “ unification ” of the CARDINAL factions under a common leadership .

On DATE the supporters of PERSON held a national conference , which proclaimed itself the legitimate representative of NORP believers . The conference elected a leadership and adopted a statute . Mr PERSON was elected President of ORG . After the conference the newly elected leaders applied to the ORG for registration as the legitimate leadership of NORP in GPE .

At DATE parliamentary elections took place in GPE . ORG ( Българска социалистическа партия – “ the ORG ” ) obtained a majority in ORG and formed a new government , which took office in DATE .

On DATE the Deputy Prime Minister issued a decree approving the statute of the NORP denomination as adopted by the supporters of PERSON on DATE . On DATE the ORG registered the leadership elected at that conference and effectively removed PERSON and his supporters . In DATE the faction led by Mr PERSON assumed full control over the property and activities of the NORP community in GPE .

Mr PERSON appealed to ORG against the decision of the ORG registering Mr PERSON leadership . Mr PERSON submitted , inter alia , that the conference of DATE had been organised by people outside the NORP religious organisation presided over by him . Accordingly , they could register their own religious organisation but could not claim to replace the leadership of another . PERSON asked ORG either to proclaim the DATE decision null and void as being contrary to the law or to declare that it constituted the registration of a new religious community , the existing NORP organisation being unaffected . The ORG did not have the right , he argued , to impose a single leadership on the NORP .

On DATE ORG dismissed the appeal . The court stated that under LAW enjoyed full discretion in its decision as to whether or not to register the statute of a given religion . ORG jurisdiction was therefore limited to an examination of whether the impugned decision had been issued by the competent administrative organ and whether the procedural requirements had been complied with . In that respect the decision of DATE was lawful .

As regards the request for interpretation of the DATE decision , it was not open to ORG , in the context of those particular proceedings , to state its opinion as to whether it had the effect of creating a new legal person , or introducing changes , and whether after this decision there existed CARDINAL parallel NORP religious organisations .

Following the removal of PERSON , in DATE the NORP believers who supported him held their own assembly and re - elected him Chief Mufti , while introducing changes in the organisation ’s statute and leadership . PERSON then applied to ORG for registration of the amended statute and the new leadership . Not having received any response , PERSON appealed to ORG against the tacit refusal of his application .

On DATE ORG delivered its judgment . It noted that in DATE the Chief ORG as represented by PERSON had been duly registered as a religious denomination and had thus obtained legal personality of which it had not subsequently been deprived . Therefore , ORG was under an obligation , pursuant to sections CARDINAL and CARDINAL of LAW , to examine a request for registration of a new statute or of changes in the leadership of the existing religious denomination . Accordingly , ORG ruled that the ORG of ORG tacit refusal had been unlawful and remitted the file to ORG , which was required to examine it .

On DATE the Deputy Prime Minister refused to register the DATE statute and leadership of the Chief ORG as represented by Mr PERSON . He sent him a letter stating , inter alia , that ORG had already registered a leadership of the NORP community in GPE , which was that elected by the DATE conference with PERSON LANGUAGE as President of ORG . The Deputy Prime Minister concluded that the request “ [ could not ] be granted as it [ was ] clearly contrary to the provisions of LAW ” .

On DATE Mr PERSON appealed to ORG against the refusal of DATE .

On DATE ORG quashed the refusal of the Deputy Prime Minister to register the DATE statute and leadership headed by PERSON PERSON on the ground that it was unlawful and contrary to LAW . That refusal was , moreover , “ an unlawful administrative intervention into the internal organisation of [ a ] religious community ” . ORG again ordered the transmission of the file to ORG for registration .

Despite ORG judgments of DATE and DATE ORG did not grant registration to the religious leadership headed by Mr Hasan .

In DATE the government of the ORG stepped down and an interim cabinet was appointed . At the general elections that followed in DATE the ORG obtained a majority in ORG and formed a new government .

The new Deputy Prime Minister and ORG urged the CARDINAL rival leaderships , of PERSON and of PERSON GPE , to negotiate a unification .

On DATE , in a letter to the Deputy Prime Minister and the ORG , the religious leadership presided over by PERSON demanded the removal of PERSON .

On DATE ORG headed by Mr LANGUAGE , also in a letter addressed to the Deputy Prime Minister and the Directorate , proposed the holding of a unification conference to be organised by a joint committee composed of representatives of the opposing factions . The Deputy Prime Minister was asked to serve as guarantor of the unification process and to ensure full representation at the conference of all NORP religious communities . The letter also indicated that the current official leadership presided over by Mr PERSON agreed to freeze any movements of staff or disposals of community property pending the conference .

On DATE the contact groups elected by the rival factions – composed of CARDINAL members DATE signed an agreement to convene a national conference of all NORP believers . The agreement was also signed by the Deputy Prime Minister and ORG . It provided , inter alia :

“ CARDINAL . The all - NORP conference shall be organised on the basis of full representation of the NORP denomination . It shall not be based on the CARDINAL existing statutes [ of the rival leaderships ] . [ The ] Deputy Prime Minister ... and ORG undertake to guarantee the implementation of this principle .

NORP ... The [ rival groups ] undertake not to obstruct the spirit of unification underlying the conference , failing which the ORG shall take appropriate administrative measures against the persons suspected of [ obstruction ] .

Pending the conference , the [ leadership headed by Mr NORP ] undertakes to refrain from any administrative decisions , [ such as ] appointments ...

The [ leadership headed by Mr NORP ] consents to a freeze on all bank accounts ... and declares that pending the conference it will not enter into any transaction ...

The joint committee shall draw up rules and a procedure for the organisation of the conference ... ”

On an unspecified date the joint committee ruled that the assembly of each local community attending a mosque should elect CARDINAL delegates to the national conference . It also decided that TIME of the assemblies’ proceedings had to be entered on a form provided by ORG and certified by the local mayor .

On DATE the joint committee decided that the conference should be held on DATE and also agreed on the distribution of expenses .

Local assemblies for the election of delegates were held on DATE throughout the country . The local mayors issued letters certifying the results of the elections .

NORP The applicant organisation has submitted copies of CARDINAL complaints to the ORG dated DATE , CARDINAL by a local religious leader and CARDINAL by the mayor of a village . The letters stated that persons connected with the ORG had used threats to take possession of the results of the elections of delegates in the CARDINAL localities concerned .

On DATE and DATE Mr LANGUAGE and those who had signed the unification agreement on behalf of ORG headed by him wrote to the Prime Minister and ORG stating that the conference planned for DATE was not being organised in accordance with the statute of the NORP religious organisation and that it was therefore unlawful . Those who had signed the agreement of DATE stated that they had been forced to do so by ORG and declared the withdrawal of their support for that agreement . The letter signed by PERSON further described the participation of the ORG in the preparation of the conference as unacceptable ORG interference in the ORG internal affairs .

On DATE CARDINAL delegates attended the conference . Only those whose election had been certified by the mayors were allowed to participate . According to the press , the verification of the delegates’ credentials was carried out by employees of ORG . Its Director addressed the conference , stating , inter alia , that PERSON , who did not attend , had “ failed the test ” . With these words the Director apparently blamed Mr PERSON for having withdrawn from the unification process .

According to the applicant organisation , the ORG , a political party with a large majority of ethnic NORP among its members , was involved in the organisation of the conference . The party was allegedly very close to the ruling ORG and was implementing the political decision to replace the leadership of the NORP community . According to the applicant organisation , CARDINAL of the delegates on DATE were mayors elected on the ORG ticket .

The conference adopted a new statute of the NORP denomination in GPE and unanimously elected a new leadership comprising CARDINAL members of the leadership of PERSON and other persons . It appears that no leader of the applicant organisation was among the newly elected leadership . The conference passed a resolution authorising the new leadership to conduct an audit and to seek the prosecution of PERSON for alleged unlawful transactions .

On DATE the Deputy Prime Minister registered the newly elected leadership , relying on sections CARDINAL and CARDINAL of LAW . The new leadership took over all the organisational aspects and assets of the NORP community in GPE .

Mr GPE , who claimed that he remained the President of ORG , appealed on its behalf to ORG against the ORG ’s decision to register the new leadership . He claimed that the persons who had signed the agreement for the holding of a unification conference on behalf of the applicant organisation had never been officially authorised to do so ; that the conference had been unlawful because of that fact and since those persons had in any event withdrawn ; and that the authorities had interfered in an inadmissible manner in the internal affairs of the NORP community . That was so because ORG had prepared the forms on which the results of the local elections for delegates had been recorded and also because those results had been certified by the mayors . Furthermore , among the elected delegates there had been a number of persons who were local mayors or active members of CARDINAL political party , the ORG . Finally , the applicant organisation argued that there had been irregularities and manipulation in the election of delegates .

On DATE ORG held a hearing . It admitted in evidence the material submitted by the applicant organisation but refused its request for a disclosure order against ORG . That request apparently concerned documents about the preparation of the DATE conference and the election of delegates . The court also refused to hear witnesses .

On DATE ORG , sitting as a bench of CARDINAL judges , rejected the appeal as being inadmissible . It found that ORG headed by Mr PERSON had no locus standi to lodge an appeal as it had never been validly registered . The registration acts of CARDINAL and DATE had been based on a decision by a Deputy Prime Minister who had not , however , been duly authorised by ORG to approve the statutes of religious denominations . As a result ORG headed by PERSON had never legally existed and all its acts DATE were null and void .

On an appeal by the applicant organisation , on CARDINAL DATE a CARDINAL - member bench of ORG quashed the decision of DATE and remitted the case for examination on the merits . The bench noted that by judgment of CARDINAL DATE ORG had found that the DATE registration of ORG headed by PERSON had been lawful . That finding was final and binding . Therefore , the applicant ’s appeal could not be rejected for lack of locus standi .

In the reopened proceedings a CARDINAL - member bench of ORG examined the appeal on the merits and dismissed it on DATE . The presiding judge was the same person who had presided over the previous examination of the case , which had ended with the inadmissibility decision of DATE . He was also CARDINAL of the CARDINAL judges who had delivered judgment on DATE in the case concerning PERSON PERSON ’s removal in DATE .

The court found that the acts of the authorities did not constitute an interference with the internal organisation of the NORP community . The decision to hold a unification conference had been taken freely by representatives of the CARDINAL rival groups . The rules and procedures for the election of delegates and for the holding of the DATE conference , including those concerning the results of the local elections for delegates and their certification , had been drawn up by the joint committee . ORG had contributed to the organisation of the conference purely at the parties’ request . It had acted in accordance with the agreement between the CARDINAL leaderships and the decisions of the joint committee . The ORG ’s task had been to contribute to and guarantee tolerance and respect in inter - religious relations as well as in the relations between different groups belonging to CARDINAL and the same religion . The fact that ORG presided over by PERSON had withdrawn at TIME did not call into question the validity of the conference , which had taken place in accordance with the negotiated rules . It was true that these rules derogated from the statute of the NORP community as in force at the relevant time but the derogation had been decided upon freely by the CARDINAL leaderships in order to resolve the conflict within the community . It followed that the impugned act , the decision of DATE registering the newly elected leadership of the NORP community , was in accordance with the law .

The applicant organisation submitted a cassation appeal against the judgment of CARDINAL DATE . It alleged , inter alia , that not all the relevant evidence had been collected and examined .

On DATE the appeal was dismissed by a CARDINAL - member bench of ORG , which upheld the reasoning of the impugned judgment . It also found that the relevant facts had been clarified and that the additional evidence submitted by the applicant organisation in the cassation proceedings had been the same as that submitted earlier . The applicant organisation was legally represented in the above proceedings .

The divide within the NORP community in GPE continued . It appears that the legitimacy of a community assembly held in DATE was disputed by some leaders . Divisions also persisted at local level . In a letter of DATE , ORG certified that it had not registered the local leadership of the NORP community in GPE as CARDINAL separate local assemblies had elected their leaderships and were in dispute . Similar problems occurred in GPE and Russe in DATE and DATE .

In DATE the ORG appointed QUANTITY persons to represent the NORP community in GPE temporarily , pending judicial proceedings concerning the validity of the election of a new leadership at a national conference held in DATE .

The relevant provisions of the DATE LAW read as follows :

“ ( CARDINAL ) ORG shall be free .

( CARDINAL ) NORP institutions shall be separate from the State ...

( CARDINAL ) Religious institutions and communities , and religious beliefs shall not be used for political ends . ”

“ ( CARDINAL ) NORP The freedom of conscience , the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable . The ORG shall assist in the maintenance of tolerance and respect between the adherents of different denominations , and between believers and non - believers .

( CARDINAL ) The freedom of conscience and religion shall not be exercised to the detriment of national security , public order , public health and morals , or of the rights and freedoms of others . ”

ORG judgment no . CARDINAL of DATE interpreting the above provisions states , inter alia , that the ORG must not interfere with the internal organisation of religious communities and institutions , which must be regulated by their own statutes and rules . The ORG may interfere with the activity of a religious community or institution only in the cases contemplated in LAW and CARDINAL § CARDINAL of the LAW . An assessment as to whether there is such a case may also be undertaken at the time of registration of a religious community or institution .

The Religious Denominations Act DATE was amended several times . The relevant provisions of the LAW , as in force at the time of the events at issue , read as follows .

“ ( CARDINAL ) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by ORG , or by a Deputy Prime Minister authorised for this purpose .

( CARDINAL ) ORG , or a Deputy Prime Minister authorised for this purpose , shall revoke the recognition , by a reasoned decision , if the activities of the religious denomination breach the law , public order or morals . ”

“ ( CARDINAL ) Every religious denomination shall have a leadership accountable to the ORG .

( CARDINAL ) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment ... “

“ ( CARDINAL ) The national governing bodies of the religious denominations shall register with ORG , and local governing bodies with the local municipalities , and they shall submit a list of the names of all members of these governing bodies . ”

The Act also laid down rules regarding the activities of a religious denomination , imposed requirements as regards its clergy and gave ORG wide supervisory functions . In its judgment no . CARDINAL of DATE ORG , while agreeing that certain provisions of LAW were clearly unconstitutional ( the court cited as examples several provisions concerning the powers of the ORG to dismiss clergymen and to control the activities of religious organisations ) , found that it was not its task to repeal legal provisions adopted prior to the entry into force of the DATE LAW , the ordinary courts being competent to declare them inapplicable .

Under Decree No . CARDINAL of ORG of DATE , as amended , the competence of ORG includes “ contacts between the ORG and religions denominations ” , assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications .

In accordance with the Regulations on the registration of the local leadership of religious denominations , issued by the Government in DATE ( ORG no . CARDINAL of DATE ) , such registration is only possible if the election of a local leadership has been approved by the registered national leadership of the religious denomination .

The Religious Denominations Act DATE has been interpreted in the administrative practice of the ORG and ORG as requiring that each religious denomination must have a single leadership and that parallel organisations of the same religious denomination are not allowed . The judicial practice during the relevant period evolved from the initial position that ORG and the ORG enjoyed unfettered discretion in the registration of the leadership and statute of a religious denomination ( see paragraphs CARDINAL and CARDINAL above ) to the position that the courts , when asked to rule on the lawfulness of a Government decision registering a new religious leadership , had to examine whether the new leadership had been appointed in compliance with the religious denomination ’s statute , in its version as registered by ORG ( see paragraphs CARDINAL and DATE above and also the following judgments of ORG : judgment no . DATE of DATE in case no . CARDINAL , judgment no . CARDINAL of DATE in case no . CARDINAL/CARDINAL and judgment no . CARDINAL of DATE in case no . CARDINAL ) .

The Religious Denominations Act DATE was repealed with effect as from DATE , upon the entry into force of the new Religious Denominations Act DATE .

The new LAW provides for judicial registration of religious denominations as legal persons . Before deciding , the court may request an expert opinion from ORG .

Section CARDINAL(CARDINAL ) provides that CARDINAL registration may be made concerning a religious denomination with the same name . Section CARDINAL provides that a person who acts on behalf of a religious denomination without authorisation is to be fined by ORG . Paragraph CARDINAL of the transitional provisions to the LAW provides that persons who had seceded from a registered religious institution before the LAW ’s entry into force in breach of the institution ’s government - registered internal rules are not entitled to use the name of the religious institution or its assets .

In DATE CARDINAL members of ORG asked ORG to repeal certain provisions of LAW as being unconstitutional and contrary to the Convention . The Constitutional Court gave judgment on DATE .

Sections CARDINAL(CARDINAL ) and CARDINAL were not among the provisions challenged but paragraph CARDINAL of the transitional provisions was ( see paragraph CARDINAL above ) .

ORG could not reach a majority verdict , an equal number of judges having voted in favour and against the request to declare that provision unconstitutional . According to ORG practice , in such circumstances the request for a legal provision to be struck down is considered to be dismissed by default . The judges who voted against the request considered , inter alia , that the principle of legal certainty required that persons who had seceded from a religious denomination should not be allowed to use its name . Further , it was obvious that they could not claim part of its assets , as the assets belonged to the religious denomination as a legal person . The judges who considered that the provision was unconstitutional stated that it purported to regulate issues that concerned the internal organisation of religious communities and thus violated their autonomy . Those judges further stated that the provision , applied in the context of existing disputes , favoured CARDINAL of the groups in a divided religious community and , therefore , did not contribute to maintaining tolerance but rather frustrated that aim . It thus violated LAW .