Fusu Arcadie and Others v. the Republic of Moldova (no. 22218/06) - Chamber Judgment 17 July 2012. The applicants, eight Moldovan nationals, allege that the government's failure to issue them with documents necessary for registering their church had violated their rights under Articles 6 § 1, 9 and 11 of the Convention. In its judgment of 17 July 2012, the Court's Third Section declared the applicants' Article 9 complaint admissible and found a violation and ordered payment to the applicants of EUR 5,000 in respect of non-pecuniary damage and EUR 880 in respect of costs and expenses. It was not necessary to examine separately the complaints under Articles 6 and 11.
Iorgoiu v. Romania (no. 1831/02) - Chamber Judgment 17 July 2012. A Romanian citizen imprisoned for fraud complains, inter alia, of violation of his Article 9 religious freedom rights in the impossibility of practicing his Orthodox faith in prison. Having in an admissibility decision of 7 December 2010 found that the Article 9 issue was among those for which judgment should be deferred, the Court issued questions to the parties on 10 December, among the queries one asking whether the applicant could practice his religion in prison, and, if not, whether the interference was necessary as prescribed by law, in the sense provided by Article 9.
By its judgment of 17 July 2012, the Court, while finding a violation of Article 3 prohibitions against torture or inhuman treatment, dismissed the Article 9 complaint as manifestly ill-founded, as the applicant had submitted no evidence of interference by authorities in the practice of his religion.
Staatkundig Gereformeerde Partij v. Netherlands (no. 58369/10) - Admissibility Decision 12 July 2012. The applicant (SGP) is "a confessional political party firmly rooted in Dutch Reformed Protestantism" (though it has no formal links with any particular church), alleging that a judgment against it by the Dutch Supreme Court violates Articles 9 (freedom of thought, conscience, and religion), 10 (freedom of expression) and 11 (freedom of association) of the Convention. The Third Section unanimously found the application manifestly ill-founded and therefore inadmissible.
Professing "the absolute authority of the Word of God over all areas of societal life," the SGP teaches that men and women have different roles in society, and that women should not be eligible for public office. Actions were brought against the SGP in Netherlands courts by a variety of NGOs, alleging that the party's articles of association were in violation of fundamental rights of equal treatment of men and women and fundamental rights in terms of the right of women to political participation, contravening Article 3 of Protocol No. 1 of the Convention in conjunction with Article 14 of the Convention, Article 1 of Protocol No. 12 of the Convention, Articles 25 and 26 of the 1966 International Covenant on Civil and Political Rights, Article 7 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women and relevant provisions of the Netherlands Constitution.
The Regional Court found that the plaintiffs lacked standing on the ground that they had no legal interest and struck the case out of its list. A number of actions ensued, culminating in an April 9, 2010, ruling of the Dutch Supreme Court that the state is obliged to take effective measures to put an end to the SGP's refusal to grant women passive suffrage on biblical grounds.
It its judgment, the Third Section observed that the fact that "no woman has expressed the wish to stand for election as a candidate for the applicant party" is not decisive, and that the "same conclusion flows naturally from Article 3 of Protocol No. 1 taken together with Article 14" as that reached by the Dutch Supreme Court. Even so, "the Court must refrain from stating any view as to what, if anything, the respondent Government should do to put a stop to the present situation. The Court cannot dictate action in a decision on admissibility; it is, in any case, an issue well outside the scope of the present application."
Association Les Témoins de Jehovah v. France (no. 8916/05) - Chamber Judgment (Just Satisfaction) 5 July 2012 . The applicant, Association Les Témoins de Jéhovah (Association of Jehovah's Witnesses), alleged that a 1995 French parliamentary report classifying it as a sect resulted in discrimination against the organization, in particular resulting in a tax audit. When the Association declined to declare donations for the requested years, asking instead for the sort of tax exemption ordinarily granted to liturgical associations, an automatic taxation procedure was begun against the Association. After failing to prevail in the French courts, the Association brought the matter before the ECtHR, complaining of violation of numerous ECHR provisions, primarily religious discrimination under ECHR Articles 9 and 14.
On 17 June 2008 the Court declared all complaints inadmissible except those alleging that the tax proceedings against the Association infringed Articles 9 and 14. On 29 September 2010 the Court declared the Article 14 religious discrimination complaint inadmissible, as domestic remedies have not been exhausted. The Court considered, however, that the Article 9 complaint of infringement of the right to freedom of religion "raised complex issues of fact and law which could not be resolved at this stage ... but required examination on the merits." The Court thus declared this part of the complaint admissible.
In its judgment of 30 June 2011, the Fifth Section found a violation of Article 9 (right to freedom of religion), noting that the supplementary tax assessment "had concerned the entirety of the manual gifts received by the association, although they represented the main source of its funding. Its operating resources having thus been cut, it had no longer been able to guarantee to its followers the free exercise of their religion in practical terms." The Court found the Article 41 (just satisfaction) issue not ready for decision and reserved it.
By a judgment of 5 July 2011 the Court held that France is to reimburse the applicant association 4,590,295 euros (EUR) for the taxes unduly paid and EUR 55,000 for costs and expenses. The judgment was issued in French only. Judge Costa expressed a separate opinion, which is annexed to the judgment.
Genderoc-M v. Moldova (no. 9106/06) - Chamber Judgment 12 June 2012. The applicant NGO attempted to hold a demonstration outside the Parliament of Moldova in May 2005, to encourage the adoption of laws to protect sexual minorities from discrimination. In refusing to allow the demonstration, the government cited its legitimate aim of protecting the sensibilities of the Moldovan Orthodox Christian population (who would not tolerate same-sex relationships). The Court rejected the government's argument, finding a violation of ECHR Article 11 (freedom of assembly) and of Article 14 (discrimination) taken in conjunction with Article 11. The Court also found that the applicant had no effective remedy against the alleged violation of its freedom of assembly, and thereby suffered a violation of Article 13 taken in conjunction with Article 11. The applicant association was awarded pecuniary (EUR 860) and non-pecuniary (EUR 7250) damages, as well as costs (EUR 2900).
Hizb Ut-Tahrir and Others v. Germany (no. 31098/08) - Admissibility Decision 12 June 2012. [Excerpts from the Court's press release:] The case concerned the prohibition in Germany of the activities of an Islamic association, which advocates the overthrow of non-Islamic governments and the establishment of an Islamic Caliphate.
The Court held in particular that under Article 17 (prohibition of abuse of rights) of the European Convention on Human Rights, it was impossible to derive from the Convention a right to engage in an activity aimed at destroying any of the rights and freedoms set forth in the Convention. The association could therefore not rely on Article 11 (freedom of assembly and association) to complain about the ban on its activities.
Fernández-Martínez v. Spain (no. 56030/07) - Chamber Judgment 15 May 2012. [Excerpts from the Court's press release:] The case concerned the decision not to renew of the contract of a priest, who was married with five children, to teach Catholic religion and morals, following the publication of an article disclosing his membership of the "Movement for Optional Celibacy".
The applicant, Mr José Antonio Fernández Martínez, is a Spanish national who was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from celibacy. He was married in a civil ceremony in 1985, and he and his wife have five children. He taught Catholic religion and morals in a State high school from October 1991, his contract being renewed every year by the Bishop of the Diocese of Cartagena. A newspaper article published in 1996 published a photo of Mr Fernández Martínez, together with his wife and five children, and reported that he was a member of the "Movement for Optional Celibacy", a group disagreeing with the Church's position on abortion, divorce, sexuality and conception.
On 15 September 1997 the Vatican authorities granted Mr Fernández Martínez’s application for dispensation from celibacy, specifying that anyone granted such a dispensation was barred from teaching the Catholic religion in public institutions, unless the local bishop decided otherwise "according to his own criteria and provided that there is no scandal." On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education of its intention not to renew Mr Fernández Martínez’s contract for the 1997/98 school year. The Ministry notified him of the decision, which was effective from 29 September 1997.
Mr Fernández Martínez appealed to the employment tribunal, which found that he had been discriminated against because of his civil status and his membership of the Movement for Optional Celibacy. It declared his dismissal null and void and ordered his reinstatement in his former post. The Ministry of Education, the regional education authority and the Diocese appealed, and the High Court of Justice - noting that the restrictions imposed on the applicant’s rights had to be considered proportionate to the aim pursued, namely the avoidance of scandal - found that the contract, which had to be renewed annually by the bishop, had simply expired. Mr. Fernández Martínez had therefore not been dismissed.
On June 2007 the Constitutional Court dismissed the applicant's appeal.
Before the ECtHR the applicant, relying on Article 8 of the Convention, alleged that the nonrenewal of his contract because of his personal and family situation had infringed his right to respect for his private and family life. He complained that he had been discriminated against and that the public disclosure of his status as a married priest with several children formed part of his freedom of expression.
Relying on Article 6 § 1 (right to a fair hearing), Mr Fernández Martínez complained that two of the judges who had delivered the Constitutional Court judgment had not been impartial and should have stood down because their religious beliefs favoured the Catholic Church.
The Court observed that the question was whether the State was required to give precedence to Mr Fernández Martínez’s right under Article 8 (right to respect for private life) over the rights of the Church under Articles 9 (right to freedom of religion) and 11 (freedom of association) and whether it had afforded him sufficient protection.
Since the competent courts had struck a fair balance between several private interests, the Court found that there had been no violation of Article 8. As to the Article 6 complaint, the Court observed that Mr Fernández Martínez had not used all the means available to him in domestic law to challenge the impartiality of the judges concerned, and dismissed his complaint on that account for failure to exhaust domestic remedies.
Babar Ahmad and Others v. United Kingdom (nos. 24027/07, 11949/08, 36742/08, 66911/09, 67354/09) - Chamber Judgment 10 April 2012. Between 1999 and 2006 all six applicants were indicted on various terrorism charges in the United States of America. Mr Ahmad and Mr Ahsan are accused of various felonies including providing support to terrorists and conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country. Abu Hamza has been charged with 11 different counts of criminal conduct related to the taking of 16 hostages in Yemen in 1998, advocating violent jihad in Afghanistan in 2001 and conspiring to establish a jihad training camp in Bly, Oregon (the USA) between June 2000 and December 2001. Mr Aswat was indicted as Abu Hamza’s co-conspirator in respect of the latter charges. Mr Bary and Mr Al-Fawwaz were indicted, along with Osama bin Laden and 20 others, for their alleged involvement in, or support for, the bombing of US embassies in Nairobi and Dar es Salaam in 1998. Mr Al-Fawwaz has notably been charged with more than 269 counts of murder.
On the basis of those indictments, the US Government requested each applicant’s extradition from the United Kingdom. As a result, all six applicants were arrested in the UK and placed in detention pending extradition. They then contested their extradition in separate proceedings in the English courts, without success, their requests for leave to appeal to the House of Lords and the Supreme Court ultimately being rejected between 2007 and 2009.
The present cases concern applications lodged by the six applicants between 2007 and 2009. The Court decided to deal with the applications together since they raised similar issues.
In its judgment of 10 April 2012, the European Court of Human Rights held, unanimously, that there would be:
no violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights as a result of conditions of detention at ADX Florence (a "supermax" prison in the United States) – if Mr Ahmad, Mr Ahsan, Mr Abu Hamza, Mr Bary and Mr Al-Fawwaz were extradited to the USA;
and, no violation of Article 3 of the Convention as a result of the length of their possible sentences if Mr Ahmad, Mr Ahsan, Abu Hamza, Mr Bary and Mr Al-Fawwaz were extradited.
The Court adjourned its examination of Mr Aswat’s application as it required further submissions from the parties, on the relevance of his schizophrenia and detention at Broadmoor Hospital to his complaint concerning detention at ADX (see below "future procedure").
Continuation of interim measures
The Court also, decided to continue its indication to the United Kingdom Government (made under Rule 39 of the Rules of Court) that the applicants should not be extradited until this judgment became final or until the case was referred to the Grand Chamber at the request of one or both of the parties.