5.  The applicant was born in 1973 and lives in Galway, Ireland. 6.  On 27 March 2000 the applicant gave birth to a child, a girl named A. She was married at the time to the child’s father, M.K., and lived in Poland. She already had a son from a previous relationship, B, born in 1993. 7.  In 2006 the family moved to Ireland. They lived there together until January 2009, when the couple split up and M.K. moved back to Poland. 8.  In June 2009 M.K. went to Ireland on holiday and said he intended to take A to Poland for the summer holidays. The applicant was concerned whether M.K. would return the child to Ireland after their holidays in Poland. On 29 June 2009 she instituted proceedings before Ennis District Court under the Guardianship of Infants Act of 1964, seeking declaration that the habitual residence of the child was in Ireland and that the child was to return to Ireland on 15 August 2009. 9.  On 2 July 2009 the Ennis District Court issued a consent order as an interim measure. It stated that the child could visit Poland between 7 July and 15 August 2009 with M.K. and established that her habitual residence was in Ireland. Other custody matters were adjourned to the next hearing, scheduled for 15 September 2009. On the latter day the court issued a certificate of enforceability of the order of 2 July 2009, pursuant to Article 42 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (“the Brussels II bis Regulation”). 10.  M.K. failed to return A to her mother on 15 August 2009. 11.  On 15 September 2009 the Ennis District Court decided that A’s residence would be in Ireland with her mother, who was granted sole custody. The court also ordered the return of the child to the applicant. On 17 September 2009 it also issued a certificate of enforceability of the order pursuant to Article 42 of the Brussels II bis Regulation. 12.  M.K. appealed against the order of 15 September 2009 but the appeal was dismissed by the Limerick Circuit Family Court on 10 December 2009. 13.  In September 2009 the applicant applied to the Polish Ministry of Justice – designated as the Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) – for assistance in securing the return of the child. 14.  On 6 October 2009 the Malbork District Court heard the applicant’s application and M.K.’s counterclaim to dismiss the case. It decided to commission an expert opinion from the Regional Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny – “RODK”). 15.  On 18 December 2009 the Malbork District Court rejected the applicant’s application under the Hague Convention to return A to her. The court based its decision on Article 13, stating that the Polish authorities were not bound to return the child since there was a risk she would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. The court supported its reasoning by referring to the findings of the RODK and other social and psychological studies. In particular, the court highlighted that the RODK report had stated that A wished to remain in Poland. The RODK had also stated that M.K. was closer to A and more attentive to her particular needs than the applicant. It was found that although the applicant was also an important person in A’s life, the child saw her actions as going against her own wishes and placing her in uncomfortable situations. 16.  On 18 May 2010 the Gdańsk Regional Court dismissed an appeal by the applicant. The court took into account the preference of A to stay with her father. The child, at that time nine-years-old, was considered by the experts as mature and aware of her family situation. 17.  On 15 October 2009 the applicant applied to the Polish authorities to recognise and enforce the Ennis District Court’s order of 15 September 2009. 18.  On 18 November 2009 the applicant requested that the proceedings be dealt with more speedily and that an earlier date for hearing the case be scheduled. The applicant underlined her lack of contact with her daughter. 19.  On 4 December 2009 the Gdańsk Regional Court decided to enforce the Irish order of 15 September 2009. M.K. appealed to the Gdańsk Court of Appeal. 20.  On 22 June 2010 the Gdańsk Court of Appeal quashed the decision of the Gdańsk Regional Court of 4 December 2009. The court decided that the Irish court had ruled on parental responsibility and that judgment could not be reconciled with the subsequent judgment of the Polish court of 18 December 2009 dismissing the applicant’s claim for the child’s return under the Hague Convention. The Irish decision was therefore no longer enforceable in Poland. 21.  The applicant lodged a cassation appeal. 22.  On 24 August 2011 the Supreme Court quashed the Court of Appeal’s ruling and remitted the case for re-examination. The Supreme Court firstly reiterated that the provisions of the Brussels II bis Regulation were binding and directly applicable. Secondly, the court explained that the purpose of a ruling under the Hague Convention was the prompt return of a child to the country of his or her habitual residence. A decision to return a child or a decision to refuse such a return under Articles 12, 13 and 20 of the Hague Convention could not be understood as containing a ruling on matters of custody or parental responsibility. The reasons for a decision not to return a child under Article 13 (b) were factual in nature and could not create a new custodial right. That had also been set out in Article 10 of the Hague Convention. Thirdly, the exception allowing for a refusal to enforce a judgment provided for in Article 23 (e) of the Brussels II bis Regulation required the existence of a later and contradictory ruling relating to parental responsibility. The decision of 18 December 2009 issued under Article 13 (b) of the Hague Convention could not be considered as such a ruling. 23.  On 28 February 2012 the Gdańsk Court of Appeal refused to declare that the order of 15 September 2009 was enforceable on the grounds that the High Court of Ireland had made a new custody order on 9 September 2011 (see paragraph 27 below). 24.  On 4 October 2010 the applicant lodged an application in Ireland for enforcement of the Ennis District Court’s decision of 15 September 2009 and the return of A to her. 25.  On 28 January 2011 the High Court of Ireland gave an interim order. It considered that the Irish courts had jurisdiction to decide on the custody of A and had retained that jurisdiction after her wrongful removal in August 2009. 26.  On 28 August 2011 a court-commissioned clinical psychological report was published. The expert involved interviewed the applicant, A and M.K. She found that both parents had the ability to provide a stable and loving home environment for A and that their care and affection was important to her emotional, social and psychological wellbeing. The report recommended that the court should take account of the wish A had expressed to attend school in Poland and to consider an arrangement whereby the child lived with her father during school terms and spend her holidays in Ireland. The report also stated that firm arrangements should be put in place by the court for the time that A was to spend in her mother’s care and for the father’s access during those times since, if there was room for parental discretion, the time allocated was likely to be reduced. That was especially important because there was a risk that M.K. would interfere with the development of the child’s confidence and security in her mother’s care owing to the father’s belief in the importance of his constant input in A’s life. 27.  On 9 September 2011 the High Court of Ireland gave a judgment superseding the order of 15 September 2009. The court decided to grant joint custody to both parents, but still ordered the child’s return to Ireland by 2 November 2011. The court decided that A should finish the school year in Ireland and start the next one, from September 2012, in Poland. The judgment also set out which parts of the school holidays A should spend with the applicant and which with M.K. 28.  M.K. unsuccessfully appealed against the judgment and was refused a stay in the order on 21 October 2011. 29.  In October 2011 the applicant lodged an application with the Polish Ministry of Justice to enforce the judgment of the High Court of Ireland of 9 September 2011 and for the return of the child to her. The Polish Ministry of Justice advised the Irish Central Authority to lodge an application with the relevant court in Poland for the compulsory removal of the child. 30.  On 28 November 2011 the applicant lodged a request through the Irish Central Authority to have A returned to her. 31.  From October 2011 to January 2012 the Irish and the Polish Central Authorities corresponded with each other for the purposes of enforcing the Irish judgment of 9 September 2011. 32.  On 23 January 2012 the Irish Department of Justice, Equality and Law Reform received a letter from the Polish Ministry of Justice stating that the applicant’s application for the compulsory removal of her daughter and her return to Ireland had been sent to the Gdańsk District Court that day. 33.  On 25 January 2012 the Irish Family Liaison Judge for the European Judicial Network (EJN) sent a letter to the Polish Family Liaison Judge for the European Judicial Network, urging Poland to execute the High Court of Ireland’s custody decision of 9 September 2011. Noting that M.K. had commenced divorce proceedings in which there was also a reference to custody, the letter also requested that the relevant judge in the divorce proceedings be made aware of the High Court of Ireland order of 9 September 2011. 34.  On 4 May 2012 the court appointed guardian interviewed A and submitted an opinion to the court. It stated that A had wished to stay in Poland where she had had home, school, and friends. A expressed her wish to have regular contacts with her mother via Skype. She felt her mother had been putting pressure on her to return to Ireland. The parental conflict made her follow a psychological treatment and take antidepressant medication. 35.  On 9 May 2012 the Malbork District Court held a hearing and encouraged the parties to reach agreement on a date for the child’s return to Ireland. At the hearing M.K. explained that he had refused to comply with the Irish courts’ orders because his daughter had been in a bad psychological state. 36.  On 28 June 2012 the Malbork District Court ordered A’s removal from M.K. by a guardian on the basis of Article 598 § 6 of the Code of Civil Procedure. The court also ordered that its decision was immediately enforceable. 37.  On 6 July 2012 the applicant and the guardian arrived at M.K.’s place of residence to take the child away, but found no one there. 38.  On 9 July 2012 the guardian made a further attempt to remove the child but their home was again empty. On 13 July 2012 the guardian made a third unsuccessful attempt to remove the child. On 24 July 2012 the guardian requested that the police intervene. 39.  On 7 September 2012 the Malbork District Court discontinued proceedings for the compulsory execution of the decision by the Irish court of 9 September 2011. The court considered that the applicant’s right to demand A’s return to Ireland had effectively expired on 31 August 2012 and that, as of that day, there was no executory title which could provide grounds for proceedings to be carried out effectively. It found that the original 2011 Irish order had stated that A was to start the 2012 school year in Poland and so her compulsory removal, as a minor, was not allowed. 40.  On 26 September 2012 the applicant met A outside her school and travelled to Ireland with her. 41.  On 12 November 2012 the Gdańsk Regional Court quashed the Malbork District Court findings of 7 September 2012, stating that the return order remained valid. 42.  On 21 October 2012 the applicant applied to the High Court of Ireland for an order prohibiting A’s removal from that country by any person save the applicant, unless she had given her consent or a court had given leave. During the subsequent proceedings M.K. made requests to have unsupervised contact with A by telephone or Skype. The court commissioned an expert opinion and held hearings. 43.  On 24 June 2013 the parties reached an agreement. The terms of the agreement stated that the applicant would have sole custody of A for the following year, pending review by the court in July 2014. It also set out M.K.’s access rights, which provided that during his visits to Ireland he would have to give two weeks’ notice to the applicant and could see the child on Saturdays from 1.30 p.m. to 7 p.m. and on Sundays from 11 a.m. to 7 p.m. Access during the school holidays would take place in Ireland, but could be for longer periods and on weekdays. 44.  On 8 October 2012 M.K. brought proceedings in the Polish courts for an order that A be returned to him. 45.  On 11 January 2013 the Malbork District Court excluded the presiding judge from taking part in the proceedings owing to close personal ties with M.K.’s mother. 46.  On 11 February 2013 the Malbork District Court rejected M.K.’s action, stating that the Irish courts had jurisdiction given A’s habitual place of residence. M.K. lodged an appeal. 47.  On 22 March 2013 the Malbork District Court appointed a legal guardian to represent A’s interests in proceedings concerning the applicant’s taking of A to Ireland without M.K.’s consent. 48.  On 6 May 2013 the Gdańsk Regional Court quashed the decision of the Malbork District Court of 11 February 2013. The court decided that in accordance with the decision of the Gdańsk Regional Court in its decision of 4 July 2011 (see paragraph 52 below) A’s place of residence was with her father in Malbork. 49.  Following the quashing, M.K.’s motion had to be returned to the lower court. There is no information about the course of the proceedings afterwards. 50.  In July 2009 M.K. initiated divorce proceedings before the Gdańsk District Court, which were subsequently stayed pending the determination of the application concerning the child’s return. 51.  On 16 March 2011 M.K. applied for an interim order to establish that A’s place of residence was with him during the proceedings. 52.  On 4 July 2011 the Gdańsk Regional Court granted M.K. an interim order establishing that he should have custody over A for the duration of the proceedings. The court considered that the child’s place of residence was in Poland. The court reasoned that, although both parents had custody of A, M.K. was better placed to exercise parental rights as he had lived in Poland and had developed a strong bond with his daughter. M.K. provided a guarantee that A would be properly cared for. A was found by the court to have settled well in Malbork since she was doing well at school and had good relations with her fellow students. The court stated that in spite of the divorce proceedings in Poland the applicant had also gone to court in Ireland concerning A, thus giving rise to feelings of uncertainty in the child and the fear that she would be taken to Ireland against her will. The court found that such factors made it necessary to grant the injunction. 53.  On 17 October 2013 the Irish liaison judge for the EJN wrote to the Polish liaison judge informing him of the custody proceedings in Ireland, the agreement of 24 June 2013 made by the parties in relation to custody and access rights and the order of 25 June 2013 of the High Court of Ireland giving effect to that agreement. The letter requested that the information be passed on to the judge in the Polish divorce proceedings. 54.  On 30 October 2013 the Gdańsk Regional Court granted a divorce between M.K. and the applicant, stating that they shared fault. The court refused to decide on issues of custody and access, referring to the agreement the parties had come to on 24 June 2013 in Ireland. 55.  On 13 May 2014 the Gdańsk Court of Appeal dismissed an appeal by the applicant and upheld the first-instance judgment. 56.  After M.K. failed to return the child on 15 August 2009, the applicant had no contact with her daughter for three months. 57.  On 8 October 2009 the applicant saw A for the first time during an interview conducted by court experts. 58.  On 18 December 2009 the applicant saw A in Poland at the court hearing but spent no time alone with her at any point. 59.  In May 2010 the applicant saw A in Poland over several consecutive days. She also saw her in February 2011 and attended her birthday party in March 2011. 60.  It appears that afterwards A went to Ireland upon a court order in July 2011. At that time A, the applicant, B and M.K were all interviewed by the High Court’s expert. 61.  A has been in the care of the applicant since 26 September 2012 and they live in Ireland.


6.  The applicant was born in 1966 and lives in Chișinău. 7.  The applicant is the chief executive officer of a large Moldovan company specialised in the importation of medical equipement. 8.  On 8 April 2015 he was arrested by the National Anti-Corruption Center (NAC) in connection with a crimial investigation opened in November 2014. He was charged with bribery in the context of public auctions. Searches were conducted at the applicant’s home and at the headquarters of his company and numerous documents, computers and mobile phones were seized by the investigators. 9.  More than twenty persons were accused in the same criminal case. Among them were the former Minister of Health and hospital directors. Many of them were apprehended and later released by the NAC or by the courts. As of July 2015, the applicant was the only accused who was kept in custody. 10.  After arrest the applicant was placed in the NAC detention facility. Between 8 April and 8 October 2015 the applicant was detained in custody. Between 8 October and 4 November 2015 he was detained under house arrest. 11.  The need for the applicant’s detention was justified by the prosecutors in the following way: that the applicant could abscond; he could influence witnesses; he could collude with other co-accused persons; and because the offence imputed to him was sanctioned with imprisonment of up to ten years. All of the prosecutors’ applications for the prolongation of the applicant’s detention were identical. 12.  The applicant argued every time that he was ready to give up his passport and that there were no reasons to believe that he would attempt influencing witnesses or hindering the investigation. The reasons relied upon by the prosecutors in favour of detention were stereotyped and there was no evidence that he intended to abscond or do other things imputed to him. He also argued that he had a family, children, a permanent employment and a permanent abode. 13.  On 10 April 2015 the Buiucani District Court issued a detention order for a period of thirty days arguing that the applicant did not produce guarantees in favour of an undertaking not to hinder the good unfolding of the investigation if no detention was applied. That decision was later upheld by the Chișinău Court of Appeal, which added that there was also a risk of the applicant’s reoffending. 14.  On 7 May 2015 the Buiucani District Court prolonged the applicant’s detention by twenty-five days relying on the same grounds as before. The applicant’s appeal was rejected by the Court of Appeal on 14 May 2015. The Court of Appeal used the same arguments as the first time and added that one of the reaosons to hold the applicant in custody was to protect other persons involved in the proceedings from his violent actions. 15.  By decisions dated 1 and 26 June, 21 July 2015 and 15 August 2015 the Buiucani District Court prolonged the applicant’s detention for twenty‑five days each time. The court relied on similar reasons as before. The Court of Appeal dismissed the applicant’s appeals arguing that the applicant’s defence did not prove the fact that the applicant did not intend to abscond or hinder the investigation. In a decision of 11 June 2015 the Court of Appeal held for the first time that there was a risk of the applicant’s absconding. 16.  On 15 and 29 September 2015 the Buiucani District Court prolonged again the applicant’s detention by twenty and eight days, respectively. It argued that the risk of absconding was justified by the gravity of the offence and that the prosecutor had presented evidence in support of the claim that the applicant may hinder the investigation. The court did not state what that evidence was. On 6 October 2015 the Buiucani District Court prolonged again the applicant’s detention by ninety days. 17.   On 8 October 2015 the Court of Appeal examined the appeals lodged by the applicant against the decisions of 29 September 2015 and 6 October 2015. In its first judgment it dismissed the applicant’s appeal after finding that all the risks enumerated by the first-instance court persisted. However, when examining the appeal against the second decision, the same panel of judges considered that the risk of the applicant’s absconding was no longer justified and that there were no new reasons to consider necessary the applicant’s continued detention. Therefore, the Court of Appeal ordered the applicant’s house arrest. 18.  On 4 November 2015 the applicant lodged a habeas corpus request and asked for the revocation of the house arrest. On the same date the Buiucani District Court accepted the applicant’s request and ordered his release from house arrest. 19.  On 9 April 2015, on the second day of his detention, the applicant felt an accute pain in the region of his lower back. At 10.46 p.m. an ambulance was called for the applicant. The doctors diagnosed the applicant with “lumbar radicular syndorme with pronounced algic syndrome” and prescribed him hospitalisation. However, the prison administration refused to follow the doctors’ prescription. 20.  Several hours later, on 10 April 2015 between 3 and 4 a.m. the applicant started experiencing again pain and asked for an ambulance to be called. An ambulance was called only at 9.27 a.m. The doctors repeated the same diagnosis and prescribed again hospitalisation. However, the prison administration refused to follow the doctors’ prescription. 21.  At 10.10 a.m. an ambulance was called again for the applicant. This time the doctors diagnosed the applicant with “artherial hypertension of third degree”, “discopathie with agravated algic syndrome” and “lumbar radiculopathy” (sensory and/or motor deficit). Hospitalisation was again prescribed, but the prison administration refused to follow the doctors’ prescription. 22.  At 11.44 a.m. an ambulance was called again for the applicant. The doctors diagnosed again “lumbar radiculopathy” and discopathie with a possible lesion of the nerve. The doctors reiterated the urgent need for hospitalisation, but the administration refused again. 23.  At 2 p.m. the administration invited several doctors from the Institute of Neurology and Neurosurgery who confirmed the initial diagnosis and the urgent need for hospitalisation. Only after that, the prison administration allowed the applicant’s transfer to a hospital. 24.  On 11 April 2015 the applicant was operated on his spine at the Institute of Neurology and Neurosurgery. He remained in hospital until 21 April 2015, when he was moved to a prison hospital. 25.  On 22 June 2015 the applicant was examined by a commission of five doctors who diagnosed him with cholecystitis and fequent biliary colic. They recommended him surgical removal of his gall bladder within maximum seven days. 26.  After that date the applicant and his lawyers submitted numerous requests and complaints to different authorities seeking the approval of his surgery. It was only on 3 August 2015, after the applicant’s condition drastically deteriorated, that his transportation to a normal hospital was approved. He had high fever and presented a swelling. After three days of preparations, he was subjected to surgery on 6 August 2015 and remained in intensive care for another week.


5.  The applicant was born in 1974 and lives in Bucharest. 1.  At the material time the applicant was the Executive Chair of the Partidul Verde ecological party, a political movement affiliated with the European Green Party. 2.  Partidul Verde had put up candidates for the 2008 general elections but failed to win any seats. In 2009 the applicant was the party’s candidate in the presidential elections. He won about 60,000 votes, or some 0.6 % of the total validly cast votes. 3.  The 2008 general elections had been governed by Law no. 35/2008 on elections to the Chamber of Deputies and the Senate, amending Law no. 67/2004 on local authority elections, Law no. 215/2001 on local public authorities and Law no. 393/2004 on the status of local elected representatives (“Law no. 35/2008”; see paragraph 17 below). In 2009 Parliament amended Law no. 35/2008 under Law no. 323/2009 approving Emergency Order no. 97/2008 (“Law no. 323/2009”; see paragraph 18 below). That amendment made it impossible for parties not represented in Parliament, as well as independent candidates, to put up candidates for or stand in parliamentary by-elections. 4.  Parliamentary by-elections were scheduled for 17 January 2010 in order to fill a vacant seat in a Bucharest constituency. According to information available to the Court, that seat had fallen vacant in October 2009. 6.  On 29 December 2009 the Electoral Board rejected the candidacy on the grounds that Partidul Verde was not represented in Parliament. 7.  Partidul Verde, represented by the applicant, challenged that rejection before Bucharest County Court (“the County Court”) and requested the acceptance of the applicant’s candidacy. It entered an objection of unconstitutionality under section 48 (17) of Law no. 35/2008 (see paragraph 18 below). It alleged in particular that the ban on candidates from parties not represented in Parliament and independent candidates infringed the right to free elections and amounted to unjustified discrimination as compared with parties represented in Parliament. The party added that, contrary to the recommendations of the European Commission for Democracy through Law (“the Venice Commission”; see paragraphs 20 and 21 below), Law no. 35/2008 had been amended less than one year before the by-elections. 8.  By interlocutory decision of 30 December 2009 the County Court deferred its ruling so that the Constitutional Court could consider the objection of unconstitutionality. 9.  By Decision no. 61/2010 of 14 January 2010, the Constitutional Court dismissed the objection of unconstitutionality. Having reiterated that Parliament’s political structure was defined by general elections, the Constitutional Court rejected Partidul Verde’s arguments as follows:
“The [Constitutional] Court observes that the reason for the holding of the parliamentary by-elections was the fact that a parliamentary seat had fallen vacant. Such by-elections are held in order to assign seats in Parliament while simultaneously respecting the structure of Parliament as it emerged from the latest general elections. In order to respect the sovereignty and the will of the electorate as expressed in the framework of general elections, it is necessary that the by-election stage, which is subsidiary and complementary to the general elections, should observe the electoral threshold criterion which allows political parties to be represented in Parliament. To allow candidates to stand in by-elections for political parties which are not represented in Parliament would alter the latter’s political structure, [which is] incompatible with the votes cast by the electorate during the general elections which led to the constitution of the Romanian people’s supreme representative body, with a specific political make-up, which can only be modified in the cases and conditions determined by law.
...
Moreover, allowing a person who does not belong to a party represented in Parliament to obtain a parliamentary mandate further to by-elections would be tantamount to allowing something which had not been obtained in the framework of general elections to be obtained by the ‘devious means’ of a by-election.” 10.  As regards the plea based on the recommendations of the Venice Commission, the Constitutional Court assessed it “with reservations”. It noted that the said recommendations advised against amending the electoral law less than one year before any elections, but that they also comprised the hypothesis that such amendments “should be adopted at the level of the Constitution or at a level higher than that of ordinary law” (see paragraph 20 below). In the present case the Constitutional Court ruled that the recommendation had been complied with because the amendment to Law no. 35/2008 had been effected under an organic law, which met the criterion of a “level higher than that of ordinary law” (see paragraph 16 below). 11.  By judgment of 30 March 2010 the County Court dismissed the party’s challenge, referring to the reasoning of the Constitutional Court in its aforementioned decision of 14 January 2010, to the effect that since Partidul Verde had failed to pass the electoral threshold in the general elections it could not put up candidates for the by-elections. The County Court further noted that the elections had already been held and that the challenge had therefore become devoid of purpose. 12.  Fresh parliamentary by-elections were scheduled for 25 April 2010 in Bucharest to fill another vacant seat. 13.  The applicant stood as an independent candidate. His candidacy was rejected by the Electoral Board pursuant to section 48 (17) of Law no. 35/2008. The applicant appealed to the County Court against the rejection of his candidacy, and lodged a fresh objection of unconstitutionality. 14.  By Decision no. 503/2010 of 20 April 2010, the Constitutional Court allowed the objection of unconstitutionality lodged by the applicant and declared the part of the impugned section prohibiting independent candidacies unconstitutional on the grounds that it infringed the right to stand for election. The relevant parts of that decision read as follows:
“Although, as regards political parties which are not represented in Parliament, the Constitutional Court’s Decision no. 61 of 14 January 2010 set out the reasons justifying, in the light of constitutional standards, the elimination of such parties from by-elections, as regards independent candidates no reason was given for subjecting them to the same legal treatment. Thus the electoral threshold means that political parties must be representative, to some extent, of the electorate, as required by the sovereignty principle. in the case of independent candidates, however, such a criterion would be absurd; ... they are asked to submit support lists comprising the signatures of a minimum 4% of all the voters registered in the permanent electoral lists of the boards to which they submit their candidacies, [and the total number should not be lower that] 2,000 electors in the case of the Chamber of Deputies and 4,000 electors in the case of the Senate. Consequently, for general elections, the legislature had laid down this precondition, which is necessary in order to stand as an independent candidate, and simultaneously in order to exercise the right to be elected. Nevertheless, in relation to by-elections, the legislature failed to lay down the requisite conditions for this category of persons standing for election, providing that the category of candidates for by-elections comprised only political parties and organisations of citizens belonging to national minorities having passed the legal electoral threshold at the general elections, whether individually or in the framework of a political or electoral alliance. That being the case, it is a case not of setting limits on or circumscribing the manner of exercising the right to be elected, but of annulling that right by failing to recognise it, [by an] unlawful absence of regulation.
...
In conclusion, the Electoral Law may specify the conditions in which an individual may stand for election as an independent (financial deposit, a specific number of supporters, etc.), but it can in no way exclude from the electoral process, in the case of by-elections, the candidacy of a person [standing as an] independent candidate without thereby infringing the fundamental right enshrined in Article 37 of the Constitution – the right to be elected.” 15.  The applicant stood in the 2012 general elections and obtained a seat in the Chamber of Deputies for a four-year mandate.


4.  The applicants were born in 1965 and 1954 respectively and live in Bucharest. 5.  Both applicants were ill-treated and injured on 21 December 1989 during the events which led to the fall of the communist regime in Bucharest. The first applicant suffered injuries that needed eight days of medical care and the second applicant was beaten by militia forces on the same occasion. 6.  In 1990 the military prosecutor’s office opened ex officio investigations into the illegal detention, ill-treatment and injury suffered by the applicants and other participants in the events of December 1989 in respect of several offences as mentioned below. The main criminal investigation was recorded in file no. 97/P/1990 (current no. 11/P/2014). 7.  In the meantime, an ex officio investigation concerning the offences of illegal deprivation of liberty, illegal arrest and abusive investigation of a large number of persons, including the applicants, culminated in the referral to court and subsequent conviction of senior military and public officials by a decision of the Supreme Court of Justice of 10 May 1991, which became final on 14 November 1991. The injured parties, including the applicants, did not participate in that procedure, as the Government acknowledged. 8.  As regards the offence of abusive conduct, the military prosecutor’s office decided on 9 March 1994 (in respect of the first applicant) and 28 October 1994 (in respect of the second applicant) not to open a separate ex officio investigation on the grounds that the offence of abusive conduct fell under a subsequently enacted amnesty law; that decision was communicated only to the second applicant on 4 October 2001. No decision was adopted in respect of the applicants’ injury. 9.  Further, without a formal decision to overturn the decisions issued by the military prosecutor’s office (see paragraph 8 above) and to reopen the applicants’ respective cases, in the main criminal investigation, the prosecutor heard the applicants who reiterated their complaints regarding the offences of illegal deprivation of liberty and homicide as an attempt raised on account of their ill-treatment and injury during the events of December 1989. Thus, the first applicant requested on 5 January 2005 and on 4 August 2008 to participate in these proceedings as a civil party and for the investigation of his case to be pursued by the military prosecutor’s office. In the main criminal investigation, the second applicant gave a statement on 4 October 2001 and lodged a civil claim on 17 May 2005, asking for the punishment of those responsible. 10.  The relevant procedural steps taken in the main criminal investigation were described in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011) and Anamaria‑Loredana Orășanu and Others v. Romania ([Committee] (nos. 43629/13 and 74 others, §§ 10‑11, 7 November 2017). 11.  On 14 October 2015, as regards the second applicant, the military prosecutor’s office issued a decision only in respect of the offence of instigation to illegal deprivation of liberty by closing the main criminal investigation on the grounds of res judicata in relation to the Supreme Court of Justice’s decision of 10 May 1991, failing to decide the offence of homicide as an attempt or her injury, as complained of (see paragraph 7 above). No decision was taken in respect of the first applicant. 12.  Although the parties have not communicated any information regarding the lodging of an appeal against this decision, it can be seen from the military prosecutor’s office website that it was subsequently quashed. Thus, on 1 November 2016 the military prosecutor’s office ordered the initiation in rem of a criminal investigation regarding the offence of crimes against humanity in respect of the same circumstances of fact. To date, the main criminal investigation is still ongoing.


5.  The Ohrid Archdiocese (Охридска Архиепископија), in its original form, existed until 1767, when it was abolished by the Turkish Sultan. As stated by the applicant association, after its abolition the territory over which the Ohrid Archdiocese had jurisdiction, which had included what is now the territory of the respondent State, fell under the jurisdiction of the Ecumenical Patriarchate of Constantinople, which in 1918 issued a canonical release of those territories to the benefit of the Serbian Orthodox Church (SOC). As stated by the Government, in 1943 it was decided that the Ohrid Archdiocese would be restored and continued by an autonomous Macedonian Orthodox Church (MOC). In 1959 the MOC seceded from the SOC, and in 1967 it declared autocephaly. The Head of the Holy Synod of MOC is designated as “Archbishop of Ohrid and Macedonia” (Архиепископ Охридски и Македонски). 6.  In negotiations which have been continuing since then, on 17 May 2002 the two churches signed a draft agreement (known as “the Niš agreement”) which provided for ecclesiastical union between them. It further specified that the MOC would renounce its autocephaly and obtain widest autonomy within the SOC under the name “Ohrid Archdiocese”. 7.  According to the Government, during the negotiations and the signing of the Niš agreement, there had been strong reaction by the public, which regarded the draft agreement as “a scandalous and indecent act of treason” and, owing to strong pressure by the public, on 25 May 2002 the Holy Synod of the MOC ultimately rejected this agreement. The applicant association disagreed that the rejection of the agreement had resulted solely from the reaction by the public and submitted that “the main pressure came directly from the Macedonian authorities who stood behind the protests”. 8.  Mr J. Vraniškovski, a bishop and a member of the Holy Synod of the MOC at the time, was supportive of the Niš agreement. After the Holy Synod of the MOC had rejected that agreement, Mr Vraniškovski accepted a call by the SOC for reunification dated 20 June 2002; on 21 June 2002 he publicly announced that he was prepared for canonical union with the SOC. The Government submitted that that had provoked a public reaction and that there had been street protests in several cities in the respondent State. 9.  On 5 July 2002 the Holy Synod of the MOC dismissed Mr Vraniškovski on the ground that, by his unilateral accession to the SOC, he had violated the oath by which he had bound himself to safeguard the Church’s unity and Constitution (see Vraniškoski v. the former Yugoslav Republic of Macedonia (dec.) 39168/03, 22 June 2010). On 23 September 2002 the SOC declared the dismissal of Mr Vraniškovski null and void and appointed him “exarch of the Peć Archbishop and the Patriarch of Serbia for all eparchies of the Ohrid Archdiocese”. 10.  On 25 December 2003 the applicant association constituted its own Holy Synod and appointed Mr Vraniškovski as its President. By a letter of 16 January 2004, received by the Commission for religious communities and groups (“the Commission”, Комисија за односи со верските заедници и религиозните групи) on 27 January 2004, Mr Vraniškovski requested an opinion as to whether the applicant association should be registered, given that “in all civilised States a church, which is older than the State is accepted without needing to be registered.” The letter, which remained unanswered, further stated:
“... the true Macedonian Orthodox Church is the Orthodox Ohrid Archdiocese. It is a legitimate church, recognised by all churches in the world, so all who want to be Orthodox are welcome, the doors are open. Those who are schismatic should join the schismatic Synod (MOC). The Orthodox Ohrid Archdiocese has nothing against the State registering schisms ... but it is against the State preventing its spiritual and leading operation in the Republic of Macedonia ...” 11.  On 6 September 2004 Mr Vraniškovski submitted an application (барање за регистрирање) seeking that the applicant association be registered as a religious group (религиозна група). In support of the application, the applicant association submitted the following documents: (a) a founding decision of 1 September 2004 rendered by its Holy Synod. Under section 1 of that decision, the applicant association was defined “as a voluntary, non-profit association of Christians that were not associated with any other religious community or group”. Its aim was to acquire legal-entity status and to manage its property. The decision specified the temporary place of registration of the applicant association and authorised Mr Vraniškovski to submit an application for registration on behalf of the applicant association; (b) a list of its adherents; and (c) a Charter on the organisation and operation of the applicant (“the Charter”). The latter provided that the applicant “would be autonomous within the canonical jurisdiction of the Peć Patriarchy (the SOC)”; it specified that its temporary place of registration would be in Bitola, in the respondent State, “until it was possible to designate a permanent seat”; and that the applicant association and its structural units were legal entities and could obtain and manage property. It further provided that all legal persons that the applicant association might set up could have bank accounts. 12.  On 30 September 2004 the Commission found the application to be incomplete, and requested that the applicant association submit the following further documents: a) a copy of a decision appointing the authorised person to seek registration of the applicant association and b) a copy of the minutes of the constituent assembly. On 18 October 2004 the applicant association submitted the requested documents. 13.  On 3 November 2004 the Commission dismissed the application (се одбива барањето за пријавување) for the following reasons:
(a)  the application was not submitted by an authorised person. The Commission held that it had been submitted by a certain J.N. (Bishop D.) and not by Mr Vraniškovski, who had been authorised to seek registration of the applicant association;
(b)  the application for registration had been submitted outside the thirty‑day time-limit specified in section 11 (1) of the Act on Religious Communities and Religious Groups (“the 1997 Act”, see paragraph 47 below), which had started to run on 25 December 2003, the date on which the applicant association’s Holy Synod had been set up (see paragraph 10 above);
(c)  relying on the applicant association’s Charter, the Commission established that it would act as an autonomous religious group in canonical union with the Peć Patriarchy (SOC). That the applicant association would operate as part of a foreign orthodox church was, in the Commission’s view, in violation of section 12 of the 1997 Act. The Commission further stated that a religious community could be established only by nationals of the respondent State, and not by a foreign church or State;
(d)  the applicant association had emerged from an already existing and registered religious community, notably the MOC, whose position and role had been specified in the Constitution. The fact that the applicant association had sought registration under the name “Orthodox Ohrid Archdiocese” had implied that its real intention was to create a parallel orthodox religious group to the MOC, which had been using that name (Orthodox Ohrid Archdiocese) “constitutionally, historically, actually and continuously” (уставно, историски, актуелно и во континуитет) for over eight centuries. That was not in compliance with section 8 (2) of the 1997 Act, under which only one religious community could be registered for one faith group. The Commission referred to a decision of the Constitutional Court which had found that provision compliant with the Constitution. It had ruled that the provision had protected people from being manipulated and same-faith believers from being divided into several religious groups (U.br.223/97 of 28 October 1998, see paragraph 54 below). The Commission also argued that the Preamble to the Constitution of the MOC specified that it was the canonical successor to the Ohrid Archdiocese. This was confirmed on 17 July 1967 when the Ohrid Archdiocese declared autocephaly, which was continued by the MOC. The Commission further held that on 6 August 2004 the MOC had asked the Industrial Property Bureau (“the Bureau”, Завод за заштита на индустриската сопственост) to register the name “Macedonian Orthodox Church-Ohrid Archdiocese” in its trademark register (TM 2004/574).
Moreover, on 13 August 2004 the MOC had asked the Commission to prevent registration of several names, including the name “Ohrid Archdiocese”, to which it was entitled for historical, religious and moral reasons; and
(e)  the Commission held that property-related provisions of the applicant’s Charter were contrary to section 9 of the 1997 Act, according to which a religious group was a voluntary, non-profit association of believers. 14.  In its decision of 3 November 2004, the Commission further referred to several international documents and a Declaration that the Parliament of the respondent State adopted in 2004 regarding the MOC (see paragraph 51 below). 15.  The applicant association complained against this decision, arguing that:
(a)  the application for registration had been submitted by Mr Vraniškovski. J.N. had only handed it over to the Commission’s archives;
(b)  the applicant association had been founded formally on 1 September 2004. On 25 December 2003, the date to which the Commission referred in its decision, the applicant association had only appointed the members of its Holy Synod;
(c)  the applicant association was a new religious community that had no connection with, let alone stemmed from, the MOC, which, in any event, had not been recognised by any Orthodox Church;
(d)  the fact that the MOC had sought to have the Bureau add “Ohrid Archdiocese” to its name was irrelevant, since no such name existed in the Commission’s records;
(e)  the applicant association had denied that it had been set up by a foreign church or a foreign State. That it would operate in canonical union with another church of same religion did not imply that it had been founded contrary to section 9 (2) of the 1997 Act; 16.  On 11 January 2005 the Government Appeal Commission (Комисија за решавање во управна постапка во втор степен од областа на внатрешни работи, судството, државната управа, локалната самоуправа и работите од верски карактер) dismissed the appeal, finding no grounds to depart from the established facts and the reasons given by the Commission. 17.  The applicant association challenged these decisions before the Supreme Court. In addition to the arguments already raised, it submitted that its name was neither identical with nor similar to the name of any other religious community or group registered by the Commission. 18.  On 9 November 2005 the Supreme Court dismissed the applicant’s claim. It held that the applicant association’s name had implied creation of a parallel religious community, rather than a religious group as claimed, given that its name was substantially the same as the name of the MOC. The court referred to the applicant association’s Charter and found that its determination to operate as an autonomous church in canonical union with the Peć Patriarchy was contrary to the fact that the MOC had canonical jurisdiction in the territory of the respondent State. It also held that property-related rules were in violation of section 16 of the 1997 Act. The court accepted the remaining reasoning given by the administrative bodies. That decision was served on the applicant on 15 July 2006. 19.  On 15 July 2007 Bishop D. applied to the Constitutional Court, claiming that the refusal of the authorities to register the applicant association violated the freedom of belief and religion specified in Article 110 § 3 of the Constitution. While relying on the decisions of the authorities refusing the applicant association’s registration as “Orthodox Ohrid Archdiocese”, he also notified the court that a fresh application for registration had been submitted under the name “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” (see paragraphs 23-34 below). He stated, inter alia:
“... it is obvious that followers of our religious organisation have been deprived of the rights specified in Articles 16 and 19 of the Constitution for seven years ... the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy is a religious organisation which should protect the religious needs of, among others, Serbs and Greeks in the Republic of Macedonia. It is an autonomous church under jurisdiction of the Peć Patriarchy, notably the Serbian Orthodox Church ...” 20.  On 9 September 2009 (U.br.184/09) the Constitutional Court rejected the appeal, which, as specified in the decision, concerned “freedom of belief and prohibition of discrimination on religious grounds”. Relying on, inter alia, Articles 9, 16 and 19 of the Constitution (see paragraphs 42‑44 below), the court found:
“The complainant did not claim personal protection from discrimination ... but, he acts as a representative of a group of people with which he is associated ...” 21.  It further stated:
“The Constitutional Court has no jurisdiction to decide on the rights and interests of citizens in specific cases before administrative and judicial bodies. Neither has it jurisdiction to decide as a hierarchically superior court and examine the lawfulness and constitutionality of decisions adopted by competent administrative bodies ... the complainant refers to the non-registration as an action, but such an action ... stems from an individual decision which this court is not competent to examine ... the registration of ... a religious community or a group does not determine the religious beliefs and internal religious belief of a person, since expression of beliefs is an individual act, the registration procedure does not affect personal religious belief and rituals, and the court has not been presented with any evidence that they have been violated at any point.” 22.  The court also held that the appeal had been submitted outside the two-month time-limit specified in the Rules of the Constitutional Court (see paragraph 52 below), calculated since 9 November 2005, the date of the Supreme Court’s decision (see paragraph 18 above). 23.  On 20 September 2007 a new Act on the legal status of churches, religious communities and religious groups (“the 2007 Act”) was adopted. It entered into force on 1 May 2008. 24.  On 3 and 6 April 2009 the applicant association inspected the register of churches, religious groups and communities (“the court register”) of the Skopje Court of First Instance, which became, by virtue of the 2007 Act, the registration court. From 11 November 2008 onwards the MOC was recorded in the court register as “Macedonian Orthodox Church-Ohrid Archdiocese”. The registration decision stated that in communication with third parties it would use the name “Macedonian Orthodox Church”. 25.  According to “the minutes of the constituent assembly” (записник од основачкото собрание) “... at the proposal of His Beatitude (Неговото Блаженство), the Archbishop of Ohrid and Metropolitan of Skopje Mr Jovan (Vraniškovski), the Holy Synod of the Orthodox Ohrid Archdiocese composed of (Bishops J., M., and D., all Macedonian nationals) convened a meeting on 27 April 2009 in order to adopt decisions for setting up and registration of “the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy”. The minutes of the constituent assembly were signed by all three bishops (their personal identity numbers and addresses were provided therein). 26.  On the same date a decision setting up the applicant association was adopted. As stated in its introductory part, “at a meeting dated 27 April 2009 the Holy Synod decided to submit a request to the Skopje Court of First Instance for registration of ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’”. It was set up “as a voluntary, non-profit organisation of Christians who are not associated with any other registered religious community, and, in particular, has no connection with (the MOC)”. It further stated:
“It is an Orthodox church in full canonical and liturgical union with all recognised Orthodox churches in the world. For this reason, we consider that we should be registered as a church, but if the court considers otherwise, we would accept registration as a religious community or religious group.” 27.  The decision further indicated that the applicant association’s temporary place of registration would be in Bitola, in the respondent State. Bishop D. was authorised to submit the application for registration. He was also nominated to act on behalf of the applicant association (застапува) in relations with other legal entities until “... Mr Jovan (Vraniškovski) returned from exile”. 28.  The applicant association’s Charter on the status, organisation and operation of the association (“the Charter”) provided that it was “an autonomous church under the canonical jurisdiction of the Peć Patriarchy” (section 2). The Holy Synod was “the highest managerial body” of the applicant (section 6). It was composed of the Archbishop and two eparchy bishops (section 9). The assembly of archbishops (архиепископско собрание) was “the supreme regulatory, administrative, supervisory and executive body concerning internal, financial and religious self-management” (section 12). 29.  On 28 April 2009 Bishop D. submitted an application for registration of the “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” as “one of the churches” in the respondent State. The application expressly stated that the applicant association would agree to be registered as a religious community or group if the registration court found this more appropriate. The applicant association further expressed willingness to submit any documents, if need be, in order to avoid its application being refused. It was also stated that a refusal to register a religious group would be unjustified in a democratic society unless it was proven that the teaching of the group was destructive. That had not been the case with the ‘“Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy’ which is two thousand years old”. It further stated that:
“... any refusal to register ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’ is an obstacle to the Republic of Macedonia’s future membership of the European Union ... It will not be pleasant, at the present time and place in history, if a judge appears as a persecutor of a church. Any person who does not respect human rights and freedoms regarding association of people on religious grounds, especially if he or she is a judge ... does not differ much from famous persecutors of the Holy Church ... we wrote the above in order to warn that it will be unpleasant if the court does not register ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’ ...” 30.  On 10 July 2009, without reference to the applicant, the registration court sought an explanation from the MOC as to the meaning of the notion of “Peć Patriarchy”. On 21 July 2009 the MOC replied (the reply was reproduced in the decision of the registration court of 28 July 2009, see paragraph 31 below) as follows:
‘“Peć Patriarchy’ forms part of the name of the Serbian Orthodox Church and expresses the historical continuity of the Serbian Orthodox Church as canonical heir of the Peć Patriarchy: in the same way the name ‘Ohrid Archdiocese’ is part of the name of the Macedonian Orthodox Church. The name ‘Ohrid Archdiocese’ is protected by the Macedonian Orthodox Church in the Industrial Property Bureau. The Serbian Orthodox Church, specifically the Peć Patriarchy, has no canonical or any other jurisdiction over the Macedonian Orthodox Church or in the territory of the Republic of Macedonia.” 31.  On 28 July 2009 the registration court dismissed the applicant association’s request for registration in the court register (се одбива барањето за упис) for the following reasons:
(a)  it was founded by the so-called Holy Synod, as a body, which was contrary to section 2 of the 2007 Act (see paragraph 49 below) according to which a decision to establish a religious entity was to be taken by the founding members at a constituent assembly. No such assembly had been held in the applicant’s case;
(b)  the application for registration concerned an organisation which had not been provided for under the 2007 Act. Its name did not specify whether it was a church, religious community or religious group. On the contrary, it implied that it was a divine organisation, which would operate as an autonomous Archdiocese under the canonical jurisdiction of the Peć Patriarchy. “It did not state that it was a voluntary organisation of physical persons” as required under section 2 of the 2007 Act;
(c)  the intended name of the applicant association included names or terms that were part of or indicated a relationship with the official names of States or religious communities or canonical territories already registered and under foreign jurisdiction. In this connection it held that the term “Greek” (Грко) was an English translation of “Orthodox Church”. Its use was not in conformity with the 2007 Act (section 10 (3)). The “Orthodox Ohrid Archdiocese” partly covered the generic and historical name of the MOC; it did not differ from the latter’s registered name. That name (Ohrid Archdiocese) has been used by the MOC “constitutionally, historically, actually and continuously” for over 800 years, and only the MOC had the “historical, religious, moral and substantive right” to use it. In this connection the court held that the legal status, name and official insignia of the MOC were safeguarded by the 2007 Act and the Constitution. That the applicant’s intended name implied that it was under the territorial jurisdiction of a foreign church was in contravention of the 2007 Act and other laws. It was so because the MOC had canonical jurisdiction in the territory of the respondent State. It was only formally indicated that the applicant association would operate as an autonomous church. If registration was granted “it would operate in the territory of the respondent State as part of a foreign orthodox church ... it would operate and be managed autonomously within the canonical jurisdiction of the Peć Patriarchy, notably (the SOC) ... which had no canonical or any other jurisdiction over (the MOC) or in the territory of (the respondent State).” That was in violation of Article 1 of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 18 of the UN Universal Declaration of Human Rights and Article 9 of the Convention;
(d)  the founding decision had specified only the temporary place of registration of the applicant association, without specifying “a specific seat and address” (точно одредено седиште и адреса), as required under section 13 § 1 (2) of the 2007 Act; and
(e)  Bishop D. was nominated to act on behalf (застапува) of the applicant association, but not to represent (претставува) it, as required under section 12 § 2 (5) of the 2007 Act. 32.  The registration court concluded that the applicant association’s registration would run counter to the 2007 Act. It further stated that:
“(such a registration would violate) the freedom of religion ... of all physical persons, which they manifest through already registered religious communities. It would also violate the legitimate legal status of other voluntary associations of persons recorded in the court register ... their management bodies, hierarchy, competencies, titles, religious activities ...” 33.  The applicant appealed, arguing (i) that the court had erred when seeking “an expert opinion” about the meaning of “Peć Patriarchy” from the MOC, which was not neutral; (ii) that the registration of the MOC in November 2008 under the name “Macedonian Orthodox Church-Ohrid Archdiocese” had been unlawful. In this connection, the applicant submitted extracts from several media reports published at the time, according to which the competent body of the MOC, at its meeting held on 4 and 5 October 2008, had refused to change the name in its Constitution; (iii) that the MOC had applied to the Bureau for registration of the name “Macedonian Orthodox Church-Ohrid Archdiocese” as a trademark was irrelevant, since the Industrial Property Act concerned goods and services and not religious organisations. In this connection, the applicant argued that, in any event, the Bureau had confirmed that on 6 August 2004 the MOC had requested registration of seventeen trademarks, including the trademark “Macedonian Orthodox Church-Ohrid Archdiocese”. However, the MOC had never paid the registration fee for any of the trademarks for which registration had been sought. Consequently, those names were never registered as trademarks, nor were trademark certificates ever issued; (iv) the applicant association was set up by three founding members who had signed the minutes of the constituent assembly held on 27 April 2009. Consequently, the court had been wrong to hold that the founding decision had been rendered by the applicant association’s Holy Synod, as that body had no legal capacity to act before the applicant association was registered; (v) no reasonable explanation had been given as to why the applicant association’s intended name did not imply that it concerned a religious organisation; (vi) the court’s interpretation that the expression “Greek” was an English translation of “Orthodox Church” was wrong; (vii) the intended name of the applicant association was different from the name of any registered religious organisation, including the name of the MOC to which “Ohrid Archdiocese” had been unlawfully added. In this connection the applicant stated “(it) differs from the MOC, with which we refuse to be associated.” It further submitted that the court had allowed registration of two churches despite the fact that their names were substantially the same, namely “Christian Adventist Church (church of the Adventists of the Seventh Day) in the Republic of Macedonia” and “Christian Adventist Church in Macedonia”. It concluded the discussion under this head by saying that “had the court had difficulty with the intended name, it could have raised that issue in written correspondence and we would have replied. This clearly suggests that the court would refuse to register [the applicant association] under any name”; (viii) the registration court had given unsubstantiated explanations of a theological and historical nature favourable to the MOC; (ix) the applicable legislation did not preclude a religious community from being in canonical union with other churches in the world; (x) the refusal to register the applicant association violated the freedom of religion of the orthodox Greeks and Serbs in the respondent State, as the intended name suggested that it represented those communities; and (xii) lastly, the applicant association reiterated that it was ready to rectify any error the registration court might ask it to. 34.  On 4 February 2010 the Skopje Court of Appeal dismissed the applicant association’s appeal, reiterating the reasoning given by the registration court. 35.  On an unspecified date thereafter, D.N. (Bishop D.) submitted a constitutional appeal to the Constitutional Court, claiming that the authorities’ refusal to register the applicant as “the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” had affected his religious rights specified in Articles 16 and 19 of the Constitution and Article 9 of the Convention. In this connection, he claimed that the religious organisation with which he was affiliated had not been allowed registration for many years, and thus had been denied the opportunity to obtain legal-entity status. He stated “I’m prevented from exercising my freedom of religious observance in association with other people on a voluntary basis.” He further argued that without legal-entity status the applicant association was prevented from enjoying certain statutory rights: it could not construct religious temples; its members could not conduct religious ceremonies; it could not instruct religion or create religious schools; and it could not manage its property, nor could it hold bank accounts. Bishop D. invited the court to consider his appeal as submitted on behalf of all members of his religious organisation. Since the Constitutional Court had already rejected a similar appeal lodged on behalf of several people (U.br.182/09, see paragraph 55 below), he consented that his appeal be regarded as being submitted only in his name. He further stated:
“I agree, and after having consulted the other members of my religious community, I know that they also agree, that the Constitutional Court orders registration of the Greek Orthodox Ohrid Archdiocese of the Peć Patriarchy under conditions specified by law and we would adjust to any requirements set by the court. If a change in the name is needed, that should be indicated as a condition for our registration and once it is satisfied, (we) should be registered. If another condition should be fulfilled, that should be specified and we will try to accommodate it.” 36.  On 15 December 2010 the Constitutional Court rejected the constitutional appeal of D.N. concerning “the freedom of belief and prohibition of discrimination on religious grounds” (U.br.118/10). Referring to the courts’ decisions rejecting the applicant association’s request for registration as “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” and relying on Articles 9, 16 and 19 of the Constitution and Article 9 of the Convention, the court stated:
“The court cannot examine the appeal on the merits since the complainant did not comply with the formal statutory requirements before a competent court (for registration of the applicant). The complainant is willing to comply with the statutory requirements for registration, but he has failed to do so in practice and (he) does not prove that the competent court was wrong in its judgment that those requirements had not been complied with ... in such circumstances, this court cannot rule on the request for the protection of human rights and freedoms in relation to specific final decisions of competent bodies. It is so since the person concerned (субјектот) did not take any action in the court proceedings to comply with the statutory requirements, which apply similarly to all citizens. This derives from his request that this court suggest to him what needs to be done for (the applicant association) to be registered, which implies knowledge that there were (certain) flaws which led to non-registration. The complainant was not a priori refused registration of his religious community by a final judicial decision. The refusal he received was for non-compliance with the statutory requirements.” 37.  An article published in the daily newspaper Dnevnik on 26 September 2002 quoted the then Chairman of the Commission (see paragraph 10 above), who stated that:
“not at any price will Bishop Jovan (Vraniskoski) be allowed to perform religious rituals or to have a seat in an exarchate.” 38.  An article published in the daily newspaper Vest on 8 April 2004 quoted the following part of a joint statement by the then President of the respondent State and the Archbishop of the MOC:
“The MOC and the Macedonian State are and will remain together. Schismatics and renegades should be marginalised, isolated and rejected. The media attention they receive, irrespective of motives and intentions, affects both the MOC and Macedonian national and State interests.” 39.  An article published in the daily newspaper Večer on 23 November 2006 reported on discussions held between the Prime Minister of the respondent State and the Archbishop of the MOC regarding certain provisions of the 2007 Act. Following that discussion, the majority of bishops in the MOC, as stated in the article, had requested that the MOC should not accept any compromise which would prevent it from protecting itself against a parallel church, led by Mr Vraniškovski, being created. 40.  An article published in the daily newspaper Večer on 2 June 2009 reported on the alleged discontent of the applicant’s followers about its name as submitted in the second registration proceedings. In this connection the article quoted a letter by Mr Vraniškovski in which he allegedly stated:
“The (Holy) Synod was governed by the idea that the name of the religious community in respect of which we seek registration does not betray the essence of our Church. You know well that Greek-Orthodox does not mean Greek (by nationality) of Orthodox faith, but that name refers to all known Christian Orthodox Churches.” 41.  The article continued, stating that Mr Vraniškovski had further asserted that the second part of the name was reasonable because the “Ohrid Orthodox Archdiocese” was a part of the Peć Patriarchy.


5.  The applicant company is registered in Vilnius. 6.  It provides heating, cooling, ventilation and air conditioning equipment in Lithuania. 7.  In 2013 the Vilnius territorial customs office (hereinafter “the customs office”) carried out an audit of the applicant company’s accounting data, related to goods imported between 1 July 2009 and 31 August 2012. During that period the applicant company bought some goods and declared them as air conditioning equipment, comprising of one unit and its parts. The goods were bought from a company registered in the United States of America (hereinafter “the seller company”) but the applicant company claimed that it had not concluded purchase agreements with that company and that the goods had been bought on the basis of an order. In April 2013 the customs office found that in twenty‑three import declarations the value of the goods had been three to four times lower than the value of similar goods declared by other importers. In addition, invoices provided by the applicant company had not contained any information on payment for the goods. Moreover, the customs office stated that the applicant company and seller company were related because two of the latter’s logistics managers were also employed by the applicant company. As a result, the applicant company was ordered to pay 618,083 euros (EUR) in total as customs tax, value added tax, late payment interest and a fine. 8.  The applicant company complained about the customs office’s report to the Customs Department. In June 2014 the latter annulled part of the report and ordered the customs office to carry out an additional investigation. The Customs Department held that the customs office had not precisely indicated which legal provisions had not been complied with by the evidence or facts the applicant company had provided. Furthermore, it was not clear which of the grounds specified in Article 143 of Commission Regulation (EEC) No. 2454/93 of 2 July 1993 laying down provisions for the implementation of the Community Customs Code (hereinafter “Regulation No. 2454/93”) (see paragraph 25 below) the customs office had been referring to when stating that the applicant company and seller company were related. Moreover, the mere fact that the buyer and seller companies were related and the declared value of goods was small was not enough to warrant a recalculation of the import taxes. 9.  In December 2013 the customs office carried out an additional investigation. It held that in the absence of any evidence that could prove that employees of the applicant company were not related to the American company, it had to conclude that the buyer and seller were related. The customs office also refused to approve twenty‑three import declarations provided by the applicant company and calculated the value of the imported goods in accordance with Council Regulation (EEC) No. 2913/1992 of 12 October 1992 establishing the Community Customs Code (hereinafter “the Community Customs Code”). The customs office ordered the applicant company to pay 173,005 Lithuanian litai (LTL – approximately EUR 50,106) in customs tax, LTL 1,457,978 (approximately EUR 422,260) in value added tax, LTL 437,675 (approximately EUR 126,759) in late payment interest and a fine of LTL 163,098 (approximately EUR 47,236), the total amount being EUR 646,361. 10.  The applicant company complained about the report drawn up during the additional investigation to the Customs Department with a request for it to be annulled. The applicant company claimed that the refusal of the customs office to approve the value of the goods provided by it in accordance with the transaction value method was unfounded, as was the conclusion that the applicant company and seller company were related. Moreover, the applicant company disagreed with the late payment interest because it had increased due to the protractedness of the investigation of the customs office. 11.  In March 2014 the Customs Department approved the customs office’s report of December 2013 (see paragraph 9 above) and dismissed the applicant company’s complaint. 12.  The applicant company appealed against that decision to the Tax Disputes Commission, providing documents from the seller company proving that none of its employees were also employed by the applicant company. In July 2014 the Tax Disputes Commission held that because the applicant company had provided incomplete data, it had been unable to determine the exact circumstances of the purchase agreement concluded with the seller company. Nevertheless, the Tax Disputes Commission decided to exempt the applicant company from paying LTL 27,118.40 (approximately EUR 7,854) of late payment interest. 13.  The applicant company complained to the Vilnius Regional Administrative Court. It claimed that it was not clear from the customs office’s report of December 2013 on which of the grounds specified in Article 143 of Regulation No. 2454/93 (see paragraph 25 below) the customs office had been relying when stating that the applicant company and seller company were related. The mere fact that the applicant company and seller company had been involved in the purchase agreements was not sufficient to conclude that they were business partners. The applicant company also argued that the customs office had refused to apply the transaction value method without providing any reasons. During the hearing, the applicant company asked the Vilnius Regional Administrative Court to request a preliminary ruling from the Court of Justice of the European Union (hereinafter “CJEU”). 14.  On 22 January 2015 the Vilnius Regional Administrative Court rejected the applicant company’s complaint as unfounded. It held that there was enough information to adopt a decision in the case and that no question as to the interpretation of European Union customs law had arisen (teismas pažymi, kad byloje yra pakankamai duomenų sprendimo priėmimui, teismui jokių papildomų klausimų teisės aiškinimo klausimais nekilo, todėl nėra pagrindo kreiptis į Europos Sąjungos Teisingumo Teismą). 15.  The applicant company appealed against that decision. It stated that the first‑instance court had misinterpreted the provisions of the Community Customs Code and Regulation No. 2454/93. Moreover, the decision of the first‑instance court had lacked reasoning. The applicant company submitted that an interpretation of certain provisions of European Union law was necessary because the case-law of the CJEU regarding the application of Articles 29‑31 of the Community Customs Code was inconsistent. According to the applicant company, it was necessary to refer the following questions to the CJEU:
- (1) Whether the conditions specified in Article 29 § 1 (b) of the Community Customs Code, which influence the sale and price of the goods and whose effect cannot be assessed, include cases such as the one at hand, where at the time of presentation of the goods to customs and the assessment of those goods a debt of buyer to seller exists? If the debt does not have any effect on the sale or price of the goods, is it included in the transaction value defined in Article 29 § 1 (b) of the Community Customs Code?
- (2) Can the difference between the price of imported goods and the list of comparative prices collected by customs be independent grounds not to apply the transaction value method, and is this difference considered a circumstance whose effect on the sale or price of goods cannot be assessed, within the meaning of Article 29 § 1 (b) of the Community Customs Code?
- (3) If the seller authorises the buyer’s employees to perform certain actions related to the transportation and the customs procedures of the goods, can this be considered a relationship between buyer and seller, within the meaning of Article 29 § 1 (d) of the Community Customs Code, and can it be grounds not to apply the transaction value method?
- (4) Can a national customs office rely on Article 31 § 1 of the Community Customs Code independently, without applying the methods set out in Articles 29 and 30 of the Community Customs Code? If the national customs office has to rely on one of the methods set out in Articles 29 and 30 of the Community Customs Code, comparative data relating to which period is considered relevant? Does the use of the only case of export as a comparative correspond to the criterion of “at the same time or almost at the same time” when applying it to establish the value of goods declared within a period of three years? Can cases of export from other States (for example, Malaysia) be assessed and can this data be considered comparative? Does the national customs office have to rely on the data collected by it and involving cases of export to Lithuania only or does it have to send other member States a request of information?
- (5) Is the provision of domestic law that the customs office use data existing in the Customs Department database when applying the transaction value method of similar and identical goods in accordance with Article 31 § 1 of the Community Customs Code, which provides that where the customs value of imported goods cannot be determined under Articles 29 or 30, it must be determined on the basis of data available in the Community?
- (6) Can the transaction value of similar goods be compared by comparing not the transaction value of similar goods but the price of one kilogram, which is determined by dividing the transaction value existing in the national customs database by the amount of kilograms? 16.  On 22 March 2016 the Supreme Administrative Court upheld the first‑instance decision. The court referred to the case‑law of the Court that Article 6 § 1 of the Convention could not be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applied could vary according to the nature of the decision. Moreover, it was necessary to take into account, inter alia, the diversity of the submissions that a litigant could bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. This was why the question of whether a court had failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, could only be determined in the light of the circumstances of the case. The Supreme Administrative Court relied on the following authorities: Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303‑B; Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A; and Suominen v. Finland, no. 37801/97, § 34, 1 July 2003, Series A no. 303‑A. It held that the first‑instance decision had been adequately reasoned. It was established in domestic case‑law that the court could refer the issue to the competent judicial institution of the European Union (see paragraph 18 below). However, the Supreme Administrative Court stated that the request of a party to the proceedings to refer a certain question to the judicial institution of the European Union was not obligatory if the application of European Union law was so obvious that no doubts could arise (bylos šalies prašymas teismui nėra privalomas ir jei Europos Sąjungos teisės taikymas yra toks akivaizdus, kad dėl pateikto klausimo sprendimo negali kilti jokių pagrįstų abejonių, galutinės instancijos nacionalinis teismas neprivalo kreiptis į Europos Sąjungos Teisingumo Teismą su prejudiciniu klausimu). Also, the mere fact that a party to the proceedings did not agree with the interpretation of the law provided by the first‑instance court did not mean that the substance of the European Union law was not clear and that there was a necessity to refer the question to the CJEU (Pastebėtina, kad vien faktinė aplinkybė, jog ginčo šalis nesutinka su pirmosios instancijos teismo pateiktu teisės aiškinimu, savaime nereiškia, jog nėra aiškus Europos Sąjungos teisės turinys, ir, atitinkamai, kad yra pagrindas kreiptis į ESTT prejudicinio sprendimo). The Supreme Administrative Court also held that the application of European Union law was clear enough in the present case and that there was no need to refer a question to the CJEU for a preliminary ruling (Šio ginčo apimtyje teismui nekyla neaiškumų dėl Bendrijos muitinės kodekso 29-31 straipsnių taikymo, todėl pareiškėjo prašymas kreiptis į Europos Sąjungos Teisingumo Teismą su prejudiciniu klausimu netenkintinas). It quoted another of its cases regarding the interpretation of certain provisions of a directive regulating markets in financial instruments, where it held that the applicant company in that case had failed to indicate specific uncertainties as to the interpretation of that directive and had not indicated why the referral to the CJEU was necessary (case no. A858-48/2011 of 14 April 2011). 17.  In April 2017 the Supreme Administrative Court dismissed a request lodged by the applicant company to reopen the proceedings.