FIFTH SECTION

DECISION

Application no . 13267/05 REPRESENTATION OF THE UNION OF COUNCILS FOR JEWS IN THE FORMER SOVIET UNION and UNION OF JEWISH RELIGIOUS ORGANISATIONS OF UKRAINE against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 1 April 2014 as a Chamber composed of:

Mark Villiger, President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , Vincent A. D e Gaetano, André Potocki , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 31 March 2005 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants are the Representation of the Union of Councils for Jews in the Former Soviet Union (“the first applicant organisation”) and the Union of Jewish Religious Organisations of Ukraine (“the second applicant organisation”). According to the applicants, the first applicant was established in 2000 "with the purpose of representation of the interest of the Union of American Councils for Jews in the Former Soviet Union and for monitoring the situation regarding observance of human rights, facilitation of harmonisation of interethnic and inter-religious relations". The second applicant "is a religious organisation" aimed at "assistance to Jewish religious organisations in the protection of religious and other human rights ". They were represented before the Court by Mr M. Sheykhet.

The circumstances of the case

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

3 . The applicant organisations alleged that several ancient Jewish cemeteries on the territory of Ukraine were in a state of neglect, in breach of a bilateral agreement of 4 March 1997 between the United States of America and Ukraine “on the protection and preservation of cultural heritage” and of the Ukrainian laws on cultural heritage. The applicant organisations instituted numerous proceedings requesting the courts to re ‑ establish the boundaries of those cemeteries and to ban all construction on the land concerned.

1. Volodymyr-Volynskyy cemetery

4 . By a letter of 16 November 1998 the Volyn Region Natural History Museum informed the Head of the Volodymyr-Volynskyy Town Council that in October 1997 the foundations of an ancient building near the Kosmos cinema had been examined. It was established that these were the vestiges of an 18th-19th century construction over the tomb of a prominent rabbi.

5 . In May 1999 the first applicant organisation asked the Head of the Volodymyr-Volynskyy Town Council to prohibit any common use of the land on which the former Jewish cemetery was situated and to forbid the privatisation of any buildings that already existed on that territory. It proposed that the Jewish community would maintain the land and would not carry out any new burials on the site.

6 . In reply, the town council informed the Chief Rabbi of Ukraine that it was favourable to the above proposal. It noted, however, that there were buildings on the territory of the former Jewish cemetery, as well as some unfinished constructions. It was also noted that the council had informed the first applicant organisation ’ s representative about the existing problems and proposals, but that no compromise had been reached.

7 . The photographs and maps submitted to the Court by the applicant organisations show that there is a park and some constructions on the land in question (garages, a block of flats, an unfinished multi-storey construction, a cinema, a playground, a sports ground and a school).

8 . According to the information submitted by the applicant organisations, the last burial at the cemetery took place in 1939. There are around twenty tombstones within the cemetery; the majority of them are not in their original places. The tombstones, however, are not visible on the photographs submitted.

9 . On 8 April 2002 the Volyn Regional Commercial Court allowed the applicant organisations ’ claim against the Volodymyr-Volynskyy Town Council to have the historic boundaries of the Jewish cemetery re ‑ established as they existed before the Second World War in the town of Volodymyr-Volynskyy .

10 . On 5 June 2002 the Lviv Commercial Court of Appeal amended that decision. The court held that the applicant organisations had requested only the establishment of the cemetery ’ s historical boundaries and therefore the boundaries of the cemetery that existed at the time of the German occupation during the Second World War should be determined in accordance with the relevant technical documentation. There is no information about the enforcement of that decision.

11 . Following a complaint lodged by the applicant organisations against the Volodymyr-Volynskyy Town Council, on 17 December 2002 the Lviv Commercial Court of Appeal banned all construction within the historic boundaries of the ancient Jewish cemetery.

12 . On 13 February 2003 the bailiffs ’ service terminated the enforcement proceedings in this case, since the town council had informed it that there was no construction on the site. On 29 October 2003 the Lviv Commercial Court of Appeal quashed that decision. On 10 January 2004 the same court informed the bailiffs ’ service that the decision of 17 December 2002 should be understood as banning all construction works by the council. The council was also not allowed to issue any construction permits. It appears that in 2004 the enforcement proceedings were again terminated. The applicant organisations challenged the termination decision in the court. This Court has not been given any further information about the developments in these proceedings, despite an explicit request to that effect,

13 . The applicant organisations also challenged in the courts a decision of 1974 to adopt a general construction plan for Volodymyr-Volynskyy and a decision taken in 1986 to construct an administrative building for the communist party on a certain plot of land. The courts rejected those claims as time-barred.

14 . It appears from the documents submitted by the applicant organisations that they also instituted other court proceedings. However, it is impossible to establish, on the basis of the materials in the file, the subject matter of those proceedings. For example, the applicant organisations challenged a decision of the executive committee of the Volodymyr-Volynskyy Town Council of 17 August 2001. It appears from the decision of 1 December 2003 of the Lviv Commercial Court of Appeal that by a decision of 7 August 2003, the Volyn Regional Commercial Court had left the applicant organisations ’ claim unexamined. The applicant organisations did not provide any further details about those proceedings (the subject matter of the council ’ s decision, the reasons for leaving the claim without consideration, and whether they appealed against the decision of 1 December 2003).

15 . It follows from a letter of 13 December 2004 submitted by the applicant organisations to the Minister of Justice, the Supreme Court of Ukraine and to other State bodies that at least eight sets of court proceedings were instituted by the applicant organisations in respect of the cemetery in Volodymyr-Volynskyy . The applicant organisations stated that at the end of 2004, six of those sets of proceedings were still pending.

16 . In particular, on 25 May 2005 the Volyn Regional Commercial Court terminated the proceedings in which the applicant organisations were seeking the cancellation of the Volodymyr-Volynskyy Town Council ’ s decision on the reconstruction of a certain building. The court held that the building had already been reconstructed and that fifty-two people had bought apartments in it. The court further held that it was not competent to examine such claims. There is no information as to whether that decision was appealed against.

17 . On 24 May 2006 the Higher Commercial Court of Ukraine upheld the lower courts ’ decisions that the applicant organisations ’ claim, by which they had challenged the contract between the town council and a private party for the sale of an unfinished building, was not within the jurisdiction of the commercial courts.

2. Yanovskyy cemetery in Lviv

18 . By a final decision of 24 January 2007 the Higher Administrative Court of Ukraine upheld the lower courts ’ decisions to reject the applicant organisations ’ claim to have the historic boundaries of the Jewish part of Yanovskyy cemetery in Lviv re-established. The courts held that the documents submitted by the applicant organisations (including 19 th century land-sale contracts and archive maps) could not serve as a legal basis for establishing the historic boundaries of the cemetery with a view to its further preservation, since streets and buildings were now situated on part of the land.

19 . The applicant organisations did not submit a copy of their claim, copies of the appeals lodged by them or a copy of the first-instance court decision taken in those proceedings.

3. Another Lviv cemetery

20 . By a final decision of 6 March 2007 the Higher Administrative Court of Ukraine upheld the lower courts ’ decisions rejecting a request lodged by the applicant organisations to re-establish the historic boundaries of the ancient Jewish cemetery in Lviv . The applicant organisations claimed that before the 1950s there had been a cemetery on a plot of land indicated by them. The court held that there were no tombstones on the land indicated by the applicant organisations.

21 . The applicant organisations did not submit copies of their claims or of the appeals lodged by them within those proceedings.

4. Drogobych cemetery

22 . By a final decision of 14 February 2007 the Higher Administrative Court of Ukraine refused to consider the applicant organisations ’ appeal in cassation against the lower courts ’ refusals to re-establish the historic boundaries of the Jewish cemetery in the town of Drogobych . The court held that as the case had been considered by the lower courts under the commercial-law procedure, the Higher Administrative Court had no jurisdiction to examine the applicant organisations ’ appeal in cassation.

23 . Apart from a copy of that decision, the applicant organisations submitted only a copy of a decision of the Lviv Commercial Court of Appeal. Copies of all other documents (claims, appeal, and court decisions) are missing.

5. Kolomyya cemetery

24 . By a final decision of 11 May 2010 the Higher Commercial Court of Ukraine upheld the lower courts ’ decisions rejecting as unsubstantiated the applicant organisations ’ claim against the failure of Kolomyya Town Council and two companies to ban any construction and to order the land boundary survey to re-establish the historic boundaries of the Jewish cemetery in the town of Kolomyya . In particular, the applicant organisations had complained that a petrol filling station had been constructed on land on which a cemetery had been situated.

25 . The courts found that in 1997 the executive committee of a local council had issued permission for a mobile gas station to be installed on the land in question. An expert examination held in 2005 established that it was impossible to conclude whether the land in question was part of an ancient Jewish cemetery. In 2007 the same body allowed a private company, B., to build a permanent gas station on that plot, which the company did. The applicant organisations did not ask to be given the land in question.

26 . The Higher Commercial Court noted that the applicant organisations had failed to substantiate in which way their rights had been breached and the legal basis for their claims. Moreover, it noted that the court decisions could not be based on “religious norms of Judaism”.

27 . The applicant organisations did not submit copies of the claims and appeals which they had lodged in that case.

COMPLAINTS

28 . The applicant organisations complained that the inadequate protection of the Jewish cemeteries and construction on those sites had breached their rights under Article 9 of the Convention. In particular, they stated that “construction in the cemetery area contradicts religious norms of Judaism concerning performance of religious rites”.

29 . The applicant organisations also complained, under Article 6 § 1 and 13 of the Convention, about the unfairness and the outcome of the proceedings. They further complained about the excessive length of the proceedings.

30 . Lastly, the applicant organisations complained about the non-enforcement of the decision of 17 December 2002.

THE LAW

A. Complaint under Article 9 of the Convention

31 . The applicant organisations complained about the breach of their rights under Article 9 of the Convention, which provides as follows;

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

32 . The Court observes that it is questionable whether they were directly “affected” by the measures and decisions complained of and thus may claim to be victims of the alleged violation of the Article invoked (see Sargsyan v. Azerbaijan ( dec. ) [GC], no. 40167/06, § 96, 14 December 2011). It is true that the second applicant organisation is a union of Jewish religious organisations, and an ecclesiastical or religious body may, as such, exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention (see Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000 ‑ VII). However, the applicant organisations did not submit their statutes or any other documents which would allow the Court to come to any conclusions as to their aim and mission, or which entities are members of the second applicant organisation.

33 . Even assuming that the applicant organisations ’ victim status could be confirmed, the Court further notes they have not submitted copies of their claims and complaints lodged at the national level. It appears from the case-file materials submitted by the applicant organisations that they wanted the local domestic authorities to re-establish the boundaries of the Jewish cemeteries as they existed in Ukraine before the Second World War. They further sought to have all construction on those sites banned.

34 . In this respect, the Court reiterates that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia , freedom to manifest ones religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one ’ s religion or belief may take, namely worship, teaching, practice and observance.

35 . Even assuming that the applicant organisations ’ endeavours at national level were motivated by religious beliefs, according to which bones should not be removed from tombs, the Court stresses that Article 9 does not protect every act motivated or inspired by a religion or belief (see Kalaç v. Turkey , 1 July 1997, § 27, Reports of Judgments and Decisions 1997 ‑ IV). Furthermore, the Court notes that it appears from the applicant organisations ’ submissions that the surface of the cemeteries was destroyed more than seventy years ago and buildings and other constructions were meanwhile erected on some of the sites.

36 . The Court notes that the applicant organisations failed to submit the details of their claims lodged at national level, or more precise details of which particular rights, under Article 9 of the Convention, were supposedly breached by the authorities. The Court, therefore, cannot conclude that any acts or omissions by the State constituted an interference with the applicant organisations ’ rights (if any) under Article 9 of the Convention in the present case.

37 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remainder of the application

38 . The Court has examined the remainder of the applicant organisations ’ complaints. Having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must also be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President