FIFTH SECTION

DECISION

Application no . 9557/04 GROMADA UKRAYINSKOYI GREKO-KATOLYTSKOYI TSERKVY SELA KORSHIV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 3 May 2016 as a Chamber composed of:

Angelika Nußberger, President, Ganna Yudkivska, Erik Møse, Faris Vehabović, Yonko Grozev, Síofra O ’ Leary, Mārtiņš Mits, judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 24 February 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Gromada Ukrayinskoyi Greko-Katolytskoyi Tserkvy Sela Korshiv, is a Ukrainian religious community registered in the village of Korshiv. They were represented before the Court by Mr Fedir Boychuk.

2. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.

A. The circumstances of the case

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

4. In 1843 the local community of the Ukrainian Greek Catholic Church in the villages of Korshiv (Ivano-Frankivsk Region) built a church to the Holy Virgin Mary ’ s Assumption. In 1946, after the relevant territory had been joined to the USSR, the community of the Ukrainian Greek Catholic Church formally became a part of the Russian Orthodox Church. The church of the Assumption was nationalised and transferred to the Russian Orthodox Church for religious purposes.

5. In 1991 part of the former Russian Orthodox Church community members decided to create a community of the Ukrainian Greek Catholic Church (the applicant) and another part decided to join the Ukrainian Autocephalous Orthodox Church. The church of the Assumption remained municipal property, managed by the Regional State Administration. On 5 March 1991 the newly created Ukrainian Autocephalous Orthodox Church community entered into an agreement on the use of church premises with the Korshiv District Municipal Council.

6. On 15 October 1991 the Ivano-Frankivsk Regional Council decided that the Ukrainian Autocephalous Orthodox Church and the Ukrainian Greek Catholic Church communities in Korshiv could use the church jointly. They had to agree on the details of the agreement. T he applicant stated that the Ukrainian Autocephalous Orthodox Church did not agree to use the church jointly and prevented the applicant from having its religious ceremonies in the church.

7. On 20 June and 2 August 2000 and on 16 May 2001 the applicant applied to the Ivano ‑ Frankivsk Regional State Administration, seeking to be declared owner of the church of the Assumption. Having received no answer the applicant brought civil proceedings against the State Administration.

8. On 12 February 2002 the Kyiv City Commercial Court (the “Kyiv Court”) allowed the applicant ’ s claim and declared it owner of the church. The Ukrainian Autocephalous Orthodox Church appealed.

9. On 13 August 2002 the Higher Commercial Court quashed the judgment on the ground that the Ukrainian Autocephalous Orthodox Church had not been informed about the proceedings. The case was remitted for examination to the Kyiv Court.

10. In the course of the new examination, t he applicant brought additional claims seeking to annul the agreement of 5 March 1991 concluded by the Council and the Ukrainian Autocephalous Orthodox Church (see paragraph 5 above) . The court refused to entertain this action, indicating that the applicant was free to institute separate new proceedings concerning the agreement of 5 March 1991.

11. On 22 January 2003 the Kyiv Court found against the applicant, stating that transfer of the church to the applicant would lead to an infringement of the rights of the Ukrainian Autocephalous Orthodox Church community. On 6 May 2003 the Kyiv Commercial Court of Appeal upheld this judgment. On 15 July 2003 the Higher Commercial Court rejected the applicant ’ s appeal in cassation. On 13 November 2003 the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation.

B. Relevant domestic law and practice

1 . Relevant domestic laws and practice with respect to religious organisations

12. The relevant domestic law and practice with regard to the activities of religious associations is summarized in Svyato-Mykhaylivska Parafiya v. Ukraine (no. 77703/01, 14 June 2007), and Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, §§ 21-32, 28 February 2008) . Other relevant domestic regulations and administrative and judicial practice are briefly summarised below.

2 . Relevant domestic laws and other normative acts on restitution of religious property

(a) The Freedom of Conscience and Religious Organisations Act of 23 April 1991

13. Under section 17 § 2 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991, the State undertook to transfer title to or possession of religious premises and property belonging to the State to religious organisations. The transfer of property had to be done free of charge, on the basis of decisions of the Kyiv and Sevastopol City State Administrations, regional administrations or the Government of the Crimea.

14. The relevant extracts from the text of section 17 of the Act (in force at the material time) read as follows:

“Religious organisations shall be entitled to use buildings and property placed at their disposal by the State, by organisations and by private individuals, on a contractual basis.

Religious buildings and property which constitute State-owned property shall be transferred by the organisations that administer them to the religious association for their unpaid use or shall be returned into their ownership without payment, in accordance with decisions by the regional, Kyiv and Sevastopol City State Administrations, and in the Republic of the Crimea, by the Government of the Republic of the Crimea ...

...

Religious buildings and other property of historical, artistic and other cultural value shall be transferred into the use ... of the religious organisations and shall be used by them in compliance with the rules on protection and use of historical and cultural monuments ...

...

Requests made by religious organisations for transfer of religious buildings and property into ownership or unpaid use shall be considered within a period of one month, and information in writing sent to the petitioners.

...

Decisions by the State bodies with regard to ownership or use of religious buildings and property may be appealed against to a court in compliance with the procedure envisaged by the Code of Civil Procedure ...”

(b) Resolution of 23 April 1991 by the Verkhovna Rada of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”

15. The relevant extracts from the Resolution of the Verkhovna Rada (Parliament) of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”, as amended on 23 December 1993, read as follows:

“...

6. The Cabinet of Ministers of Ukraine, the Government of the Crimea and the regional, Kyiv and Sevastopol State Administrations shall ensure in accordance with the Act the return to the ownership of or free use of religious buildings and property by religious groups, taking into account the following:

- the rights of the religious organisations which owned these buildings and property when they were nationalised;

- the rights of the religious organisations which use these buildings and property in accordance with the procedure established by law;

- investments made by the religious organisations in the property, rebuilding of the religious premises and length of use of such premises;

- existence in the same residential area of other religious premises and their use by other religious organisations ...;

- other important matters in their entirety.

The decision of the relevant State body shall be reasoned ...”

(c) Presidential decrees and orders

16. Under the Presidential Decree of 4 March 1992 “On Measures Relating to the Return of Religious Property to Religious Organisations” it was established that all religious premises and property owned by the State and used “contrary to their mission” should be returned to the religious associations within the period 1992-1993. This period was further extended until 1 December 1997 by a Presidential Executive Order of 22 June 1994. On 21 March 2002 the President issued another decree “On Urgent Measures Relating to the Final Overcoming of the Negative Impact of the Totalitarian Policy of the Former Soviet Union with regard to Religion and on Restoration of the Breached Rights of Churches and Religious Organisations”, in which he recommended that regional bodies of local self ‑ government finalise the transfer of church premises that were being used “contrary to their designation”, and other buildings, to religious organisations.

(d) Cabinet of Ministers ’ Resolutions

17. Resolution No. 83 of the Cabinet of Ministers of Ukraine of 5 April 1991 (in force until 5 February 2002) “On the List of Historical Architectural Monuments which shall not be subject to Transfer to Permanent Use by Religious Organisations”, provided that the following cathedrals in Sevastopol were not to be returned to religious organisations: Volodymyrsky Cathedral (XIX century), Petropavlivsky Cathedral and Mykhaylivsky Cathedral (XIX century).

18. By Resolution No. 137 “On the Conditions of Transfer of Religious Premises which are Architectural Monuments to Religious Organisations”, adopted on 14 February 2002 by the Cabinet of Ministers, it was decided that such religious premises could be given to religious organisations for permanent use if the relevant educational institutions, archives or cultural institutions were moved to other premises.

(e) Relevant judicial practice

(i) Practice of the Constitutional Court

19. On 14 July 1997 the Constitutional Court rejected a request for interpretation of section 17 § 3 of the Act, stating, inter alia , that complaints concerning the use of religious buildings and property were to be examined by courts of general jurisdiction. It also referred to the recommendations of the Presidium of the Higher Commercial (former Arbitration) Court in that regard.

20. On 21 October 1997 the Constitutional Court rejected a request for interpretation of the provisions of section 17 § 2 of the Act, lodged by the Greek-Catholic community “Preobrazhenska”, finding, inter alia , that there was no proof of inconsistent application of its provisions by the domestic courts.

(ii) Practice Recommendation no. 02-5/109 “On certain issues concerning the practice on the application of the Freedom of Conscience and Religious Organisations Act” (issued by the Higher Arbitration Court on 29 February 1996 to the arbitration courts in Ukraine, in force at the material time)

21. According to paragraph 7 of the Practice Recommendation, the religious premises and property that belonged to State property were to be transferred into unpaid use or ownership of the religious organisations on the basis of the decisions taken by the regional, Kyiv and Sevastopol city state administrations and the Government of Crimea. The above-mentioned authorities were under an obligation to return such property, not used for religious purposes, within a period from 1992-1993. The return of property included transfer into unpaid use or ownership. The property could be returned to religious associations, which proved that they had owned the property before nationalisation. Thus, the Recommendation, with reference to Presidential Decree of 22 June 1996, mentioned that the transfer of ownership of the religious premises was one of the measures envisaged by law. Moreover, religious premises or property could be transferred to another religious association if there was no “legal successor” ( правонаступник ) religious association found in the vicinity where the religious premises or property were situated.

22. Paragraph 9.3 of the Practice Recommendation provided that property was to be returned to the same religious confessions which had owned the religious buildings before nationalisation (orthodox church to be returned to orthodox community, Roman-catholic church to Roman-catholic community, etc.). Information or written evidence as to the previous ownership of religious premises was to be sought from the parties, State archives, or State Religions Committee (paragraph 9.4 of the Recommendation). Claims for the return of religious premises to their original ownership could be lodged under the provisions of the Property Act with the commercial courts, and the lodging of complaints with the courts of general jurisdiction did not impede the examination of such claims (paragraphs 9.4–9.6 of the Recommendation).

23. Paragraph 9.8 of the Practice Recommendation stated that all property belonging to religious organisations before the entry into force of the Act was deemed to belong to the State and the State was to be regarded as the proper owner of such property. In particular, this ensued from the provisions of Article 366 of the Administrative Code of the Ukrainian Soviet Socialist Republic of 1927. Therefore, in accordance with section 4 of the Property Act, State bodies, which are mentioned in Section 17 of the law, could perform any lawful acts with respect to such property and the courts were to reject any claims against such lawful acts, unless these acts contravened the law.

COMPLAINTS

24. The applicant complained that the domestic courts ’ refusal to recognise its ownership of the church of the Assumption infringed its rights guaranteed by Article 1 of Protocol No. 1.

They further referred to Article 9 of the Convention, without providing any specific substantiation.

THE LAW

A . Complaint s under Article 1 of Protocol No . 1 to the Convention

25. The applicant referred to Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

26. The Court recalls the principles relevant to the instant case:

(a) Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see Van der Mussele v. Belgium , 23 November 1983, § 48, Series A no. 70, and Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II). Also, the deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000 ‑ XII).

(b) An applicant can claim a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims in respect of which the applicant can argue that he or she has at least a “ legitimate expectation ” of obtaining effective enjoyment of a property right. However, a hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see, among many other authorities, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 and 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII; Polacek and Polackova v. Czech Republic (dec.) [GC], no. 38645/97, § 62, 10 July 2002).

(c) Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to return property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States ’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights to former owners (see Jantner v. Slovakia , no. 39050/97, § 34, 4 March 2003).

(d) Under certain circumstances the authorities ’ conduct can give rise to such legitimate expectations ( Öneryıldız v. Turkey [GC], no. 48939/99, §§ 124, 127-129, ECHR 2004 ‑ XII). There is, however, a difference between a mere hope of acquiring a property and a “legitimate expectation” which must be of a nature more concrete and based on a legal provision or a legal act such as a judicial decision (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 73, ECHR 2002 ‑ VII). Similarly, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts ( Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004 ‑ IX).

(e) Once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the Contracting State ’ s ratification of Protocol No. 1 (see, mutatis mutandis , Broniowski v. Poland [GC], 31443/96, § 125, ECHR 2004-V).

(f) Additionally, the Court recalls that it has only a limited power to deal with alleged errors of fact or law committed by the national courts (see Jantner v. Slovakia , no. 39050/97, § 32, 4 March 2003).

27. The Court considers that the present case does not concern "existing possessions" of the applicants. The property of the applicant ’ s religious association was expropriated by operation of law in 1946. Consequently, the property rights of the applicants ’ predecessor religious community ultimately became extinct long time ago. Moreover, the applicant religious organisation did not claim that since 1946 they had ever exercised any effective ownership rights over the property concerned. The Court finds that the decisions of the domestic courts in the present case show that the applicant did not have a right to obtain ownership of the church premises. In these circumstances, the Court concludes that, according to the domestic judicial decisions, the applicant did not have a legitimate expectation which could give rise to an issue under Article 1 of Protocol No. 1 to the Convention.

28. Furthermore, the Court notes that Section 17 § 2 of the Act declared that State-owned religious buildings and property were to be returned to religious organisations on the basis of decisions to be taken by the relevant local or regional authority. The relevant authority was required to decide within a month, and decisions could be appealed to a court. Further conditions were set out in the accompanying Resolution of the Verkhovna Rada on the procedure for the entry into force of the Act (see paragraph 15 above). In particular, the relevant authority was to ensure the return of buildings taking into account a series of criteria, including the former and current rights of the religious associations, the extent to which they had invested in the property concerned, the existence of other religious premises in the area and other important matters (see paragraph 15 above). Returns of State-owned property were further regulated by decrees and orders of the President and resolutions of the Cabinet of Ministers (see paragraphs 16-18 above).

29. According to the relevant practice recommendations of the Higher Arbitration Court (see paragraphs 21-23 above), a religious association had to prove that it was a successor religious community to the one that had owned the religious premises before nationalisation (see paragraphs 21 and 22 above). The courts of general jurisdiction also had to review whether there was another successor community in the locality where the religious premises were situated. They could also verify whether the premises claimed could be considered religious premises eligible for return, on the basis of written and other evidence submitted by the parties or requested by the court itself (see paragraph 22 above).

31. It follows that the applicants have not shown that they had any relevant “existing possessions” or any “legitimate expectations” of having the disputed property restored to them. There is nothing to suggest that the applicants ’ right to peaceful enjoyment of their possessions has in any way been infringed by the dismissal of their claims for restitution.

32. This part of the application is therefore incompatible ratione materia e with the provisions of the Convention, within the meaning of Article 35 § 3(a) of it, and must be rejected under Article 35 § 4 of the Convention.

B . Complaint under Article 9 of the Convention

33. The applicant association alleged that there had been a breach of its rights under Article 9 of the Convention, which reads 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.”

34. The Government objected to the admissibility of these complaints. In their view, in the absence of an arguable claim under Article 1 of Protocol No. 1 of the Convention, the claim under Article 9 was manifestly ill-founded. Moreover, the State did not impair the applicant ’ s right to practice religion as it was entitled to use the church and its property jointly with other religious community. The applicant maintained its allegations.

35. The Court notes that the authorities faced a situation where they needed to reconcile the interests of two religious communities that shared the church in the same village and had to avoid possible conflicts between two religious groups. It further notes that there was only one church premise suitable for religious needs, which both communities were allowed to use for their religious ceremonies, taking turns.

36. The Court reiterates that it is not possible to deduce from the Convention a right for a religious community to be guaranteed a place of worship by the public authorities (see Griechische Kirchengemeinde Munchen und Bayern E.V. v. Germany (dec.), no. 52336/99 , 18 September 2007). In the present case, the refusal of the domestic courts to transfer church premises into ownership by the applicant association has not prevented the applicant association from functioning and did not restrict their right to obtain or construct a place of worship in the conditions provided for by law (see, mutatis mutandis , Lupeni Greek Catholic Parish and Others v. Romania , no. 76943/11, §136, 19 May 2015).

37. The Court also notes that the decision of the Regional Council to provide the impugned church for common use by both communities does not appear to impose an unreasonable or disproportionate burden on the applicant, as the interests of the various groups and everyone ’ s beliefs were respected. In particular, the State authorities were acting in compliance with their role of the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, in the interests of public order, religious harmony and tolerance in a democratic society (see İzzettin Doğan and Others v. Turkey [GC], § 107, no. 62649/10, 26 April 2016). Moreover, the Court finds that it does not follow from the applicant association ’ s submissions that the domestic courts ’ decisions in the present case constituted an unjustified interference with the applicant association ’ s right to practice religion. The Court concludes, therefore, that there is no appearance of a violation of Article 9 of the Convention.

38. Accordingly, this part of the application must 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.

Done in English and notified in writing on 26 May 2016 .

             Claudia Westerdiek Angelika Nußberger Registrar President