FIFTH SECTION

DECISION

Applications nos. 24941/13 and 32493/13 RELIGIOUS COMMUNITY OF UKRAINIAN ORTHODOX CHURCH KYIV PATRIARCHATE IN MOSTYSKA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 7 October 2021 as a Committee composed of:

Arnfinn BÃ¥rdsen, President, Ganna Yudkivska, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above applications lodged on 2 April 2013,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant is the religious community of the Ukrainian Orthodox Church Kyiv Patriarchate in the Town of Mostyska of Lviv Region, under the leadership of its prior Father Y. Kachmar. The applicant community was represented by Mr M. Tarakhkalo, Ms V. Lebid and Mr K. Koroteev, lawyers practising in Kyiv.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

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

4. The Ukrainian Autocephalous Orthodox Church (“UAOC”) was created by the Ukrainian Orthodox clergy and laity who wished to establish an Orthodox church independent from the Russian Orthodox Church.

5 . In 1991 the applicant community was created under the name of Pokrova (Protecting Veil) of the Mother of God Parish of the Town of Mostyska of the Lviv Eparchy of the UAOC. It was registered by the Lviv Regional Council as a UAOC parish with the above-mentioned name and as a legal entity. The legal entity number assigned to it on registration was 23957456 (“the original community”). Father Y. Kachmar served as its prior.

6 . On 22 November 1991 the municipal authorities allowed “UAOC parishioners” to build a church, and allocated some land for this purpose.

7. In 1992 an attempt was made to unify, at the national level, the UAOC and those elements of the Ukrainian Orthodox Church subject to the Moscow Patriarchate that wished to sever ties with the Patriarch of Moscow and to establish an independent Orthodox Church in Ukraine, under a newly established Kyiv Patriarchate.

8. As part of that attempt, in June 1992 the two groups held a Unification Synod, in the course of which the participants decided that the UAOC and the Ukrainian Orthodox Church of the Moscow Patriarchate would cease to exist and would be merged into a new structure, the Ukrainian Orthodox Church of the Kyiv Patriarchate (“UOC KP”).

9 . In July 1992 the Religious Affairs Council at the Cabinet of Ministers registered amendments to the statute governing the UAOC’s central authority at the time, changing its name to UOC KP. However, in practice no full merger occurred and a number of clerics and laity of the UAOC, in parishes and eparchies, continued to operate independently from the UOC KP.

10 . On 6 March 1994 a meeting of the original community decided by one hundred votes to twenty to stay in the UAOC. Those members of the parish who wished to join UOC KP, led by Father Kachmar, were advised to register a new religious community, and to use the church building on an alternate basis with the UAOC community.

11 . According to the applicant community, on 28 January 1996 the original community held another meeting and decided to change its name, replacing references to the UAOC with references to UOC KP, reflecting its attachment to the UOC KP. According to the material submitted to the authorities for the registration of those changes, 275 individuals had taken part in the assembly that took the relevant decision. However, only the president and secretary of the assembly and ten individuals signed the relevant documents. The UAOC, in subsequent proceedings (see paragraph 20 below), contested the veracity of those documents, apparently submitting proof that parishioners had not been informed of the assembly in question, and alleging that no valid parishioners’ assembly had been held.

12 . On 3 April 1996 the Lviv Regional State Administration (“the Administration”) registered changes to the original community’s statute, indicating its name as that of the applicant community (see paragraph 1 above).

13. In the context of those decisions, a split occurred in the original community, with some faithful of the parish considering themselves attached to the UAOC and others, led by Father Kachmar, to the UOC KP. Both groups considered themselves the sole representatives of the original community.

14 . The two groups created, in addition to the original community (registered in 1991, number 23957456 – see paragraph 5 above) two new legal entities, which were entirely controlled by them:

(i) on 14 November 2006 the Administration registered the Religious Community of UOC KP in the Town of Mostyska. It was assigned a new legal entity number (34736320);

(ii) on 1 March 2007 the Administration registered the Religious Community of UAOC in the Town of Mostyska. It was assigned number 35156771.

15 . In March 2007 the church building (see paragraph 6 above) was commissioned and on 24 May 2007 the municipal authorities also issued an ownership certificate to the church building indicating the original community (renamed as the applicant community at the time) as the owner.

16 . However, between May and July 2006 the UAOC community took possession and effective control of the building and denied access to the applicant community (see the domestic court judgment concerning the eviction relating to those facts in paragraph 25 below).

17 . On 7 June 2007 the Administration registered another round of amendments to the applicant community’s statute, indicating its allegiance to the UOC KP.

18. The UAOC entity (apparently the one registered in 2007, see paragraph 14 above), claiming to represent the original community, brought a claim against the Administration and the applicant community seeking to quash the statute amendment registration decisions of 1996 and 2007 (see paragraphs 12 and 17 above). It argued that those decisions had been made on the basis of documents submitted by individuals not representing the original community (see paragraph 11 above).

19. The applicant community represented by Father Kachmar argued in reply that, on the contrary, the decisions were valid, and that it was the sole valid representative of the original community. As to the substance of the allegations, there had been no requirement to keep fixed community membership records. It had been sufficient for the minutes of the 1996 meeting of the parishioners’ assembly to be signed by the president and secretary of the assembly, and this had in fact been done and had been sufficient for registration.

20 . On 20 November 2007 the Lviv Regional Commercial Court quashed the 1996 and 2007 registration decisions. The court held that, because no list of the participants of the 1996 parishioners’ assembly had been attached to the minutes submitted with the amendments to the statute, it was impossible to ascertain that the amendments had been adopted by a valid parishioners’ assembly. The decision had reassigned the community to a new religious organisation, UOC KP in the absence of a properly documented expression of the will of the community. Since the 2007 registration had been based on the 1996 registration, the former also had to be set aside. On 10 November 2009 the Supreme Court upheld the judgment of the Commercial Court.

21. On 25 January 2009 the UAOC community, acting as the original community, held a “parishioners’ assembly” that decided to restore UAOC in the title and obedience and relieve Father Kachmar of his prior’s duties. The UOAC bishop formally dismissed Father Kachmar from the position of prior.

22 . On 24 January 2010, apparently in response to the court decisions in the first administrative proceedings, another meeting designated as a “parishioners’ assembly” of the original community was held, that voted to amend the community’s statute again to indicate allegiance to the UOC KP. On 8 April 2010 the Administration registered the amendments.

23 . On 28 December 2010 the Lviv Circuit Administrative Court set aside the 2010 registration decision and ordered the registration of the amendments to the statute indicating the community’s name and allegiance as a UAOC parish. The court found it established that Father Kachmar and some parishioners had left the original community and had changed their allegiance to the UOC KP. A new community had thus been created by them and it was that new community, and not the original community, that had held its assembly on 24 January 2010. On 3 October 2012 the High Administrative Court upheld the first-instance court’s judgment. On 6 June 2013 the judgment was executed when the Regional Administration registered the relevant amendments favourable to the UAOC.

24. In the meantime the applicant community had brought proceedings seeking to recover possession of the church building against the UAOC community.

25 . On 20 December 2010 the Commercial Court allowed the claim. It found it established that the applicant community, registered as the original community in 1991 and as renamed on 8 April 2010 (see paragraph 22 above), had built the church and had become its owner. However, in 2006 the defendants had seized the building (see paragraph 16 above). On 15 March 2011 the judgment was upheld by the Lviv Administrative Court of Appeal.

26 . At the time that judgment was in effect, the State Bailiffs attempted to enforce it, but members of the UAOC community put up physical resistance to the bailiffs and blocked access to the building.

27 . On 19 October 2011 the High Commercial Court (“the HCC”) quashed that judgment and remitted the case for re-examination. Following that, on 2 October 2012 the HCC upheld a new judgment of the Commercial Court rejecting the applicant community’s claim with reference essentially to the courts’ findings in the second administrative proceedings (see paragraph 23 above).

28. In the meantime the UAOC entity had challenged the registration of the applicant community as the owner of the church building and had sought a declaration that the UAOC entity was its owner. It argued that Father Kachmar and other faithful favourable to the UOC KP had left the original community but had kept the official seals, the original registration documents of the community, and documents concerning the church building. Thus the part of the original community faithful to the UAOC had lost effective control over the original community. Therefore, those UAOC faithful had been forced to register a new legal entity which they wished to be declared the true owner of the church built by the original community.

29 . On 8 July 2010 the Commercial Court rejected that claim. It held that the original community, had received as a legal entity the relevant documentation for the construction of the church in its name, had built it and had obtained title, whereas the UAOC entity was a new legal entity and not the owner.

30. In 2013 the UAOC entity lodged an application for review of the judgment on the grounds of newly discovered circumstances.

31 . The courts initially granted the application in view of the findings in the second administrative proceedings but eventually, after remittal by the HCC, on 11 March 2015 the Commercial Court refused the application for review and upheld the judgment of 8 July 2010. On 27 January 2016 the HCC upheld that decision. The courts held that the plaintiff community was a new legal entity created after the church building had been built and commissioned. The dispute over the name and allegiance of the community, which had been decided by the administrative courts, had not changed the ownership of the church building determined by the judgment of 8 July 2010.

COMPLAINTS

32. The applicant community complained under Articles 6 and 9 of the Convention and Article 1 of Protocol No. 1 about the domestic courts’ decisions in the second administrative proceedings and eviction proceedings. Under Article 1 of Protocol No. 1 the applicant community also complained about the non-enforcement of the first-instance court judgment in the eviction proceedings.

THE LAW

33. The applicant community complained of a violation of 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.”

(a) The Government

34. The Government submitted that the applicant community had failed to inform the Court of developments in the proceedings concerning the challenge against title registration (see paragraph 31 above) which were ultimately favourable to the applicant community. The applicant community had also attempted to convince the Court that the initial UAOC community had come under the jurisdiction of UOC KP, which had not been the case. This had amounted to an abuse of the right of petition.

35 . The complaint had been lodged outside of the six-month period, which was to be counted from the final decision in the first administrative proceedings, that is 10 November 2009 (see paragraph 20 above).

36. The authorities had never refused the applicant community registration or valid legal entity status; they had simply refused the registration of changes made in the context of conflict and in contradiction with the will of the majority of the parish. Those decisions had been lawful and aimed at the protection of the rights and freedoms of the UAOC community. There had therefore been no interference with the applicant community’s rights under Article 9.

(b) The applicant community

37. There had been no abuse since all the relevant information about the events referred to by the Government had been contained in domestic decisions attached to its application. The eventual developments in the title challenge proceedings could not be considered to constitute the core of the case as they did not change the fact of a violation of the applicant community’s rights. There had been no intention to conceal or mislead.

38. The Supreme Court’s decision of 10 November 2009 had not been the starting point for the six-month period since that decision had been issued in proceedings initiated by the UAOC community and not by the applicant community. Rather, the High Administrative Сourt’s decision of 3 October 2012 in the second registration proceedings (see paragraph 23 above) was the final domestic decision.

39 . By quashing the registration of the amendments to its statute, the domestic courts had interfered with its right, protected under Article 9 of the Convention, to change confessional affiliation. The interference had pursued no legitimate aim. It had been contrary to the principle of legal certainty. The will to change denominations had been expressed by the community in 1996. The change of the community’s name and denominational attachment had been registered in 1996 and no objections had been raised in that regard until 2007. The UAOC community had brought its claim to overturn the registration eleven years later. The domestic courts had failed to assess the facts of the case: the Commercial Court, which was the first court to quash the 1996 registration, on 20 November 2007, merely relied on the minutes of the meeting in 1994, preferring them to those of the 1996 meeting without any valid grounds and upsetting the principle of legal certainty.

40. The Court notes the Government’s argument concerning the alleged abuse of the right of individual application but it does not consider it necessary to address it since the applicant community’s complaints are in any case inadmissible for the reasons set out below.

41. The Court observes that the crux of the case is the dispute between two religious communities, UOC KP and UAOC, over which of them represents the original community.

42. The Court reiterates that Article 9 does not guarantee any right to dissent within a religious body. In the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through the freedom to leave the community (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 137, ECHR 2013 (extracts)).

43 . The key question before the domestic courts was therefore which of the competing groups within the original community exercised their right to dissent by leaving the community and forming a new one. That issue, on the resolution of which all related civil-law matters depended, was, in essence, resolved in the first set of administrative proceedings which ended in the Supreme Court’s decision in 2009 (see paragraph 20 above). Subsequent decisions concerned merely the drawing of civil-law consequences from those findings (see Griechische Kirchengemeinde München Und Bayern e.V. v. Germany (dec.), no. 52336/99, 18 September 2007).

44. The Government’s argument that the six-month period started to run from that 2009 decision does not therefore appear unreasonable. The applicant community’s own submissions tend to support it: they submitted, as their key point (see paragraph 39 above), that their status as the community which was identical to the original community had been changed in the first administrative proceedings, contrary to the principle of legal certainty.

45 . The Court’s general approach has been to consider the six-month period as running from the decision setting aside a decision in breach of the principle of legal certainty and not from any subsequent proceedings which follow from such an alleged breach (see, mutatis mutandis , Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003; Sardin v. Russia (dec.), no. 69582/01, ECHR 2004 II; and Mrevli Foundation v. Georgia (dec.), no. 25491/04, 5 May 2009).

46. In any event, even if the Court were to assume that the starting point for the six-month period was the final decision in the second administrative proceedings because it was in those proceedings that the courts explicitly found that the applicant community represented a splinter group from the original community (see paragraph 23 above), this complaint is ill-founded for the following reasons.

47. In the present case there is no indication that the authorities of the respondent State imposed a certain religious affiliation on the applicant community or on its members over their wishes and beliefs (contrast, for example, Ä°zzettin DoÄŸan and Others v. Turkey [GC], no. 62649/10, § 121, 26 April 2016). The authorities did not attempt to promote one interpretation of religion to the detriment of others or to impose unity on a divided community (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000 ‑ XI,no. 45701/99, § 117, ECHR 2001 ‑ XII). The domestic decisions are entirely devoid of any examination of the matters of religious doctrine.

48. The applicant community faced no difficulties in obtaining an authorisation to practise its religion or in obtaining the status of a legal entity (contrast Metropolitan Church of Bessarabia and Others v. Moldova , no. 45701/99, §§ 105-17, ECHR 2001 ‑ XII). Quite to the contrary, as the multiplicity of registered religious entities described above illustrates (see paragraphs 5 and 14 above), the authorities were quite accommodating in granting such authorisations to diverse splintering groups.

49. There is no evidence that the authorities attempted improperly to regulate the membership of the applicant community in contradiction to the rules of its internal organisation as defined in the statutes (contrast Svyato ‑ Mykhaylivska Parafiya v. Ukraine , no. 77703/01, §§ 146 and 150, 14 June 2007). Finally, there is no indication that the authorities failed in their obligation to ensure mutual tolerance between opposing groups or went beyond it (contrast Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria , nos. 412/03 and 35677/04, § 148, 22 January 2009).

50. The only matter that needs to be addressed is whether the authorities interfered in the internal affairs of a community torn between two hierarchies and helped one of the parties to the dispute to obtain exclusive representation or whether they merely instituted neutral measures ensuring legal certainty and foreseeable procedures for the settling of disputes between competing groups (ibid., §§ 135-39) and whether their decisions in that process were based on an acceptable assessment of the relevant facts (see Svyato-Mykhaylivska Parafiya , cited above, § 138).

51. In the present case, the applicant community benefited from extensive opportunities to present its case before domestic courts at three levels of jurisdiction in multiple proceedings. While the applicant community disagreed with the outcome of those proceedings, there is no indication that there were any restrictions on its opportunity to participate in them effectively, and make submissions.

52. Having concluded, in substance, in the first set of administrative proceedings, that the original community had rejected subordination to the UOC KP and had remained associated with the UAOC, the domestic courts consistently followed those conclusions in all subsequent proceedings. As stated above, the applicant community essentially criticised those conclusions reached in the first set of proceedings on the grounds that they were contrary to the principle of legal certainty.

53. However, the principle of legal certainty, assuming it is applicable in the circumstances, is not absolute (see Sutyazhnik v. Russia , no. 8269/02, § 35, 23 July 2009, with further references) and the specificities of its application depend on the circumstances of a given case.

54 . The applicant community failed to point to any facts or evidence which would permit the Court to question the domestic courts’ findings to the effect that the original community had in 1994 refused ecclesiastical allegiance to the UOC KP and that the 1996 registration of the original community as a UOC KP community had been made in the absence of a valid expression of will of the original community and on application from individuals unauthorised by the original community, in particular Father Kachmar.

55. In this context the Court reiterates that it is not its task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them (see, for example, Klaas v. Germany , 22 September 1993, § 29, Series A no. 269). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (ibid., § 30).

56. The applicant community failed to present such cogent elements or to make an arguable case that the domestic courts’ decisions were not based on an acceptable assessment of the relevant facts or were arbitrary or manifestly unreasonable in their interpretation and application of the relevant domestic law.

57 . Accordingly, this part of the application is manifestly ill ‑ founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

58. In its application form the applicant community complained about the refusal of the domestic courts to allow its eviction claim (see paragraph 25 above). In its observations submitted in reply to those of the Government submitted on 15 March 2021, it also complained about the authorities’ failure to enforce the first-instance eviction judgment of 20 December 2010 while it remained in effect (see paragraph 26 above). The applicant community relied on Article 1 of Protocol No. 1, 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.”

59. The Government submitted that there had been no interference with the applicant community’s rights under Article 1 of Protocol No. 1 as the matter involved a dispute between private parties where the domestic courts’ role was merely to determine their rights and obligations. They also submitted that the applicant community’s property rights had eventually been recognised in the title challenge proceedings brought by the UAOC community (see paragraph 31 above), but the applicant community had failed to initiate eviction proceedings or to ask for the law-enforcement authorities’ help in removing obstacles to its access to the church building.

60. The applicant community submitted that the State had failed to comply with its positive obligations. It was not disputed that the applicant community was the lawful owner of the church building. The authorities had failed to enforce the first-instance eviction judgment while it had been in effect (see paragraph 25 above). The building had been de facto in the possession of the UAOC community and the applicant community had not been able to use it or exercise any ownership rights. The unfavourable resolution of the eviction proceedings had constituted the key interference with their rights. It had not been in accordance with the law, as the courts had failed to give any reasons for why they refused to protect the rights of the owner, and had pursued no legitimate aim, the courts having simply referred to the previous court decisions in the administrative proceedings, and not been necessary.

(a) Non-enforcement of the first-instance eviction judgment

61. The Court reiterates that it is the facts alleged by applicants and not the legal characterisation of the facts proposed by them that are key to the application of the six-month rule (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 115 and 120, 20 March 2018). The mere fact that an applicant relied on a Convention provision in an application is not sufficient to constitute the introduction of all subsequent complaints under that provision where no indication has initially been given of the factual basis of the complaint (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 103, 6 November 2018).

62. The applicant community did not provide the Court with any information concerning the non-enforcement of the first-instance eviction judgment in its application forms and only raised this matter in its observations submitted on 15 March 2021 in reply to those of the Government.

63. It follows that this complaint was lodged outside of the six-month time-limit and must therefore be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

(b) Outcome of the eviction proceedings

64. As to the complaint concerning the ultimate rejection of the applicant community’s eviction claim, the Court reiterates that the mere fact that the State, through its judicial system, provided a forum for the determination of a private-law dispute does not give rise to an interference by the State with property rights under Article 1 of Protocol No. 1. The State may be held responsible for losses caused by such determinations if court decisions are not given in accordance with domestic law or if they are flawed by arbitrariness or manifest unreasonableness. However, the Court’s jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and it is not its function to take the place of the national courts. Rather, its role is to ensure that the decisions of those courts are not arbitrary or otherwise manifestly unreasonable (see, for example, Zagrebačka banka d.d. v. Croatia , no. 39544/05, § 250, 12 December 2013, with further references).

65. The domestic courts’ decisions in the eviction proceedings relied on their findings in the administrative proceedings (see paragraph 27 above). In view of the Court’s conclusions under Article 9 of the Convention (see paragraphs 54 to 57 above), the courts’ decisions in the eviction proceedings cannot be considered arbitrary or manifestly unreasonable.

66. This conclusion is not disturbed by the fact that in the title challenge proceedings the domestic courts eventually ruled against the UAOC community (see paragraphs 29 and 31 above). This is because in those proceedings they held, in essence, that the original community, as a unique legal entity created in 1991, had been duly registered in 2007 as the owner of the church building and remained its owner regardless of the dispute, resolved in the administrative proceedings, over the name and ecclesiastical attachment of the original community (but not its identity as a legal entity and the registered owner).

67. Accordingly, this part of the application is manifestly ill founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

68. Lastly, the applicant community complained, under Article 6 of the Convention, about the outcome of the second administrative proceedings and eviction proceedings.

69. These complaints raise no separate issue from the complaints under Article 9 and Article 1 of Protocol No. 1 examined above. For the reasons set out above in respect of those complaints, these complaints are equally manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 4 November 2021.

Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President