SECOND SECTION

DECISION

Application no. 841/13 ROMAN CATHOLIC DIOCESE OF CHIÅžINÄ‚U against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 9 November 2021 as a Committee composed of:

Carlo Ranzoni, President, Valeriu Griţco, Marko Bošnjak, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 20 December 2012,

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

The applicant, the Roman Catholic Diocese of Chişinău is a church having canonical jurisdiction in the territory of the Republic of Moldova. It was represented before the Court by Mr A. Chiriac, a lawyer practising in Chișinău.

The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.

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

On 21 December 2009 the applicant church wrote to the Prime Minister requesting the return of properties nationalised from it by the Soviet regime after the occupation of Moldova in the 1940s.

In a letter of 22 January 2010 the Government replied to the applicant that there was no basis for the return of those properties under the law in force.

On 30 June 2010 the applicant church filed an action with the Buiucani District Court claiming the recognition of its right to property over a list of immovables which had allegedly belonged to it before the Soviet occupation. It relied on the general provision of the Constitution guaranteeing the respect for the right of property as well as general provisions of the Civil Code which stated that the right to property was a continuous right.

On 29 November 2010 the applicant church obtained information from the Government that back in 2002 the Orthodox Church of Moldova was bestowed with the right to property over several immovables which used to belong to it before the Soviet occupation, by virtue of the Government Decision No. 740 (see below).

In a judgment of 2 December 2011 the Buiucani District Court dismissed the applicant’s action after finding, inter alia , that there was no legal basis for the applicant’s claim under domestic law. In particular, it found that the legislation in force only provided for the return of confiscated and nationalised properties by the Soviet regime to individuals subjected to political repressions but no such right was granted to moral entities. Moreover, even in respect of individuals the law did not provide for the return of land, but only of buildings. The court also found that, in any event, the documents relied upon by the applicant church to prove its past right of ownership over the disputed property were simple copies of archive documents and could not be accepted as evidence in court proceedings.

The applicant church appealed against this judgment arguing, inter alia, that it had been discriminated against because the Orthodox Church had received ownership titles over some of its past properties.

On 5 April 2012 the Chișinău Court of Appeal dismissed the applicant’s appeal, relying on the same grounds as the first-instance court. The Court of Appeal did not give any answer to the applicant’s argument about discrimination. The applicant church lodged an appeal on points of law against the judgment and argued that in the absence of legal basis allowing the return of properties to moral entities, the courts should apply the existing law by analogy. It also argued that it had been discriminated against compared to the Orthodox Church which had recovered some of its past properties.

On 9 August 2012 the Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the lower courts’ judgments.

According to the Government decision no. 740 of 11 June 2002, all religious cults could claim the recognition of the right of ownership over places of prayer. For that purpose, they had to apply to the local authorities in cities, towns and villages. The local authorities had thirty days to create special commissions called to examine such requests and to determine the rights of the religious cults over places of prayer and of the land around them. On the basis of the decisions taken by the special commissions, the right of ownership by religious cults was to be registered by the Cadastre.

COMPLAINTS

The applicant church claimed that it had been subjected to discriminatory treatment on the basis of religion and argued that there had been a breach of Article 14, taken in conjunction with Article 1 of Protocol No. 1 to the Convention and Article 6 § 1 of the Convention. It complained under Article 6 § 1 of the Convention that the domestic courts had not given an answer to its argument concerning the alleged discriminatory treatment and claimed that it had no effective remedies, as required by Article 13 of the Convention, in respect of the alleged breach of its rights guaranteed by Article 6 § 1 of the Convention.

THE LAW

The applicant church argued that it had been subjected to discriminatory treatment on the grounds of religion, particularly as compared to the Orthodox Church because the latter had recovered its properties confiscated by the Soviet regime. It also argued that the domestic courts had failed to give an answer to its complaint about discrimination and that it had not had an effective remedy under domestic law against the above breach. The relevant parts of the Convention read as follows:

Article 14 (prohibition of discrimination)

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 6 (right to a fair hearing)

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13 (right to an effective remedy)

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1 (protection of property)

“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.”

The Government argued that the legal status of the properties claimed by the applicant church and those claimed by the Orthodox Church were not analogous, within the meaning of Article 14, because the Orthodox Church had made use of the procedure provided for by the Government Decision no. 740 while the former had not done so. The Government argued that nobody hindered the applicant church from applying to the local authorities in accordance with the procedure provided for by the Government Decision no. 740.

The applicant church did not comment on the above argument adduced by the Government.

The Court recalls that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Burden v. the United Kingdom , no. 13378/05, 29 April 2008, § 60).

Turning to the applicant’s complaint in the present case, the Court notes the Government’s submission to the effect that the Orthodox Church of Moldova received ownership of some immovable properties by complying with the procedure provided for by the Government Decision no. 740 and that the applicant church did not follow the same procedure. The applicant church did not dispute the above submission. In such circumstances, the Court cannot but conclude that the two churches are not in analogous or relevantly similar situations. Thus, the applicant church’s complaint about discriminatory treatment compared to the Orthodox Church is manifestly ill ‑ founded.

The Court further recalls that Article 6 requires the domestic courts to adequately state the reasons on which their decisions are based. Without requiring a detailed answer to every argument put forward by a complainant, this obligation nevertheless presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see, among many other authorities, Ruiz Torija v. Spain , 9 December 1994, §§ 29-30, Series A no. 303-A).

In this connection, the Court considers that the applicant’s argument about discrimination could not be considered decisive for the outcome of the proceedings. In reaching this conclusion, the Court refers to its above conclusion in respect of the complaint under Article 14. Therefore, the domestic courts’ failure to give an answer to this argument does not raise an issue of unfairness within the meaning of Article 6 § 1 of the Convention.

The Court further reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Balan v. Moldova , 44746/08, (dec.), 24 January 2012).

In this context, the Court notes that the applicant church failed to follow the procedure instituted by Government Decision no. 740. Therefore, it did not exhaust domestic remedies available to it in respect of its complaint under Article 1 of Protocol No. 1.

Finally, in so far as the applicant’s complaint under Article 13 is concerned, the Court reiterates that a complaint may only be made under Article 13 of the Convention in connection with a substantive claim which is “arguable” ( KudÅ‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI). The Court has found that the applicant’s complaint under Article 6 of the Convention is manifestly ill-founded. Its claim under Article 13 cannot therefore be said to be “arguable” within the meaning of the Convention case-law.

In the light of the above conclusions, the Court considers it necessary to reject the application as being manifestly ill-founded and for failure to exhaust domestic remedies under Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 December 2021.

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Hasan Bakırcı Carlo Ranzoni Deputy Registrar President