Information Note on the Court’s case-law 201

November 2016

Lupeni Greek Catholic Parish and Others v. Romania [GC] - 76943/11

Judgment 29.11.2016 [GC]

Article 6

Civil proceedings

Article 6-1

Access to court

Decision regarding restitution of places of worship based on “wishes of the adherents of the communities which owned the properties”: no violation

Fair hearing

Profound and lasting divergences in the case-law of a superior court and failure to use mechanism designed to avoid case-law conflict: violation

Facts – In 1948 the applicants, entities belonging to the Eastern-Rite Catholic (Greek Catholic or Uniate) Church, were dissolved on the basis of Legislative De cree no. 358/1948. By virtue of the decree, all property belonging to that denomination was transferred to the State, except for parish property, which was transferred to the Orthodox Church in accordance with Decree no. 177/1948, which provided that if th e majority of a church’s adherents became members of a different church, property belonging to the former would be transferred to the ownership of the latter. In 1967 the church building and adjacent churchyard that had belonged to the applicant parish wer e entered in the land register as having been transferred to the Romanian Orthodox Church.

After the fall of the communist regime in December 1989, Legislative Decree no. 358/1948 was repealed by Legislative Decree no. 9/1989. The Uniate Church was offici ally recognised in Legislative Decree no. 126/1990 on certain measures concerning the Romanian Church United with Rome (Greek Catholic Church). Article 3 of that decree provided that the legal status of property that had belonged to Greek Catholic parishes was to be determined by joint committees made up of representatives of both Greek Catholic and Orthodox clergy. In reaching their decisions, the committees were to take into account “the wishes of the worshippers in the communities in possession of these properties”.

Article 3 of Legislative Decree no. 126/1990 was supplemented by Government Ordinance no. 64/2004 of 13 August 2004 and Law no. 182/2005. The decree, as amended, specified that in the event of disagreement between the members of the clergy representing the two denominations on the joint committee, the party with an interest entitling it to bring judicial proceedings could do so under ordinary law.

The applicant parish was legally re-established on 12 August 1996. The applicants took steps to have the church building and adjoining courtyard returned to them. Meetings of the joint committee failed to resolve the matter. The applicants therefore instituted judicial proceedings under ordinary law, but without success. The courts based their decision on the speci al criterion of “the wishes of the worshippers in the communities in possession of these properties”.

By a judgment of 19 May 2015 (see Information Note 185 ), a Chamber of the Court concluded, unani mously, that there had been no violation of Article 6 § 1 and of Article 14 taken together with Article 6 § 1.

On 19 October 2015 the case was referred to the Grand Chamber at the applicants’ request.

Law – Article 6 § 1: The action brought by the applicants concerned a civil right and was intended to establish, through the courts, a right of ownership, even if the subject matter of the dispute was a place of worship. It followed that Article 6 § 1 of the Convention was applicable in the present case.

(a) Right of access to a court – The applicants had not been prevented from bringing their action for restitution of the church building before the domestic courts, which had carried out a detailed examinatio n of their case.

The domestic courts, which were independent and impartial, had a discretionary power of assessment in exercising their jurisdictional competence, and their role was not limited to endorsing a pre-determined outcome.

Thus, what was at stak e in the present case was not a procedural obstacle hindering the applicants’ access to the courts, but a substantive provision which, while it was such as to have an impact on the outcome of the proceedings, did not prevent the courts from examining the m erits of the dispute. In reality, the applicants complained about the difficulty in satisfying the conditions imposed by substantive law in order to obtain restitution of the place of worship in question.

Yet the distinction between procedural and substan tive elements remained determinative of the applicability and, as appropriate, the scope of the guarantees of Article 6 of the Convention, which could, in principle, have no application to substantive limitations on a right existing under domestic law.

The criterion of the worshippers’ wishes in issue in the present case could not be considered as limiting in any way the courts’ jurisdiction to decide actions for recovery of possession in respect of places of worship, but as qualifying a substantive right. The domestic courts in the present case had had full jurisdiction to apply and interpret the national law, without being bound by the refusal of the Orthodox parish to reach a friendly settlement in the context of the procedure before the joint committee.

The criterion in dispute had given rise to heated debates when it was adopted by Parliament and when the amendments made to Legislative Decree no. 126/1990 by Law no. 182/2005 were adopted. Equally, both of the Churches concerned had been consulted as part of the legislative process that resulted in adoption of the criterion in dispute. The Constitutional Court’s case-law had been consistent with regard to the compatibility of this criterion with the Constitution, both in its application by the joint commit tees and when applied in the context of judicial proceedings based on the provisions of ordinary law.

In the Sâmbata Bihor Greek Catholic Parish v. Romania judgment (48107/99, 12 January 2010, Inform ation Note 126 ), the Court had found a restriction on the right of access to a court after examining the legislative framework which existed prior to the amendments made to the text of Article 3 of Legislative Decree no. 126/1990 by Ordinance no. 64/2004 a nd Law no. 182/2005, and thus before the possibility, clearly provided for by these amendments, of bringing legal proceedings based on the provisions of ordinary law had become available.

Having regard to the considerations set out above, the applicants h ad not been deprived of the right to a determination of the merits of their claims concerning their property right over a place of worship. The difficulties encountered by the applicants in their attempts to secure the return of the contested church buildi ng had resulted from the applicable substantive law and were unrelated to any limitation on the right of access to a court.

Conclusion : no violation (twelve votes to five).

(b) Compliance with the principle of legal certainty – The conflicting interpretat ion of the concept of “ordinary law” had existed within the High Court itself, called upon to settle these disputes at last instance. It had been reflected in the decisions taken by the lower courts, which had also delivered contradictory judgments.

From 2 012 onwards the High Court and the Constitutional Court had aligned their respective positions in procedures concerning the restitution of places of worship, which had resulted, in practice, in harmonisation of the case-law of the lower courts.

Nonetheless , from 2007 to 2012 the High Court had delivered judgments that were diametrically opposed. These fluctuations in judicial interpretation could not be regarded as evolving case-law which is an inherent trait of any judicial system, given that the High Cour t had reversed its position.

Lastly, the legal uncertainty had concerned, successively, the questions of access to a court and the applicable substantive law.

It followed that in the present case “profound and long-standing differences” had existed in the case-law, within the meaning of the Grand Chamber judgment in the case of Nejdet Şahin and Perihan Şahin v. Turkey ([GC], 13279/05, 20 October 2011, Information Note 145 ).

The context in which the act ion brought by the applicants had been examined, namely one of uncertainty in the case-law, coupled with the failure to make prompt use of the mechanism foreseen under domestic law for ensuring consistent practice even within the highest court in the count ry, had undermined the principle of legal certainty and, in so doing, had had the effect of depriving the applicants of a fair hearing.

Conclusion : violation (unanimously).

The Court also held, by twelve votes to five, that there had been no violation of A rticle 14 taken together with Article 6 § 1, given that there had been no difference in treatment between the applicants and the defendant in respect of the possibility of applying to the courts and obtaining a judicial decision on the action to recover po ssession of the place of worship; and, unanimously, that there had been a violation of Article 6 § 1, on the ground that the applicants’ case had not been heard within a reasonable time.

Article 41: EUR 4,700 to the applicants jointly in respect of non-pec uniary damage.

(See also Beian v. Romania , 30658/05, 6 December 2007, Information Note 103 ; Albu and Others v. Romania , 34796/09, 10 May 2012, Information note 152 ; and Ferreira Santos Pardal v. Portugal , 30123/10 , 30 July 2015)

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