Interim Resolution ResDH(2006)12

concerning the judgment of the European Court of Human Rights

of 13 December 2001 (final on 27 March 2002)

in the case of Metropolitan Church of Bessarabia and others against Moldova

(Adopted by the Committee of Ministers on 28 March 2006,

at the 960th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the case of the Metropolitan Church of Bessarabia and others delivered on 13 December 2001 and transmitted to the Committee of Ministers once it had become final under Article 44 of the Convention;

Recalling that the judgment of the Court became final on 27 March 2002 since, at this date, the Grand Chamber rejected the request to refer the case to it;

Recalling that the case originated in an application (No. 45701/99) against Moldova, lodged with the European Commission of Human Rights on 3 June 1998 under former Article 25 of the Convention by the Metropolitan Church of Bessarabia (Mitropolia Basarabiei şi Exarhatul Plaiurilor) and twelve other applicants, all Moldovan nationals, and that the Court, following the entry into force of Protocol No. 11, declared admissible the complaints relating in particular to the authorities’ refusal to recognise the Metropolitan Church of Bessarabia in violation of its members’ freedom of religion, a refusal which also resulted in the Church’s being prevented from obtaining legal personality and consequently from having recourse to the courts for the protection of its legitimate interests;

Whereas in its judgment of 13 December 2001 the Court unanimously held inter alia:

- that there had been violations of the right to freedom of religion of both the applicant church and its members (Article 9) and of their right to an effective domestic remedy in respect of their claims (Article 13);

- that the government of the respondent state was to pay the applicants, within three months from the date at which the judgment became final, 20,000 euros in respect of non-pecuniary damage to be converted into Moldovan lei at the rate applicable at the date of settlement, and 7,025 euros in respect of costs and expenses and that simple interest at an annual rate of 4.26% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 13 December 2001, having regard to Moldova’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Recalling the obligation of every state under Article 46, paragraph 1, of the Convention rapidly to abide by the judgments of the Court, which includes the adoption of measures to put an end to the violation as far as possible (restitutio in integrum) and to prevent new violations of the Convention similar to those found by the Court;

Having satisfied itself that on 2 July 2002 the government of the respondent state had paid the applicants the sums provided for in the judgment of 13 December 2001 including the default interest due;

Having noted with satisfaction that the executive authorities rapidly re-examined the applicants’ request and on 30 July 2002, in response to the European Court’s judgment, decided to recognise and register the applicant Church, thus lifting the obstacles to the exercise of the applicants’ right to freedom of religion criticised by the Court and ensuring that it is able to protect its interests (see information provided in Appendix);

Deploring however the fact that, 4 years after the judgment, the Moldovan authorities have still not adopted satisfactory general measures, in particular adequate legislation, to comply with the requirements of the Convention as laid down in the judgment;

Recalling in particular that the Court expressly noted in its judgment that the 1992 Religious Denominations Act, in force at the relevant time, provided neither a specific procedure for recognition of religious denominations nor adequate remedies in the event of a dispute;

Recalling furthermore that the Moldovan authorities accordingly agreed from the outset with the views expressed in the Committee that legislative reform was necessary so as to guarantee to all confessions the proper respect of their rights and thus to prevent new, similar violations of the Convention in the future;

Regretting nevertheless that the amendments to the Religious Denominations Act adopted in 2002 as a first response to the Court’s judgment did not adequately remedy these problems, as the new provisions still allow the executive wide discretion in granting, suspending or withdrawing registration of religious denominations and do not adequately reflect the requirement of proportionality of possible restrictions;

Noting with concern that despite the enhanced assistance and expertise provided by the Council of Europe to the Moldovan authorities to ensure that the new legislation met the standards of the Convention, five successive draft Bills have not achieved that objective;

Noting in this context that that a sixth draft is presently pending before Parliament and that this draft, despite a number of important improvements, still does not appear to define with sufficient clarity, notably:

- the right of recognition, including legal personality, of all religious communities, including those with less than 100 members,

- the right to an effective remedy, notably in case of disputes regarding the recognition of religious communities,

- the conditions of exercise of the Minister of Justice’s power to request the courts to prohibit the activities of certain religious communities;

Underlining furthermore the need to ensure, both in legislation and in practice, an effective judicial supervision of the decisions concerning the registration of religious denominations, which imply, as an essential element, the obligation of the state authorities to comply promptly with court decisions delivered in this respect;

Stressing, in view of the time required for the adoption of general measures in this case, the need for prompt execution of European Court judgments which reveal an underlying systemic problem, as highlighted in the Committee’s Declaration of 12 May 2004 “Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels” and the Recommendations to member states to which it refers,

URGES the Moldovan authorities rapidly to enact the necessary legislation and to adopt the necessary implementing measures so as to comply with the Convention’s requirements as set out in the present judgment without further delay;

ENCOURAGES in addition the authorities to take account of the conclusions and recommendations provided by the Council of Europe experts, with a view to concluding the ongoing reform in a satisfactory manner;

DECIDES to resume consideration of this case once the legislation required has been adopted or at the latest before the end of 2006.

Appendix to Resolution ResDH(2006)12

Information provided by the Government of Moldova

during the examination of the case of Metropolitan Church of Bessarabia

and others by the Committee of Ministers

Individual Measures

Following the judgment of the European Court, the Moldovan authorities recognised and registered the applicant church on 30/07/2002 in accordance with the Moldovan Law on Religious Denominations, as amended on 12 July 2002. The Church has thus acquired legal personality, opening the possibility, among others, for it to claim title to property.

Following this recognition, 86 parishes, 9 monasteries, 2 social missions with at least 73 sub-divisions, one theological seminary, a monks’ seminary and a school of ecclesiastical art have been registered. The applicant church also disposes of more than 120 rectories with at least 160 priests.

With regard to the applicant Church’s claims made in 2004 that it had encountered obstacles in registering its parishes with the competent authority (State Service for Religious Affairs) mainly because these parishes had the same names as parishes of another religious denomination and due to the alleged refusal of certain local authorities to issue the parishes with the formal certificates required for their registration, the Moldovan authorities state that appropriate measures may be taken in such instances to solve the problem, provided that the parishes concerned bring the matter to the attention of the competent authority.

General Measures

The Moldovan legislation on religious denominations was amended by Law No. 1220-XV which entered into force on 12 July 2002.

Nevertheless, the Moldovan authorities acknowledged that these legal provisions do not adequately reflect the requirement of proportionality and lack clarity as regards the registration procedure to be followed by religious denominations. Thus they have prepared several successive draft laws amending the Law on Religious Denominations and submitted them to the Council of Europe for an assessment of their compatibility with the Convention. A new version of the draft, prepared on the basis of a Council of Europe expert opinion, was adopted by the Moldovan Parliament at the first reading in December 2005. Its compatibility with the Convention’s requirements in all respects continues to be closely examined, not least in co-operation with the Committee of Ministers and Council of Europe experts. Once this examination is concluded, the law will proceed to a second reading.

The original version of the judgment of the European Court and its official translation into Moldovan were published on 9 July 2002 in the Official Journal of Moldova.

In July 2002, the government also amended Article 325 of the Code of Civil Proceedings so as to allow the reopening of domestic civil proceedings following violations of the Convention found by the European Court.