Communicated on 6 April 2020 Published on 2 June 2020

FIFTH SECTION

Applications nos. 24941/13 and 32493/13 RELIGIOUS COMMUNITY OF UKRAINIAN ORTHODOX CHURCH KYIV PATRIARCHATE IN MOSTYSKA against Ukraine lodged on 2 April 2013

STATEMENT OF FACTS

The applicant is the Religious Community of the Ukrainian Orthodox Church of the Kyiv Patriarchate in the Town of Mostyska , a religious group operating in Mostyska in Lviv Region. It is represented by its prior Father Y. Kachmar .

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

The Ukrainian Autocephalous Orthodox Church (“UAOC”) was created by the Ukrainian Orthodox clergy and laity who wished to establish an Orthodox Church in Ukraine independent from the Russian Orthodox Church and the Moscow Patriarch. After having existed in the 1920s and then having been suppressed by the Soviet government, the UAOC restored its activities in Ukraine in the late 1980s.

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 ( Парафія м. Мостиська церкви Покрова Пресвятої Богородиці благочиння Мостиська Львівської єпархії Української Автокефальної Православної Церкви ).

Its original statute was approved by a UAOC bishop on 12 August 1991. It was registered by the Lviv Regional Council on 17 September 1991 as a UAOC parish and a legal entity. It appears that the legal entity number assigned to it on registration was 23957456.

In 1992 an attempt was made to unify 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 autocephalous (independent) Orthodox Church in Ukraine, under a newly established Kyiv Patriarchate.

As part of that attempt, on 25 and 26 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”).

On 29 July 1992 the Council for Religions at the Cabinet of Ministers of Ukraine registered amendments to the statute of the Patriarchal Chancellery of the UAOC (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 eparc hies, continued to operate as a Church organisation independent from the UOC KP. In subsequent proceedings (see below), on 20 November 2007 the Lviv Regional Commercial Court found established that the decisions of the 1992 Unification Synod had had no legal value as the question of merger could have only been decided by a valid UAOC Synod decision which had never been taken. Therefore, for the court, in law as well as in fact no merger had occurred. The court considered that the Council for Religions ’ decision of 29 July 1992 to register amendments to the UAOC statute had been without effect as it had constituted an unconstitutional intrusion into the autonomy of religious organisations.

To complicate matters further, on 22 October 1992 a UOC KP Synod decided that those parishes that used to belong to the UAOC but joined UOC KP would be allowed, if they so wished, to continue to use in their names the words UAOC. This appears to have contributed to the subsequent confusion over the identity and allegiance of the applicant community (see below).

It appears that in 1996 the applicant community split. Much of subsequent litigation turned on the interpretation of the relevant 1996 events.

In that year, some of the parishioners and the prior, Father Y. Kachmar , joined the UOC KP while others decided to remain within the UAOC distinct from UOC KP.

From that point on both Father Kachmar , who submitted the present application on behalf of the applicant community, and an UAOC entity represented by an UAOC-nominated priest claimed to represent the same religious community, the original community registered on 17 September 1991 (hereinafter “the original 1991 community”).

According to the submissions in the application form, on 28 January 1996 the original 1991 community decided to change its name, replacing references to the UAOC with references to UOC KP and 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 parishioners ’ 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, contested the veracity of those documents, apparently submitting proof that parishioners had not been informed of the relevant assembly and alleging that no valid parishioners ’ assembly had been held on 28 January 1996.

On 3 April 1996 the Lviv Regional State Administration (“the Regional Administration”) registered changes to the community ’ s statute indicating its name and allegiance as a UOC KP parish.

For unclear reasons, despite the split in the community the conflict apparently remained dormant from 1996 to 2007.

According to the applicant community, in 2007 the UAOC faithful seized the building of the Church of Pokrova located at 3 Shevchenko Street in Mostyska which had previously been used by the applicant community.

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

The UAOC entity (apparently the one registered on 1 March 2007, see “4. Other relevant information” below), claiming to represent the original 1991 community, brought a claim seeking to quash the registration decisions of 3 April 1996 and 7 June 2007. It argued that those decisions had been made based on the documents submitted by individuals not representing the original 1991 community.

The community represented by Father Kachmar replied that, on the contrary, the decisions were valid and that it was the sole valid representative of the original 1991 community. As to the substance of 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.

On 20 November 2007 the Lviv Regional Commercial Court quashed the registration decisions of 3 April 1996 and 7 June 2007. The court held that, because no list of 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 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 9 September 2008 the Lviv Administrative Court of Appeal and on 10 November 2009 the Supreme Court upheld the first instance-court ’ s judgement.

On 24 January 2010, apparently in response to the court decisions holding the previous amendments registered on 7 June 2007 invalid, another parishioners ’ assembly was held that voted to amend the community ’ s statute again to indicate allegiance to the UOC KP.

On 8 April 2010 the Regional Administration registered the amendments adopted on 24 January.

On 28 December 2010 the Lviv Circuit Administrative Court set aside the Regional Administration ’ s decision of 8 April 2010 registering the amendments to the community ’ s statute as a UOC KP parish and ordered registration of amendments to the statute indicating the community ’ s name and allegiance as a UAOC parish. The court found it established that Father Kachmar with some parishioners had left the religious community of the UAOC and changed his allegiance to the UOC KP. A new community had thus been created by them and it was that new community, and not the initial UAOC community, that had held its assembly on 24 January 2010.

On 8 December 2011 and on 3 October 2012 the Lviv Administrative Court of Appeal and the High Administrative Court respectively upheld the first-instance court ’ s judgment.

On 6 June 2013 the judgment became final and was enforced when the Regional Administration registered the relevant amendments.

In the meantime, on 26 April 2012 the Regional Administration registered yet another set of amendments to the community ’ s statute indicating its name and affiliation as a UOC KP parish. It appears that the registration of new amendments on 6 June 2013, in compliance with court decisions, overrode the amendments registered on 26 April 2012.

The applicant community and the UAOC entity in Mostyska also disputed the ownership and control of a church building erected after 1996 at 2 Mickiewicz Street in Mostyska .

It appears that the church building was initially registered in the name of the applicant community but then was occupied by the UAOC entity. The applicant community brought proceedings seeking to recover possession of the building.

On 5 April 2012 the Lviv Regional Commercial Court rejected the applicant community ’ s claim. On 9 July 2012 the Lviv Commercial Court of Appeal and on 2 October 2012 the High Commercial Court upheld that judgment. The courts referred essentially to the findings of the Lviv Circuit Administrative Court in its judgment of 28 December 2010 which set aside the decision to register the amendments to the community ’ s statute indicating it allegiance as a UOC KP parish (see above).

It appears that, in addition to the original religious community registered on 17 September 1991 under the number 23957456, t he Regional Administration registered two new legal entities associated with the rival churches in the town of Mostyska :

(i) on 14 November 2006 it registered Religious Community of UOC KP of the Parish of Pokrova of the Holy Mother of God in the Town of Mostyska of Lviv Region ( Релігійна громада Української Православної Церкви Київського Патріархату парафії Покрова Пресвятої Богородиці м. Мостиська Львівської області ) . It was assigned a new legal entity number ( 34736320 );

(ii) on 1 March 2007 it registered yet another religious community associated with UAOC in Mostytska . It was assigned a new legal entity number (35156771).

COMPLAINTS

The applicant community complains under Articles 6 and 9 of the Convention and Article 1 of Protocol No. 1 of the domestic courts ’ and other authorities ’ decisions refusing to recognise the community, as represented by Father Y. Kachmar , nominated by the Ukrainian Orthodox Church of Kyiv Patriarchate, as the holder of the rights of the original Ukrainian Autocephalous Orthodox Church ’ s parish in Mostyska registered in 1991 and instead recognising its rival group, associated with the Ukrainian Autocephalous Orthodox Church, as the holder of those rights.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant community ’ s freedom of religion, within the meaning of Article 9 § 1 of the Convention as interpreted in the Court ’ s case-law (see, for example, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, Reports of Judgments and Decisions 2000)?

If so, was that interference justified under Article 9 § 2? In particular:

(i) have t he authorities attempted improperly to regulate the membership of the applicant community, in particular in contradiction to the rules of its internal organisation as defined in its statutes (see Svyato-Mykhaylivska Parafiya , no. 77703/01, §§ 146 and 150, 14 June 2007) or did they merely draw inevitable secular conclusions from autonomous decisions of appropriate ecclesiastical authorities without improper assessment of their doctrinal merits (see Kohn v. Germany ( dec. ), no. 47021/99, 23 March 2000, and Griechische Kirchengeme inde München Und Bayern e.V . v. Germany ( dec. ), no. 52336/99, 18 September 2007)?

(ii) have 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 power of representation or have they merely instituted neutral measures ensuring legal certainty and foreseeable procedures for the settling of disputes between competing groups (see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy ) and Others v. Bulgaria , nos. 412/03 and 35677/04, §§ 135-39, 22 January 2009)?

(iii) were the decisions taken by the State authorities based on an acceptable assessment of the relevant facts (see Svyato-Mykhaylivska Parafiya , cited above, § 138 )?

(iv) given that Article 9 of the Convention does not guarantee any right to dissent within a religious body and that 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 his freedom to leave the community (see Sindicatul “ Păstorul cel Bun ” v. Romania [GC] , no. 2330/09, § 137, ECHR 2013 ( extracts ) ), which of the competing groups within the Ukrainian Autocephalous Orthodox Church community in Mostyska registered in 1991 exercised their right to dissent by leaving the community and forming a new community and, accordingly, did the authorities draw appropriate civil-law consequences from the secession (see Griechische Kirchengemeinde München Und Bayern e.V . , cited above, and Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy ) and Others , cited above, § 141) ?

2. Has there been an interference with the applicant community ’ s peaceful enjoyment of its possessions, within the meaning of Article 1 of Protocol No. 1? If so, did it comply with the requirements of that provision?