Communicated on 20 May 2014

THIRD SECTION

Application no. 44040/06 BISERICA EVANGHELICA ROMANA - PAROHIA POENARII BURCHII against Romania lodged on 13 October 2006

STATEMENT OF FACTS

1. The applicant, Biserica Evanghelica Romana - Parohia Poenarii Burchii (The Romanian Evangelical Church – Poenarii Burchii Parish) , is a Christian religious community, based in Ologeni village; it is represented before the Court by one of its members, Mr C. Slav , who lives in Ologeni village.

A. The circumstances of the case

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

1. Preliminary issues

3. The applicant is authorized by the Romanian Evangelical Church to function as a parish ever since 1991. The Romanian Evangelical Church itself had been recognized in the 1950s by the Romanian state as a cult and thus as having legal personality pursuant to Decree no 177/1948 on the general status of religious cults and to Decree no 1203/1950 on the authorization of various religious cults.

4. Starting with 1991 the applicant has made several attempts to obtain a right of property to a piece of land situated in the village cemetery, in view of the fact that this issue created perpetual conflicts with the Orthodox church and community, who allegedly prevented it from peacefully exercising its religious beliefs and burial practices.

On 29 October 1999, the Romanian Evangelical Church sent a letter to the Minister for the Cults, asking them to intervene in the conflict between the orthodox community and the evangelical one of the Ologesti village; tension between the two communities had arisen following the decision taken by the orthodox to move the deceased belonging to the Evangelical Church out from the village cemetery.

The relation between the two communities allegedly deteriorated following the appointment of a new orthodox priest to the local parish, who manifested less tolerance vis-à-vis the local Evangelical Church, its worshippers and their religious practice.

2. Proceedings lodged by the applicant

(a) Proceedings seeking to obtain ownership on the burial ground

5. On 21 April 2003 the applicant filed a civil action against the Poienarii Burchii Town Hall ( Primaria ), the Romanian Orthodox Church, Poienarii Burchii Parish, and Mr G.I., the former orthodox priest of the parish. It claimed that its right of ownership on 236 sqm from the orthodox cemetery be acknowledged.

T he applicant submitted that in the 1950s, the local authorities had allowed it to use 236 sqm located in the o rthodox cemetery in order to bury their dead and practise their funeral rituals. They consequently fenced this plot of land and used it as a cemetery for their own deceased.

However, the new o rthodox priest appointed to the parish denied that the applicant had any rights on the cemetery; consequently, the fence was put down and thrown over their burial places, destroying the tombs and funerary monuments.

It followed that the applicant needed a title to confirm its use of the land as a burial ground for its deceased members. It invoked that ownership was justified partly as a result of adverse possession and partly as 96 sqm of the impugned land had been bought from the former orthodox priest, Mr G.I.

In support of its claims, the applicant submitted documents, among which receipts signed by Mr G.I., proving the payment of various amounts money, allegedly paid as price for the land.

6. The defendant church invoked its lack of locus standi , in so far as it did not have any right on the impugned land.

7. The Ploiesti District Court gave its judgment on 22 March 2004, dismissing the applicant’s claims. It held on one hand that the Town Hall and Mr G.I. lacked locus standi in the case. It further held that the applicant had never been granted a right of property on the land; the evidence in the file (documents and witness statements) proved that in the 1980s, in exchange of a “concession tax”, the applicant had been granted by the orthodox priest a concession to use a few burial places in the village cemetery.

8. The applicant appealed, holding that it had used the impugned land in peace for more than fifty years, but at present, it was prevented by the local Orthodox parish to continue doing so. Its appeal was annulled on 3 August 2005 for failure on its behalf to have paid the legal fees. However, this decision was overturned on 24 January 2006, in so far as the legal fees had in fact been paid in due time, the proof of payment having been ignored by the lower court.

The case was thus remitted before the Prahova County Court, which rendered its judgment on 25 May 2006, dismissing the appeal. The court held that, in accordance with the Rule on the functioning and structure of the Romanian Orthodox cemeteries, these were sacred goods, in the property of the Parish, which was entitled to grant plots of land in concession. The impugned plot of land had thus been given in concession to the cult by the Orthodox Parish, who had therefore never transmitted the property of the land.

(b) Proceedings seeking to obtain a right of use on the burial ground

9. On 3 May 2004 the applicant lodged a civil action against the Romanian Orthodox Church, Poienari Burchii Parish, seeking to have acknowledged its right of use and administration on 236 sqm of the local cemetery.

10. On 25 June 2004 the defendant replied, arguing that it lacked locus standi in the case, in so far as it did not have any right on the disputed plot of land.

On 29 September 2004, based on a document issued on 3 February 2004 in which the National Office of Cadastre and Land Registration informed the applicant, in reply to one of its requests, that the impugned land belonged to the Ministry of Cults, administrator, the applicant amended its civil action, introducing the Ministry in the proceedings.

11. On 22 November 2005, Mr C. Slav, on behalf of the applicant, filed a request before the Mayor of Poienarii Burchii , seeking to find out who the owner of the impugned plot of land was. He mentioned that the information was needed for the file.

The answer sent on the same day informed the applicant that such information could only be provided to a person that had a direct interest in the matter. The letter mentioned that

“In this context and for the assessment of the case, the court can directly ask the information from our institution”.

12. On 30 November 2005 the Ploiesti District Court dismissed the applicant’s claims, holding that both defendants lacked locus standi in the case, in so far as both of them denied they had any rights on the disputed plot of land and no proof to the contrary had been adduced.

13. The applicant appealed. It held that the documents submitted in the file proved that it had filed various requests, seeking to find out who was the owner of the land.

The applicant considered that in such a situation and in view of the active role that a judge must play in the proceedings, it was up to the court to seek to establish who owned or administered the land.

14. In its judgment of 22 May 2006, the Prahova County Court dismissed the applicant’s appeal and upheld the lower court’s judgment. The court held that in the civil proceedings, it was the claimant’s obligation to establish and justify the locus standi of the defendants. The active role of a judge did not imply that it was the obligation of the judge to procure evidence for the parties. In so far as the defendants in the case denied they had any right on the land, and in the lack of any proof to the contrary, the case had been rightfully dismissed.

15. On 27 May 2006 the applicant’s lawyer submitted another request before the Poienarii Burchii Town Hall, in which it sought again to find out who was the owner of the land used as cemetery; in the request, the lawyer mentioned that the information was needed for the file pending before the Prahova County Court; the reply received on 5 June 2006 noted that:

“You are invited to submit documents to justify the capacity in which you ask for information and documents.

According to the law, the required info can be provided only based on a written request filed by the interested party or its representative”.

(c) Criminal complaint

16. On 5 December 2006 the applicant lodged a criminal complaint with the District Police Inspectorate, alleging that in the past years its burial place had been devastated and profaned and the fence surrounding it had been put to the ground. Moreover, on the door of the church blasphemous and obscene words had been written.

The police answered on 13 December 2006, stating that the investigation revealed that the applicant did not have any title of property for the burial ground and the fence had been built illegally. Concerning the writing of blasphemous and obscene words, the investigation continued, no perpetrator having been identified.

3. Various administrative requests

17. On 3 March 2004, on behalf of the local parish, the Romanian Evangelical Church lodged a petition, with the State Secretariate for Cults, asking it to give a solution to the situation created in Poienarii Burchii , Ologesti village, where a parish of the church was not allowed to independently administer a plot of land from the village cemetery. In the petition it was submitted that the local authorities had refused to cooperate and assist them in defusing the conflict that had arisen with the orthodox local community.

18. On 26 October 2004 the Romanian Evangelical Church filed a similar request before the Ministry of Culture and Cults, asking them “to issue a decision that would explicitly grant to its local parish a right of administration on 236 sqm of the cemetery of Poienarii Burchii , Ologesti village”.

The Ministry replied on 12 November 2004, informing the claimant that they were not entitled to pass such a decision, in so far as they have never had a right of administration on the impugned land. The request, to which the Ministry had no objection, was to be filed before the Town Council ( Consiliul Local ) of Poiana Burchii , the authority with jurisdiction on the matter.

19. Based on this reply, on 10 January 2005 the Romanian Evangelical Church filed a request with the Poienarii Burchii Town Hall ( Primaria ), asking it to assist them in the judicious conclusion of the conflict with the local Orthodox parish. The church estimated that by deciding to grant to its local parish the right to administer the 236 sqm of land from the village cemetery, the Town Hall would solve the matter.

B. Relevant domestic law and practice

20. The Decree no 177/1948 on the general status of religious cults, in force until 11 January 2007, prescribes in its relevant parts that:

Article 1

The state guarantees the freedom of conscience and religion all across its territory.

Anyone may belong to whichever religion and may practice any religious faith, if its exercise does not run counter to the Constitution, the security and public order or to the good morals.

Article 9

The local branches of the authorized religious cults may have and upkeep, alone or in association with other cults, cemeteries for their worshippers.

The administration ( comunele ) need to create common cemeteries or to provide reserved places within the existent cemeteries, for the burial of those belonging to cults that do not have their own cemeteries.

21. The Law on Religious Worship no. 489/2006, in force starting with 11 January 2007, reiterates essentially the right of every cult to have access to the burial grounds.

22. Article 129 § 5 of the Romanian Code of Procedure, as in force at the material time, provided that

(5) The judges have an obligation to use all legal means in order to prevent any error in establishing the truth, by a correct determination of facts and application of law, aiming thus to give a lawful and well-founded judgment. They are entitled to allow and assess all the evidence they consider necessary, even against the parties’ will...

COMPLAINTS

The applicant essentially complains that its right to use as a burial place and dispose of a plot of 236 sqm of land within the village cemetery is not acknowledged by the domestic authorities.

It invokes Article s 1 and 6 of the Convention, but also Article 1 of Protocol No. 1, alleging that the proceedings in which it attempted to have such a right acknowledged were unfair .

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s freedom of religion, contrary to Article 9 of the Convention, in so far as its right to use part of the village cemetery was not acknowledged by the domestic authorities ?

2. Has there been a violation of the applicant’s right to effective access to a tribunal in view of the failure by the courts to facilitate identification of the correct defendant in the proceedings terminated on 22 May 2006?