Lexploria

THIRD SECTION

Application no. 35839/07 PAROHIA GRECO-CATOLICA PESCEANA and others against Romania lodged on 4 April 2007

STATEMENT OF FACTS

The applicants in the present case are the Greek-catholic parish of Pesceana , a religious body created on 20 January 2005 in Pesceana , as well as some of its members, Romanian nationals living in Pesceana whose names, date s of birth and place s of residence appear in the annex to this document. The applicant Mr Victor Tudor acts as their representative; he was born in 1964 and lives in Cermegesti-Pesceana , Vâlcea County .

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

A. Origins of the case

On 19 January 2005 Victor Tudor, who was at that time the orthodox priest from Pesceana parish in Vâlcea County , together with 358 members of his parish decided to join the Eastern Catholic Church (“the Greek-Catholic Church ”). The next day they were recognised as parish by Blaj Greek-Catholic Archeparchy ( Mitropolia Româna Unită cu Roma Blaj ) and Mr Tudor was ordained priest of that parish. The applicant parish became thus legitimate according to the applicable laws.

On 22 January 2005 the Pesceana local authorities refused to recognise the new parish, denied its members access to the village church and cemetery and advised Râmnicul Orthodox Diocese ( Episcopia Râmnicului ) to take appropriate action against Mr Tudor. On 29 March 2005 the local council reiterated its decision. On 3 June 2005 they also refused to allow the Greek-catholic parish to hold its religious gatherings in a deserted school building.

On 24 January 2005 Mr Tudor resigned from his previous position in the Orthodox Church. He was defrocked the next day. A new orthodox priest was sent by the Orthodox Church to the local parish.

On 24 February 2005 the Ministry of Culture and Cults asked the Greek - Catholic Archeparchy to re-examine its decision to ordain Mr Tudor as catholic priest in Pesceana . They suggested that his withdrawal could facilitate the dialogue between the two parishes in the community.

Meanwhile, Râmnicul Orthodox Diocese filed a request, by means of the urgent procedure ( ordonanţă p reşedenţială ), concerning the possession of the church property. In a final decision of 8 March 2005 the Vâlcea County Cout ordered Mr Tudor to surrender the property belonging to the orthodox church to the plaintiff and to stop using the village church and cemetery for Greek-catholic practices.

On 27 May 2005 the Pesceana local authorities transferred the property title concerning the cemetery to the orthodox parish. On 17 June 2005 they delivered the title deeds for the land to the orthodox parish. However, on 10 October 2008 these deeds were declared null and void by the Vâlcea County Court, in an action opposing the Greek-catholic church to the Pesceana local authorities.

Several members of the Pesceana Greek-Catholic parish lodged a complaint against the local authorities and the orthodox community, with the National Council against Discrimination. The Council examined the administrative decision of 22 January 2005. It noted that the plaintiffs were denied access to the church building and the village cemetery. It concluded that the local authorities breached the applicants ’ freedom of conscience and disregarded their religious autonomy. Consequently, the Council issued a warning for the local authorities. It gave its decision on 31 August 2005.

The conflicts between the two religious communities escalated. The orthodox prohibited the catholic from entering the cemetery to bury their dead or honour their memory. According to the applicants, they had suffered increased pressure to revert to orthodoxy: they were asked to sign a renunciation of Catholicism if they wanted the local authorities to deliver any official acts, they received unjustified fines, some of them were threatened with dismissal from their jobs and the local school organised a public manifestation against the Catholic Church. The Greek-Catholic Archeparchy intervened in their favour, by engaging in a written exchange with the local authorities. This, however, remained fruitless.

Several criminal complaints were also lodged by both parties to the conflict.

B. Requests for access to the village cemetery

1. The urgent procedure

Using the urgent procedure, the applicant parish sought to compel the orthodox parish to allow the Greek-catholic the right to use the village cemetery for burying the dead and for memorial services.

In a final decision of 19 January 2006 the Vâlcea County Court found in favour of the applicant parish. The court noted that the applicant parish had been recognised by the Greek-Catholic Church , and was thus legally constituted. It reiterated that, according to Law on Religious Worship, as the village had only one cemetery, all individuals had to have access to the burial grounds, irrespective of their faith.

However, the Greek-catholic continued to be denied access to the cemetery by the orthodox community. On 3 February 2006 the county court issued an enforcement order concerning the decision of 19 January 2006.

However, the bailiff ’ s attempts to enforce that decision remained futile because of the strong opposition by the orthodox community. Not even the police intervention on behalf of the applicants was able to deter the opposing parish. According to the bailiff ’ s report, the new orthodox priest refused to assist him and the Greek-Catholics of the village in the enforcement attempts or to talk with his believers. He claimed that he was engaged in other religious duties at that moment.

2. The normal procedure

Several members of the applicant parish (see annex two below) lodged an action against the orthodox parish and Râmnicu Orthodox Diocese seeking access to the cemetery to bury the dead and perform the adjacent rituals.

The final ruling in the case was given on 26 February 2009 by the Piteşti Court of Appeal. Using the same arguments as those advanced by the County Court in the urgent procedure, the Court of Appeal recognised the rights for the Greek-catholic members of the community to be buried in the Greek-catholic tradition. However, it decided that the persons who embraced the catholic faith are not allowed to perform catholic rituals for the deceased members of their families who had been buried according to the orthodox tradition. In deciding so, the court of appeal considered that the person ’ s own convictions at the time of death should be subsequently respected by the family in the choice of rites.

C. Current situation

It appears that the applicants are still forbidden from entering the cemetery.

COMPLAINTS

1 . Invoking Article 6 § 1 of the Convention the applicants complain about the impossibility to use the village cemetery, despite them being in the possession of a final decision giving them right to access the grounds. They also complain about the manner in which the domestic courts decided not to allow them to practice Greek-catholic rituals for the deceased members of their families who had been buried according to the orthodox rite .

2. The applicants complain under Article 9 of the Convention that the decisions and actions of the domestic authorities breached their freedom of conscience and religion and as a consequence they cannot effectively practice their religion. In particular they argue that, despite court decisions in their favour, they cannot access the cemetery to bury their dead. Furthermore, they are not allowed to pay respects to their dead according to the rites of their religion.

3. Lastly, they allege being victims of discrimination based on their religion. They rely in substance on Article 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Can all the applicants claim to be victims of a violation of their rights prescribed by the Convention, within the meaning of Article 34?

2. Did the applicants have access to a court, within the meaning of Article 6 § 1 of the Convention, in so far as the enforcement of the final decisions of 19 January 2006 by the Vâlcea County Court and of 26 February 2009 by the Piteşti Court of Appeal is concerned?

3. Has there been a violation of the applicants ’ freedom of religion, contrary to Article 9 of the Convention, in so far as they cannot use the village cemetery?

4. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their religion contrary to Article 14 of the Convention, read in conjunction with Articles 6 § 1 and 9 of the Convention?

Annex 1

( Applicants ’ names, dates of birth and places of residence )

N o .

First name , LAST NAME

Birth date

Place of residence

‘ PAROHIA GRECO-CATOLICA PESCEANA

Pesceana

Toma PREDESCU

07/05/1951

Cermegesti

Valerica PREDESCU

13/06/1956

Cermegesti

Ioan Mugurel NEDELUT

12/12/1987

Cermegesti

Ioan NEDELUT

25/05/1962

Cermegesti

Roxana Catalina NEDELUT

14/05/1992

Cermegesti

Ionel ZAULET

16/04/1969

Cermegesti

Ilie MANDA

25/04/1940

Cermegesti

Elena MANDA

28/10/1940

Cermegesti

Daniela GAINA

16/07/1968

Cermegesti

Gheorghe BUZATU

10/04/1941

Cermegesti

Elena BUZATU

29/08/1949

Cermegesti

Ioana VOINEA

03/11/1958

Cermegesti

Vasile VOINEA

06/10/1956

Cermegesti

Elena Monica VOINEA

20/05/1983

Cermegesti

Constantin Catalin VOINEA

03/07/1993

Cermegesti

Ion CARSTEA

14/12/1959

Cermegesti

Elena CARSTEA

26/09/1962

Cermegesti

Ilie POPA

02/06/1974

Cermegesti

Elena POPA

02/10/1974

Cermegesti

Gheorghe BERCEA

16/04/1952

Cermegesti

Niculina BERCEA

25/01/1955

Cermegesti

Maria ZAULET

30/08/1971

Cermegesti

Constantina DRAGOMIR

20/10/1938

Lupoaia

Marin FULGESCU

06/07/1935

Lupoaia

Zenovia FULGESCU

21/10/1934

Lupoaia

Gheorghe IBRAC

02/06/1942

Lupoaia

Elena IBRAC

02/10/1943

Lupoaia

Sandel FULGESCU

16/11/1955

Lupoaia

Victoria FULGESCU

17/05/1967

Râmnicu Vâlcea

Adriana DUTA

01/04/1985

Râmnicu Vâlcea

Maria SPATARU

31/08/1938

Lupoaia

Dumitru FULGESCU

25/03/1960

Lupoaia

Lucian PREOTEASA

26/01/1961

Lupoaia

Elena MATEI

25/10/1963

Lupoaia

Constantin PREDESCU

16/04/1934

Lupoaia

Ilie VILAU

26/03/1953

Lupoaia

Lucretia VILAU

17/05/1956

Lupoaia

Lucian CRUCERU

01/10/1938

Lupoaia

Ana CRUCERU

02/09/1949

Lupoaia

Constantin VOINEA

13/05/1973

Lupoaia

Doina VOINEA

08/08/1975

Lupoaia

Maria VOINEA

22/09/1944

Lupoaia

Ion IBRAC

08/05/1949

Lupoaia

Petre IBRAC

01/12/1961

Lupoaia

Andreea Ioana IBRAC

14/08/1989

Lupoaia

Elena IBRAC

17/10/1969

Lupoaia

Gheorghe BADEA

05/05/1957

Lupoaia

Maria BADEA

19/02/1960

Lupoaia

Bianca BADEA

29/01/1987

Lupoaia

Marian BADEA

28/02/1983

Lupoaia

Ionela Alexandra BADEA

27/10/1989

Lupoaia

Lucretia CRUCERU

06/04/1969

Lupoaia

Nicolae CRUCERU

13/08/1965

Lupoaia

Nicolae Iulian CRUCERU

05/07/1993

Lupoaia

Dumitru Cristian CRUCERU

03/01/1951

Lupoaia

Maria CREVENICEANU

14/08/1945

Lupoaia

Marcel FULGESCU

27/02/1947

Lupoaia

Cristina IBRAC

26/01/1990

Lupoaia

Sofronie POPESCU

11/09/1947

Cermegesti

Eugenia POPESCU

23/09/1952

Cermegesti

Traian FULGESCU

09/02/1952

Cermegesti

Gheorghita FULGESCU

21/02/1956

Cermegesti

Alexandru Gabriel CIUCA

12/09/1989

Băile Olănești

Annex 2

Applicants who lodged the action before the domestic courts in order to be allowed access to the village cemetery

Menu

GREEK CATHOLIC PARISH PESCEANA AND OTHERS v. ROMANIA

GREEK CATHOLIC PARISH PESCEANA AND OTHERS v. ROMANIA

LEXI