Information Note on the Court’s case-law 185

May 2015

Greek-Catholic Parish of Lupeni and Others v. Romania - 76943/11

Judgment 19.5.2015 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Fair hearing

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

Article 14

Discrimination

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

[This case was referred to the Grand Chamber on 19 October 2015]

Facts – In 1948 the applicants, entities belonging to the Eastern-Rite Catholic (Greek-Catholic or Uniate) Church, were dissolved on the basis of Legislative Decree no. 358/1948. By virtue of the decree, all property belonging to that denomination was transferr ed 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 the majority of a church’s adherents became members of a different church, property belonging to the fo rmer would be transferred to the ownership of the latter. In 1967 the church building and adjacent churchyard that had belonged to the applicant parish were 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After the fall of the communist regime in December 1989, Legislative Decree no. 358/1948 was repealed by Legislative Decree no. 9/1989.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 officially 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 Uniate parishes was to be determined by joint committees made up of representatives of both Uniate and Orthodox clergy. In re aching their decisions, the committees were to take into account “the wishes of the adherents of 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 Aug ust 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 procee dings 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 m atter. The applicants therefore instituted judicial proceedings under ordinary law, but without success. The courts based their decision on the special criterion of “the wishes of the adherents of the communities in possession of these properties”.

Law – A rticle 6 § 1

(a) Right of access to a court – The present case was to be seen in the special context of restitution of places of worship formerly belonging to the Greek-Catholic Church, a denomination that had been dissolved under the communist regime. Restitution of these religious buildings was a relatively large-scale problem and a socially sensitive issue. The Court had previously held that, even in this particular context, a general exclusion of disputes concerning places of worship from the jurisdiction of the courts infringed in itself the ri ght of a access to a court, especially as the systems for prior dispute resolution instituted by Legislative Decree no. 126/1990 had not been sufficiently regulated and judicial supervision of the joint committee’s decisions had not been adequate.*

The app licants in the present case had been able to institute proceedings in the County Court against the Orthodox Church, which was now in possession of the place of worship in question, by means of an action for recovery of possession under Article 3 of Legisla tive Decree no. 126/1990 as amended. However, they contended that the criterion laid down in the special law, by which the legal status of religious sites was to be determined by taking into account “the wishes of the adherents of the communities in posses sion of these properties”, amounted to a limitation of their right of access to a court because it gave precedence to the wishes of the defendant in the proceedings.

In this connection, the Court noted that the domestic courts had not declined jurisdiction to deal with the case but had examined it on the merits before declaring it manifestly ill-founded. They had applied the criterion laid down in the special law, having regard to specific factual considerations such as the historical and social context, an d had examined the situation over time. Their judgments had contained careful reasoning and the applicants’ arguments of significance for the outcome of the case had been examined in depth. Accordingly, the domestic courts had had full jurisdiction to appl y and interpret domestic law, without being bound by the refusal of the Orthodox Church to reach a prior friendly settlement. Furthermore, the scope of their review had been sufficient to comply with the requirements of Article 6 § 1.

The applicants had th erefore had their action examined in detail by a court. The mere fact that they considered that the criterion laid down in the special law – “the wishes of the adherents of the communities in possession of these properties” – was unfair was insufficient to render their right of access to a court ineffective.

Taking into account all the circumstances of the case, the applicants had been able to exercise their right of access to a court.

Conclusion : no violation (unanimously).

(b) Alleged breach of the prin ciple of legal certainty – The applicants had brought an action in the domestic courts for recovery of possession under ordinary law. However, when the Court of Appeal and the High Court had examined the case, they had instead applied a special law, namely Legislative Decree no. 126/1990. The applicants argued that the application of the criterion laid down in the special law in the context of an action for recovery of possession under ordinary law had not been foreseeable, thereby amounting to a breach of the principle of legal certainty.

The concept of ordinary law had not been interpreted in the ordinance on the basis of which the applicants had applied to the courts. Furthermore, Government Emergency Ordinance no. 94/2000 of July 2005 on restitution of i mmovable property formerly belonging to religious denominations in Romania had been amended to specify that the legal situation would be governed by a special law.

Accordingly, the courts had had to determine actions for recovery of possession without havi ng access to a sufficiently clear and foreseeable legislative framework. Different national courts had thus reached different legal conclusions on the same legal issue raised before them.

Achieving a consensus in the application of the law was a process t hat could take time, and periods of conflicting case-law could therefore be tolerated without undermining legal certainty.

The highest national courts – the High Court and Constitutional Court – had settled these conflicts by harmonising their approach to the question of the applicability of the criterion laid down in the special law, namely the wishes of the adherents of the communities in possession of the properties.

The fact that the decision complained of had been delivered before the courts had reache d a consistent position on the matter was not sufficient in itself to breach the principles of foreseeability and legal certainty, seeing that the domestic judicial system had been able to resolve this uncertainty by its own means. Moreover, the solution a dopted in the applicants’ case had been similar to the decision adopted one year later by the Constitutional Court and the virtually unanimous case-law of the High Court.

The complexity of the issue raised in the present case and its social impact were pos sible reasons why it had taken several years for the domestic courts to harmonise their approach. Furthermore, the present case had not involved clarifying divergent interpretations of a particular legal provision but determining by means of case-law the m anner in which ordinary law and the rules of special law should apply.

Lastly, the High Court’s interpretation of the concept of “ordinary law” and its relationship with the rule of special law applied to the applicants’ detriment did not in itself amount to an infringement of Article 6 of the Convention. The applicants could not claim that they had been denied justice, given that their case had been examined by the Court of Appeal and the High Court. Furthermore, those courts had given proper factual and l egal reasons for their decisions, and their interpretation of the circumstances of the case referred to them had not been arbitrary, unreasonable or liable to undermine the fairness of the proceedings, but had simply related to the manner of applying domes tic law.

Conclusion : no violation (unanimously).

Article 14 in conjunction with Article 6 § 1: The applicants had claimed to be the victims of discrimination in the exercise of their right of access to a court.

(a) Whether there had been a difference in t reatment based on religion between persons in similar situations – No difference in treatment based on religion could be found in Article 3 of the impugned Legislative Decree no. 126/1990.

The disputed place of worship had been in the possession of the Ort hodox Church, which was the defendant in the proceedings. In general, where the Legislative Decree in question was applicable, the religious sites forming the subject of actions for recovery were in the possession of entities belonging to the Orthodox Chur ch, and the Greek-Catholic Church was in the position of seeking their restitution. In that context, by establishing that the legal status of the property in issue was to be determined on the basis of the criterion of “the wishes of the adherents of the co mmunities in possession of these properties”, Article 3 of Legislative Decree no. 126/1990 could be interpreted as creating a privileged position for the defendant to the applicants’ detriment. The Court had already considered that provision in the context of Article 6 of the Convention. There was therefore a difference in the treatment of two groups – the Greek-Catholic Church and the Orthodox Church – which were in a similar situation as regards their claims to ownership of the place of worship at the hea rt of the dispute.

(b) Whether there was reasonable and objective justification – The Government had submitted that the State’s intention had been to protect the freedom of those who had been forced to leave the Greek-Catholic faith under the totalitarian regime to express their wishes as to which religion to follow, while retaining the possibility of using the place of worship they had built.

In applying the criterion of “the wishes of the adherents of the communities in possession of these properties”, t he Romanian courts had not simply noted that the defendant had refused to return the church building in question but had weighed up the interests at stake. Following a thorough examination of the factual circumstances, the domestic courts had delivered det ailed judgments containing reasons, and their approach had been consistent with that of the Constitutional Court.

In addition, when examining an objection that the criterion in question was unconstitutional, the Constitutional Court had set out reasons rel ating to the need to protect the freedom of religious denominations and of others, while placing these factors in the historical context of the case.

Lastly, the applicants’ arguments relating to a discrepancy in the case-law concerned an aspect of the pri nciple of legal certainty and had already been examined under Article 6 § 1 of the Convention. There was therefore no need for a further examination under Article 14 of the Convention in conjunction with Article 6 § 1.

Accordingly, in view of the aim pursu ed and the reasonable justification for it, the adoption of the relevant criterion in national law had not been in breach of Article 14 of the Convention.

Conclusion : no violation (unanimously).

The Court also held unanimously that there had been a violation of Article 6 § 1 of the Convention in that the applicants’ case had not been heard within a reasonable time, and awarded the applicants EUR 2,400 jointly in respect of non-pecuniary damage.

* Sâmbata Bihor Greek-Catholic Parish v. Romania , 48107/99, 12 January 2010, Information Note 126 .

© Council of Europe/European Court of Human Rights This summary by the Regist ry does not bind the Court.

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