PARTLY DISSENTING OPINION OF JUDGE KARAKAÅž

(Translation)

I disagree with the majority as regards the amount awarded in respect of non-pecuniary damage (4,700 euros) and as regards the decision to make no award in respect of pecuniary damage under Article 41 of the Convention.

The Court awards the above-mentioned sum in view of the anxiety and inconvenience suffered by the applicants as a result of the violations found; in other words, to make good the breach of the principle of legal certainty and the excessive length of the proceedings.

In my opinion, there has been a violation of Article 6 § 1 as regards the right of access to a court and also, concerning the same point, of Article 14 taken in conjunction with Article 6 § 1 (see the joint opinion of Judges Sajó, Karakaş, Pinto de Albuquerque and Mits). It is for this reason that I find the amount awarded in respect of non-pecuniary damage insufficient.

As to the pecuniary damage, it is clear that the applicants are entitled to compensation for pecuniary loss, compensation which could take the form either of restitution of the church building, the land and the parsonage, or of payment of a sum corresponding to the market value of the properties.

PARTLY DISSENTING OPINION OF JUDGE KŪRIS

1. I voted against points 1, 5 and 7 of the operative part of the judgment. The reasons for my disagreement with the majority are quite close to those expounded in the joint partly dissenting opinion of Judges Sajó, Karakaş, Pinto de Albuquerque and Mits.

2. It is regrettable that the Chamber found inadmissible the applicants ’ complaint under Article 1 of Protocol No. 1, taken alone and in conjunction with Articles 13 and 14 of the Convention. I find it difficult to subscribe to that finding. It effectively prevented the Grand Chamber from examining the applicants ’ complaint under the aforementioned Articles, because, under the Court ’ s case-law, the “case” referred to the Grand Chamber is the application as it was declared admissible by the Chamber (see paragraphs 61-63 of the judgment). In the present case, the issues at stake are property issues, i.e. those directly dealt with by Article 1 of Protocol No. 1. However, this precise aspect of the case has not been examined by the Grand Chamber. This raises doubts as to the appropriateness of indiscriminately applying the said “case-law” of the Court; after all, the Chamber judgment whereby the given inadmissibility was found has never become final.

[1] . According to information on the Internet page of the Romanian Greek Catholic Church, there are currently about 750,000 Greek Catholic adherents. In the two main regions where those believers are found (Banat and Transylvania), they make up about 15% of the population, whereas in 1948 they represented 50% of t he population of those regions.

[2] . According to the data provided by ECRI, out of 6,723 restitution claims 1,110 have been processed by the special restitution Commission since 2005; restitution in kind was provided on 139 occasions and proposals for damages were made in 52 cases (see paragraphs 59-60 of the judgment).

[3] . The Government could only provide a single example where the domestic courts did not follow the wishes of the majority and, in fact, ordered the restitution of property to the Greek Catholic Church, against the wishes of the majority (see paragraph 97 of the judgment).

[4] . The relevant passage of the High Court’s judgment reads: “A court which is required to examine such an action cannot ignore the special regulations in this area, which indicate the criterion to be taken into account in resolving such claims, namely the wishes of the adherents of the community in possession of the property… The priority to be given to the criterion of the adherents’ wishes was decided by the legislature, which wished in this way to regulate an area which concerns the buildings assigned to a particular use (places of worship), [and so] the court was not authorized to criticise the law.”

[5] . The relevant passage of the High Court’s judgment reads: “However, returning the properties which belonged to the Greek Catholic Church without respecting the criteria imposed by Article 3 § 1 of Legislative Decree no. 126/1990 would infringe the stability and security of judicial relations. A right cannot be reconstructed in abstracto , in disregard of social and historical realities, and mitigation for past damage must not create disproportionate new problems…”

[6] . See paragraph 83 of the judgment.

[7] . See, mutatis mutandis , Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom , 10 July 1998, § 78, Reports of Judgments and Decisions 1998 ‑ IV.

[8] . See Metropolitan Church of Bessarabia and Others v. Moldova , no. 45701/99, § 123, ECHR 2001 ‑ XII.

[9] . The relevant passage of the Constitutional Court’s judgment reads: “By decision [no. 23 of 27 April 1993), the [Constitutional] Court held that democracy entailed respect for the wishes of the majority… Where there are Orthodox and Greek Catholic worshippers in the same [parish], the fact of applying a social criterion – namely that of the majority of parishioners – in deciding the fate of places of worship and parsonages is compatible with the democratic principle of determining the religious use of that property on the basis of the wishes of majority [of worshipers concerned]. To rule otherwise would mean that the Orthodox worshippers, who are in the majority, would be unjustifiably prevented, by a measure contrary to their wishes, from practising their religion, short of moving to the Greek Catholic Church …” (see paragraph 57 of the judgment).

[10] . See, mutatis mutandis, Anakomba Yula v. Belgium , no. 45413/07, §§ 37-39, 10 March 2009.

[11] . See Mizzi v. Malta , no. 26111/02, § 134, CEDH 2006-I (extracts) .

[12] . See, mutatis mutandis , Tinnelly & Sons LTD and Others and McElduff and Others , cited above, § 77.