The ECHR judgment of 29 November 2016 in the case of the arrival of the Greek Catholic Church in Lupeni and Others v. Romania (application No. 76943/11).
In 2011, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Romania.
In the case, the complaint on the decision to restore religious places, based on the wishes of members of the congregations who owned this property, was successfully considered. There has been a violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. There were no violations of Articles 6 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In 1948 the applicants, the religious organizations of the Eastern Catholic (Greek Catholic or Uniate) church, were dissolved on the basis of Decree-Law No. 358/1948. According to this decree, the property belonging to the said church was transferred to the state, with the exception of the property of the parishes, which was transferred to the Orthodox Church on the basis of Decree N 177/1948, which provided that in cases where the majority of adherents of one church become parishioners of another church, property belonging to the first church, goes to the second. In 1967, the temple and the adjoining territory belonging to the applicant parish, according to the land cadastre, became the property of the Romanian Orthodox Church.
After the collapse of the communist regime in December 1989, Decree No. 358/1948 was repealed by Decree-Law No. 9/1989. The Uniate Church was officially recognized by Decree-Law No. 126/1990 "On certain measures relating to the Romanian Church united with Rome (the Greek Catholic Church)." Article 3 of the decree-law provides that the legal status of property belonging to the parishes of the Uniate Church is determined by joint commissions consisting of representatives of the clergy of both churches: Uniate and Orthodox. When making decisions, these commissions should take into account the "desire of the adherents of the communities to which this property has passed."
Article 3 of Decree-Law No. 126/1990 was amended by the Decree of the Government of Romania of August 13, 2004 No. 64/2004 and Law No. 182/2005. In accordance with a special decree, in the new wording, in the absence of agreement between representatives of the clergy of the two churches that are members of the joint commission, the interested party may apply to the court with a claim on the basis of the provisions of common law.
The applicant's parish under the law was reregistered on 12 August 1996. The applicants made attempts to obtain the return of the temple and the territory adjacent to it. The meetings of the joint commission did not lead to any result. In addition, the applicants filed a lawsuit on the basis of the provisions of common law, but without success. In the basis of their decisions, the Romanian courts put a special criterion - "the desire of adherents of the communities to which this property passed."
By a decision of 19 May 2015, the Chamber of the European Court unanimously concluded that, in the case, the requirements of Article 6 § 1 of the Convention and Article 14 of the Convention were not violated in conjunction with Article 6 § 1 of the Convention.
On October 19, 2015, at the request of the applicants, the case was referred to the Grand Chamber of the European Court of Justice.
ISSUES OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. The claim brought by the applicants affected civil law and was aimed at establishing through the courts property rights, even if the subject of the dispute was the place of worship. It follows that Article 6 § 1 of the Convention is applicable in the present case.
(a) Right of access to court. The applicants were not prevented from bringing a claim for the return of the church building to the domestic courts, which carefully examined the case. The courts were independent and impartial, had discretionary powers to assess when exercising their jurisdictional competence, and their role was not limited to approving the foregone conclusion of the proceedings.
Thus, in the present case, it was not a procedural obstacle to the applicants' access to the courts, but a substantive provision that, although it could have affected the outcome of the proceedings, could not have an impact on the courts in the substantive examination of the dispute. In fact, the applicants complained of the difficulty of achieving the conditions stipulated by the substantive law, in order to decide on the return of this place of worship. At the same time, the distinction between procedural and substantive elements remains decisive for the applicability and, if appropriate, the scope of the guarantees of Article 6 of the Convention, which in principle do not apply to the substantive limitations of law existing in domestic law. This proposal is the result of the reduction of the following quotation from the Resolution: "However, as can be seen from the consistent practice of the European Court, it is necessary to maintain a distinction between procedural and material elements: however subtle it is in a specific set of domestic legal norms, it remains decisive for the applicability and , if applicable, the scope of the guarantees of Article 6 of the Convention, which in principle do not apply to the substantive limitations of law existing in countries ". It is probably meant that it was not the court that limited the applicants' right to a fair trial, but the legislation of Romania.
The criterion of the wishes of believers, which was considered in the present case, can be considered not restricting in any way the jurisdiction of the courts to resolve claims for the return of places of worship from another's possession, but formulating the substantive law. The Romanian courts in the present case had full jurisdiction in the application and interpretation of the domestic law, without being bound by the refusal of the Orthodox parish to conclude a settlement agreement in the context of the procedure in the joint committee.
The impugned criterion aroused heated debate when it was passed by the parliament and amended Decree-Law No. 126/1990 by Law No. 182/2005. Both of the above churches participated in consultations within the framework of the legislative process, which led to the adoption of this criterion. The case law of the Constitutional Court regarding the compatibility of this criterion with the Constitution was consistent from the point of view of its application by joint committees and application in the context of a trial based on the provisions of common law.
In the case of the "Greek-Catholic Parish of Sambata Bihor Greek Catholic Parish v. Romania" (Judgment dated 12 January 2010, complaint no. 48107/99, "Information Bulletin on the case-law of the European Court of Human Rights" No. 126 The Court found a restriction on the right of access to a court after reviewing the legislative framework that existed before the changes made to the text of Article 3 of Decree-Law No. 126/1990 by Ordinance No. 64/2004 and Law No. 182/2005, that is, until the possibility expressly provided by these changes, initiation of legal proceedings In view of the foregoing considerations, the applicants were not deprived of the right to decide on the merits of their claims on the property right to the place of worship.The difficulties encountered by the applicants in their attempts to ensure the return of the contested church building were caused by the relevant substantive law and were not connected with the restriction of the right of access to the court.
In the case, the requirements of Article 6 of the Convention were not violated (it was adopted by 12 votes "for" at five - "against").
(b) Compliance with the principle of legal certainty. A contradictory interpretation of the concept of "common law" existed in the Highest Court, designed to resolve these disputes in the final instance. It was reflected in decisions taken by the lower courts, which also issued contradictory decisions. Since 2012, the High and Constitutional Courts have agreed on their positions regarding procedures for the return of places of worship, which in practice led to the harmonization of the case-law of lower courts. Nevertheless, from 2007 to 2012, the High Court ruled that they were diametrically opposed. Such fluctuations in judicial interpretation could not be regarded as a developing case-law, inherent in any judicial system, since the High Court changed its position. Finally, legal uncertainty touched upon issues of access to the court and the corresponding substantive law.
It follows that in the present case, "deep and long-lasting differences" in the meaning of the judgment of the Grand Chamber of the European Court in the case of Nejdet Sahin and Perihan Sahin v. Turkey, dated 20 October 2011, took place in the case-law. , complaint No. 13279/05, "Information Bulletin on the case-law of the European Court of Human Rights" No. 145.
The context in which the applicants' claim was examined, namely the uncertainty of case-law, aggravated by the avoidance of the immediate use of the mechanism provided for by domestic law to ensure uniform practice even within the country's supreme court, violated the principle of legal certainty and had the effect of depriving applicants of a fair trial.
The violation of the requirements of Article 6 of the Convention (unanimously) was committed.
The Court also ruled by 12 votes in favor, five against it, that the requirements of Article 14 of the Convention were not violated in connection with Article 6 § 1 of the Convention, since there was no difference in the treatment between the applicants and the respondent with regard to the possibility of resort to the courts and obtaining a court decision on the claim for restoration of possession of the place of worship, and, unanimously, that there was a violation of the requirements of Article 6 § 1 of the Convention on the grounds that the applicants' case had not been examined within a reasonable time.
In the application of Article 41 of the Convention. The Court awarded the applicants jointly EUR 4,700 in respect of non-pecuniary damage.
See also the Beian v. Romania judgment of 6 December 2007, application no. 30658/05, Albu and Others v. Romania ) of 10 May 2012, application No. 34796/09 and Ferreira Santos Pardal v. Portugal, judgment of 30 July 2015, application no. 30123/10.