CASE OF LUPENI GREEK CATHOLIC PARISH AND OTHERS v. ROMANIA
Remainder inadmissible (Article 35-3 - Manifestly ill-founded;Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
I. THE CIRCUMSTANCES OF THE CASE 7. The applicants belong to the Eastern-Rite Catholic (Greek Catholic or Uniate) Church. A. The historical background to the case 1. The legal framework governing the Greek Catholic parishes 8. Until 1948 the Greek Catholic parishes owned various properties, including churches and adjacent land, parish houses and cemeteries. 9. The Uniate Church was dissolved by Legislative Decree no. 358/1948. By virtue of the same Legislative Decree, properties belonging to that Church were transferred to the State, except for parish property. An inter-departmental committee with responsibility for determining the ultimate allocation of those properties never completed its task. Parish property was transferred to the Orthodox Church under Decree no. 177/1948, which provided that if the majority of one Church’s adherents became members of a different Church, the former’s property would be transferred to the ownership of the latter. 10. After the fall of the communist regime in December 1989, Decree no. 358/1948 was repealed by Legislative Decree no. 9/1989. The Uniate Church was officially recognised by Legislative Decree no. 126/1990 on certain measures concerning the Romanian Church United with Rome (the Greek Catholic Church). Article 3 of that Legislative Decree provided that the legal status of property that had belonged to the Uniate parishes was to be determined by joint committees made up of representatives of both Uniate and Orthodox clergy. In reaching their decisions, the committees were to take into account “the wishes of the adherents of the communities in possession of these properties” (see paragraph 38 below). 11. Article 3 of Legislative Decree no. 126/1990 was supplemented by Government Order no. 64/2004 of 13 August 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 proceedings could do so under ordinary law (see paragraph 40 below). 2. The legal situation of the applicants and of their church 12. The applicant parish, diocese and archpriesthood were dissolved on the basis of Legislative Decree no. 358/1948. In 1967 the church and the adjoining courtyard, which had belonged to the applicant parish, were entered in the land register as having been transferred to the ownership of the Lupeni I Romanian Orthodox Church. 13. The applicant parish was legally re-established on 12 August 1996. It comes under the authority of the Lugoj Greek Catholic Diocese (the second applicant) and the Lupeni Greek Catholic Archpriesthood (the third applicant). The applicants took steps to have the church and adjoining courtyard returned to them. B. The attempts by the Romanian Orthodox Church and the Greek Catholic Church to reach a friendly settlement 1. Meetings of the joint committee 14. The Orthodox Church and the Greek Catholic Church convened meetings of a joint committee, composed of senior representatives of the two denominations, with a view to determining the fate of the church buildings that had belonged to the Greek Catholic Church. Between 1998 and 2003 the joint committee met on seven occasions. The Greek Catholic party submitted a list of the churches claimed by it, including that of the applicant parish. It also proposed a friendly settlement, recommending that in those municipalities where there were two church buildings, one of them be restored, and that in municipalities where there existed only one church building but the two denominations were present, religious services be organised on an alternate basis. The Orthodox side refused this proposal. 15. During the meetings, the representatives of the two denominations noted that the dispute would be protracted and called for dialogue at local level and the construction of new church buildings for both denominations. At the final meeting the Orthodox side refused to return the properties and referred to the wishes of the majority of the adherents. 16. The applicant parish convened a meeting at local level with the Orthodox parish which held the property in issue, scheduling it for 9 November 2004. The Orthodox side did not attend, and nor did it attend a further meeting scheduled by the applicant party for 10 June 2006. 2. Meeting of the interested parties under the auspices of the Ministry of Culture and Religious Affairs 17. In the meantime, on 5 April 2002, at the initiative of the Ministry of Culture and Religious Affairs (“the Ministry”), a meeting took place at the Bucharest headquarters of the State Secretariat for Religious Affairs under the title “Fraternal Dialogue”. At that meeting, the representatives of the Orthodox Church had emphasised the importance of constructing new churches in order to resolve the problem. The Government’s plans to launch a church-building programme had been welcomed. The Ministry had asked the Greek Catholic side to provide it with a more detailed list of the places of worship claimed by that denomination. 18. According to the applicant parish, the Greek Catholic side had duly handed over the requested documents to the Ministry, but the latter took no further action. C. The judicial proceedings brought by the applicants 19. Previously, on 23 May 2001, the second applicant, namely the Lugoj Greek Catholic Diocese, citing also the other two applicants, had brought proceedings before the domestic courts against the Arad Orthodox Archdiocese and the Lupeni Orthodox Parish. It requested that the expropriation of the church building and cemetery in Lupeni, carried out on the basis of Decree no. 358/1948, be set aside, and that the church be returned to the applicant parish. 20. By a judgment of 10 October 2001, the Hunedoara County Court (“the county court”) declared the action inadmissible on the ground that the dispute ought to be settled through the special procedure established by Legislative Decree no. 126/1990, that is, by means of the joint committee. 21. An appeal against that judgment by the second applicant was dismissed by a judgment of the Alba Iulia Court of Appeal (“the appeal court”) on 25 March 2003, which held that the action was premature. On an appeal on points of law (recurs) by the applicant parish and the second applicant, the High Court of Cassation and Justice, in a final judgment of 24 November 2004, sent the case back to the same appeal court for a fresh examination of the merits. 22. On 12 May 2006, in application of the legislative amendments which gave the courts jurisdiction to rule on the merits of the cases (see paragraph 11 above), the appeal court upheld the second applicant’s appeal and sent the case back to the county court. 23. On 27 July 2006, when the case was restored to the county court’s list, the action was amended in order to add the applicant parish and the third applicant as claimants in the proceedings. On 8 November 2006 the claimants supplemented their action with a claim for recovery of possession of the church building in question, on the basis of ordinary law. 24. The county court asked the Greek Catholic and Orthodox parties to organise a meeting in order to decide the fate of the church in question, and to inform it of the outcome of the negotiations by 25 April 2007. 25. On 20 April 2007 a meeting was held between the representatives of the applicants, the Orthodox Church and the Lupeni Mayor. The Orthodox Church refused to return the church, arguing that the majority of believers in the municipality were Orthodox. The applicant parish replied that the ownership of property was not related to the number of practising adherents in a congregation. The minutes of the meeting were transmitted to the county court, which continued its examination of the case. 26. By a judgment of 27 February 2008, the county court dismissed the applicants’ action on the ground that the Lupeni Orthodox parish had become the legally recognised owner of the property in question by virtue of Decree no. 358/1948. The applicants lodged an appeal. By a judgment of 26 September 2008, the appeal court set aside the judgment of 27 February 2008 on formal grounds and remitted the case to the county court. 27. By a judgment of 13 February 2009, the county court found in favour of the applicants and ordered that the church be returned to the applicant parish. In comparing the title deeds of the parties to the dispute in respect of the property in question, the county court noted that the Greek Catholic party had been entered in the land register as owner of the property from 1940, and that in 1967 the Orthodox Church had entered its ownership right in the land register by virtue of Decree no. 358/1948. It held that the repealing of Decree no. 358/1948 had had the effect in the present case of terminating the Orthodox party’s right of ownership over the disputed property. It added that the applicant parish did not have a place of worship and that it was obliged to rely on the Roman Catholic Church, which rented the parish its premises for religious services. 28. The Orthodox parish lodged an appeal against that judgment. 29. By a judgment of 11 June 2010, the appeal court allowed the appeal and dismissed the applicants’ action. It described how the proceedings had developed and noted that the case had been instituted by the second applicant in 2001 and joined by the two other applicants in July 2006, after it was restored to the county court’s list. On the basis of the evidence in the case file, it noted, firstly, that the church building being claimed and the two Lupeni parish houses had been constructed between 1906 and 1920 by members of the Eastern-rite Orthodox and Greek Catholic churches and that, after its construction, the church building had been used alternately for services by both denominations. It noted that in 1948 the members of the Greek Catholic Church had been obliged to “move” to the Orthodox Church and that the church building had become the property of the Orthodox Church, which had maintained it and carried out improvements. 30. The court of appeal questioned three witnesses, including two Orthodox believers who stated that they no longer intended to return to the Greek Catholic Church to which they had belonged prior to 1948. The third witness stated that she was one of the few Greek Catholics in Lupeni. The appeal court noted that the statements by these witnesses supported the statistical data, which showed that there were more Orthodox than Greek Catholic adherents in Lupeni. 31. It further held that the county court had carried out its comparison of the title deeds without taking into consideration the wishes of the majority of those currently in possession of the building, a criterion that, as the appeal court noted, had been laid down in Article 3 § 1 of Legislative Decree no. 126/1990. In so far as there were more Orthodox adherents than Greek Catholic adherents in Lupeni – taking account also of those who had converted and no longer wished to return to the Greek Catholic Church – their wishes had to be taken into consideration in ruling on the case. It found that “having regard to the social and historical realities, ignoring the wishes and proportional strength of Orthodox adherents, who are in the majority, in relation to the less numerous Greek Catholic worshippers, would be to contravene the stability and certainty of legal relations”. 32. Lastly, the court of appeal noted that the fact that Decree no. 358/1948 had been repealed did not automatically mean that the Orthodox Church’s title to the building was set aside, and that this Decree had represented the law in force at the time that the ownership right was transferred. In consequence, it considered that, even if it had been granted unlawfully, the Orthodox Church’s title had been valid from the date on which the transfer had been made, with the result that the action to recover possession was ill-founded. 33. The applicants lodged an appeal on points of law before the High Court of Cassation and Justice, alleging that the appellate court had incorrectly applied the legal provisions governing actions for recovery of possession. They emphasised that the right of ownership could not be linked to a religion’s majority status, since ownership was, in their submission, a legal concept that was independent of the numerical strength and wishes of the parties. 34. In a final judgment of 15 June 2011, the High Court of Cassation and Justice dismissed the applicants’ appeal by a majority and upheld the appeal judgment. It held as follows: “With regard to a request for restoration of a place of worship which had belonged to the Romanian Church United to Rome (the Greek Catholic Church), the appellate court correctly established the special legal framework for ruling on those claims. Pursuant to Legislative Decree no. 126/1990 ... a distinction is made between two situations: (a) that in which the property is within the ownership of the State ... (b) that in which the places of worship and the parishes have been taken over by the Romanian Orthodox Church and in respect of which [the question of] restitution will be decided by a joint committee made up of representatives of the clergy of the two denominations, a committee which will take account of the wishes of the adherents of the communities in possession of these properties. In the light of those provisions, the appellate court, examining an action for recovery of possession of a place of worship, correctly applied the criterion of the wishes of the adherents (Orthodox in the majority) of the community in possession of the property, while simultaneously emphasising the unlawfulness of the reasoning provided by the first-instance court, which had merely compared the title deeds and ignored the special law... The fact of supplementing Article 3 [of Legislative Decree no. 126/1990] with a paragraph stating “If the committee does not meet within the period established in its mandate, or if the committee does not reach a conclusion or if one of the parties is dissatisfied with the decision taken by the committee, the party which has an interest is entitled to bring judicial proceedings under ordinary law” does not mean that actions for restitution governed by the special provisions are transformed into applications to establish title under ordinary law. 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. In other words, by virtue of its full jurisdiction and in order not to compromise access to justice, a court may be called upon to decide an action on the merits, even though the prior procedure did not culminate in a decision by the joint clerical committee; at the same time, however, it may not go beyond the limits imposed by the special statutory framework. 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 authorised to criticise the law. Moreover, in ruling on the alleged unconstitutionality of Article 3 of Decree no. 126/1990 and the criterion of the adherents’ wishes, the Constitutional Court has stated that the text did not infringe the Romanian State’s principle of democracy, nor that of the freedom of religious denominations (CC decision no. 23/1993, CC decision no. 49/1995). Democracy “also implies the application of the principle of majority rule, as set out in the final part of Article 3 – the wishes of the adherents of the community in possession of these properties – which introduces a social criterion, that of the choice of the majority of the worshippers”. Equally, it has been established that “the freedom of religious denominations implies not only their autonomy with regard to the State, but also freedom of religious belief”; where “in the same parish there are Orthodox and Greek Catholic worshippers, the application of the social criterion – namely [the wishes] of the majority of parishioners – in deciding on the allocation of places of worship and parish houses is compatible with the democratic principle of determining the religious use of the said property, given that this is the wish of the majority of those who benefit from such use, because “were it otherwise, this would mean that the Orthodox adherents, who are in the majority, would be unjustifiably prevented from practising their religion unless they transferred to the Greek Catholic Church”. In addition, the procedures for regulating social relations and restoring the assets (averi) of the religious communities are a matter of legislative policy (and not of judge-made law, which would attempt to settle such issues by judicial means, to the exclusion of the special law); it cannot be claimed that by introducing the criterion of the wishes of the faithful the [special] law failed to achieve its compensatory purpose. The appellate court considers that – in a State subject to the rule of law – the fact that the State unlawfully dispossessed the Greek Catholic Church of its places of worship in 1948 cannot be remedied by committing the opposite error, that is, in failing to take account of the wishes of the majority of worshippers at the point of adopting the given measure. 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... In order to bring an action under ordinary law for recovery of possession without being subject to the special law, the applicants must be able to claim that there existed a “possession” or a right of ownership to their property. However, through Decree no. 358/1948, the Greek Catholic Church was outlawed and its assets were transferred to the State; the building in dispute [was] registered as belonging to the Lupeni I Romanian Orthodox Church. The fact that, through Legislative Decree no. 9/1989, the Romanian Church United to Rome (Greek Catholic) was officially recognised following the repeal of Decree no. 358/1948 does not mean that its title to property was restored, in so far as the right of ownership is subject to a procedure (namely the provisions of Legislative Decree no. 126/1990 and its subsequent amendments), as the hope of obtaining title to property is not to be equated with a possession... Contrary to the arguments of the parties having lodged the appeal on points of law [recurentilor], the solution adopted does not infringe the freedom to practice a religion, since, as they submitted in their own observations, “the practice of religion is a private matter”, which consists primarily in a “strong and personal spiritual investment”. At the same time, the legislature provided for the scenario where the places of worship could not be returned; thus, Article 4 of Legislative Decree no. 126/1990 provides that “in those municipalities where the number of places of worship is insufficient in relation to the number of believers, the State shall provide support for the construction of new churches; for that purpose, it shall make available to those denominations the necessary land if the denomination does not possess it, and shall contribute to raising the necessary funds”. Thus, the State, as the authority with power to control life in society, will guarantee that the necessary conditions for the manifestation of religious beliefs are met without ... the exercise of this right being limited by the number of adherents (a substantive limitation). The State’s task here is to fulfil a positive obligation, so as to contribute to the effective exercise of the right to freedom of conscience and religion...” 35. In a separate opinion, one of the judges sitting on the case noted that the legislature’s reference to ordinary law could not be reduced to a purely procedural dimension, but was to be interpreted as the application of a rule of substantive law. Referring to the rules governing the preparation of statutes, the judge indicated that, if the legislature had wished to ascribe a specific meaning to this reference to “ordinary law”, it ought to have done so explicitly. He also cited Article 31 § 3 of Law no. 489/2006 on religious freedom and the legal status of religious denominations, according to which property differences between denominations were to be resolved by friendly settlement and, where that proved impossible, on the basis of ordinary law. After indicating that an action for recovery of possession implied a comparison of the relevant titles to the property, the judge concluded that the Orthodox Church did not have title to the place of worship in question. D. Other information about the case 36. According to a memorandum provided by the National Institute of Statistics, in 2002 there were 501 Greek Catholic adherents and 24,815 Orthodox adherents in Lupeni. The applicant parish is currently holding religious services at scheduled times in premises rented by it from the Roman Catholic Church in Lupeni.