RYMSKO-KATOLYTSKA GROMADA SVYATOGO KLYMENTIYA V MISTI SEVASTOPOLI v. UKRAINE
Inadmissible
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The applicant association, Rymsko-Katolytska Gromada Svyatogo Klymentiya v Misti Sevastopoli (Римсько-Католицька громада Святого Климента в місті Севастополі), is part of the OdesaSimferopil Eparchy of the Roman Catholic Church and belongs to the Crimean Deanery (Decanat). It was registered as a religious organisation on 5 January 1995. It is currently composed of about 400 parishioners of various nationalities, residents of Sevastopol and the surrounding area, and was headed by a prior of the parish Mr Yuriy Ziminsky and vicar Jan Biletsky. The applicant association operates a Sunday school. It was represented by Mr I.F. Tkach, a lawyer practising in Sevastopol. 2. The Ukrainian Government (“the Government”) were represented, most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The Roman Catholic community in Sevastopol was founded in 1876 and consisted of about 4,500 members. After receiving permission from the authorities and approval from the Russian Emperor on 13 May 1904, the community built a Catholic church (костьол), which was named after Saint Clement (Собор Святого Климента). The construction of this church was financed by the Catholic community in Sevastopol, was authorised in 1900 and completed in 1911. The church was owned and managed by the community until early 1936, after the arrest of the prior of the community by the People’s Commissariat of Internal Affairs (НКВС) on 26 December 1935. A formal decision on “liquidation of the Catholic church” or dissolution of the Catholic religious community had been taken by the Presidium of the Sevastopol City Council and subsequently by the Central Executive Committee of Crimea in 1936 as the religious community had insufficient membership. 5. In late 1936 the Sevastopol City Council of Deputies decided to transfer the church building to the Sevastopol electricity company Transelectro for use as an electricity substation (трансформаторна підстанція). 6. The premises were partially damaged in the Second World War and then rebuilt in 1958-1960 using the foundations and walls of the old church, which had largely remained undamaged, at the expense of the City Council. In accordance with a redevelopment project in 1958 they were to be used as a cinema for 300-360 persons, with a screen measuring 11.5 metres. However, the existing architectural constructions had to be retained to the maximum possible extent. According to the architectural plans, the cathedral premises had to be rebuilt in such a way as not to reflect their religious origin and also in order to provide office premises for the Department of Cinemas of the City Council. The rebuilding also led to the destruction of the bell-tower, the internal reorganisation of the premises and the addition of an entrance hall for the cinema. After reconstruction, as from 1960, the premises were used as a cinema, which was eventually transformed into the “Druzhba” cinema for children. The lower part of the cathedral’s altar was transformed into a public toilet. The premises were also used to house a currency exchange bureau. The applicant association conducts religious ceremonies during the religious holidays near the entrance to the church, as it does not have permission to use it. It also conducts religious ceremonies at a rented apartment close to the premises in question. 7. On 1 July 1998 the First Deputy Chairman of the Sevastopol City State Administration provided the Cabinet of Ministers with a list of religious premises which had previously been nationalised and could be transferred to religious communities for permanent use. The church was included on the list of such premises, provided that funds be made available for the construction of a children’s cinema. 8. On 16 June 1998 the applicant association requested the Sevastopol City State Administration to transfer to it title to the premises of the former Catholic Church. On 26 June 1998 the Administration referred the applicant association’s request to the Sevastopol City Council (hereinafter – “the Council”) for a decision. 9. On 26 August 1998 the Department of Religions of the Sevastopol State Administration, acting on the basis of a resolution of 7 May 1998 of the Cabinet of Ministers authorising the transfer of religious premises to religious communities, included the former Catholic church building in the list of premises that were to be transferred to the applicant association, the only Catholic religious community in Sevastopol. The transfer was to take place on condition that a new children’s cinema was built by certain State authorities. 10. On 24 December 1998 the Sevastopol City Council, by decision no. 139, came to the conclusion that the transfer of the premises for use by the applicant association was “not advisable”. The applicant association sought to institute restitution proceedings before various judicial and administrative authorities. These proceedings are described below (see paragraphs 12-23 below). 11. On 7 April 1999 the Sevastopol City Department of Property issued order no. 100 requiring the city authorities to include the cinema in the register of State communal property. Following that, on 7 September 1999, the Sevastopol City State Administration rejected the applicant association’s request for transfer of the premises for its use, based on the provisions of Section 17 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991 (see paragraph 29 below). 12. On 24 March 1999 the applicant association instituted proceedings against the Sevastopol City Council before the Sevastopol City Court seeking to quash Council decision no. 139 of 24 December 1998. It also sought to obtain title to the premises, referring to Section 17 of the Act. 13. On 21 April 1999 the Sevastopol City Court rejected the applicant association’s claim, holding that it was not competent to hear a dispute between two legal entities as to title over property. On 4 May 1999 the applicant association appealed against that judgment to the Supreme Court. 14. On 9 June 1999 the Supreme Court quashed the judgment of 21 April 1999 and terminated the proceedings. In particular, it held that disputes between legal entities (in this case the applicant association and the Council), except in certain specified circumstances, were subject to examination by the State arbitration courts. The Supreme Court held that the applicant association was a religious community and had become a legal entity as from the moment of its registration on 5 January 1995. The claims had been lodged against the Sevastopol City State Administration and the Sevastopol City Council, which were also legal entities. The court ruled that the applicant association had to institute proceedings before the commercial (former arbitration) courts as the courts of general jurisdiction were, according to the court, not competent to deal with the matter. 15. In November 1999 the applicant association instituted proceedings in the Sevastopol City Court seeking the invalidation of the decision of the Sevastopol City State Administration of 7 September 1999 rejecting its request for transfer of the premises (see paragraph 11 above). 16. On 12 November 1999 the Sevastopol City Court refused to examine the applicant association’s request as it fell outside its jurisdiction. The court stated that the dispute related not to the decision of 7 September 1999, but to a controversy over the right to own particular premises between two legal entities, and had therefore to be examined by the commercial (former arbitration) courts. 17. On 22 December 1999 the Supreme Court quashed that ruling and remitted the case to the same court for fresh examination. In particular, it ruled that the issue under examination did not just concern a dispute between two legal entities as to the ownership of premises. The court stated that the applicant association’s claims concerned restitution of a religious building and thus had to be examined on their merits, in accordance with the provisions of Article 248-11 of the Code of Civil Procedure. 18. On 25 February 2000 the Sevastopol City Court rejected the applicant association’s request to transfer the title to premises to it and allow it their use. Without referring to any specific legal provision, it considered that the premises were not owned or administered by the Sevastopol City State Administration, but were “communal property” administered by the City Council according to the Local Government Act. The court also rejected the applicant association’s arguments that the original Catholic cathedral building had been constructed by the Roman Catholic religious community of Sevastopol and confiscated by the State authorities in 1936. It ruled that these claims concerned title to the premises, which had become “communal property” and the transfer of the premises into “communal property” was not challenged by the applicant. It established, having reviewed the evidence before it, that the cathedral had been damaged during the Second World War, rebuilt afterwards in 1960, and had been used as a cinema ever since. The court referred to Articles 15 (adversarial nature of proceedings), 30 (burden of proof), 62 (evaluation of evidence) and 248 (decisions with regard to administrative offences) of the Code of Civil Procedure, and in general terms to the Freedom of Consciousness and Religious Organisations Act (“the Act”), without referring to specific provisions of that law. 19. The applicant association appealed in cassation. It challenged inter alia the first instance court’s failure to apply the law that was applicable to the proceedings in the present case (Section 17 of the Act) and its erroneous application of legal provisions which were of no relevance to the legal relations at issue. In particular, the applicant association stated that: - the courts had not examined its complaints as to the lawfulness of the refusal of the Sevastopol City State Administration to transfer the religious premises at issue into its ownership and use; - the first instance court had established that the premises at issue were “communal property”, administered by the Sevastopol City Council, even though the proceedings concerned property owned by the State; - the property at issue had been unlawfully confiscated from a Roman Catholic religious community in Sevastopol and the State had undertaken to return this property back; - the “communal status of property” and the association’s failure to challenge transfer of property into “communal administration” were irrelevant to the determination of whether nationalised religious property should be returned or not. 20. On 17 May 2000 the Supreme Court examined the applicant’s appeal in cassation and upheld the ruling of 25 February 2000, finding no grounds for quashing it. In particular, it held that the premises had become communal property on 7 April 1999 and thus the Sevastopol City Council was the competent body to transfer title to property owned by it. Therefore, it was only within the competence of the Sevastopol City Council to decide and order return of such premises. It further stated that the first-instance court had lawfully refused to examine complaints about the right to claim property restitution as such complaints were to be examined in a different procedure. The court referred in its reasoning to the Local Self-Government Act and Articles 310 and 312 of the Code of Civil Procedure. 21. In September 2000 the applicant association instituted new proceedings before the Sevastopol City Arbitration Court, seeking a declaration that order no. 100 issued on 7 April 1999 was null and void. On 21 September 2000 the court, referring to the judgment of 25 February 2000 as being res judicata, ruled that the applicant association’s complaints were unsubstantiated. 22. On 13 December 2000 the First Deputy President of the Sevastopol City Arbitration Court upheld the judgment of 21 September 2000 in supervisory-review proceedings. In particular, it held that the applicant community had not raised any claims concerning the return of property to it before the first-instance court, and that the claims as to the unlawfulness of order no. 100 were unsubstantiated. 23. On 24 April 2001 the division responsible for review of decisions, rulings and resolutions of the Higher Arbitration Court examined the applicant association’s request for supervisory review of the aforementioned arbitration-court decisions and ruled that they were lawful and substantiated. It found that the premises at issue were communal property, had been damaged during Second World War and rebuilt in 1960s. The court also cited the findings made in the judgment of the Sevastopol City Court of 25 February 2000 as to the origin of the premises at issue. 24. From April 2001 the applicant association made repeated requests, both separately and jointly with religious groups of other denominations, for the transfer of the premises for use for religious purposes. In particular, they claimed that other larger religious denominations had received premises whereas their requests had been unsuccessful. These requests were heard by the Sevastopol City Council, at the request of the Sevastopol City State Administration, on 10 February 2004 and 10 November 2005. However, according to a letter from the Chairman of the Sevastopol City State Administration of 13 January 2006, a proposal by the City Administration to permit the use of the premises by the Catholic religious community of Sevastopol was not supported by the majority of the members of the City Council and so was not adopted. 25. On 30 September 2004 the then Prime Minister of Ukraine, Mr Yanukovych, instructed the Chairman of the Sevastopol City State Administration to organise, in cooperation with the City Council, the transfer of the premises to the applicant association. 26. On 24 January 2006 the Chairman of the Sevastopol City Council informed the applicant association that the cinema was part of a communal enterprise known as Kinoobyednannia “Kinosvit” (Кінооб’єднання “Кіносвіт”). He also stated that a transfer of the cinema for use by the religious community would be contrary to Article 21 of the Foundations of Legislation on Culture, so that there was no further need for the Sevastopol City Council to review the issue anew. 27. The most recent refusals to examine the issue of transfer of premises to the religious community date from August and September 2011. It appears from information in the case file, provided by the applicant association that the premises, which were cultural and historical monuments, were not being used as a cinema due to the poor state of the building and the need for significant renovation works. 28. The relevant domestic law and practice with regard to the activities of religious associations is summarised in Svyato-Mykhaylivska Parafiya v. Ukraine (no. 77703/01, 14 June 2007), and Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, §§ 21-32, 28 February 2008). Other relevant domestic regulations and administrative and judicial practice are briefly summarised below. 29. Under section 17 § 2 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991, the State undertook to transfer title to or possession of religious premises and property belonging to the State to religious organisations. The transfer of property had to be done free of charges, on the basis of decisions of the Kyiv and Sevastopol City State Administrations, regional administrations or the Government of the Crimea. 30. The relevant extracts from the text of section 17 of the Act (in force at the material time) read as follows: “Religious organisations shall be entitled to use buildings and property placed at their disposal by the State, by organisations and by private individuals, on a contractual basis. Religious buildings and property which constitute State-owned property shall be transferred by the organisations administering them to the religious associations for their unpaid use or shall be returned into their ownership without payment, in accordance with decisions by the regional, Kyiv and Sevastopol City State Administrations, and in the Republic of the Crimea, by the Government of the Republic of the Crimea ... ... Religious buildings and other property of historical, artistic and other cultural value shall be transferred into the use of the religious organisations and shall be used by them in compliance with the rules on protection and use of historical and cultural monuments ... ... Requests made by religious organisations for transfer of religious buildings and property into ownership or unpaid use shall be considered within a period of one month, and information in writing sent to the petitioners. ... Decisions by the State bodies with regard to ownership or use of religious buildings and property may be appealed against to a court in compliance with the procedure envisaged by the Code of Civil Procedure ...” 31. The relevant extracts from the Resolution of the Verkhovna Rada (Parliament) of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”, as amended on 23 December 1993, read as follows: “... 6. The Cabinet of Ministers of Ukraine, the Government of the Crimea and the regional, Kyiv and Sevastopol State Administrations shall ensure in accordance with the Act the return to the ownership of or free use of religious buildings and property by religious groups, taking into account the following: - the rights of the religious organisations which owned these buildings and property when they were nationalised; - the rights of the religious organisations which use these buildings and property in accordance with the procedure established by law; - investments made by the religious organisations in the property, rebuilding of the religious premises and length of use of such premises; - existence in the same residential area of other religious premises and their use by other religious organisations ...; - other important matters in their entirety. The decision of the relevant State body shall be reasoned ...” 32. Under the Presidential Decree of 4 March 1992 “On Measures Relating to the Return of Religious Property to Religious Organisations” it was established that all religious premises and property owned by the State and used “contrary to their mission” should be returned to the religious associations within the period 1992-1993. This period was further extended until 1 December 1997 by a Presidential Executive Order of 22 June 1994. On 21 March 2002 the President issued another decree “On Urgent Measures Relating to the Final Overcoming of the Negative Impact of the Totalitarian Policy of the Former Soviet Union with regard to Religion and on Restoration of the Breached Rights of Churches and Religious Organisations”, in which he recommended that regional bodies of local selfgovernment finalise the transfer of church premises that were being used “contrary to their designation”, and other buildings, to religious organisations. 33. Resolution No. 83 of the Cabinet of Ministers of Ukraine of 5 April 1991 (in force until 5 February 2002) “On the List of Historical Architectural Monuments which shall not be subject to Transfer to Permanent Use by Religious Organisations”, provided that the following cathedrals in Sevastopol were not to be returned to religious organisations: Volodymyrsky Cathedral (XIX century), Petropavlivsky Cathedral and Mykhaylivsky Cathedral (XIX century). 34. By Resolution No. 137 “On the Conditions of Transfer of Religious Premises which are Architectural Monuments to Religious Organisations” , adopted on 14 February 2002 by the Cabinet of Ministers, it was decided that such religious premises could be given to religious organisations for permanent use if the relevant educational institutions, archives or cultural institutions were moved to other premises. 35. On 14 July 1997 the Constitutional Court rejected a request for interpretation of section 17 § 3 of the Act, stating, inter alia, that complaints concerning the use of religious buildings and property were to be examined by courts of general jurisdiction. It also referred to the recommendations of the Presidium of the Higher Commercial (former Arbitration) Court in that regard. 36. On 21 October 1997 the Constitutional Court rejected a request for interpretation of the provisions of section 17 § 2 of the Act, lodged by the Greek-Catholic community “Preobrazhenska”, finding, inter alia, that there was no proof of inconsistent application of its provisions by the domestic courts. 37. According to paragraph 7 of the Practice Recommendation, the religious premises and property that belonged to State property were to be transferred into unpaid use or ownership of the religious organisations on the basis of the decisions taken by the regional, Kyiv and Sevastopol city state administrations and the Government of Crimea. The above-mentioned authorities were under an obligation to return such property, not used for religious purposes, within a period from 1992-1993. The return of property included transfer into unpaid use or ownership. The property could be returned to religious associations, which proved that they had owned the property before nationalisation. Thus, the Recommendation, with reference to Presidential Decree of 22 June 1996, mentioned that the transfer of ownership of the religious premises was one of the measures envisaged by law. Moreover, religious premises or property could be transferred to another religious association if there was no “legal successor” (правонаступник) religious association found in the vicinity where the religious premises or property were situated. 38. Paragraph 9.3 of the Practice Recommendation provided that property was to be returned to the same religious confessions which had owned the religious buildings before nationalization (orthodox church to be returned to orthodox community, Roman-Catholic church to RomanCatholic community, etc.). Information or written evidence as to the previous ownership of religious premises was to be sought from the parties, State archives, or State Religions Committee (paragraph 9.4 of the Recommendation). Claims for the return of religious premises to their original ownership could be lodged under the provisions of the Property Act with the commercial courts, and the lodging of complaints with the courts of general jurisdiction did not impede the examination of such claims (paragraphs 9.4-9.6 of the Recommendation). 39. Paragraph 9.8 of the Practice Recommendation stated that all property belonging to religious organisations before the entry into force of the Act was deemed to belong to the State and the State was to be regarded as the proper owner of such property. In particular, this ensued from the provisions of Article 366 of the Administrative Code of the Ukrainian Soviet Socialist Republic of 1927. Therefore, in accordance with section 4 of the Property Act, State bodies, which are mentioned in Section 17 of the law, could perform any lawful acts with respect to such property and the courts were to reject any claims against such lawful acts, unless these acts contravened the law. 40. The applicant association submitted two decisions of the Sevastopol City Council dated 29 December 1999 and 4 July 2006, by which title to former religious premises that were in communal ownership and used for cultural purposes had been transferred to Christian Orthodox communities in Sevastopol. By the decision of 29 December 1999 the Sevastopol City State Administration transferred title to the religious premises of the former St. Peter and Paul Cathedral, which had been used by the City Palace of Culture, to the Ukrainian Orthodox Church of the Moscow Patriarchate. According to the decision of 4 July 2006, the Sevastopol Centre of Culture and Arts was to be moved to different premises. 41. Article 2 of the 1991 Property Act (repealed by the Act of 27 April 2007), hereafter – the Property Act, established three forms of property ownership in Ukraine, which included private, collective and State property, with all three forms receiving equal protection from the State. Article 31 of the Property Act provides that the State property includes the State property itself and the property of administrative-territorial units (municipal or communal property). According to Article 32 of the Property Act, the subjects of the State property administration were the Verkhovna Rada of Ukraine (in relation to national property) and regional, district, town and village councils (in relation to communal property). Under Article 33 of the Property Act the Verkhovna Rada of Ukraine and the local council were responsible for administration of State property. Article 35 of the Property Act provides that communal property consisted of inter alia property necessary for ensuring economic and social development of a particular territory. 42. Paragraphs 3-5 of Article 16 of the Local Self-Government Act, in line with Article 142 of the Constitution of Ukraine, provide that the bodies of local self-government that represent local territorial communities, including the regional councils, shall be responsible for administration of “communal property”. 43. According to paragraphs 1-3 of the Cabinet of Ministers Resolution No. 311 of 5 November 1991 “On Separation of State Property of Ukraine into State-owned (Republican) Property and Property of the Administrative-territorial entities”, the “cultural property” had to be transferred into communal property and administered by the local territorial community of Sevastopol from the State property. 44. According to Article 248-11 of the Code, the courts had jurisdiction to hear complaints concerning decisions of State bodies with regard to the registration of religious associations and the ownership and use of religious property. Under Article 248-12 such complaints were to be lodged with the regional courts, the Kyiv and Sevastopol City Courts and, exceptionally, with the Supreme Court if the complaint concerned the State Religions Committee. A complaint could be lodged within a period of a month from the date of the decision. According to Article 248-13 of the Code, the complaint had to be examined within a period of ten days, if necessary with the participation of the complainant and the respondent State body. Under Article 248-13 of the Code, the court could order the State body to rectify its previous decisions so as to ensure that they complied with the law. The courts were to reject the claims if the State bodies’ decisions were lawful. 45. In accordance with Article 1 of the Code of Arbitration Procedure, in force at the material time, that is to say, before 21 June 2001, legal entities and private entrepreneurs engaged in business activities were entitled to apply to the arbitration courts, in accordance with the relevant jurisdictional rules, for the protection of their legal rights and interests. 46. Article 14 of the Code established that the Higher Arbitration Court had jurisdiction over complaints against the Regional State Administrations. In accordance with the rules on exclusive jurisdiction, under Article 16 of the Code cases concerning the enjoyment of possessions were to be examined in the arbitration court with jurisdiction for the area in which the property was situated. Under Article 17 of the Code, the court which had been wrongly seised was required to transfer the case file to another court that had jurisdiction in the case.