CASE OF LUPENI GREEK CATHOLIC PARISH AND OTHERS v. ROMANIA
(Application no. 76943/11)
19 May 2015
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 29/11/2016
This judgment may be subject to editorial revision.
In the case of Lupeni Greek Catholic Parish and Others v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Luis López Guerra,
Ján Šikuta,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco,
Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 21 April 2015,
Delivers the following judgment, which was adopted on that date:
1The case originated in an application (no. 76943/11) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a parish, diocese and archpriesthood situated in that State, namely the Lupeni Greek Catholic Parish, the Lugoj Greek Catholic Diocese and the Lupeni Greek Catholic Archpriesthood (Protopopiatul) (“the applicants”), on 14 December 2011.
2The applicants were represented by Ms D.O. Hatneanu and Ms C.T. Borsanyi, lawyers practising in Bucharest and Timișoara respectively. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
3Alleging a refusal by the domestic courts to determine on the basis of ordinary law what they considered to be their right of ownership over a church building, the applicants complained, inter alia, that there had been a breach of their right of access to a court and a failure to comply with the principle of legal certainty. They also complained about the length of the proceedings for restitution of the place of worship. Relying on essentially the same facts, they also alleged violations of their right to peaceful enjoyment of their possessions and of their right to freedom of religion, and a violation of the prohibition on discrimination.
4On 18 December 2012 the application was communicated to the Government.
5On 8 April 2014 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, to invite the Parties to submit further observations in writing on the admissibility and merits of the application.
6Ms Iulia Antoanella Motoc, the judge elected in respect of Romania, withdrew from the case (Rule 28 of the Rules of Court). The President of the Chamber accordingly appointed Ms Kristina Pardalos to sit as an ad hoc judge in her place (Article 26 § 4 of the Convention and Rule 29 § 1).
7The applicants belong to the Eastern-Rite Catholic (Greek Catholic or Uniate) Church.
1The legal framework governing the Greek Catholic parishes
8Until 1948 the Greek Catholic parishes owned various properties, including churches and adjacent land, parish houses and cemeteries.
9The 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.
10After 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).
11Article 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).
2The legal situation of the applicants and of their church
12The 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.
13The 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
1Meetings of the joint committee
14The 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.
15During 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.
16The 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.
2Meeting of the interested parties under the auspices of the Ministry of Culture and Religious Affairs
17In 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.
18According 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.
19Previously, 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.
20By 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.
21An 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.
22On 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.
23On 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.
24The 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.
25On 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.
26By 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.
27By 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.
28The Orthodox parish lodged an appeal against that judgment.
29By 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.
30The 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.
31It 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”.
32Lastly, 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.
33The 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.
34In 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...”
35In 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.
36According 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.
37The relevant domestic law in this case, as in force at the material time, namely the pertinent articles of the Constitution and of Decree no. 177/1948 on the general scheme of religious denominations, were set out in the case of Greek Catholic Parish Sâmbata Bihor v. Romania (no. 48107/99, §§ 35-37, 12 January 2010).
38Legislative Decree no. 126/1990 on certain measures concerning the Romanian Church United to Rome (the Greek Catholic Church) was published in Official Gazette no. 54 of 25 April 1990. In so far as relevant, it provides as follows:
Article 1
“Following the repeal of Decree no. 358/1948 by Legislative Decree no. 9 of 31 December 1989, the Romanian Church United to Rome shall be officially recognised...”
Article 3
“The legal situation of the religious buildings and parish buildings which belonged to the Uniate Church and were appropriated by the Romanian Orthodox Church shall be determined by a joint committee, made up of representatives of the clergy from both of the two religious denominations, which shall take into consideration the wishes of the adherents in possession of those properties (dorinţa credincioşilor din comunităţile care deţin aceste bunuri).”
Article 4
“In the 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 have it, and shall contribute to raising the necessary funds.”
39Article 3 of the above-mentioned Legislative Decree was supplemented by Government Ordinance no. 64/2004 of 13 August 2004 (“Order no. 64/2004”), which entered into force on 21 August 2004 and which added a second paragraph, worded as follows, to that provision:
“Should the members of the clergy representing the two denominations on the joint committee fail to reach an agreement within the joint committee provided for in Article 1, the party with an interest in bringing judicial proceedings may do so under ordinary law.”
40Law no. 182/2005 of 13 June 2005 (“Law no. 182/2005”), which entered into force on 17 June 2005, amended the second paragraph of Article 3, inserted by Order no. 64/2004, and added two further paragraphs, as follows:
“The party with an interest in bringing proceedings shall convene the other party, by communicating in writing its claims and providing the evidence on which it bases those claims. The meeting shall be convened by registered post with a form for acknowledgment of receipt, or by personal delivery of the letter. A period of at least thirty days shall elapse between the date of receipt of the documents and the date fixed for the meeting of the joint committee. The committee shall be made up of three representatives from each denomination. If the committee does not meet at the end of the period fixed for its meetings, or if it does not reach a conclusion or if one of the parties is dissatisfied with the decision taken by the committee, the interested party may bring legal proceedings under ordinary law.
The action shall be examined by the courts.
The action shall be exempt from court tax.”
41Government Emergency Ordinance no. 94/2000 on the restoration of buildings having belonged to religious denominations in Romania, as amended on 25 July 2005 and published in the Official Gazette on 1 September 2005, provides:
Article 1
“(2) The legal status of buildings which serve as places of worship shall be governed by a special law.”
42Law no. 165/2013 on the finalisation of the restitution process, in kind or on the basis of equivalent compensation, of property unlawfully transferred to State ownership under the communist regime in Romania does not apply to claims for restitution submitted by the Greek Catholic community with regard to places of worship.
43Article 480 of the Civil Code provides:
“Ownership is the right to right to enjoy and dispose of things in the most absolute manner, provided that one does not use them in a way prohibited by law.”
44Legal opinion and the case-law define an action for recovery of possession, which is not regulated by statute, as an action by which the owner of a property who has lost possession of it to a third party seeks to have his or her title to the property re-established and to obtain possession of it from the third party.
45The Romanian courts have considered that it is sufficient during recovery proceedings to examine the two titles, namely those of the claimant and the respondent, in order that the court examining the action may declare that one of them had priority (este mai caracterizat) over the other on account, for example, of its chronological priority or the fact that it had previously been included in a land register (see, for example, judgment no. 2543/1996 of the Ploieşti Court of Appeal, published in M. Voicu and M. Popoacă, Dreptul de proprietate şi alte drepturi reale. Tratat de jurisprudenţă 1991 – 2002 (Ownership and other rights in rem. Treatise on the case-law), Ed. Lumina Lex, Bucharest, 2002, p. 358; see also no. 1554/2000 of the Cluj Court of Appeal).
C. The domestic case-law concerning the actions for restoration of church buildings brought by various Greek Catholic parishes
46The parties submitted to the case file judicial decisions concerning the actions brought by Greek Catholic communities against Orthodox communities with a view to obtaining restitution of places of worship. The majority of these actions were based on Article 480 of the Civil Code and sought to obtain rectification of the entries in the land registers in which the Orthodox communities had recorded their ownership rights to the disputed properties.
1Decisions issued by the High Court of Cassation and Justice
47The High Court of Cassation and Justice examines actions as a court of final instance, on an appeal (recurs) by the parties.
48In a series of decisions added to the file (see, for example, the High Court of Cassation and Justice’s judgments of 5 February 2013, March 2013, 19 March 2013, 16 May 2013 and 2 October 2013, of 16 May 2012 and 12 December 2012, and of 26 January 2011 and 24 November 2011), the High Court of Cassation and Justice held that, although the Greek Catholic party had brought an action under ordinary law to recover possession, it could not overlook the criterion of the wishes of the adherents of the communities in possession of these properties, laid down in the special law, namely Legislative Decree no. 126/1990. In another series of cases, the High Court of Cassation and Justice overturned the decisions of the lower courts, remitting the cases for fresh examination, on the ground that the criterion laid down in the special law had not been applied (see, for example, the judgments of 24 March 2009, 9 November 2010, 14 November 2012 and 11 December 2012, and of 7 February 2013).
49In a judgment of 20 June 2013, the High Court of Cassation and Justice granted an action to recover possession in a context where the two denominations existed in a village where, although only two of the village’s ninety residents belonged to the Greek Catholic Church, the church building being claimed was not used by the Orthodox Church.
50In some judgments, the High Court of Cassation and Justice ruled on claims for possession by comparing the titles held by the parties to the dispute as these were entered in the land register (see, for example, the judgments of 10 March 2011, of 16 May 2012, 2 October 2012 and 21 November 2012, and of 1 October 2013). In a final judgment of 25 November 2008, the High Court of Cassation and Justice remitted a case to the lower courts for judgment after having noted that the Orthodox Church was entered in the land register and that the criterion of the adherents’ wishes was applicable only during the preliminary procedure before the joint committees.
2The case-law of the Constitutional Court
51The Constitutional Court was required to examine a plea of unconstitutionality with regard to Article 3 § 1, in fine, of Legislative Decree no. 126/1990, which states that the legal situation of places of worship is to determined taking into account “the wishes of the adherents of the communities in possession of the properties”. According to the party which submitted the plea of unconstitutionality, this legal text was contrary to the provisions of the Constitution which protect freedom of conscience and the right of property. In decision no. 23 of 27 April 1993, the Constitutional Court dismissed that objection and held that this criterion, applied by the joint committees, was compatible with the Constitution. Following another plea of unconstitutionality, it confirmed its position in decision no. 49 of 19 May 1995.
52By a decision of 27 September 2012, the Constitutional Court confirmed its previous case-law and rejected the complaint that the above‑mentioned Article 3 was unconstitutional, ruling as follows:
“... democracy implies the application of the majority principle, yet the last part of Article 3, [namely] “which will take into account the wishes of the adherents in the communities in possession of the properties” enunciates this principle by introducing a social criterion, that of the wishes of the majority of the parishioners.
The [Constitutional] Court has held that the freedom of religious denominations implies not only their autonomy with regard to the State ... but also freedom of religious belief... Where, there are Orthodox and Greek Catholic worshippers in the same parish, the application of the social criterion – namely the wishes of the majority of parishioners – in order to decide the fate of places of worship and parish houses is compatible with the democratic principle of determining the religious use of that property, where this is the will of the majority of those who enjoy that use. 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”.
However, this would be contrary to Article 57 of the Constitution, according to which citizens must exercise their rights and freedoms in good faith and without infringing the rights and freedoms of others. If, in a scenario of restitution of ownership rights, the choice of the majority were to be ignored, this would be in breach of good faith and would be contrary to respect for the rights of others...
Such a measure would be in breach of Article 29 of the Constitution, which enshrines the freedom of religious denominations in its two forms – a denomination, as a religious organisation and association, and as the practice of a rite. Equally, it would infringe the provisions of the Constitution governing the relationship between religions ..., according to which ‘freedom of conscience is guaranteed; it must be exercised in a spirit of mutual tolerance and respect’, and Article 29 § 4, [which provides] ... ‘in the relations between denominations, all forms, all means, all deeds and all actions of religious discord shall be prohibited’. Indeed, in such cases, the majority would be forced to accept the wishes of a minority.”
53Under Article 329 of the Code of Civil Procedure and Article 514 of the new Code of Civil Procedure, in force since February 2013, the Principal Public Prosecutor in the prosecutor’s office at the High Court of Cassation and Justice, acting on his or her own motion or on a request by the Minister of Justice, and also the governing councils of the appeal courts, and, more recently, the governing councils of the High Court of Cassation and Justice, and the Ombudsman, are entitled to request that the High Court of Cassation and Justice rule on questions of law which have been decided in different ways by the courts, with a view to ensuring consistent interpretation and application across the country. The decisions are issued in the interests of the law, and do not have an effect on the judicial decisions that are examined or the situation of the parties in the proceedings. The courts must comply with the conclusion reached by the High Court of Cassation and Justice.
54The Third Report on Romania by the European Commission against Racism and Intolerance (“ECRI”), adopted on 24 June 2005 and published on 21 February 2006, contains the following observations:
“Legislation on religious denominations
...
15ECRI notes with concern reports that although it does not have the status of a state religion, the Orthodox Church, which is the majority religion in Romania, holds a dominant position in Romanian society. The other religions thus consider that the Orthodox Church has too much influence on the authorities’ policies. It also appears to receive benefits that the other religions do not have, such as chapels in prisons and detention centres. This Church is also said to exert a lot of influence over government decisions on matters such as the award of status as a religious cult to religious associations. ECRI also notes that given the number and diversity of officially recognised and practised cults in Romania, the inter-religious dialogue between the Orthodox Church and other religious denominations could be improved. In particular, the dialogue between this Church and the Greek Catholic Church is apparently at a low ebb, mainly on account of the manner in which the authorities handle the issue of the restitution of property confiscated during the communist period.
16ECRI also notes with concern reports that members of the Orthodox Church were engaging in all manner of harassment against followers of the Greek Catholic Church with a certain degree of complacency from the authorities. ECRI has also been informed that although religious education is not compulsory in Romania, there are cases in some state schools where pupils receive religious instruction against their parents’ will.
...
45ECRI notes with concern that the restitution of churches previously belonging to the Greek Catholic Church has become a source of tension between the latter and the Orthodox Church. Despite attempts to reach a friendly settlement, the Orthodox Church refuses to return these churches to the Greek Catholic Church and the authorities do not appear to be taking action to enforce the law. ECRI therefore hopes that the authorities will take a more active part in resolving issues relating to the restitution of Greek Catholic churches to ensure that the law is applied fairly, in a spirit of tolerance and mutual respect...”
55ECRI’s Fourth Report on Romania, adopted on 19 March 2014 and published on 3 June 2014, contains the following observations:
“22. In its third report, ECRI recommended that the Romanian authorities enforce the law governing property restitution and encourage religious denominations, particularly the Orthodox Church and other religious minorities, to initiate a constructive dialogue on this point. It also recommended that the authorities introduce mediation arrangements, hold inter-religious colloquies and seminars and conduct information campaigns to promote the idea of a multidenominational society.
23The authorities have confirmed that property disputes between the Orthodox Church and the Greek Catholic Church have led to tensions between the two confessions. On a general note, the Orthodox Church has been slow in returning Greek Catholic churches received in 1948 by the State and has often refused to do so.
24A joint commission, composed of representatives of the clergy of the two churches, has been in place since 1999 in order to resolve these property disputes; the work of this commission, however, does not seem to have yielded significant results. The National Authority for Property Restitution has informed ECRI that since 2005, out of 6,723 restitution claims, 1,110 have been processed ... An advisory Council of the Churches and Religious Denominations was also set up in April 2011 in order to promote solidarity and cooperation and prevent conflicts between the different religions in Romania; it meets up to twice a year. ECRI welcomes the above‑mentioned efforts and encourages the authorities to take a leading role in resolving these disputes, which, again, relate to property confiscated by the State.”
56The Romanian Government’s response to ECRI’s Fourth Report, in so far as relevant to this case, is worded as follows:
“With regard to paragraphs 22-25, the State Secretariat for Religious Denominations constantly sought to act as a mediator for defusing the tensions between the Romanian Orthodox Church and the Romanian Church United with Rome (Greek Catholic), and was actively involved in finding solutions convenient to both sides in their patrimonial dispute; the State Secretariat for Religious Affairs supports financially the projects of building new houses of worship in the areas where one of the parties becomes irrevocably the owner of the house of worship previously disputed.
The National Authority for Property Restitution/NAPR also continued the series of meetings with the representatives of the two churches, during which the discussed aspects concerned the state of solution of applications lodged before the special restitution commission and the difficulties encountered within the restitution process.
During these meetings aspects related to the situation of properties which belonged to the Greek Catholic Church and which are currently held by the Romanian Orthodox Church were also discussed, the encouragement of the dialogue between the two churches with a view to reaching a friendly solution of the patrimonial dispute. As regards the present state of solution of restitution demands lodged by the Greek Catholic Church before the special restitution Commission, it is to be underlined that out of 6,723 restitution demands, 1,110 have been solved (a percentage of 16.51%).
The situation of restitution demands finalised according to the manner of their solution:
Restitution in kind: 139
Proposal for damage: 52
Rejection: 66
Other solutions (redirection, renunciation, etc.): 853”
57Relying on Article 6 § 1 and Article 13 of the Convention, the applicants alleged an infringement of their right of access to a court. In this connection, they complained that in determining their case, the domestic courts had not applied the rules of ordinary law but had obliged them to comply with a criterion laid down by the special law on the non-contentious procedure (namely, the wishes of the adherents of the community in possession of the property) although, according to the applicants, the application of that criterion had not been foreseeable. The Court has already held that, where such issues arise, the guarantees of Article 13 are absorbed by the stricter guarantees of Article 6 (see Ravon and Others v. France, no. 18497/03, § 27, 21 February 2008). It follows that the applicants’ allegations fall to be examined solely under Article 6 § 1 of the Convention.
The applicants also complained about the length of the proceedings.
58The relevant part of Article 6 § 1 of the Convention provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
59The Court notes at the outset that the applicants’ action was covered by Article 6 § 1 of the Convention in its civil aspect, since it was aimed at securing recognition of their title to a building, an economic right (see Sâmbata Bihor Greco-Catholic Parish, cited above, § 65).
60It notes further that these complaints by the applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.
1Right of access to a court
(a) The parties’ submissions i. The applicants
61The applicants considered that their right of access to a court had been merely illusory, since, in their submission, the courts had not had full jurisdiction to examine issues of law and fact in determining the dispute over the church building. In this regard they specified that, by applying the criterion in the special law, namely the wishes of the adherents of the community in possession of the property – the respondent party in the dispute –, the courts had deprived of all substance their right of access to a court.
62In their supplementary observations, the applicants indicated that, since the majority would always be Orthodox, it was difficult to recover possession of the place of worship. They considered that the domestic courts required to examine an action for recovery of possession ought to apply the ordinary law and compare the parties’ titles, and that taking into consideration the two denominations’ contribution to constructing the building or its use were not relevant criteria in establishing titles to property. Lastly, they submitted that the absence, as they saw it, of a clear and foreseeable legal provision on the manner in which the criterion of the wishes of the majority of adherents was to be combined with ordinary law had had the effect of rendering ineffective their right of access to a court.
ii. The Government
63The Government did not deny that there had been a limitation in the applicants’ right of access to a court, but they submitted that this limitation had been justified and proportionate. They argued that it was important not to lose sight of the special nature of the case and the status of the parties, religious communities which, according to the Government, were guided by the principles of tolerance and inter-denominational understanding. They considered that intervention by the State in controlling the use of religious property ought to be minimal, since such intervention had to respect the principle of neutrality towards the religious communities. The Government then noted that the domestic courts had not dismissed the applicants’ action on the ground that it was inadmissible, but that it was ill-founded, after having, in the Government’s submissions, carried out a comparative analysis of the titles to the property and preferred that presented by the respondent party.
64In their supplementary observations, the Government returned to the arguments concerning the circumstances of the case which had led both the appeal court and the High Court of Cassation and Justice to dismiss the applicants’ action. They added that those courts had sought to identify, in the history of the church building’s construction, elements to be taken into consideration in determining the wishes of the adherents.
(b) The Court’s assessment i. The applicable principles
65The Court reiterates that Article 6 of the Convention secures to everyone the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect. This right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. However, while the Contracting States enjoy a certain margin of appreciation in this area, the final decision as to observance of the Convention’s requirements rests with the Court (see Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). The limitations imposed must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see Stagno v. Belgium, no. 1062/07, § 25, 7 July 2009, and Stanev, cited above, § 230).
66The Court further reiterates that it is not its task to substitute itself for the domestic courts: it is primarily for the national authorities, notably the courts of appeal and of first instance, to resolve problems of interpretation of domestic legislation (see, among many other examples, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports of Judgments and Decisions 1997 VIII, and Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 33, Reports 1998-I). Its role is to verify whether the effects of such interpretation are compatible with the Convention.
ii. Application of these principles to the present case
67The Court notes that the present case has arisen in the special context of the restitution of the places of worship which had belonged to the Greek Catholic Church, which was suppressed by the communist regime. It is aware that restitution of these places of worship is a relatively large-scale problem and a socially sensitive issue. In this connection, it reiterates that it has already held that, even in such a context, a general exclusion of disputes concerning places of worship from the jurisdiction of the courts in itself infringed the right of access to a court, especially as the system of prior dispute resolution instituted by Legislative Decree no. 126/1990 had not been sufficiently regulated and judicial supervision of the joint committee’s decision had not been adequate (see Sâmbata Bihor Greek Catholic Parish, cited above, §§ 66-75).
68In the present case, the Court notes that Article 3 of Legislative Decree no. 126/1990, as amended successively by Order no. 64/2004 and Law no. 182/2005, afforded the applicants a possibility of bringing legal proceedings to determine the legal situation of the place of worship (see, a contrario, Tserkva Sela Sossoulivka v. Ukraine, no. 37878/02, § 51, 28 February 2008). Equally, Article 3, thus amended, set out the deadlines to be complied with and the procedure before the joint committee, so that this prior stage was not an obstacle to bringing proceedings before a court (see, a contrario, Sâmbata Bihor Greek Catholic Parish, cited above, § 71).
69The Court further observes that the applicants used the means made available by Article 3 of Legislative Decree no. 126/1990, amended, and that they brought proceedings against the Orthodox Church which was in possession of the property before the county court, through an action to recover possession of the contested place of worship. That being so, the applicants alleged that the criterion laid down by the special law, to the effect that the legal situation of the places of worship was to be determined taking into consideration “the wishes of the adherents of the communities in possession of those properties”, constituted a limitation on their right of access to a court, on the ground that it gave priority to the wishes of the respondent party in those proceedings.
70The Court reiterates that it is not its role to assess as such the system established by the Romanian legislature to determine the legal situation of the places of worship that had belonged to the Greek Catholic congregations and were transferred during the totalitarian regime to the ownership of the Orthodox Church. Nor is it the Court’s task to decide on the rules of law that are generally applicable in an action for recovery of possession in respect of a place of worship. The Court will therefore confine itself, in so far as possible, to examining the issues raised by the specific case before it (see Bellet v. France, 4 December 1995, § 34, Series A no. 333 B). While it is not empowered to substitute its own assessment for that of the national authorities as regards the application of domestic law, it is its duty to rule at last instance on compliance with the requirements of the Convention. In order to do so, however, it must examine the criterion of “the wishes of the adherents of the communities in possession of those properties” in order to decide whether the application of that criterion breached the applicants’ right of access to a court.
71In this connection, the Court notes that the domestic courts did not hold that they lacked jurisdiction to deal with the case, but examined it on the merits before declaring it manifestly ill-founded. They explained that they intended to apply the criterion laid down in the special law on the basis of specific factual elements. Thus, they had taken account of the historical context, the financial contributions to the building by the various parties, and the manner in which it was used (see paragraphs 28 to 30 above). They examined the criterion of the wishes of the adherents of the communities in possession of the property over time, and took into account historical and social aspects, and not merely statistical factors. They considered all of the applicants’ submissions on their merits point by point, without ever having to decline jurisdiction in replying to them or in ascertaining various facts. They delivered judgments which were carefully reasoned and the applicants’ main arguments relevant to the outcome of the case were dealt with thoroughly. The Court thus notes that the domestic courts had full jurisdiction in this case to apply and interpret domestic law, without being bound by the refusal of the Orthodox Church to reach a prior friendly settlement. In addition, the scope of review carried out by them was sufficient to comply with Article 6 § 1 (see, mutatis mutandis, Potocka and Others v. Poland, no. 33776/96, §§ 56-59, ECHR 2001 X, and, a contrario, Terra Woningen B.V. v. the Netherlands, 17 December 1996, § 52, Reports 1996 VI).
72The Court reiterates that for the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his or her rights (see Bellet, cited above, § 36). It notes that in the present case the applicants’ action was examined in depth by a court. The mere fact that the applicants considered the criterion laid down in the special law, namely “the wishes of the adherents of the communities in possession of the properties”, to be unfair is not sufficient to render their right of access to a court ineffective.
73Having regard to all the circumstances of the present case, the Court considers that the applicants were able to exercise their right of access to a court. It follows that there has been no violation of Article 6 § 1 of the Convention.
2Alleged breach of the principle of legal certainty
(a) The parties’ submissions i. The applicants
74The applicants considered that the application of the criterion laid down in the special law to an action for the recovery of possession under ordinary law had not been foreseeable. In this connection, they argued that the High Court’s case-law in this area had been inconsistent in the years immediately after the entry into force of Law no. 182/2005 and that it was only in 2012 and 2013 that the case-law of the High Court of Cassation and Justice had, in their view, attained quasi-consistency in applying the contested criterion. Thus, they criticised the conflicting decisions issued by the highest court in judgments that, they argued, were sometimes adopted by one and the same judges, and at also the level of the lower courts.
75They indicated that although twenty-four years had elapsed since the entry into force of Legislative Decree no. 126/1990, the domestic legislation applicable to disputes concerning places of worship was still not clear, especially with regard to the manner in which the special law and the Civil Code were to be combined. In their opinion, it was clear from the lower courts’ case-law that they took into consideration and interpreted various factors for the sole purpose of putting the Greek Catholic party at a disadvantage. Lastly, the applicants indicated that Government Ordinance no. 94/2000 provided that the legal system applicable to places of worship would be regulated by a special law. However, no such law had been enacted.
ii. The Government
76The Government considered that the application of the wishes of the faithful in the context of an action for recovery of possession had been foreseeable and that the special law should prevail over the general law. In this connection, they indicated that Legislative Decree no. 126/1990 stated that this criterion was to be taken into consideration in the restitution of places of worship at the same time as it officially recognised the Greek Catholic denomination. In their submissions, the Legislative Decree thus enabled former parishioners who so wished to return to the Greek Catholic denomination, which they had been obliged to renounce in 1948, and to find a solution with regard to the ownership of the place of worship, with a view to restructuring the local congregation.
77Noting that they were referring to the Constitutional Court’s judgments (see paragraphs 51 and 52 above), the Government indicated that this criterion had been found to be compatible with the Constitution and that it corresponded to social reality. They argued that the amendments introduced by Law no. 182/2005 were aimed at securing access to justice, without introducing a different perspective with regard to ownership relations between the denominations. They added that it emerged from the domestic courts’ practice that the criterion of the wishes of the adherents was taken into account in deciding whether or not to hand back a place of worship. According to the Government, to apply this criterion solely in the prior procedure and disregard it in the judicial proceedings would lead to the wishes of the community which used the place of worship, and which had contributed to its construction, being flouted, especially as the prior procedure was not be mandatory.
78Lastly, the Government indicated that the courts had not applied the criterion concerning the adherents’ wishes solely in terms of the number of worshippers in a community, but were required to establish the latter’s wishes after having examined a multitude of social, historical and legal factors.
(b) The Court’s assessment i. The applicable principles
79As the Court has indicated above, it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. That being so, save in the event of evident arbitrariness, it is not the Court’s role to question the interpretation of the domestic law by the national courts (see, for example, Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008). Similarly, it is not in principle its function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see Gregório de Andrade v. Portugal, no. 41537/02, § 36, 14 November 2006, and Ādamsons, cited above, § 118).
80The Court has already acknowledged that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Santos Pinto v. Portugal, no. 39005/04, § 41, 20 May 2008).
81The Court has been called upon a number of times to examine cases concerning conflicting court decisions (see, among other authorities, Beian v. Romania (no. 1), no. 30658/05, ECHR 2007‑XIII, and Iordan Iordanov and Others v. Bulgaria, no. 23530/02, 2 July 2009), and has thus had an opportunity to pronounce judgment on the conditions in which conflicting decisions of domestic supreme courts were in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention. In so doing it has explained the criteria that guided its assessment, which consist in establishing whether “profound and long-standing differences” exist in the case-law of a supreme court, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 53, 20 October 2011).
ii. Application of these principles to the present case
82The Court notes that the applicants brought proceedings before the domestic courts for recovery of possession on the basis of ordinary law. Contrary to their expectations, the court of appeal and the High Court of Cassation and Justice considered that they could not deal with the case as a claim for recovery of possession under ordinary law, and gave preference to the application of a special law, namely Legislative Decree no. 126/1990. The applicants considered that this showed that application of the criterion of the special law in the context of an action to recover possession under ordinary law had not been foreseeable, and, in consequence, that the principle of legal certainty had not been complied with.
83The Court notes that Government Ordinance no. 64/2004 of 13 August 2004 (“Ordinance no. 64/2004”) provides that, should the clergy representing the two religious denominations fail to reach an agreement in the joint committee, the party with an interest may bring proceedings under ordinary law.
84In defining the applicants’ situation, the concept “under ordinary law” introduced by Ordinance no. 64/2004 and its interrelation with the provisions of Legislative Decree no. 126/1990 are essential. In referring to ordinary law in this way, neither this Ordinance nor any subsequent law provided additional clarifications as to its interpretation. In general, “ordinary law” in the area of protection of the right of property is represented by an action for recovery of possession, governed by Article 480 of the Civil Code as interpreted by legal commentary and the case-law (see paragraphs 43 to 45 above).
85The Court also notes that in July 2005 Government Emergency Ordinance no. 94/2000 (“Ordinance no. 94/2000”) on the restitution of buildings that had belonged to religious denominations in Romania was amended to state that “the legal regime governing buildings which constitute places of worship shall governed by a special law”. Yet to date no law has been enacted on this subject. Moreover, the amendment to Ordinance no. 94/2000 made no reference to the provisions of Legislative Decree no. 126/1990, which mentioned the criterion of the wishes of the majority of adherents, although that legislative decree already existed when the amendment in question was adopted.
86These considerations indicate that, in judicial proceedings such as the action for recovery of possession in issue, the courts were called upon to determine disputes without having access to a sufficiently clear and foreseeable legislative framework. The consequence was that different domestic courts reached different legal conclusions on the same legal issue brought before them. The domestic courts, including the High Court of Cassation and Justice, in examining an action for recovery of possession on the basis of Article 480 of the Civil Code, interpreted this concept in two different ways: certain courts considered that they ought to examine the action for recovery of property in the traditional manner, by comparing the titles to property (see paragraph 49 above); others, as in the present case, ruled that they were required to determine the action for recovery of property by applying the criterion laid down in Legislative Decree no. 126/1990 (see paragraph 48 above).
87The Court reiterates that achieving consistency of the law may take time, and periods of conflicting case-law may therefore be tolerated without undermining legal certainty (see Nejdet Şahin and Perihan Şahin, cited above, § 83). As case-law is not unchanging, but on the contrary, evolutive in essence, the Court considers that the principle of good administration of justice cannot be taken to impose a strict requirement of case-law consistency (see Unédic v. France, no. 20153/04, § 73, 18 December 2008, and Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, § 38, 14 January 2010).
88In addition, these discrepancies may be tolerated when the domestic legal system is capable of accommodating them. Although the mechanism for an appeal in the interests of the law was not used in the present case (see paragraph 52 above), the highest courts in the country, namely the High Court of Cassation and Justice and the Constitutional Court, resolved these discrepancies by bringing their own respective positions into line with regard to the applicability of the criterion in the special law. In 2012 and 2013 the case-law of the High Court of Cassation and Justice moved towards giving priority to the criterion set out in the special law, namely the wishes of the adherents of the communities in possession of the properties. In the same vein, the Constitutional Court has consistently held that this criterion is compatible with the Constitution (see paragraphs 51 and 52 above).
89The Court also reiterates that achieving case-law consistency by introducing in the judicial system measures to guarantee coherency of practice necessarily takes some time (see Schwarzkopf and Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008). It follows that, in the present case, the fact that the contested decision had been delivered prior to consistency being achieved in the case-law in this area could not in itself breach the principles of legal certainty and foreseeability of the law, in that the domestic judicial system proved capable of ending this uncertainty by its own means (see, mutatis mutandis, Albu and Others v. Romania, § 42, 10 May 2012). Furthermore, the solution adopted in the applicants’ case was similar to the decision reached one year later by the Constitutional Court and to the almost totally unanimous case-law of the High Court of Cassation and Justice (see Usnul v. the Czech Republic, no. 33945/06, 29 March 2011).
90The Court notes that the documents submitted by the parties do not make it clear how long this legal uncertainty prevailed at the domestic level. That being stated, while it is undeniable that the domestic courts’ harmonisation of the case-law took several years, the Court takes into account the complexity of the issue raised by the present case and its societal impact. In addition, the situation in the present case did not involve clarifying divergent interpretations of a legal provision, but determining on the basis of precedent when ordinary law or the rules laid down in the special law ought to apply.
91Lastly, the Court reiterates that where there is no evidence of arbitrariness, examining the existence and the impact of such conflicting decisions does not mean examining the wisdom of the approach the domestic courts have chosen to take (see Nejdet Şahin and Perihan Şahin, cited above, § 89). In the present case, the Court considers that, even if the High Court of Cassation and Justice’s interpretation of the concept of “ordinary law” and its interaction with the special law was unfavourable to the applicants, that interpretation does not, in itself, constitute a violation of Article 6 of the Convention. It is also appropriate to emphasise that the applicants cannot claim to have been denied justice, since their dispute was examined by the court of appeal and the High Court of Cassation and Justice. The Court also considers that these decisions were duly reasoned, in terms of the facts and the law, and that the interpretation made by these courts with regard to the circumstances submitted for their appreciation was not arbitrary, unreasonable or capable of affecting the fairness of the proceedings, but was simply a case of application of the domestic law.
92In the light of the foregoing, the Court concludes that there has been no violation of Article 6 § 1 of the Convention in this respect.
3Length of the proceedings
(a) The parties’ submissions
93The applicants complained about the length of the proceedings which, they submitted, had lasted ten years and one month, and considered that this length was imputable to the domestic authorities. They argued that their case had not been complex and that the evidence had been submitted to the case file as soon as the action was brought before the courts.
94The Government were of the opinion that the length of the proceedings in issue was compatible with the criterion of judgment within a “reasonable time”. With regard to the period to be considered, they indicated that the case had been suspended from 22 February 2002 to 23 March 2003, that is, for one year and one month. They also considered that the present case had been a particularly complex one, in view of the factual and legal issues involved. Lastly, they argued that there had not been any significant periods of inactivity or delay attributable to the national courts.
(b) The Court’s assessment
95The Court notes that the period to be taken into consideration for the second applicant began on 23 May 2001 and ended on 15 June 2011. It had therefore lasted ten years and about three weeks, spanning three levels of jurisdiction.
96As to the period to be taken into consideration for the two other applicants, the Court notes that, although they were mentioned in the statement of claim (see paragraph 19 above), the courts held in the first round of proceedings that only the second applicant had lodged the claim with them, although they agreed to examine the appeal on points of law lodged by the applicant parish (see paragraph
21 above). Given that, before the Court, the parties did not specify whether or not those two applicants had legal capacity to act in the first round of proceedings, it is it is appropriate to take as the start of the proceedings for those applicants the date on which the case was re-entered on the county court’s list in 2006, when those parties were added to the case (see paragraph
23 above). Moreover, these circumstances are set out in the court of appeal’s judgment of 11 June 2010 (see paragraph 29 above). There is no doubt that the proceedings also ended in respect of those applicants as a result of the High Court of Cassation and Justice’s final judgment of 15 June 2011. They thus lasted approximately five years for three levels of jurisdiction.
97The Court reiterates that the reasonableness of the length of proceedings has to be assessed according to the circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case (see, among many other examples, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
98In the present case the Court observes at the outset that the applicants cannot be criticised for any delay in the proceedings. The case was suspended on several occasions in order to enable the parties to seek a solution through the non-contentious procedure provided for by law. Equally, it should be noted that, in the first years, the domestic courts to which the claim was submitted held that they did not have jurisdiction to determine the merits of the case (see paragraphs 19 and
20 above). Subsequently, after the three applicants became parties to the proceedings, it was necessary to continue the procedure before the joint committee, although the merits of the case had already been submitted to the courts (see paragraph 24 above). Added to this, one judgment was quashed on formal grounds (see paragraph
23 above). In consequence, the Court concludes that the protracted nature of the proceedings was essentially attributable to the domestic authorities.
99While it is true that the proceedings were shorter for the applicant parish and the third applicant than for the second applicant, the Court cannot but note that the first two applicants were mentioned in the statement of claim (see paragraph 19 above) and that the applicant parish took an active part in the conduct of the procedure (see paragraph 21 in fine above). The Court also notes that when these two applicants intervened in the proceedings (see paragraph 23 above) the case had already been pending for five years before the domestic courts. Those domestic courts subsequently took three years to deliver a first valid judgment on the merits, and about two additional years to issue a final judgment.
100Having examined all the material submitted and having regard to its case-law on the subject, the Court considers that the applicants’ case was not heard within a reasonable time.
It follows that there has been a violation of Article 6 § 1 of the Convention on this point.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION
101The applicants submitted that they had had been discriminated against with regard to their right of access to a court under Article 6 § 1 of the Convention, a discrimination which was based, in their view, on their affiliation to a confession that was in the minority in the country. They relied on Article 14, which provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
102The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1The parties’ submissions
(a) The applicants
103The applicants considered they had been discriminated against on the basis of their religion, in so far as the provisions of Legislative Decree no. 126/1990 established the wishes of the adherents in possession of the disputed property as the criterion for determining the legal situation of places of worship. They indicated that although, in theory, this criterion could be seen as potentially favourable to both parties to the dispute, in reality the Greek Catholic Church did not possess any place of worship, as all of its property was, in the applicants’ submission, in the ownership of the Orthodox Church. They explained that it was for this reason that the Orthodox party had had no interest in participating in the joint committees and had blocked the applicants’ access to a court for a long period.
104In their supplementary observations, the applicants added that the Orthodox party had been successful because the criterion of the wishes of the adherents had been applied. They considered that reducing the courts’ jurisdiction to a formal finding of the wishes of one of the parties to the dispute had had the effect of rendering their right to a court illusory. They specified that, in similar cases, certain courts had carried out a comparison of the titles to the properties concerned, without taking into consideration the wishes of the adherents in possession of the property and that, accordingly, they themselves had suffered discrimination in relation to other Greek Catholic parishes in a similar situation.
(b) The Government
105The Government considered that the applicants had in no way shown that they had been subjected to discrimination, either in relation to the Orthodox religious communities or in relation to the other Greek Catholic communities who were in a similar situation.
106In their additional observations, referring to the foreseeability of the disputed criterion, the Government explained that this criterion originated in a deep-seated social and historical context. They emphasised the specific nature of the buildings in dispute, namely places of worship. They argued that the adopted legislation was intended to enable the adherents to settle the fate of the place of worship, given that the adherents had contributed to its construction and maintenance, and had enabled it to be used as it was. They added that when Legislative Decree no. 126/1990 was adopted, all options were open to the parishioners: the Greek Catholic denomination could legitimately have hoped to rebuild its community to size similar to what it had been prior to dissolution, while the Orthodox denomination could have envisaged a loss of adherents, namely those who had been reluctantly obliged to leave the Greek Catholic denomination during the totalitarian regime.
107The Government emphasised that the criterion of the “the wishes of the adherents of the communities in possession of the properties” had been confirmed by the consistent case-law of the Constitutional Court, which had set out in its decisions the reasons why the legislative solution adopted was not only compatible with the Constitution, but also corresponded to social realities (see paragraphs 51 and 52 above).
108Lastly, they indicated that the applicants had been able to submit their claim to the domestic courts, which had examined the action on the merits and issued decisions containing extensive reasoning and with no sign of arbitrariness. They added that the courts had established the wishes of the faithful after having examined a multitude of social, historical and legal factors, and that the applicants had not been at a disadvantage on account of their religion. They concluded that the disputed criterion provided for in Legislative Decree no. 126/1990 had not been applied in order to favour a given religious community, but to enable the adherents to determine the fate of the property built by them, with a view to avoiding more severe injustices than those that the legislative decree sought to remedy.
2The Court’s assessment
(a) The applicable principles
109As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. This article has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by them. Although the application of Article 14 does not presuppose a breach of those provisions ‑ and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among many other authorities, E.B. v. France [GC], no. 43546/02, § 92, 22 January 2008).
110Similarly, the Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007‑IV). However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV, and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006‑VI). The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6 January 2005), and that discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006‑VIII).
111A difference in treatment is discriminatory if it lacks objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Stec and Others v. the United Kingdom [GC], cited above, § 51).
(b) The application of these principles in the present case
112The Court notes that in the present case the applicants alleged that they had been the victims of discrimination in the exercise of their right of access to a court, discrimination which was allegedly based on the domestic courts’ application of the criterion of the wishes of the adherents of the community in possession of the property, this community being the respondent party in the proceedings. Having regard also to the fact that the Orthodox community in possession of the property represented the majority denomination in Lupeni, the applicants considered that they had been discriminated against on the basis of their affiliation to a minority denomination.
113The Court therefore considers that the applicants’ complaint falls within the scope of Article 14 of the Convention which, in the circumstances of the case, applies in conjunction with Article 6 § 1 of the Convention.
i. Whether there was a difference in treatment, based on religion, between persons in similar situations
114The Court notes that, as worded in Article 3 of Legislative Decree no. 126/1990, the criterion in issue required the joint committees to take into consideration “the wishes of the adherents of the communities in possession of the properties”. It notes that no difference in treatment on the basis of religion appears in the impugned legislation. However, the applicants argued that the alleged discrimination arose from an obvious factual situation, namely that the parties in possession of the properties being claimed are always represented by the Orthodox Church, which is the majority denomination in the country.
115The Court observes that the disputed place of worship was in the possession of the Orthodox Church of Lupeni, which was the respondent party in the proceedings. It further notes that, as indicated by the historical data submitted by the parties, generally speaking, in cases where Legislative Decree no. 126/1990 is to be applied, the places of worship whose recovery is sought are held by entities belonging to the Orthodox Church, the Greek Catholic Church being in the position of applying for their return (see paragraph
9 above). In this context, by providing that the criterion for determining the legal situation of a contested property was to be “the wishes of the adherents of the communities in possession of the properties”, Article 3 of Legislative Decree no. 126/1990 could be interpreted as creating a privileged position for the respondent party, to the applicants’ detriment. The Court has considered the above-mentioned Article 3 in the context of Article 6 of the Convention (see paragraph 81 et seq. above). There is therefore a difference of treatment between two groups – the Greek Catholic Church and the Orthodox Church – which are in a similar situation as regards their claims of ownership of the contested place of worship.
ii. Whether there is an objective and reasonable justification
116The Court observes that, if a policy or general measure has disproportionately prejudicial effects on a group of people, the possibility of its being considered discriminatory cannot be ruled out even if it is not specifically aimed or directed at that group (see Zarb Adami, cited above, § 80). It reiterates that the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Stec and Others, cited above, § 51). A wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others, cited above, § 52).
117The Court notes that, in the Government’s submissions, the impugned criterion was developed in order to take account of the historical context and the religious nature of the property in question. According to the Government, the State’s intention in enacting the legislation was to protect the freedom of those who had been forced to leave the Greek Catholic denomination under the totalitarian regime to express their wishes as to which confession to follow, while retaining the possibility of using the place of worship they had built.
118Furthermore, the Court attaches importance to the fact that, in applying the criterion of “the wishes of the adherents of the communities in possession of the properties”, the Romanian courts did not confine themselves to noting the respondent party’s refusal to return the church building, but weighed up the interests at stake. Thus, they took account of a combination of specific factual elements concerning the circumstances in which the building was constructed and used over the years, the fact of the prohibition on the Greek Catholic denomination and the obligation placed on its adherents at the relevant time to “transfer” to the Orthodox denomination, and the choice made by those adherents after their denomination was rehabilitated. After an in-depth examination of the factual situation, the domestic courts delivered detailed judgments containing reasons, in which the line of reasoning followed the Constitutional Court’s established case-law (see paragraphs 29 to 31 and paragraph 34 above).
119In addition, the Court notes that the Constitutional Court, called on to examine the objection that the impugned criterion was unconstitutional, gave reasons linked to the need to protect the freedom of religious denominations and the freedom of others, while having due regard to the historical background to the case. In this connection, the Court observes that it has frequently emphasised the State’s role as the neutral and impartial organiser of the practice of religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society, particularly between opposing groups (see, mutatis mutandis, Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 165, ECHR 2013 (extracts)). In the present case, the State’s respect for the autonomy of religious communities had been shown by its affirmation of those communities’ right to determine for themselves the question of the ownership right to their properties.
120Lastly, the Court notes that the applicants’ arguments with regard to differences in the case-law concern an aspect relating to the principle of judicial certainty, and that it has already examined them under Article 6 § 1 of the Convention. It considers that they do not require a fresh examination under Article 14 in conjunction with Article 6 § 1 of the Convention.
121Accordingly, the Court considers that, in view of the aim pursued and the reasonable justification for it, the national legislature’s adoption of the impugned criterion was not contrary to Article 14 of the Convention. It follows that there has been no violation of Article 14 in conjunction with Article 6 § 1 of the Convention in the present case.
III. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION, CONSIDERED ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
122The applicants alleged that the manner in which the domestic courts determined the dispute in issue and their refusal to order that the church building be returned had infringed their right to freedom of religion, in violation of Article 9 of the Convention, taken alone and in conjunction with Article 14 of the Convention (cited above).
123Article 9 of the Convention reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
1The parties’ submissions
(a) The Government
124The Government invited the Court not to rule on the applicants’ complaint, alleging that since, in their view, it was procedural in nature, it ought to be examined under Article 6 of the Convention alone.
125They further indicated that the applicants had always been able to manifest their religion freely and that there had not therefore been interference in their right to freedom of religion. They specified that the Greek Catholic religious community was legally recognised, that its priests could officiate at services and that its members could meet to practice their religion in an appropriate building. They also alleged that it had not been established that the Greek Catholic religious service was inseparably linked to the ownership of the disputed church building.
126In their additional observations, the Government added that it was not unaware of the role of places of worship for religious communities. They indicated that the Romanian State had provided not only for declaratory measures, but also for compensatory measures, while respecting, according to the Government, its duty to remain neutral and impartial in exercising its regulatory power in this sphere and in its relations with the various confessions. They also alleged that more than 237 places of worship had been returned to Greek Catholic communities and that other Greek Catholic communities had received assistance for the construction of new places of worship. Lastly, they stated that the applicants had not requested financial assistance.
(b) The applicants
127The applicants considered that the dismissal of their action seeking the return of a church building had amounted to interference in their right to freedom of religion. They argued that the right protected by Article 9 of the Convention included the freedom to manifest one’s religion and that the practice of their Greek Catholic rite in a church building amounted to such a manifestation. They considered that their use of a Catholic church’s premises and their rental payments in this respect ought not to discharge the State from its obligation to enable them to recover their former place of worship or to assist them in building a new church building.
128The applicants also submitted that the interference complained of in their right to freedom of religion was provided for in Article 3 of Legislative Decree no. 126/1990. However, on account of its lack of foreseeability, this legal provision did not meet the quality requirements imposed by the Convention. The applicants further claimed that such interference was not necessary in a democratic society. They argued that the criterion set out in the special law gave precedence to the wishes of the majority and was accordingly not compatible with a democratic society, which ought to promote tolerance, the acceptance of all differences, including religious and cultural ones, and the protection of minorities.
129In their supplementary observations, the applicants indicated that they had not obtained restoration of the church building and that they had been offered no other assistance, as provided for, in their view, by Article 4 of Legislative Decree no. 126/1990. Moreover, they considered that the above-mentioned Article was worded in a general manner which did not exclusively concern the Greek Catholic Church. Lastly, they specified that they did not, to date, have a church building reserved for the practice of their religion.
2The Court’s assessment
130The Court has decided to examine these complaints by the applicants (see paragraph 124 above).
(a) The applicable principles
131The Court refers to its settled case-law to the effect that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It reiterates that in its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 114, ECHR 2001‑XII).
132The Court also reiterates that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Bearing witness in words and deeds is bound up with the existence of religious convictions. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Metropolitan Church of Bessarabia and Others, cited above, § 114).
133Furthermore, the Court restates that since religious communities traditionally exist in the form of organised structures, Article 9 must be examined in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. Seen from this perspective, the right of believers to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords. In any event, the Court reiterates that the State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs, and requires the State to ensure that conflicting groups tolerate each other, even where they originated in the same group (see Juma Mosque Congregation and Others v. Azerbaijan (dec.), no. 15405/04, § 58, 8 January 2013).
(b) Application of these principles in the present case
134Turning to the circumstances of the present case, the Court notes that the applicants complain about the domestic courts’ refusal to recognise their ownership of the church in question. Accordingly, the Court must examine whether this refusal constitutes in itself an interference with the applicants’ right to freedom of religion as protected by Article 9 taken in conjunction with Article 14 of the Convention.
135In this connection, the Court notes that Legislative Decree no. 126/1990 officially recognised the Greek Catholic religion in Romania. However, no legal provision ordered the automatic restitution of the places of worship that had belonged to that denomination prior to 1948 and had then been classified as the property of the Orthodox Church.
136The Court reiterates that it is not possible to deduce from the Convention a right for a religious community to be guaranteed a place of worship by the public authorities (see Griechische Kirchengemeinde Munchen und Bayern E.V. v. Germany (dec.), no. 52336/99, 18 September 2007). In the present case, the domestic courts’ refusal to recognise the applicants’ ownership of a church has not prevented the applicant entities from functioning and did not restrict their right to construct a place of worship in the conditions provided for by law.
137The Court then notes that the High Court of Cassation and Justice responded to the applicants’ allegations concerning respect for their right to freedom of religion. For the Court, given the social and historical background to the case, and in view of its conclusions, set out above, as to the applicants’ right of access to a court, the arguments used by the highest domestic court are comprehensible and are not open to criticism under the Convention.
138Lastly, the Court reiterates that Article 9 of the Convention does not confer on the religious communities an entitlement to secure additional funding from the State budget, even if subsidies which are granted in a different manner to various religious communities – and thus, indirectly, to various religions – call for the strictest scrutiny (see Magyar Keresztény Mennonita Egyház and Others v. Hungary, nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12, § 106, ECHR 2014). In this regard, the Court notes that Article 4 of Legislative Decree no. 126/1990 states that, in municipalities where the number of places of worship is insufficient in relation to the number of adherents, the State will provide support for the construction of new churches. For this purpose, the State will make available appropriate land to the denominations concerned if they do not possess it, and will contribute to raising the necessary funds. The Court notes that this legal provision enables parishes which do not have a place of worship to obtain State assistance for church construction. The legislation does not impose any criterion capable of blocking the applicants’ access to this financial assistance (see, a contrario, Magyar Keresztény Mennonita Egyház and Others, cited above, § 110). Moreover, the Court notes that, according to information supplied by the Government and not disputed by the applicants, other Greek Catholic parishes which had sought assistance under Article 4 of Legislative Decree no. 126/1990 had been granted various forms of funding to assist in building new churches. The applicants are still entitled to apply for State assistance via this channel.
139In the light of the foregoing, the Court considers that, in the circumstances of the case, the domestic courts’ refusal to recognise the applicants’ ownership of the disputed church building did not amount to unjustified interference with the exercise of their right to freedom of religion. In the same vein, it considers that the contested measure was not discriminatory. The domestic courts did not base their decision on aspects relating to religious affiliation, but on specific factual evidence (see paragraph 118 above).
140Having regard to the foregoing factors, the Court considers that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
141The applicants considered that the domestic courts’ refusal to order that the church be returned to them and the manner in which they judged the case infringed their right to the peaceful enjoyment of their possessions. They relied on Article 1 of Protocol No. 1 to the Convention, taken alone and in conjunction with Article 14 of the Convention (cited above). Article 1 of Protocol No. 1 to the Convention is worded as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1The parties’ submissions
(a) The Government
142Referring directly to the judgment in Sâmbata Bihor Greek Catholic Parish (cited above, § 87), the Government first invited the Court not to rule on this complaint by the applicants, considering that it concerned a lack of procedural protection which would already have been examined under Article 6 § 1 of the Convention.
143They then objected that this complaint was inadmissible ratione materie. In this connection, they indicated that the domestic courts had refused to recognise, by a final decision, that the applicants had a right of ownership over the church in question. They submitted that, in consequence, the applicants could not claim to have a “possession” or a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 to the Convention.
144The Government considered that the applicants had not shown that they were subjected to discrimination and that, in any event, they had not been subjected to discriminatory treatment in the present case.
(b) The applicants
145The applicants considered that their complaint was admissible. They submitted that, in the specific factual context of this case, Article 480 of the Civil Code, which governed actions for recovery of possession, taken together with the amendments made to Article 3 of Legislative Decree no. 126/1990, which set out a right for the Greek Catholic churches to take court action in order to secure the return of the places of worship, amounted at least to a “legitimate expectation” with regard to the ownership of the church. They considered that the official recognition of their Church had restored all of the rights and obligations that it had enjoyed prior to its dissolution in 1948, including the right of ownership over the church building. They also indicated that the Orthodox Church had taken possession of the church building and had unlawfully had itself entered in the land register as the owner. They concluded that all the factual and legal premises existed to create a legitimate expectation that the place of worship would be returned to their ownership. Lastly, they considered that, had the domestic courts applied the ordinary law to their action for recovery of possession, rather than the criterion of the wishes of adherents established in the special law, the church building at the heart of the dispute would have been returned to their parish.
146The applicants considered that they had been victims of discrimination, on account both of the criterion adopted in the law governing the restoration of places of worship and of its application in the present case, notwithstanding the fact that other domestic courts had applied the ordinary-law rules when determining actions for recovery of possession.
2The Court’s assessment
(a) Alleged violation of Article 1 of Protocol No. 1
147The Court will rule on the applicability in the present case of Article 1 of Protocol No. 1 to the Convention (see paragraph 142 above).
i. The applicable principles
148The Court points out that the Convention institutions have consistently held that “possessions” within the meaning of Article 1 of Protocol No. 1 can be either “existing possessions” (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, 13 December 2000) or assets, including claims, in respect of which an applicant can argue that he or she has at least a “legitimate expectation” that they will be realised (see, for example, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, Series A no. 332, and Ouzounis and Others v. Greece, no. 49144/99, § 24, 18 April 2002). On the other hand, the hope that a long-extinguished property right may be revived cannot be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1; nor can a conditional claim which has lapsed as a result of the failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002‑VII).
149In addition, the Court reiterates that the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to their ratification of the Convention. Equally, Article 1 of Protocol No. 1 cannot be interpreted as restricting the freedom of Contracting States to choose the conditions under which property is to be restored to certain persons who were dispossessed of it prior to ratification of the Convention (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX).
ii. Application of these principles in the present case
150In the present case, the Court notes that the applicants submitted that they had lost possession and ownership of the church building claimed by them in 1948, in other words, before the ratification of the Convention by Romania on 20 June 1994. They instituted judicial proceedings for restitution of the place of worship following legislative changes which recognised their denomination and opened the possibility of judicial action in that regard.
151In spite of the judicial rehabilitation of their denomination in 1990, their former properties were still held by the Orthodox Church. Legislative Decree no. 126/1990, although it officially recognised the Romanian Church United to Rome, laid down that the legal situation of the religious buildings and parish houses which had been assigned to the Orthodox Church would be established by a joint committee at the close of an administrative procedure followed by judicial proceedings. It did not therefore provide for the automatic return of the disputed property. Thus, the applicants continued to be deprived of a right of property. This does not mean that the domestic authorities’ application of the relevant legal provisions in a particular case cannot raise a question under Article 1 of Protocol No. 1. However, before considering whether the manner in which the law was applied to the applicants interfered with their rights, the Court must examine whether their claim for restitution amounted to a “possession” within the meaning of that provision.
152In this connection, it should be noted that the applicants instituted judicial proceedings for the restitution of the place of worship. Since they could not therefore maintain that the property belonged to them without any intervention by the courts, it follows that they did not have an “existing possession”.
153As to whether the applicants had at least a “legitimate expectation” of any current and enforceable claim being determined in their favour, the Court notes that the restitution claim was a conditional claim from the outset, in that the law set out the condition under which the legal situation of places of worship was to be determined. In the present case, the question of whether or not they complied with the statutory requirements was to be determined in the judicial proceedings, and the domestic courts held, in a final judgment, that the condition laid down by the law had not been met. It follows that the applicants’ claim could not be said to have been sufficiently established to qualify as an “asset” attracting the protection of Article 1 of Protocol No. 1.
154The Court also notes that at no point did the national authorities adopt a statutory or administrative act referring to the restitution of the church in question to the applicants (see, a contrario, Catholic Archdiocese of Alba Iulia v. Romania, no. 33003/03, §§ 82-88, 25 September 2012). In so far as the applicants complained about divergent case-law on the part of the domestic courts with regard to the applicable law in cases concerning the restitution of places of worship, the Court reiterates that the persistence of conflicting court decisions with regard to domestic law does not give rise to a “legitimate expectation” (see, to this effect, Albu and Others v. Romania, no. 34796/09, § 47, 10 May 2012, and Liepājnieks v. Latvia (dec.), no. 37586/06, §§ 95-96, 2 November 2010).
155It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
(b) Alleged violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1
156With regard to the complaint alleging the discriminatory nature of the criterion governing the restoration of the place of worship, the Court has already reiterated in paragraph 109 above that the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 39, ECHR 2005‑X, and Burden v. the United Kingdom [GC], no. 13378/05, § 58, ECHR 2008‑...). The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide protection (see Stec and Others (dec.), cited above, § 40).
157Although Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention (see Kopecký, cited above, § 35(d)), it is clear from the Court’s case-law that, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement (ibid). In cases such as the present one, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1, where the applicant has been denied restitution on a discriminatory ground covered by Article 14, namely religious affiliation, the relevant test is whether, but for the impugned condition of entitlement, the applicants would have had a right, enforceable under domestic law, to secure the restitution of the property in question (see, mutatis mutandis, Stec and Others (dec.), cited above, § 54, and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 64, ECHR 2010). It follows that the applicants’ interests fall within the scope of Article 1 of Protocol No. 1 and the right to the peaceful enjoyment of one’s possessions it enshrines, which is sufficient to make Article 14 of the Convention applicable.
158The Court observes that the applicants complain of discrimination, on the grounds of religion, in the legislation concerning the restitution of places of worship. Yet the Court has just found that neither the criterion laid down in the law nor the manner in which it was applied in the present case amounted to discrimination on grounds of religion, prohibited by Article 14 of the Convention. Accordingly, for the same reasons as those set out in paragraphs 116 to 120 above, the Court finds that this complaint is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
159The applicants complained under Article 6 of the Convention that the courts had lacked independence and impartiality, in that, by applying the criterion of the wishes of the majority of the adherents, these courts had, according to the applicants, given priority to the Orthodox party, which represented the majority religion in the country. Under the same Article, they alleged that the proceedings had been unfair in that certain judges had been replaced in the relevant benches in the course of the proceedings and that certain references to the conduct of the oral procedure had not been recorded with due care. Lastly, they complained of a violation of their rights as guaranteed by Article 13 of the Convention taken together with Article 9 of the Convention and Article 1 of Protocol No. 1, alleging that they had had no domestic remedy to assert their rights.
160Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols. It follows that these complaints are inadmissible and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
161Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
162In respect of pecuniary damage, the applicants claimed the restitution of the church, the courtyard and the parish building. Failing restitution in kind of the properties, and relying on an expert report, they requested 282,343 euros (EUR), a sum which, in their submission, corresponds to the market value of the contested buildings. They also claimed EUR 50,000 in respect of pecuniary damage.
163The Government responded that the values included in the evaluation report were exorbitant compared to the market prices as estimated by the Chamber of Notaries for similar plots of land. They considered that, were the Court to conclude that the applicants had sustained non-pecuniary damage, a judgment finding a breach of their Convention rights would constitute sufficient compensation for the non-pecuniary damage and that in any event the sum claimed for non-pecuniary damage was excessive.
164The Court notes that an award of just satisfaction in the present case can only be based on the fact that the applicants’ case had not been examined by a court within a reasonable time. Given that there is no causal link between the violation found and the alleged non-pecuniary damage, the Court rejects this part of the claim.
165As to non-pecuniary damage, the Court considers that the violation found by it must have caused the applicants difficulties and a lengthy period of uncertainty that is not sufficiently compensated for by the mere finding of a violation. Making its assessment on an equitable basis as required by Article 41 of the Convention, it awards the applicants jointly EUR 2,400 in respect of non-pecuniary damage.
166The applicants also claimed the sum of EUR 7,930.61 for the costs and expenses incurred before the Court, broken down as follows: EUR 5,173.50 in fees for Ms D.O. Hatneanu, to be paid directly to her, EUR 2,385.50 in fees for Ms C.T. Borsanyi and EUR 71.54 for the correspondence costs borne by her, to be paid directly to her, and EUR 300 for secretarial and correspondence costs, to be paid to the Association for the Defence of Human Rights in Romania – the Helsinki Committee (“APADOR-CH”). The applicants submitted a timesheet of their lawyers’ services and the contracts for legal assistance, as well as the agreement concluded with APADOR-CH, in which that association undertook to meet the necessary secretarial costs to support the present application to the Court.
167The Government considered that the fees claimed in respect of Ms D.O. Hatneanu had been unnecessarily incurred and excessive, given that she had represented the applicants in the present proceedings only after the application had been communicated to the Government, and that she was representing several applicants in similar cases before the Court. They considered that the costs claimed by her for the further observations ought not to be part of the costs and expenses. With regard to the costs claimed by M C.T. Borsanyi, who had lodged the application before the Court, the Government invited the Court to award, on an equitable basis, a sum for costs that had been actually and inevitably incurred.
168According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999‑VIII). In the present case, the Court notes that the applicants have indicated, precisely and in detail, the particulars of their claims. Bearing in mind the nature of the case, the documents in its possession and the above criteria, it considers it reasonable to award the sum of EUR 2,202 in respect of Ms D.O. Hatneanu’s fees and EUR 2,385 in respect of Ms C.T. Borsanyi’s fees, to be paid directly to the lawyers. The Court also considers the sum of EUR 71 a reasonable amount for the correspondence costs incurred by Ms C.T. Borsanyi and awards it to her, as well as EUR 300 for the secretarial and correspondence costs borne by APADOR-CH (see, to this effect, Cobzaru v. Romania, no. 48254/99, § 111, 26 July 2007), to be paid directly to it.
169The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1Declares, unanimously, the complaints under Article 6 § 1 of the Convention concerning the right of access to a court, compliance with the principle of legal certainty and the right to a fair hearing within a reasonable time, and the complaint under Article 14 of the Convention taken in conjunction with Article 6 § 1 of the Convention, admissible, and the remainder of the application inadmissible;
2Holds, unanimously, that there has been no violation of Article 6 § 1 of the Convention with regard to the right of access to a court;
3Holds, unanimously, that there has been no violation of Article 6 § 1 of the Convention with regard to the right to a fair hearing in compliance with the principle of legal certainty;
4Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings;
5Holds, unanimously, that there has been no violation of Article 14 of the Convention taken in conjunction with Article 6 § 1 of the Convention with regard to the right of access to a court;
6Holds, unanimously,
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 2,400 (two thousand, four hundred euros) jointly to the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,202 (two thousand, two hundred and two euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly to Ms D.O. Hatneanu;
(iii) EUR 2,456 (two thousand, four hundred and fifty-six euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly to Ms C.T. Borsanyi;
(iv) EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly to APADOR-CH;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.
Done in French, and notified in writing on 19 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Josep Casadevall
Registrar President
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