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SVYATO-MYKHAYLIVSKA PARAFIYA v. UKRAINE - 77703/01 [2007] ECHR 478 (14 June 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/478.html
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[2007] ECHR 478
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FIFTH
SECTION
CASE OF SVYATO-MYKHAYLIVSKA PARAFIYA v. UKRAINE
(Application
no. 77703/01)
JUDGMENT
STRASBOURG
14 June
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Svyato-Mykhaylivska Parafiya v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 22 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 77703/01) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a religious association, the
Svyato-Mykhaylivska Parafiya (“the applicant association”),
on 4 January 2001.
The
applicant was represented by Mr K. Buzadzhy, a lawyer practising in
Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agents (Ms V. Lutkovska, Ms Z. Bortnovska
and Mr Y. Zaytsev).
On
22 May 2003 the Court decided to communicate the applicant
association's complaints concerning an alleged infringement of
Article 9 and Article 1 of Protocol No. 1 to the respondent
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
On
31 August 2004 the Court requested additional information and
comments from the parties on the applicant association's claims under
Article 9, taken alone and in conjunction with Article 11 of the
Convention, and Article 1 of Protocol No. 1 to the Convention.
THE FACTS
The
applicant association, the Svyato-Mykhaylivska
Parafiya (“the Parish”) of the Ukrainian Orthodox Church
of the Kyiv Patriarchate “Church of 1,000 years of Baptisms in
the Kyivan Rus” in the Darnytsky District of Kyiv, is
a religious group. On 6 October 2000 it had 29 members, a figure
which had increased to 30 by 2005 according to information provided
by its representative on 9 February 2005. All the members sit on the
Parishioners' Assembly. The head of the applicant association is
Mr Volodymyr Makarchykov.
I. THE CIRCUMSTANCES OF THE CASE
A. The functioning of the Parish prior to the decision
to change denomination
On
5 April 1989 a group of 25 people, including the head of the Parish,
decided to form a religious association under the auspices of the
Russian Orthodox Church. On the same date they decided to build a
church and name it the “Svyato-Mykhaylivska Church of 1,000
years of Baptisms in the Kyivan Rus'”. The group lodged a
request to register the association with the Religious Affairs
Council at the Cabinet of Ministers
(Рада з питань
релігій при
Кабінеті Міністрів)
and the State Executive Committee.
On
22 February 1990 the Religious Affairs Council registered the group
as a religious association of the Russian Orthodox Church in the
Darnytsky District of Kyiv (the “religious association”).
On
26 February 1990 the Kyiv City Council informed Mr Makarchykov
that the religious association had been granted permission to build a
church for the use of its members.
On
4 March 1990 the religious association approved its statute and
elected its governing bodies (the Parishioners' Assembly,
Parishioners' Council and the Supervisory Board). It decided to admit
twelve new members to the Parishioners' Assembly and to elect six of
its members to the Parishioners' Council and the Supervisory Board.
Mr Makarchykov was elected as a member of the Parishioners'
Council and became its chairman.
On
29 March 1990 the Religious Affairs Council registered changes to the
governing bodies of the religious association. Mr Makarchykov
was registered as its chairman, F.L.E. as deputy chairman and O.L.V.
as a treasurer of the religious association. The Council also
registered the changes to the composition of the Supervisory Board.
From
the date of its creation in April 1989 to December 1999 the
Parishioners' Assembly membership varied from about 20 to 27 members.
In the course of this period the Parishioners' Assembly was actively
involved in making important decisions as to the management and
administration of the religious association (appointment of Chairman,
treasurer, supervisory board, approval of appointment of a priest,
approval of the statutes of affiliates, missions and brotherhoods of
the church, important financial and logistical matters and issues
related to construction of a new church, etc.). Throughout this
period My Makarchykov acted as a Chairman of the religious
association and frequently as a secretary during the meetings of the
Parishioners' Assembly.
On
22 March 1992 the Parishioners' Assembly passed resolutions for the
religious association to change denomination, as it was dissatisfied
with the leadership of Archbishop Filaret, the head of the newly
registered Ukrainian Orthodox Church of Kyiv Patriarchate, and for it
to become independent in its organisational, religious and commercial
activities. It was also decided that it should act under the
religious guidance of the Archbishop of the Finnish Orthodox Church
in canonical issues.
On
19 November 1992 the Parishioners' Assembly adopted a new statute
seeking its registration as a legal entity. The Assembly requested
Archbishop Volodymyr of the Ukrainian Orthodox Church (Moscow
Patriarchate) to approve the statute. The name of the association was
changed to “Svyato-Mykhaylivska Parafiya of the Ukrainian
Orthodox Church of the Kyiv Eparchy Church of 1,000 years of Baptisms
in the Kyivan Rus'” (the “Parish”;
Свято-Михайлівська
парафія Української
православної
церкви Київської
єпархії «Храму
на честь 1000-ліття
хрещення Київської
Русі»).
On
8 February 1993 the representative of the President of Ukraine in
Kyiv made a formal decision to register the statute of the Parish
(статут
релігійної
організації).
From that date onwards the Parish, as a registered legal entity,
belonged to the Ukrainian Orthodox Church (Moscow Patriarchate). The
new statute stated:
“(...) 1.1. Svyato-Mykhaylivska
Parafiya (a religious group) is a religious
association of the Ukrainian Orthodox Church of the
Kyiv Patriarchate “Church of 1,000-years of Baptisms in the
Kyivan Rus” (hereinafter the 'Parish') and is created for the
purposes of mutual affiliation and the spreading of Orthodox religion
and faith. It is composed of secular priests, ministers and laymen
and is a part of the Ukrainian Orthodox Church of the Kyiv Eparchy
(Київської
єпархії Української
Православної
Церкви).
(...) 2.1. The highest governing body of the
Parish is the Parishioners' Assembly, which is eligible in presence
of not less than 2/3 of members of the Parishioners' Assembly.
Resolutions of the Parishioners' Assembly shall be adopted by a
simple majority.
2.2. In its religious activities, the Parish
shall be guided by the priest – prior, who shall be elected by
the Parishioners' Assembly. In its administrative-financial
activities, it shall be subordinate to the Parishioners' Assembly.
(...) 2.12. The Parishioners' Assembly shall
accept new members from clergymen and laymen at their request,
provided they are at least 18 years of age, attend religious services
and confession, follow the canonical guidance of the prior and have
not been excommunicated by the church or are being judged by the
religious court.
(...) 2.5. All official Parish documents
shall be signed by the prior and the chair of the Parishioners'
Council; banking and other financial documents shall be signed by the
chair of the Parishioners' Council and the treasurer.
(...) 6.1. Decisions as to changes and
amendments to the statute shall be proposed by the Parishioners'
Council and adopted by the Parishioners' Assembly...
6.2. Changes and amendments to the statute
shall be made in the same manner and within the same time-limits as
those applicable to the registration of the statute.”
On
9 April 1994 the Parishioners' Assembly, in accordance with a
proposal by the new prior, refused to introduce changes and
amendments to the statute until the construction of the new church
building for the use of religious association was finalised. The
proposed statute had to conform to the standard statutes of religious
associations belonging to the Ukrainian Orthodox Church (Moscow
Patriarchate).
In
1994 and 1999 Mr Makarchykov signed a number of documents relating to
the construction of the new church in his capacity as chairman of the
Parishioners' Council. These documents, which included contracts and
decisions of the architectural and State bodies, were accepted by him
as the head of the Parishioners' Assembly and countersigned in a
number of instances by various State officials.
On
6 October 1999 the Parishioners' Assembly examined complaints about
the management of the church that had been sent to Archbishop
Volodymyr by new lay members. The Assembly also decided not to make
the changes and amendments to the statute of the Parish necessary for
its conformity with the standard statute used by the Ukrainian
Orthodox Church (Moscow Patriarchate)”.
On
14 October 1999, the Parishioners' Assembly examined the construction
works at the site of the new church and decided not to make any
changes to the statute until the works had been completed. It also
heard complaints from Assembly members about Mr Makarchykov's
alleged abuse of funds that had been raised for the construction of
the church and against a prior of the Parish, who allegedly had no
authority to act.
On
4 November 1999 a commission set up by the Moscow Patriarchate
condemned the economic activities of the Parish, as being badly
managed and removed the books of account.
On
10 November 1999 the Parishioners' Assembly resolved not to retain
Father Tesliuk as prior and requested Archbishop Volodymyr of the
Moscow Patriarchate to appoint a different prior. They also condemned
the activities of the former prior, Father Nikolay, who had allegedly
misused charitable aid from Italy and acted fraudulently. The
Parishioners' Assembly also decided to proceed with criminal
complaints it had lodged with the police against Father Tesliuk and
Father Nikolay.
On
1 December 1999 26 members of the Parishioners' Assembly allowed
requests from two members of the Assembly not to participate in its
activities owing to pressure from the Moscow Patriarchate on the
Parish and the attempts of Father Nikolay to split the Parish. Six
members of the Assembly were elected as honorary members, with a
right of “advisory vote”. One new member was
admitted to the Assembly. The Assembly condemned the report of
4 November 1999 and the decision to remove the Parish's
accounting papers. Mr Makarchykov also informed the Assembly that
Father Nikolay had unlawfully withheld charitable aid given to the
Parish in the amount of 2,880,000 United States dollars (USD). The
Assembly decided not to retain Father Nikolay and Father Tesliuk as
their priors and requested their transfer away from the Parish. The
Assembly was also informed by one of its members that Archbishop
Volodymyr refused to discuss with him the internal conflict in the
Parish.
According
to the applicant association, on 24 December 1999 the
Parishioners' Assembly consisted of 27 individuals: Mr B.S., Ms B.I.,
Mr B.M., Mr G.S., Mr G.V., Mr D.S., Mr Ye.S., Ms Z.N., Mr K.A.,
Ms K.L., Mr K.V., Ms L.V., Mr V.I. Makarchykov (the Chairman of
the Parishioners' Assembly), Ms M.S., Mr M.A., Ms N.M., Ms R.V.,
Mr R.V., Mr S.S., Mr T.L., Mr Ts.L., Ms Ch.V., Ms Ch.I., Mr
Sh.Ye., Mr Sh.M., Mr Sch.D. and Ms Ya.V.
B. The Parishioner's Assembly resolution of December
1999 to change denomination
On
24 December 1999 the Parishioners' Assembly, with 21 of its 27
members present, decided to withdraw from the jurisdiction and
canonical guidance of the Moscow Patriarchate and to accept that of
the Kyiv Patriarchate. The following 6 members of the Assembly were
not present during the meeting and did not vote for a change of
jurisdiction: Mr G.S., Mr G.V., Mr D.S., Mr K.V., Mr M.A.
and Mr Sh.M. The Assembly gave authority to two members of the
Assembly, Mr Makarchykov and Mr Sh.Ye., to lodge a request with
the Head of the Kyiv City State Administration for the registration
of the changes and amendments to the Parish's statute. The Assembly
requested Archbishop Filaret of the Kyiv Patriarchate to approve the
changes and amendments.
On
25 December 1999 and 10 January 2000 Archbishop Filaret declared the
Parish a part of the Kyiv Patriarchate. He also appointed Mr Pavlo
Osnovyanenko as a prior and spiritual counsellor of the Parish.
On
27 December 1999 Mr Makarchykov and Mr Ye.Sh. lodged an application
with the Kyiv City State Administration to register the amendments to
its statute as a result of the change of denomination.
On
28 December 1999 Mr Makarchykov signed a contract on behalf of the
Parish with a private contractor “Khades” to ensure the
security of the church premises and the partly-constructed new
church.
C. Events in January and February 2000
The
applicant association alleges that on 1 January 2000 the church
premises were taken over by approximately 150-200 clerics and lay
people supporting the Moscow Patriarchate, who had arrived at the
church in the evening. All the members of the Parishioners' Assembly
signed a statement condemning this intrusion into their internal
affairs by the representatives of another denomination. The
construction work on the new church was also disrupted. According to
the private firm responsible for security at the church officials of
the Darnytsky District Department of the Interior had warned them not
to intervene in the conflict.
On
2 January 2000 Archbishop Volodymyr of the Moscow Patriarchate
authorised Archpriests Filaret (Lukyanchuk), V. Rusynka,
M. Tereschuk and D. Grygorak and a lawyer of the Kyiv
Metropolis, V.F. Volynets, to hold a meeting of the
Parishioners' Assembly in the Svyato-Mykhaylivska Church.
On
the same day, 309 supporters of the Moscow Patriarchate, who the
applicant association alleged were from different churches in the
city (although, according to the Government, 295 were active members
of the Parish), held a meeting at which they passed a vote of no
confidence in Mr Makarchykov as chairman of the Parishioners'
Assembly and elected new governing bodies for the church. In
particular, they elected a new Parishioners' Assembly composed of 19
members (the “New Assembly”), a treasurer and a
supervisory board.
The
Assembly also adopted the model statute for churches belonging to the
Ukrainian Orthodox Church (Moscow Patriarchate). It approved a
proposal from Archpriest Filaret (Lukyanchuk) of the Moscow
Patriarchate to elect Father Nikolay (Mykola) as the Chairman of the
Parishioners' Assembly. The minutes of the meeting of the Assembly
were approved by the secretary of the Moscow Patriarchate, Archpriest
V. Kosovsky, on 3 January 2000.
On
2 January 2000 the members of the original Parishioners' Assembly
requested the Minister of the Interior, the Head of the Kyiv City
State Administration, the General Prosecutor and other
law-enforcement authorities to protect their church and property.
On
3 January 2000 the Deputy President of the Darnytsky District Court
of Kyiv informed Mr Makarchykov that he should address his complaints
concerning the confiscation of church property to the courts in
accordance with Articles 137 and 138 of the Code of Civil Procedure.
The Deputy President also advised that any criminal complaints
concerning alleged offences had to be lodged with the police or
prosecutor with territorial jurisdiction.
On
4 January 2000 Archbishop Filaret of the Kyiv Patriarchate publicly
protested against the “seizure of the church” by
representatives of the Moscow Patriarchate. In particular, he stated
in letters to the Chairman of the Kyiv City State Administration, the
Minister of the Interior, the General Prosecutor, the Head of the
Kyiv Department of the Interior, the Human-Rights Ombudsman and the
Chairman of the Parliament that the Parishioners' Assembly that had
resolved to withdraw from the jurisdiction of the Moscow Patriarchate
was the legitimate governing body of the Parish.
On
8 January 2000, 21 members of the original Parishioners' Assembly
composed of 27 members held a meeting to discuss the events of
1-3 January 2000. They elected a Parishioners' Council with
the following composition: Mr Makarchykov, Chairman; Mr Burtovy,
Treasurer; and Mr Krasnook, Assistant to the Chairman. Mr Pavlo
Osnovyanko was approved as a prior of the Parish, upon a proposal
from the Kyiv Patriarchate. The Assembly elected the Supervisory
Board and asked Archbishop Filaret to approve their decisions.
On
the same date Archbishop Volodymyr of the Moscow Patriarchate
informed the Kyiv City State Administration that the documents that
had been submitted for registration of the change of denomination
were forged as the majority of the Parish members and its prior
opposed the change of denomination to the Kyiv Patriarchate.
On
10 January 2000 Archbishop Filaret of the Kyiv Patriarchate issued a
decree approving the composition of the original Parish governing
bodies. He also confirmed that Mr Pavlo Osnovyanenko could serve as a
prior of the Parish.
On
10 and 14 January 2000 two private individuals, Ms A.M.I. and Mr Z.,
sought membership of the original Parishioners' Assembly following
their decision of 24 December 1999 on the change of denomination.
On
11 January 2000 the State Tax Inspectorate found a number of
infringements of economic regulations by the former managers of the
Parish.
On
12 January 2000 a group of 9 members of the Ukrainian Parliament
(Verkhovna Rada) lodged complaints with the President of
Ukraine seeking his support in resolving the dispute between the Kyiv
and Moscow Patriarchates over the church premises and the decision of
its members to change denomination.
On
16 January 2000 the Darnytsky District Police Department in Kyiv
prohibited access to the church or other Parish property until a
court had ruled on the change of denomination. Thereafter, the church
premises and its property were guarded by the police.
On
15 January 2000 the Registry of the Moscow Patriarchate informed the
State Religions' Department that the denomination had been changed as
a result of Mr Makarchykov's involvement in financial fraud. It also
stated that the Parishioners' Assembly was illegitimate as it had
been convened in violation of Article 2.1 of the statute. Moreover,
membership of the Parish was not based on observance of the prior's
canonical guidance, contrary to Article 2.12 of the statute, as
Mr Makarchykov had influenced decisions not to accept new
members who were not loyal to him. The Registry added that the change
of denomination was contrary to the current statute of the Parish and
the Moscow Patriarchate's internal regulations, including the
recommended model statutes (типовий
статут парафії
Української
православної
церкви) for religious
associations within the Moscow Patriarchate.
Between
17 and 31 January 2000 the Parish members and the Archbishop of the
Kyiv Patriarchate lodged a series of formal complaints with a member
of parliament (V.P. Nechyporuk), the Committee on Organised Crime,
the Minister of the Interior and the Prosecutor of Kyiv asking them
to take action to prevent the police, who, they said, supported the
Moscow Patriarchate, unlawfully interfering in Parish affairs.
On
21 January 2000 the Kyiv City State Administration refused to
register the amendments, according to the request of 24 December 1999
(see paragraph 23 above), on the grounds that they contravened
Article 2.5 of the Parish statute, in that the documents submitted
for registration had not been signed by the prior and the Chairman of
the Parishioners' Assembly.
On
29 January 2000 the Parishioners' Assembly, composed of 22 members,
condemned the actions of the Moscow Patriarchate in relation to their
Parish and its property. They decided to file complaints with the
law-enforcement authorities to ensure protection from its unlawful
interference with their activities.
On
31 January 2000 the President of the original Parishioners' Assembly
Mr Makarchykov complained to the Darnytsky District Prosecutor
about the interference in the activities of the Parish. In
particular, he alleged that the Moscow Patriarchate and the police
had failed to comply with the resolution of 16 January 2000
prohibiting access to all the premises of the Parish until the case
had been resolved by a court.
On
31 January 2000 the prior of the Parish and the Chairman of the
original Parishioners' Assembly lodged a second request for the
registration of changes and amendments to the statute of the Parish
with the Kyiv City State Administration. The Assembly again informed
the Kyiv City State Administration that on 8 January 2000 it had
decided that Mr Pavlo Osnovyanenko would be its prior and
Mr Makarchykov its chairman and that both had power under the
statute to sign documents on behalf of the Parish. No response was
received to this request.
On
3 February 2000 the Kyiv City Council established a committee
composed of four of its members (deputies of the Council K.Y.G.,
D.D.G., O.P.K. and V.O.B.) and the Head of the Department of
Religious Affairs of the Kyiv City Council to examine the conflict
over the Svyato-Mykhaylivska Parish.
On
8 February 2000 the Head of the Darnytsky District Police Department
in Kyiv warned Mr Makarchykov that he would be prosecuted if he
continued to incite laymen to occupy the church and to confront the
supporters of the Moscow Patriarchate.
On
9 February 2000 Mr Makarchykov lodged fresh complaints with the
Darnytsky District Police Department asking them to institute
criminal proceedings against unlawful occupiers of the church
premises and those responsible for denying him access to the premises
or to his personal belongings in the church.
On
14 February 2000 the Kyiv Patriarchate certified that the Parish had
been within the Patriarchate since 25 December 1999.
D. Court proceedings against the decision refusing
registration
On
17 February 2000 the applicant association instituted proceedings in
the Kyiv City Court claiming that the Kyiv City State
Administration's refusal of 21 January 2000 to register the
amendments to the statute of the Svyato-Mykhaylivska Parafiya was
unlawful.
On
21 April 2000 the Kyiv City Court, composed of three judges, rejected
the applicant association's claims, finding that the decision of
21 January 2000 was lawful (see paragraph 42 above). In
particular it found that the Parishioners' Assembly composed of 27
members did not represent the entire religious community, that the
documents submitted for registration had not been signed by the
authorised persons (the prior and the chairman of the Parishioners'
Assembly) and that the members of the Parishioners' Assembly of
24 December 1999 no longer belonged to the Moscow Patriarchate,
as this minority group had chosen a different denomination. The court
concluded that the applicant association was not able to prove that
the decision of the Kyiv City State Administration was unlawful.
The
Kyiv City Court held in particular:
“...the
refusal of the Kyiv City State Administration to register the
amendments to the statute was based on the fact that they had been
adopted contrary to the statute and would infringe believers' rights.
The
judicial division holds that the decision [of the Kyiv City State
Administration] corresponds to the actual circumstances of the case,
and reflects the rights of both religious communities, and the
statute of the Parish ... and the Law 'on consciousness and religious
organisations'.
... In accordance with Articles 6.1.and 6.2 of the
statute ... decisions with regard to changes and amendments to the
statute must be proposed by the Parishioners' Council and adopted by
the Parishioners' Assembly ...
... As can be seen from the minutes of the meeting of
the Parishioners' Assembly of 24 December 1999 the religious
community of the Svyato-Mykhaylivska Parish adopted changes and
amendments to the statute of the religious community belonging to the
Ukrainian Orthodox Church [Moscow Patriarchate], but was already
affiliated to the Ukrainian Orthodox Church of Kyiv Patriarchate.
... such a method of making changes and amendments to
the statute contravenes the Law and Articles 6.1 and 6.2 of the
statute and undoubtedly infringes the rights of the religious
community belonging to the Ukrainian Orthodox Church [Moscow
Patriarchate] which adopted this statute. Changes to the statute
could only be adopted by the Parishioners' Assembly of this
community.
It can be seen that the complaint was lodged by
Mr Makarchykov on behalf of the religious group belonging to the
Ukrainian Orthodox Church [Moscow Patriarchate]. However this church
did not authorise him to act on their behalf, in fact he represents
the interests of the religious community belonging to the Ukrainian
Orthodox Church of Kyiv Patriarchate, which was established on 24
December 1999 and has a right to exist in accordance with the Law “on
freedom of consciousness and religious organisations” ...
Taking into account all of the above, the judicial
division considers that the representative of the religious community
of the Ukrainian Orthodox Church of Kyiv Patriarchate, Mr V.I.
Makarchykov, failed to prove in court that the refusal of the Kyiv
City Administration of 21 January 2000 ... was unlawful. Therefore
the complaint must be rejected.”
On
5 July 2000 a panel of the Supreme Court composed of three judges
upheld the judgment of 21 April 2000. It rejected the applicant
association's cassation appeal because the provisions of the Parish
statute contravened the relevant legislation. It also held that the
provisions of the statute concerning fixed membership were contrary
to the legislation because they did not allow the majority of the
religious group to manifest their religion by participating in the
administration of church affairs.
In
particular the Supreme Court held:
“... the statute (articles of association) of the
religious group has to correspond to the legislation in force.
As long as the legislation in force does not provide for
a mandatory or other form of fixed membership of the believers with
the same religious beliefs, in a legal sense “parishioners'
assembly” and the “general assembly of the religious
group” are identical notions. The judicial division therefore
considers that Articles 2.12, 2.13 of the statute ... do not fully
correspond to the legislation. This led to the creation of factual
obstacles for a majority of the religious community in deciding
statutory issues and a violation of their right to manifest their
religion...
The judicial division also finds unsubstantiated the
submission that there were no defects in the documents concerning the
changes and amendments to the statute of the parish filed on behalf
of the religious community.”
On
5 March 2001 fifteen members of the original Parishioners' Assembly
lodged a petition with the General Prosecutor's Office requesting it
to initiate supervisory-review proceedings in the Supreme Court. No
supervisory-review proceedings were initiated, however.
E. Further proceedings before the domestic authorities
On
22 February 2000 the Head of the Darnytsky District Police Department
in Kyiv informed Mr Makarchykov, in response to his complaints of 9
February 2000, that it had found no evidence of the offences alleged
in his complaints. He was also informed that he was free to collect
his personal belongings from the church to which he had allegedly
been denied access.
On
23 February 2000 the prior of the Parish and Chairman of the Assembly
lodged new complaints with the Kyiv City Prosecutor and the State
Religious Affairs Department requesting them to institute criminal
proceedings against those involved in the unlawful seizure of the
Parish's premises and property. They also complained of the refusal
of the Kyiv City State Administration to register the changes to the
statute of the Parish on the basis of the joint decision of its
members to change denomination.
On
25 February 2000 the Kyiv City State Administration's Department of
Religious Affairs asked Mr Makarchykov to provide it with the minutes
of the Parishioners' Assembly that had elected Mr Pavlo
Osnovyanenko as its prior, confirmation that the Parish's prior
belonged to the Moscow Patriarchate and confirmation that the prior's
position had been vacant from December 1999 to 8 January 2000.
On
6 March 2000 Mr T., Archbishop of the Kyiv Patriarchate, wrote to the
head of the district electricity network asking it to cut off the
electricity supply to the church as it had been unlawfully occupied
by the Moscow Patriarchate and the Kyiv Patriarchate was unable to
gain access.
On
23 March 2000 the Kyiv Prosecutor's Office informed Mr Makarchykov
and Mr Osnovyanenko that it had not found any wrongdoing on the part
of the Moscow Patriarchate in relation to the church prosecutor's
inquiries had revealed no unlawfulness whatsoever as alleged by the
applicant.
On
10 April 2000 a Committee of the Kyiv City Council prepared a draft
opinion on the situation surrounding the Parish. The opinion was not
adopted for examination by the Kyiv City Council as it was signed by
only three of the five members of the Committee.
On
5 June 2000 the Parishioners' Assembly composed of 30 members,
21 of whom were present, decided that Mr S.G. could not remain a
member as he had joined a new religious group. The Parishioners'
Assembly discussed the judgment in which the Kyiv City Court had
found that the Parishioners' Assembly contained 309 members. However,
it reiterated its view that as from 24 December 1999 it had been
composed of only 27 members. Two of the members of the Assembly (K.V.
and T.L.) reported that their witness statements had been taken
incorrectly. The Assembly also re-elected the Parish's governing
bodies (Mr Makarchykov was re-elected as Chairman).
On
13 June 2000 Mr Makarchykov lodged a complaint with the Darnytsky
District Prosecutor alleging that he had been attacked and injured on
2 April 2000 by an unknown person who had stolen a briefcase
containing official documents belonging to the Parish. He also stated
that he had already complained about attacks on him to the police,
but that they had failed to act (the police issued two decisions on 8
April and 13 June 2000 refusing to initiate criminal proceedings
following allegations by the applicant association).
On
21 June 2000 the Parishioners' Assembly resolved that a car owned by
the Parish should be used for the repayment of the Parish's debts.
On
18 August 2000 Mr Makarchykov was arrested by police officers
from the Darnytsky District Department of the Interior and “invited
for a conversation” at the Department. He was informed that an
inquiry was pending in relation to him. In the course of the
“conversation” it is alleged that Mr Makarchykov
started to curse and swear at the police officers. He was warned that
he could be reprimanded, but did not stop. On 19 August 2000 the
judge of the Darnytsky District Court of Kyiv reprimanded
Mr Makarchykov for his behaviour; however, he did not impose any
administrative or criminal sanctions on him.
On
30 August 2000 the Darnytsky District Department of the Interior
discontinued criminal proceedings against the applicant association
that had been instituted on the basis of a complaint lodged by Mr
B. Shtym the newly appointed prior of the Svyato-Mykhaylivska
Parish (Moscow Patriarchate), as it had found no evidence of an
offence on Mr Makarchykov's part.
On
8 September 2000 the Darnytsky District Prosecutor refused to
institute criminal proceedings into allegations of abuse of power by
the police.
On
29 September 2000 Mr B. Shtym requested the Kyiv City State
Administration to register further amendments to the statute of the
Parish. A request was signed by 10 members of the new Assembly, only
one of whom (G.S.) was a member of the original Parishioners'
Assembly.
On
6 October 2000 the Parishioners' Assembly, composed of 29 members,
of whom 22 were present, condemned the ruling of the Supreme Court of
21 April 2000 and decided that the Parish would apply to the European
Court of Human Rights for the protection of their rights. The
Assembly gave authority to Mr Makarchykov to represent it in the
proceedings before the European Court. It also discussed pressure
that had been imposed on Ts.O., K.A., Mr Makarchykov and S.S. by the
domestic law-enforcement authorities and private individuals.
On
5 December 2000 the Deputy Minister of the Interior and the Head of
the City Department of the Interior reviewed Mr Makarchykov's
complaints and found them unsubstantiated. They further stated that
criminal proceedings against Mr Makarchykov on allegations of theft
of property from the church had been discontinued and that the
investigator in the case had incurred administrative liability.
Similar, complaints were rejected by the Kyiv Prosecutor's Office on
15 December 2000.
On
25 December 2000 the Kyiv City State Administration decided to
register the changes to the statute of the Svyato-Mykhaylivska Parish
pursuant to Mr Shtym's request of 29 September 2000.
On
20 May 2001 22 members of the Parishioners' Assembly held a meeting
at which they discussed various pressures that had been exerted on
them by the law-enforcement authorities. They decided to seek
protection and assistance from the Administration of the President of
Ukraine and the General Prosecutor's Office to resolve the dispute
surrounding the Parish. They also accepted a request from Ye.S., who
had been a member of the Parishioners' Assembly since 25 July 1991,
to resign her membership owing to pressure that had been put on her
brother, a priest of the Moscow Patriarchate.
On
21 February 2003 the Dniprovsky (the successor to the Darnytsky)
Prosecutor's Office reviewed complaints lodged by Mr Makarchykov's
sister of attacks on her and her son and her allegedly unlawful
dismissal from the Parish. It advised her to take her complaint of
unlawful dismissal to the domestic courts.
In
2003-2004 Mr Makarchykov's sister requested asylum in Norway on the
grounds of alleged persecution in Ukraine. She stayed in Norway while
her request for political asylum was being reviewed.
The
Government informed the Court that on 7 August 2003 and 30 September
2004 the prior of the Parish, B. Shtym, informed them that Mr
Makarchykov had never been given authority to apply to the European
Court on behalf of the Parish, as he had ceased acting as the
Chairman of the Parishioners' Assembly on 2 January 2000. Mr Shtym
also informed the Government that seven of the original members
(G.S., G.V., D.S. Ye.O., R.V., Ya.V and M.A.) had decided to remain
members. Three of these (Ye.O, R.V. and Ya.V.) had withdrawn their
signatures from the minutes no. 5 of 24 December 1999,
by which the Parishioners' Assembly had resolved to change its
denomination to the Kyiv Patriarchate.
On
25 February 2004 the Religious Affairs Department of the Kyiv City
State Administration informed the applicant association's
representative that their religious group had separated from the
remainder of the Parish and become a religious group within the Kyiv
Patriarchate. It noted that they had not registered as a group with
the Kyiv City State Administration.
On
8 February 2005 the Kyiv Patriarchate informed the Court that the
Parish, consisting of 30 members, was unable to satisfy their
religious needs, as they were unable to use their property or
premises. It stated that this was due to the refusal of the Kyiv City
Administration to register the changes and amendments to the statute
of the Parish that had been made in January 2000.
In
a letter of March 2005, K.A., Sh.Ye., N.M., Ch.L., R.V., T.L., Z.N.,
Z.V., A.M., Ch.A., Ch.V., L.V., Ryb.V., K.V., S.S. and B.M., all
confirmed the complaints made by Mr Makarchykov to the European Court
and stated that they were unable to use the church premises or to
practise their religion in the church, which they had previously used
for a long period as a religious association.
F. Court proceedings concerning the recovery of
property owned by the Parish
On
31 January 2002 Mr Makarchykov and B.M. (a member of the applicant
association) instituted proceedings against the Svyato-Mykhaylivska
Parish (Moscow Patriarchate) seeking the return of their personal
property that had allegedly been confiscated by the new Assembly in
January 2000. They also sought compensation for damage.
On
25 February 2004 the Dniprovsky District Court of Kyiv rejected Mr
Makarchykov's and B.M's claims as unsubstantiated.
It
appears from the documents in the case-file that this judgment was
upheld by the Court of Appeal on 18 August 2004 (the
parties have not provided a copy of the ruling). It also appears from
the case-file that this ruling was not appealed against.
In
November 2002 K.S. instituted proceedings against the Darnytsky
District Department of the Interior for the return of the car that
had been transferred into his ownership for the repayment of Parish's
debts before being unlawfully seized by the police. The outcome of
these proceedings is unknown.
The
applicant association also provided the Court with a number of
documents confirming that Mr Makarchykov had acted on behalf of the
Parishioners' Assembly from 1991 to 1999 representing its interests
in dealings with third parties.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine of 26 June 1996
The
relevant provisions of the Constitution of Ukraine read as follows:
Article 35
“Everyone has the right to freedom of personal
philosophy and religion. This right includes the freedom to profess
or not to profess any religion, to perform alone or collectively and
without constraint religious rites and ceremonial rituals, and to
conduct religious activities.
The exercise of this right may be restricted by
law only in the interests of protecting public order, the health and
morals of the population, or the rights and freedoms of others.
The Church and religious organisations in Ukraine are
separated from the State, and the school from the Church. No
religion shall be recognised by the State as mandatory.”
B. Freedom of Conscience and Religious Organisations
Act of 23 April 1991 (as worded at the material time)
The
relevant provisions of the Act read as follows:
Section 7
Religious organisations
“Religious organisations in Ukraine shall be
created to meet citizens' religious needs to manifest and disseminate
their faith, and shall operate in accordance with their hierarchical
and institutional structure, electing, appointing and changing their
personnel in accordance with the provisions of their statutory
documents...
Religious organisations in Ukraine are religious groups,
departments and centres, monasteries, religious brotherhoods,
missionary societies (missions), religious educational institutions,
and also unions composed of such bodies. Religious unions shall be
represented by their centres (departments).
No other organisation established on the basis of
religion shall be covered by this Act.”
Section 8
Religious group
“A religious group (релігійна
громада) is a
local religious organisation of believers belonging to a sect,
religious manifestation, persuasion, trend or devotion, who
voluntarily unite for the purposes of the common satisfaction of
religious needs.
The right of the religious group to belong to any church
acting within Ukraine and outside its territorial religious centres
(departments) for canonical or organisational purposes, and
voluntarily to change their affiliation to a particular denomination
shall be recognised by the State.
There is no mandatory obligation to inform the State
authorities of the creation of a religious group.”
Under
section 12 of the Act, the statutes of a religious organisation
determine its legal capacity. They are adopted at a “general
assembly” of the believers or during religious assemblies or
conferences. The statute must contain information, inter alia,
on the type of religious organisation, its religion, current address,
place in the structure of the religious union, property status, the
rights of the organisation to establish enterprises, mass media
sources, other religious organisations or educational institutions,
the procedure for making changes or amendments to the statute, and
the procedure for deciding property and other issues on the
termination of the religious organisation's activities. The statute
must not contravene the law.
In
accordance with section 13 of the Act a religious organisation
becomes a legal entity from the moment its statute is registered by
the relevant body.
Under
section 14, a religious organisation wishing to become a legal entity
must lodge a request for registration on behalf of a minimum of
10 natural persons and the statute of the organisation with the
regional, city or Sevastopol City State Administrations, and in the
Republic of Crimea with the Government of the Crimea. These documents
have to be examined within a month and the relevant body is required
to notify the religious organisation of its decision. Changes and
amendments to the statute of a religious organisation must be
registered in accordance with the same procedure and within the same
time-limits. Representatives of the religious organisation attend the
meeting of the board which examines the request for registration.
In
accordance with section 15 of the Act, registration can be refused if
the statute of the organisation or its activities contravene the law.
A reasoned decision refusing registration must be notified to the
organisation within 10 days.
Under
section 16 of the Act the activities of the religious organisation
must cease on its reorganisation (division, merger, consolidation) or
liquidation. New organisations are registered in accordance with
section 14.
Religious
organisations have the right to use property, land, buildings and
premises owned by the State, non-governmental organisations or
citizens (section 17). Under section 18 these organisations have a
right to own, use and dispose of their property. These rights are
protected by law (section 18). Under section 19 religious
organisations have the right to create, in accordance with the
provisions of their statutes, publishing, commercial, agricultural
and other enterprises and charitable institutions have the rights of
a legal person.
Religious
organisations also have the right to create and maintain places for
religious services and ceremonies (section 21), to acquire religious
literature and objects (section 22), to conduct charitable and other
cultural activities (section 23) and to maintain international
contacts with foreign religious organisation and believers (section
24).
C. Other applicable normative acts
The
relevant provisions of the rules regulating the activities of
religious organisations are as follows.
Under
section 1 of the Humanitarian Aid Act of 22 October 1999 only
registered religious organisations have the right to receive
humanitarian aid.
Sections
12 and 25 of the Publishing Act of 5 June 1997 specify that religious
organisations have no right to publish and disseminate publications
without being registered with the specialised State register of
publishing organisations.
Under
Article 55 of the Commercial Code of 16 January 2003 only registered
organisations or legal entities may engage in commercial activities
or have capacity to trade.
Under
the provisions of the Land Code of 21 January 1994 and the Water
Resources Code of 6 June 1995 religious organisations have the right
to use land and water resources for their needs.
In
accordance with recommendation no. 132 of the Religious Council of
the Cabinet of Ministers of Ukraine of 15 July 1992 every religious
organisation owns its own property and in the event of a transfer
from one denomination to another, property and financial matters must
be resolved on the basis of the statute of each organisation
separately and in accordance with the applicable law.
D. Rulings of the Constitutional Court of 5 June 2002
(case no. 2 36/2002)
On
5 June 2002 the Constitutional Court refused to institute
constitutional proceedings following a request lodged by 51 Ukrainian
Members of Parliament for an interpretation of the notion of “church”
which is contained in Article 35 of the Constitution of Ukraine. In
its ruling, the Constitutional Court recognised the existence of
misinterpretations in the legislation of Ukraine regarding the
definition of the notions of “church” and “religious
organisation”. In some instances, these notions were treated as
having analogous meanings while in others they were given different
meanings.
III. COUNCIL OF EUROPE INSTRUMENTS AND THE RELEVANT NGO
REPORTS
A. Documents of the Council of Europe
The
relevant extracts from Opinion No. 190 (1995) on the application by
Ukraine for membership of the Council of Europe read as follows:
“... 11. Accordingly, in the light of
assurances given by the highest authorities of the state (letter of
27 July 1995 from the President of Ukraine, the President of the
Parliament and the Prime Minister), and on the basis of the following
considerations, the Assembly believes that Ukraine is able and
willing, in the sense of Article 4 of the statute of the Council of
Europe, to fulfil the provisions for membership of the Council of
Europe as set forth in Article 3: 'Every member of the Council of
Europe must accept the principles of the rule of law and of the
enjoyment by all persons within its jurisdiction of human rights and
fundamental freedoms, and collaborate sincerely and effectively in
the realisation of the aim of the Council...':
... xi. a peaceful solution to the disputes
existing among the Orthodox churches will be facilitated while
respecting the Church's independence vis-à-vis the state; a
new non-discriminatory system of church registration and a legal
solution for the restitution of church property will be introduced;
...”
The
relevant extracts from the Report of the Parliamentary Assembly's
monitoring committee 'Honouring of obligations and commitments by
Ukraine' (doc. 10676, 19 September 2005) read as follows:
“... F. Freedom of conscience and
religion
269. Ukraine undertook to introduce a new
non-discriminatory system of church registration and to find a legal
solution for the restitution of church property. The present Law on
freedom of conscience and religious organisations dates back to 1991.
Despite the fact that it is regarded as one of the best freedom of
religion laws in the region, some of its provisions lack clarity. The
Law limits the forms in which a religious organisation can be
created, limits the minimum number of founders to have the statute of
the organisation registered to ten adults (whereas the same
requirement for other civic associations is three persons), bans
creation of local or regional divisions without legal entity status,
provides no possibility for granting legal entity status to religious
associations, discriminates foreigners and stateless persons. There
is a lack of clarity with regard to which organisations are
registered by regional state administrations and which by the State
Committee on Religious Affairs. The law also contains a number of
other ambiguous provisions, which leave a wide discretion to the
implementing authorities. Hence, the quite progressive law for the
time of its adoption now requires significant rewording. At the same
time, the current principle of registration of religious organisation
statutes in order to obtain the legal entity status and the absence
of a requirement for registration of religious organisations as such
should be maintained in line with the Assembly's
Recommendation 1556 (2002).
270. The Ukrainian legislation still lacks
effective legal tools for restitution of church property. So far
restitution was carried out occasionally on the basis of the
parliament's 1991 resolution and several presidential decrees. The
legal problem of restitution mainly stems from the fact that
religious associations have no right to obtain a legal entity status
and thus cannot possess property. Most of the organisations, which
owned the property that should be restituted, ceased to exist and the
Orthodox Church is represented by several organisations. This leads
to an ad hoc restitution practice totally depending on the
local authorities' preferences and which in most cases entails not
the return of the ownership rights but transfer of property into a
gratis rent. We, therefore, call on the Ukrainian authorities to
elaborate clear rules on the restitution of religious property.”
The
Report of the monitoring committee of
the Council of Europe on 'Honouring of obligations and commitments by
Ukraine' (Doc. 8272 of 2 December 1998) read as follows:
“C. Freedom of conscience and of
worship
51. One of Ukraine's commitments, listed in
paragraph 11, xi. of
Opinion No. 190, is to facilitate 'peaceful solution to the
disputes existing among the Orthodox churches [...] while respecting
the Church's independence vis-à-vis the State; a new
non-discriminatory system of church registration and a legal solution
for the restitution of church property should be introduced.'
52. Following accession, the dispute within
the three Orthodox churches in Ukraine, amongst themselves and with
the State, has not ended.
53. Complaints are also expressed by the
representatives of various confessions regarding the lack of
cooperation by the authorities at local level and the system of
taxation. ... There is no sufficiently good coordination between
state and local authorities in this respect.
The
relevant extracts from Recommendation no. 1556 (2002) 'Religion and
change in central and eastern Europe' read as follows:
“... Legal guarantees and their observance
i. to promote conformity of national
legislation with the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, paying special attention to Article 9, which
states that religious freedoms shall be subject only to limitations
prescribed by law and necessary in a democratic society, and to the
ruling of the European Court of Human Rights (1983) that restrictions
on human rights must be motivated by a 'pressing social need', and be
'proportionate to the legitimate aim pursued';
ii. to guarantee all churches, religious
associations, centres and communities the status of legal entities,
if their activity does not violate human rights or international law
...;
vi. to offer to mediate between conflicting
parties, in cases where the latter accept this, for the purpose of
settling disputes, while taking care to ensure that government bodies
do not interfere in dogma or other internal religious matters; ...”
B. NGO Reports
The
relevant extracts from the 2004 joint report of the Ukrainian Human
Rights Organizations on Ukraine reads as follows:
“... 1.2. The
procedure for registration
Courts often do not recognize obstacles placed by
executive bodies before the registration of religious organizations
as being a violation of the right to freedom of religion and worship.
... In Ukraine the importance of gaining certain legal
status is increased since only in this way can religious formations
receive buildings for worship, print and disseminate literature,
invite representatives of foreign organizations, organize public
actions and receive charitable status, as well as carry out
charitable activity. All of this is practically impossible in Ukraine
without the registration of a religious formation, with legal entity
status.
... Positive points are the voluntary nature of
registration of religious organizations and the possibility for
communities to exist without registering themselves. However the
status of such unregistered communities and their rights are not
defined by the law. Following the positivist logic which prevails in
the State Committee on Religious Affairs and in other executive
bodies, such organizations do not have any rights at all, since they
are not set out in law. This applies, for example, to the right of
worship in public places, invitations to foreign priests, the right
to alternative military service of those who belong to such
communities, and many others.
According to the law, religious organizations register
their charter (regulations), however they submit far more documents
and all of these are checked in accordance with Articles 12 and 15 of
the Law on religious organizations. That is, in effect, registration
is carried out not of the charter, but of the organization itself.
In practice, documents are not checked for their
compliance with legislation, but rather the actual religion is
assessed. ...
... The procedure for registering a primary religious
organization consists of submitting registration documents together
with an application signed by not less than 10 Ukrainian citizens.
This application should be considered within a month, or in
exceptional cases, three months. In practice the application is
considered, on average, within three months, and where a special
opinion is needed, and as a precautionary measure, this is deemed
necessary in the majority of cases, registration can drag on for six
months. This violation of the law is established administrative
practice which has no reasonable justification. ...
No clear grounds are set out in legislation for turning
down an application to register a religious organization, and such
grounds are substituted by the general phrase: 'the charter of the
organization contravenes legislation' ...
Legislation does not permit the registration of
religious organizations with canonical subordination to a spiritual
leader (charismatic organizations), since canonical or economic
subordination are permitted only to a religious centre (an
organization which unites several religious communities), which is
already registered. In this way, it is impossible to create religious
organizations which belong to new religions and which do not have
religious centres. It is similarly impossible to create new churches,
since these are understood to be already hierarchical structural
unions.
During registration, the State bodies return the
documents submitted with their comments and their suggestions as far
as the charter is concerned, although this is nowhere allowed for by
legislation. The State bodies' comments frequently relate to aspects
of religious practice and limit the rights of the individual.
There is a general suggestion to move the focus of
regulation from the process of registration to monitoring of the
activities of religious organizations. ...”
The
relevant extracts from the 2005 Human Rights Organizations' Report on
Ukraine read as follows:
“... 4. The
procedure for registration of religious organisations
In Ukraine one needs to have a status of a 'legal
entity' in order to engage in virtually any formal religious
activities, at least for those involving worship in a building,
holding public services or inviting representatives of foreign
religious figures, printing or otherwise disseminating literature,
etc.
Unregistered communities encounter problems with
organizing religious events, inviting religious figures from abroad,
arranging alternative (non-military) service, etc. Clearly such
restrictions are a violation of religious freedom since the right to
organize religious services, study and teach religion, publicize ones
own beliefs and other activities have a direct impact on the human
right to freedom of religion and should not be contingent upon the
legal status of an organization.
... The law lacks any clear definition of the legal
status of the activities of unregistered religious groups, as a
result of which there are sometimes cases of abuse of this status.
For example, we are aware of cases where unregistered religious
communities rent premises for religious activities from state or
educational institutions which in Ukraine is prohibited by law.
Although according to the law religious organizations
have to register their charter, in practice they are required to
provide many other documents as well. That means that essentially it
is not the charter which is registered, but the organization itself.
It is important to note that the establishment by the legislators of
an exhaustive list of forms of religious organizations: a religious
congregation, departments and centres, monasteries, religious
brotherhoods, missionary societies (missions), seminaries and
associations made up of the said religious organizations are a clear
violation of the right of individuals to determine the form of their
own religious association, as well as of the right to autonomy of the
religious group itself, an element of which being able to decide
independently on the structure and its form of management.
As regards the time required for registration – in
accordance with Article 14 of the Law 'On freedom of conscience and
religious organizations', this constitutes three months, including
all necessary consultations. However, in practice, the process can
drag on for six months or more. ...
... for multi-religious Ukraine ... this is not a simple
issue. Legal entity status for a religious association or the Church
as an institution would, in the first instance, give property rights
to, for example, the churches which are presently in the possession
of individual religious organizations (under the law's classification
communities, monasteries, etc). Theoretically they belong to one of
the faiths, yet the tendency to change, for various reasons,
jurisdiction complicates any clear distribution. Current legislation
guarantees the right of a particular religious entity in the event
that confessional jurisdiction for whatever reason changes to retain
the property which that organization acquired. In other words, for
the legislators the parish of the UGCC can in several months become
the parish of the UOC MP together with its church and property, or
vice versa. With the issue remaining unresolved of former property of
religious organizations, expropriated under the Soviet regime which
is now in the possession of another order, is used by several
religious organizations, or which belonged to one organization and
has now been transferred to another – the forcing of the
granting of legal entity status to religious associations could
heighten old conflict.
At the same time, such a method of regulation violates
the structural integrity of a particular religious association, if
not de jure, then de facto, and demands if not
amendments, then review. Ideally, the state should ensure both
possibilities – for the existence of separate religious groups
which do not form part of any association, and the right of a
religious association with clear hierarchical and other structure.
On 1 June 2005 the Supreme Court of Ukraine reversed the
resolution of the former Governor of the Zhytomyr region, S. Ryzhuk,
on cancelling amendments made to the charter of the Svyato-Pokrovsk
Parish of the town of Malin, according to which the parish had
transferred to the jurisdiction of the Russian Orthodox Church
Abroad. The Supreme Court thus declared as lawful the transfer of the
parish from the UOC MP to the jurisdiction of the ROCA abroad. The
parish also retained their church over which there had been conflict
with the other members of the parish who did not wish to change their
confessional affiliation.”
THE LAW
I. SCOPE OF THE CASE
The
Court observes that further new complaints were submitted after
communication based on an alleged infringement of Article 6 §
1 of the Convention, read in conjunction with Article 13. These were
based on the applicant association's allegations of a failure by the
domestic authorities to examine the criminal-law complaints lodged by
the applicant association and its leader (see paragraphs 54-55, 58,
65, 68 and 71 above). Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Court considers it unnecessary to take up these matters separately as
they do not merely elaborate on the original complaint lodged with
the Court on 4 January 2001 (see Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. ADMISSIBILITY
A. Government's objections
1. Alleged abuse of the right of petition
The
Government submitted that, in lodging the application with the Court
on behalf of the religious group, Mr Makarchykov had abused the right
of application, within the meaning of Article 35 § 3.
In particular, they submitted that the application had deliberately
been based on a description of the facts in which events of central
importance were omitted by Mr Makarchykov.
The
applicant association disagreed.
The Court, having regard to the submissions of the
parties and its case-law on the subject (see Al-Nashif v.
Bulgaria, no. 50963/99, § 89, 20 June 2002; and
Varbanov v. Bulgaria, no. 31365/96, § 36,
ECHR 2000 X), does not find that the right of application
was abused in the present case. The Government's objections are
wholly unsubstantiated and must be dismissed.
2. The alleged lack of standing of the applicant
association's representative and the applicant association's victim
status
(a) Submissions of the parties
The
Government observed that the applicant association, the
Svyato-Mykhaylivska Parish, was a religious community allegedly
represented by Mr Makarchykov. However, they submitted that on
29 March 2001, when the application was lodged with the
Court, Mr Makarchykov was no longer a member of the applicant
association and was not empowered to lodge an application on its
behalf with the Court. They referred in this respect to the decisions
of the domestic courts (see paragraphs 50-52 above). Furthermore, the
applicant association itself had never lodged any applications with
the Court or authorised Mr Makarchykov to act on its behalf (see
paragraph 73 above).
The
Government further maintained that, since the date of his dismissal
on 2 January 2000 as Chairman of the Parishioners' Assembly to
present day, Mr Makarchykov had belonged to the Ukrainian
Orthodox Church of Kyiv Patriarchate to which the Parish had never
belonged. They stressed that Mr Makarchykov and the group he
allegedly represented belonged to a different church and had left the
applicant association in December 1999. The Government requested the
Court to strike the application out of the list of cases, as no
complaint had been lodged by the victim of the alleged violation or
its authorised representative.
The
applicant association disagreed. They stated that Mr Makarchykov
was acting on behalf of the members of the Parishioners' Assembly
that had decided to change the denomination of their church to the
Ukrainian Orthodox Church of Kyiv Patriarchate and to apply to the
European Court of Human Rights for protection of their right to
manifest their religion, as the State authorities had failed to
protect the applicant association. They further noted that in their
decisions the domestic courts had not contested the authority of Mr
Makarchykov to represent the Parish, and had examined the complaints
he had lodged on behalf of the applicant association on their merits.
(b) The Court's assessment
As
to the Government's first objection regarding Mr Makarchykov's
lack of standing, the Court finds that there is sufficient
documentary evidence to conclude that he is acting on behalf of a
religious group which on 24 December 1999 decided to change its
denomination and source of canonical guidance from the Moscow
Patriarchate to the Kyiv Patriarchate. This group was directly
affected by the Kyiv City State Administration's refusal, which was
upheld by the domestic courts, to register changes and amendments to
the statute (see paragraphs 42 and 50-52 above). The same group also
approved a decision to apply to the Court on 6 October 2000
(see paragraph 67 above). The Court therefore rejects the
Government's preliminary objection as to the group's and
Mr Makarchykov's lack of standing.
Additionally, the Court observes that the Parish is a
religious group recognised by the Kyiv Patriarchate (see paragraphs
24, 49 and 75 above), which as such was entitled to exercise on
behalf of its adherents the rights guaranteed by Article 9 of the
Convention (see Cha'are Shalom Ve Tsedek v. France [GC],
no. 27417/95, § 72, ECHR 2000-VII). Therefore
Mr Makarchykov, as an elected leader of the association of
believers recognised by the Kyiv Patriarchate, had standing to
represent this group in the proceedings before the Court.
As
to the religious group's victim status, the Court reiterates that the
term “victim” used in Article 34 denotes the person
directly affected by the act or omission which is at issue (see Eckle
v. Germany, judgment of 15 July 1982, Series A no. 51, p.
30, § 66). Moreover, the concept of “victim” in
Article 34 of the Convention should be interpreted autonomously
and independently of domestic law concepts (see Zamula and Others
v. Ukraine, no. 10231/02, § 34, 8 November 2005).
Taking
into account the aforementioned principles and the fact that the
group's current position is no different from that in which it had
found itself after the refusal of the domestic authorities to
register the changes to the statute in January 2000, the Court
considers that the applicant association may claim to be a victim of
the violations complained of for the purposes of Article 34 of the
Convention. In order to ascertain whether it was in fact a victim, it
is necessary to examine the merits of its contentions.
B. Complaints under Article 1 of Protocol No. 1
The applicant association complained that the refusal
of the domestic authorities to register the changes and amendments to
the statute of the Parish led to the expropriation of their property
by the Ukrainian Orthodox Church of Moscow Patriarchate, which
effectively managed the property and assets that had previously
belonged to the Parish as a legal entity. They relied on Article 1
of Protocol No. 1, which provides:
“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.”
The
Government contested that argument. They added that the applicant
association had failed to exhaust all the remedies available to it
under Ukrainian law.
The
applicant association disagreed.
As
regards the proceedings concerning the refusal of the domestic
authorities to register the changes and amendments to the statute
(see paragraphs 50-53 above), the Court notes at the outset that
they did not directly concern the applicant association's allegations
of an infringement of their property rights, as the competent
“national authority” did not deal with the substance of
its complaints under Article 1 of Protocol No. 1 and was unable to
grant appropriate or adequate relief. The applicant association's
complaint under Article 1 of Protocol No. 1 is therefore
premature and must be rejected under Article 35 §§ 1
and 4 of the Convention (see Merit v. Ukraine,
no. 66561/01, § 48, 30 March 2004).
C. Complaints under Article 9 of the Convention
The
applicant association complained that the refusal to register the
amendments to its statute and the subsequent decisions of the
domestic courts were in breach of Article 9 of the Convention, which
provides:
“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.
2. Freedom 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.”
They
further stated that their right to freedom of assembly had been
infringed as the domestic authorities had refused to register the
relevant changes and amendments to the statute of the association,
contrary to Article 9 of the Convention, read in the light of
Article 11 of the Convention, which provides as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. ...”
Raising
substantive objections as to the admissibility of the complaints, the
Government stated that there had been no interference with the
applicant association's rights under Article 9 of the Convention They
submitted that the refusal to register the changes to the statute was
lawful.
The
applicant association disagreed. They stated that there had been
interference with its rights under Article 9 of the Convention, both
taken alone and read in the light of Article 11, and that it could
not be justified by the exceptions mentioned in Article 9 § 2 of
the Convention.
The
Court reiterates, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established.
III. THE ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
A. General principles enshrined in the Court's case-law
The Court recalls 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. Since religious communities
traditionally exist in the form of organised structures, Article 9
must be interpreted 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,
which includes the right to manifest one's religion in community with
others, encompasses the expectation that believers will be allowed to
associate freely, without arbitrary State intervention. The State's
duty of neutrality and impartiality, as defined in the Court's
case-law, is incompatible with any power on the State's part to
assess the legitimacy of religious beliefs (see Metropolitan
Church of Bessarabia, cited above, §§ 118 and 123;
and Hasan and Chaush v. Bulgaria [GC], no. 30985/96,
§ 62, ECHR 2000-XI).
The
Court reiterates that the list of exceptions to freedom of religion
and assembly, as contained in Articles 9 and 11 of the Convention, is
exhaustive, they must be construed strictly and only convincing and
compelling reasons can justify restrictions. The States have only a
limited margin of appreciation in these matters (see Stankov and
the United Macedonian Organisation Ilinden v. Bulgaria,
nos. 29221/95 and 29225/95, § 84, ECHR 2001-IX).
As has been stated many times in the Court's
judgments, by virtue of the wording of the second paragraph of
Article 11, and likewise of Article 9 of the Convention, an
interference can be justified if it is “prescribed by law”
and “in accordance with the law”, as the impugned
measures must not only have some basis in domestic law, but also
refer to the quality of the law in question, which must be
sufficiently accessible and foreseeable as to its effects, that is
formulated with sufficient precision to enable the individual –
if need be with appropriate advice – to regulate his conduct
(see Larissis and Others v. Greece, judgment of 24 February
1998, Reports of Judgments and Decisions 1998-I, p. 378, §
40; and Metropolitan Church of Bessarabia, cited above, §
109).
The
Court further notes that the interference must be “necessary in
a democratic society” (see United Communist Party of Turkey
and Others v. Turkey, judgment of 30 January 1998, Reports
1998-I, §§ 43-45; and Refah Partisi (the Welfare
Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98,
41343/98 and 41344/98, §§ 86-89, ECHR 2003-II). Any
interference must correspond to a “pressing social need”;
thus, the notion “necessary” does not have the
flexibility of such expressions as “useful” or
“desirable” (see Gorzelik, cited above, §§
94-95, with further references).
In
addition, one of the means of exercising the right to manifest one's
religion, especially for a religious community, in its collective
dimension, is the possibility of ensuring judicial protection of the
community, its members and its assets, so that Article 9 must be seen
not only in the light of Article 11, but also in the light of Article
6 (see Metropolitan Church of Bessarabia and Others v. Moldova,
no. 45701/99, § 118, ECHR 2001 XII).
The
Court will, therefore, examine the aforementioned elements in turn.
Additionally, it must satisfy itself whether the State sufficiently
ensured judicial protection of the religious community concerned.
B. Whether there was interference with the applicant
association's rights
1. The parties' submissions
The
Government stated that they had not interfered with the affairs of
the applicant association, which had acted without any control or
supervision on the part of the State. Moreover, in refusing to
register the changes and amendments to the statute of the Parish the
domestic authorities had been guided by the domestic legislation and
the provisions of the statute, which was adopted by the Parish
itself. The State had not taken any active steps to force the
community to join one Patriarchate or the other. Nor had the actions
of the State concerned the religious group's leader, Mr Makarchykov.
The
applicant association stated that its right to change religious
orientation, as guaranteed by Article 9 of the Convention, had been
interfered with. There had been interference with its freedom of
religion as the State had refused to register the changes and
amendments to its statute for no legitimate reason as all the
conditions for making the changes and amendments were met.
Furthermore, the applicant association had been prevented from using
the church premises it had built for its religious ceremonies and
even from using its chosen name.
2. Court's assessment
The Court has consistently stated that a refusal by
the domestic authorities to grant the status of a legal entity to an
association of believers amounts to an interference with the right to
freedom of religion under Article 9 of the Convention (see
Metropolitan Church of Bessarabia, cited above, § 105)
and to freedom of association (see Gorzelik, cited above,
§§ 52 et seq., and Sidiropoulos, cited above,
§§ 31 et seq.). The believers' right to freedom of religion
encompasses the expectation that the community will be allowed to
function peacefully, free from arbitrary State intervention (see
Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62,
ECHR 2000-XI).
With
regard to the Government's statement that there was no legal
requirement to register the religious group and thus no interference
took place in relation to refusal to register changes to the statute
of the religious association at issue as the applicant association
could function without registration, the Court notes that section 7
of the Act did indeed permit religious groups to operate without
legal registration and thus without legal personality. However, the
domestic legislation restricted the legal capacity of unregistered
religious groups, who were not authorised to perform a number of
acts, including certain acts directly related to their religious
activities (see paragraphs 83 – 84 and 90 - 91 above).
The Court considers that in circumstances where a
religious organisation is in apparent conflict with the leadership of
the church to which it is affiliated (see paragraphs 17 – 21
and 23 above) and is obliged to amend its statute and register the
amendments or risk being excluded from a legal entity originally
created by it, required an extremely sensitive, neutral approach to
the conflict on the part of the domestic authorities. It concludes
that the refusal of the Kyiv City State Administration to register
the changes and amendments the applicant association's statute, as
upheld by the Kyiv City Court and the Supreme Court (see paragraphs
42 and 50–52 above), constituted an interference with
the applicant association's right to freedom of religion under
Article 9 of the Convention, taken alone or read in the light of
Article 11. In particular, the Court notes that by this interference
the domestic authorities restricted the ability of the religious
group concerned, which had no legal entity status, to exercise the
full range of religious activities and activities normally exercised
by registered non-governmental legal entities (see paragraphs 83 –
84 and 90 - 91 above). It also prevented it from joining the Kyiv
Patriarchate as an independent religious group administering the
affairs of a church it had built and been accustomed to worship in.
The
Court must now determine whether such interference satisfied the
requirements of paragraph 2 of these provisions, that is whether it
was “prescribed by law”, pursued one or more legitimate
aims and was “necessary in a democratic society” (see,
among many other authorities, Metropolitan Church of Bessarabia,
cited above, § 106).
C. Whether the interference was prescribed by law
1. The parties' submissions
The
Government submitted that the interference was lawful. In particular,
they noted that the Ukrainian legislation contained certain
requirements as to the statutes of religious organisations. These
requirements were of a general nature and formulated in such a way as
to avoid State interference with religious freedom. The Government
referred, in particular, to section 12 of the Freedom of Conscience
and Religious Organisations Act (hereinafter the “Act”),
which had particular requirements concerning the statutes of
religious organisations. It was because of the failure of these
documents to comply with the applicant association's statute that the
Kyiv City State Administration had refused to register the amendments
(see paragraph 42 above).
The
applicant association disagreed. In particular, it stated that the
documents submitted for registration complied with the requirements
of the statute, including those specified in Articles 6.1 and 6.2
(see paragraph 14 above). It further noted that the refusal to
register the changes was unlawful.
2. The Court's assessment
The
Court reiterates that a “law” must be formulated with
sufficient precision to enable the citizen to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see, for example, Rekvényi v.
Hungary [GC], no. 25390/94, § 34, ECHR 1999-III; and
Ukrainian Media Group v. Ukraine, no. 72713/01, § 48,
29 March 2005). The degree of precision depends to a
considerable degree on the content of the instrument at issue, the
field it is designed to cover, and the number and status of those to
whom it is addressed (see Groppera Radio AG and Others v.
Switzerland, judgment of 28 March 1990, Series A no. 173,
p. 26, § 68).
In
addition, there must be a measure of legal protection in domestic law
against arbitrary interferences by public authorities with the rights
safeguarded by the Convention. It would be contrary to the rule of
law for the legal discretion granted to the executive in areas
affecting fundamental rights to be expressed in terms of an
unfettered power. Consequently, the law must indicate the scope of
any such discretion conferred on the competent authorities and the
manner of its exercise with sufficient clarity, having regard to the
legitimate aim of the measure in question, to give the individual
adequate protection against arbitrary interference (see, among many
other authorities, Amann v. Switzerland [GC], no.
27798/95, ECHR 2000-II, §§ 55 and 56; Rotaru v.
Romania [GC], no. 28341/95, ECHR 2000-V, §§
55-63).
The
Court considers that the interference with the applicant
association's rights was prescribed by law, within the meaning of
Article 9 § 2 of the Convention, as it was based
on the provisions of section 15 of the Act. It is also of the opinion
that this provision was sufficiently accessible.
As
to “foreseeability” of the law, as applied to the present
case, the Court considers that this requirement compelled the
respondent State to enact legal provisions that listed in detail all
the possible reasons and grounds for refusing to register changes and
amendments introduced to the statutes of religious associations (see
paragraphs 86 – 89 above). It notes that section 15 of the Act
mentioned only one vague reason for refusal to register a religious
association or changes to it: if “the statute of a religious
organisation or its activity contravenes existing legislation”.
Moreover, section 15 of the Act required the registering body to give
reasons for a refusal to register a religious association or its
statute (see paragraph 83 above). However, the Act did not
specify how detailed this reasoning should be or whether the
reasoning should refer only to the textual incompatibility of the
Statute with the provisions of the law or substantive incompatibility
of the aim and activities of the religious association with the
requirements of the law. Thus, the Court finds it doubtful whether
the provision at issue was “foreseeable” and provided
sufficient safeguards against arbitrariness, not able to prevent
possible abuse by the State registration body, which had unfettered
discretionary powers in registration matters.
However,
the Court further considers that the issue of “quality of the
law” should be seen in the context of the circumstances of the
present case, being closely linked with legitimate aim of the
interference and its “necessity in a democratic society”.
These elements must therefore be discussed below and a conclusion
reached as to whether there had been a violation of the
aforementioned provisions.
D. Whether the interference pursued legitimate aim and
was necessary in a democratic society
1. Legitimate aim
The Court notes that under Articles 9 § 2 and 11
§ 2 of the Convention exceptions to freedom of religion and
association must be narrowly interpreted, such that their enumeration
is strictly exhaustive and their definition is necessarily
restrictive (see, mutatis mutandis, Sidiropoulos and
Others v. Greece, judgment of 10 July 1998, Reports of
Judgments and Decisions 1998 IV, , § 38).
Legitimate aims exhaustively listed in this provision include: the
interests of public safety, the protection of public order, health or
morals, or for the protection of the rights and freedoms of others
(see paragraph 114 above).
In
the Government's view, the refusal to register the changes to the
statute served a legitimate aim, namely the protection of the rights
of the majority of the religious group, who were also laymen and
clerics of the Parish. The Government reiterated that the decision to
change the denomination was taken by a minority of the Parish members
– 21 out of a total of about 300 – who sought to impinge
on the religious rights of the majority of the religious group.
Further, once they had decided to join the Kyiv Patriarchate, the
minority group could have established a different religious group
within that Patriarchate and registered its statute under the
auspices of another denomination, eventually becoming a legal entity
affiliated to its chosen church. The applicant association had thus
had every opportunity to freely exercise their right to manifest
their religion, even without registration, and to enjoy their freedom
of association, and the State had in no way interfered with those
rights. Also, the members of the minority group could have stayed
with the officially registered Parish and continue to manage its
church affairs.
The
applicant association submitted that the interference did not pursue
a legitimate aim, as required by Article 9 § 2 of the
Convention. In particular, a distinction had to be drawn between the
members of the Parish and laymen, who attended religious ceremonies,
but never participated in the management of church affairs or
meetings of the Parishioners' Assembly. The laymen had never asked to
become members of the Parish. In particular, the composition of the
applicant association had been virtually unchanged since 1989, with
the governing body – the Parishioners' Assembly –
consistently having between 22 and 30 members. The Assembly had
always complied with Article 2.12 of the statute when admitting new
members.
The
applicant association further stated that the Government had tried to
substitute the real Parish with its previously non-existent clone
composed of persons who had never belonged to the Parish, but had
been compelled by Moscow Patriarchate representatives to participate
in the “general assembly of the Parish” in January 2000
to force the original members of the Parish out and to prevent the
transfer of the church and the religious association to the Kyiv
Patriarchate. Under the statute (see paragraph 14 above) new
members could only be admitted in accordance with the conditions
specified in it (see Article 2.12 of the statute) and on a majority
vote of the Parishioners' Assembly (Article 2.1). The applicant
association therefore considered that it had been unlawfully expelled
from the church it had previously occupied and managed.
Having regard to the circumstances of the case and
the reasoning of the domestic courts, which upheld refusal of the
Kyiv City State Administration to register changes and amendments to
the statute, the Court considers that the interference complained of
essentially pursued a legitimate aim under Article 9 § 2, namely
protection of public order and safety and the rights of others.
2. Whether the interference was “necessary in a
democratic society”
The Court notes at the outset that it is true that in
a democratic society it may be necessary to place restrictions on
freedom of religion to reconcile the interests of the various
religious groups (see Kokkinakis v. Greece,
judgment cited above, pp. 17 and 18, §§ 31 and 33).
However, the list of these restrictions, as contained in Articles 9
and 11 of the Convention, is exhaustive and they are to be construed
strictly, within a limited margin of appreciation allowed for the
State and only convincing and compelling reasons can justify
restrictions on that freedom. Any such restriction must correspond to
a “pressing social need” and must be “proportionate
to the legitimate aim pursued” (see, among others, Wingrove
v. the United Kingdom, judgment of 25 November 1996, Reports
of Judgments and Decisions 1996-V, p. 1956, § 53).
The
Court's task is thus to determine whether the refusal to register
changes and amendments to the statute of the applicant association
were justified in principle and were proportionate to the legitimate
aim pursued. In order to do so the Court must look at the
interference complained of in the light of the case as a whole and
determine whether it was “proportionate to the legitimate aim
pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”.
In so doing, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in the Convention and, moreover, that they based
their decisions on an acceptable assessment of the relevant facts
(see United Communist Party of Turkey, cited above, § 47,
and Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania,
no. 46626/99, § 49, ECHR 2005-I (extracts)).
In
this relation the Court observes that the grounds given by the
domestic authorities for refusing registration of the applicant
association were not consistent. Although the Kyiv City State
Administration initially referred to Article 2.5 of the statute (see
paragraph 42 above), this alleged defect in the documents submitted
for registration was not the main ground for refusing the applicant
association's re-registration in the subsequent judicial decisions
(see paragraphs 50 - 52 above). In particular, the first-instance
court found that the Parishioners' Assembly held on 24 December 1999
had invalid composition as it did not comprise all the members of the
Parish (see paragraph 51 above) and the Supreme Court further ruled
that the requirements of the statute regarding fixed membership were
incompatible with the Act (see paragraph 52 above).
Thus,
the Court considers it necessary to examine these three main reasons
for refusing the applicant association's re-registration in turn and
to test them against the criteria mentioned above (see paragraph 138
above).
i. Compliance with Article 2.5 of the
statute
The
Court observes that the applicant association's registration was
originally refused on the basis of Article 2.5 of the statute, which
provides that “all official Parish documents shall be signed by
the prior and the chair of the Parishioners' Council”. No other
grounds were given by the Kyiv City State Administration to the
applicant association (see paragraph 42 above).
The
Court notes that it does not follow from Articles 6.1 and 6.2 of the
statute (see paragraph 14 above) that the changes and amendments
submitted to the State authorities for registration had to be signed
by the prior and the chairman of the Parishioners' Assembly. It was
clearly stated in Articles 6.1 and 6.2 of the statute and section 14
of the Act that changes and amendments were to be submitted in the
same manner as documents produced on the initial registration of the
association.
Furthermore,
even supposing that the requirements of Article 2.5 of the statute
were not satisfied, the Court notes that at the material time the
position of prior was vacant as the prior proposed by the Moscow
Patriarchate had not been approved by the Parishioners' Assembly (see
paragraphs 20 – 21 above), in which the power to appoint a
prior was vested by virtue of under Article 2.2 of the statute (see
paragraph 14 above). Moreover, on 31 January 2000 the Parishioners'
Assembly informed the registration body of the appointment of Mr
Pavlo Osnovyanenko, who had been proposed by the Kyiv Patriarchate,
as its prior. This information appears to have been disregarded by
the Kyiv City State Administration, which did not reply to the second
request for registration by the applicant association (see paragraph
45 above).
The
Court notes that the interpretation given by the domestic authorities
to the wording of Article 2.5 of the statute does not reflect its
provisions or those of Articles 6.1 and 6.2 of the statute. It
follows that the arguments advanced by the Kyiv City State
Administration for refusing to register the changes and amendments to
the statute were neither “relevant nor sufficient”.
ii. The finding that the Parishioners'
Assembly held on 24 December 1999 was illegitimate as it did not
comprise all the members of the Parish
The
Court observes that section 7 of the Freedom of Consciousness and
Religions Act gave no clear definition of a “religious
organisation” (релігійні
організації).
Section 8 also defined religious groups (релігійні
групи) as local level
religious organisations (see paragraph 83 above) composed of
“believers of the same religion or religious cult, who
voluntarily united for the purposes of satisfying their religious
needs”. Contrary to the findings of the domestic courts,
Sections 7 and 8 of the Act did not specify that a religious group
had to be composed of all persons or all believers attending
religious services of a particular church. Furthermore, there is a
clear inconsistency in the domestic law as to what constitutes a
“religious organisation” and what constitutes a
“religious group”, or whether they have the same meaning,
the only difference between the two being the local status of a
“religious group” and the lack of any requirement for its
official registration under the Act. Moreover, under section 14 of
the Act a “religious group” can become a “registered
religious organisation” if a minimum of 10 citizens of Ukraine
who have reached the age of majority request its registration with
the local State administration.
Furthermore,
section 8 of the Act did not place any restrictions on or prevent a
religious organisation from determining at its own discretion the
manner in which it would decide whether to admit new members, the
criteria for membership and the procedure for electing its governing
bodies. For the purposes of Article 9 of the Convention, read in the
light of Article 11, these were private-law decisions, which
should not be susceptible to interference by State bodies, unless
they interfere with the rights of others or the restrictions
specified in Articles 9 § 2 and 11 § 2 of the Convention.
In other words, the State cannot oblige a legitimately existing
private-law association to admit members or exclude existing members.
Interference of this sort would run counter to the freedom of
religious associations to regulate their conduct and to administer
their affairs freely. The Court must therefore examine the
regulations contained in the statute as to membership of the Parish
and the factual circumstances of the case.
It
notes at the outset that the applicant association was created in
April 1989 and until January 2000 was continuously composed of some
20 to 30 members (see paragraphs 11 and 22 above). At present it is
still composed of 30 members (see paragraph 5 above). Furthermore,
under Article 1.1 of the statute (see paragraph 14 above), the
Parish is a religious group composed of secular priests, church
ministers and laymen. In other words, this Article refers to those
who were generally eligible for membership of the Parish. However,
under Article 2.1 the highest governing body of the Parish was the
Parishioners' Assembly, composed of the founding members and those
admitted after the establishment of the Parish, on the conditions
specified in Article 2.12 from among those generally eligible for
membership of the Parish. The Court considers, therefore, that the
Parish's internal organisation was clearly defined in the statute.
The domestic authorities, including the courts, disregarded this
internal structure of the Parish as a private-law association,
stating the religious group concerned was a mere minority of the
“permanent members of the religious group” composed of
some 300 people, who were not invited to attend the meeting of the
Parishioners' Assembly, even though they were part of the group.
However,
it is not for the Court to substitute its own view for that of the
relevant national authorities, by deciding how many members belonged
to the Parish or calculating how many of them wished to change its
denomination. The Court's task, as mentioned above, is to review the
decisions the domestic authorities took in the exercise of their
discretion and in accordance with the criteria mentioned above (see
paragraph 138 above).
The
Court notes that both the Kyiv City Court and the Supreme Court
ignored the internal regulations of the Parish, and the history of
the Parish administration from 1989 to 2000 and based their findings
on an unclear reference in section 8 of the Act as to what
constituted a “religious group” and to arguably analogous
meanings of the words “parish”, “group”,
“general assembly” and “parishioners' assembly”.
It accordingly finds that the Kyiv City Court's refusal to order the
registration of the changes and amendments that had been made to the
statute was based on reasoning that was not “relevant or
sufficient”.
iii. The requirement of “fixed
membership”
The Court reiterates that religious associations are
free to determine at their own discretion the manner in which new
members are admitted and existing members excluded. The internal
structure of a religious organisation and the regulations governing
its membership must be seen as a means by which such organisations
are able to express their beliefs and maintain their religious
traditions. The Court points out that the right to freedom of
religion excludes any discretion on the part of the State to
determine whether the means used to express religious beliefs are
legitimate (see Hasan and Chaush, cited above, § 78;
and Manoussakis and Others v. Greece, judgment of 26
September 1996, Reports 1996-IV, § 47).
The
Court considers that the conclusions contained in the Supreme Court's
ruling of 21 April 2000 that the requirement of “fixed
membership” of a religious organisation was not laid down by
legislation and that “parishioners' assembly” and
“general assembly of a religious group” had analogous
meanings so that the rights of the majority of the religious group
and their right to exercise their religion were infringed, were
neither “relevant and sufficient”.
5. Overall conclusions
In the light of the foregoing and conclusions reached
with regard to different reasons for refusal to register changes to
the statute (see paragraphs 144, 149 and 151 above), the Court
considers that the interference with the applicant association's
right to freedom of religion was not justified. It also considers
that the lack of safeguards against arbitrary decisions by the
registering authority were not rectified by the judicial review
conducted by the domestic courts, which were clearly prevented from
reaching a different finding by the lack of coherence and
foreseeability of the legislation. In summary, there has therefore
been a violation of Article 9 of the Convention, read in the light of
Articles 6 § 1 and 11 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant association complained that the domestic courts had erred
in the assessment of the facts and the application of the law, when
considering its complaint about the refusal to register the changes
and amendments to the statute of the Parish. It referred to Article 6
§ 1 of the Convention, which provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
The Court considers, in the light of the parties'
submissions, that the complaint raises serious issues of fact and law
under the Convention and must be declared admissible. However, having
regard to its findings under Article 9 § 1 of the Convention
read in the light of Article 6, the Court finds that it is not
necessary to examine the issues based on the same factual
circumstances under Article 6 § 1 of the Convention separately
(see Metropolitan Church of Bessarabia and Others v. Moldova,
no. 45701/99, § 118, ECHR 2001 XII).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 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.”
The
applicant association submitted its claims for just satisfaction out
of time. These submissions were not included in the case-file for
examination by the Court. Accordingly, the Court considers that there
is no call to award any sum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Rejects the Government's objections as to the
admissibility of the application;
Declares the complaint concerning Articles 6
§ 1 and 9 of the Convention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
9 of the Convention;
Holds that there is no need to examine the
complaint under Article 6 § 1 of the Convention.
Done in English, and notified in writing on 14 June 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
