(Application no. 6303/05)
12 May 2009
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 Masaev v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
“1. Freedom of conscience is guaranteed. It must be manifested in a spirit of tolerance and mutual respect.
2. Freedom of worship is guaranteed. Religious denominations shall organise themselves according to their own articles of association, in compliance with the law.
3. Any manifestation of discord is forbidden in relations between religious denominations.
4. Religious denominations shall be autonomous and separated from the State, and shall enjoy the latter's support, including facilities granted for the purpose of providing religious assistance in the army, hospitals, prisons, mental institutions and orphanages.”
Section 14 – Recognition of religious denominations
“In order to be able to organise and operate, denominations must be recognised by means of a government decision.
Where a denomination fails to comply with the conditions laid down by the first paragraph of section 9 of the present Act, recognition may be withdrawn under the same procedure.”
This section was amended in 2002. According to the amendments, in order to be recognised a denomination had to submit to the Government a declaration and a series of documents. After submitting the declaration and the documents, the denomination would be registered within thirty days.
“The practising ... of unlawful [religious] beliefs or rituals is punishable by a fine in the amount of MDL 180-360.”
On 31 May 2009 this Code will be replaced by a new Code of Administrative Offences which contains a similar provision in its Article 54.
“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.”
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
“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.”
I. ADMISSIBILITY OF THE CASE
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION
III. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
In order to determine the scope of the margin of appreciation in the present case the Court must take into account what is at stake, namely the need to maintain true religious pluralism, which is inherent in the concept of a democratic society (see Kokkinakis, cited above, § 31). Similarly, due weight must be given to that need when determining, as paragraph 2 of Article 9 requires, whether the interference corresponds to a “pressing social need” and is “proportionate to the legitimate aim pursued” (see, mutatis mutandis, among many other authorities, Wingrove v. the United Kingdom, 25 November 1996, § 53, Reports of Judgments and Decisions 1996 V). In exercising its supervision, the Court must consider the interference complained of on the basis of the file as a whole (see Kokkinakis, cited above, § 47).
IV. alleged violation of Article 13 taken in conjunction with article 9 of the convention
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
A. Pecuniary damage
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 26 (twenty-six euros) in respect of pecuniary damage plus any tax that may be chargeable on this amount;
(ii) EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage plus any tax that may be chargeable on this amount;
(iii) EUR 1,000 (one thousand euros) in respect of costs and expenses plus any tax that may be chargeable to the applicant on this amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 12 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza