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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Metropolitan Church of Bessarabia and others v Moldova - 2916/02 [2010] ECHR 518 (4 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/518.html
Cite as: [2010] ECHR 518
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Resolution
CM/ResDH(2010)81
Execution of the judgments of the European Court of Human Rights
Metropolitan Church of Bessarabia and others and Biserica Adevărat Ortodoxă din Moldova and others against Moldova
(Applications Nos. 45701/99 and 952/03, judgments of 13/12/01 and 27/02/2007,
final on 27/03/02 and 27/05/2007)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violations of the Convention found by the Court in these cases concern the authorities’ refusal to recognise the applicant Churches, the consequences of this non-recognition, the lack of an effective remedy in this respect (violations of article 9 and of article 13 taken in conjunction with article 9), as well as the delayed enforcement of a judgment ordering the payment of compensation awarded for the refusal of registration (violation of Article 1 of the Protocol No. 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments, including, if necessary, any interest on overdue payments (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing similar violations;
Recalling the six Recommendations2 adopted by the Committee of Ministers to improve the implementation of the Convention at national level and the execution of the judgments of the Court;
Recalling its Interim Resolution ResDH(2006)12 as well as the other decisions adopted in these cases;
Noting with satisfaction the registration and the rapid recognition of the applicant Churches which allowed them to obtain legal personality, to bring legal proceedings with a view to protecting their interests and to starting the registration proceedings of their component parts;
Regretting the time which has been required to make the necessary changes within the legislative framework and to adapt relevant practices, and to solve the problems encountered for the effective registration of the component parts of the Metropolitan Church of Bessarabia, as well as the time necessary to resolve the other issues raised in these cases;
Welcoming however the important efforts accomplished by the authorities especially after the adoption of the new Law on Religious Denominations in 2007, with a view to ensure the coherence of the system put in place and its conformity to the Convention and the Court’s case law ;
Noting in particular the changes of practices and the amendments of the Code of Contraventions (2008-2009);
Noting also that the problems initially encountered by the new Service for registration of religious denominations appear to be overcome and that the registration of the component parts of the religious denominations in question, notably those of the Metropolitan Church of Bessarabia, could thus continue, as provided for by the law and by the requirements of the Convention, with access, if necessary, to effective remedies;
Welcoming, in general, the measures taken to reinforce the direct effect of the Convention and of the Court’s case law as well as the government’s determination, on the one hand, to continue publication and training activities necessary to this end, and, on the other hand, to undertake any other measure necessary to the good functioning of the new system;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2010)8
Information on the measures taken to comply with the judgments
in the cases ofMetropolitan Church of Bessarabia and others
and Biserica Adevărat Ortodoxă din Moldova and others against Moldova
Introductory summaries of cases
The case of Metropolitan Church of Bessarabia and others concerns a disproportionate and unnecessary interference with the applicants’ right to freedom of religion, due to the refusal by the Moldovan Government, confirmed by the decision of the Supreme Court of Justice of 9/12/1997, to recognise and to register the applicant Church, so that the latter could neither organise itself nor operate, and lacking legal personality it could not bring legal proceedings to protect its interests. Moreover, the non-recognition of the applicant Church led to the impossibility for its members to meet and to carry on religious activities or to defend themselves against acts of intimidation (violation of Article 9).
The case also concerns the lack of an effective remedy to redress the consequences of the violation of Article 9, as the applicant Church whilst being unrecognised by the government, was unable to enjoy any right which it could assert before the courts. In addition, at the time of the events, the applicable law did not contain any specific provision governing the procedure for recognition of religious denominations or making remedies available in the event of a dispute (violation of Article 13).
The case of Biserica Adevărat Ortodoxă din Moldova and others concerns a violation of the applicants’ right to freedom of religion on the grounds of the government’s persistent refusal to register the applicant Church, despite a final judgment of 30/08/2001 of the Court of Appeal and of the repeated requests from the Enforcement Department for the registration of the applicant Church (violation of Article 9).
The non-execution of the decision of the Court of Appeal has also constituted a violation of the right to an effective remedy (violation of Article 13 taken in conjunction with Article 9).
The case relates also to a violation of the applicants’ right to the peaceful enjoyment of their possessions due to the delayed enforcement of the judgment of 30/08/2001 in the part awarding compensation to the applicant church in respect of non-pecuniary damage suffered on account of the authorities’ refusal to register it (violation of Article 1 of Protocol No. 1).
I. Procedure
In view of the importance of the issues raised by the Court’s judgment in the case of Metropolitan Church of Bessarabia and others, the question of freedom of religion was not only rapidly integrated, in the Committee of Ministers’ supervision of the execution of the Court’s judgment under Article 46 of the Convention, but also in the Council of Europe’s political dialogue with Moldova.
In the context of this dialogue, a series of reports on different draft laws presented by the Moldovan government were carried out by independent experts designated by the Council of Europe. The reports were to assess the compliance of the drafts with Council of Europe standards in general and the Convention requirements in particular. They were carried out in close co-operation with the Secretariat, in particular the Department for the Execution of judgments of the Court.
For an in-depth examination of various issues raised under Article 46 of the Convention (both those relating to the different draft laws presented and those relating to individual measures), additional expert-reports were carried out by the Execution Department and visits to Chişinău were organised in 2004-2006, notably in co-operation with independent experts.
The solution finally chosen by the Moldovan authorities, in particular the maintenance of the idea – which was not in conformity with the advice of the experts and the Secretariat - of a right to registration only for religious communities with a minimum of 100 members (even if these could create components with a minimum of 10 members), raised a number of additional issues under the Convention, and the Committee of Ministers also expressed certain concerns – see below general measures.
No special procedure was organised for the supervision of the execution of the case of Biserica Adevărat Ortodoxă din Moldova and others, which was joined, for the purposes of execution, to the case of Metropolitan Church of Bessarabia and others.
II. Payments of just satisfaction and individual measures
a) Details of just satisfaction
|
Name and application number |
Pecuniary damage |
Non-pecuniary damage |
Costs and expenses |
Total |
|
Metropolitan Church of Bessarabia and others, No. 5701/99 |
- |
20,000 € |
7,025 € |
27,025 € |
|
Paid on 2/07/2002 |
||||
|
Biserica Adevărat Ortodoxă din Moldova and others, No. 952/03 |
10,000 € |
2,000 € |
|
|
|
Paid on 8/08/2007 |
||||
b) Individual measures
1. Case of Metropolitan Church of Bessarabia and others
1.1 Recognition of the applicant Church and its entities and the protection of its religious activities
Following the European Court’s judgment, the Moldovan authorities recognised and registered the applicant Church on 30/07/2002 in accordance with the Moldovan Law on Religious Denominations, as amended on 12/07/2002 (see below general measures). The Church thereby acquired legal personality, allowing it, and its members, to protect its interests usefully, including pursuing its claims as regards property entitlements. This registration also allowed the beginning of the registration process of different components of the applicant Church.
According to the information provided by the Moldovan authorities in March 2006, several component parts of the applicant Church have been registered, of which 86 parishes, 9 monasteries, 2 social missions with 73 sub-divisions, 2 seminaries (one theological and one monastic) and a school of ecclesiastical arts. The applicant Church also disposed at the time of more than 120 rectories with almost 160 priests. As of 01/03/2007, 293 entities of the applicant Church had been registered.
However, between 2004 and 2006, the applicant Church informed the Committee that it had on several occasions encountered obstacles to the registration of some of its parishes. In particular, it claimed in a number of cases that the local authorities refused to issue the certificate of presence on their territories required to obtain registration. This obstacle to the registration was eventually abolished following the entry into force of the new Law on Religious Denominations on 17/08/2007 (see below general measures).
Between November 2006 and May 2007 the applicant Church also submitted complaints before the domestic courts, concerning the refusals by the Service for religious denominations to register certain of its parishes. These proceedings were joined by decision of the Court of Appeal of 31/10/2007 which also designated the Ministry of Justice as a defendant party in this case. By decision of 25/02/2008, the Court of Appeal ordered the Ministry of Justice to register the parishes of the applicant Church, but the Ministry submitted an appeal before the Supreme Court of Justice, which accepted it. On 23/07/2008 the Supreme Court of Justice quashed the decision of the Court of Appeal, mainly on procedural grounds and ordered the re-examination of the case by the Court of Appeal. However, the representative of the applicant Church did not appear at the hearing and the case was struck off its list on 9/12/2008.
Despite the adoption of the new Law on Religious Denominations in August 2008, in June and October 2009, the applicant Church denounced the persisting problems of registration of its parishes, notably alleging the introduction of requirements unforeseen in the law, or interfering with the relationships between the “mother” Church and the local components, or through other measures such as engaging ex officio graphologist al tests of the authenticity of signatures submitted. It has also complained of the continuation of a more general hostile campaign against it launched by state authorities.
In response the Moldovan authorities have indicated that with the entry into force of the new Law on Religious Denominations, the new registration system within the Ministry of Justice began to function only in the beginning of 2008 (see general measures) and that the system had admittedly had certain initial problems in ensuring the rapid management of registration requests. However, these problems were discussed with the representatives of religious communities at a round table organised by the Ministry of Justice in July 2008 in Chişinău. These discussions resulted in the publication in February 2009 of a set of guidelines with examples to assist in formulating registration requests so as to comply with the new legislation. A number of further registrations have also taken place since, both of “mother” churches and their local components, including two local components of the applicant Church. Besides, the government has underlined that none of the problems raised by the applicants under the new Law on Religious Denominations before the Committee of Ministers were previously raised before the domestic courts. The only judicial proceedings engaged concerned the old law and were eventually terminated as the applicant Church did not appear at the hearing (see above). The government has nevertheless communicated the complaints, as formulated before the Committee of Ministers, to the new Service for the registration of the religious denominations so that it can investigate possible additional assistance to applicant Church.
The government has also given some explanations about the allegations concerning the alleged negative official campaign it would have conducted against the applicant Church and its members. It has in particular stressed its neutrality in religious matters. As regards the applicant Church’s reference to certain individual incidents, not least regarding the right of foreign citizens linked with the applicant Church to enter Moldova or work there for the Church, the government has stressed that these incidents were based on failure to respect Moldovan legislation regarding the right to enter and work in Moldova. Notwithstanding these incidents, all the persons concerned subsequently received residence permits and administrative fines were cancelled.
The government stressed that under the new Law on Religious Denominations (Article 8), acts which hinder the free exercise of a religious cult or which spread religious hatred should be punished. Also, the new Criminal Code, adopted in 2002, expressly prohibits interference with freedom of religion, including discrimination on religious grounds by persons in positions of responsibility. In addition, acts which infringe the rights enshrined in the new Law on Religious Denominations may be challenged before the courts (Article 9). The government believes that this protection should effectively impede any intimidating campaigns against the applicant Church.
1.2 The protection of other interests, notably property interests:
Since it was awarded legal personality, in July 2002, the applicant Church is able to protect its own interests, in particular its patrimony.
Already in February 2002, the applicant Church could challenge a government decision (of 26/09/2001 – see the Court’s judgment, §42) approving an amendment to the statute of the Moldovan Metropolitan Church by which it proclaimed itself to be the legal successor to the former Metropolitan Church of Bessarabia (which ceased its activity in 1944). The applicant Church was claiming that such approval allegedly infringed its property. On 14/04/2004, the Enlarged Collegium of the Supreme Court, sitting as a cassation court, confirmed its earlier decision of 02/02/2004 by which it cancelled the government’s decision of 26/09/2001. However, this decision did not thereby recognise the succession rights of the appellant Church. The registration decision appealed against was cancelled merely on the ground that, in the light of the legislation currently in force, the former Metropolitan Church of Bessarabia had no legal successor at the moment of cessation of its activity in 1944.
The government underlines that this decision was only taken in response to a request for registration of statutes of a religious denomination and does not prejudice the possibilities of the applicant Church to protect its property interests in other proceedings directly concerned with such property rights as the Church may claim.
The applicant Church also complained that the Moldovan Government refused to restore the church archives illegally confiscated and nationalised.
In response, the government indicated that all documents were deposited at the National Archives and are part of the State Archives Fund which is state property, constitutes national patrimony, and consequently enjoys the protection of the state so that historically important documents may not be destroyed or otherwise disposed of and may be consulted by anyone. The archived documents are open to the public, to physical or moral persons, i.e. including the Metropolitan church of Bessarabia, which may obtain certified copies without restriction.
2. Case of Biserica Adevărat Ortodoxă din Moldova and others
The applicant Church was registered as ordered on 16/08/2007 and did not submit any further request in respect of individual measures.
In view of the different developments referred to above, as well as of the general measures undertaken and explained below, the Moldovan authorities consider that they have taken sufficient action to satisfy to their obligations under Article 46 as far as individual measures are concerned.
III. General measures
1. The reform of the Law on Religious Denominations: recognition of religious freedom and setting up of effective remedies
The first amendments to the Law on Religious Denominations were brought by Law No. 1220-XV which entered into force on 12/07/2002. These amendments were, however, insufficient to prevent similar violations, inasmuch as they did not sufficiently integrate the right to an effective remedy in each situation, nor the requirement of proportionality.
Between March 2003 and February 2006, six draft laws were submitted to the Committee of Ministers and examined by independent experts appointed by the Council of Europe and by the Department for the Execution of Judgments of the Court (see under “Procedure” above). They have in particular stressed the importance of not reserving registration and recognition only for larger groups, as well as that of providing effective remedies. In March 2006, the Committee of Ministers adopted an Interim Resolution (ResDH(2006)12), urging the Moldovan authorities rapidly to enact the necessary legislation and to adopt the required implementation measures without further delay.
In June 2007, the Committee of Ministers expressed its regrets as to the fact that the final draft Law on Religious Denominations was not communicated to the Committee of Ministers and declared that it expected that the findings of the Court have been taken into account in the new Law on Religious Denominations as well as different expertise done by the experts of the Council of Europe. The Committee of Ministers also noted the assurances given by the Moldovan authorities on this matter.
The new Law on Religious Denominations was adopted by the Parliament on 11/05/2007 and entered into force on 17/08/2007.
After examining the text, the Committee of Ministers noted that although the new Law on Religious Denominations presented many improvements compared to previous drafts, some of the recommendations of the Council of Europe experts and certain of the Committee of Ministers’ own preoccupations had still not been taken into consideration (in particular, the law had maintained the requirement of a minimum of 100 members for the registration of a religious denomination and the registration procedure continued to contain a number of confusing provisions). The Committee accordingly stressed the importance of conceiving the proposals for the implementation legislation and regulations so as to ensure that the new global regulatory framework fully respected the requirements of the Convention. The Committee also stressed the importance of ensuring that the judicial remedies provided were fully effective.
2. The additional reform work and special training activities
Following the adoption of the new Law on Religious Denominations, by government decision No. 1130 of 26/10/2007, the former State Service for religious denominations was dissolved and all registration files were transferred to the Ministry of Justice, which started its work on 10/01/2008. Simultaneously, the government abolished its order of 1994 which had made registration of component parts of recognised cults dependent on a certificate of presence from the local authorities. The government rapidly provided additional information with first examples of registration according to the new system.
The Committee of Ministers noted these developments, but recalled the need to clarify a number of aspects, in particular those related to the rights of religious groups or denominations which did not fulfil the requirements set by the new law to obtain their registration. In this respect it encouraged the rapid organisation of meetings between the Secretariat and the Moldovan authorities to clarify the outstanding issues.
A first meeting was held on 8 and 9/09/2008 in Chişinău between the Secretariat and the relevant Moldovan authorities, including the Ministry of Justice, the Service for registration of religious denominations, the Ministry of the Interior, the Prosecutor’s office, judges of the Supreme Court, the National Institute of Justice, etc.
The Secretariat presented its conclusions of these meetings in Memorandum CM/Inf/DH(2008)47rev (December 2008). It found that:
the control of the proper functioning of the new Service for registration of religious denominations improved;
assurances had been given by the Ministry of Justice, the Ministry of the Interior and the Chief Prosecutor that also non-registered religious groups enjoyed freedom of religion and State protection;
such groups could use other forms of associations than those under the new Law on Religious Denominations to protect their interests.
However, a number of questions were found to be outstanding, notably as regards the registration procedure (allegations of unjustified registration requirements), the recognition of unregistered groups (see e.g. of the Court’s judgment in the Talgat Masaev case criticising sanctions imposed in 2004 on an unregistered group which had held religious service in private premises) and the scope and justifications of a number of rights and duties obtained through registration. There also appeared to be a need to harmonise the new law with a number of other laws, including the Code of Contraventions, in order to fully safeguard freedom of religion.
In response, the government informed the Committee of Ministers that the registration procedure has been clarified through the issue in February 2009 of a set of guidelines (see individual measures above). The government also indicated that the allegations of unjustified registration requirements should first be examined in the context of judicial review of the registration process (which would clearly ensure respect for the Court requirements).
As regards the freedom of religion of unregistered groups, the government renewed before the Committee of Ministers its undertakings made during the Secretariat’s visits and also indicated its intention to amend the Code of Contraventions accordingly. Awaiting the adoption by Parliament of the amendments prepared by the government in 2009, a special inter-ministerial co-ordination group composed of representatives of the Ministry of Justice, the Ministry of the Interior and the Prosecutor General’s Office was created and met twice in 2009. Within this group clear instructions have been given to police and prosecutors to apply the existing Code in accordance with the proposed amendments.
The new draft laws (abolishing the sanction of expulsion in case of disrespect of the requirement of prior authorisation for certain religious activities in public by foreigners and limiting the punishable activities to activities exercised in violation of the new Law on Religious Denominations) have been adopted too late to be included in the new Code of Contraventions, adopted by the Parliament in January 2009, in force as from 31/05/2009. These new texts (Article 54 §§ 2 and 3) were however approved by the Parliament in November 2009.
3. The effectiveness of the remedies set up
The government underlined that at present the new Law on Religious Denominations ensures judicial review of the registration procedure of religious denominations and of their component parts, including in cases of refusal of registration, of suspension of their activities or of their liquidation. In the course of the different contacts taken with relevant authorities a clear consensus also emerged that the law, read together with the Law on Administrative Procedure, also provides access to judicial review in case of absence of reply or unreasonable delay in providing a reply.
It also recalled that the new law provides clear judicial protection of other aspects of freedom of religion (see above, under individual measures above).
In view of the violation in the case of Biserica Adevărat Ortodoxă din Moldova, the government has also stressed that this case was an isolated incident which will not be repeated. The special questions linked with the delayed enforcement of the judicial decisions awarding of damages which also arose in that case are dealt with in the context of the Committee’s examination of the group of cases Luntre and others (application No. 2916/02, 1086th meeting, June 2010).
4. Publication and other measures to improve the direct effect of the Court’s judgments
In addition to legislative and other measures mentioned above, the government also stressed the important efforts it has made to improve the direct effect of the Court and of the case-law of the Court in Moldova at national level, including the recent declaration of 30/10/2009 made by the Moldovan Parliament regarding the state of justice in the Republic of Moldova and measures required to be taken in order to improve the situation.
From this point of view, the judgments were rapidly published in the Official Journal and posted on the website of the Ministry of Justice (www.justice.gov.md). Besides, special efforts were displayed to improve judges’ and prosecutors’ training on the requirements of the Convention on issue of freedom of religion, notably with the help of the National Institute of Justice (a special training session was organised with the participation of the Department for the execution of Judgements in June 2009). Other activities are foreseen.
The government believes that these activities will contribute to an application of the new Law on Religious Denominations, as well as of the rights and obligations acquired by the registration, in conformity with the requirements of the Convention interpreted in the light of the Court’s jurisprudence and, in particular, with the principle of proportionality.
The government is aware of the importance attached to the continuation of these activities and commits itself to support and to undertake any other measure necessary to the good functioning of the system.
III. Conclusions of the respondent state
The government considers that the measures adopted will prevent similar violations to those found in these cases and that Moldova has thus complied with its obligations under Article 46 paragraph 1 of the Convention.
1 Adopted by the Committee of Ministers on 4 March 2010 at the 1078th meeting of the Ministers’ Deputies.
2 Recommendation Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights; Recommendation Rec(2002)13 on the publication and dissemination in the Member States of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights; Recommendation Rec(2004)4 on the European Convention on Human Rights in university education and professional training; Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights; Recommendation Rec(2004)6 on the improvement of domestic remedies; Recommendation Rec(2008)2 on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights.