22
METROPOLITAN CHURCH OF BESSARABIA
AND OTHERS v. MOLDOVA JUDGMENT
97. The Government accepted that the right to freedom of religion
included the freedom to manifest one’s religion through worship and
observance, but considered that in the present case the refusal to recognise
the applicant Church did not amount to a prohibition of its activities or those
of its members. The members of the applicant Church retained their
freedom of religion, both as regards their freedom of conscience and as
regards the freedom to manifest their beliefs through worship and practice.
98. The Government further submitted that the applicant Church, as an
Orthodox Christian Church, was not a new denomination, since Orthodox
Christianity had been recognised in Moldova on 7 February 1993 at the
same time as the Metropolitan Church of Moldova. There was absolutely no
difference, from the religious point of view, between the applicant Church
and the Metropolitan Church of Moldova.
The creation of the applicant Church had in reality been an attempt to set
up a new administrative organ within the Metropolitan Church of Moldova.
The State could not interfere in the conflict within the Metropolitan Church
of Moldova without infringing its duty of neutrality in religious matters.
At the hearing on 2 October 2001 the Government submitted that this
conflict, apparently an administrative one, concealed a political conflict
between Romania and Russia; were it to intervene by recognising the
applicant Church, which it considered to be a schismatic group, the
METROPOLITAN CHURCH OF BESSARABIA
23
AND OTHERS v. MOLDOVA JUDGMENT
consequences were likely to be detrimental to the independence and
territorial integrity of the young Republic of Moldova.
B. The third party
99. The third party submitted that the present application originated in
an administrative conflict within the Metropolitan Church of Moldova. It
asserted that the applicant Church had been set up by clergy of the
Metropolitan Church of Moldova who, prompted by their personal
ambition, had decided to split away from it. As the schismatic activity of the
applicant Petru Păduraru had been contrary to the canons of the Russian
Orthodox Church, the patriarch of Moscow had forbidden him to conduct
divine service. However, in breach of canon law, and without consulting
either the patriarchate of Moscow or the Moldovan civil authorities, the
patriarchate of Bucharest had decided to recognise the schismatic Church.
The conflict thus generated should therefore be resolved only by
negotiations between the Romanian and Russian patriarchates.
100. The third party contended that the applicant Church was based on
ethnic criteria and that its recognition by the government would therefore
not only constitute interference by the State in religious matters but would
also have detrimental consequences for the political and social situation in
Moldova and would encourage the existing nationalist tendencies there. In
addition, such recognition would prejudice the friendly relations between
Moldova and Ukraine.
C. The Court’s assessment
101. The Court reiterates at the outset that a Church or ecclesiastical
body may, as such, 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). In the present case the
Metropolitan Church of Bessarabia may therefore be considered an
applicant for the purposes of Article 34 of the Convention.
1. Whether there was an interference
102. The Court must therefore determine whether there was an
interference with the applicants’ right to freedom of religion on account of
the refusal to recognise the applicant Church.
103. The Government submitted that the refusal to recognise the
applicant Church did not prevent the applicants from holding beliefs or
manifesting them within the Orthodox Christian denomination recognised
by the State, namely the Metropolitan Church of Moldova.
24
METROPOLITAN CHURCH OF BESSARABIA
AND OTHERS v. MOLDOVA JUDGMENT
104. The applicants asserted that, according to Moldovan law, only
religions recognised by the State may be practised and that refusing to
recognise the applicant Church therefore amounted to forbidding it to
operate, both as a liturgical body and as an association. The applicants who
are natural persons may not express their beliefs through worship, since
only a denomination recognised by the State can enjoy legal protection.
105. The Court notes that, according to the Religious Denominations
Act, only religions recognised by government decision may be practised.
In the present case the Court observes that, not being recognised, the
applicant Church cannot operate. In particular, its priests may not conduct
divine service, its members may not meet to practise their religion and, not
having legal personality, it is not entitled to judicial protection of its assets.
The Court therefore considers that the government’s refusal to recognise
the applicant Church, upheld by the Supreme Court of Justice’s decision of
9 December 1997, constituted interference with the right of the applicant
Church and the other applicants to freedom of religion, as guaranteed by
Article 9 § 1 of the Convention.
106. In order to determine whether that interference entailed a breach of
the Convention, the Court must decide whether it satisfied the requirements
of Article 9 § 2, that is whether it was “prescribed by law”, pursued a
legitimate aim for the purposes of that provision and was “necessary in a
democratic society”.
2. Whether the interference was prescribed by law
107. The applicants accepted that the interference in question was
prescribed by the Religious Denominations Act. They asserted nevertheless
that the procedure laid down by the Act had been misapplied, since the real
reason for refusal to register had been political; the Government had neither
submitted nor proved that the applicant Church had failed to comply with
the laws of the Republic.
108. The Government made no observation on this point.
109. The Court refers to its established case-law to the effect that the
terms “prescribed by law” and “in accordance with the law” in Articles 8 to
11 of the Convention not only require that the impugned measures 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 The Sunday
Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A
no. 30, p. 31, § 49; Larissis and Others v. Greece, judgment of 24 February
1998, Reports 1998-I, p. 378, § 40; Hashman and Harrup v. the United
Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; and
Rotaru
v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V).