METROPOLITAN CHURCH OF BESSARABIA
29
AND OTHERS v. MOLDOVA JUDGMENT
under the canonical jurisdiction of the Metropolitan Church of Bessarabia
before 1944.
The Government further asserted that the applicant Church was
supported by openly pro-Romanian Moldovan parties, who denied the
specificity of Moldova, even sometimes during debates in Parliament, thus
destabilising the Moldovan State. In that connection, they mentioned the
Christian Alliance for the Reunification of Romania, set up on 1 January
1993, whose affiliates included a number of associations and a political
party represented in the Moldovan parliament, the Christian Democratic
Popular Front, which had welcomed the reappearance of the Metropolitan
Church of Bessarabia.
Thirdly, in the Government’s submission, the refusal to recognise the
applicant Church had been necessary to preserve social peace and
understanding among believers. The aggressive attitude of the applicant
Church, which sought to draw other Orthodox Christians to it and to
swallow up the other Churches, had led to a number of incidents which,
without police intervention, could have caused injury or loss of life.
Lastly, the Government emphasised that, although they had not
recognised the Metropolitan Church of Bessarabia, the Moldovan
authorities were acting in a spirit of tolerance and permitted the applicant
Church and its members to continue their activities without hindrance.
121. The applicants submitted that the refusal to recognise the
Metropolitan Church of Bessarabia was not necessary in a democratic
society. They asserted that all the arguments put forward by the Government
were without foundation and unsubstantiated and that they did not
correspond to a “pressing social need”. There was nothing in the file to
show that the applicants had intended or carried on or sought to carry on
activities capable of undermining Moldovan territorial integrity, national
security or public order.
They alleged that the government, by refusing recognition even though it
had recognised other Orthodox Churches, had failed to discharge its duty of
neutrality for preposterously fanciful reasons.
Non-recognition had made it impossible for the members of the applicant
Church to practise their religion because, under the Religious
Denominations Act, the activities of a particular denomination and freedom
of association for religious purposes may be exercised only by a
denomination recognised by the State. Similarly, the State provided its
protection only to recognised denominations and only those denominations
could defend their rights in the courts. Consequently, the clergy and
members of the applicant Church had not been able to defend themselves
against the physical attacks and persecution which they had suffered, and
the applicant Church had not been able to protect its assets.
The applicants denied that the State had tolerated the applicant Church
and its members. They alleged, on the contrary, not only that State agents
30
METROPOLITAN CHURCH OF BESSARABIA
AND OTHERS v. MOLDOVA JUDGMENT
had permitted acts of intimidation which members of the applicant Church
had suffered at the hands of other believers but also that in a number of
cases State agents had participated in such acts.
122. The Court will examine in turn the arguments put forward by the
Government in justification of the interference and the proportionality of
that interference in relation to the aims pursued.
(i) Arguments put forward in justification of the interference
(α) Upholding Moldovan law and Moldovan constitutional principles
123. The Court notes that Article 31 of the Moldovan Constitution
guarantees freedom of religion and enunciates the principle of religious
denominations’ autonomy vis-à-vis the State, and that the Religious
Denominations Act (the Law of 24 March 1992) lays down a procedure for
the recognition of religious denominations.
The Government submitted that it was in order to comply with the above
principles, including the duty of neutrality as between denominations, that
the applicant Church had been refused recognition and instead told first to
settle its differences with the already recognised Church from which it
wished to split, namely the Metropolitan Church of Moldova.
The Court notes first of all that the applicant Church lodged a first
application for recognition on 8 October 1992 to which no reply was
forthcoming, and that it was only later, on 7 February 1993, that the State
recognised the Metropolitan Church of Moldova. That being so, the Court
finds it difficult, at least for the period preceding recognition of the
Metropolitan Church of Moldova, to understand the Government’s
argument that the applicant Church was only a schismatic group within the
Metropolitan Church of Moldova, which had been recognised.
In any event, the Court observes that the State’s duty of neutrality and
impartiality, as defined in its case-law, is incompatible with any power on
the State’s part to assess the legitimacy of religious beliefs, and requires the
State to ensure that conflicting groups tolerate each other, even where they
originated in the same group. In the present case, the Court considers that by
taking the view that the applicant Church was not a new denomination and
by making its recognition depend on the will of an ecclesiastical authority
that had been recognised – the Metropolitan Church of Moldova – the State
failed to discharge its duty of neutrality and impartiality. Consequently, the
Government’s argument that refusing recognition was necessary in order to
uphold Moldovan law and the Moldovan Constitution must be rejected.
(β) Threat to territorial integrity
124. The Court notes in the first place that in its articles of association,
in particular in the preamble thereto, the applicant Church defines itself as
an autonomous local Church, operating within Moldovan territory in