METROPOLITAN CHURCH OF BESSARABIA
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AND OTHERS v. MOLDOVA JUDGMENT
accordance with the laws of that State, and whose name is a historical one
having no link with current or previous political situations. Although its
activity is mainly religious, the applicant Church states that it is also
prepared to cooperate with the State in the fields of culture, education and
social assistance. It further declares that it has no political activity.
The Court considers those principles to be clear and perfectly legitimate.
125. At the hearing on 2 October 2001 the Government nevertheless
submitted that in reality the applicant Church was engaged in political
activities contrary to Moldovan public policy and that, were it to be
recognised, such activities would endanger Moldovan territorial integrity.
The Court reiterates that while it cannot be ruled out that an
organisation’s programme might conceal objectives and intentions different
from the ones it proclaims, to verify that it does not the Court must compare
the content of the programme with the organisation’s actions and the
positions it defends (see Sidiropoulos and Others, cited above, p. 1618,
§ 46). In the present case it notes that there is nothing in the file which
warrants the conclusion that the applicant Church carries on activities other
than those stated in its articles of association.
As to the press articles mentioned above, although their content, as
described by the Government, reveals ideas favourable to reunification of
Moldova with Romania, they cannot be imputed to the applicant Church.
Moreover, the Government have not argued that the applicant Church had
prompted such articles.
Similarly, in the absence of any evidence, the Court cannot conclude that
the applicant Church is linked to the political activities of the above-
mentioned Moldovan organisations (see paragraph 120 above), which are
allegedly working towards unification of Moldova with Romania.
Furthermore, it notes that the Government have not contended that the
activity of these associations and political parties is illegal.
As for the possibility that the applicant Church, once recognised, might
constitute a danger to national security and territorial integrity, the Court
considers that this is a mere hypothesis which, in the absence of
corroboration, cannot justify a refusal to recognise it.
(γ) Protection of social peace and understanding among believers
126. The Court notes that the Government did not dispute that incidents
had taken place at meetings of the adherents and members of the clergy of
the applicant Church (see paragraphs 47-87 above). In particular, conflicts
have occurred when priests belonging to the applicant Church tried to
celebrate mass in places of worship to which the adherents and clergy of the
Metropolitan Church of Moldova laid claim for their exclusive use, or in
places where certain persons were opposed to the presence of the applicant
Church on the ground that it was illegal.
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METROPOLITAN CHURCH OF BESSARABIA
AND OTHERS v. MOLDOVA JUDGMENT
On the other hand, the Court notes that there are certain points of
disagreement between the applicants and the Government about what took
place during these incidents.
127. Without expressing an opinion on exactly what took place during
the events concerned, the Court notes that the refusal to recognise the
applicant Church played a role in the incidents.
(ii) Proportionality in relation to the aims pursued
128. The Government submitted that although the authorities had not
recognised the applicant Church they acted in a spirit of tolerance and
permitted it to continue its activities without hindrance. In particular, its
members could meet, pray together and manage assets. As evidence, they
cited the numerous activities of the applicant Church.
129. The Court notes that, under Law no. 979-XII of 24 March 1992,
only religions recognised by a government decision may be practised in
Moldova. In particular, only a recognised denomination has legal
personality (section 24), may produce and sell specific liturgical objects
(section 35) and engage clergy and employees (section 44). In addition,
associations whose aims are wholly or partly religious are subject to the
obligations arising from the legislation on religious denominations
(section 21).
That being so, the Court notes that in the absence of recognition the
applicant Church may neither organise itself nor operate. Lacking legal
personality, it cannot bring legal proceedings to protect its assets, which are
indispensable for worship, while its members cannot meet to carry on
religious activities without contravening the legislation on religious
denominations.
As regards the tolerance allegedly shown by the government towards the
applicant Church and its members, the Court cannot regard such tolerance
as a substitute for recognition, since recognition alone is capable of
conferring rights on those concerned.
The Court further notes that on occasion the applicants have not been
able to defend themselves against acts of intimidation, since the authorities
have fallen back on the excuse that only legal activities are entitled to legal
protection (see paragraphs 56, 57 and 84 above).
Lastly, it notes that when the authorities recognised other liturgical
associations they did not apply the criteria which they used in order to
refuse to recognise the applicant Church and that no justification has been
put forward by the Government for this difference in treatment.
130. In conclusion, the Court considers that the refusal to recognise the
applicant Church has such consequences for the applicants’ freedom of
religion that it cannot be regarded as proportionate to the legitimate aim
pursued or, accordingly, as necessary in a democratic society, and that there
has been a violation of Article 9 of the Convention.
METROPOLITAN CHURCH OF BESSARABIA
33
AND OTHERS v. MOLDOVA JUDGMENT
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 9
131. The applicant Church further submitted that it was the victim of
discrimination on account of the authorities’ unjustified refusal to recognise
it, whereas they had recognised other Orthodox Churches and had also
recognised several different associations which all claimed allegiance to a
single religion. It relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status.”
132. According to the Government, as the Orthodox Christian religion
had been recognised in the form of the Metropolitan Church of Moldova,
there was no justification for recognising in addition the applicant Church,
which also claimed allegiance to the Orthodox Christian religion. The
applicant Church was not a new denomination but a schismatic group whose
beliefs and liturgy did not differ in any way from those of the Metropolitan
Church of Moldova. The Government admitted that the Orthodox Eparchy
of Chişinău, which was attached to the Russian Orthodox Church of the Old
Liturgy, whose head office was in Moscow, had been recognised even
though it was not a new denomination, but submitted that the difference in
treatment was based on an ethnic criterion, since the adherents and clergy of
the Orthodox Eparchy of Chişinău were all of Russian origin.
133. The applicants submitted that the reason given to the applicant
Church for refusing to recognise it was neither reasonable nor objective,
because when the authorities recognised other denominations they had not
applied the criteria of believers’ ethnic origins or the newness of the
denomination. They pointed out, for instance, that the authorities had
recognised two Adventist Churches and two Jewish associations, which
were not organised along ethnic lines.
134. The Court considers that the allegations relating to Article 14 of the
Convention amount to a repetition of those submitted under Article 9.
Accordingly, there is no cause to examine them separately.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
135. The applicants asserted that domestic law did not afford any
remedy for the complaints they had submitted to the Court. They alleged a
violation of Article 13 of the Convention, which provides:
“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.”
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METROPOLITAN CHURCH OF BESSARABIA
AND OTHERS v. MOLDOVA JUDGMENT
136. The Government submitted that in the present case, since the
applicants’ complaints were civil in nature, the requirements of Article 13
were absorbed by those of Article 6 of the Convention.
137. The Court reiterates that the effect of Article 13 is to require the
provision of a domestic remedy allowing the competent national authority
both to deal with the substance of the relevant Convention complaint and to
grant appropriate relief, although Contracting States are afforded some
discretion as to the manner in which they comply with their obligations
under this provision (see Chahal v. the United Kingdom, judgment of
15 November 1996, Reports 1996-V, pp. 1869-70, § 145). The remedy
required by Article 13 must be “effective”, both in practice and in law.
However, such a remedy is required only for complaints that can be
regarded as “arguable” under the Convention.
138. The Court observes that the applicants’ complaint that the refusal to
recognise the applicant Church had infringed their right to the freedom of
religion guaranteed by Article 9 of the Convention was undoubtedly
arguable (see paragraph 130 above). The applicants were therefore entitled
to an effective domestic remedy within the meaning of Article 13.
Accordingly, the Court will examine whether such a remedy was available
to the applicant Church and the other applicants.
139. It notes that in its judgment of 9 December 1997 the Supreme Court
of Justice held that the government’s refusal to reply to the application for
recognition lodged by the applicant Church had not been unlawful, nor had
it been in breach of Article 9 of the Convention, since the applicants could
manifest their religion within the Metropolitan Church of Moldova.
However, in doing so the Supreme Court of Justice did not reply to the
applicants’ main complaints, namely their wish to join together and
manifest their religion collectively within a Church distinct from the
Metropolitan Church of Moldova and to have the right of access to a court
to defend their rights and protect their assets, given that only denominations
recognised by the State enjoyed legal protection. Consequently, not being
recognised by the State, the Metropolitan Church of Bessarabia had no
rights it could assert in the Supreme Court of Justice.
Accordingly, the appeal to the Supreme Court of Justice based on
Article 235 of the Code of Civil Procedure was not effective.
140. Moreover, the Court notes that although the Religious
Denominations Act makes the activity of a religious denomination
conditional upon government recognition and the obligation to comply with
the laws of the Republic, it does not contain any specific provision
governing the recognition procedure and making remedies available in the
event of a dispute.
The Government did not mention any other remedy of which the
applicants could have made use.
METROPOLITAN CHURCH OF BESSARABIA
35
AND OTHERS v. MOLDOVA JUDGMENT
Consequently, the Court considers that the applicants were unable to
obtain redress from a national authority in respect of their complaint relating
to their right to the freedom of religion. There has therefore been a violation
of Article 13 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLES 6 AND 11 OF THE
CONVENTION
141. The applicants further complained that the refusal to recognise the
applicant Church was preventing it from acquiring legal personality, thus
depriving it of its right of access to a court, as guaranteed by Article 6 of the
Convention, so that any complaint relating to its rights, and in particular its
property rights, could be determined. In addition, they alleged that the
refusal to recognise, coupled with the authorities’ stubborn persistence in
holding to the view that the applicants could practise their religion within
the Metropolitan Church of Moldova, infringed their freedom of
association, contrary to Article 11 of the Convention.
142. Having taken Articles 6 and 11 into account in the context of
Article 9 (see paragraphs 118 and 129 above), the Court considers that there
is no cause to examine them separately.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
143. 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.”
A. Damage
144. The applicants did not claim any sum in respect of pecuniary
damage, but asked for 160,000 French francs (FRF) for non-pecuniary
damage.
145. The Government did not comment on this point.
146. The Court considers that the violations it has found must
undoubtedly have caused the applicants non-pecuniary damage which it
assesses, on an equitable basis, at 20,000 euros (EUR).
B. Costs and expenses
147. Having received from the Council of Europe FRF 7,937.10 in legal
aid for the appearance of the applicant Vlad Cubreacov at the hearing before
the Court, the applicants requested only the reimbursement of the lawyers’
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METROPOLITAN CHURCH OF BESSARABIA
AND OTHERS v. MOLDOVA JUDGMENT
fees they had incurred for the proceedings before the Court, namely
FRF 8,693.89 for the Moldovan lawyer who had prepared their application
and 3,550 pounds sterling for the British counsel who had defended the
applicants’ interests in the present proceedings and presented argument at
the hearing.
148. The Government did not comment on this point.
149. Having regard to the vouchers supplied by the applicants, and
ruling on an equitable basis, the Court awards the applicants the sum of
EUR 7,025 for costs and expenses, plus any sum which may be chargeable
in value-added tax.
C. Default interest
150. According to the information available to the Court, the statutory
rate of interest applicable in France at the date of adoption of the present
judgment is 4.26% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 9 of the Convention;
2. Holds that it is not necessary to examine the case also from the
standpoint of Article 14 of the Convention taken in conjunction with
Article 9;
3. Holds that there has been a violation of Article 13 of the Convention;
4. Holds that it is not necessary to determine whether there have been
violations of Articles 6 and 11 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicants, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 20,000 (twenty thousand euros), to be converted into
Moldovan lei at the rate applicable on the date of settlement, for non-
pecuniary damage;
(ii) EUR 7,025 (seven thousand and twenty-five euros) for costs and
expenses, plus any sum which may be chargeable in value-added tax;
(b) that simple interest at an annual rate of 4.26% shall be payable on
the above sums from the expiry of the above-mentioned three months
until settlement;
METROPOLITAN CHURCH OF BESSARABIA
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AND OTHERS v. MOLDOVA JUDGMENT
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in French, and notified in writing on 13 December 2001, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O’B
OYLE
Elisabeth P
ALM
Registrar
President
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