METROPOLITAN CHURCH OF BESSARABIA
5
AND OTHERS v. MOLDOVA JUDGMENT
17. On 18 October 1995 the Supreme Court of Justice set aside the
decision of 12 September 1995 on the ground that the courts did not have
jurisdiction to consider the applicant Church’s application for recognition.
18. On 13 March 1996 the applicant Church filed a fresh application for
recognition with the government. On 24 May 1996, having received no
reply, the applicants brought civil proceedings against the government in the
Chişinău Court of First Instance, seeking recognition of the Metropolitan
Church of Bessarabia. On 19 July 1996 that court gave judgment against the
applicants.
19. On 20 August 1996 the applicants again filed an application for
recognition, which went unanswered.
20. The applicants appealed to the Chişinău Municipal Court (Tribunal
municipiului) against the judgment of 19 July 1996. In a judgment of 21
May 1997, against which no appeal lay, the Municipal Court quashed the
impugned judgment and allowed the applicants’ claim.
21. However, following a reform of the Moldovan judicial system, the
file was sent to the Moldovan Court of Appeal for trial de novo.
22. On 4 March 1997 the applicants again applied to the government for
recognition. On 4 June 1997, not having received any reply, they referred
the matter to the Court of Appeal, seeking recognition of the Metropolitan
Church of Bessarabia, relying on their freedom of conscience and freedom
of association for the purpose of practising their religion. The resulting
action was joined to the case already pending before the Court of Appeal.
23. In the Court of Appeal the government alleged that the case
concerned an ecclesiastical conflict within the Orthodox Church in Moldova
(the Metropolitan Church of Moldova), which could be resolved only by the
Romanian and Russian Orthodox Churches, and that any recognition of the
Metropolitan Church of Bessarabia would provoke conflicts in the Orthodox
community.
24. The Court of Appeal allowed the applicants’ claim in a decision of
19 August 1997. It pointed out, firstly, that Article 31 §§ 1 and 2 of the
Moldovan Constitution guaranteed freedom of conscience and that that
freedom should be exercised in a spirit of tolerance and respect for others.
In addition, the various denominations were free to organise themselves
according to their articles of association, subject to compliance with the
laws of the Republic. Secondly, it noted that from 8 October 1992 the
applicant Church, acting pursuant to sections 14 and 15 of the Religious
Denominations Act, had filed with the government a number of applications
for recognition, but that no reply had been forthcoming. By a letter of 19
July 1995 the Prime Minister had informed the applicants that the
government could not consider the application of the Metropolitan Church
of Bessarabia without interfering with the activity of the Metropolitan
Church of Moldova. The Court of Appeal further noted that while the
applicant Church’s application for recognition had been ignored, the
6
METROPOLITAN CHURCH OF BESSARABIA
AND OTHERS v. MOLDOVA JUDGMENT
Metropolitan Church of Moldova had been recognised by the government
on 7 February 1993, as an eparchy dependent on the patriarchate of
Moscow.
The Court of Appeal dismissed the government’s argument that
recognition of the Metropolitan Church of Moldova made it possible to
satisfy the wishes of all Orthodox believers. It pointed out that the term
denomination was not to be reserved for catholicism or orthodoxy, but
should embrace all faiths and various manifestations of religious feelings by
their adherents, in the form of prayers, ritual, religious services or divine
worship. It noted that from the point of view of canon law the Metropolitan
Church of Moldova was part of the Russian Orthodox Church and therefore
dependent on the patriarchate of Moscow, whereas the Metropolitan Church
of Bessarabia was attached to the Romanian Orthodox Church and therefore
dependent on the patriarchate of Bucharest.
The Court of Appeal held that the government’s refusal to recognise the
applicant Church was contrary to the freedom of religion, as guaranteed not
only by the Religious Denominations Act but also by Article 18 of the
Universal Declaration of Human Rights, Article 5 of the International
Covenant on Economic, Social and Cultural Rights and Article 18 of the
International Covenant on Civil and Political Rights, to all of which
Moldova was party. Noting that the representative of the government had
taken the view that the applicant Church’s articles of association complied
with domestic legislation, the Court of Appeal ordered the government to
recognise the Metropolitan Church of Bessarabia and to ratify its articles of
association.
25. The government appealed against the above decision on the ground
that the courts did not have jurisdiction to try such a case.
26. In a judgment of 9 December 1997 the Supreme Court of Justice set
aside the decision of 19 August 1997 and dismissed the applicants’ action
on the grounds that it was out of time and manifestly ill-founded.
It noted that, according to Article 238 of the Code of Civil Procedure,
one month was allowed for an appeal against a government decision alleged
to infringe a recognised right. The time allowed began to run either on the
date of the decision announcing the government’s refusal or, if the they did
not reply, one month after the lodging of the application. The Supreme
Court of Justice noted that the applicants had submitted their application to
the government on 4 March 1997 and lodged their appeal on 4 June 1997; it
accordingly ruled their action out of time.
It went on to say that, in any event, the government’s refusal of the
applicants’ application had not infringed their freedom of religion as
guaranteed by international treaties, and in particular by Article 9 of the
European Convention on Human Rights, because they were Orthodox
Christians and could manifest their beliefs within the Metropolitan Church