Expropriated church property: Lupeni in the Grand Chamber

Background

In 1948, the Greek-Catholic Church of Romania [Biserica Română Unită cu Roma, Greco-Catolică] was dissolved by Nicolai Ceaușescu and its property handed over to the Orthodox Church by decree. After the fall of Ceaușescu in 1989, Legislative Decree No. 126/1990 was passed to provide that the legal status of property that had belonged to the Greek-Catholic Church would be determined by joint commissions made up of representatives of both the Greek-Catholic and Orthodox Churches, taking account of the “wishes of the adherents of the communities which own these properties”. The Decree provided that in the event of disagreement, a party with an interest in bringing proceedings could do so under the ordinary law.

In 2001, the Greek-Catholic Parish of Lupeni, the Diocese of Lugoj and the Archpriesthood of Lupeni sought the restitution of property that had been transferred to the Orthodox Church under the Ceaușescu regime. They succeeded at first instance; but that decision was overturned by the Court of Appeal in 2010 and in 2011 the Supreme Court upheld the Court of Appeal under the terms of Legislative Decree no. 126/1990 as amended by Law no. 182/2005.

The Third Section judgment

In Greek-Catholic Parish of Lupeni & Ors v Romania [2015] No. 76943/11 [French only] the applicants claimed an infringement of their right of access to a tribunal and of the principle of legal certainty under Article 6 §1 ECHR (fair trial within a reasonable time) and they complained about the length of the restitution procedure. They further argued that the Supreme Court’s judgment had violated their right to respect for their property under Article 1 of Protocol No. 1 and their freedom of religion under Article 9. They also argued that the decision breached the prohibition on discrimination in Article 14.

The Third Section dismissed their claim unanimously, concluding that the domestic courts had properly weighed up the interests at stake and given detailed, reasoned judgments. The Court also noted that the Constitutional Court had emphasised the need to protect the freedom of religious communities and the freedom of others while having due regard to the historical background to the case. The applicants appealed to the Grand Chamber.

The Grand Chamber judgment 

In Lupeni Greek-Catholic Parish & Ors v Romania [2016] ECHR 1061, the applicants raised three complaints under Articles 6 §1, 13 (effective remedy) and 14 ECHR:
  • that there had been a breach of their right of access to a court because the domestic courts had followed the criterion laid down by Legislative Decree no. 126/1990, applicable in the context of the non-contentious procedure – the wishes of the worshippers in the community in possession of the property – instead of applying the rules of ordinary law;
  • that the application of Legislative Decree no. 126/199 had not been foreseeable and had rendered their access to a court illusory; and
  • that the proceedings had been unduly protracted [64].

The complaints under Article 9 and A1P1 do not appear to have been pursued further. The Grand Chamber chose to examine the applicants’ complaints solely under Article 6 §1, taking the view that the guarantees of Article 13 were absorbed by the stricter guarantees of Article 6.

On the issue of the right of access to a court, the GC noted at the outset that the applicants had not been prevented from bringing their action before the domestic courts, where their case had been carefully examined. It had not been a procedural obstacle hindering the applicants’ access to the courts that had been at stake but a substantive provision which, though it had an impact on the outcome of the proceedings, had not prevented the domestic courts from examining the merits of the dispute. The applicants were complaining about the difficulty of satisfying the conditions of the substantive law in order to obtain restitution of their place of worship; but the scope Article 6 did not extend to substantive limitations on a right existing under domestic law. Therefore, the worshippers’ wishes could not be considered as limiting in any way the domestic courts’ jurisdiction to decide actions for recovery of possession of places of worship. The domestic courts had had full jurisdiction to apply and interpret the national law, without being bound by the refusal of the Orthodox parish to reach a friendly settlement in the context of the procedure before the joint committee. Nor was it for the Grand Chamber to substitute its own view for that of the national legislature as to the most effective legislation for settling disputes, particularly in cases involving disputes over ownership of places of worship. That issue was within the margin of appreciation of states parties.

As to the principle of legal certainty, the legislature had amended Legislative Decree No. 126/1990 so that, if the clergy representing the two denominations failed to reach an agreement within the joint committee, the party with an interest in bringing judicial proceedings could do so under “ordinary law”; however, the concept of “ordinary law” had been the source of differing interpretations. Some courts had given it the usual meaning of protecting the right of ownership and had dealt with actions for recovery of possession in the traditional manner under the Civil Code; others had considered that they were required to take into account the wishes of the worshippers on the basis of Article 3 § 1 of Legislative Decree no. 126/1990.

Depending on the courts’ interpretation of “ordinary law”, the substantive law applied to a dispute could differ: in some cases, the domestic courts compared the title deeds; in others, they sought to establish the wishes of the worshippers of the religious community in possession of the property at the time when its legal status was being examined. The history of property disputes involving Greek-Catholic parishes suggested that they had been affected by the domestic courts’ differences in interpretation. Admittedly, from 2012 onwards the High Court and the Constitutional Court had aligned their respective positions and confirmed that the criterion laid down in Article 3 of Legislative Decree No. 126/1990 was to be applied in relation to the restitution of places of worship; and that, in practice, had harmonised the case-law of the lower courts. Nevertheless, the Grand Chamber considered that in the present case had been bedevilled by “profound and long-standing differences” in the case-law.

States parties were responsible for organising their legal systems to avoid discordant judgments, particularly where they affected a large number of cases before the courts. The Grand Chamber noted the existence of an appeal procedure under Article 329 of the Code of Civil Procedure by which various lower courts could seek guidance from the High Court on the interpretation of the relevant provisions of domestic law in order to harmonise the case-law by issuing a binding decision on how the legal provisions at issue were to be interpreted – but that had not happened in the present case. The Grand Chamber concluded that the uncertainty in the case-law, coupled with the failure to make prompt use of the mechanism under domestic law for ensuring consistent practice, had undermined the principle of legal certainty in violation of Article 6 §1.

Finally, the proceedings had gone on for over ten years and the applicants’ case had not, therefore, been heard within a reasonable time as required by Article 6 §1.

As to the complaint under Article 14 taken together with Article 6 §1, it had not been demonstrated that the criterion of the worshippers’ wishes had created a difference in treatment between the Greek-Catholic parishes and the Orthodox parishes in the exercise of their right of access to a court: both had access to domestic courts with full jurisdiction to apply and interpret the domestic law in a way that was sufficiently wide to satisfy the requirements of Article 6 §1.

The GC held:

  1. by twelve votes to five, that there had been no violation of Article 6 §1 in respect of the right of access to a court;
  2. unanimously, that there had been a violation of Article 6 §1 on account of the breach of the principle of legal certainty;
  3. unanimously, that there had been a violation of Article 6 §1 on account of the length of the proceedings;
  4. by sixteen votes to one, that, having regard to its conclusions under Article 6 §1 it was unnecessary separately to examine the complaint under Article 14, taken in conjunction with Article 6 §1, insofar as it related to an alleged difference in treatment in comparison with other Greek Catholic parishes; and
  5. by twelve votes to five, that there had been no violation of Article 14 in conjunction with Article 6 §1 as regards the right of access to a court insofar as the applicants complained that they had been treated differently in comparison with the defendant Orthodox parish.

The applicants were awarded €4,700 damaged plus costs.

In a subsequent statement, Monsignor Paul Rudelli, Permanent Observer of the Holy See at the Council of Europe, described the Grand Chamber’s judgment as “complex” and in need of “detailed reading”: the ruling limited considerably the ability of the Greek-Catholic Church to pursue cases for restitution of property before the Romanian courts.

Cite this article as: Frank Cranmer, "Expropriated church property: Lupeni in the Grand Chamber" in Law & Religion UK, 1 December 2016, http://www.lawandreligionuk.com/2016/12/01/expropriated-church-property-lupeni-in-the-grand-chamber/

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