CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 21 mai 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s6DD35890 { width:19.77pt; display:inline-block } .sB7D4C37D { width:129.41pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     FIRST SECTION DECISION Application no. 11748/13 PRAWOSŁAWNA PARAFIA POD WEZWANIEM ŚWIĘTEGO ARCHANIOŁA MICHAŁA W WYSOWEJ against Poland   The European Court of Human Rights (First Section), sitting on 21   May   2019 as a Committee composed of:   Armen Harutyunyan, President,   Krzysztof Wojtyczek,   Pauliine Koskelo, judges, and Renata Degener, Deputy Setion Registrar, Having regard to the above application lodged on 7 February 2013, Having deliberated, decides as follows: THE FACTS 1.     The applicant in the present case is the Orthodox Parish of Saint Michael the Archangel of Wysowa ( Prawosławna Parafia Pod Wezwaniem Świętego Archanioła Michała w Wysowej ). The applicant parish was represented by the prior of the parish, Mr W.   Kaniuk. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant parish, may be summarised as follows. 1.     Background to the case 3.     Since the 1920s the Jawor Mountain, situated in the south ‑ east of Poland, has been a pilgrimage destination for Greek Catholic and Orthodox pilgrims, mostly from the Lemko minority. 4.     In 1929 the Greek Catholic community funded and constructed a chapel on the site. In 1931 the chapel was consecrated by the Greek Catholic bishop of the Przemyśl Diocese. 5.     In 1947, during the so-called Operation Vistula ( Akcja Wisła ), about 141,000 members of the Ukrainian minority (including the Lemko population) residing in the south-eastern provinces of Poland were forcibly resettled in the territories in the west of the country. After 1956, some Lemko families were allowed to return to their home regions in south-eastern Poland. However, the Greek Catholics were not allowed to officially practise their religion. Therefore, many members of that community practiced with Roman Catholics or became Orthodox. During that period, the chapel on the Jawor Mountain was used as a shelter for Border Guard troops ( Wojska Ochrony Pogranicza ) and even as a public toilet. The premises were badly vandalised. In particular, the soldiers used to heat the chapel by burning votive paintings. 6.     On 7 November 1958 the Board of the Gorlice National Council ( Prezydium Rady Narodowej w Gorlicach ) decided that the applicant parish should take over the management and use of the property in question ( przejęcie w zarząd i użytkowanie ). At the same time, members of the Greek Catholic Church began their endeavours to recover possession of the chapel. 7.     The status of properties which used to belong to the Greek Catholic Church in Poland and which have subsequently been managed by entities of the Orthodox Church was only officially regulated in 2009, by the Act regulating the legal status of some of the properties remaining in the possession of the Polish Autocephalous Orthodox Church ( ustawa o uregulowaniu stanu prawnego niektórych nieruchomości pozostających we władaniu Polskiego Autokefalicznego Kościola Prawosławnego – “the 2009 Act”; see paragraph 30 below). However, given the lack of consensus between the two religious communities, the 2009 Act did not include the chapel on the Jawor Mountain. 2.     Judicial and administrative proceedings (a)     Proceedings for division of plots 8.     On 12 June 2001 the Mayor of the Uście Gorlickie Municipality ( Wójt Gminy Uście Gorlickie ) approved the division of plot no. 781   (38.58 ha) situated on the Jawor Mountain into three plots numbered 781/1 (38.24 ha), 781/2 (0.17 ha) and 781/3 (0.17 ha). The disputed chapel is situated on plots nos. 781/2 and 781/3. The division was recorded in the administrative land register ( rejestr gruntów ), and the State Treasury was indicated as the owner of all three plots. However, on 18 February 2002 and 6 May 2002 the Nowy Sącz Self-Government Board of Appeal ( Samorządowe Kolegium Odwoławcze ) declared that decision null and void. (b)     Amendments to the land register 9.     On 7 July 2000 the Greek Catholic Parish of Saint Michael in Wysowa lodged an application with the Gorlice District Court ( Sąd Rejonowy ) to create a new land register entry for the former plot no.   1497, which had formed part of the more recent plot no. 781. 10.     On 24 September 2001 the Gorlice District Court gave a decision and created a new entry in the land register for plot no. 781/2. The Greek Catholic Parish of Saint Michael in Wysowa was indicated as the owner of the plot. The proceedings were terminated by a decision of the Nowy Sącz Regional Court ( Sąd Okręgowy ) of 23   April 2002. (c)     Proceedings for acquisition by adverse possession instituted by the Greek Catholic Parish of Saint Michael in Wysowa 11.     In 2004 the Greek Catholic Parish of Saint Michael in Wysowa instituted proceedings before the Gorlice District Court, claiming that it had acquired ownership of the plot no. 781/3 situated in Wysowa by way of adverse possession. 12.     On 14 June 2005 the court dismissed the claim on the grounds that, under the provisions in force at the material time (the Austrian Civil Code), the period of occupation necessary to acquire ownership by adverse possession was thirty years. Since the plaintiff had lost possession of the chapel in 1947, following the forced resettlement of the Lemko population, the claim had to be dismissed. 13.     On 14 June 2007 the Nowy Sącz Regional Court amended that decision and held that the Greek Catholic Church of Poland had acquired ownership of the plot in question on 1 August 1989 by way of adverse possession. The court held that the case should have been examined under the provisions of the Civil Code applicable before 1   October   1990, which had required ten years of possession in good faith or twenty years of possession in bad faith. It further noted that after the return of Greek Catholic families to the region, the community had made attempts to regain possession of the chapel. A certain A.C., a member of the Greek Catholic community, had acquired the keys to the chapel, at the latest in 1969, which she had then held until her death in 1993. Consequently, as she had acted on behalf of her Church, the Greek Catholic Church had acquired ownership of the chapel by way of adverse possession on 1 August 1989. The fact that since 1958 the chapel had been subject to the applicant parish’s management did not change that conclusion, as the applicant parish had not been an independent possessor of the land in question ( posiadacz samoistny ). 14.     On 19 November 2008 the Supreme Court ( Sąd Najwyższy ) quashed that decision and remitted the case to the Nowy Sącz Regional Court. The court noted that as at 1 August 1989 the Greek Catholic Church of Poland had not had legal personality, and therefore the legal capacity to acquire ownership of assets – only its organisational units had had such legal capacity. 15.     On 23 June 2009 the Nowy Sącz Regional Court dismissed the plaintiff’s appeal against the decision of 14 June 2005, noting that acts of possession undertaken by certain members of the Greek Catholic Church could not be considered to entail independent possession ( posiadanie samoistne ) of the chapel in dispute. 16.     On 14 October 2010 the Supreme Court again quashed the Regional Court’s decision and remitted the case for reconsideration. The court noted that until 1947 the Greek Catholic Parish of Saint Michael in Wysowa had been in possession of the plot in question for twenty ‑ two years. Subsequently, at least from 1969, the returning Greek Catholic community had begun the restoration of the chapel. In addition, despite the fact that the chapel had been subject to the applicant parish’s management, members of the Greek Catholic Church had undertaken acts consistent with independent possession of the land. In particular, they had held the keys to the chapel and had paid for the renovation works. It was only after 1993 that they had been prevented from entering the chapel and had had to seek prior permission in order to perform religious rituals there. 17.     On 13 May 2011 the Nowy Sącz Regional Court further amended the decision of 14 June 2005. The court firstly established that plot no.   781 had been divided into three plots, nos. 781/1, 781/2 and 781/3. This ruling replaced the invalidated administrative decision (see paragraph 8 above). It further held that the Przemyśl Diocese of the Greek Catholic Church of Poland had acquired ownership of plot no. 781/3, situated in Wysowa, on 1   August 1989. The court endorsed the reasons given by the Supreme Court. It confirmed that until 1993 members of the Greek Catholic Church in Poland had undertaken acts consistent with independent possession of the land in the name of that Church. While the chapel had been subject to the applicant parish’s management since 1958, during that time the applicant parish had been acting as a limited-right possessor of the land ( posiadacz zależny ). It had gained independent possession of the land only in 1993. 18.     On 20 April 2012 the Supreme Court dismissed a cassation appeal by the applicant parish. The court upheld the reasons given by the Regional Court. In so far as the applicant parish alleged a breach of Article 25 § 1 of the Polish Constitution, the court held that in the context of the dispute as to the ownership of plot no. 718/3, the fact that the claimant’s application had been granted and the applicant parish’s application consequently refused could not be considered tantamount to a breach of the rules of fairness of the proceedings. (d)     Proceedings for acquisition by adverse possession instituted by the applicant parish 19.     On 11 May 2005 the applicant parish instituted proceedings before the Gorlice District Court, arguing that it had acquired ownership of the plots no. 781/2 and 781/3 situated in Wysowa by way of adverse possession. 20.     On 16 December 2008 the Gorlice District Court stayed the proceedings until the conclusion of the proceedings for acquisition by adverse possession instituted by the Greek Catholic Parish in Wysowa (see paragraphs 11-18 above). The proceedings were subsequently resumed on 3   December 2012. 21.     On 1 July 2013 the Gorlice District Court dismissed the applicant parish’s claim. The court held that the applicant parish had acquired possession of the chapel in question in 1993. That year, following the death of A.C., the member of the Greek Catholic community who had previously held the keys to the chapel, the applicant parish’s prior had changed the locks to the chapel. Between 1958 and 1993 the applicant parish had only been a limited-right possessor of the land. Consequently, since, in accordance with the law in force at the material time, the period of occupation necessary for acquiring ownership by adverse possession in bad faith was thirty years, the applicant parish’s claim was premature. 22.     On 23 January 2014 the Nowy Sącz Regional Court dismissed an appeal by the applicant parish. The court reiterated the reasons given by the District Court. The court noted that the applicant parish had admitted to acting in bad faith, as it had been aware that the plots in question had previously belonged in part to the Greek Catholic Parish and to private individuals. Since, under Article 172 of the Civil Code, as applicable after 1   October   1990, the period of occupation necessary for acquiring ownership by adverse possession was twenty years in good faith and thirty years in bad faith, the applicant parish’s claim was premature. 23.     On 11 September 2014 the Supreme Court refused to entertain the applicant parish’s cassation appeal. (e)     Proceedings for the release of plots nos. 781/2 and 781/3 24.     On 10 June 2011 the Greek Catholic Parish in Wysowa instituted proceedings against the applicant parish for the release of plots nos.   781/2 and   781/3 ( powództwo o wydanie nieruchomości ) before the Gorlice District Court. 25.     On 16 February 2016 the Gorlice District Court gave judgment and granted the plaintiff’s claim. It found that the disputed chapel was situated on plots nos. 781/2 and 781/3. Plot no. 781/2 was owned by the Greek Catholic Parish in Wysowa and plot no. 781/3 by the Przemysl Diocese of the Greek Catholic Church of Poland. Consequently, since the applicant parish had not had title to the property, the claim had to be granted. 26.     On 26 January 2017 the Nowy Sącz Regional Court partly amended the first-instance judgment. It agreed with the first-instance court’s findings of facts. However, it held that the plaintiff should pay the applicant parish a total of 23,172.60 Polish zlotys (approximately 5,793   euros) as reimbursement for expenses incurred by the applicant parish, relating to the management and upkeep of the disputed chapel. 27.     On 2 March 2017 the keys to the chapel were handed over to the Greek Catholic community. Since then, the Orthodox community has been celebrating religious rituals at a field altar situated on a plot belonging to that community in the direct vicinity of the disputed chapel. B.     Relevant domestic law and practice 1.     Relations between the State and the Polish Autocephalous Orthodox Church. 28.     The Relations between the State and the Polish Autocephalous Orthodox Church Act of 4 July 1991 ( ustawa o stosunku Państwa do Polskiego Autokefalicznego Kościola Prawosławnego – “the 1991 Act”) entered into force on 29 July 1991. The 1991 Act provided that the status of properties which had previously belonged to the Przemyśl Diocese of the Greek Catholic Church and which were subject to management by Orthodox Church entities ( prawosławnych kościelnych osób prawnych ) would be regulated by a separate legal act. 29.     The history of the subsequent legislative initiatives concerning the ownership of properties subject to the management of the Polish Autocephalous Orthodox Church is set out in detail in the Court’s decision in the case of Polish Autocephalous Orthodox Church v.   Poland ((dec.)   31994/03, 27 April 2010) . 30.     The Act regulating the legal status of the properties remaining in the possession of the Polish Autocephalous Orthodox Church was enacted on 17   December 2009 and entered into force on 2   February 2010 (“the   2009   Act” – see paragraph 7 above). The 2009 Act expressly refers to twenty-two church buildings. The ownership of twenty-one premises was transferred to the Polish Autocephalous Orthodox Church. One church building, situated in Bielanka, was handed over to the Greek Catholic community – namely to the Przemyśl-Warsaw Archdiocese of the Greek Catholic Church. 31.     Only two premises were not included in the 2009 Act: a church in Komańcza and the chapel on the Jawor Mountain. The church in Komańcza had been burned down, and its ownership had already been transferred to the Polish Autocephalous Orthodox Church by the time of the works in the parliamentary commission. The chapel on the Jawor Mountain was not included in the 2009   Act as the members of the clergy representing the two interested religious denominations could not agree on a common solution. 2.     Provisions concerning acquisition by adverse possession 32.     Acquisition by adverse possession is regulated by Article   172 of the Civil Code. Until 1 October 1990 that provision provided that a person could acquire ownership of land after ten years’ continuous and independent possession of the land in good faith. In the absence of good faith, a longer period of twenty years’ possession applied. 33.     In 1990 the Civil Code was amended and the statutory periods for acquisition by adverse possession in good and in bad faith were each extended by ten years. Article 172, as in force since 1 October 1990, reads: “§   1.     Persons in possession of property of which they are not the owner shall acquire ownership of that property if they have been in continuous and independent possession thereof for a period of twenty years, save where they came into such possession in bad faith. §   2.     After a period of thirty years, persons in possession of property shall acquire title thereto even if they came into possession of that property in bad faith.” COMPLAINTS 34.     The applicant parish complained under Article 9 of the Convention that the manner in which the domestic courts had determined the dispute in issue and their decision to grant ownership of the chapel to the Greek Catholic community had been in breach of that provision. It also alleged that the State had failed to enact legislation specifically regulating the status of the chapel in question. 35.     Lastly the applicant parish complained under Article   6 of the unfairness of the proceedings that had been instituted by the Greek Catholic Parish concerning acquisition by adverse possession. THE LAW A.     Alleged violation of Article 9 36.     The applicant parish complained under Article 9 about the domestic courts’ decision to grant ownership of the chapel to the Greek Catholic Church of Poland. This provision of the Convention provides as follows: “1.     Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.     Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 37.     The Court reiterates at the outset that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia , freedom to “manifest [one’s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Bearing witness in words and deeds is bound up with the existence of religious convictions. That freedom entails, inter alia , freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Metropolitan Church of Bessarabia and Others v. Moldova , no.   45701/99, §   114, ECHR 2001 ‑ XII). 38.     The Court further reiterates that it is not possible to deduce from the Convention a right for a religious community to be guaranteed a place of worship by the public authorities (see Griechische Kirchengemeinde München und Bayern E.V. v.   Germany (dec.), no.   52336/99, 18   September   2007). 39.     The Court observes that in the present case the domestic courts decided to grant ownership of the chapel and plot in question to the Greek Catholic Church of Poland (see paragraph 17 above). However, that decision has not prevented the applicant parish from functioning and did not restrict their right to obtain or construct a place of worship in accordance with the conditions provided for by law (see, mutatis mutandis , Lupeni Greek Catholic Parish and Others v. Romania , no.   76943/11, §   136, 19   May 2015, and Rymsko-Katolytska Gromada Svyatogo Klymentiya v.   Misti Sevastopoli v. Ukraine (dec.), no. 22607/02, 3   May 2016). 40.     Taking into account the above, the Court considers that the decision of the domestic courts not to grant ownership of the premises in question to the applicant parish does not have a direct bearing on the applicant parish’s expression of its beliefs as protected under Article 9 of the Convention. Moreover, the Court finds that it does not follow from the applicant parish’s submissions that the domestic courts’ decisions in the present case constituted an unjustified interference with its right to practise religion. The domestic courts did not base their decision on considerations of religious affiliation, but on specific factual evidence. 41.     As regards the applicant parish’s allegation that the State had failed to enact legislation relating specifically to the chapel on the Jawor Mountain, the Court observes that the State authorities took steps to accommodate members of both communities. Despite signs of animosity between the two religious denominations, the status of nearly all disputed properties was regulated by the 2009 Act (see paragraphs 7 and 31 above). It is true that the chapel on the Jawor Mountain was not included in the 2009 Act; however, given that at that time the proceedings concerning acquisition by adverse possession were already pending and that members of the clergy representing the two denominations could not agree on a common solution, it appears that in those particular circumstances the State authorities were acting in compliance with their role as a neutral and impartial organiser of the exercise of various religions (see İzzettin Doğan and Others v.   Turkey [GC], no. 62649/10, § 107, 26   April 2016). 42.     Accordingly, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. B.     Alleged violation of Article 6 43.     Having considered the applicant parish’s submissions in the light of all the material in its possession, the Court finds that in so far as the matters complained of are within its competence they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 44.     It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3   (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 13 June 2019.   Renata Degener   Armen Harutyunyan   Deputy Registrar   President