CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 novembre 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Communicated on 4 November 2020 Published on 23 November 2020   FIRST SECTION Application no. 33931/19 UPRAVLINNYA KRYMSKOYI YEPARKHIYI UKRAYINSKOYI PRAVOSLAVNOYI TSERKVY against Russia lodged on 20 September 2019 STATEMENT OF FACTS The applicant, Upravlinnya Krymskoyi Yeparkhiyi Ukrayinskoyi Pravoslavnoyi Tserkvy, is the Crimean branch of the Ukrainian Orthodox Church of the Kyiv Patriarchate (hereinafter “the applicant Church”). It is based in the Cathedral of Sacred Equal Apostles St. Prince Volodymyr and St. Princess Olga in Simferopol, Crimea (hereinafter “the Cathedral”). According to the applicant Church, the Cathedral is the main temple of the Orthodox Church of Ukraine in Crimea. The applicant Church is represented before the Court by Mr S.A. Zayets, a lawyer practising in Irpin, Ukraine. The facts of the case, as submitted by the applicant Church and as they appear from the documents submitted by them, may be summarised as follows. Proceedings concerning the registration of the Church after the events in 2014 After the Russian Federation asserted jurisdiction over Crimea in 2014, the Russian authorities initiated, which the applicant Church describe as, “a   process of elimination of the Ukrainian Orthodox Church in Crimea”. According to the applicant Church, a number of steps taken by the Russian authorities amounted to a “broad attack on the Ukrainian Orthodox religious community in Crimea that [would] lead to the total destruction of the minority group”. They also claim that the situation worsened after the Orthodox Church in Ukraine became independent in January 2019. Most of the premises used by the Ukrainian Orthodox Church in Crimea have since been seized by the Russian authorities. Currently, only eight temples still exist, whereas at the beginning of 2014 there were approximately forty-five parishes of the Ukrainian Orthodox Church in Crimea. With a view to incorporating legal entities located in Crimea into the Russian legal field, the Russian Government obliged such legal entities, including religious organisations, to undergo a registration procedure under Russian law. According to the Russian legislation, if an entity failed to undergo the registration procedure before 1 January 2016 it would lose its legal capacity. The applicant Church initially refused to undergo “the forced re-registration” since they did not recognise the jurisdiction of the Russian Federation over Crimea. As a result, they lost their legal capacity after the deadline of 1 January 2016. Nevertheless, in 2019 the applicant Church made three attempts in order to register the Ukrainian Orthodox Church under Russian law. Those attempts were unsuccessful, allegedly because of the applicant Church’s failure to comply with the requirements of the Russian legislation. In particular, the documents submitted by the applicant Church for registration, namely the Statute of the Church, had not, according to the Russian authorities, met the requirements set forth in the Russian legislation. The applicant Church alleges that on each occasion the Russian authorities came up with a new reason for refusing to register them as a legal entity notwithstanding their attempts to remedy the previously indicated shortcomings. In 2013 the Ukrainian authorities had granted the applicant Church a permanent right to use a plot of land in Simferopol for the construction of a new church. Due to their lack of legal status the applicant Church can no longer carry out any activity as a religious organisation on the territory of Crimea and they cannot therefore build new places of worship. In any event, the applicant Church subsequently found out that the above-mentioned plot of land had been transferred to the religious community of the Roman Catholic Church in Crimea. Judicial proceedings against the applicant Church for the annulment of the lease of their premises In the spring of 2019 the Russian authorities, namely the “Ministry of Property and Land Affairs of Crimea”, initiated judicial proceedings against the applicant Church, seeking the termination of the lease contract for the premises of the Cathedral used by the applicant Church for their activities. The applicant Church had been in the same premises since 1996 and the lease contract in question had been concluded between the applicant and the Ukrainian authorities in 2002 for a period of 48 years (hereinafter “the lease contract”). In their claim the authorities argued that, since the applicant Church had failed to comply with the registration requirement under Russian law, they did not have a right to carry out their activities on the territory of Crimea and, consequently, they had forfeited their right to use the premises of the Cathedral. In June 2019, that is before the first-instant court examined the case, the Russian authorities initiated renovation work on the Cathedral but, in executing that work, they in fact destroyed parts of it. Following the examination of the claim of the Russian authorities, on 5   July 2019 the “Arbitration Court of Crimea” found for the “Ministry” and ordered the termination of the lease contract. It held that the applicant Church’s failure to register had resulted in the loss of their legal status. In accordance with that court’s decision, the bailiffs set a deadline of 23   September 2019 for the applicant Church to “comply voluntarily” with the decision and to vacate and hand over the premises of the Cathedral to the authorities. The applicant Church unsuccessfully appealed against the above decision. “The 21 st Arbitration Appeal Court” located in Sevastopol, Crimea, and the Arbitration Court of the Central District located in Kaluga, Russia, upheld the decision of the first-instance court and endorsed its reasoning (their decisions were handed down on 5 September 2019 and 18   November 2019 respectively). The applicant Church lodged an appeal on points of law with the Supreme Court of the Russian Federation. By its decision of 20 December 2019, the Supreme Court of the Russian Federation suspended the planned eviction of the applicant Church from the Cathedral until the completion of the proceedings before it. On 4 August 2020 the Supreme Court of the Russian Federation dismissed the applicant Church’s appeal; its decision is final. According to the applicant Church they may be evicted from their premises at any time. Although in their appeals the applicant Church relied on their rights under Articles 6, 9 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, the courts did not deal with those complaints in their decisions and did not give any replies to the applicant Church’s arguments under the Convention. Proceedings before the United Nations Human Rights Committee and subsequently before the Court In the meantime a number of persons sought an interim measure from the United Nations Human Rights Committee to stop their eviction. On 6   September 2019 the UN Committee granted their request for an interim measure and requested the State party (the Russian Federation) not to evict the authors – the congregation of the Orthodox Church of Ukraine – from the Cathedral of Sacred Equal Apostles St. Prince Volodymyr and St.   Princess Olga in Simferopol. On 20 September 2019, the UN Committee reiterated its decision. In their application addressed to the Court the applicant Church argued that the complainants before the UN Committee did not have the status of officials of their Church and that the Church had not authorised those individuals to lodge the request for an interim measure with the UN Committee or to represent them before the UN Committee; they had acted autonomously as private persons and members of the congregation of the applicant Church, seeking to protect their own rights to freedom of religion. On 5 August 2020 the applicant Church lodged a request with the Court under Rule 39 of the Rules of Court and asked the Court to indicate an interim measure to the Russian Federation in order to prevent their eviction from the Cathedral. They claimed that the enforcement of the decision of 5   July 2019 would result in the complete destruction of the Ukrainian Orthodox religious community in Crimea. On 1 September 2020 the request for the interim measure was rejected by the Court as outside the scope of application of Rule 39. COMPLAINTS The applicant Church complain under Article 9 of the Convention that requiring them to re-register their organisation located in the occupied territory of Crimea, as well as the attempts to evict them from their premises, amount to an interference with their right to freedom of religion. They allege that the decision to evict them from the premises of the Cathedral does not have a legal basis. According to the applicant Church, the above interference does not pursue a legitimate aim under Article 9 § 2 of the Convention and will lead to the dissolution of the Ukrainian Orthodox religious community on the territory of Crimea. The applicant Church further state that the above interference with their freedom of religion is disproportional because it effectively deprives them of their legal capacity and, consequently, prevents them from carrying out religious activities on the territory of Crimea. The applicant Church further complain that the Russian authorities interfered with their right to rent the premises of the Cathedral, in breach of Article 1 of Protocol No. 1 to the Convention. Moreover, the applicant Church contend that the alleged renovation of the Cathedral was in fact aimed at evicting them and resulted in damage to their premises contrary to Article 1 of Protocol No. 1 to the Convention. Relying on Article 1 of Protocol No. 1 to the Convention the applicant Church also submit that the deprivation of their right to use the plot of land, which had been given to them by the Ukrainian Government in 2013, and its transfer to another religious community, was not based on law and did not pursue any legitimate aims. The applicant Church also complain that the Ukrainian Orthodox Church of the Kyiv Patriarchate are treated less favorably than the congregation of the Russian Orthodox Church in Crimea and other religious communities. In this regard the applicant Church argue that they have been subjected to discrimination in the enjoyment of their right to freedom of religion contrary to Article 14 in conjunction with Article 9 of the Convention and their right to peaceful enjoyment of their possessions, contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 thereto. The applicant Church further complain that there are no remedies available to them in order to protect their rights. They invoke Article 13 of the Convention in this respect. Lastly, under Article 17 of the Convention the applicant Church complain that the decision to evict them amounts to an abuse of their rights by the Russian Federation since it has no legitimate aim other than ensuring “the integration of Crimea into the Russian Federation”.   QUESTIONS TO THE PARTIES 1.     Do the alleged violations of the Convention fall within the “jurisdiction” of the respondent State within the meaning of Article 1 of the Convention?   2.     Have the applicant Church exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention in relation to their complaints concerning the authorities’ refusals to re-register the Church in 2019; the alleged damage caused to the Cathedral premises during the renovation; and the alleged deprivation of the applicant Church’s right to use the plot of land, which had been given to them by the Ukrainian Government in 2013, on account of its transfer to another religious community? In respect of their answers to this question the Government are requested to provide evidence of available remedies and effective use made of such remedies in comparable situations.   3.     Having regard to the proceedings before the United Nations Human Rights Committee in Communication No. 3651/2019, is the Court prevented from dealing with the present application on the second ground set out in Article 35 § 2 (b) of the Convention?   4.     Do the refusals to register the applicant Church in 2019 or the decision to evict them from their premises constitute a violation of Article 9 of the Convention? In their replies to this question the parties are requested to elaborate whether there was a causal connection between the applicant Church’s refusal to register themselves before 1 January 2016, the authorities’ refusals to register the applicant Church in 2019 and the subsequent decision to terminate their lease.   5.     Has there been an interference with the applicant Church’s peaceful enjoyment of possessions, namely the Cathedral building from which they are being evicted and/or the plot of land which had been given to them by the Ukrainian Government in 2013, and/or on account of the alleged damage caused to the Cathedral during its renovation, within the meaning of Article 1 of Protocol No.   1 to the Convention? In this connection, why and on what basis was that plot of land transferred to the religious community of the Roman Catholic Church in Crimea?   6.     Have the applicant Church suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 9 of the Convention or Article 1 of Protocol No. 1 to the Convention?   7.     Did the applicant Church have an effective remedy for their allegations set out above, as required by Article   13 of the Convention? To that end, did the courts deal with the allegations the applicant Church raised under the Convention?   The Government are also requested to provide documentary evidence pertaining to any applications made by other religious organisations in Crimea to register themselves before the deadline of 1 January 2016, the outcome of those applications and the consequences of non-registration.