CEDH · CASELAW;CLIN;ENG — 12 janvier 2010

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Romania - 48107/99 Judgment 12.1.2010 [Section III] Article 6 Civil proceedings Article 6-1 Access to court Restriction on a Church’s access to court in a dispute with another Church: violation   Article 14 Discrimination Restriction on a Greek Catholic Church’s access to court in a dispute with the Orthodox Church: violation   Facts – The applicant is an Eastern-rite Catholic church (Greek Catholic or Uniate) of the Sâmbata parish. In 1948, following the dissolution of the Uniate Church, the church building in which the Sâmbata Uniate priest officiated was transferred to the Orthodox Church. In 1990, after the fall of the communist regime, the Uniate Church was officially recognised again by Legislative Decree no.   126/1990, which provided that joint committees of Uniate and Orthodox representatives were to settle the status of any disputed property, such as the church building in Sâmbata. An attempt to set up a joint committee in Sâmbata failed and the Orthodox representatives opposed a proposal for the two denominations to hold alternate religious services in the church in question. They asserted that the religious building had been their property for years and that the Greek Catholic Church could build a church if it needed to. In 1996 the applicant parish applied to a court for an order requiring the Sâmbata Orthodox parish to allow it to hold services in the parish church. The court held that in the absence of a place of worship for Uniate adherents, the Orthodox parish’s refusal was unreasonable and ordered it to arrange alternate services in an equitable manner. In 1998 the Court of Appeal declared the applicant parish’s application inadmissible. Law – Article 6 § 1: The applicant parish’s action fell within the scope of Article 6 §   1 in its civil aspect in that it had sought to obtain recognition of its right to use a building – a pecuniary right. In its 1998 final judgment, on the basis of Legislative Decree no.   126/1990, the court of appeal had dismissed the applicant parish’s action on the ground that disputes concerning the ownership or use of religious buildings fell outside the courts’ jurisdiction and came within the exclusive jurisdiction of the joint committees. However, it was unquestionable that the joint committee provided for by the Legislative Decree, made up of representatives of the two denominations, could not be regarded as a “tribunal” within the meaning of Article 6 §   1 of the Convention. The Court could accept that the restriction in question had pursued the legitimate aim of preserving social harmony. As to whether it had been proportionate, it was necessary first of all to examine the effect of the requirement to use the preliminary procedure on the applicant parish’s right to a court, and subsequently the effect of the scope of the court’s review. In the present case the applicant parish had followed the procedure prescribed by Legislative Decree no.   126/1990. Thus, at the only meeting between representatives of the two denominations it had asked to share the use, for religious services, of the church building it had owned before 1948 but its request had been refused by the Orthodox majority. However, the law in force at the material time had not laid down any rules on either the procedure for convening the joint committee or its decision-making process. There had been no statutory binding provision requiring the parties to arrange or take part in meetings of such committees. Moreover, no time-limits were set for a joint committee to give a decision. Those legislative shortcomings had helped to create a drawn-out preliminary procedure which, in view of its compulsory nature, was capable of indefinitely blocking the applicant parish’s access to court. Furthermore, the judicial scrutiny to which any decision by the committee could be subjected had been limited to ensuring that the criteria established by law were satisfied, the main one being the need to reflect the majority view. Accordingly, that scrutiny had not been sufficient for the purposes of Article 6 §   1. In addition, although the applicant parish’s action had been declared inadmissible by the court of appeal after a limited review, other courts during the same period had carried out a full judicial review of disputes brought before them. The restriction imposed by law on the right of access to court for disputes of this kind had therefore not appeared necessary to certain domestic courts. Accordingly, a general exclusion of disputes such as the one in the present case from the jurisdiction of the courts in itself infringed the right to a court under Article   6. Furthermore, the Court considered that the system of prior dispute resolution instituted by Legislative Decree no.   126/1990 had not been sufficiently regulated and that the judicial supervision of the joint committee’s decision had not been adequate. The applicant parish had therefore not enjoyed effective access to a court. Conclusion : violation (unanimously). Article 14 in conjunction with Article 6 §   1: The difference in treatment affecting the applicant parish’s enjoyment of its right of access to court had been based on its adherence to the Greek Catholic Church. Although the restitution of religious buildings and other property that had belonged to the Uniate Church prior to its dissolution had been a fairly widespread and socially sensitive issue, the national courts had nevertheless interpreted Legislative Decree no.   126/1990 in a contradictory manner, sometimes accepting and sometimes declining jurisdiction to deal with cases brought before them by Greek Catholic parishes, with the result that the applicant parish had been treated differently from other parishes involved in similar disputes. The difference in treatment to which the applicant parish had been subjected had therefore had no objective and reasonable justification. Conclusion : violation (unanimously). Article 41: EUR 15,000 to cover all heads of damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes