The European Court of Human Rights has today notified in writing a judgment in the case of Metropolitan Church of Bessarabia and Others v. Moldova (no. 45701/99); the judgment is not final [fn].

The Court held unanimously:

• that there had been violations of Articles 9 (freedom of religion) and 13 (right to an effective remedy) of the European Convention on Human Rights, and
• that it was not necessary to determine whether there had been violations of Article 14 (prohibition of discrimination) read together with Article 9 and of Articles 6 (right to a fair trial) and 11 (freedom of assembly and association) of the Convention.

Under Article 41 of the Convention (just satisfaction), the Court awarded the applicants EUR 27,025 for pecuniary and non-pecuniary damage and for legal costs and expenses. The judgment is in the French language only.

The case concerns an application lodged by the Metropolitan Church of Bessarabia (Mitropolia Basarabiei şi Exarhatul Plaiurilor) and eleven Moldovan nationals, Mr Petru Păduraru, Mr Petru Buburuz, Mr Ioan Eşanu, Mr Victor Rusu, Mr Anatol Goncear, Mr Valeriu Cernei, Mr Gheorghe Ioniţă, Mr Valeriu Matciac, Mr Vlad Cubreacov, Mr Anatol Telembici and Mr Alexandru Magola. Some of the applicants live in Chişinău; the others live in various other Moldovan towns. The applicants hold official positions in the applicant church.

The case concerns the Moldovan authorities’ refusal to recognise the applicant (Orthodox Christian) church. The refusal was upheld on 9 December 1997 by a final judgment of the Supreme Court of Justice. That court held that the question of recognition of the applicant church could be resolved only by the Metropolitan Church of Moldova, which had been recognised by the State and from which the applicant church had split, and that any intervention in the conflict by the Moldovan authorities could only make matters worse. In addition, it held that the applicants and the other adherents of the applicant church could freely practise their religion within the Metropolitan Church of Moldova.

The application was lodged with the European Commission of Human Rights on 3 June 1998 and referred to the European Court of Human Rights on 1 November 1998. It was declared admissible on 7 June 2001. A hearing was held on 2 October 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Elisabeth Palm (Swedish), President,
Wilhelmina Thomassen (Dutch),
Luigi Ferrari Bravo (Italian),
Corneliu Bîrsan (Romanian),
Josep Casadevall (Andorran),
Boštjan Zupančič (Slovenian),
Tudor Panţîru (Moldovan), judges,

and also Michael O’Boyle, Section Registrar.

Relying on Article 9, the applicants complained of the Moldovan State’s refusal to recognise the Metropolitan Church of Bessarabia as a church and alleged that under the relevant domestic legislation a religious denomination could not be active inside Moldovan territory unless it had first been recognised by the authorities. The applicants further alleged a violation of Article 6 § 1 and complained that the Moldovan authorities’ refusal to recognise the applicant church prevented it from obtaining legal personality, so that it had been deprived of the right of access to a court in order to obtain a ruling on any complaint relating to its rights, and in particular its property rights. Relying on Article 9 read together with Article 14, they alleged that, in the exercise of the rights derived from the freedom to manifest one’s religion through observance, the applicant church was the victim of discrimination based on religion since it was not entitled to judicial protection. They further complained of a violation of Article 11 on account of the authorities’ refusal to recognise the applicant church, coupled with their stubborn determination to regard the applicants as members of the Metropolitan Church of Moldova. Lastly, the applicants alleged a violation of Article 13, asserting that in view of the absence of legal protection for the applicant church they did not have an effective remedy before a national authority to which they could submit the complaints they had raised before the Court.

The Court noted that as the applicant church had not been recognised it could not operate. In particular, its priests could not take divine service, its members could not meet to practise their religion and, not having legal personality, it was not entitled to judicial protection of its assets. Accordingly, the Court took the view that the Moldovan Government’s refusal to recognise the applicant church constituted interference with the right of that church and the other applicants to freedom of religion, as guaranteed by Article 9 § 1. Without giving a categorical answer to the question whether the provisions of the Religious Denominations Act of 24 March 1992 satisfied the requirements of foreseeability and precision, the Court was prepared to accept that the interference in question was "prescribed by law" before deciding whether it pursued a "legitimate aim" and was "necessary in a democratic society". It considered that in the present case the interference complained of pursued a legitimate aim for the purposes of Article 9 § 2, namely the protection of public order and public safety.

The Court held that in taking the view that the applicant church was not a new denomination and in making its recognition depend on the will of a recognised ecclesiastical authority, the Metropolitan Church of Moldova, the Government had failed to discharge their duty of neutrality and impartiality. With regard to the tolerance allegedly shown by the respondent Government towards the applicant church and its members, the Court did not accept that this was a substitute for recognition, since recognition alone could confer rights on the applicants. Moreover, it noted that on a number of occasions the applicants had been unable to defend themselves against acts of intimidation, since the authorities had ruled that only lawful activities could enjoy legal protection. Lastly, it noted that before recognising other religious denominations the authorities had not applied the criteria they made use of in order to deny recognition to the applicant church and that no justification had been put forward by the Moldovan Government for this difference in treatment.

In conclusion, the Court considered that the refusal to recognise the applicant church had such consequences for the applicants’ freedom of religion that it could not be regarded as proportionate to the legitimate aim pursued. It had not therefore been necessary in a democratic society and there had been a violation of Article 9.

The Court noted that, in its judgment of 9 December 1997, the Supreme Court of Justice had held that the Government’s refusal to reply to the application for recognition submitted by the applicant church was not unlawful, nor was it in breach of Article 9 of the Convention, since the applicants could manifest their religion within the Metropolitan Church of Moldova. However, in making that ruling the Supreme Court of Justice had not replied to the applicants’ main complaints, namely their wish to meet to practise their religion collectively within a church distinct from the Metropolitan Church of Moldova, and to have the right of access to a court to defend their rights and protect their property, given that only denominations recognised by the State enjoyed legal protection. Accordingly, not being

recognised by the State, the Metropolitan Church of Bessarabia had no rights which it could assert in the Supreme Court of Justice. The appeal to the Supreme Court of Justice under Article 235 of the Code of Civil Procedure was therefore not effective.

The Court further noted that although the Religious Denominations Act of 24 March 1992 required religious denominations to be recognised by the Government and to comply with Moldovan legislation, it did not contain any specific provision governing the recognition procedure or making remedies available in the event of a dispute.

The Court accordingly took the view that the applicants had not been able to obtain redress before a national authority in respect of their complaint concerning their right to freedom of religion. There had therefore been a violation of Article 13.

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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

[fn]  Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.