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Acquisition of Legal Personality and Registration

Biserica Adevărat Ortodoxă din Moldova and Others v Moldova, 27 February 2007 [ECtHR]

Case no 952/03

21. The applicants complained that the refusal of the State authorities to register the Church had amounted to a violation of their right to freedom of religion as guaranteed by Article 9 § 1 of the Convention. (...)
The applicants also complained that the same inaction of the State authorities had resulted in a violation of their rights guaranteed by Article 11 § 1 of the Convention. (...) The applicants also complained that the failure to enforce the judgment in their favour for a long period had violated their rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. (...)

22. The Court reiterates at the outset that a church or ecclesiastical body may, as such, exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 101, ECHR 2001‑XII). In the present case the True Orthodox Church of Moldova may therefore be considered an applicant for the purposes of Article 34 of the Convention. (...)

24. The applicants complained that the failure of the authorities to comply with the final judgment of 30 August 2001 and to register the Church had violated their rights under Article 9 of the Convention.

   1) Whether there was an interference

25. The Court must determine whether there was an interference with the applicants’ right to freedom of religion on account of the refusal to register the applicant Church.

26. The Government submitted that there had been no interference with the applicants’ freedom of religion since the courts had accepted their claims.

27. The applicants disagreed.

28. The Court recalls that the Convention “is to protect rights that are not theoretical or illusory but practical and effective” (see, e.g., Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999‑III).

29. The Court considers that, despite the adoption of the judgments in favour of the applicants, the authorities’ failure to register the Church and therefore to endow it with legal personality prevented it and its followers from carrying out a number of essential functions (Metropolitan Church of Bessarabia, cited above, § 105.). In essence, the refusal of the authorities to comply with the final judgment and to register the Church resulted in a situation which did not differ, for the applicants, from a rejection by the courts of their claims.

30. The Court therefore considers that the authorities’ refusal to register the applicant Church constituted an interference with the right of the applicant Church and the other applicants to freedom of religion, as guaranteed by Article 9 § 1 of the Convention.

   2) Whether the interference was prescribed by law

31. The applicants submitted that the interference with their rights had not been prescribed by law since it was contrary to the domestic courts’ judgments ordering the registration of the Church.

32. The Government made no observation on this point.

33. The Court refers to its established case-law to the effect that the terms “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measures have some basis in domestic law, but also refer to the quality of the law in question, which must be sufficiently accessible and foreseeable as to its effects, that is formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see Larissis and Others v. Greece, judgment of 24 February 1998, Reports of Judgments and Decisions 1998-I, p. 378, § 40 and Metropolitan Church of Bessarabia, cited above, § 109).
For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI).

34. Moreover, since religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords (see Metropolitan Church of Bessarabia, cited above, § 118).
In addition, one of the means of exercising the right to manifest one’s religion, especially for a religious community, in its collective dimension, is the possibility of ensuring judicial protection of the community, its members and its assets, so that Article 9 must be seen not only in the light of Article 11, but also in the light of Article 6 (see, mutatis mutandis, Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports 1998-IV, p. 1614, § 40, and Canea Catholic Church v. Greece, judgment of 16 December 1997, Reports 1997-VIII, pp. 2857 and 2859, §§ 33 and 40‑41, and opinion of the Commission, p. 2867, §§ 48-49).

35. In the present case the Court notes that the domestic courts have accepted the applicants’ claims and ordered the registration of the Church. In doing so, they expressly rejected all the arguments advanced by the Government against registration. Moreover, they rejected on three occasions the authorities’ requests to re-open the proceedings. The Court further notes that the enforcement authority continuously insisted on the enforcement of the judgment, despite the alleged impossibility to register the applicant Church due to the failure to submit the necessary documents. In fact, such documents were submitted twice, in 2002 and in 2004 (see paragraphs 12 and 17 above) to no avail, even though it appears that this was not necessary in accordance with Article 14 of the Law on Religious Denominations, as amended (see paragraph 20 above).

36. In view of the above, the Court considers that the refusal to register the applicant Church had no legal basis under Moldovan law. It follows that the interference with the applicants’ freedom of religion was not prescribed by law.

37. Having found, in the preceding paragraph, that the interference with the applicants’ right to freedom of religion was unlawful, the Court does not see any need to verify whether that interference pursued a legitimate aim or was “necessary in a democratic society”, within the meaning of Article 9 § 2 of the Convention.

38. There has, accordingly, been a violation of Article 9 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

39. The applicants complained about a violation of their rights guaranteed by Article 11 of the Convention as a result of the impossibility to organise lawfully their religious community.

40. Having regard to its finding of a violation of Article 9 (see paragraph 38 above) the Court considers it unnecessary to examine this complaint separately.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

41. The applicants complained that the delayed enforcement of the judgment of 30 August 2001 in their favour had violated their rights under Article 6 § 1 of the Convention.

42. The Government disagreed. They submitted that there had been objective reasons for the delay in enforcing the final judgment. For instance, the Government delegated the power to register Churches to the Service, which had not been a party to the proceedings and was thus not bound by their outcome. The Department had to strictly observe the law in accordance with which the applicants were required to submit certain documents. The applicants had failed to do so. In addition, several requests had been filed for the re-opening of the proceedings, which delayed the enforcement.

43. Having regard to its finding of a violation of Article 9 (see paragraph 38 above) the Court considers it unnecessary to examine this complaint since it essentially relates to the same main problem of failure to register the Church.

IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

44. The applicants also complained that their right to peaceful enjoyment of possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention, had been breached as a result of the delayed enforcement of the judgment of 30 August 2001.

45. The Government disagreed and relied on reasons similar to those set out in paragraph 42 above.

46. The Court notes that the applicants had to wait almost four years to obtain the money owed to them under the final judgment in their favour (see paragraph 18 above).

47. The Court recalls that it has found violations of Article 1 of Protocol No. 1 to the Convention in numerous cases concerning delays in enforcing final judgments (see, among other authorities, Prodan v. Moldova, cited above, and Luntre and Others v. Moldova, nos. 2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02 and 21945/02, 15 June 2004).
Having examined the material submitted to it, the Court notes that the file does not contain any element which would allow it to reach a different conclusion in the present case. In particular, it considers that the reasons for the belated enforcement advanced by the Government cannot justify a delay of more than three years, considering that the debtor in the present case was the State itself. In this respect, it is irrelevant which of the State authorities had participated in the court proceedings and which of them was responsible for complying with the final judgment.

48. Accordingly, the Court finds, for the reasons given in the cases cited above, that the failure to enforce the judgment of 30 August 2001 within a reasonable time constitutes a violation of Article 1 of Protocol No. 1 to the Convention. (...)

51. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, pp. 1869-70, § 145). The remedy required by Article 13 must be “effective”, both in practice and in law. However, such a remedy is required only for complaints that can be regarded as “arguable” under the Convention (see Metropolitan Church of Bessarabia, cited above, § 137).

52. The Court observes that the applicants’ complaint that the refusal to register the applicant Church infringed their right to freedom of religion guaranteed by Article 9 of the Convention was undoubtedly arguable (see paragraph 38 above). The applicants were therefore entitled to an effective domestic remedy within the meaning of Article 13. Accordingly, the Court will examine whether such a remedy was available to the Church and other applicants.

53. It notes that the applicants have made numerous requests to the authorities to have the Church registered. The Department also made a number of similar requests (se paragraph 15 above). The Court observes that the Department even proposed to the courts that penalties should be applied to those responsible for failing to enforce the final judgment, which recommendation was apparently rejected. It follows that the Department could not be considered as having failed in its duties and that the failure to enforce was rather due to a more general problem of lack of an effective mechanism to ensure compliance with a final judgment.

54. The Court concludes that in respect of the applicants’ request to have the Church registered they had no effective remedy available to them. There has therefore been a violation of Article 13 of the Convention.

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