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Objectives and Activities

Metropolitan Church of Bessarabia and Others v Moldova, 13 December 2001 [ECtHR]

Case no 45701/99

105.  The Court notes that, according to the Religious Denominations Act, only religions recognised by government decision may be practised. 

In the present case the Court observes that, not being recognised, the applicant Church cannot operate. In particular, its priests may not conduct divine service, its members may not meet to practise their religion and, not having legal personality, it is not entitled to judicial protection of its assets.

The Court therefore considers that the government’s refusal to recognise the applicant Church, upheld by the Supreme Court of Justice’s decision of 9 December 1997, constituted 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.

106.  In order to determine whether that interference entailed a breach of the Convention, the Court must decide whether it satisfied the requirements of Article 9 § 2, that is whether it was “prescribed by law”, pursued a legitimate aim for the purposes of that provision and was “necessary in a democratic society”.

2.  Whether the interference was prescribed by law

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109.  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 The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49; Larissis and Others v. Greece, judgment of 24 February 1998, Reports 1998-I, p. 378, § 40; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V).

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).

The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup, cited above, § 31, and Groppera Radio AG and Others v. Switzerland, judgment of 28 March 1990, Series A no. 173, p. 26, § 68).

110.  In the present case the Court notes that section 14 of the Law of 24 March 1992 requires religious denominations to be recognised by a government decision and that, according to section 9 of the same law, only denominations whose practices and rites are compatible with the Moldovan Constitution and legislation may be recognised. 

Without giving a categorical answer to the question whether the above-mentioned provisions satisfy the requirements of foreseeability and precision, the Court is 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”. 

3.  Legitimate aim

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113.  The Court considers that States are entitled to verify whether a movement or association carries on, ostensibly in pursuit of religious aims, activities which are harmful to the population or to public safety (see Manoussakis and Others, cited above, p. 1362, § 40, and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 84, ECHR 2001-IX).

Having regard to the circumstances of the case, the Court considers that the interference complained of pursued a legitimate aim under Article 9 § 2, namely protection of public order and public safety.

4.  Necessary in a democratic society

(a)  General principles

114.  The Court refers to its settled case-law to the effect that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

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 Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I). Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV, p. 1209, § 27).

115.  The Court has also said that, in a democratic society, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, p. 18, § 33).

116.  However, in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial (see Hasan and Chaush, cited above, § 78). What is at stake here is the preservation of pluralism and the proper functioning of democracy, one of the principle characteristics of which is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, p. 27, § 57). Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX).

117.  The Court further observes that in principle the right to freedom of religion for the purposes of the Convention excludes assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed. State measures favouring a particular leader or specific organs of a divided religious community or seeking to compel the community or part of it to place itself, against its will, under a single leadership, would also constitute an infringement of the freedom of religion. In democratic societies the State does not need to take measures to ensure that religious communities remain or are brought under a unified leadership (see Serif, cited above, § 52). Similarly, where the exercise of the right to freedom of religion or of one of its aspects is subject under domestic law to a system of prior authorisation, involvement in the procedure for granting authorisation of a recognised ecclesiastical authority cannot be reconciled with the requirements of paragraph 2 of Article 9 (see, mutatis mutandis, Pentidis and Others v. Greece, judgment of 9 June 1997, Reports 1997-III, p. 995, § 46).

118.  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 Hasan and Chaush, cited above, § 62).

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).

119.  According to its settled case-law, the Court leaves to States party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary, but that goes hand in hand with European supervision of both the relevant legislation and the decisions applying it. The Court’s task is to ascertain whether the measures taken at national level are justified in principle and proportionate. 

In order to determine the scope of the margin of appreciation in the present case the Court must take into account what is at stake, namely the need to maintain true religious pluralism, which is inherent in the concept of a democratic society (see Kokkinakis, cited above, p. 17, § 31). Similarly, a good deal of weight must be given to that need when determining, as paragraph 2 of Article 9 requires, whether the interference corresponds to a “pressing social need” and is “proportionate to the legitimate aim pursued” (see, mutatis mutandis, among many other authorities, Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports 1996-V, p. 1956, § 53). In exercising its supervision, the Court must consider the interference complained of on the basis of the file as a whole (see Kokkinakis, cited above, p. 21, § 47).

(b)  Application of the above principles

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(i)  Arguments put forward in justification of the interference

(α)  Upholding Moldovan law and Moldovan constitutional principles

123. The Court notes that Article 31 of the Moldovan Constitution guarantees freedom of religion and enunciates the principle of religious denominations’ autonomy vis-à-vis the State, and that the Religious Denominations Act (the Law of 24 March 1992) lays down a procedure for the recognition of religious denominations. 

The Government submitted that it was in order to comply with the above principles, including the duty of neutrality as between denominations, that the applicant Church had been refused recognition and instead told first to settle its differences with the already recognised Church from which it wished to split, namely the Metropolitan Church of Moldova. 

The Court notes first of all that the applicant Church lodged a first application for recognition on 8 October 1992 to which no reply was forthcoming, and that it was only later, on 7 February 1993, that the State recognised the Metropolitan Church of Moldova. That being so, the Court finds it difficult, at least for the period preceding recognition of the Metropolitan Church of Moldova, to understand the Government’s argument that the applicant Church was only a schismatic group within the Metropolitan Church of Moldova, which had been recognised.

In any event, the Court observes that the State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs, and requires the State to ensure that conflicting groups tolerate each other, even where they originated in the same group. In the present case, the Court considers that by taking the view that the applicant Church was not a new denomination and by making its recognition depend on the will of an ecclesiastical authority that had been recognised – the Metropolitan Church of Moldova – the State failed to discharge its duty of neutrality and impartiality. Consequently, the Government’s argument that refusing recognition was necessary in order to uphold Moldovan law and the Moldovan Constitution must be rejected.

(β)  Threat to territorial integrity

124. The Court notes in the first place that in its articles of association, in particular in the preamble thereto, the applicant Church defines itself as an autonomous local Church, operating within Moldovan territory in accordance with the laws of that State, and whose name is a historical one having no link with current or previous political situations. Although its activity is mainly religious, the applicant Church states that it is also prepared to cooperate with the State in the fields of culture, education and social assistance. It further declares that it has no political activity. 

The Court considers those principles to be clear and perfectly legitimate. 

125. At the hearing on 2 October 2001 the Government nevertheless submitted that in reality the applicant Church was engaged in political activities contrary to Moldovan public policy and that, were it to be recognised, such activities would endanger Moldovan territorial integrity.

The Court reiterates that while it cannot be ruled out that an organisation’s programme might conceal objectives and intentions different from the ones it proclaims, to verify that it does not the Court must compare the content of the programme with the organisation’s actions and the positions it defends (see Sidiropoulos and Others, cited above, p. 1618, § 46). In the present case it notes that there is nothing in the file which warrants the conclusion that the applicant Church carries on activities other than those stated in its articles of association.

As to the press articles mentioned above, although their content, as described by the Government, reveals ideas favourable to reunification of Moldova with Romania, they cannot be imputed to the applicant Church. Moreover, the Government have not argued that the applicant Church had prompted such articles. 

Similarly, in the absence of any evidence, the Court cannot conclude that the applicant Church is linked to the political activities of the above-mentioned Moldovan organisations (see paragraph 120 above), which are allegedly working towards unification of Moldova with Romania. Furthermore, it notes that the Government have not contended that the activity of these associations and political parties is illegal. 

As for the possibility that the applicant Church, once recognised, might constitute a danger to national security and territorial integrity, the Court considers that this is a mere hypothesis which, in the absence of corroboration, cannot justify a refusal to recognise it. 

(γ)  Protection of social peace and understanding among believers

126. The Court notes that the Government did not dispute that incidents had taken place at meetings of the adherents and members of the clergy of the applicant Church (see paragraphs 47-87 above). In particular, conflicts have occurred when priests belonging to the applicant Church tried to celebrate mass in places of worship to which the adherents and clergy of the Metropolitan Church of Moldova laid claim for their exclusive use, or in places where certain persons were opposed to the presence of the applicant Church on the ground that it was illegal. 

On the other hand, the Court notes that there are certain points of disagreement between the applicants and the Government about what took place during these incidents.

127. Without expressing an opinion on exactly what took place during the events concerned, the Court notes that the refusal to recognise the applicant Church played a role in the incidents. 

(ii)  Proportionality in relation to the aims pursued

129. The Government submitted that although the authorities had not recognised the applicant Church they acted in a spirit of tolerance and permitted it to continue its activities without hindrance. In particular, its members could meet, pray together and manage assets. As evidence, they cited the numerous activities of the applicant Church.

129. The Court notes that, under Law no. 979-XII of 24 March 1992, only religions recognised by a government decision may be practised in Moldova. In particular, only a recognised denomination has legal personality (section 24), may produce and sell specific liturgical objects (section 35) and engage clergy and employees (section 44). In addition, associations whose aims are wholly or partly religious are subject to the obligations arising from the legislation on religious denominations (section 21).

That being so, the Court notes that in the absence of recognition the applicant Church may neither organise itself nor operate. Lacking legal personality, it cannot bring legal proceedings to protect its assets, which are indispensable for worship, while its members cannot meet to carry on religious activities without contravening the legislation on religious denominations. 

As regards the tolerance allegedly shown by the government towards the applicant Church and its members, the Court cannot regard such tolerance as a substitute for recognition, since recognition alone is capable of conferring rights on those concerned.

The Court further notes that on occasion the applicants have not been able to defend themselves against acts of intimidation, since the authorities have fallen back on the excuse that only legal activities are entitled to legal protection (see paragraphs 56, 57 and 84 above). 

Lastly, it notes that when the authorities recognised other liturgical associations they did not apply the criteria which they used in order to refuse to recognise the applicant Church and that no justification has been put forward by the Government for this difference in treatment.

130. In conclusion, the Court considers that the refusal to recognise the applicant Church has such consequences for the applicants’ freedom of religion that it cannot be regarded as proportionate to the legitimate aim pursued or, accordingly, as necessary in a democratic society, and that there has been a violation of Article 9 of the Convention.

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