THIRD SECTION
CASE OF FUSU
ARCADIE AND OTHERS
v. THE REPUBLIC OF MOLDOVA
(Application no.
22218/06)
JUDGMENT
STRASBOURG
17 July 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Fusu Arcadie and Others v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria, judges,
Tatiana Răducanu, ad hoc judge,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 26 June 2012, delivers the
following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
22218/06) against the Republic of Moldova lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by eight Moldovan nationals, Mr Arcadie Fusu, Mr Petru
Botezat, Ms Tatiana Rusu, Ms Svetlana Covalciuc, Ms Galina Bujor, Ms Vera Boţoc, Mr Vladimir Ţurcanu and Mr
Iacob Ciobanu (“the applicants”), on 12 May 2006.
The applicants were represented by Mr V. Zamă from “Lawyers for Human Rights”, a
non-governmental organisation based in Chişinău. The Moldovan
Government (“the Government”) were represented by their Agent, Mr V. Grosu.
The applicants alleged, in particular, that the
failure to issue them with documents necessary for registering their church had
violated their rights under Articles 6 § 1, 9 and 11 of the Convention.
On 20 January 2010 the Court decided to give
notice of the application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
As Mr Mihai Poalelungi, the judge elected in
respect of the Republic of Moldova, had withdrawn from the case (Rule 28 of the
Rules of Court), the President of the Chamber has appointed Mrs Tatiana Răducanu to
sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 §
1 of the Rules of Court).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicants
were born in 1964, 1949, 1965, 1959, 1952, 1937, 1951 and 1930 respectively and
live in Floreşti.
In 2004 the applicants asked the Floreşti Regional Council (“the Regional
Council”) to issue them with confirmation of the existence, in Floreşti, of a religious denomination of the
Christian Orthodox Church (“the Church”), subordinate to the Metropolitan
Church of Bessarabia.
On an unknown date the Regional
Council rejected the request, finding that another religious denomination of
the Church, subordinate to the Metropolitan Church of Moldova, had already been
registered in Floreşti since
1999. Moreover, there was an ongoing conflict between the two denominations and
civil proceedings were in progress to determine which of them had the right to
own certain church property.
The applicants initiated court proceedings,
seeking a court order for the Regional Council to issue
them with the relevant document, which was necessary for the official registration
of the applicants’ church as a legal person.
On 24 December 2004 the Bălţi
District Court rejected the application as unfounded.
On 30 March 2005
the Supreme Court of Justice quashed that judgment and delivered a new one,
finding in the applicants’ favour. It ordered the Regional
Council to issue the relevant confirmation to the applicants. The court relied
expressly on Articles 9 and 11 of the Convention in reaching its decision.
On 20 May 2005 the applicants asked the
Enforcement Department of the Ministry of Justice to take action in order to
enforce the final judgment in their favour.
On 25 November 2005 they formally submitted an enforcement
warrant to the Floreşti Enforcement Office. That
office accepted it on the same day.
On 1 December 2005 the enforcement authorities
invited the Regional Council to abide by the judgment.
On 23 December 2005 the Regional Council replied that
it was “not opportune” to enforce the judgment at the time, given the ongoing
conflict and legal proceedings. Enforcement had thus been postponed pending the
outcome of the civil proceedings concerning the church property.
On 17 February 2006 an enforcement officer asked
the court to clarify the manner of enforcing the judgment. By April 2006 the
court had not yet examined that request.
On 17 March 2006 the Floreşti
Enforcement Office repeatedly asked the Regional
Council to enforce the judgment. Since the Regional
Council again refused to comply, the enforcement officer asked the court to
penalise its members. It is unknown whether penalties were applied.
Various complaints to the prosecuting
authorities also remained unanswered.
On an unknown date in 2006 one of the applicants (Mr Petru Botezat) initiated
civil court proceedings against the State Service for Religious Denominations,
asking for the registration of the religious denomination which he represented.
On 20 April 2006 the Chişinău Court of Appeal rejected the claim as
unfounded. The court found that Mr Botezat had asked for the registration of a
denomination with the same name and address as one already registered with the
authorities, which was contrary to legal requirements. Moreover, the court
noted the absence from the documents submitted by Mr Botezat of the
confirmation by the Floreşti
Regional Council of the existence of the religious denomination in
question.
On 11 May 2007 the Moldovan Parliament adopted
the Religious Denominations Act which eliminated, inter
alia, the requirement of confirmation by the local authorities of the
existence of religious denominations before they could be
registered by the State authorities. The law came into force on 17 August 2007.
On 5 September 2007 the
enforcement office returned the enforcement warrant to the applicants,
noting that in view of the legislative amendments enforcement was no longer
necessary. The applicants did not challenge that decision in court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE
CONVENTION
The applicants complained that the failure to
register their church had breached their rights guaranteed under Article 9 of
the Convention, which reads as follows:
“1. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or
belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and
observance.
2. Freedom to manifest one’s religion or beliefs
shall be subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The Government submitted that following the
entry into force of the Religious Denominations Act on 17
August 2007 the applicants no longer had any need for the document which
the courts had ordered to be issued. Moreover, after the law had changed and
the enforcement warrant had been returned without enforcement, the applicants
had not applied for registration of their denomination. This, in the Government’s
opinion, proved the absence of a real intent by the applicants to register a
denomination and thus the absence of an interference with their rights. The
Government submitted that the applicants had lost their victim status as a
result of the legislative amendments and their subsequent failure to act.
The applicants disagreed, referring to their
attempts to have their denomination registered even without the document issued
by the local authority (see paragraph 18 above).
The Court recalls that a decision or measure of
the domestic authorities favourable to an applicant is not in principle
sufficient to deprive him of his status as a “victim” unless the national
authorities have acknowledged, either expressly or in substance, and then
afforded redress for, the breach of the Convention (see Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 179-181, ECHR 2006‑V).
In the present case, the Court notes that the domestic courts adopted judgments
in the applicants’ favour. However, they were not enforced. Moreover, while a
new law was adopted which improved the applicants’ chances of having their
denomination registered, there was no express or implicit acknowledgment of a
violation in their specific case and they were not awarded any compensation.
The Government’s objection must therefore be rejected.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Arguments of the parties
The applicants complained
of a violation of their rights guaranteed under Article 9 of the Convention as
a result of the failure to issue them with a document necessary for the
registration of their religious denomination. They submitted, inter alia,
that the interference with their rights had not been prescribed by law because
it had been contrary to the domestic courts’ judgments ordering the issuance of
the relevant document.
The Government submitted that there were serious
reasons for the local authorities not to enforce the final judgment in the
applicants’ favour: the existence of an on-going dispute as to the church
property between two competing denominations; the risk that registering the
applicants’ denomination could provoke unrest; and the fact that another
denomination with the same name had already been registered in the same town.
Moreover, in practice the applicants had not been prevented from exercising
their religious rights, as they did not need registration for that purpose. They
considered that the refusal of the Regional Council to issue the relevant
document had been based on clear legal provisions, notably the prohibition on
registering two organisations with the same name and the same address.
Moreover, after 17 August 2007 no confirmation in a
separate document had been required.
2. The Court’s assessment
(a) Whether there was an interference
The Court must determine whether there was an
interference with the applicants’ right to freedom of religion on account of
the authorities’ refusal to issue them with a document required for registering
their religious denomination.
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).
The Court considers that, despite the adoption
of the judgments in favour of the applicants, the authorities’ failure to issue
the document required for registering the applicants’ denomination and
therefore to endow it with legal personality prevented it and its followers
from carrying out a number of essential functions (see Metropolitan Church
of Bessarabia and Others v. Moldova, no. 45701/99, § 105, ECHR 2001‑XII).
In essence, the refusal of the authorities to issue the relevant documents despite
the judgment in the applicants’ favour resulted in a situation which did not
differ, in practice, from a rejection by the courts of their claim. It is
important to note that at the time of the events and until 17
August 2007 presenting the relevant document was mandatory for the registration
of any new denomination.
As for the Government’s argument that the
applicants had not seriously intended to register a denomination as they had
failed to ask for registration throughout the relevant period, the Court notes
that the applicants had not remained passive. In 2006 their representative
asked for the registration of their denomination without submitting the
document which should have been issued by the Regional Council (see paragraph 18
above). However, the court rejected that request.
The Court therefore considers that the
authorities’ refusal to issue the registration document to the applicants
constituted an interference with the right of the applicants to freedom of
religion, as guaranteed by Article 9 § 1 of the Convention.
(b) Whether the interference was prescribed by law
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, 24 February 1998, § 40, Reports of Judgments and
Decisions 1998-I, 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 interference 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 any
legal discretion granted to the executive to be expressed in terms of
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).
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, and Miroļubovs and Others
v. Latvia, no. 798/05, § 80, 15 September 2009).
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, 10 July 1998, § 40, Reports
1998-IV, and Canea Catholic Church v. Greece, 16 December 1997, §§ 33
and 40‑41, Reports 1997-VIII, and opinion of the Commission, §§
48-49).
In the present case the Court notes that the Supreme
Court of Justice, while applying directly Articles 9 and 11 of the Convention
(see paragraph 11 above), accepted the applicants’ claims and ordered the Regional
Council to issue them with the relevant document, which until 17
August 2007 was required in order to have one’s denomination registered.
In doing so, it expressly rejected the authorities’ arguments against issuing
such a document, arguments which largely coincide with those advanced by the
Government in their observations before the Court. However, the final judgment
of 30 March 2005 has not been complied with.
In view of the above, the Court considers that
the refusal to issue the document required for registering the applicants’ denomination
had no legal basis under Moldovan law. It follows that the interference with
the applicants’ freedom of religion was not prescribed by law (see Biserica
Adevărat Ortodoxă din Moldova and Others v. Moldova, no. 952/03, §§ 35-38, 27 February 2007).
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.
There has,
accordingly, been a violation of Article 9 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 11 OF
THE CONVENTION
Admissibility
The Government submitted that the applicants
should have amended their submissions before the Court after 17
August 2007, when the new law entered into force, because as of that
date they could no longer complain about a “failure to enforce” but only of “belated
enforcement” of the judgment in their favour. They should have done so within
six months from the moment when the judgment was de facto enforced as a
result of the changes in the law, or from the date when the enforcement warrant
had been returned without enforcement on 7 September 2007. Since the applicants
had failed to make such a new claim within six months from the date of the
legislative amendments, their application should be dismissed as lodged out of
time (see Sumila and six others v. Moldova (dec.), nos. 41369/05,
41556/05, 42308/05, 33566/06, 33567/06, 33568/06, 33570/06, 26 January
2010).
Having regard to its finding of a violation of
Article 9 (see paragraph 40 above) the Court considers it unnecessary to
examine these complaints separately (see Biserica Adevărat
Ortodoxă din Moldova and Others, cited above, §§ 39-43).
III. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
The applicants considered that adequate redress
for the violation of their rights would be the return of the Church building in
Floreşti. Due to the lack of access to that building,
which is occupied by another religious denomination, they could not estimate
the value of that building. Therefore, they asked the Court to reserve judgment
in respect of pecuniary damage.
The Government submitted that the applicants did
not have any legitimate claim to the relevant Church building and that there
was no causal link between the violations complained of and the alleged loss of
the building.
The Court agrees with the Government’s
contention that the nature of the violation alleged – the failure to issue the
applicants with a document required for their registration – did not have any
connection with the alleged loss of the Church building. Moreover, the two
competing religious denominations were involved in separate civil proceedings
concerning that building and other Church property, which were not the subject
of the present case. The Court notes that the applicants did not argue that,
due to the failure to obtain the relevant document from the Regional Council,
they had been unable to participate in any the relevant court proceedings or to
fully exercise their procedural rights in those proceedings.
The Court therefore makes no award in this respect.
B. Non-Pecuniary damage
The applicants claimed 2,000 euros (EUR) each in
respect of non-pecuniary damage caused to them.
The Government submitted that the applicants had
not suffered any damage, as was clear from their failure to apply for
registration of their denomination after the law had changed.
The Court considers that the violation it has
found must undoubtedly have caused the applicants some distress. Taking into
account the circumstances of the case and having regard to its case-law, the
Court awards the applicants, jointly, EUR 5,000.
C. Costs and expenses
The applicants claimed EUR 880 for costs and
expenses and submitted a detailed timesheet showing the hours during which
their lawyer had worked on the case.
The Government disputed the number of hours
spent on the case by the applicants’ lawyer and noted the absence of evidence
of actual payment of the sums owed to the lawyer.
The Court recalls that in order for costs and
expenses to be included in an award under Article 41, it must be established
that they were actually and necessarily incurred and are reasonable as to
quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII).
Having regard to the relative lack of complexity
of the case and basing itself on the information before it, the Court accepts
in full the applicants’ claim for costs and expenses (cf. Metropolitan
Church of Bessarabia, cited above, §149, and Biserica Adevărat
Ortodoxă din Moldova and Others v. Moldova, cited above, § 65).
D. Default interest
The Court considers it appropriate that default
interest should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 9 of
the Convention admissible;
2. Holds that there has been a violation of
Article 9 of the Convention;
3. Holds that it is not necessary to examine
separately the complaints under Articles 6 and 11 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants
jointly, within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the following amounts, to
be converted into the currency of the respondent State at the rate applicable
at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 880 (eight hundred and eighty euros), plus
any tax that may be chargeable to the applicants, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 17 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Section Registrar President
