Article 6 ECHR and restitution of church property in Romania

In 1948 the Romanian Greek-Catholic Church [Biserica Română Unită cu Roma, Greco-Catolică] was abolished by Decree No. 358/1948. Its members were obliged to adhere to the Romanian Orthodox Church and its property was transferred to the Orthodox Church by Decree No. 177/1948. After the fall of the Ceaușescu regime in 1989, Decree No. 358/1948 was repealed and some of the Church’s properties, including the cathedrals of Cluj, Blaj, Lugoj and Oradea, have since been restored to its ownership; however, much of the original property remains in Romanian Orthodox or Government hands.

In the 2007 Annuario Pontificio the member-ship of the Romanian Greek-Catholic Church was estimated at 763,000. According to the 2011 census, however, Romania has 19 million Orthodox adherents (86 per cent of the population), about 4 to 6 per cent Roman Catholics and fewer than one per cent Greek Catholics – which would produce a Greek-Catholic population of about 200,000. The Church and some media reports, however, claim that the census figures are unreliable and inflate the number of Orthodox believers to the detriment of other religious groups: see Frans Hoppenbouwers, “The Greek Catholic Church in RomaniaJl of Eastern Christian Studies 58(1-2).

In Bogdan Vodă Greek-Catholic Parish v Romania [2013] ECHR 1149 the applicants complained about the non-enforcement of a judgment in their favour in January 1998 which would have obliged the village’s Orthodox parish to allow the Greek-Catholic parishioners to hold services in one of the local churches that had belonged to them prior to their parish’s abolition in 1948. An appeal against that judgment was rejected in December 2000 and the Greek-Catholic parish secured an enforcement order in January 2001. However, since that time attempts to enforce the judgment had been prevented by violent protests by Orthodox villagers and most recently – in January 2009 – attempts at enforcement had lapsed because the village’s Orthodox priest had simply refused to comply with the judgment. The applicants complained that the failure to enforce the judgment violated their rights under Article 6 §1 (fair and public hearing) and Article 14 (discrimination) ECHR, while the Government argued that neither the bailiff nor the authorities were at fault in respect of the non-enforcement and that the parish had failed to exhaust domestic remedies.

The Third Section reiterated that execution of a final judgment was an integral part of the “trial” for the purposes of Article 6. The right of “access to court” did not impose an obligation on a state to execute every civil judgment without having regard to the particular circumstances of the case; and state responsibility for enforcement of a judgment against a private party went no further than the involvement of state bodies in the enforcement process. However, when the authorities were obliged to act in order to enforce a judgment and failed to do so, inaction could engage Article 6 §1 (para 44). In the present case the dispute was between private parties; and it was for each state to equip itself with adequate legal instruments to ensure the fulfilment of the positive obligations imposed upon it (para 45). The Romanian Government’s inaction amounted to a violation of Article 6 §1: it was not necessary separately to examine the alleged violation under Article 14.

Comment

This is merely the latest in a long line of cases at Strasbourg in which representatives of the Greek-Catholics have sought restitution of property that belonged to the Church before 1948: most recently, Sâmbata Bihor Greek Catholic Parish v Romania [2010] ECHR (No. 48107/99) and Sfântul Vasile Polonă Greek Catholic Parish v Romania [2009] ECHR (No. 65965/01).

The Roman Catholic Church in Romania has also had problems over expropriated property: see, for example, Catholic Archdiocese of Alba Iulia v Romania [2012] ECHR 33003/03, involving the restitution of an Astronomical Observatory and the Batthyaneum Library (which contained a rich collection of early printed books and MSS), in which the Court concluded that there had been a violation of Article 1 of Protocol No. 1 (peaceful enjoyment).

The US Bureau of Democracy, Human Rights and Labor’s International Religious Freedom Report for 2012: Romania observes that Romanian law provides for the restitution to religious and ethnic communities of properties confiscated between 1940 and 1989:

“However, the law does not address the return of Greek Catholic churches confiscated by the former communist government and transferred to the Orthodox Church in 1948. A separate law permits the Greek Catholic Church to pursue court action when attempts to obtain restitution of its churches through dialogue with the Orthodox Church are unsuccessful, but it does not automatically restitute them”.

US Embassy officials have raised with Romanian Government officials concerns about the slow pace of religious property restitution, particularly of Greek-Catholic churches. Bearing in mind that Romania is a member not only of the Council of Europe but also of the EU, it’s a pretty poor performance for what purports to be a modern democratic state.

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