Background

The Greek-Catholic parish of Glod sued the Orthodox parish of Glod for restitution of the church that had belonged to it before the dissolution of the Greek-Catholic Church by the Communist regime in 1948. It was unsuccessful before Zalău County Court; and the Court of Appeal of Cluj and the Supreme Court of Cassation and Justice upheld the judgment at first instance [4-9]. Before the Fourth Section, the applicants alleged a breach of Article 1 of Protocol No. 1 ECHR (property), arguing that they had at least a “legitimate expectation” of obtaining the restitution of the church, on the ground that domestic law provided for that possibility, and that the rejection of their claim was intended to protect the Orthodox majority and discriminated against them because they were a minority faith. They also claimed a violation of Article 6, on the grounds that the operation of the law was insufficiently foreseeable.

The judgment

In Glod Greek-Catholic Parish v Romania [2017] ECHR 626 [n French], the Court noted that the majority of worshippers in Glod were now Orthodox and that former Greek-Catholics who had been forced to become Orthodox under the Communist regime had not subsequently returned to the Greek-Catholic Church. Therefore, the persons who had allegedly suffered the damage had no interest in demanding the restitution of the church building, which they already used for their worship; moreover, the applicant parish could have brought an action to be granted the right to use the place of worship in dispute [8].

Despite the rehabilitation of the Greek-Catholic Church in 1990, there was no legal provision for automatic restoration of former Greek-Catholic places of worship still held by the Orthodox Church – although Decree-Law No 126/1990 had introduced a specific procedure under which parties might request the return of such property. The applicant parish’s hope of restitution had therefore been from the outset a conditional claim, inasmuch as Decree-Law No 126/1990 had laid down the criterion for determining the legal position of places of worship [29].

The question of the legal status of the disputed property had been decided by domestic courts with full jurisdiction to apply the criterion laid down by Decree-Law No. 126/1990 – and they had found for the Orthodox. The applicant parish’s claim was not substantial enough to attract the protection of Article 1 of Protocol No. 1 [30]: the persistence of divergences in the interpretation of national law by national courts did not give rise to a “legitimate expectation” of success [31]. The complaint was therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §3(a) and had to be rejected pursuant to Article 35 § 4 [32].

As to the alleged violation of Article 14 in conjunction with Article 1 of Protocol No. 1, the applicable law was intended to protect the interests of the religious community displaced by the Communists from its place of worship. The Romanian courts had taken into account the historical circumstances surrounding the use of the church and the evolution of religious communities, including the obligation imposed on the Greek-Catholic faithful during the Communist regime to attend Orthodox worship and the choice made by those faithful after the rehabilitation of their Church. After an in-depth examination of the de facto situation, the domestic courts had given detailed and reasoned judgments, the reasoning of which was consistent with the case-law of the Constitutional Court [33 & 34]. That complaint was, therefore, manifestly ill-founded [35]. There had therefore been no violation of Article 6 §1 of the Convention.

Comment

Yet another in the long line of Greek-Catholic restitution cases which suggests that the ECtHR seems to be treating each case as turning on its own facts – but is more likely to find a violation of Article 6 than of A1P1 or Article 9.

Previously:

• in Greek-Catholic Parish of Lupeni & Ors v Romania [2015] ECHR 487 the Court found a violation of Article 6 §1 over the length of proceedings but had found no other violation;
• in Bogdan Vodă Greek-Catholic Parish v Romania [2013] ECHR 1149, the  Court held that the non-enforcement of a judgment that would have obliged the village’s Orthodox parish to allow 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 breached Article 6 §; and i
• n both 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 Court had also found violations of Article 6 §1.