Right of the Metropolitan Church of Bessarabia to its own succession in title
Written Question No. 432 to the Committee of Ministers

Doc. 10042
26 January 2004

Reply from the Committee of Ministers

I. Written Question No. 432 by Mr Cubreacov and Mrs Patereu (Doc. 9912)

Observing that on 30 July 2002 the Moldovan Government registered the Metropolitan Church of Bessarabia in partial compliance with the judgment of the European Court of Human Rights of 13 December 2001;

Regretting that on 26 September 2001 the Moldovan Government, by official decision, declared the Metropolitan Church of Moldova within the Russian Orthodox Patriarchate of Moscow the legal successor of the Metropolitan Church of Bessarabia and that after having been petitioned to do so, the Government refused to reverse the decision in question;

Concerned that the administrative dispute between the Metropolitan Church of Bessarabia and the Moldovan Government over the right of the former to its own succession in title has been pending before the domestic courts since February 2002, thus exceeding all reasonable time;

            To ask the Committee of Ministers:

1.         what are the individual and general measures taken by the Moldovan Government since 13 December 2001 to recognise, guarantee and secure the property rights of the Metropolitan Church of Bessarabia and specifically the right of this church to its own succession in title;

2.         whether the measures taken are sufficient grounds to consider that the judgment of the European Court of Human Rights has been executed (taking into account the violation of the church’s property rights);

3.         how it assesses the celerity of domestic court proceedings on the property litigation between the Metropolitan Church of Bessarabia and the Moldovan Government.

II. Reply by the Committee of Ministers

Since questions No. 1 and 2 relate respectively to individual measures and general measures, the following response covers both questions together, while question No. 3 is dealt with separately.

I.          Questions No. 1 and 2

A. Individual measures

As regards the individual execution measures taken since the judgment was rendered on 13 December 2001, the following information has been submitted to the Committee of Ministers.

Following amendments introduced into the Moldovan Law on Religious Denominations on 12 July 2002, the Moldovan authorities registered the applicantChurch on 30 July 2002. As a result of registration, the Church is now recognised and has acquired legal personality, thereby opening up possibilities for it to claim property entitlements among other things.

Subsequent to the registration of the Church, the procedure for the registration of the Church’s sub-divisions was initiated. This procedure, which is governed by the provisions of the current Law on Religious Denominations and provisional Regulations adopted in October 1994, applies to all religious denominations. In February 2003, the Moldovan authorities informed the Committee of Ministers that 11 parishes, a monastery and 4 rectories had so far been registered within the applicantChurch. The latter disposed at the time of more than 120 rectories with almost 160 priests. Subsequently, in October 2003, the Committee was informed that the applicantChurch had 30 registered parishes and 40 monasteries with ownership and property documents.

On the basis of the information available to the Committee in April 2003, it was decided not to further pursue the individual aspects of the case. That said, in September 2003 the Committee of Ministers was made aware of pending domestic court proceedings – initiated by the applicant Church in February 2002 – challenging a decision by the Moldovan authorities of 26 September 2001 approving an amendment to the statute of the Moldovan Metropolitan Church by which the latter declared itself as the legal successor to the Metropolitan Church of Bessarabia (which ceased its activity in 1944). It was claimed that such approval allegedly infringed the property rights of the applicantChurch.

When the examination of the execution of the Court’s judgment in this case was resumed in October 2003 the Committee asked to be kept informed about these domestic proceedings inasmuch as they appeared to raise the question of whether the applicantChurch had effective access to a court to claim property entitlement. It was informed that the Government had merely registered the amendment to the statute of the MoldovanMetropolitanChurch in accordance with the Moldovan Constitution.

Subsequently the Committee was informed that, on 20 October 2003, the Court of Appeal dismissed the applicantChurch’s complaint for lack of competence, but that the Supreme Court, allowed its appeal on 12 November 2003, quashing the said decision of the Court of Appeal. The Supreme Court further decided that it would examine the merits of the case, sitting as court of first instance. The reasoned decision of the Supreme Court is not yet available and the proceedings on the merits are still pending.

Since the applicantChurch has been registered and recognised, and enjoys legal personality, it would appear that the only outstanding question relates to the effectiveness of its right of access to a court, notably to claim property entitlements. The Committee of Ministers is thus awaiting information regarding the proceedings before the Supreme Court, which given the time which has elapsed since the legal challenge was introduced, it expects to be concluded expeditiously.

B. General measures

As regards the execution measures taken in order to remedy the general problems identified in the Court’s judgment, the Committee of Ministers has received the following information.

In order to provide information on the ECHR’s requirements and in order to allow the Moldovan authorities to give direct effect to the judgment of the Court, the original version of the judgment and its official translation into Moldovan were published on 9 July 2002 in the Official Journal of Moldova.

Furthermore, article 325 of the Code of Civil Procedure has been amended so as to allow the re-opening of domestic civil proceedings following violations of the ECHR found by the European Court (the Code of Criminal Procedure already allowed for such a possibility).

In addition, the Moldovan legislation on religious denominations was amended by Law No. 1220-XV, which entered into force on 12 July 2002. These amendments were found to be insufficient to prevent new, similar violations, inasmuch as they did not reflect the requirement of proportionality inherent in the ECHR and as the right of a religious community to take judicial proceedings to challenge a registration decision was not provided with sufficient clarity.

A new draft law was submitted in March 2003 to the Committee of Ministers, an analysis of which showed that it still did not solve all outstanding problems. Following a working meeting between the Council of Europe experts and the Moldovan in July 2003, a second version of the draft law was submitted by the Moldovan authorities in October 2003. While it contained a number of improvements, a number of outstanding issues remained. A third version of the draft law was accordingly submitted by the Moldovan authorities on 5 January 2004. The text of the draft law is currently being examined by Council of Europe experts with a view to a further working meeting on the text, to be held in Chisinau at the end of January 2004, on the proposal of the Moldovan authorities.

C. Global assessment of individual and general measures

On the basis of the information available so far, it would appear that a number of issues relating to individual and general measures remain outstanding. These will be considered further by the Committee of Ministers at the next Human Rights meeting on 10-11 February 2004.

II.         Question No. 3.

To the extent that the question may be understood as referring to the proceedings currently pending before the Supreme Court, the Committee of Ministers refers to its earlier comments regarding the expeditious conclusion of the said proceedings.