EHRC 2017/62, EHRM 29-11-2016, ECLI:CE:ECHR:2016:1129JUD007694311, 76943/11 (met annotatie van dr. lic. A.J. Overbeeke)

I. Scope of the case before the Grand Chamber

61. Under the Court’s case-law, the “case” referred to the Grand Chamber is the application as it was declared admissible by the Chamber (see Blokhin v. Russia [GC], no. 47152/06, § 91, 23 March 2016, and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, 13 November 2007).

62. The Court notes that in its judgment of 19 May 2015 the Chamber declared inadmissible, firstly, the applicants’ complaints under Article 9 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Articles 13 and 14 of the Convention, and, secondly, the complaints under Article 6 of the Convention alleging that the courts had lacked independence and impartiality and that the proceedings had been unfair on account of changes to the members of the relevant benches in the course of the proceedings.

63. Accordingly, these complaints are not within the scope of the case before the Grand Chamber.

II. Alleged violation of Article 6 § 1 of the Convention

64. Relying on Article 6 § 1 and Article 13 of the Convention, the applicants raised, in substance, three complaints. Firstly, they submitted that there had been a breach of their right of access to a court, alleging that the domestic courts had not determined their dispute by applying the rules of ordinary law, but on the basis of the criterion laid down by Legislative Decree no. 126/1990, applicable in the context of the non-contentious procedure, namely, the wishes of the worshippers in the community in possession of the property. Secondly, the applicants submitted, without referring explicitly to the principle of legal certainty, that the application of this criterion had not been foreseeable and had rendered their access to a court illusory. Thirdly, they complained about the length of the proceedings.

65. As a preliminary remark, it should be pointed out that the Chamber examined the applicants’ complaints solely under Article 6 § 1 of the Convention, taking the view that the guarantees of Article 13 were absorbed by the stricter guarantees of Article 6. The Court agrees with this approach and will proceed in the same way.

66. It should also be reiterated that the Chamber considered it necessary to examine the applicants’ arguments about the application of the criterion of the worshippers’ wishes in the context of an action under ordinary law for recovery of possession from the perspective both of the right of access to a court and that of compliance with the principle of legal certainty.

67. Reiterating its established case-law on its competence to characterise the facts submitted to it (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I), the Court considers that there is no reason to depart from the Chamber’s approach, and it will therefore examine the applicants’ arguments also from the perspective of compliance with this principle.

68. The relevant part of Article 6 § 1 of the Convention provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... fair hearing within a reasonable time by [a] ... tribunal ...”

A. Applicability of Article 6 § 1 of the Convention

69. In its judgment of 19 May 2015, the Chamber held that the applicants’ action was covered by Article 6 § 1 of the Convention in its civil limb, since it was aimed at securing recognition of their title to a building, a pecuniary right.

70. This finding was not contested by the parties.

71. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42, ECHR 2015; Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009; and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).

72. The Court notes that the right relied upon by the applicants, being based on the domestic law on recovery of possession, was a civil one. There is no doubt that a dispute existed; that it was sufficiently serious; and that the outcome of the proceedings in issue was directly decisive for the right in question. Having regard to the terms of Article 480 of the Civil Code (see paragraphs 44-45 above), the applicants could arguably maintain that they were entitled, under Romanian law, to seek to re-establish their property rights to the contested building.

73. The Court is therefore in full agreement with the Chamber’s considerations regarding the applicability of Article 6 § 1, and concludes that the action brought by the applicants concerned a civil right and was intended to establish, through the courts, a right of ownership, even if the subject matter of the dispute was a place of worship.

74. In addition, this approach corresponds to the Court’s existing case-law in this area. Thus, in the cases of Sâmbata Bihor Greek Catholic Parish v. Romania (no. 48107/99, § 65, 12 January 2010), Sfântul Vasile Polona Greek Catholic Parish v. Romania (no. 65965/01, §§ 67 and 76, 7 April 2009), Bogdan Voda Greek Catholic Parish v. Romania (no. 26270/04, § 41, 19 November 2013) and Sisesti Greek Catholic Parish v. Romania (no. 32419/04, § 27, 3 November 2015), the Court examined under Article 6 § 1 of the Convention the applicant parishes’ complaints about proceedings for the restitution of places of worship or the execution of final judgments ordering the shared use of a place of worship.

75. Moreover, the Court has already held that “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 ... in the light of Article 6” (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 118, ECHR 2001-XII).

76. Accordingly, Article 6 § 1 of the Convention is applicable in the present case. In verifying whether the requirements of this provision were complied with, the Court will examine the case from the following three angles: the right of access to a court, compliance with the principle of legal certainty, and the right to a fair hearing within a reasonable time.

B. Compliance with the requirements of Article 6 § 1 of the Convention

1. Right of access to a court

(a) Chamber judgment

77. In its judgment, the Chamber first reiterated the principles established by the Court’s case-law on Article 6 § 1 of the Convention with regard to the right of access to a court. It noted the sensitive nature of the issue of restitution of places of worship, and referred to the Court’s case-law to the effect that, even in such a context, a general exclusion of disputes concerning places of worship from the jurisdiction of the courts in itself infringed the right of access to a court (see Sâmbata Bihor Greek Catholic Parish, cited above, §§ 66-75). It noted that the amendments introduced by Law no. 182/2005 to Article 3 of Legislative Decree no. 126/1990 had afforded the applicants the possibility of bringing legal proceedings.

78. The Chamber then held that it was not its role to assess, as such, under Article 6 § 1 of the Convention, either the system established by the Romanian legislature for the restitution of church buildings, or the content of the substantive law applied in the present case by the domestic courts. It noted that the applicants had been entitled to bring legal proceedings, that both of the parties to the dispute enjoyed identical procedural rights, and that the courts which examined the case had had full jurisdiction to apply and interpret domestic law, without being bound in their assessment by the refusal expressed by the defendant to reach a prior friendly settlement. It concluded that there had been no violation of Article 6 § 1 of the Convention under this head.

(b) Observations of the parties before the Grand Chamber

(i) The applicants

79. The applicants pointed out that the right of access to a court presupposed an effective right to obtain a decision on the merits of a case, without a pre-determined outcome or arbitrariness on the part of the domestic courts. However, by ruling on the basis of the wishes of the worshippers, a criterion which, in their view, was to be understood as “the wishes of the Orthodox majority”, the domestic courts had rendered their right of access to a court illusory.

80. In the applicants’ submission, in order to apply ordinary law as required by Article 3 § 2 of Legislative Decree no. 126/1990, the courts ought to have examined the title deeds of the parties to the dispute, namely theirs and those of the Orthodox party (which were non-existent, according to the applicants). Instead, the courts had opted for a strictly formal understanding of their role, holding that the wishes of the majority ought to apply and that, in consequence, the church building could not be returned. Referring to the above-cited Sâmbata Bihor Greek Catholic Parish v. Romania judgment, the applicants argued that the formal nature of the courts’ role was further emphasised in the present case in that the wishes of the majority had not been called into question in any way by the courts, the mere fact that the Orthodox worshippers outnumbered the Greek Catholics being considered sufficient to dismiss the latter’s claim.

81. The applicants submitted that the domestic courts had failed to carry out an appropriate assessment of the merits of the case. They explained in this connection that one of the factors taken into consideration in deciding the merits of the case had consisted in the contributions made by each of the two Churches to the construction of the place of worship. However, they contested the domestic courts’ conclusion on this point, arguing that it was not compatible with the evidence produced in the case.

(ii) The Government

82. The Government emphasised at the outset that the case was a very particular one, in that it concerned places of worship and that the dispute was between religious communities which, in the Government’s view, were characterised by the principles of tolerance and inter-denominational understanding, and which enjoyed a certain autonomy.

83. They further emphasised that the applicants had been able to bring their action for recovery of possession of a place of worship before the domestic courts, and that after having examined the merits of the case, these courts had declared it manifestly unfounded rather than inadmissible. In reaching that conclusion, the courts had examined both the title deeds and the worshippers’ wishes. In order to determine those wishes, they had taken into account the historical and social aspects, and not merely statistical factors. In this connection, the Government specified that the worshippers’ wishes had to be determined on the basis of tangible elements, and could not be arbitrary and unjustified.

(c) The Court’s assessment

(i) General principles

84. The right of access to a court guaranteed by Article 6 was established in Golder v. the United Kingdom (21 February 1975, §§ 28-36, Series A. no. 18). In that case, the Court found the right of access to a court to be an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlay much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see Roche v. the United Kingdom [GC], no. 32555/96, § 116; see also Z and Others v. the United Kingdom [GC], no. 29392/95, § 91, ECHR 2001-V, and Cudak v. Lithuania [GC], no. 15869/02, § 54, ECHR 2010).

85. Article 6 § 1 may therefore be relied on by anyone who considers that an interference with the exercise of one of his or her (civil) rights is unlawful and complains that he or she has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1. Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or the scope of the asserted civil right, Article 6 § 1 entitles the individual concerned “to have this question of domestic law determined by a tribunal” (see Z and Others, cited above, § 92; see also Markovic and Others v. Italy [GC], no. 1398/03, § 98, ECHR 2006-XIV).

86. The right of access to a court must be “practical and effective”, not theoretical or illusory (see, to that effect, Bellet v. France, 4 December 1995, § 36, Series A no. 333-B). This observation is particularly true in respect of the guarantees provided for by Article 6, in view of the prominent place held in a democratic society by the right to a fair trial (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001-VIII). For the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his or her rights (see Nunes Dias v. Portugal (dec.), nos. 2672/03 and 69829/01, ECHR 2003-IV, and Bellet, cited above, § 36). Equally, the right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (see, for example, Falie v. Romania, no. 23257/04, §§ 22 and 24, 19 May 2015, and Kutic v. Croatia, no. 48778/99, § 25, ECHR 2002-II).

87. Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court (see McElhinney v. Ireland [GC], no. 31253/96, § 24, 21 November 2001).

88. It is nonetheless important to emphasise, as the Court has done on several occasions, that Article 6 § 1 does not guarantee any particular content for those civil “rights” in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Roche, cited above, § 117; Z and Others, cited above, §§ 87 and 98; and Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B).

89. The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals (see Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid.; see also Cordova v. Italy (no. 1), no. 40877/98, § 54, ECHR 2003-I, as well as the recapitulation of the relevant principles in Fayed, cited above, § 65).

90. Lastly, the Court also notes that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, and Perez v. France [GC], no. 47287/99, § 82, ECHR 2004-I). Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan (no. 2), cited above, § 61).

(ii) Application to the present case

91. The Court notes at the outset that the specific nature of the properties in issue and the parties to the proceedings, namely a place of worship in respect of which ownership is disputed between an Orthodox church and a Greek Catholic church, must be taken into account in establishing the context of the case, without however being decisive in determining the present complaint.

92. As can be seen from paragraph 79 above, the applicants allege that the fact of applying the criterion of the worshippers’ wishes, laid down by Legislative Decree no. 126/1990, in the context of their action for recovery of possession amounted to a restriction that rendered their right of access to a court illusory.

93. The Court notes that the applicants were not prevented from bringing their action for restitution of the church building before the domestic courts. Their case was litigated at three levels of jurisdiction and, after their action was declared admissible in 2004, no procedural bar or limitation period was invoked against them.

94. Equally, the applicants were able to submit evidence and benefited from adversarial proceedings at the close of which the domestic courts examined that evidence and delivered reasoned judgments.

95. Thus, the domestic courts examined the action brought before them by the applicants, carrying out an analysis of the facts and applicable law. They took account of the specific features of the subject of the dispute, and applied a combination of the provisions of ordinary law and of the special law in this area. They also explained, with convincing reasons, how they had applied the substantive law in the case before them, with the result that their approach cannot be regarded as manifestly arbitrary (for contrasting examples concerning “manifest errors of judgment”, see Dulaurans v. France, no. 34553/97, §§ 33-34 and 38, 21 March 2000; Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007; and Andelkovic v. Serbia, no. 1401/08, § 24, 9 April 2013).

96. The Court next notes that the domestic courts themselves attempted, on the basis of the above-mentioned evidence, to identify the factors which had led the party in possession of the church building to refuse to return the property, and established the worshippers’ wishes. In so doing, the Court of Appeal, whose findings of fact were endorsed by the High Court, examined the circumstances surrounding the construction of the contested place of worship, the financial contributions made by the various parties, the way in which the building had been used, and how the structure of the Lupeni community had developed (for a contrasting situation, see Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, §§ 73 and 74, Reports 1998-IV). Thus, the domestic courts verified that the worshippers’ wishes had a genuine basis in fact, they took account of historical and social aspects, and not merely statistical factors and they established that the criterion of the worshippers’ wishes had not been used arbitrarily against the applicants in the present case.

97. As is clear from paragraph 54 above, where the domestic courts have found in another case that the refusal by an Orthodox parish to return a church building that was not being used by it had been arbitrary, they granted the Greek Catholic parish’s action for recovery of possession, in spite of the impugned criterion.

98. The domestic courts, which were independent and impartial within the meaning of the Court’s case-law, clearly had a discretionary power of assessment in exercising their jurisdictional competence, and their role was not limited to endorsing a pre-determined outcome.

99. In view of the above, the Court considers that what is at stake in the present case is not a procedural obstacle hindering the applicants’ access to the courts, but a substantive provision which, while it is such as to have an impact on the outcome of the proceedings, does not prevent the courts from examining the merits of the dispute. In reality, the applicants complain about the difficulty in satisfying the conditions imposed by substantive law in order to obtain restitution of the place of worship in question.

100. However, as can be seen from the Court’s well-established case-law, it is necessary to maintain a distinction between procedural and substantive elements: fine as that distinction may be in a particular set of national legal provisions, it remains determinative of the applicability and, as appropriate, the scope of the guarantees of Article 6 of the Convention, which can, in principle, have no application to substantive limitations on a right existing under domestic law (see, to that effect, Roche, cited above, § 119; Z and Others, cited above, § 98; and Markovic and Others, cited above, § 94).

101. Contrary to what is argued by the applicants, the criterion of the worshippers’ wishes in issue in the present case cannot be considered as limiting in any way the courts’ jurisdiction to decide actions for recovery of possession in respect of places of worship, but as qualifying a substantive right (see, mutatis mutandis, Fayed cited above, § 65; Cudak, cited above, § 58; and McElhinney, cited above, § 25). The domestic courts in the present case had full jurisdiction to apply and interpret the national law, without being bound by the refusal of the Orthodox parish to reach a friendly settlement in the context of the procedure before the joint committee.

102. Equally, when examining a case under Article 6 of the Convention it is not for the Court to substitute its own view for that of the national legislature as to what is the most appropriate legislation to enact and apply in settling disputes, particularly in cases involving disputes between different religious communities concerning places of worship. On the one hand, as is clear from paragraph 89 above, the Contracting States enjoy a certain margin of appreciation in drawing up the rules concerning the right of access to a court. At the same time, in the exercise of this margin of appreciation in the present case, the criterion in dispute gave rise to heated debates when it was adopted by Parliament (see paragraph 39 in fine above) and when the amendments made to Legislative Decree no. 126/1990 by Law no. 182/2005 were adopted. Equally, both of the Churches concerned were consulted as part of the legislative process that resulted in adoption of the criterion in dispute (see paragraph 39 above). The Constitutional Court’s case-law has been consistent with regard to the compatibility of this criterion with the Constitution, both in its application by the joint committees and when applied in the context of judicial proceedings based on the provisions of ordinary law (see paragraphs 55-57 above).

103. Moreover, when called upon to examine examples of decisions submitted by the parties in similar Romanian cases, the Court has recently held that “whatever the criterion applied by the domestic courts, it transpires from these decisions that an examination of the merits of the case was indeed carried out” and that “... an action for recovery of possession based on ordinary law would incontestably have led to an examination of the merits of the case, whether in application of the rules governing a traditional action for recovery of possession or in application of the criterion in the special law” (see Prunis Greek Catholic Parish v. Romania (dec.), no. 38134/02, §§ 37 and 40, 8 April 2014).

104. Admittedly, the applicants refer to the judgment in Sâmbata Bihor Greek Catholic Parish v. Romania, which, in their reading, found that the review by the courts of the joint committees’ decisions infringed the right of access to a court in that it was limited to ensuring that the criterion of the worshippers’ wishes had been complied with. However, the Court notes that in the Sâmbata Bihor case it was examining the legislative framework which existed prior to the amendments made to the text of Article 3 of Legislative Decree no. 126/1990 by Ordinance no. 64/2004 and Law no. 182/2005, and thus before the possibility, clearly provided for by these amendments, of bringing legal proceedings based on the provisions of ordinary law became available. Its reasoning at that time was essentially based on the fact that, prior to the said amendments, some domestic courts had considered that they did not have jurisdiction to examine the merits of a decision taken by a joint committee, and had not therefore taken proper account of the protected interests and rights that were at stake. As a result, the judicial review carried out by these courts was held to be insufficient for the purposes of Article 6 § 1 of the Convention. The Court nevertheless noted the fact that the amendments to the Legislative Decree made it possible to bring actions before the domestic courts, which by that stage had jurisdiction to rule on disputes concerning places of worship, and welcomed the legislative changes in question, while pointing out that, for the most part, they had been enacted well after the events complained of in the case before it (see Sâmbata Bihor Greek Catholic Parish, cited above, §§ 72-75).

105. The applicants expressed surprise as to the interpretation given to domestic law by the Court of Appeal and the High Court with regard to the meaning of the concept of “ordinary law”. Those courts held that although the applicants had based their action on the provisions of the Civil Code, it fell to be determined by taking into account the criterion laid down by Article 3 of Legislative Decree no. 126/1990. However, if this interpretation of domestic law, which has varied over time and depending on the court concerned (see paragraphs 48-54 above), is one that gives rise to an issue under the Convention, the Court considers that this point should be examined in the light of compliance with the principle of legal certainty, and not that of access to a court.

106. Having regard to the considerations set out above, the Court considers that the applicants were not deprived of the right to a determination of the merits of their claims concerning their property right over a place of worship. The difficulties encountered by the applicants in their attempts to secure the return of the contested church building resulted from the applicable substantive law and were unrelated to any limitation on the right of access to a court.

107. The Court therefore concludes that in the present case the right of access to a court was respected, and that there has been no violation of Article 6 § 1 of the Convention.

2. Compliance with the principle of legal certainty

(a) Chamber judgment

108. In its judgment the Chamber referred to the principles which emerge from the Court’s case-law on Article 6 § 1 of the Convention with regard to compliance with the principle of legal certainty. It noted that the domestic courts were required to rule on disputes concerning the return of places of worship in spite of the absence of a sufficiently clear and foreseeable legislative framework in respect of the interpretation to be given the concept of “ordinary law” referred to in Article 3 of Legislative Decree no. 126/1990 as amended by Law no. 182/2005, and that, as a result, various domestic courts had reached different legal conclusions on the same legal question brought before them. Thus, in examining an action for recovery of possession on the basis of Article 480 of the Civil Code, the domestic courts, including the High Court, had interpreted this concept in two ways: some courts had considered that they ought to examine the action for recovery of possession in the traditional manner, by comparing the title deeds; others, as in the present case, had ruled that they were required to determine the action for recovery of possession by applying the criterion laid down in Legislative Decree no. 126/1990. Nonetheless, the Chamber held that, although the mechanism of an appeal in the interests of the law had not been used, the highest courts of the land, namely the High Court and the Constitutional Court, had resolved this discrepancy by bringing their respective positions into line with regard to the applicable law.

109. The Chamber also found that the inconsistencies in the case-law had persisted for several years, although it lacked information on exactly how long that situation had lasted. It took into account the complexity of the legal issue raised, its impact on society and the fact that it involved determining, by means of precedent, the manner in which two different laws ought to be applied. Noting that the judgments given by the domestic courts had been duly reasoned, in terms of the facts and the law, and that their interpretation with regard to the circumstances submitted for their assessment had not been arbitrary, unreasonable or capable of affecting the fairness of the proceedings, it concluded that there had been no violation of Article 6 § 1 of the Convention under this head.

(b) Observations of the parties before the Grand Chamber

(i) The applicants

110. The applicants argued that the criterion of the worshippers’ wishes was intended to be applied only by the joint committees, and not by the courts. In this connection, they explained that this criterion was only mentioned in the first paragraph of Article 3 of Legislative Decree no. 126/1990, which governed the procedure before the joint committees, and not in the second paragraph of this Article, which enabled the Greek Catholics to bring judicial proceedings on the basis of ordinary law.

111. They alleged that, in Romanian case-law and legal theory, it was well-established that the “ordinary law” (drept comun) in the area of property law was the law of the Civil Code. They considered that the ordinary-law provisions in this area could not be regarded as belonging to the same category as a special law such as Legislative Decree no. 126/1990 and that, if that were the case, the second paragraph of the above-mentioned Article 3 would have been worded differently and would have included a reference to the first paragraph. In their submission, the domestic courts had thus retained a wide, arbitrary and unlawful interpretation of the concept of “ordinary law” by holding that the courts also ought to rule on the basis of the criterion of worshippers’ wishes.

112. The applicants submitted that, in spite of the long period that had elapsed since the enactment of Legislative Decree no. 126/1990 and its amendment in 2005, no clear approach reconciling the application of ordinary law and the criterion of the worshippers’ wishes had emerged from the legislation and the case-law: the lower courts considered it necessary to disregard the worshippers’ wishes because they prevented access to justice, while the High Court held that ordinary law ought to be set aside in order to give priority to the wishes of the majority. In the applicants’ opinion, these were two diametrically opposed positions, which showed clearly that the two legal provisions were irreconcilable.

(ii) The Government

113. The Government indicated that the criterion provided for by Legislative Decree no. 126/1990 reflected an approach which had deep social and historical foundations: given that the worshippers were those who had contributed to the construction of the church building and who had enabled it to be used for religious purposes, it was natural, in the Government’s view, that the church building should follow the worshippers if the religious community were restructured. The importance of this criterion, its compatibility with the Constitution and the fact that it was in line with social reality had been confirmed by the Constitutional Court.

114. The Government then explained that the amendments made by Law no. 182/2005 to Legislative Decree no. 126/1990 were specifically limited to providing access to the justice system by determining the competent court and the court costs, and that they did not concern, in any way, the substantive law applicable to such disputes. In this connection, they pointed out that the general perception from the debates held in the Senate and the Chamber of Deputies at the time of enacting Law no. 182/2005 was that the amendments in question were directed only at recognising access to the courts, and did not introduce a different perspective on the relations between the property rights of the different religious communities.

115. The development of the domestic case-law demonstrated the capacity of the Romanian legal system to accommodate the initial discrepancy in the case-law, although an appeal in the interests of the law had not been lodged on this point. Thus, the Constitutional Court, from 1995, and the High Court, from 2009, had taken a clear position on the issue of the applicability of the criterion of the worshippers’ wishes. From 2011 and 2012 onwards, the High Court had, in the majority of the cases brought before it, applied a combination of the provisions of ordinary law and the provisions of Legislative Decree no. 126/1990. According to the Government, revisiting the application of this criterion at this stage would only serve to destabilise a situation in which the national practice was now convergent and the interests of the communities of worshippers were already clearly established. Equally, the mere fact that the impugned decision in the present case had been delivered prior to the harmonisation of the case-law in this area could not in itself undermine the principles of foreseeability and legal certainty, given that the domestic judicial system had succeeded in ending the uncertainty on its own.

(c) The Court’s assessment

(i) General principles

116. The Court refers at the outset to its judgment in the case of Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58 and 61, 20 October 2011), in which it set out the principles applicable to cases concerning conflicting decisions in the case-law. These principles, which pertain to Article 6 § 1 of the Convention, may be summarised as follows:

(a) In this type of case, the Court’s assessment has always been based on the principle of legal certainty which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law (see Nejdet Sahin and Perihan Sahin, cited above, § 56). This principle guarantees a certain stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Hayati Çelebi and Others v. Turkey, no. 582/05, § 52, 9 February 2016, and Ferreira Santos Pardal v. Portugal, no. 30123/10, § 42, 30 July 2015).

(b) However, the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Nejdet Sahin and Perihan Sahin, cited above, § 51, and Albu and Others v. Romania, nos. 34796/09 and sixty-three other applications, § 34, 10 May 2012).

(c) The requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law. Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Nejdet Sahin and Perihan Sahin, cited above, § 58, and Albu and Others, cited above, § 34).

(d) It is not in principle the Court’s function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts. Equally, giving two disputes different treatment cannot be considered to give rise to conflicting case-law when this is justified by a difference in the factual situations at issue (see Hayati Çelebi and Others, cited above, § 52, and Ferreira Santos Pardal, cited above, § 42).

(e) The criteria which guide the Court in its assessment of the circumstances in which contradictory decisions by different domestic courts ruling at final instance entail a violation of the right to a fair hearing, enshrined in Article 6 § 1 of the Convention, consist in establishing, firstly, whether “profound and long-standing differences” exist in the case-law of the domestic courts; secondly, whether the domestic law provides for a mechanism for overcoming these inconsistencies; and, thirdly, whether that mechanism has been applied and, if appropriate, to what effect (see Nejdet Sahin and Perihan Sahin, cited above, § 53; Hayati Çelebi and Others, cited above, § 52; and Ferreira Santos Pardal, cited above, § 42).

(ii) Application to the present case

117. The Court observes that the present case differs from that of Nejdet Şahin and Perihan Şahin (cited above) in that it does not concern alleged disparities between the judgments of two hierarchically unrelated, different and independent supreme courts, but disparities existing primarily in the case-law of the highest domestic court. The Court cannot but note that, in the present case, the conflicting case-law essentially arises from the decisions taken by the High Court (see also Beian v. Romania (no. 1), no. 30658/05, § 38, ECHR 2007-V (extracts); Ferreira Santos Pardal, cited above, § 45; and Hayati Çelebi and Others, cited above, § 54), even if it was then reflected at the level of the lower courts.

118. The principles established in Nejdet Şahin and Perihan Şahin are nevertheless applicable in the present case. The Court will therefore examine in turn whether, in the present case, “profound and long-standing differences” exist in the case-law of the domestic courts, whether the domestic law provides for a mechanism for overcoming these inconsistencies, whether that mechanism has been applied and, if appropriate, to what effect.

(α) The existence of “profound and long-standing differences”

119. The Court considers it important to note at the outset that, in the above-cited case of Sâmbata Bihor Greek Catholic Parish (§§ 43-49 and 81), it had already observed the existence of conflicting case-law within the highest domestic court, then known as the Supreme Court of Justice (see paragraph 51 above), this disparity being reflected in the case-law of the lower courts. As pointed out in paragraph 104 above, the disparity at that time concerned the interpretation to be given to Article 3 of Legislative Decree no. 126/1990 as worded prior to the amendments in 2004 and 2005 and related to the courts’ very jurisdiction to rule on an action brought by a Greek Catholic parish with regard to a place of worship. The Supreme Court and, consequently, the courts of appeal had interpreted this provision inconsistently, in some cases refusing, and in other cases agreeing, to rule on the disputes brought before them by Greek Catholic parishes. The applicants in the present case experienced the impact of this conflicting case-law in their own case: at the first stage of the proceedings, the appeal lodged by them in 2001 was declared inadmissible (see paragraph 19 above).

120. The Court further notes that, as described in paragraphs 41 and 42 of the present judgment, the Romanian legislature found it necessary to amend the text of Legislative Decree no. 126/1990 in order to give the party that was dissatisfied with the outcome of the procedure before the joint committee the express possibility of instituting court proceedings. Thus, Article 3 of Legislative Decree no. 126/1990, as amended, provides that if the members of the clergy representing the two denominations fail to reach an agreement within the joint committee, the party with an interest in bringing judicial proceedings may do so under ordinary law.

121. However, this new text, which had been intended to put an end to a conflict in the case-law, gave rise to another. This time, it was the concept of “ordinary law” which was the source of differing interpretations: some courts assigned it the usual meaning in the area of protection of the right of ownership and dealt with actions for recovery of possession in the traditional manner, on the basis of the provisions of the Civil Code (see paragraphs 44 and 45 above); others considered that it ought to be interpreted in the light of the text of Article 3 § 1 of Legislative Decree no. 126/1990 and that they were required to take into account the wishes of the worshippers. Depending on the interpretation given by the courts to the concept of “ordinary law”, the substantive law applicable to a dispute could thus differ: in the first scenario, the domestic courts compared the title deeds, whilst in the second the courts sought to establish the wishes of the worshippers in the religious community which was in possession of the property when the legal situation of the place of worship was being examined.

122. The Court reiterates that the possibility of conflicting case-law is naturally inherent in any judicial system based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. However, it notes that, as is clear from the examples of case-law submitted in the case and from paragraph 117 above, the conflicting interpretation of the concept of “ordinary law” existed within the High Court itself, called upon to settle these disputes at last instance. Thus, in a judgment delivered on 29 May 2007, the High Court confirmed the application of the criterion of the wishes of the worshippers as provided for by Legislative Decree no. 126/1990 (see paragraph 52 in fine above); in a final judgment of 25 November 2008, it remitted a case for judgment to the lower courts, indicating that the criterion of the worshippers’ wishes was applicable only in the procedure before the joint committees (see paragraph 51 above); then, in a judgment of 24 March 2009, it remitted another case for fresh examination on the ground that the criterion provided for in the special law had not been applied (see paragraph 52 above). In 2011 and 2012, the High Court again delivered judgments containing divergent interpretations (see paragraphs 52-53 above).

123. The Court has already stressed on many occasions that the role of a supreme court is precisely to resolve such conflicts (see Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 59, ECHR 1999-VII, and Ferreira Santos Pardal, cited above, § 47). In consequence, if conflicting practice develops within one of the highest judicial authorities in a country, that court itself becomes a source of legal uncertainty, thereby undermining the principle of legal certainty and weakening public confidence in the judicial system (see Beian (no. 1), cited above, § 39, and Ferreira Santos Pardal, cited above, § 47).

124. In the present case, the conflicting case-law existing within the High Court was reflected in the decisions taken by the lower courts, which also delivered contradictory judgments. Thus, a large number of Greek Catholic parishes were affected by these differences in approach by the domestic courts with regard to the interpretation of the applicable law, with the result that they had a significant impact. This conflicting case-law was likely to create a state of legal uncertainty such as to reduce public confidence in the judicial system (see Albu and Others, cited above, §§ 37-38). Moreover, the domestic courts could expect a large number of actions to be submitted, given that, prior to the amendment introduced by Law no. 182/2005, the question of access to a court had been uncertain (see paragraph 119 above).

125. The Court further notes that the Government do not dispute that conflicting domestic case-law existed over a certain period. They emphasise, however, that from 2012 onwards the High Court and the Constitutional Court aligned their respective positions and confirmed that the criterion laid down in Article 3 of Legislative Decree no. 126/1990 was to be applied in procedures concerning the restitution of places of worship. The Court notes that, in practice, this has resulted in harmonisation of the case-law of the lower courts, as demonstrated by the examples of case-law produced by the Government in the case (see paragraphs 50 and 54 above).

126. The fact still remains, however, that from 2007 to 2012 the High Court delivered judgments that were diametrically opposed. The Court considers that these fluctuations in judicial interpretation cannot be regarded as evolving case-law which is an inherent trait of any judicial system (see paragraph 116 above), given that the High Court reversed its position and that in 2011 and 2012 it delivered several contradictory judgments.

127. Lastly, the Court notes that in the present case it is faced with legal uncertainty that has concerned, successively, the questions of access to a court and the applicable substantive law. It is not its task to speculate on the intention of the Romanian legislature in enacting the legal provisions that are applicable to the legal situation of places of worship such as the one in issue in the present case. In contrast, its task is to note that one and the same legal provision, namely Article 3 of Legislative Decree no. 126/1990, gave rise to conflicting interpretations by the national courts over several years and, more specifically, until 2012.

128. It follows that in the present case “profound and long-standing differences” existed in the case-law, within the meaning of the Court’s above-cited case-law.

(b) The existence and use of a domestic-law mechanism to overcome inconsistencies in the case-law

129. It is the Contracting States’ responsibility to organise their legal systems in such a way as to avoid the adoption of discordant judgments (see Nejdet Şahin and Perihan Şahin, cited above, § 55). This requirement is all the stronger where the conflicting case-law is not an isolated incident but an inconsistency which affects a large number of persons bringing proceedings before the courts.

130. The Court reiterates that it has already been required to examine whether the Romanian judicial system contains a mechanism for remedying a conflict in its case-law such as that in issue in the present case. Thus, in the Albu and Others v. Romania judgment (cited above, § 40) it noted the existence of an appeal in the interests of the law, provided for at the relevant time by Article 329 of the Code of Civil Procedure (see paragraph 46 above). Under that provision, both the prosecutor’s office and the governing councils of the appeal courts could request that the High Court provide guidance on the interpretation of the relevant provisions of domestic law, and the High Court could harmonise the case-law by issuing a binding decision on how the legal provisions in issue were to be interpreted (see also Zelca and Others v. Romania (dec.), no. 65161/10, § 14, 6 September 2011, and Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, § 73, 12 October 2010). In its judgment in the case of Albu and Others (cited above, § 42), the Court concluded that there had been no violation of Article 6 § 1 of the Convention, given that an appeal in the interests of the law had been set in motion promptly and had led to a judgment by the High Court giving unequivocal guidelines on the correct interpretation of the legal text.

131. In the present case, however, the Government confirmed that the relevant authorities had not made use of an appeal in the interests of the law in order to put a rapid end to the inconsistency in the case-law described above, although they could have done so. Admittedly, as the Government argued, the Romanian judicial system ultimately proved capable of bringing an end to the inconsistent rulings by means of case-law.

132. However, as is clear from paragraphs 124 and 128 above, the Court is confronted in the present case with a situation of general legal uncertainty which originated in the High Court’s case-law but which was also perceptible in the case-law of the lower courts, and which related successively to the question of access to a court and to that of the applicable substantive law. In addition, this conflicting case-law had affected a large number of persons bringing judicial proceedings, and the domestic courts could expect to be confronted with a large number of actions. In those circumstances, the Court cannot conclude that the most appropriate mechanism for ensuring harmonisation of the case-law was set in motion promptly in order to put an end to the conflicting case-law in issue.

133. Moreover, the Court notes that the national authorities did not enact a legal provision for the purpose of clarifying the legal situation of the disputed properties, as provided for in Government Emergency Ordinance no. 94/2000 as amended in 2005 following the enactment of Law no. 182/2005 (see paragraph 38 above). If, in the legislature’s opinion, the special law ought to be Legislative Decree no. 126/1990, it could have indicated this, for the sake of clarity, when amending Ordinance no. 94/2000.

(γ) Conclusion

134. The Court concludes that the context in which the action brought by the applicants was examined, namely one of uncertainty in the case-law, coupled in the present case with the failure to make prompt use of the mechanism foreseen under domestic law for ensuring consistent practice even within the highest court in the country, undermined the principle of legal certainty and, in so doing, had the effect of depriving the applicants of a fair hearing.

135. It follows that there has been a violation of Article 6 § 1 of the Convention on account of the breach of the principle of legal certainty.

3. Right to a fair hearing within a reasonable time

(a) The Chamber judgment

136. In its judgment, the Chamber considered that the period to be taken into consideration for the second applicant began on 23 May 2001 and ended on 15 June 2011, that is, ten years and about three weeks for three levels of jurisdiction. As to the period to be taken into consideration for the two other applicants, it noted that, although they were mentioned in the initial statement of claim, the parties had not specified whether or not those two applicants had legal capacity to act in the first set of proceedings. It decided, therefore, to take as the start of the proceedings in their respect the date on which the case was restored to the County Court’s list in 2006 (see paragraph 22 above).

137. The Chamber then considered that the applicants could not be criticised for any delay in the proceedings. It noted that the case had been suspended on several occasions in order to enable the parties to seek a solution through the non-contentious procedure provided for by law, that in the initial years the domestic courts held that they did not have jurisdiction to determine the merits of the case, and that one decision had been quashed on grounds of a procedural defect. It concluded that the protracted nature of the proceedings was essentially attributable to the domestic authorities.

138. The Chamber took account of the fact that all the applicants had been mentioned in the initial statement of claim, and that after the first and third applicants had been joined to the proceedings, the domestic courts took three years to deliver a first judgment on the merits, and about two additional years to deliver a final judgment. In consequence, it concluded that there had been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings in respect of the three applicants.

(b) The parties’ submissions before the Grand Chamber

(i) The applicants

139. The three applicants argued that the length of the proceedings was about ten years and one month. They explained that the second applicant, in its capacity as administrator of the Church’s assets, and the two other applicants had been parties to the proceedings jointly since 23 May 2001. They emphasised that the various decisions given by the domestic courts at the relevant time referred sometimes to “the claimant” and sometimes to “the claimants”. They indicated that after the case had been remitted for re-examination on the merits they had asked the court to clarify the legal status of each of them, and that they had all been clearly recognised as parties to the proceedings.

140. The applicants submitted that the length of the proceedings had been excessive, bearing in mind that the case was not a particularly complex one and that they could not be held responsible for this length of proceedings.

(ii) The Government

141. The Government submitted that only the second applicant was a party to the proceedings under the initial statement of claim, and that the two other applicants had joined the proceedings only in 2006. They pointed out that the case had been suspended from 22 February 2002 to 23 March 2003 at the second applicant’s request. They argued that the case was a particularly complex one, that the judicial authorities had handled it expeditiously, and that any delays in resolving the case were not attributable to them.

(c) The Court’s assessment

(i) General principles

142. It is for the Contracting States to organise their judicial systems in such a way that their courts are able to guarantee the right of everyone to obtain a final decision on disputes concerning civil rights and obligations within a reasonable time (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 24, ECHR 2000-IV, and Vassilios Athanasiou and Others v. Greece, no. 50973/08, § 26, 21 December 2010).

143. The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see Sürmeli v. Germany [GC], no. 75529/01, § 128, ECHR 2006-VII).

(ii) Application to the present case

(α) The period to be taken into consideration

144. The Court notes that, as regards the second applicant, it is not disputed that the period to be taken into consideration was about ten years and three weeks, for three levels of jurisdiction.

145. As to the first and third applicants, they were included in the initial statement of claim as the second applicant’s representatives. Equally, it is clear from the case file that the first applicant was very active in the proceedings and that, together with the second applicant, it had carried out a number of procedural measures (see paragraph 20 above). However, it is not clear from the case file or from the decisions issued by the domestic courts that the first applicant was considered a party, as such, to the proceedings before 2006, the year in which the domestic courts formally mentioned it, with the third applicant, as a party to the proceedings. The Court therefore considers that the period to be taken into consideration for these two applicants is about five years for three levels of jurisdiction.

(b) The reasonableness of the length of the proceedings

146. The Court observes at the outset that in the present case the applicants cannot be criticised for any delay in the proceedings, as the stay of proceedings referred to by the Government concerned an attempt to reach a friendly settlement to the case (see paragraph 20 above). Moreover, the applicants have fully explained the importance of what was at stake in the proceedings for them.

147. With regard to the duration of a little over ten years, the Court notes that the proceedings were suspended on several occasions so that the parties could initiate the procedure before the joint committee, although the position of the defendant (consisting in a refusal to return the place of worship) had been known since the beginning of the proceedings and this party had shown no sign of a change in attitude. The length of the proceedings is also explained by the successive judgments quashing previous findings and remitting the case to the lower courts (see paragraphs 18-25 above). In this connection, the Court reiterates that while it is not its function to analyse the manner in which the national courts interpreted and applied the domestic law, it nonetheless considers that judgments quashing previous findings and remitting the case are usually due to errors committed by the lower courts and that the repetition of such judgments may point to a shortcoming in the justice system (see Sfântul Vasile Polona Greek Catholic Parish, cited above, § 74).

148. With regard to the duration of five years in respect of the first and third applicants, the Court also notes that, although the merits of the case had already been submitted to the County Court, these parties were again invited to follow the procedure before the joint committee, which they did to no avail (see paragraph 23 above). A first-instance judgment was subsequently set aside on grounds of a procedural defect (see paragraph 25 above).

149. Although it is true that the proceedings lasted a shorter time for the first applicant and the third applicant than for the second applicant, the Court cannot but note that when these two applicants were formally joined as parties to the proceedings, the case had already been pending for more than five years before the domestic courts and that the first applicant had played an active part in the conduct of the proceedings since at least 2002. Moreover, it notes that the proceedings were intended to protect the applicants’ common interest.

150. Albeit the case in itself was not a particularly complex one, the lack of clarity and foreseeability in the domestic law rendered its examination difficult (see paragraph 121 above); those shortcomings are entirely imputable to the national authorities and, in the Court’s opinion, contributed decisively to extending the length of the proceedings.

151. Having regard to all the elements submitted to it, the Court concludes that the applicants’ case was not heard within a reasonable time.

152. There has therefore been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings.

III. Alleged violation of Article 14 of the Convention taken in conjunction with Article 6 § 1

153. The applicants submitted that they had been discriminated against in their enjoyment of the right of access to a court under Article 6 § 1 of the Convention because they belonged to a minority denomination. They relied on Article 14 of the Convention, which provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

1. The Chamber judgment

154. The Chamber found that no difference of treatment on the basis of religion could be discerned in the text of Article 3 of Legislative Decree no. 126/1990. Turning to the historical and social factors, it noted that, at present, in those cases in which Legislative Decree no. 126/1990 had to be applied, the places of worship whose recovery was sought were generally held by entities belonging to the Orthodox Church, and the Greek Catholic Church was always in the position of applying for their return. It considered that in this context, given that Article 3 of Legislative Decree no. 126/1990 provided that the criterion for determining the legal situation of a contested property was to be “the wishes of the worshippers in the communities in possession of the properties”, it could be interpreted as creating a privileged position for the defendant, to the applicants’ detriment. On the basis of that finding, it concluded that there existed a difference of treatment between two groups, the Greek Catholic Church and the Orthodox Church, which were in a similar situation as regards their claims of ownership over the contested place of worship.

155. The Chamber then examined whether this difference in treatment, based, by assumption, on religion, had an objective and reasonable justification. In this regard, it noted, firstly, that the criterion of the worshippers’ wishes had been developed in order to take account of the historical context and the religious nature of the properties in question, and that the impugned provision was intended to protect the freedom of those forced to leave the Greek Catholic denomination under the totalitarian regime to express their wishes as to which denomination they wished to belong to, while retaining the possibility of using the place of worship they had built.

156. The Chamber also attached importance to the fact that, in applying the criterion of “the wishes of the worshippers in the communities in possession of the properties”, the Romanian courts had not confined themselves to noting the defendant’s refusal to return the church building, but had weighed up the interests at stake. Lastly, it noted that the Constitutional Court, called upon to examine the objection that the impugned criterion was unconstitutional, had given reasons linked to the need to protect freedom of worship and the freedom of others, while integrating these into its consideration of the historical background to the case.

157. The Chamber concluded that, in view of the aim pursued and the reasonable justification for it, the national legislature’s adoption of the impugned criterion had not been contrary to Article 14 of the Convention taken in conjunction with Article 6 § 1.

2. The parties’ submissions to the Grand Chamber

(a) The applicants

158. The applicants considered that they had experienced discrimination compared with other Greek Catholic parishes confronted with the same situation, since – in similar cases – some domestic courts ruling on actions for recovery of possession brought by other Greek Catholic parishes had applied the ordinary law without taking into consideration the worshippers’ wishes.

159. They also alleged that they had been discriminated against in comparison with the Orthodox parish. This discrimination was inherent in the provisions of Legislative Decree no. 126/1990: although this text seemed, in theory, to be applicable in the same manner to both parties to the dispute, in practice it favoured the Orthodox party. In this connection, the applicants indicated that when they were reconstituted, after 1989, the Greek Catholic parishes had no places of worship at their disposal, as all such property was in the possession of the Orthodox Church.

(b) The Government

160. With regard to a possible difference in treatment by comparison with other Greek Catholic parishes whose actions for recovery of possession had been settled through application of the ordinary law, the Government claimed that the decisions in question had been delivered during the lapse of time that had been required by the domestic legal system to clarify the content of the phrase under “ordinary law” contained in Law no. 182/2005.

161. With regard to the allegations of discriminatory treatment compared with the Orthodox party to the dispute, the Government submitted that the applicants in the present case had not been placed at a disadvantage on account of their religion. They stressed that the criterion of the worshippers’ wishes laid down by Legislative Decree no. 126/1990 had not been adopted, or applied in practice, in order to favour a given religious community, but to enable the worshippers to decide about the use of a property that they had built and that was intended for them, by putting in place a climate which would not create injustices more serious than those the law was intended to correct.

3. The Grand Chamber’s assessment

(a) General principles

162. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. It is necessary but it is also sufficient for the facts of the case to fall within the ambit of one or more of the Convention Articles (see Biao v. Denmark [GC], no. 38590/10, § 88, 24 May 2016; see also Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 39-40, ECHR 2005-X; E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013).

163. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. Moreover, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Article 14 lists specific grounds which constitute “status” including, inter alia, race, national or social origin and birth. However, the list is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “notamment”) and the inclusion in the list of the phrase “any other status” (in French “toute autre situation”). The words “any other status” have generally been given a wide meaning and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Biao, cited above, § 89, and the case-law cited in it).

164. A difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Biao, cited above, § 90; see also Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006-VI).

(b) Application to the present case

(i) Applicability of Article 14 of the Convention in conjunction with Article 6 § 1

165. As set out in paragraph 76 of the present judgment, the applicants’ dispute amounts to a determination of rights which are civil in nature. It follows that the facts complained of by the applicants come within the ambit of Article 6 § 1 of the Convention (see, to that effect, Rasmussen v. Denmark, 28 November 1984, § 32, Series A no. 87). This is sufficient to render Article 14 applicable and obliges the Court to examine whether there has been a violation of this provision taken together with Article 6 § 1.

166. The Court will examine separately the two types of discrimination alleged: firstly, discrimination in comparison with other Greek Catholic parishes and, secondly, discrimination in comparison with the Orthodox parish.

(ii) Difference in treatment compared with other Greek Catholic parishes

167. The Court considers that if the manner in which the domestic courts ruled on the actions for recovery of possession brought by the various Greek Catholic parishes (on the basis of ordinary law with or without taking the worshippers’ wishes into consideration) did amount to a difference in treatment, this was not based on religion.

168. Furthermore, this difference in treatment is alleged in relation to the right of access to a court and to the applicable law with regard to an action for recovery of possession. The Court considers that this complaint essentially pertains to the assessment, already carried out, of compliance with the principle of legal certainty (see paragraphs 117 and 135 above).

169. Accordingly, even supposing that the alleged difference in treatment could be examined from the standpoint of Article 14 of the Convention, and bearing in mind the reasoning that led it to find a violation of Article 6 § 1 of the Convention on account of the breach of the principle of legal certainty, the Court finds that there are no factors that would warrant a separate examination of the same facts under Article 14 of the Convention.

(iii) Difference in treatment compared with the Orthodox parish

170. The Court points out that the text of Article 3 of Legislative Decree no. 126/1990 stated that the legal situation of the places of worship would be determined taking account of “the wishes of the worshippers in the communities in possession of these properties”. This criterion must be understood in the historical and social context in Romania, where the places of worship being reclaimed by the Greek Catholic parishes had been transferred to the Orthodox parishes following the dissolution of the Greek Catholic denomination in 1948. Moreover, when it was enacted in 1990 the legal provision in question had been drawn up after consultation with the interested parties and out of a desire to maintain neutrality, aimed at respecting the freedom of the former Greek Catholic but now Orthodox worshippers to decide about their faith and the fate of places of worship.

171. The Court is called upon to examine the complaint under Article 14 of the Convention solely in conjunction with Article 6 § 1 of the Convention as regards the right of access to a court. However, having noted that the applicants essentially complained of a breach of their right of access to a court on account of the content of the substantive law and having emphasised that Article 6 § 1 of the Convention does not itself guarantee any particular content of the substantive law of the Contracting Parties, it has held that, in the present case, there was no restriction on the right of access to a court, as both parties to the dispute enjoyed the same right to apply to the courts and to obtain a decision on the merits of the case (see paragraphs 91-107 above).

172. In the absence of any such restriction, the Court considers that it has not been shown that the criterion of the worshippers’ wishes created a difference in treatment between the Greek Catholic parishes and the parishes of the Orthodox Church in the exercise of their right of access to a court. Admittedly, the conditions imposed by the substantive law were clearly such as to have an impact on the outcome of the proceedings. However, given that the applicants, like the Orthodox parish, enjoyed access to domestic courts which had full jurisdiction to apply and interpret the domestic law and which exercised a review that was sufficiently wide to satisfy the requirements of Article 6 § 1 (see paragraphs 93-98 above), this factor does not create a difference in treatment between the two parties to the proceedings in terms of access to a court.

173. Thus, for the purposes of Article 14 of the Convention, the Court does not discern a difference in treatment between the applicants and the defendant in respect of the possibility of applying to the courts and obtaining a judicial decision on the action to recover possession of the place of worship.

174. That fact is sufficient for the Court to find that there has not been a violation of Article 14 of the Convention taken together with Article 6 § 1 in the present case.

IV. Application of Article 41 of the Convention

175. 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.”

176. The Court notes that the applicants were informed by a letter of 10 November 2015 that they were not required to amend the claims that they had made under Article 41 before the Chamber. However, they were invited to submit an additional claim in respect of the costs and expenses incurred in the proceedings before the Grand Chamber.

A. Damage

1. The parties’ submissions

177. Before the Chamber, the applicants had claimed, in respect of pecuniary damage, the restitution of the church, the adjacent land and the parsonage. Failing restitution in kind of the properties, and relying on an expert report, they had requested 282,343 euros (EUR), a sum which, in their submission, corresponded to the market value of the contested buildings. They also claimed EUR 50,000 in respect of non-pecuniary damage.

178. The Government had responded that the amounts included in the valuation report were exorbitant compared with the market prices as estimated by the Chamber of Notaries for similar plots of land. They considered that, were the Court to conclude that the applicants had sustained non-pecuniary damage, a judgment finding a breach of their Convention rights would constitute sufficient compensation for the non-pecuniary damage and that in any event the sum claimed for non-pecuniary damage was excessive.

2. The Chamber judgment

179. After reiterating that an award of just satisfaction could only be based on the finding of a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings, the Chamber dismissed the applicants’ claim in respect of pecuniary damage, on the ground that there was no link between the finding of a violation and the alleged pecuniary damage. Ruling on an equitable basis, it awarded them EUR 2,400 in respect of non-pecuniary damage, plus any tax that could be chargeable to the applicants on that amount.

3. The Court’s assessment

180. The Court notes that an award of just satisfaction is intended, in the present case, to make good the breach of the principle of legal certainty and the excessive length of the proceedings.

181. As to the alleged pecuniary damage, the Court cannot speculate as to what would have been the outcome of the applicants’ action for recovery of possession had these breaches of the Convention not occurred. There is accordingly no ground for making any award under this head (see, mutatis mutandis, Hayati Çelebi and Others, cited above, § 71, and Yvon v. France, no. 44962/98, § 44, ECHR 2003-V).

182. As to compensation for non-pecuniary damage, the Court has already held that damage other than pecuniary damage sustained by a legal entity may include aspects that are to a greater or lesser extent “objective” or “subjective”. These aspects include the legal entity’s reputation, but also uncertainty in decision-planning, disruption in the management of the legal entity itself (for which there is no precise method of calculating the consequences) and lastly, albeit to a lesser degree, the anxiety and inconvenience caused to the members of the management team (see Comingersoll S.A. cited above, § 35 and Sfântul Vasile Polona Greek Catholic Parish, cited above, § 117).

183. In the present case, having regard to the nature of the violations found, the Court, ruling on an equitable basis, considers it appropriate to award the applicants jointly the sum of EUR 4,700 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

1. The parties’ submissions

184. The applicants sought reimbursement of the costs and expenses incurred in the proceedings before the Chamber and the Grand Chamber, broken down as follows: EUR 8,566.92 in fees for Ms D.O. Hatneanu and EUR 4,098.37 in fees for Ms C.T. Borsányi, to be paid directly to those lawyers; EUR 300 for secretarial and correspondence costs, to be paid to the Association for the Defence of Human Rights in Romania – the Helsinki Committee (“APADOR-CH”); and EUR 696.33 to cover the travel costs incurred by Ms D.O. Hatneanu in relation to the hearing before the Court on 2 March 2016. The applicants submitted a timesheet of their lawyers’ services and the contracts for legal assistance, as well as the agreement concluded with APADOR-CH, by which that association undertook to meet the necessary secretarial costs to support the present application before the Court. They also produced receipts for the travel and accommodation costs incurred by Ms D.O. Hatneanu in attending the hearing.

185. The Government considered that the fees claimed for Ms D.O. Hatneanu were excessive and unnecessary, given that she had represented the applicants in the present proceedings only after the application had been communicated to the Government and that she was representing several applicants in similar cases before the Court. They considered that the fees claimed by this lawyer for the additional observations ought not to be included in the costs and expenses. As to the claim for fees for Ms C.T. Borsányi, who had lodged the application with the Court, the Government invited the Court to award, on an equitable basis, a sum covering the fees that had been actually and necessarily incurred. They made no comments as to the additional claims lodged in respect of the fees incurred in the proceedings before the Grand Chamber.

2. The Chamber judgment

186. The Chamber awarded EUR 4,658 in respect of the two lawyers’ fees and translation and secretarial costs, as well as EUR 300 claimed on behalf of APADOR-CH, plus any tax that could be chargeable to the applicants on those amounts.

3. The Court’s assessment

187. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been 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). In the present case, the Court notes that the applicants have set out their claims in an itemised and precise manner. Regard being had to the nature of the case, the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 8,567 for Ms D.O. Hatneanu’s fees and EUR 3,858 for Ms C.T. Borsányi’s fees, plus any tax that may be chargeable to the applicants on these sums, which are to be paid directly to the lawyers.

188. The Court also considers it reasonable to award the applicants the sum of EUR 696.33 to cover the costs incurred by Ms D.O. Hatneanu in travelling to the hearing of 2 March 2016.

189. With regard to the sum of EUR 300 corresponding to APADOR-CH’s secretarial and correspondence costs, the Court notes that this association has never represented the applicants in the procedure before the Court in Strasbourg, although it entered into an agreement with them in which it undertook to meet the secretarial costs arising from the present application. By a fax of 18 July 2013, the applicants informed the Court that the name of this association had been indicated in error in the authority form transmitted to the Court and that the association had never agreed to represent them in the procedure before the Court (see, to that effect, Serban Marinescu v. Romania, no. 68842/13, §§ 78-80, 15 December 2015, and, for a different situation, Cobzaru v. Romania, no. 48254/99, §§ 2 and 111, 26 July 2007). This claim is therefore dismissed.

C. Default interest

190. The Court considers it appropriate that the default interest rate 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

1. Holds, by twelve votes to five, that there has been no violation of Article 6 § 1 of the Convention in respect of the right of access to a court;

2. Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention on account of the breach of the principle of legal certainty;

3. Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings;

4. Holds, by sixteen votes to one, that, having regard to its conclusions under Article 6 § 1 of the Convention as to the failure to comply with the principle of legal certainty, it is not necessary to examine separately the applicants’ complaint under Article 14 of the Convention taken in conjunction with Article 6 § 1 in so far as it concerns an alleged difference in treatment in comparison with other Greek Catholic parishes;

5. Holds, by twelve votes to five, that there has been no violation of Article 14 of the Convention taken in conjunction with Article 6 § 1 with regard to the right of access to a court in so far as the applicants complain that they were treated differently in comparison with the defendant Orthodox parish;

6. Holds, by sixteen votes to one,

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,700 (four thousand seven hundred euros) to the applicants jointly, plus any tax that may be chargeable on that amount, in respect of non-pecuniary damage;

(ii) EUR 8,567 (eight thousand five hundred and sixty-seven euros), plus any tax that may be chargeable to the applicants on that amount, in respect of costs and expenses, to be paid directly to Ms D.O. Hatneanu;

(iii) EUR 3,858 (three thousand, eight hundred and fifty-eight euros), plus any tax that may be chargeable to the applicants on that amount, in respect of costs and expenses, to be paid directly to Ms C.T. Borsányi;

(iv) EUR 696.33 (six hundred and ninety-six euros and thirty-three cents) to the applicants jointly, plus any tax that may be chargeable to them on that amount, for 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;

7. Dismisses, by thirteen votes to four, the remainder of the applicants’ claim for just satisfaction.

Joint partly dissenting opinion of Judges Sajó, Karakas, Pinto de Albuquerque and Mits

1. The present case raises a question which concerns the interpretation and application of Article 6 § 1 of the European Convention on Human Rights (the Convention) as it relates to the right of access to a court, taken alone and in conjunction with Article 14. The question is, in essence, whether the application of a criterion of substantive law may, even where the interested parties have formal access to a court, amount to a limitation of their right of access or, given the nature of the criterion, render this right illusory. In other words, could the applicable substantive law have a decisive effect on the outcome of the proceedings, to the point of interfering with the scope of the jurisdiction of the court examining the case and, in consequence, the very substance of the right of access to a court within the meaning of Article 6 § 1 of the Convention? Equally, does the applied criterion create direct or indirect discrimination, contrary to that provision, read in conjunction with Article 14 of the Convention?

2. These questions arise in the context of a series of Romanian cases concerning the restitution to the Greek Catholic Church of the places of worship which belonged to it and were forcibly transferred by the communist State to the ownership of the Orthodox Church, following the first denomination’s dissolution during the totalitarian regime and the forced transfer of its members from one church to the other.

3. While accepting that the applicants had the benefit of having their action examined by a court, so that they had formal access to a court in accordance with Article 6 § 1, we take the view that the relevant legal framework (Legislative Decree no. 126/1990, with its amendments of 2004 and 2005) and the domestic courts’ interpretation and application of the criterion of the “worshippers’ wishes” restricted the applicants’ right of access in such a manner or to such an extent that the very essence of the right of access to a court was impaired. Furthermore, the nature of the legislation, which favoured the Orthodox religious community to the detriment of a religious minority, was clearly discriminatory and disproportionate to the aim it pursued. Consequently, Article 6 § 1, read alone and in conjunction with Article 14, was violated.

From persecution to inter-denominational dialogue

4. By 1940 the Romanian Greek Catholic Church was the second largest denomination in Romania, with five dioceses, over 1,500 priests and about 1.5 million faithful. On 21 October 1948, the 250th anniversary of the Romanian Greek Catholic Union with the Roman Catholic Church, the former was dissolved by Decree no. 358/1948 of the totalitarian regime. There followed a State-run programme of repression against the Greek Catholic Church, which included the forced transfer of its members and property to the Orthodox Church. The Greek Catholic bishops and priests were accused by the Communist authorities of “anti-democratic activity” and imprisoned.

5. When the Greek Catholic Church was re-established in 1990, after the entry into force of Normative Act no. 9/31, passed on 31 December 1989, the majority of members who had been forced to transfer more than forty years earlier remained within the Orthodox Church.¹ As regards the restitution of property, the legislature adopted the method of inter-denominational dialogue within administrative joint committees. Article 3 of Legislative Decree no. 126/1990 referred to the “the wishes of the worshipers in the communities in possession of those properties” as the ultimate legal criterion to be adopted in the context of the administrative joint committees’ procedure.

6. In practice, the conciliatory method was frequently unsuccessful and resulted in the majority’s wishes prevailing.² Unless an agreement was reached the status quo prevailed, which de facto precluded the Greek Catholic Church and the community of Greek Catholic believers from having appropriate places of worship available for their services and making the existence of their religious community visible in an appropriate manner. The practice in the administrative joint committees was that the wishes of the worshippers were interpreted as the wishes of the majority, without providing fair opportunity to all believers in a given territorial unit.

In the event of failure to reach a friendly solution by these joint committees, court proceedings were instituted by the members of the Greek Catholic Church, on the basis of the general provisions of the Civil Code on actions for recovery of possession. A period marked by legal uncertainty followed the adoption of Legislative Decree no. 126/1990, with the question of the restitution of property being resolved either on the basis of a comparison of the title deeds, or by a comparison of the title deeds combined with an application of the criterion of the adherents’ wishes. The materials at the Court’s possession show that, over a period of more than 26 years of application of Legislative Decree no. 126/1990, on only one single occasion the domestic courts did not follow the wishes of the majority.³

7. Ordinance no. 94/2000 as amended by Law no. 182/2005 provided that the legal status of places of worship would be governed by a special law. Yet, to date, no such special law has been enacted. Accordingly, the applicants did not have an alternative remedy by which to have the legal status of the property in question legally examined.

Legislative Decree no. 126/1990 as lex specialis

8. In the present case, the High Court of Cassation and Justice reasoned on the basis of the principle of lex specialis derrogat lex generalis, affirming that the criterion of the worshippers’ wishes set out in specific legislation should prevail over the consideration of title deeds provided by general law, namely the Civil Code.⁴ Adding to this legal argument, the High Court stated that the return of property to the Greek Catholic community would infringe the stability and security of juridical relations, considering that the abusive transfer of Greek Catholic property to the Orthodox Church in 1948 should not be followed by another abuse in the opposite direction after the fall of communism.⁵

9. In other words, the criterion of “the wishes of the worshippers in the communities in possession of those properties” was found to be applicable at the conciliatory-administrative and the judicial-contentious stages of the procedure: this means that this criterion had both a procedural aspect, related to the admissibility of the property complaint, and a substantive aspect, determinative of the outcome of the dispute. In fact, in the present case, after having examined the merits of the case, i.e., the wishes of the majority, the courts declared the applicants’ claim, according to the Government, “manifestly unfounded rather than inadmissible”.⁶ In sum, the 1990 Legislative Decree, with its 2004 and 2005 amendments as interpreted and applied by the High Court and the Constitutional Court, pre-determined the result of the dispute on the basis of the wishes of the one of the parties to that dispute. According to the High Court’s ruling, immovable property, regardless of when and how it was acquired, should remain in the hands of those in whose possession it lies, where they represent the majority.

10. We find that the High Court’s ruling is at variance with Article 6 of the Convention. Claimant and defendant were not on an equal footing before the law regarding the substantive criterion to be applied to the dispute, since the wishes of the defendant had been accorded, by law as interpreted by the High Court, decisive weight in resolving the judicial dispute. The substantive provision of a law has created a procedural obstacle which renders the right of access to a tribunal illusory. When the ultimate verdict of the courts depends not on assessment of fair criteria, but decisively on the will of the defendant, which is the stronger party, the essence of the right of access to the court has been annihilated. The fait accompli in favour of the stronger party determined the fate of the property dispute.

11. Furthermore, in so far as the elements on which the courts could base their assessment of the adherents’ wishes were not decipherable, either in the letter or in the spirit of the law, the applicants did not have foreseeable legislation available to them which would have enabled them to argue their case effectively. Indeed, no law explained how the wishes of the worshippers were to be determined and whether the courts had any discretion in overriding these wishes. This situation of legal vacuum was compounded by the fact that the domestic courts overrode these wishes in one sole occasion. That situation was not therefore conducive to legal security and public confidence in the administration of justice.⁷

The discriminatory nature of the lex specialis

12. The Article-6 violation is compounded by a cumulative breach of the principle of equality and the prohibition of discrimination on the basis of religion. First of all, the Court should not disregard the subject of the dispute brought before the domestic courts. It concerns places of worship, the spiritual dimension of which goes beyond the mere question regarding a right of property. The fact that the dispute is between two religious denominations which enjoy autonomy under the domestic law should also be an important factor in assessing the case. It is also of relevance that although both denominations were persecuted in communist Romania, the Orthodox Church was a clear beneficiary of the redistribution which occurred under communist rule.

Although, as a general rule, religious denominations enjoyed autonomy under the domestic law in respect of their religious assets, including churches, it should be pointed out that the national legislature itself provided for an exception to that autonomy (section 27(3) of Law no. 489/2006), regarding restitution (redobândirea) of religious assets wrongfully confiscated by the State between 1940 and 1989 and those taken without a title. Accordingly, the applicants could reasonably have expected that the domestic courts would establish whether the property had been taken with or without a title, a finding that would be reached by applying the ordinary law, that is, the Civil Code-based provisions on an action for recovery of possession.

13. Regard must be had to the State’s duty of neutrality and impartiality, as defined by the Court’s case-law, which requires the State to ensure that conflicting groups tolerate each other, even where they originated in the same group.⁸ In the present case, by allowing the wishes of the religious community in possession of the property to play a decisive role in the judicial proceedings brought by the members of another religious community and concerning a place of worship, the State breached its duty of neutrality and impartiality.

While claiming to respect the autonomy of religious communities, the respondent State enacted a law that clearly favoured one religion over the other. The principle of religious autonomy has been distorted by serving the interests of the religious majority in keeping the property that they acquired during the communist regime, to the detriment of a persecuted religious minority. This distortion was endorsed by the Constitutional Court.⁹ Such legislation represents an inadmissible form of direct discrimination in a State governed by the rule of law and by the principle of equality.

14. In this context, having regard to its duty to respect the principle of neutrality, the legislature should have regulated the right of access in such a way as to guarantee effective access to a court for both parties,¹⁰ while satisfying itself that the parties were on an equal footing regarding the criterion chosen to decide the dispute. It should also be pointed out that the principle of equality of religious communities before the law is provided for in the Romanian Constitution. Likewise, the legislature expressly provided for an exception to the principle of autonomy of religious communities with regard to the resolution of disputes relating to the restitution of places of worship wrongfully confiscated by the State between 1940 and 1989. Accordingly, whilst the respondent State was aware of the sensitive nature of the legal issues surrounding these places of worship, it failed to fulfil its legislative role in this area in accordance with its duty of neutrality and impartiality.

Thus, the applicants were placed in an unfavourable situation as compared with the Orthodox Church, the respondent party in the proceedings. In applying the contested criterion in the context of judicial proceedings, the Romanian State reduced the courts’ task to determining the wishes of the respondent party in the proceedings. Accordingly, any review by a court was incapable of remedying the difference in treatment provided for in the law itself. Whilst the respondent party was able to have the wishes of its adherents determined by a court for the purposes of determining the legal status of a place of worship, the applicants never had such a possibility.¹¹

The alternative applicability of lex generalis

15. Like the High Court, the Government argued that the return of Greek Catholic property to its original owners would represent an injustice to the majoritarian religious community and that an old injustice should not be replaced by a new one. At face value, the argument sounds reasonable. Yet it implies something that has to be demonstrated. The argument begs the question of “injustice”, since it takes as a premise (the injustice of a return of property) something that is essentially the conclusion of the argument.

16. If any legal value may be attributed to it at all, the gist of this line of argumentation lies in the assumption that had the national courts not applied the “worshippers’ wishes” criterion to the Greek Catholic judicial actions for recovery of possessions, legal chaos would have ensued. This assumption should be rejected outright. The security of legal relations would not have been at stake, for the simple reason that the rules of general civil law would then have applied. Had the national courts chosen not to apply the 1990 criterion in judicial proceedings, the provisions concerning actions for recovery of possession, based on the comparison of title deeds, would then have regulated the property claims brought by the Greek Catholic community. There would not have been a legal vacuum, and therefore no legal insecurity, had the general provisions of the Civil Code been applied by the domestic courts.

17. In conclusion, it is inappropriate to argue that a finding of a violation of Article 6 with regard to access to a court could risk (i) triggering a further period of legal uncertainty at domestic level; and (ii) replacing a historical injustice with a further injustice, without any idea of how the Romanian legislature could remedy the violation found. It is even less appropriate to argue that if the domestic courts were simply to stop applying the impugned majority-of-worshippers’ criterion and confine themselves to comparing, in the strict sense of the term, title deeds, the Court would incur the risk of seeing a series of claims brought by applicants from one religious denomination being replaced by a new series of claims, brought by applicants from the other denomination. It should not be a consideration of justice how many applications this Court receives. This is a self-centred, utilitarian consideration, which wrongly assumes that the domestic courts are not in a position to deliver justice, on the basis of the application of their own law.

The lack of compensatory measures for the deprivation of property

18. The Government submitted, as an additional argument to those of the High Court, that the domestic legislation provided for compensatory measures in favour of the party to which the place of worship was not granted, and that the applicants had not sought to benefit from those possibilities, available under domestic law. If this were the case, the underlying historical injustice could have been remedied, although not the violation of the Convention as far as access to a court is concerned.

As praiseworthy as those legislative and practical initiatives may be, the fact remains that they are totally discretionary and limited. Although Article 4 of the 1990 Legislative Decree uses mandatory language (“shall provide”), it does not set out the criteria for determining the amount of “State support”, which remains totally dependent on the State’s discretion. No legal or administrative provisions state if, when and how the State support would be provided. Hence, Article 4 would not have resulted in any independent judicial review, which would then have enabled the courts to “rule” in depth on the legal question submitted to them. Accordingly, that mechanism cannot be considered to compensate for the limitation imposed by the criterion of the worshippers’ wishes on the applicants’ right of access to a court.¹²

19. Moreover, churches and graveyards are not places of commerce which have a price. For believers, these are primarily places with an intrinsic and unique value that cannot be negotiated. There is a spiritual and historical aspect attached to the location and the building that has a value which cannot be set by market rules. In this light, it is highly difficult to elaborate proper legal criteria for determining the amount of State support that would be necessary in order to establish “compensation” for the intrinsic, unique value of the places of worship in dispute.

Furthermore, and this has not been disputed, in the case at hand the Greek Catholic community of Lupeni was not offered another place of worship. Of the two churches in their possession in 1948, they have to date recovered neither.

Conclusion

20. In light of the above, we find that the impugned law (Article 3 of Legislative Decree no. 126/1990) impaired the very essence of the applicants’ Article-6 right of access to a court, taken alone and in conjunction with Article 14. The protection of minorities is almost always unpopular and the protection of religious minorities is even more so. Europe has a long history of religious majorities disregarding the rights of religious minorities. This is an area where present-day democratic standards oblige a majority to show restraint, for the sake of respecting minorities. Unfortunately this case shows that States are often reluctant to undo the injustice committed to religious minorities when the interest of the religious majority is at stake.

Partly dissenting opinion of Judge Karakas

(Translation)

I disagree with the majority as regards the amount awarded in respect of non-pecuniary damage (4,700 euros) and as regards the decision to make no award in respect of pecuniary damage under Article 41 of the Convention.

The Court awards the above-mentioned sum in view of the anxiety and inconvenience suffered by the applicants as a result of the violations found; in other words, to make good the breach of the principle of legal certainty and the excessive length of the proceedings.

In my opinion, there has been a violation of Article 6 § 1 as regards the right of access to a court and also, concerning the same point, of Article 14 taken in conjunction with Article 6 § 1 (see the joint opinion of Judges Sajó, Karakas, Pinto de Albuquerque and Mits). It is for this reason that I find the amount awarded in respect of non-pecuniary damage insufficient.

As to the pecuniary damage, it is clear that the applicants are entitled to compensation for pecuniary loss, compensation which could take the form either of restitution of the church building, the land and the parsonage, or of payment of a sum corresponding to the market value of the properties.

Partly dissenting opinion of Judge Kūris

1. I voted against points 1, 5 and 7 of the operative part of the judgment. The reasons for my disagreement with the majority are quite close to those expounded in the joint partly dissenting opinion of Judges Sajó, Karakas, Pinto de Albuquerque and Mits.

2. It is regrettable that the Chamber found inadmissible the applicants’ complaint under Article 1 of Protocol No. 1, taken alone and in conjunction with Articles 13 and 14 of the Convention. I find it difficult to subscribe to that finding. It effectively prevented the Grand Chamber from examining the applicants’ complaint under the aforementioned Articles, because, under the Court’s case-law, the “case” referred to the Grand Chamber is the application as it was declared admissible by the Chamber (see paragraphs 61-63 of the judgment). In the present case, the issues at stake are property issues, i.e. those directly dealt with by Article 1 of Protocol No. 1. However, this precise aspect of the case has not been examined by the Grand Chamber. This raises doubts as to the appropriateness of indiscriminately applying the said “case-law” of the Court; after all, the Chamber judgment whereby the given inadmissibility was found has never become final.