Andreea Popescu, ECLJ, 2 June 2015
To understand the situation of the property rights of the Romanian Greek-Catholic parishes before the European Court of Human Rights, a brief historical and legal presentation is necessary (I.), before presenting the various property cases of those parishes (II.).
I. The historical and legal situation of the Greek-Catholic Church before and after the Communist regime
Romanian Christianity is of a Latin origin and it is only after the Christianization of Bulgarians and the decisions of the 8th Ecumenical Council (879/880) that Romanians were forcedly attached to the Patriarchate of Constantinople. After this date, the Romanian culture was entirely under the Slavic and Greek influence to the point that nothing was written or published in Romanian. 1/5 of the lands were also owned by Slavic and Greeks. This lasted in Transylvania until 7 October 1698, when 38 Archpriests decided to return to the Romanian religious and cultural roots and to remake the unity with Rome by instituting the Greek-Catholic Church.
On 23 August 1944 the Soviet Army occupied Romania and on 6 March 1945 the Communist Government took the power. In June 1947, the Moscow Patriarch, while visiting the Romanian Patriarch in preparation of the March 1948 Pan Orthodox Congress, expressed the wish to end with the Romanian Greek-Catholic Church, in the same way as he ended with the Ukrainian Greek-Catholic Church which was dissolved and integrated in the Russian Orthodox Church in 1946. After the proclamation of a new Constitution of Romania in April 1948, which conferred to the Communist Party the role of organizer of the entire Romanian social life, the Romanian state, by the law-decree no. 51 of 19 July 1948, denounced unilaterally the Concordat concluded with the Holly See on 10 May 1927 and ratified on 12 June 1929.
On 4 August 1948 a new law of cults was promulgates by the law-decree no. 177/1948 which stipulated inter alia the reduction of the number of Greek-Catholic dioceses from 5 to 2 (Article 22), the hierarchical submission of the clergy to the state (Articles 21, 25 and 27) and the transfer of the faithful and of the properties of the Church to the patrimony of the Orthodox Church (Articles 36 and 37).
Various joint actions of orthodox and communist government took place to recruit Greek-Catholic priests to a movement of annihilation of this Church. At the end of September 1948, the local authorities spread the false rumor that on the 1st October 1948 an assembly will take place in Cluj presided by the Greek-Catholic Bishop of Cluj-Gherla, Iuliu Hossu, and that the communities should designate their priests to represent them and to sign the “return” to the Orthodox Church. Facing the refusal of the hierarchs and of the priests, the authorities managed to obtain by blackmail and torture 450 signatures. On 1 October 1948 took place the assembly of the “38 delegates”  who signed the “return” to Orthodoxy, on 3 October being received by the Patriarch. Between 23 and 29 October 1948 all the Greek Catholic Bishops together with the clergy, the monks, the nuns and some of the faithful were arrested. Their churches, parish houses, lands and other possessions where taken by force. On 1 December 1948, by the law-decree no. 358/1948 on the establishment of the legal situation of the former Greek-Catholic cult, this Church was considered dissolved and its possessions transferred in the state’s patrimony, except the properties of the parishes which were transferred in the patrimony of the Orthodox Church: “After the return of the local communities of the Greek-Catholic cult (parishes) to the orthodox cult and according to Article 1 of the law-decree no. 177/1948, the central and statutory organizations of this cult (metropolis, bishoprics, foundations, associations and any other kind of institutions and organizations) cease to exist” (Article 1). “The movable and immovable patrimony belonging to the organizations and institutions mentioned in Article 1, except the properties of the former parishes, enter the state property which will enter immediately in their possession. A joint ministerial commission (…) will decide on the destination of those goods; it can give them partly to the Orthodox Church (…)” (Article 2).
At this date, the Greek-Catholic Church was composed by 2 million faithful, 5 bishops and an auxiliary bishop, 5 cathedrals, 3 theological academies, more than 1 900 parishes, more than 2 600 churches, 1 834 priests, 9 monastic orders having 28 monastic houses, 424 monks and nuns, 20 high schools for boys having 3 352 interns, 14 high schools for girls having 2 800 interns, 4 asylums and orphanages, 20 weekly and monthly reviews, 5 typographies. According to the 1930 population census, 12% of Romanians were Greek-Catholic.
After the fall of the communist regime in December 1989, the law-decree no. 9/1989 repealed the law-decree no. 358/1948. By the law-decree no. 126/1990 the Greek-Catholic Church was officially recognized by the state. Its Article 3 established that the legal situation of the properties of the Greek-Catholic Church will be decided by joint commissions composed by clergy representatives of the two Churches who will take into account “the will of the faithful of the community that owns the properties”. The Greek-Catholics sought to recover the exclusive property and the possession of their churches that belonged to them before 1948 or the shared utilization of those churches with the orthodox, by gracious attempts or by bringing cases to court on the basis of the general law (action of recovery of property).
II. Various property cases before the ECHR
1. Access to court cases
Fact is that the joint commissions, either had never been constituted or they had never come to a result, as the Orthodox refused to return the churches to the Greek-Catholics or to share their utilization. Only the Orthodox bishop of Timisoara, Metropolitan Nicolae Corneanu, returned almost all the properties that belonged to the Greek-Catholics.
Therefore, Greek-Catholics brought civil actions to courts attempting to recover their property rights over the churches, parish houses and lands. Nevertheless, until the judgment of 17 February 1999 of the High Court of Justice, the tribunals declared the applications inadmissible, judging that the Greek-Catholics should have address themselves before to the joint commissions, according to Article 3 of the law-decree no. 126/1990 and only afterwards to the courts. The tribunals also decided that in any case, their competence is limited to the assessment of the fulfillment of the criteria established by the law-decree no. 126/1990, especially whether “the will of the majority of faithful” was respected. The high representatives of the two Churches met several times to discuss this issue, the Orthodox insisting each time that the Greek-Catholics should renounce trials and continue the local dialogue. On 12 February 2002, the Patriarch of the Orthodox Church, Teoctist, addressed a letter to the Minister of Justice recalling the principles of Church autonomy and ecumenical dialogue, indicating that the joint commissions were competent to solve the issue of properties and not the courts. As their civil actions were declared inadmissible, the Greek-Catholic parishes addressed the ECHR, considering that their right to access to court has been violated (Article 6 of the Convention) and that they were discriminated in the exercise of this right (Article 6 in conjunction with Article 14 of the Convention). Judging the situation of the lack of legislation on the access to court in Greek-Catholic Parish Sambata Bihor v. Romania (no. 48107/99) case, the Court sanctioned it ten years after the introduction of the case to the Court by a judgement of 12 January 2010 (§§ 71- 75 and 81). The Court noted that the restitution of religious buildings is an issue of a relatively large scale and socially sensitive. Further, it held that the general exclusion of the competence of the tribunals to settle such disputes is in itself contrary to the right to access to court, especially since the system of the prior conflict resolution procedure establish by the law n° 126/ 1990 (the joint commissions) was not sufficiently regulated and its judicial control inadequate (§§ 66-75).
On 27 April 2010, the ECHR accepted a friendly settlement regarding the same issue in Greek-Catholic Parish Ticvanul Mare v. Romania (no. 2534/02).
Meanwhile, by a law-decree no. 64 of 13 August 2004, Article 3 of the law-decree no. 126/1990 was modified as to allow the interested party to bring an action to justice based on the general law, if the joint commissions could not find a solution to solve the property problem. The law no. 182/2005 of 13 June 2005 also provided that an action could be brought in justice only if the joint commissions, after being convoked in writing by the interested party, did not meet or its result was not satisfactory. Therefore, after 2005, the Greek-Catholic parishes had the possibility and had to introduce an action before the tribunals in order to recover their property rights, even if previously they introduced such actions and they were declared inadmissible. Nevertheless, due to divergence of case-law, not all the Greek-Catholic parishes brought such actions before the tribunals after 2005 and they were sanctioned before the ECHR for that, even if they introduced their applications before the Court before that date (in 2002 and 2003) and their applications were still pending, twelve years after their introduction. Despite of that, their applications were declared inadmissible for non-exhaustion of domestic remedies, the Court considering that since 2005 they had to bring an action or a new action before the national tribunals. It is the case of Greek-Catholic Parish Prunis v. Romania (no. 38134/02), decision of 8 April 2014 (§§ 37- 41) and of Greek-Catholic Parish Remeti pe Somes v. Romania(no. 13073/03), decision of 9 September 2014 (§§ 30-33) in which the Court held that after 2005 the applicants had an accessible remedy, as they can introduce by themselves a civil action which is not imprescriptible and as the tribunals analyze the merits of such cases, according to the existing case-law.
Currently, there are a few more pending cases before the ECHR concerning the issue of access to court- Greek-Catholic Parishes Comana de Jos and Sisesti v. Roumanie (nos. 35795/03 and 32419/04) and Greek-Catholic Parish Sura Mica (Sibiu) v. Roumanie(no. 46347/08)-, the civil actions of the applicants being declared inadmissible by the internal tribunals as they did not exhausted the prior procedure before the joint commissions.
On 19 May 2015, the ECHR adopted a judgment in Greek-Catholic Parish Lupeni and others v. Romania case (no. 76943/11) founding only a violation of the right to trial within a reasonable time (Article 6 of the Convention) for 10 years and three weeks of length of proceedings for three degree of jurisdiction attributable to the national authorities (§§ 98-99). The complaints related to the access to court and fair trial (Article 6 of the Convention), to the property rights (Article 1 of Protocol no. 1 to the Convention) and to the freedom of religion (Article 9 of the Convention) of the applicants were unfortunately rejected as ill-founded.
The case concerns an action of recovery of the exclusive property and possession of a church that before its abusive transfer to the Orthodox Church in 1948 belonged to the Greek-Catholic Parish of Lupeni. Although this action was based on the general law (Article 480 of the Civil Code, as interpreted by the doctrine and the case-law), according to which the titles of property of the parties should be compared, the most characterized of them prevailing, by judgments of 11 June 2010 and 15 June 2011 respectively, the Court of appeal and the High Court rejected the action applying the criterion established in the special law (law-decree n° 126/1990), according to which the “will of the faithful of the local community owning the disputed properties” should be taken into account, without comparing the two titles. In the applicants’ opinion, the application of this criterion by the internal courts infringed their right to court and to a fair trial, their right to property and their right to freedom of religion, being discriminated in the exercise of those rights, and they addressed their complaints to the ECHR.
Regarding the right to access to court, the applicants considered that by applying the criterion of the “will of the faithful of the local community owning the disputed properties” the tribunals deprived them of their right to access to court. Nevertheless, the Court concluded to a non-violation of this right, as it noted that the internal courts judged the case of the applicants on the merits by applying the criterion of the “will of the faithful” and taking into account concrete elements of fact (the historical and social context, the financial contribution of the parties for the construction of the church, the manner in which the church was used in the past) and did not refer only to the statistics. The Court also observed that all the points raised by the applicants were assessed by the internal courts which delivered reasoned decisions (§ 71).
As to the principle of the legal certainty, the applicants complained that the application of the criterion of the “will of the faithful” to their action for the restitution of their property was unforeseeable, as the case-law of the High Court (as well as the one of other tribunals) was divergent after 2005 and only between 2012 and 2013 the case-law became more foreseeable regarding the application of this criterion. Moreover, they alleged that 24 years after the adoption of the law-decree n° 126/1990, it was still not clear whether in cases regarding claims for recovery of property of churches the tribunals should apply the dispositions of this law combined with the ones of the general law. In this situation, the applicants considered themselves disadvantaged. Assessing this complaint, the ECHR found no violation of the Convention. To arrive to this conclusion the Court noted that it is true that the tribunals in Romania had to assess cases although they did not have a clear and foreseeable legal framework and that that situation led to different conclusions for the same legal issue: some tribunals judged the cases applying the general law (Article 480 of the Civil Code - action of recovery of property), other tribunals applied the rules of the special law (the criterion of the “will of the faithful”) (§ 86). Nevertheless, the Court held that, even though the contested judgments of the internal tribunals were adopted before the unification of the case-law, the divergent case-law cannot be considered in breach of the principles of foreseeability and legal certainty, as long as the internal legal system was able to put an end to this situation. Moreover, the solution adopted in the case of the applicants (by the judgments of the Court of appeal of 11 June 2010 and of the High Court of 15 June 2011) was similar to the one adopted one year after by the Constitutional Court (by the decision of 27 September 2012) and to the one of the majority of the High Court (by decisions adopted since January 2011 to February 2013) (§ 89). Furthermore, the ECHR held that although from the pieces of evidence produced by the parties it was difficult to establish for how long the divergent case-law persisted, given the complexity and the social impact of the issue, it cannot constitute a breach of the Convention. Also, the Court considered that at issue was not a divergent interpretation of a legal provision, but a divergence in the way of applying the general law and the special law (§ 90).
With reference to the prohibition of discrimination in the exercise of the right to access to court, the applicants asserted that the application by the internal courts of the criterion of the “will of the faithful” to establish the legal situation of the church was discriminatory and rendered illusory their right to access to court. They affirmed that “the faithful of the local community owning the disputed properties” will always be Orthodox, which is the majority religion of the country. The Court, stating that there is a difference of treatment, although the two Churches found themselves in a similar situation regarding their claim of property over the church (§ 115), assessed whether this difference of treatment had an objective and reasonable justification. Firstly, it agreed with the Romanian Government that the disputed criterion aimed to protect the faithful allowing them to express their will regarding their religion and the use the church (§ 117). Secondly, the Court noted that the national tribunals weighted the interests at stake taking into account concrete factual elements (regarding the construction and the use of the church during the time, the prohibition of the Greek-Catholic Church, the obligation of the faithful to “pass” to Orthodox Church and their choice after the rehabilitation of the Greek-Catholic Church) and adopted reasoned judgments in conformity with the decision of the Constitutional Court (§ 118). Thirdly, the ECHR, taking into account the decision of the Constitutional Court which validated the disputed criterion for reasons of respect for the freedom of the religious communities and of others, considered that the state respected the autonomy of the religious communities by affirming the right for the communities to decide themselves on the right to property over their churches (§ 119). For those reasons, the applicants complaint was rejected (§ 121).
Regarding the prohibition of discrimination in the exercise of the right to freedom of religion, the applicants alleged that the manner in which the internal court decided their case and their refusal to restitute their church constituted a breach of their right to manifest their religion in their church. They also complained that they have no church for the exercise of their religion and that they had to pay a rent to another church for this end. The ECHR found that there was no interference with the right of the applicants in this respect. To arrive to this conclusion, it noted that the law-decree n° 126/1990 that recognized the Greek-Catholic Church did not provided for the automatic restitution of its properties (§ 135). Further, the Court observed that the refusal of the tribunals to restitute their church did not prevent the applicants to practice their religion or to build a new church (§ 136). Moreover, the reasoning of the High Court in this respect was justified, taking into account the social and historical context of the case (§ 137) and not founded on elements of religious affiliation (§ 139). Lastly, Article 4 of law-decree n° 126/1990 provides on the state aid for the construction of new churches, the applicants still having the possibility to benefit from such aid, as other Greek-Catholic communities had (§ 138).
As to the prohibition of discrimination in the exercise of the right to property, the applicants complained that the manner in which the internal tribunals judged their case, applying the criterion of the “will of the faithful” and not the general law, infringed their right to property. Moreover, they denounced this criterion as discriminatory. The Court rejected this complaint, as the applicants did not have a “possession” or a “substantive interest” for the purpose of this provision. The Court noted, on one hand, that the internal tribunals considered that the applicants did not fulfill the requirements established by the law to see their right to property recognized (§ 153). On the other, the Court held that at no moment the national authorities adopted a normative or an administrative act mentioning the restitution of the church of the applicants (a contrario Catholic Achidiocese of Alba-Iulia v. Romania, n° 33003/03, judgment of 25 September 2012, §§ 82-88). Moreover, the Court decided that divergent case-law related to the applicable law on the issue of the restitution of the churches does not give rise to a “substantive interest” (§ 154). Regarding the allegation of discrimination, the Court reiterated that neither the criterion, nor its application in this case leaded to a discrimination of the applicants (§ 158).
Adopting this judgment, the ECHR validated the manner in which the internal tribunals had judged this case, applying the criterion of the “will of the faithful of the local community owning the disputed properties” to establish the right to property over the church. And this, although there was a divergent case-law at national level on whether such cases should be judged applying the above-mentioned criterion or/and together with the general law, according to which the two property titles should be compared. This situation affected the applicants. Moreover, the transmission of the right to property operates only in the framework of the Civil Code and not according to the “will of the faithful”. Thus, the establishment of the right to property of the Greek-Catholic parishes over their churches depends on the “will of the faithful” and not on the existence of a title of property. It is a legitimation of an abusive transfer of property. Moreover, as the majority of the faithful will always be Orthodox, especially after 42 years of the prohibition of the Greek-Catholic Church in Romania, the Greek-Catholics will never be able to recover their properties, although the churches and parishes were built on their expenses.
Currently, there are two more communicated pending cases on the issue of the application by the internal tribunals of the criterion of the “will of the faithful” to establish the right to property over a church: Greek-Catholic Parish Glod, Greek-Catholic Archdiocese Orastie and Greek-Catholic Parissh Orastie v. Romania (nos. 53528/07 and 32729/12).
3. Application of the repealed law-decree no. 177/1948 cases
On 11 January 2007, after the publication in the Official Gazette of the law no. 489/2006 on the freedom of religion, the law-decree no. 177/1948 was abrogated. The successive laws on the restitution of properties nationalized during the communist regime, including Article 1 § 1 of the law no. 247/2005 of 19 July 2005, provided that “the legal status of the worship buildings will be regulated by a special law”. Until now, no such law proposal or adoption of such a law was made. Yet, some internal tribunals, although the law-decree no. 177/1948 was abrogated, continued to apply its Article 37 to pending trials regarding property rights of Greek-Catholic parishes. It is the case of Greek-Catholic Parish Dej v. Romania, currently pending before the ECHR (case communicated to the Romanian Government on 14 February 2014), in which, by a judgment of 26 March 2007, the Court of appeal of Cluj applied Article 37 of decree no. 177/1948. Article 37 reads as follows: “If at least 10% of the number of the local faithful of a religious community passes to another religious community, the first one losses in favor of the second one a part of its patrimony, proportionally with the number of the faithful that left. If those that left the community are the majority, the church and its annex buildings belong by law to the local religious community embraced by the faithful. If those that went from a religious community to another represent at least 75% of the faithful of the abandoned local community, the entire patrimony will be transferred by law to the adopted religious community (…).” Thus, considering that the legal status of the church was governed by this Article and depended on the number of the faithful belonging to a local religious community, the Court of appeal rejected the civil action of the parish. It noted that in 2002, 94, 93% of the population was Orthodox and 5, 07% Greek-Catholics.
4. Non-execution of final judgments cases
Other cases, regarding the non-execution of final judgments recognizing the right to use the local church and cemetery and the freedom of religion of the Greek-Catholic parishes, were judged by the ECHR. In the case of Bogdan Voda Greek-Catholic Paris v. Romania (no. 26270/04), by a judgment of 19 November 2013, the Court found a violation of Article 6 of the Convention (access to court) because of the non-execution of a final judgment of 29 January 1998 by which the Orthodox parish was obliged to allow the Greek-Catholic parish to use the “old church” for daily religious services, church that before 1948 belonged to the Greek-Catholic Church. The attempts of the Greek-Catholics to execute the judgment were unsuccessful, as around 300 Orthodox peasants, together with their local priest, protested violently, the local authorities, although “were equipped with adequate and sufficient measures, they did not act diligently and in due time to assist the applicant parish in execution of the judgment in its favor” (§§ 46-50).
On the contrary, in the case of Greek-Catholic Parish Pesceana and others v. Romania (no. 35839/07), by a decision of 14 April 2015, the ECHR concluded to a non-violation of articles 6 (access to court), 9 (freedom of religion) and 14 (non-discrimination) of the Convention (§§ 44-49). The case concerns the non-execution of two final judgments (6 September 2005 and 26 February 2009) by which the applicants, Greek-Catholics (former Orthodox), were allowed to use the village cemetery and the refusal, by the judgment of 26 February 2009, to allow them to practice Greek-Catholic rituals for deceased members of their families who had been buried according to Orthodox rite. To arrive to a non-violation conclusion, the Court noted on one hand that the applicants, since November 2006, when the stay of execution expired, did not renew their request for enforcement of the two final decisions (§ 44-45). On the other hand, it observed that “the authorities took steps to accommodate the newly formed religious community by allocating funds to build a church and by creating a new cemetery for all faith. (…) the Greek-Catholics currently have access to the cemetery and that no new incidents have been reported to the authorities” (§ 46). Therefore, the Court held that “the State authorities acted diligently, with adequate means and in due time to assist the applicants. In addition the State duly complied with its obligation to act as a neutral and impartial organizer of the exercise of the two religions in the community. However, the applicants did not correctly avail themselves of remedies at their disposal, thus failing to assert both their right of access to court and their right to freedom of religion” (§ 47). Regarding the right to pay respect to their dead, the Court considered that the interpretation of the national courts was reasoned (§ 48).
Source of information on the historical data: Ioan M. Bota and Tertulian Langa, “Scurta informare cu privire la fiinta si rolul Bisericii Romane Unite (“Greco-catolica”), 1992;
Article 36 of the law-decree no. 177/1948 established that: “The patrimony of the disappeared religious communities or of the communities to whom the state withdrew their recognition belongs by law to the state”. Its Article 37 stipulated: “If at least 10% of the number of the local faithful of a religious community passes to another religious community, the first one losses in favor of the second one a part of its patrimony, proportionally with the number of the faithful that left. If those that left the community are the majority, the church and its annex buildings belong by law to the local religious community embraced by the faithful. If those that went from a religious community to another represent at least 75% of the faithful of the abandoned local community, the entire patrimony will be transferred by law to the adopted religious community (…).”
They were placed under house arrest and any person who came visit them were also arrested ;
The same number of Archpriests that decided to remake the unity with Rome 250 years ago. In reality they were 37 at the assembly in Cluj and 36 in Bucharest;
According to the reply of the Romanian Gouvernment of 11 November 1997 to a letter addressed by the parliamentarian Ioan Moisin on 16 October 1997 ;
Ioan M. Bota, Tertulian Langa « Scurta informare cu privire la fiinta si rolul Bisericii romana unite (greco-catolica) » ;
Les décisions des 16 novembre 1994 et 19 mai 1995 de la Cour constitutionnelle et l’arrêt du 22 mars 1996 de la Cour suprême de Justice établissaient que les cultes pouvaient s’adresser à la justice pour récupérer leurs biens seulement après avoir passé par la commission mixte.
Les 28 octobre 1998, 29 janvier, 10 juin et 4 octobre 1999 et les 28 septembre 2000 et 27 septembre 2001.