CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 avril 2015

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Their names, year of birth and place of residence appear in the first appendix to this report. The applicant Mr Victor Tudor acted as their representative. 2.     The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3.     The Romanian Greek-Catholic Association was granted leave to intervene in the proceedings. A.     The circumstances of the case 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Origins of the case 5.     On 19 January 2005 Mr Victor Tudor, who at that time was the Orthodox priest of the Pesceana parish, decided together with 358 members of his parish, to join the Eastern Catholic Church (“the Greek ‑ Catholic Church”). The next day they were recognised as a parish by the Greek ‑ Catholic Archdiocese of Blaj ( Mitropolia Româna Unită cu Roma Blaj ) and Mr   Tudor was ordained priest of that parish. The applicant parish thus became legitimate under the applicable laws. 6.     On 22 January 2005 the Pesceana local authorities refused to recognise the new parish, denied its members access to the village church and cemetery, and advised the Râmnicul Orthodox Diocese ( Episcopia Râmnicului ) to take appropriate action against Mr Tudor. On 29 March 2005 the local council reiterated its decision. On 3 June 2005 they also refused to allow the Greek-Catholic parish to hold its religious gatherings in a deserted school building. 7.     On 24 January 2005 Mr Tudor resigned from his previous position in the Orthodox Church. He was defrocked the next day, and the Orthodox Church sent a new Orthodox priest to the local parish. 8.     On 27 January 2005 the Râmnicul Orthodox Diocese lodged a request, by means of the urgent procedure ( ordonanţă preşedenţială ), concerning ownership of Church property. In a final decision of 8 March 2005 the Vâlcea County Court ordered Mr   Tudor to surrender the property belonging to the Orthodox Church to the plaintiff and to stop using the village church and cemetery for Greek-Catholic practices. 9.     On 24 February 2005 the Ministry of Culture and Religious Affairs asked the Greek ‑ Catholic archdiocese to re-examine its decision to ordain Mr Tudor as a Greek-Catholic priest in Pesceana. They suggested that his withdrawal might facilitate the dialogue between the two parishes in the community. 10.     On 27 May 2005 the Pesceana local authorities transferred ownership of the cemetery to the Orthodox parish. On 17 June 2005 they delivered the title deeds for the land to the Orthodox parish. However, on 10   October 2008 in proceedings instituted by the Pesceana local authorities against the Greek-Catholic Church, the Vâlcea County Court declared the deeds null and void. 11.     Several members of the Pesceana Greek-Catholic parish lodged a complaint against the local authorities and the Orthodox community with the National Council against Discrimination. The council examined the administrative decision of 22 January 2005 and noted that the plaintiffs had been denied access to the village church and cemetery. It concluded that the local authorities had breached the applicants’ freedom of conscience and disregarded their religious autonomy. Consequently, the Council issued a warning to the local authorities. It gave its decision on 31   August 2005. 12.     The conflicts between the two religious communities escalated. The Orthodox community prohibited the Greek-Catholics from entering the cemetery to bury their dead or honour their memory. According to the applicants, they suffered increased pressure to revert to Orthodoxy: they were asked to sign a declaration renouncing their Catholicism if they wanted the local authorities to deliver any official service; they received unjustified fines; some of them were threatened with dismissal from their jobs; and the local school organised a public demonstration against the Catholic Church. Some 300 individuals gave written statements that they had been misled by Mr Tudor into changing their faith. Some people lodged criminal complaints against those who had allegedly threatened them in order to force them to revert to Orthodoxy. The Greek-Catholic archdiocese intervened in their favour by engaging in a written exchange with the local authorities. It was, however, to no avail. 13.     Several criminal complaints were also lodged by both parties to the conflict, mainly concerning incidents that occurred in 2005 and 2006. 2.     Requests for access to the village cemetery (a)     The urgent procedure ( ordonanţa preşedenţială ) 14.     On 21 March 2005, using the urgent procedure, the applicant parish sought to compel the Orthodox parish to allow Greek-Catholics the right to use the village cemetery to bury their dead and for memorial services. 15.     On 6 September 2005 the Drăgăşani District Court found in favour of the applicant parish. On 19 January 2006 the Vâlcea County Court upheld the decision, which thus became final. The courts held that the applicant parish had been recognised by the Greek-Catholic Church and was thus legally constituted. It reiterated that, according to the Religious Freedom Act, as the village had only one cemetery, all individuals had to have access to the burial grounds, irrespective of their faith. 16.     As the Greek-Catholics continued to be denied access to the cemetery by the Orthodox community, the applicant parish sought the services of a bailiff. On 3 February 2006 the County Court issued an enforcement order concerning the decision of 19 January 2006. 17.     On 13 February 2006 the bailiff notified the Pesceana Orthodox Church and the Râmnicu Orthodox Diocese of his intention to enforce the above decision and sought assistance from the police. On 18 and 20   February 2006 a group of persons from Pesceana and the neighbouring villages did not allow the applicants, the bailiff or the police to enter the cemetery. Not even the police intervention on behalf of the applicants was able to deter the opposing parish. According to the bailiff’s report, the new Orthodox priest refused to assist him and the Greek ‑ Catholics of the village in the enforcement attempts or to talk with his followers. He claimed that he was engaged in other religious duties at that time. As the two parties became violent, the bailiff stopped the proceedings in order to avoid any escalation. 18.     The Orthodox parish objected to the enforcement proceedings and on 22 February 2006 the Drăgăşani District Court temporarily suspended the enforcement order until a final ruling had been given on the objection. 19.     On 16 May 2006 the Drăgăşani District Court held that the decision of 6 September 2005 was enforceable until the litigation concerning ownership of the cemetery had been examined (see paragraph   10 above). It nevertheless maintained the suspension of the enforcement order until a final ruling had been given on the objection. The decision became final on 3 November 2006, when the Vâlcea County Court dismissed an appeal lodged by the applicants. (b)     The normal procedure 20.     On 19 May 2006 several members of the applicant parish (see appendix two below) lodged an action against the Orthodox parish and the Râmnicu Orthodox Diocese seeking access to the cemetery to bury their dead and perform the relevant rituals. 21.     On 14 October 2008 the Vâlcea County Court partially allowed the request. A final ruling in the case was given on 26 February 2009 by the Piteşti Court of Appeal. The courts took note of the fact that the title deeds delivered to the Orthodox parish had been declared null and void. Using the same arguments as those advanced by the County Court under the urgent procedure, the courts recognised the rights of the Greek-Catholic members of the community to be buried in the Greek-Catholic tradition. The Court of Appeal further decided that persons who embraced the Greek-Catholic faith would not be allowed to perform Greek-Catholic rituals for deceased members of their families who had been buried according to the Orthodox tradition. In so deciding, the Court of Appeal considered that the person’s own convictions at the time of death should be subsequently respected by the family in the choice of rites. 3.     Current situation 22.     After communication of the application, the Government sought information about the current situation in Pesceana. The State Secretary for Religious Affairs approached the Râmnicu Orthodox Diocese, which informed him that Greek-Catholics had free access to the cemetery and that in 2007 the Pesceana Greek-Catholic parish had received 30,000 Romanian Lei from the State budget in order to build a church. 23.     The Pesceana mayor’s office informed the Government that neither religious community was being obstructed from using the cemetery and that the police had recorded no incidents in recent years. Statements by the two local priests were attached to the mayor’s report. The Orthodox priest explained that the Greek-Catholic priest was allowed into the cemetery in order to bury the deceased members of his community, but accused him of performing Greek-Catholic rituals for deceased Orthodox believers. Mr Tudor declared that their access was still restricted and that pressure had been exerted on members of the Greek-Catholic community to resign from their Church and join the Orthodox Church. 24.     In 2011 the Orthodox priest lodged a criminal complaint against a Greek-Catholic believer who had buried her deceased parent in the village cemetery according to Greek-Catholic rites. The prosecutor decided not to prosecute, reiterating that the Greek-Catholic believers had a right, which had been recognised by a court order, to use the cemetery; the prosecutor also noted that no damage had been done to the neighbouring graves belonging to Orthodox families. Another burial took place in 2011 and allegations of police brutality against Greek-Catholic believers in the aftermath of the religious service were dismissed as unfounded by the prosecutor. 25.     It appears that the Pesceana local authorities have recently decided to create a new cemetery for all faiths. B.     Relevant domestic law and practice 26.     Excerpts from the relevant domestic law concerning the enforcement of final judgments are given in Bogdan Vodă Greek-Catholic Parish v.   Romania , no. 26270/04, §§ 31-32, 19 November 2013. 27.     The relevant domestic law and practice concerning the general situation of recognised religious groups, and in particular the situation of the Greek-Catholic community, are described in Remetii pe Somes Greek ‑ Catholic Parish v.   Romania (dec.), no. 13073/03, §§ 11-12, 9   September 2014. COMPLAINTS 28.     Invoking Article 6 § 1 of the Convention, the applicants complained that they had not been allowed to use the village cemetery, despite being in possession of a final decision giving them right of access to the grounds. They also complained about the domestic courts’ decision not to allow them to practice Greek-Catholic rituals for deceased members of their families who had been buried according to Orthodox rites. 29.     The applicants complained under Article 9 of the Convention that the decisions and actions of the domestic authorities had breached their freedom of conscience and religion and that, as a consequence, they could not effectively practice their religion. In particular, they argued that, despite court decisions in their favour, they could not access the cemetery to bury their dead. Furthermore, they were not allowed to pay respects to their dead in accordance with the rites of their religion. 30.     Lastly, they alleged that they were victims of discrimination based on their religion. They relied in substance on Article 14 of the Convention. THE LAW A.     On victim status 31.     The Government argued that forty-eight of the applicants listed in Appendix 1 and two of the applicants listed in Appendix 2 lacked victim status as they had not taken part in the domestic proceedings aimed at securing their right to use the village cemetery. In addition, some of them had not designated Mr Tudor as their representative, while others appeared to have resigned from the Greek-Catholic Church. 32.     The applicants in question expressed their wish to pursue the current application before the Court and reiterated that they had all been affected by the authorities’ attitude towards the Greek-Catholic community, which had breached their rights guaranteed by the Convention. 33.     The Court notes that the Government have contested the locus standi of several of the applicants in the present case. However, it does not need to decide on the matter as, in any case, the application is inadmissible for the reasons given below. B.     On the well-foundedness of the application 34.     Relying on Article 6 § 1, and Articles 9 and 14 of the Convention, the applicants’ main complaint was that they had not been allowed to use the cemetery because of opposition from the Orthodox community, despite a court order recognising their right to do so. They also complained about not being allowed to pay respect to their deceased relatives. The relevant Articles read as follows: Article 6 (right to a fair hearing) “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 9 (freedom of thought, conscience and religion) “1.     Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.     Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Article 14 (prohibition of discrimination) “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 parties’ arguments 35.     Concerning access to the cemetery, the Government contended that except for the period when the objection to the enforcement order lodged by the Orthodox parish had been under examination (that is to say, from 22   February to 3 November 2006), the applicants had been entitled to request that the decision favourable to them be enforced. However, they had failed to do so. Moreover, they were currently using the cemetery without any restrictions. As the party with an obligation to comply with the court order was a private entity, the State could not be held responsible for non-compliance, which had resulted exclusively from the strong opposition from within the community. The State’s agents had done everything within their power to assist the applicants throughout the enforcement proceedings. 36.     The Government further pointed out that in its decision of 26   February 2009 the Court of Appeal had examined thoroughly the applicants’ request to be allowed to perform Greek-Catholic rituals for their deceased family members who had been buried according to the Orthodox tradition. The decision had been based on the domestic law, which accepted that the religious choices made by a person during his life should, to a certain extent, be respected even after death. The Government averred that the Court of Appeal had struck a fair balance between the competing rights at stake. 37.     The Government denied that the applicants had been discriminated against. They reiterated that the applicants had received funds to build a new church and the local authorities had decided to create a new cemetery for all faiths. 38.     The applicants maintained that the Orthodox parish had continued to prohibit their access to the cemetery, despite final court decisions recognising their right to use it. They alleged that members of the Greek ‑ Catholic community were being harassed and threatened solely because of their religious affiliation. 39.     The third parties made a comprehensive presentation of the situation of the Greek-Catholic Church from its creation in 1689 to date, with particular emphasis on the evolution of its relations with the Orthodox Church. 2.     The Court’s assessment (a)     General principles 40.     The Court reiterates that enforcement of a final judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Hornsby v. Greece , 19 March 1997, §   40, Reports of Judgments and Decisions 1997 ‑ II). However, a delay in the enforcement of a judgment may be justified in particular circumstances (see Burdov v. Russia , no. 59498/00, § 35, ECHR 2002 ‑ III) and the right of “access to court” does not impose an obligation on a State to enforce every judgment of a civil character without having regard to the particular circumstances of the case (see Sanglier v. France , no. 50342/99, § 39, 27   May 2003). 41.     Furthermore the Court makes reference to the principles established under Article 9 of the Convention concerning, in particular, the scope of the limits imposed by the States to freedom of religion and the State’s duty to remain a “neutral and impartial organiser of the exercise of various religions” (see, in particular, Kokkinakis v. Greece , 25 May 1993, §§ 31-35, Series A no.   260 ‑ A; Manoussakis and Others v. Greece , 26 September 1996, § 44, Reports 1996 ‑ IV; Bayatyan v.   Armenia [GC], no. 23459/03, §§   118-121, ECHR 2011; and Lautsi and Others v. Italy [GC], no.   30814/06, § 60, ECHR 2011 (extracts)). While religious freedom is primarily a matter of individual conscience, it also implies, inter alia , freedom to “manifest [one’s] religion” (see Kokkinakis , cited above, §   31). Religious ceremonies have their meaning and sacred value for the believers if they are conducted by ministers empowered for that purpose in compliance with these rules (see Hasan and Chaush v. Bulgaria [GC], no.   30985/96, § 62, ECHR 2000 ‑ XI). 42.     Lastly, the Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in treatment of persons in relevantly similar situations. Such 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 realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see for a more recent authority, Hämäläinen v. Finland [GC], no. 37359/09, § 108, ECHR 2014). (b)     Application of those principles to the current case 43.     Turning to the facts of the present case, the Court notes at the outset that the original dispute concerned private parties. In cases such as the present one, which necessitate actions by a private person, the State responsibility extends no further than the involvement of State bodies in the enforcement process. When the latter are obliged to act in order to enforce a judgment and they fail to do so, their inaction can engage the State’s responsibility under Article 6 § 1 of the Convention (see, mutatis mutandis , Bogdan Vodă Greek-Catholic Parish , cited above, § 45 and Cebotari and Others v. Moldova , nos. 37763/04, 37712/04, 35247/04, 35178/04 and 34350/04, § 39, 27 January 2009). 44.     The Court observes that the conflict concerning the use of the cemetery started in January 2005, when the community split into two faiths. The applicants obtained a favourable court order on 6 September 2005 and shortly thereafter instituted enforcement proceedings. The bailiff took prompt action and sought assistance from the police, which was granted. Furthermore, given the signs of violence between the two communities, the authorities correctly assessed the risk of escalation. Their decision not to continue the enforcement proceedings thus appears reasonable (see paragraph 17 above, in fine ). 45.     The Court notes the Government’s assertion that after the expiry of the stay of execution, in November 2006, the applicants did not renew their request for enforcement. The Court is ready to accept that the applicants might have been discouraged from doing so because they felt that the local authorities favoured the Orthodox community. However, they remained active in the civil litigation concerning the two communities and obtained further favourable rulings. In this context, their lack of action in enforcing the court order of 6 September 2005 or the subsequent court decision of 26   February 2009 cannot be justified. 46.     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 faiths. The applicants did not contest the reality of those measures. Despite signs of animosity between the two religious communities, it appears that the Greek-Catholics currently have access to the cemetery and that no new incidents have been reported to the authorities (see, for instance, paragraphs 13 and 22 to 24, above). 47.     In this context, the Court considers 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 organiser of the exercise of the two religions in the community (see paragraph 41 above). 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. 48.     As for the right to pay respect to the dead the Court notes that the domestic courts examined the matter thoroughly and gave reasoned decisions (see, in particular, paragraph 21 above in fine ). The Court sees no reason to depart from the interpretation given by the domestic courts to the applicable law (see García Ruiz v. Spain [GC], no.   30544/96, §   28, ECHR   1999 ‑ I). 49.     Lastly, the Court finds no indication of discrimination in the manner in which the authorities dealt with the case, in all its aspects. 50.     It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 7 May 2015.   Marialena Tsirli   Josep Casadevall Deputy Registrar   President   Appendix 1 ( List of applicants ) PAROHIA GRECO-CATOLICA PESCEANA, from Pesceana Bianca BADEA who was born in 1987, lives in Lupoaia Gheorghe BADEA who was born in 1957, lives in Lupoaia Ionela Alexandra BADEA who was born in 1989, lives in Lupoaia Maria BADEA who was born in 1960, lives in Lupoaia Marian BADEA who was born in 1983, lives in Lupoaia Gheorghe BERCEA who was born in 1952, lives in Cermegesti Niculina BERCEA who was born in 1955, lives in Cermegesti Elena BUZATU who was born in 1949, lives in Cermegesti Gheorghe BUZATU who was born in 1941, lives in Cermegesti Elena CARSTEA who was born in 1962, lives in Cermegesti Ion CARSTEA who was born in 1959, lives in Cermegesti Alexandru Gabriel CIUCA who was born in 1989, lives in Băile Olănești Maria CREVENICEANU who was born in 1945, lives in Lupoaia Ana CRUCERU who was born in 1949, lives in Lupoaia Dumitru Cristian CRUCERU who was born in 1951, lives in Lupoaia Lucian CRUCERU who was born in 1938, lives in Lupoaia Lucretia CRUCERU who was born in 1969, lives in Lupoaia Nicolae CRUCERU who was born in 1965, lives in Lupoaia Nicolae Iulian CRUCERU who was born in 1993, lives in Lupoaia Constantina DRAGOMIR who was born in 1938, lives in Lupoaia Adriana DUTA who was born in 1985, lives in Râmnicu Vâlcea Dumitru FULGESCU who was born in 1960, lives in Lupoaia Gheorghita FULGESCU who was born in 1956, lives in Cermegesti Marcel FULGESCU who was born in 1947, lives in Lupoaia Marin FULGESCU who was born in 1935, lives in Lupoaia Sandel FULGESCU who was born in 1955, lives in Lupoaia Traian FULGESCU who was born in 1952, lives in Cermegesti Victoria FULGESCU who was born in 1967, lives in Râmnicu Vâlcea Zenovia FULGESCU who was born in 1934, lives in Lupoaia Daniela GAINA who was born in 1968, lives in Cermegesti Andreea Ioana IBRAC who was born in 1989, lives in Lupoaia Cristina IBRAC who was born in 1990, lives in Lupoaia Elena IBRAC who was born in 1943, lives in Lupoaia Elena IBRAC who was born in 1969, lives in Lupoaia Gheorghe IBRAC who was born in 1942, lives in Lupoaia Ion IBRAC who was born in 1949, lives in Lupoaia Petre IBRAC who was born in 1961, lives in Lupoaia Elena MANDA who was born in 1940, lives in Cermegesti Ilie MANDA who was born in 1940, lives in Cermegesti Elena MATEI who was born in 1963, lives in Lupoaia Ioan NEDELUT who was born in 1962, lives in Cermegesti Ioan Mugurel NEDELUT who was born in 1987, lives in Cermegesti Roxana Catalina NEDELUT who was born in 1992, lives in Cermegesti Elena POPA who was born in 1974, lives in Cermegesti Ilie POPA who was born in 1974, lives in Cermegesti Eugenia POPESCU who was born in 1952, lives in Cermegesti Sofronie POPESCU who was born in 1947, lives in Cermegesti Constantin PREDESCU who was born in 1934, lives in Lupoaia Toma PREDESCU who was born in 1951, lives in Cermegesti Valerica PREDESCU who was born in 1956, lives in Cermegesti Lucian PREOTEASA who was born in 1961, lives in Lupoaia Maria SPATARU who was born in 1938, lives in Lupoaia Victor TUDOR who was born in 1964, lives in Cermegesti Ilie VILAU who was born in 1953, lives in Lupoaia Lucretia VILAU who was born in 1956, lives in Lupoaia Constantin VOINEA who was born in 1973, lives in Lupoaia Constantin Catalin VOINEA who was born in 1993, lives in Cermegesti Doina VOINEA who was born in 1975, lives in Lupoaia Elena Monica VOINEA who was born in 1983, lives in Cermegesti Ioana VOINEA who was born in 1958, lives in Cermegesti Maria VOINEA who was born in 1944, lives in Lupoaia Vasile VOINEA who was born in 1956, lives in Cermegesti Ionel ZAULET who was born in 1969, lives in Cermegesti Maria ZAULET who was born in 1971, lives in Cermegesti Appendix 2 (A pplicants who lodged the action before the domestic courts in order to be allowed access to the village cemetery ) Gheorghe BADEA Ion CÂRSTEA Maria CREVENICEANU Lucretia CRUCERU Dumitru FULGESCU Gheorghita FULGESCU Marin FULGESCU Nicolae FULGESCU Traian FULGESCU Victoria FULGESCU Elena IBRAC Elena MATEI Ion MATEI Vasile NEAGU Constantin PREDESCU Nicolae SPATARU Octavian TUDOR Victor TUDOR Lucreția VILAU Ioana VOINEA