CEDH · CASELAW;CLIN;ENG — 14 juin 2007

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Ukraine - 77703/01 Judgment 14.6.2007 [Section V] Article 9 Article 9-1 Freedom of religion Authorities' refusal to register amendments to the statute of an Orthodox parish which decided to change canonical jurisdiction: violation Facts : In 1990, the applicant parish was registered as a religious association belonging to the Ukrainian Orthodox Church of the Moscow Patriarchate. In December 1999 the Parishioners' Assembly, with 21 of its 27 members present, decided to withdraw from the jurisdiction and canonical guidance of the Moscow Patriarchate and to accept that of the Kyiv Patriarchate. An Archbishop of the Kyiv Patriarchate admitted the parish and appointed its prior. An application was lodged with the Kyiv City State Administration to register the amendments to its statute. In January 2000, the church premises were taken over by some three hundred clerics and lay people supporting the Moscow Patriarchate and electing new governing bodies for the parish, including the Parishioners' Assembly. The Parties are in dispute whether these people had been active members of the parish. The Kyiv City State Administration refused to register the amendments, as requested by the applicant, on the grounds that they contravened the parish statute. The Kyiv City Court confirmed the lawfulness of this decision, finding that the Parishioners' Assembly of December 1999 had not represented the entire religious community. The Supreme Court upheld this judgment, considering that the provisions of the parish statute concerning fixed membership had been contrary to the legislation because they had not allowed the majority of the religious group to manifest their religion by participating in the administration of church affairs. In December 2000, the Kyiv City State Administration registered the changes to the statute of the parish pursuant to the request of the new Assembly which had opted for the Moscow Patriarchate. In 2002 the applicant parish instituted proceedings seeking the return of property allegedly confiscated by the new Assembly in 2000 and compensation for damage. Their claims were rejected as unsubstantiated. The applicant parish members have been unable to use the church premises or to practise their religion in the church. Law : The circumstances where a religious organisation had been in apparent conflict with the leadership of the church to which it had been affiliated, had required an extremely sensitive, neutral approach to the conflict on the part of the domestic authorities. The refusal to register the amendments to the applicant association's statute had constituted an interferencewith its right to freedom of religion under Article   9, taken alone or read in the light of Article   11. By this interference the domestic authorities had restricted the ability of the religious group concerned, which had had no legal entity status, to exercise the full range of religious and other activities. It had also prevented it from joining the Kyiv Patriarchate as an independent religious group administering the affairs of a church which it had built and had been accustomed to worship in. This interference had been prescribed by law, as it had been based on the Freedom of Conscience and Religious Organisations Act (“the Act”). As to the “foreseeability” requirement, it compelled the respondent State to enact legal provisions that listed in detail all the possible reasons and grounds for refusing to register changes to the statutes of religious associations. However, the Act mentioned only one vague reason for such refusal: contravention of the existing legislation. Thus, the Court found it doubtful whether the provision at issue had been “foreseeable” and had provided sufficient safeguards against arbitrariness and possible abuse by the State registration body, which had unfettered discretionary powers in registration matters. The interference complained of had pursued a legitimate aim, namely the protection of public order and safety and the rights of others. The grounds given by the domestic authorities for refusing registration of the applicant association had been neither consistent, nor “relevant or sufficient”. Contrary to the findings of the domestic courts, the Act did not specify that a religious group had to be composed of all persons or all believers attending religious services of a particular church. Furthermore, it did not restrict or prevent a religious organisation from determining at its own discretion the manner in which it would decide whether to admit new members, the criteria for membership and the procedure for electing its governing bodies. The State could not oblige a legitimately existing private-law association to admit members or exclude existing members. The internal organisation of the parish had been clearly defined in the statute. The domestic authorities, including the courts, had disregarded this structure, stating that the religious group concerned had been a mere minority of the “permanent members of the religious group” composed of some 300 people, who had not been invited to attend the meeting of the Parishioners' Assembly. The courts had ignored the internal regulations of the parish, and the history of the parish administration from 1989 to 2000 and had based their findings on an unclear provision of the Act. In sum, the interference with the applicant association's right to freedom of religion had not been justified. The lack of safeguards against arbitrary decisions by the registering authority had not been rectified by the judicial review conducted by the domestic courts, which had clearly been prevented from reaching a different finding by the lack of coherence and foreseeability of the legislation. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes