FIFTH SECTION
DECISION
Application no. 9557/04
GROMADA UKRAYINSKOYI GREKO-KATOLYTSKOYI TSERKVY SELA KORSHIV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 3 May 2016 as a Chamber composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
Erik Møse,
Faris Vehabović,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 24 February 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Gromada Ukrayinskoyi Greko-Katolytskoyi Tserkvy Sela Korshiv, is a Ukrainian religious community registered in the village of Korshiv. They were represented before the Court by Mr Fedir Boychuk.
2. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1843 the local community of the Ukrainian Greek Catholic Church in the villages of Korshiv (Ivano-Frankivsk Region) built a church to the Holy Virgin Mary’s Assumption. In 1946, after the relevant territory had been joined to the USSR, the community of the Ukrainian Greek Catholic Church formally became a part of the Russian Orthodox Church. The church of the Assumption was nationalised and transferred to the Russian Orthodox Church for religious purposes.
5. In 1991 part of the former Russian Orthodox Church community members decided to create a community of the Ukrainian Greek Catholic Church (the applicant) and another part decided to join the Ukrainian Autocephalous Orthodox Church. The church of the Assumption remained municipal property, managed by the Regional State Administration. On 5 March 1991 the newly created Ukrainian Autocephalous Orthodox Church community entered into an agreement on the use of church premises with the Korshiv District Municipal Council.
6. On 15 October 1991 the Ivano-Frankivsk Regional Council decided that the Ukrainian Autocephalous Orthodox Church and the Ukrainian Greek Catholic Church communities in Korshiv could use the church jointly. They had to agree on the details of the agreement. The applicant stated that the Ukrainian Autocephalous Orthodox Church did not agree to use the church jointly and prevented the applicant from having its religious ceremonies in the church.
7. On 20 June and 2 August 2000 and on 16 May 2001 the applicant applied to the Ivano‑Frankivsk Regional State Administration, seeking to be declared owner of the church of the Assumption. Having received no answer the applicant brought civil proceedings against the State Administration.
8. On 12 February 2002 the Kyiv City Commercial Court (the “Kyiv Court”) allowed the applicant’s claim and declared it owner of the church. The Ukrainian Autocephalous Orthodox Church appealed.
9. On 13 August 2002 the Higher Commercial Court quashed the judgment on the ground that the Ukrainian Autocephalous Orthodox Church had not been informed about the proceedings. The case was remitted for examination to the Kyiv Court.
10. In the course of the new examination, the applicant brought additional claims seeking to annul the agreement of 5 March 1991 concluded by the Council and the Ukrainian Autocephalous Orthodox Church (see paragraph 5 above). The court refused to entertain this action, indicating that the applicant was free to institute separate new proceedings concerning the agreement of 5 March 1991.
11. On 22 January 2003 the Kyiv Court found against the applicant, stating that transfer of the church to the applicant would lead to an infringement of the rights of the Ukrainian Autocephalous Orthodox Church community. On 6 May 2003 the Kyiv Commercial Court of Appeal upheld this judgment. On 15 July 2003 the Higher Commercial Court rejected the applicant’s appeal in cassation. On 13 November 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
B. Relevant domestic law and practice
1. Relevant domestic laws and practice with respect to religious organisations
12. The relevant domestic law and practice with regard to the activities of religious associations is summarized in Svyato-Mykhaylivska Parafiya v. Ukraine (no. 77703/01, 14 June 2007), and Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, §§ 21-32, 28 February 2008). Other relevant domestic regulations and administrative and judicial practice are briefly summarised below.
2. Relevant domestic laws and other normative acts on restitution of religious property
(a) The Freedom of Conscience and Religious Organisations Act of 23 April 1991
13. Under section 17 § 2 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991, the State undertook to transfer title to or possession of religious premises and property belonging to the State to religious organisations. The transfer of property had to be done free of charge, on the basis of decisions of the Kyiv and Sevastopol City State Administrations, regional administrations or the Government of the Crimea.
14. The relevant extracts from the text of section 17 of the Act (in force at the material time) read as follows:
“Religious organisations shall be entitled to use buildings and property placed at their disposal by the State, by organisations and by private individuals, on a contractual basis.
Religious buildings and property which constitute State-owned property shall be transferred by the organisations that administer them to the religious association for their unpaid use or shall be returned into their ownership without payment, in accordance with decisions by the regional, Kyiv and Sevastopol City State Administrations, and in the Republic of the Crimea, by the Government of the Republic of the Crimea ...
...
Religious buildings and other property of historical, artistic and other cultural value shall be transferred into the use ... of the religious organisations and shall be used by them in compliance with the rules on protection and use of historical and cultural monuments ...
...
Requests made by religious organisations for transfer of religious buildings and property into ownership or unpaid use shall be considered within a period of one month, and information in writing sent to the petitioners.
...
Decisions by the State bodies with regard to ownership or use of religious buildings and property may be appealed against to a court in compliance with the procedure envisaged by the Code of Civil Procedure ...”
(b) Resolution of 23 April 1991 by the Verkhovna Rada of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”
15. The relevant extracts from the Resolution of the Verkhovna Rada (Parliament) of Ukraine “On the Procedure for Entry into Force of the Freedom of Conscience and Religious Organisations Act”, as amended on 23 December 1993, read as follows:
“...
6. The Cabinet of Ministers of Ukraine, the Government of the Crimea and the regional, Kyiv and Sevastopol State Administrations shall ensure in accordance with the Act the return to the ownership of or free use of religious buildings and property by religious groups, taking into account the following:
- the rights of the religious organisations which owned these buildings and property when they were nationalised;
- the rights of the religious organisations which use these buildings and property in accordance with the procedure established by law;
- investments made by the religious organisations in the property, rebuilding of the religious premises and length of use of such premises;
- existence in the same residential area of other religious premises and their use by other religious organisations ...;
- other important matters in their entirety.
The decision of the relevant State body shall be reasoned ...”
(c) Presidential decrees and orders
16. Under the Presidential Decree of 4 March 1992 “On Measures Relating to the Return of Religious Property to Religious Organisations” it was established that all religious premises and property owned by the State and used “contrary to their mission” should be returned to the religious associations within the period 1992-1993. This period was further extended until 1 December 1997 by a Presidential Executive Order of 22 June 1994. On 21 March 2002 the President issued another decree “On Urgent Measures Relating to the Final Overcoming of the Negative Impact of the Totalitarian Policy of the Former Soviet Union with regard to Religion and on Restoration of the Breached Rights of Churches and Religious Organisations”, in which he recommended that regional bodies of local self‑government finalise the transfer of church premises that were being used “contrary to their designation”, and other buildings, to religious organisations.
(d) Cabinet of Ministers’ Resolutions
17. Resolution No. 83 of the Cabinet of Ministers of Ukraine of 5 April 1991 (in force until 5 February 2002) “On the List of Historical Architectural Monuments which shall not be subject to Transfer to Permanent Use by Religious Organisations”, provided that the following cathedrals in Sevastopol were not to be returned to religious organisations: Volodymyrsky Cathedral (XIX century), Petropavlivsky Cathedral and Mykhaylivsky Cathedral (XIX century).
18. By Resolution No. 137 “On the Conditions of Transfer of Religious Premises which are Architectural Monuments to Religious Organisations”, adopted on 14 February 2002 by the Cabinet of Ministers, it was decided that such religious premises could be given to religious organisations for permanent use if the relevant educational institutions, archives or cultural institutions were moved to other premises.
(e) Relevant judicial practice
(i) Practice of the Constitutional Court
19. On 14 July 1997 the Constitutional Court rejected a request for interpretation of section 17 § 3 of the Act, stating, inter alia, that complaints concerning the use of religious buildings and property were to be examined by courts of general jurisdiction. It also referred to the recommendations of the Presidium of the Higher Commercial (former Arbitration) Court in that regard.
20. On 21 October 1997 the Constitutional Court rejected a request for interpretation of the provisions of section 17 § 2 of the Act, lodged by the Greek-Catholic community “Preobrazhenska”, finding, inter alia, that there was no proof of inconsistent application o
