Legal summary
March 2026
Advisory opinion requested by the Supreme Court of Ukraine
Request no. P16-2025-001
05.03.2025 [GC]
Legal summary
Article 6
Article 6 § 1 (civil)
Civil rights and obligations
Access to court
Advisory opinion on the status of monastic premises and the jurisdiction of the courts to examine a dispute concerning them
Article 8
Respect for home
Advisory opinion on the status of monastic premises and the jurisdiction of the courts to examine a dispute concerning them
Article 9
Freedom of religion
Advisory opinion on the status of monastic premises and the jurisdiction of the courts to examine a dispute concerning them
Article 1 of Protocol No. 1
Peaceful enjoyment of possessions
Advisory opinion on the status of monastic premises and the jurisdiction of the courts to examine a dispute concerning them
Background and questions – The request of Ukraine’s Supreme Court for an Advisory Opinion arose out of proceedings pending before it between a monastery of the Ukrainian Greek Catholic Church and a former nun, F., over her right to live in a convent owned by the monastery which she had left on account of a conflict with the leaders of the relevant religious organisation.
The Supreme Court requested the Court to give an advisory opinion on the following questions:
“1. Do the premises of religious buildings – monasteries (monastic cells) – constitute a “home” within the meaning of Article 8 of the Convention?
2. Does the national court’s jurisdiction extend to disputes concerning the right of a former nun to use the premises of a monastery, where such right arose from an oral agreement with the monastery based on its purpose and the nun’s admission thereto, but was terminated as a result of the nun leaving the disputed premises due to a conflict and differences of opinion with the leaders of the religious organization?”
Opinion –
(1) First question – The Court tailored its answer to the particular context of the case, namely, a private dispute between a religious organisation and one of its (former) members.
The autonomous concept of “home” in Article 8 was not necessarily identical in its meaning and implications to the notion of “housing” used in domestic law, although the same Ukrainian term could be used for the notion of “home” in the official Ukrainian translation of the Convention and for “housing” in the relevant domestic legislation. Given that the Convention concept of “home” depended in the first place on the factual circumstances, several factors could be considered in deciding on the existence of “sufficient and continuous links” to the convent premises. Some of those, for example the fact that F. had left the monastery premises several years previously but still wished to return, or that she had left her belongings there, had been raised in the domestic proceedings.
The Court considered the following considerations to be especially relevant in determining the existence of “sufficient and continuous links” in the particular context raised in the domestic proceedings:
– The first consideration was the basis on which F. had occupied the monastic cell. The question –disputed by the parties in the domestic proceedings – was whether there had been a basis in civil law for her occupancy or whether she had occupied it solely on the basis of her status within the relevant religious community as a nun or a novice. If the requesting court found that it had been on the latter basis, then the principle of the autonomy of religious organisations, which was at the very heart of the protection which Article 9 of the Convention afforded, would become particularly relevant. In that regard the Court took note of the monastery’s submissions to the effect that under the relevant provisions of canon law a nun’s residence within the premises of an enclosed convent was inextricable from her being a member of that community living out its religious vocation there.
In that connection the Court pointed out that in accordance with the principle of the autonomy of religious organisations, it had held that the State was prohibited from obliging a religious community to admit new members or to exclude existing ones; religious communities had to be completely free in that respect. Moreover, Article 9 did not guarantee any right to dissent within a religious body. In the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion was exercised through freedom to leave the community.
– The second consideration was that the monastic cell in issue in the case was not an independent or self-standing housing unit but was an integral part of a monastery building that housed an enclosed religious community whose members lived out their religious vocation through their common life together, separated from the world. For the purposes of Article 8, the view could be taken that it was the convent itself that should be regarded as a “home” shared by those who currently led the monastic life together there. The possibility of such potentially conflicting claims to a “home” in relation to the same premises should be considered when the scope of that notion was determined in the pending proceedings.
– The third consideration was that Article 1 of Protocol No. 1 protected the rights of religious organisations, including monasteries, to peaceful enjoyment of their possessions. In that area, the matters concerned by Article 9 and Article 1 of Protocol No. 1 could be closely linked. As pointed out by the Supreme Court, domestic law also guaranteed the right of religious organisations to manage their property without unjustified restrictions.
The recognition of a specific part of a building that was used as a place of worship by a religious community as the “home” of a person who was not a member of that community might well interfere with the religious organisation’s rights to manage and use that place of worship under Article 9 and Article 1 of Protocol No. 1.
For the above reasons, and having regard to the principle that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions, the fact that a person previously occupied convent premises as a member of a monastic community but was no longer a member of that community should be a central factor in assessing whether he or she could be considered to have retained “sufficient” links with such premises.
Conclusion (unanimously): The premises of a monastery or convent, including monastic cells, could be considered the “home”, within the meaning of Article 8, read in light of Article 9, of the persons having sufficient and continuous links to those premises. If those links were solely based on religious grounds, then the status of those persons within the relevant religious community occupying the premises became particularly important.
(2) Second question – In view of the way the second question was framed the Court clarified that the relevant issue in relation to the “right to a court” under Article 6 § 1 was not so much that of the jurisdiction of a particular domestic court, but whether the dispute concerned the determination of a “civil right” that was claimed by a party. While closely related, the issue of the scope and limits of a domestic court’s jurisdiction was not, as such, governed directly by Article 6, but rather by the relevant provisions of domestic law. It was therefore not for the Court, in the context of proceedings under Protocol No. 16, to determine in general terms whether the national court’s jurisdiction extended to what it had described as “disputes with a religious element” but for the requesting court to rule on that matter, drawing as appropriate on the Court’s reply to the second question.
That question essentially asked about the applicability of Article 6 § 1 to the pending proceedings, namely, whether by virtue of that provision F. was entitled to have her claim determined by a court that satisfied its various requirements. As explained in the request, the core legal issue before the Supreme Court was whether the dispute should be subjected to adjudication by the national courts, or whether the relevant legal relationship was to be dealt with and finally resolved internally by the religious organisation, without recourse to judicial review at the national level. Whichever conclusion the requesting court drew on the issue raised under the first question, that would not, in any case, directly answer the second question, since the applicability of Article 6 was not dependent on the conclusion in respect of the applicability of Article 8.
The Court’s case-law was well established with regard the applicability of Article 6; among many other authorities, it had been set out in the judgment of Károly Nagy v. Hungary, a precedent that the requesting court had taken account of in considering the case before it. The Court further directed the attention of the requesting court to the cases of Dudová and Duda v. the Czech Republic, Ahtinen v. Finland and Ţîmpău v. Romania that were also relevant. Those cases showed that the decisive issue for the applicability of Article 6 was whether the proceedings concerned a “right” that was recognised, at least on arguable grounds, in domestic law; that was primarily a matter for the national authorities, in particular the courts. It did not involve, as suggested by the requesting court, the striking of a fair balance between the relevant Convention rights of the parties to the proceedings. The Court’s role was even more limited under Protocol No. 16, since, in contrast to cases brought under Article 34 of the Convention following the completion of domestic proceedings and the exhaustion of domestic remedies, the proceedings at issue were ongoing and the requesting court might, as a “highest court”, ultimately confirm, guided by this Court’s opinion, whether the proceedings before it were such as to attract the application of Article 6, or not; that is. whether or not F. could claim a “right” to use the premises of the monastery.
The above-mentioned cases also illustrated that, in examining the question of the existence of a substantive civil right under domestic law, it was important that the courts subjected the claim as asserted before them to careful examination, and that they provided cogent reasons for their conclusions, in a manner consistent with relevant domestic law and case-law, including any constitutional-level provisions guaranteeing the autonomy of religious organisations.
Conclusion (unanimously): The applicability of Article 6, and of the right of access to a court guaranteed by it, to proceedings before a domestic court depended on whether the dispute concerned a right which could be said, at least on arguable grounds, to be recognised under domestic law. That was primarily a matter for the national court to resolve. In so doing, it should subject the claim as asserted before it to careful examination and provide cogent reasoning for the conclusion reached on that issue, having regard to the relevant domestic law and case-law. In the case that was pending before the requesting court, the domestic provisions and case-law concerning the autonomy of religious organisations would be of particular relevance to that assessment.
If the national court concluded that, given the facts of the case and the relevant domestic law, the plaintiff in the proceedings F. could not now claim any “right”, not even on an arguable basis, in relation to the cell that she had used to occupy, it would follow that it was not required, under Article 6, to determine the merits of that claim. If, however, the national court’s conclusion was that the right claimed by the plaintiff was at least arguable, and that the other conditions for applicability of Article 6 were also met, then she would, in principle, be entitled to a determination of her claim in compliance with the requirements of a fair civil trial, which had been set out in the Court’s well-established case-law under that provision.
(See Dudová and Duda v. the Czech Republic (dec.), 40224/98, 30 June 2001; Ahtinen v. Finland, 48907/99, 23 September 2008, Legal Summary; Károly Nagy v. Hungary [GC], 56665/09, 14 September 2017, Legal Summary; Ţîmpău v. Romania, 70267/17, 5 December 2023)
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This summary by the Registry does not bind the Court.
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