Published on 27 March 2023
FIFTH SECTION
Application no. 8906/19
Religious Community of Svyato-Uspensky Parish of Rivne Eparchy of Ukrainian Orthodox Church in Ptycha Village of Dubensky District
against Ukraine
lodged on 6 February 2019
communicated on 6 March 2023
SUBJECT MATTER OF THE CASE
At the time the application was lodged the applicant community was a religious community of the Ukrainian Orthodox Church, associated with the Moscow Patriarchate (UOC MP).[1]
The community owned and used a church building in the village of Ptycha, (Dubensky district of Rivne region). Tensions existed over the use of the church building between the applicant community and the faithful of the Ukrainian Orthodox Church of Kyiv Patriarchate (UOC KP) in the village.
The police instituted criminal proceedings in connection with this conflict.
On 19 January 2016 the Rivne City Court, within the framework of those proceedings, allowed the application from a prosecutor and imposed a freeze on the church building, prohibiting its use. By way of reasoning, it noted that there was a threat that persons linked either to the Kyiv or the Moscow Patriarchate may destroy the building.
On 2 April 2018 the court lifted the freezing order. It noted that there was no sufficient proof that the risk of destruction of the building persisted. It also noted that the maximum period of pre-trial investigation, twelve months, had expired without anyone being charged.
On 3 April 2018 the police instituted a new set of criminal proceedings to investigate unauthorised entry into the church building and injury inflicted on a churchgoer, which had allegedly occurred on 2 April 2018.
On 3 April 2018 the court again imposed a freeze on the building, citing the same alleged events of 2 April 2018 and the danger of the building’s destruction.
The applicant community appealed, arguing in particular that the freezing measure was penalising it for the attacks perpetrated by the persons linked to the UOC KP, with authorities imposing the freeze instead of fulfilling their obligation to protect the community from such attacks. It could not be justified given that the criminal proceedings did not progress and no person was charged.
On 2 May 2018 the Rivne Regional Court of Appeal upheld the freezing decision, having agreed with the Rivne City Court’s assessment.
The applicant community complains, under Article 9 and Article 1 of Protocol No. 1, that the freezing of its church building was unjustified and was implemented instead of authorities taking, as was their duty, effective steps to protect the community from illegal attacks thereby preventing it from using the church building in peace.
In April 2019 the applicant community, as a legal entity, left the UOC MP and joined the autocephalous Orthodox Church of Ukraine (OCU) established in 2019 with the blessing of the Ecumenical Patriarch. It appears that, following that change, since April 2019 the church building started to be used by the OCU faithful.
However, the community’s representative who lodged this application on its behalf argued that that change had been illegitimate and, following the transfer of the community as a legal entity to the OCU, its rights had been transferred to the Rivne Eparchy of the UOC MP.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant community’s freedom of religion, within the meaning of Article 9 § 1 of the Convention, on account of restrictions imposed on the use of the church building? If so, was that interference justified under Article 9 § 2?
Did the respondent State comply with its positive obligations under Article 9 in that connection?
2. Has there been an interference with the applicant community’s peaceful enjoyment of its possessions, within the meaning of Article 1 of Protocol No. 1, on account on restrictions imposed on the use of the church building? If so, did it comply with the requirements of that provision?
[1] Due to the changes to its constitution introduced in 2022 the Ukrainian Orthodox Church currently affirms its independence from the Moscow Patriarchate. This appears to be contested by Ukrainian authorities. References to Moscow Patriarchate in the context of this case refer to the situation as it existed at the relevant time in 2018 and 2019. Likewise, the abbreviation UOC MP is used for the sake of simplicity only and is not meant to prejudge any of the above-mentioned disputes.