RYMSKO-KATOLYTSKA GROMADA SVYATOGO KLYMENTIYA V MISTI SEVASTOPOLI v. UKRAINE

FIFTH SECTION

DECISION

Application no. 22607/02
RYMSKO-KATOLYTSKA GROMADA SVYATOGO KLYMENTIYA V MISTI SEVASTOPOLI
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 6 November 2000,

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 association, Rymsko-Katolytska Gromada Svyatogo Klymentiya v Misti Sevastopoli (Римсько-Католицька громада Святого Климента в місті Севастополі[1]), is part of the Odesa‑Simferopil Eparchy of the Roman Catholic Church and belongs to the Crimean Deanery (Decanat). It was registered as a religious organisation on 5 January 1995. It is currently composed of about 400 parishioners of various nationalities, residents of Sevastopol and the surrounding area, and was headed by a prior of the parish Mr Yuriy Ziminsky and vicar Jan Biletsky. The applicant association operates a Sunday school. It was represented by Mr I.F. Tkach, a lawyer practising in Sevastopol.

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.

1. Background to the case

4. The Roman Catholic community in Sevastopol was founded in 1876 and consisted of about 4,500 members. After receiving permission from the authorities and approval from the Russian Emperor on 13 May 1904, the community built a Catholic church (костьол), which was named after Saint Clement (Собор Святого Климента). The construction of this church was financed by the Catholic community in Sevastopol, was authorised in 1900 and completed in 1911. The church was owned and managed by the community until early 1936, after the arrest of the prior of the community by the People’s Commissariat of Internal Affairs (НКВС) on 26 December 1935. A formal decision on “liquidation of the Catholic church” or dissolution of the Catholic religious community had been taken by the Presidium of the Sevastopol City Council and subsequently by the Central Executive Committee of Crimea in 1936 as the religious community had insufficient membership.

5. In late 1936 the Sevastopol City Council of Deputies decided to transfer the church building to the Sevastopol electricity company Transelectro for use as an electricity substation (трансформаторна підстанція).

6. The premises were partially damaged in the Second World War and then rebuilt in 1958-1960 using the foundations and walls of the old church, which had largely remained undamaged, at the expense of the City Council. In accordance with a redevelopment project in 1958 they were to be used as a cinema for 300-360 persons, with a screen measuring 11.5 metres. However, the existing architectural constructions had to be retained to the maximum possible extent. According to the architectural plans, the cathedral premises had to be rebuilt in such a way as not to reflect their religious origin and also in order to provide office premises for the Department of Cinemas of the City Council. The rebuilding also led to the destruction of the bell-tower, the internal reorganisation of the premises and the addition of an entrance hall for the cinema. After reconstruction, as from 1960, the premises were used as a cinema, which was eventually transformed into the “Druzhba” cinema for children. The lower part of the cathedral’s altar was transformed into a public toilet. The premises were also used to house a currency exchange bureau. The applicant association conducts religious ceremonies during the religious holidays near the entrance to the church, as it does not have permission to use it. It also conducts religious ceremonies at a rented apartment close to the premises in question.

7. On 1 July 1998 the First Deputy Chairman of the Sevastopol City State Administration provided the Cabinet of Ministers with a list of religious premises which had previously been nationalised and could be transferred to religious communities for permanent use. The church was included on the list of such premises, provided that funds be made available for the construction of a children’s cinema.

8. On 16 June 1998 the applicant association requested the Sevastopol City State Administration to transfer to it title to the premises of the former Catholic Church. On 26 June 1998 the Administration referred the applicant association’s request to the Sevastopol City Council (hereinafter – “the Council”) for a decision.

9. On 26 August 1998 the Department of Religions of the Sevastopol State Administration, acting on the basis of a resolution of 7 May 1998 of the Cabinet of Ministers authorising the transfer of religious premises to religious communities, included the former Catholic church building in the list of premises that were to be transferred to the applicant association, the only Catholic religious community in Sevastopol. The transfer was to take place on condition that a new children’s cinema was built by certain State authorities.

10. On 24 December 1998 the Sevastopol City Council, by decision no. 139, came to the conclusion that the transfer of the premises for use by the applicant association was “not advisable”. The applicant association sought to institute restitution proceedings before various judicial and administrative authorities. These proceedings are described below (see paragraphs 12-23 below).

11. On 7 April 1999 the Sevastopol City Department of Property issued order no. 100 requiring the city authorities to include the cinema in the register of State communal property. Following that, on 7 September 1999, the Sevastopol City State Administration rejected the applicant association’s request for transfer of the premises for its use, based on the provisions of Section 17 of the Freedom of Conscience and Religious Organisations Act of 23 April 1991 (see paragraph 29 below).

2. Judicial proceedings

(a) First set of proceedings

12. On 24 March 1999 the applicant association instituted proceedings against the Sevastopol City Council before the Sevastopol City Court seeking to quash Council decision no. 139 of 24 December 1998. It also sought to obtain title to the premises, referring to Section 17 of the Act.

13. On 21 April 1999 the Sevastopol City Court rejected the applicant association’s claim, holding that it was not competent to hear a dispute between two legal entities as to title over property. On 4 May 1999 the applicant association appealed against that judgment to the Supreme Court.

14. On 9 June 1999 the Supreme Court quashed the judgment of 21 April 1999 and terminated the proceedings. In particular, it held that disputes between legal entities (in this case the applicant association and the Council), except in certain specified circumstances, were subject to examination by the State arbitration courts. The Supreme Court held that the applicant association was a religious community and had become a legal entity as from the moment of its registration on 5 January 1995. The claims had been lodged against the Sevastopol City State Administration and the Sevastopol City Council, which were also legal entities. The court ruled that the applicant association had to institute proceedings before the commercial (former arbitration) courts as the courts of general jurisdiction were, according to the court, not competent to deal with the matter.

(b) Second set of proceedings

15. In November 1999 the applicant association instituted proceedings in the Sevastopol City Court seeking the invalidation of the decision of the Sevastopol City State Administration of 7 September 1999 rejecting its request for transfer of the premises (see paragraph 11 above).

16. On 12 November 1999 the Sevastopol City Court refused to examine the applicant association’s request as it fell outside its jurisdiction. The court stated that the dispute related not to the decision of 7 September 1999, but to a controversy over the right to own particular premises between two legal entities, and had therefore to be examined by the commercial (former arbitration) courts.

17. On 22 December 1999 the Supreme Court quashed that ruling and remitted the case to the same court for fresh examination. In particular, it ruled that the issue under examination did not just concern a dispute between two legal entities as to the ownership of premises. The court stated that the applicant association’s claims concerned restitution of a religious building and thus had to be examined on their merits, in accordance with the provisions of Article 248-11 of the Code of Civil Procedure.

18. On 25 February 2000 the Sevastopol City Court rejected the applicant association’s request to transfer the title to premises to it and allow it their use. Without referring to any specific legal provision, it considered that the premises were not owned or administered by the Sevastopol City State Administration, but were “communal property” administered by the City Council according to the Local Government Act. The court also rejected the applicant association’s arguments that the original Catholic cathedral building had been constructed by the Roman Catholic religious community of Sevastopol and confiscated by the State authorities in 1936. It ruled that these claims concerned title to the premises, which had become “communal property” and the transfer of the premises into “communal property” was not challenged by the applicant. It established, having reviewed the evidence before it, that the cathedral had been damaged during the Second World War, rebuilt afterwards in 1960, and had been used as a cinema ever since. The court referred to Articles 15 (adversarial nature of proceedings), 30 (burden of proof), 62 (evaluation of evidence) and 248 (decisions with regard to administrative offences) of the Code of Civil Procedure, and in general terms to the Freedom of Consciousness and Religious Organisations Act (“the Act”), without referring to specific provisions of that law.

19. The applicant association appealed in cassation. It challenged inter alia the first instance court’s failure to apply the law that was applicable to the proceedings in the present case (Section 17 of the Act) and its erroneous application of legal provisions which were of no relevance to the legal relations at issue. In particular, the applicant association stated that:

- the courts had not examined its complaints as to the lawfulness of the refusal of the Sevastopol City State Administration to transfer the religious premises at issue into its ownership and use;

- the first instance court had established that the premises at issue were “communal property”, administered by the Sevastopol City Council, even though the proceedings concerned property owned by the State;

- the property at issue had been unlawfully confiscated from a Roman Catholic religious community in Sevastopol and the State had undertaken to return this property back;

- the “communal status of property” and the association’s failure to challenge transfer of property into “communal administration” were irrelevant to the determination of whether nationalised religious property should be returned or not.

20. On 17 May 2000 the Supreme Court examined the applicant’s appeal in cassation and upheld the ruling of 25 February 2000, finding no grounds for quashing it. In particular, it held that the premises had become communal property on 7 April 1999 and thus the Sevastopol City Council was the competent body to transfer title to property owned by it. Therefore, it was only within the competence of the Sevastopol City Council to decide and order return of such premises. It further stated that the first-instance court had lawfully refused to examine complaints about the right to claim property restitution as such complaints were to be examined in a different procedure. The court referred in its reasoning to the Local Self-Government Act and Articles 310 and 312 of the Code of Civil Procedure.

(c) Third set of proceedings

21. In September 2000 the applicant association instituted new proceedings before the Sevastopol City Arbitration Court, seeking a declaration that order no. 100 issued on 7 April 1999 was null and void. On 21 September 2000 the court, referring to the judgment of 25 February 2000 as being res judicata, ruled that the applicant association’s complaints were unsubstantiated.

22. On 13 December 2000 the First Deputy President of the Sevastopol City Arbitration Court upheld the judgment of 21 September 2000 in supervisory-review proceedings. In particular, it held that the applicant community had not raised any claims concerning the return of property to it before the first-instance court, and that the claims as to the unlawfulness of order no. 100 were unsubstantiated.

23. On 24 April 2001 the division responsible for review of decisions, rulings and resolutions of the Higher Arbitration Court examined the applicant association’s request for supervisory review of the aforementioned arbitration-court decisions and ruled that they were lawful and substantiated. It found that the premises at issue were communal property, had been damaged during Second World War and rebuilt in 1960s. The court also cited the findings made in the judgment of the Sevastopol City Court of 25 February 2000 as to the origin of the premises at issue.

3. Requests lodged with administrative bodies

24. From April 2001 the applicant association made repeated requests, both separately and jointly with religious groups of other denominations, for the transfer of the premises for use for religious purposes. In particular, they claimed that other larger religious denominations had received premises whereas their requests had been unsuccessful. These requests were heard by the Sevastopol City Council, at the request of the Sevastopol City State Administration, on 10 February 2004 and 10 November 2005. However, according to a letter from the Chairman of the Sevastopol City State Administration of 13 January 2006, a proposal by the City Administration to permit the use of the premises by the Catholic religious community of Sevastopol was not supported by the majority of the members of the City Council and so was not adopted.

25. On 30 September 2004 the then Prime Minister of Ukraine, Mr Yanukovych, instructed the Chairman of the Sevastopol City State Administration to organise, in cooperation with the City Council, the transfer of the premises to the applicant association.

26. On 24 January 2006 the Chairman of the Sevastopol City Council informed the applicant association that the cinema was part of a communal enterprise known as Kinoobyednannia “Kinosvit” (Кінооб’єднання “Кіносвіт”). He also stated that a transfer of the cinema for use by the religious community would be contrary to Article 21 of the Foundations of Legislation on Culture, so that there was no further need for the Sevastopol City Council to review the issue anew.

27. The most recent refusals to examine the issue of transfer of premises to the religious community date from August and September 2011. It appears from information in the case file, provided by the applicant association that the premises, which were cultural and historical monuments, were not being used as a cinema due to the poor state of the building and the need for significant renovation works.

B. Relevant domestic law and practice

1. Relevant domestic laws and practice with respect to religious organisations

28. The relevant domestic law and practice with regard to the activities of religious associations is summarised 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

29. 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 charges, on the basis of decisions of the Kyiv and Sevastopol City State Administrations, regional administrations or the Government of the Crimea.

30. 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 administering them to the religious associations 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”

31. 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

32. 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

33. 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).

34. 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

35. 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.

36. 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 of its provisions by the domestic courts.

(ii) Practice Recommendation no. 02-5/109 “On certain issues concerning the practice on the application of the Freedom of Conscience and Religious Organisations Act” (issued by the Higher Arbitration Court on 29 February 1996 to the arbitration courts in Ukraine, in force at the material time)

37. According to paragraph 7 of the Practice Recommendation, the religious premises and property that belonged to State property were to be transferred into unpaid use or ownership of the religious organisations on the basis of the decisions taken by the regional, Kyiv and Sevastopol city state administrations and the Government of Crimea. The above-mentioned authorities were under an obligation to return such property, not used for religious purposes, within a period from 1992-1993. The return of property included transfer into unpaid use or ownership. The property could be returned to religious associations, which proved that they had owned the property before nationalisation. Thus, the Recommendation, with reference to Presidential Decree of 22 June 1996, mentioned that the transfer of ownership of the religious premises was one of the measures envisaged by law. Moreover, religious premises or property could be transferred to another religious association if there was no “legal successor” (правонаступник) religious association found in the vicinity where the religious premises or property were situated.

38. Paragraph 9.3 of the Practice Recommendation provided that property was to be returned to the same religious confessions which had owned the religious buildings before nationalization (orthodox church to be returned to orthodox community, Roman-Catholic church to Roman‑Catholic community, etc.). Information or written evidence as to the previous ownership of religious premises was to be sought from the parties, State archives, or State Religions Committee (paragraph 9.4 of the Recommendation). Claims for the return of religious premises to their original ownership could be lodged under the provisions of the Property Act with the commercial courts, and the lodging of complaints with the courts of general jurisdiction did not impede the examination of such claims (paragraphs 9.4-9.6 of the Recommendation).

39. Paragraph 9.8 of the Practice Recommendation stated that all property belonging to religious organisations before the entry into force of the Act was deemed to belong to the State and the State was to be regarded as the proper owner of such property. In particular, this ensued from the provisions of Article 366 of the Administrative Code of the Ukrainian Soviet Socialist Republic of 1927. Therefore, in accordance with section 4 of the Property Act, State bodies, which are mentioned in Section 17 of the law, could perform any lawful acts with respect to such property and the courts were to reject any claims against such lawful acts, unless these acts contravened the law.

(f) Relevant local self-government acts

40. The applicant association submitted two decisions of the Sevastopol City Council dated 29 December 1999 and 4 July 2006, by which title to former religious premises that were in communal ownership and used for cultural purposes had been transferred to Christian Orthodox communities in Sevastopol. By the decision of 29 December 1999 the Sevastopol City State Administration transferred title to the religious premises of the former St. Peter and Paul Cathedral, which had been used by the City Palace of Culture, to the Ukrainian Orthodox Church of the Moscow Patriarchate. According to the decision of 4 July 2006, the Sevastopol Centre of Culture and Arts was to be moved to different premises.

3. Relevant provisions on the distinction between the State property and communal property

41. Article 2 of the 1991 Property Act (repealed by the Act of 27 April 2007), hereafter – the Property Act, established three forms of property ownership in Ukraine, which included private, collective and State property, with all three forms receiving equal protection from the State. Article 31 of the Property Act provides that the State property includes the State property itself and the property of administrative-territorial units (municipal or communal property). According to Article 32 of the Property Act, the subjects of the State property administration were the Verkhovna Rada of Ukraine (in relation to national property) and regional, district, town and village councils (in relation to communal property). Under Article 33 of the Property Act the Verkhovna Rada of Ukraine and the local council were responsible for administration of State property. Article 35 of the Property Act provides that communal property consisted of inter alia property necessary for ensuring economic and social development of a particular territory.

42. Paragraphs 3-5 of Article 16 of the Local Self-Government Act, in line with Article 142 of the Constitution of Ukraine, provide that the bodies of local self-government that represent local territorial communities, including the regional councils, shall be responsible for administration of “communal property”.

43. According to paragraphs 1-3 of the Cabinet of Ministers Resolution No. 311 of 5 November 1991 “On Separation of State Property of Ukraine into State-owned (Republican) Property and Property of the Administrative-territorial entities”, the “cultural property” had to be transferred into communal property and administered by the local territorial community of Sevastopol from the State property.

4. Relevant procedural codes (in relation to examination of disputes with respect to religious organisations)

(a) Code of Civil Procedure, 1963 (relevant provisions in force at the material time), Chapter 31-B (complaints against decisions adopted with regard to religious organisations)

44. According to Article 248-11 of the Code, the courts had jurisdiction to hear complaints concerning decisions of State bodies with regard to the registration of religious associations and the ownership and use of religious property. Under Article 248-12 such complaints were to be lodged with the regional courts, the Kyiv and Sevastopol City Courts and, exceptionally, with the Supreme Court if the complaint concerned the State Religions Committee. A complaint could be lodged within a period of a month from the date of the decision. According to Article 248-13 of the Code, the complaint had to be examined within a period of ten days, if necessary with the participation of the complainant and the respondent State body. Under Article 248-13 of the Code, the court could order the State body to rectify its previous decisions so as to ensure that they complied with the law. The courts were to reject the claims if the State bodies’ decisions were lawful.

(b) Code of Commercial Procedure (former Code of Arbitration Procedure)

45. In accordance with Article 1 of the Code of Arbitration Procedure, in force at the material time, that is to say, before 21 June 2001, legal entities and private entrepreneurs engaged in business activities were entitled to apply to the arbitration courts, in accordance with the relevant jurisdictional rules, for the protection of their legal rights and interests.

46. Article 14 of the Code established that the Higher Arbitration Court had jurisdiction over complaints against the Regional State Administrations. In accordance with the rules on exclusive jurisdiction, under Article 16 of the Code cases concerning the enjoyment of possessions were to be examined in the arbitration court with jurisdiction for the area in which the property was situated. Under Article 17 of the Code, the court which had been wrongly seised was required to transfer the case file to another court that had jurisdiction in the case.

COMPLAINTS

47. The applicant association complained under Articles 6 § 1, 9, 10, 11, 13 and 14 of the Convention and Article 1 of Protocol No. 1 that the State had failed to return to it church premises built in 1911 by the Roman Catholic community in Sevastopol, contrary to the restitution provisions of the domestic law. It further complained that it had been discriminated against by the State authorities. In that connection, it referred to decisions of the Sevastopol City Council of 29 December 1999 and 4 July 2006 transferring title to premises in communal ownership and used for cultural purposes to Christian Orthodox communities in Sevastopol. The applicant association further stated that it had no premises available for holding its religious ceremonies that were large enough to allow all members of the Roman Catholic community to participate in them. It was thus prevented from disseminating religious information and participating in the exchange of religious views. Moreover, it maintained, in view of the domestic regulations and the practice of the domestic courts, that it had no effective remedies in respect of its complaints. It complained, lastly, that the courts in Ukraine were not independent and impartial, so that it had no possibility of a fair hearing.

THE LAW

A. Article 1 of Protocol No. 1 to the Convention

48. The applicant association complained that its property rights had been breached as the State had failed to comply with its obligations arising from section 17 § 2 of the Freedom of Conscience and Religious Organisations Act to return property previously owned by the Catholic community of Sevastopol which had been confiscated by the Soviet regime. In particular, it underlined that it was the only successor to the Catholic religious community that had existed in Sevastopol until 1936. It referred to Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Admissibility

Objection as to compatibility ratione materiae

(i) The parties’ submissions

49. The Government stated that the proceedings instituted by the applicant association did not deal with existing property within the meaning of Article 1 Protocol No. 1 to the Convention, or with any legitimate expectations. The Government thus submitted that the applicant association’s complaints under this provision should be declared incompatible ratione materiae according to Article 35 § 3 (a) of the Convention.

50. The applicant association disagreed.

(ii) Summary of the relevant principles enshrined in the Court’s case-law

51. The Court recalls the principles relevant to the instant case:

(a) Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see Van der Mussele v. Belgium, 23 November 1983, § 48, Series A no. 70, and Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II). Also, the deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000‑XII).

(b) An applicant can claim a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. However, a hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non‑fulfilment of the condition (see, among many other authorities, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 and 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII; Polacek and Polackova v. Czech Republic (dec.) [GC], no. 38645/97, § 62, 10 July 2002).

(c) Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to return property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights to former owners (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003).

(d) Under certain circumstances the authorities’ conduct can give rise to such legitimate expectations (Öneryıldız v. Turkey [GC], no. 48939/99, §§ 124, 127-129, ECHR 2004‑XII). There is, however, a difference between a mere hope of acquiring a property and a “legitimate expectation” which must be of a nature more concrete and based on a legal provision or a legal act such as a judicial decision (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 73, ECHR 2002‑VII). Similarly, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004‑IX).

(e) Once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the Contracting State’s ratification of Protocol No. 1 (see, mutatis mutandis, Broniowski v. Poland [GC], 31443/96, § 125, ECHR 2004-V).

(f) Additionally, the Court recalls that it has only a limited power to deal with alleged errors of fact or law committed by the national courts (see Jantner v. Slovakia, no. 39050/97, § 32, 4 March 2003).

(iii) Application of these principles to the instant case

52. Since the church at issue was expropriated in the 1930s, the Court considers that the applicant association cannot be said to have existing “possessions” within the meaning of Article 1 of Protocol No. 1. The question is whether the applicant association could have any “legitimate expectation” of realising its claim to restitution on the basis of the provisions of section 17 § 2 of the Freedom of Consciousness and Religious Organisations Act and the Resolution of the Verkhovna Rada “On the Procedure for Entry Into Force of the Freedom of Conscience and Religious Organisations Act” (see paragraphs 29-31 above).

53. The Court notes that, under section 17 § 2 of the Act, the State undertook to transfer title to or possession of religious premises and property belonging to it to the religious organisations that had owned these premises and property before nationalisation or confiscation. Accordingly the applicant’s right to restitution was conditional on its being a successor religious community to the one that previously owned the cathedral and on the fulfilment of conditions established by the relevant legislative acts. Such an approach had been confirmed by the relevant practice recommendations of the Higher Arbitration Court (see paragraphs 37-39 above).

54. The Court next observes that, under Section 17 § 2 of the Act, the relevant local or regional authority was required to decide within a month on a request for property transfer, decisions upon requests could be appealed to a court. Further conditions were set out in the accompanying Resolution of the Verkhovna Rada on the procedure for the entry into force of the Act (see paragraphs 30 and 31 above). In particular, the relevant authority was to ensure the return of buildings taking into account a series of criteria, including the former and current rights of the religious associations, the extent to which they had invested in the property concerned, the existence of other religious premises in the area and other important matters (see paragraph 31 above). Returns of State-owned property were further regulated by decrees and orders of the President and resolutions of the Cabinet of Ministers (see paragraphs 32-34 above).

55. According to the relevant practice recommendations of the Higher Arbitration Court (see paragraphs 37-39 above), the applicant association had to prove that it was a successor religious community to the one that had owned the religious premises before nationalisation (see paragraphs 37 and 39 above). The courts of general jurisdiction also had to review whether there was another successor community in the locality where the religious premises were situated. They could also verify whether the premises claimed could be considered religious premises eligible for return, on the basis of written and other evidence submitted by the parties or requested by the court itself (see paragraph 38 above).

56. Taking into account the above, the Court notes the domestic courts’ findings that following the expropriation of the property at issue by operation of law in 1936, it had been nationalised and became State-owned (see paragraph 4 above). It was used as an electricity substation and a cinema ever since the reconstruction of the building in 1958-1960 (see paragraphs 5 and 6 above). The status of property changed to communal property on 7 April 1999 (see paragraph 11 above) and thus the property could not be transferred, the Act not being applicable to such property (see paragraphs 18 and 20 above). Additionally, the courts noted that the church premises were seriously damaged during the Second World War and were rebuilt by the Soviet authorities with the purpose of creating a cinema, therefore it was impossible to say that the possessions of the religious community were maintained in the same condition, which would allow for a legitimate expectation to receive this property back (see paragraphs 18 and 20 above). Furthermore, the Court finds there is nothing to show that the findings in the relevant decisions of the domestic courts that the applicant did not have a right to obtain the church premises at issue into its ownership were unreasonable or arbitrary. Having regard to the information before it and bearing in mind that it has only limited power to deal with alleged errors of fact or law committed by the national courts, the Court notes that the applicant association’s arguments were carefully examined by the domestic judicial authorities and there were no elements disregarded by them which might have led to different legal conclusions in the present case.

57. In these circumstances, the Court accepts that the applicant did not have a legitimate expectation which could give rise to an issue under Article 1 of Protocol No. 1 to the Convention. Accordingly, the Court finds that there is nothing to suggest that the applicants’ right to peaceful enjoyment of their possessions has in any way been infringed by the dismissal of their claims for restitution of the church confiscated from the Catholic community by the Soviet authorities.

58. This part of the application is therefore incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), and must be rejected under Article 35 § 4 of the Convention.

B. Alleged violation of Article 9 of the Convention

59. The applicant association stated that it was unable, as the only successor religious community, to exercise its religion in the church premises built in 1911 and used until 1936 by the Catholic religious community of Sevastopol. It further stated that it had no premises available to hold its religious ceremonies that were large enough to allow all members of the Roman Catholic community to participate in the ceremonies. It was thus prevented from disseminating religious information and exchanging religious views. It maintained that the use of these premises for a public toilet, a currency exchange point and a cinema showing poor cinematic productions was offensive. The use of the premises also contradicted their views on how church premises were to be used. The applicant association concluded that there had been a breach of its rights under Article 9 of the Convention, which reads as follows:

“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.”

60. The Government raised an objection as to admissibility of the applicant association’s complaints under Article 9 of the Convention. It stated that the applicant association, as with its complaints under Article 1 of Protocol No. 1, had not exhausted domestic remedies and not complied with the six-month rule. They further stated that the refusal to transfer the religious premises at issue did not amount to an interference with the applicant association’s right to exercise its religion. They further held that the applicant association could exercise its religious views elsewhere without restrictions. They concluded that no violation of Article 9 had occurred.

61. The Court reiterates that it is not possible to deduce from the Convention a right for a religious community to be guaranteed a place of worship by the public authorities (see Griechische Kirchengemeinde Munchen und Bayern E.V. v. Germany (dec.), no. 52336/99, 18 September 2007). In the present case, the refusal of the domestic courts to transfer church premises into ownership by the applicant association has not prevented the applicant association from functioning and did not restrict their right to obtain or construct a place of worship in the conditions provided for by law (see, mutatis mutandis, Lupeni Greek Catholic Parish and Others v. Romania, no. 76943/11, §136, 19 May 2015).

62. Taking into account the above, the Court considers that the refusal of the domestic courts to allow a claim for transfer of church premises into ownership by the applicant association does not have a direct bearing on the applicant association’s expression of their beliefs protected under Article 9 of the Convention. Moreover, the Court finds that it does not follow from the applicant association’s submissions that the domestic courts’ decisions in the present case constituted an unjustified interference with the applicant association’s right to practice religion. The Court concludes, therefore, that there is no appearance of a violation of Article 9 of the Convention.

63. Accordingly, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Other alleged violations of the Convention

64. The applicant association complained under Articles 6 § 1, 10, 11, 13 and 14 of the Convention that the State had failed to return to it title to the church premises built in 1911 by the Roman Catholic community in Sevastopol. It further complained that it had been discriminated against by the State authorities. In that connection, it referred to the decisions of the Sevastopol City Council of 29 December 1999 and 4 July 2006 transferring title to premises in communal ownership and used for cultural purposes to Christian Orthodox communities in Sevastopol. It complained, lastly, that the courts in Ukraine were not independent and impartial so that it had no possibility of a fair hearing.

65. Having considered the applicant association’s submissions in the light of all the material in its possession, the Court finds that in so far as the matters complained of are within its competence they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

66. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to 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 26 May 2016.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

[1] The Roman Catholic Community of Saint Clement in the City of Sevastopol.

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