20
METROPOLITAN CHURCH OF BESSARABIA
AND OTHERS v. MOLDOVA JUDGMENT
Section 44 – Recruitment of clergy and employees
by religious denominations
“Bodies affiliated to religious denominations or institutions and enterprises set up
by them may engage staff in accordance with labour legislation.”
Section 45 – Contracts
“Clergy and employees of religious denominations shall be engaged under a written
contract ...”
Section 46 – Legal status
“Clergy and employees of religious denominations or the institutions and enterprises
set up by them shall have the same legal status as the employees of organisations,
institutions and enterprises, so that labour legislation shall be applicable to them.”
Section 48 – State pensions
“Whatever pensions are paid by religious denominations, their clergy and
employees shall receive State pensions, in accordance with the Moldovan State
Pensions Act.”
C. The Code of Civil Procedure
91. Article 28/2, as amended by Law no. 942-XIII of 18 July 1996,
determines the jurisdiction of the Court of Appeal as follows:
“1. The Court of Appeal shall examine at first instance applications against organs
of the central administration and their officials on account of illegal or ultra vires acts
which infringe citizens’ rights.”
92. Article 37, on the participation of several plaintiffs or defendants in
the same trial, provides:
“The action may be brought by a number of plaintiffs jointly or against more than
one defendant. Each of the plaintiffs and defendants shall act independently of the
others.
Co-plaintiffs and co-defendants may designate one of their number to prosecute the
action ...”
93. Article 235, on the right to appeal against unlawful acts of the
administration, provides:
“Any natural or legal person who considers that his rights have been infringed by an
administrative act or the unjustified refusal of an administrative organ ... to examine
his application concerning a legal right shall be entitled to ask the competent court to
set aside the relevant act or uphold the infringed right.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
94. The applicants alleged that the Moldovan authorities’ refusal to
recognise the Metropolitan Church of Bessarabia infringed their freedom of
METROPOLITAN CHURCH OF BESSARABIA
21
AND OTHERS v. MOLDOVA JUDGMENT
religion, since only religions recognised by the government could be
practised in Moldova. They asserted in particular that their freedom to
manifest their religion in community with others was frustrated by the fact
that they were prohibited from gathering together for religious purposes and
by the complete absence of judicial protection of the applicant Church’s
assets. They relied on Article 9 of the Convention, which provides:
“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.”
A. Arguments submitted to the Court
1. The applicants
95. Citing Manoussakis and Others v. Greece (judgment of
26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1361,
§ 37), the applicants alleged that the refusal to recognise the applicant
Church infringed their freedom of religion, since the lack of authorisation
made it impossible to practise their religion. They submitted that a State
could require a prior registration procedure for religious denominations
without breaching Article 9 of the Convention provided that registration did
not become an impediment to believers’ freedom of religion. But in the
present case the refusal to recognise did not have any basis which was
acceptable in a democratic society. In particular, the applicants asserted that
the applicant Church and its members could not be criticised for any activity
which was illegal or contrary to public order.
96. The applicants submitted that in a democratic society any group of
believers who considered themselves to be different from others should be
able to form a new Church, and that it was not for the State to determine
whether or not there was a real distinction between these different groups or
what beliefs should be considered distinct from others.
Similarly, it was not for the State to favour one Church rather than
another by means of recognition, or to censor the name of a Church solely
on the ground that it referred to a closed chapter of history.
Consequently, in the present case, the Moldovan State was not entitled to
decide whether the applicant Church was a separate entity or a grouping
within another Church.
2. The Government