eurel     Données sociologiques et juridiques sur la religion en Europe et au-delà

2016

  • 29 November 2016 : the ECHR confirms its decision regarding the restitution of places of worship based on the wishes of the majority of adherents

On 29 November 2016, the Grand Chamber of the European Court of Human Rights ruled on the case of the Greek-Catholic Parish of Lupeni and Others v. Romania.

The applicants (the Greek-Catholic Parish of Lupeni, the Greek-Catholic Bishop of Lugoj and the Greek-Catholic Archdiocese of Lupeni) denounced the refusal of the Romanian courts to rule on what they consider to be their right of ownership over a place of worship, on the basis of common law. Invoking Articles 6§1 and 14 of the Convention, the applicants complained of an infringement of their right of access to a court and of compliance with the principle of legal certainty, of the length of the proceedings aimed at recovering the place of worship, of an infringement of their right of ownership and their right to freedom of religion and of a violation of the prohibition of discrimination. The Court held that there had been no violation of Articles 6§1 and 14 relating to the right of access to a court and to difference in treatment. In contrast, the Court recognised that there had been a violation of Articles 6§1 and 14, on the grounds that the principle of legal security had not been upheld and that the applicants’ case had not been heard within a reasonable time.

This case is part of the long list of applications brought before the ECHR concerning the return of the property of the Romanian Church United with Rome (Greek-Catholic) confiscated under the Communist regime by the Romanian State. In 1948, the Greco-Catholic Church was dissolved by Decree no. 358/1948, and its property, except that belonging to parishes, was transferred to the State. Pursuant to Decree No. 177/1948, the property of the Greco-Catholic parishes was transferred to the Romanian Orthodox Church. After the fall of the Communist regime in December 1989, Decree No. 358/1948 was repealed by Legislative Decree No. 9/1989. The Greco-Catholic faith was officially recognised by Legislative Decree No. 126/1990 on certain measures concerning the Romanian Church United with Rome. Article 3 of this Legislative Decree provided that the legal situation of the property belonging to the Greco-Catholic parishes and in the possession of the Orthodox Church was to be determined by joint committees made up of representatives of both Greek Catholic and Orthodox clergy. In reaching their decisions, the committees were to take into account “the wishes of the worshippers in the communities in possession of these properties”.

Article 3 of Legislative Decree No. 126/1990 was amended by Law No. 182/2005. According to this amendment, in the event of disagreement between the members of the clergy representing the two denominations on the joint committee, the party with an interest entitling it to bring judicial proceedings could do so under ordinary law.

The Greco-Catholic parish of Lupeni was legally re-established on 12 August 1996. In the period 2001-2011, it unsuccessfully sought the return of its former assets, a church and land that belonged to it until the dissolution of the Greek-Catholic Church in 1948.
On the basis of Decree 126/1990 – which provides that the legal status of a property that belonged to the Greek-Catholic Church can be determined by commissions composed of representatives of both clergy on the basis of the desires of the worshippers in the communities in possession of these properties – the Greek-Catholic parish of Lupeni was not able to secure this return, and thus turned to the courts in 2001.
In 2009, Greek Catholics won the case on the merits but the decision was overturned in 2010 by the Court of Appeal, and in 2011 by the High Court of Cassation and Justice, which argued that the property should remain in the patrimony of the Romanian Orthodox Church because the majority of the local community, which is Orthodox, wished it to remain so (in 2002, 501 Greek-Catholic and 24,815 Orthodox faithful lived in Lupeni, according to the Romanian National Institute of Statistics).
Having been referred to in 2011, the ECHR concluded in May 2015 that the Romanian State had not breached Article 6§1 of the European Convention on Human Rights on the right to a fair trial, or Article 14 on discrimination, recognising, however, a breach of Article 6§1 with regard to the duration of legal proceedings. The Greek-Catholic parish of Lupeni requested that the case be referred to the Grand Chamber of the ECHR in August 2015, arguing that a trial in which the outcome is predetermined, according to the will of a party involved in the dispute, violates the right of access to justice, and also raises a question of discrimination based on religious affiliation.
In November 2016, the majority of judges of the Grand Chamber of the ECHR (twelve to five) considered that in the case at hand, it had not been established that the criterion of the desires of the faithful created a difference in treatment in the exercise of the right of access to a court. However, five of the seventeen judges of the Grand Chamber expressed a dissenting opinion, deeming that the application of the principle of the desires of the majority of the worshippers in the communities in possession of the church, thus a party involved in the dispute, undermined the very essence of the applicants’ right to access a court.

According to the case law of the ECHR concerning the return of the property of the Romanian Church United with Rome confiscated by the Romanian State during the Communist regime, the decisions of the High Court were favourable or unfavourable for the Greco-Catholic petitioners according to the evolution of Legislative Decree No. 126/1990 (for more information, see Geanina Munteanu, “Problema restituirii proprietăților confiscate Bisericii Catolice…”).

With regard to the disputes between the two Churches over the property belonging to the Greco-Catholics before 1948 and owned since by the Romanian Orthodox Church, the Romanian legislator considered it appropriate to adopt a special law that deviates from common law, namely Legislative Decree No. 126/1990.

The European Court ruled on this matter for the first time in the case of Sâmbata Bihor Greco-Catholic Parish v. Romania, on 12 January 2010. It found that the Legislative Decree in its original form established neither a mandatory procedure for convening a joint committee nor the procedure by which the committee was to reach its decision. There were no mandatory legal provisions obliging the parties to organise or participate in these committees. Moreover, no time limit had been set for the joint committee to reach a decision. Consequently, the Court found a violation of Article 14 of the Convention in conjunction with Article 6 § 1 (enjoyment without discrimination of the right of access to the court).

Law No. 182/2005 amended Legislative Decree No. 126/1990 to regulate the operation of joint committees. Thus, national courts may now be seised to settle disputes concerning the property of religious denominations under ordinary law.

After examining the new legislative framework, the Court gave two inadmissibility decisions (Greek-Catholic Parish Pruniș v. Romania ; Greek-Catholic Parish Remeții pe Someș v. Romania) on the grounds of the non-exhaustion of domestic remedies, ruling that the applicants should have brought a new claim action before the domestic courts after the amendments made by Law No. 182/2005 before going to the Court. It also dismissed the complaints under Articles 6 and 14 of the Convention - the right to access a court and right not to be discriminated against - in the case of the Greco-Catholic parish of Lupeni and others v. Romania.

The Court will have to rule on five other applications concerning the return of places of worship, already communicated to the Romanian government : Romanian Parish United with Rome Dej v. Romania, Greek-Catholic Parish Glod and Others v. Romania, Greek-Catholic Parish Comana de Jos v. Romania, Greek-Catholic Parish Sisesti v. Romania and Greek-Catholic Parish Orăștie v. Romania.

  • October 2016 : Europe’s largest mosque built in Bucharest

The idea of building a mosque in Bucharest was first raised in 2004, then discussed again in 2011 and 2016, on the occasion of diplomatic contacts between Romania and the Turkish State. Turkey made the proposal deeming that a mosque would represent “the most beautiful expression of dialogue and solidarity between the two countries”. The Romanian State accepted, provided that the principle of reciprocity be respected : an Orthodox church of similar size should be built in Istanbul.

The Turkish authorities responded by granting their authorisation for an Orthodox church to be built. Six possible sites were identified on the edge of Istanbul, but the Romanian authorities did not make a choice. For its part, the Romanian government made available to the Turkish authorities an 11,000 square metre plot, estimated at around four million euros.

According to official information, the cost of the mosque would be 3 million euros, paid by the Turkish government. It would be the largest in Europe and the largest in Romania. The place of worship will be able to accommodate two thousand people, and the building will include a library, a Koranic school and recreational facilities.

The project appears to have the support of the Romanian authorities (Government decision no. 372/2015 to donate a building, protocol for the handover of a plot of land for free use for a period of 49 years between the State Secretariat for Religious denominations and the Office of the Mufti of the Muslim Faith in Romania, issuance of the town planning certificate by the district town hall).

However, the project is currently at a standstill, in particular as a result of the international context. The challenges include Turkey’s current situation, the international migrant crisis, terrorism, and objections raised in Romanian society.
According to the 2011 census, Romania is home to 81 mosques and nearly 65,000 Muslims, 9,000 of whom are based in the capital (Bucharest). The only mosque built in Romania, comparable in terms of size but also of importance in the Romanian collective memory with that which will be built in Bucharest, is in Constanța, where there are more than 40,000 Muslims. This mosque was built in 1913 by the Romanian State at the initiative of King Carol I.

  • October 2016 : Resumption of the debate over same-sex marriages

The steps taken by the Coalition for Family before the Constitutional Court of Romania, aimed at amending the Constitution in order to redefine the family as “based on freely-consented marriage between a man and a woman”, is a measure intended to respond to the request made to the Romanian State to recognise a marriage between two people of the same sex, lodged by a couple composed of a Romanian and an American, who married in Belgium in 2010.

The couple’s claims process began in 2013 when the Immigration Inspectorate refused to grant a visa to the U.S. citizen, on the grounds that same-sex marriages were not recognised in Romania, thereby impeding their freedom of movement within the European Union. As a result, the two persons challenged Article 277, paragraphs (2) and (4) of Law no. 287/2009 of the Civil Code before the Constitutional Court : (2) Marriages between persons of the same sex concluded or contracted abroad, either by Romanian citizens or by foreign citizens, are not recognised in Romania ; (4) The legal provisions regarding the free movement of citizens of the Member States of the European Union and of the European Economic Area remain applicable. The Constitutional Court will give its final decision on this case on 27 October 2016.

To ensure that the provisions of the Civil Code remain unchanged, part of Romanian society has come together in this Coalition for Family, the objective of which is to secure constitutional status for the provisions of the Civil Code related to the definition of family (the freely-consented marriage between a man and a woman).

In order to have initiative validated, the coalition had to complete several steps. At the current time, the collection of signatures has been finalised, with more than 3,000,000 signatures collected. They were submitted to Parliament and on 20 July 2016, the Constitutional Court gave its preliminary opinion on the bill concerning the referendum. For the bill to be successful, the vote in Parliament on the draft law and the national referendum are still needed. Supporters of the project want the referendum to be held on the same date as the parliamentary elections. The latter will take place on 11 December 2016. However, no decision has been made on the date of the referendum.

The Coalition for Family initiative is supported by the Consultative Council of the Religious Denominations - an ethical, social, independent, apolitical, non-governmental, unincorporated and non-profit organisation, formed by the 18 recognised religious denominations, all of which publicly oppose same-sex marriage and, to the contrary, defend a traditional conception of the family. Nonetheless, the crucial role played by the Romanian Orthodox Church, especially in the campaign to collect signatures, should be emphasised.

The latest developments on this topic came on 19 October 2016, when the President of Romania declared that “it is a mistake to take into account religious fanaticism, and to walk the path of religious fanaticism and ultimatums”, referring to the approach adopted by the Coalition for Family. The Romanian Orthodox Church, along with other recognised religious denominationsdenominations, reacted very promptly, stating that “Romania’s largest civic initiative, in which an unprecedented number of citizens participated, is a natural and necessary democratic exercise”. In a second statement, the Romanian President called for tolerance, reconciliation and social peace. Several public figures endorsed the latter statement, including the US ambassador to Romania.

Concurrent to this initiative to revise the Constitution with the statement that family is formed on the basis of freely-consented marriage between a man and a woman, a European citizens’ initiative called Mum, Dad & Kids was registered with the European Commission on 15 December 2015. The aim of this initiative is to introduce throughout the European Union a regulation defining marriage and the family as follows : marriage is a union between a man and a woman, and family is based on marriage and/or descent. To be debated in the European institutions, this initiative needed to receive at least one million signatures throughout Europe by 15 December 2016. According to the latest data published, as of 13 October 2016, more than 50% of those signatures had already been received.

Gabriel Birsan
  • June 2016 : Funding for recognised religious denominations undermined in Romania

For several years now, especially during the preparation of the budget law for the coming financial year, recognised denominations have been under heavy pressure from the media and secular organisations. The demand is always the same : that all financial State support for religious denominations (salaries of clerical and non-clerical staff, salaries of religious teaching staff, construction or maintenance of religious buildings, tax benefits, etc.) be stopped.
The demand is directed at all players in Romanian religious life, but concerns primarily the Romanian Orthodox Church, representative of the declared religious majority. In addition, by mistake (deliberate or unintentional), the funding provided to all recognised denominations is often presented by protesters as “funding given to the Romanian Orthodox Church alone”.
The main argument put forward to substantiate this is the very large number of religious buildings under construction after 1989. The protesters also contrast “the soaring number of Orthodox churches, which popped up like mushrooms after the rain” with the “moribund health system”. Regarding the fragility of the Romanian health system, however, it would appear that it is due not to lack of funding but rather to flawed management, questionable public acquisitions or possible corrupt* activities.
The tragic fire at the Colectiv nightclub in Bucharest on 30 October 2015 left 64 people dead and around 200 injured. Following that event, the Prime Minister of Romania, under pressure from society and the media, announced the abolition of the 2016 budget line for the construction or rehabilitation of places of worship. The process for the possible implementation of this decision is still being debated.

*See for example : Catalin Tolontan, The Hexi Pharma Dossier, in Romanian ; as for the educational system “in a pitiful state”, it can be enlightening to compare the respective budgets side-by-side - see George Damian, Comparing Cult-Health-Education Budget, in Romanian.

Petrisor Ghidu
  • January 2016 : Funding and tax regime for religious denominations

The end of 2015 brought about a change in the Romanian State’s funding for recognised religious denominations. Law 339/2015 (Law on the State Budget for 2016, published in Official Gazette no. 941/19.12.2015) provided for an increase in the State’s share of the salaries of clerical and lay staff of religious faiths (salaries of clerical staff were increased when the salaries of teachers with which clerics are assimilated were increased), but provided for the cessation of funding by the State budget of the construction of new places of worship or the repair of existing places, support for charitable activities and special events organised by religious faiths.

No legislative changes were introduced ; simply, no money was allocated in the budget to religious activities. Thus, public funding for religious activities, with the exception of salaries, was left to the responsibility of municipalities, which were able to provide it in accordance with to their possibilities and/or affinities.

A new Tax Code with its implementing enactments (Law No. 227/2015, D.G. No. 1/2016) replaced the 2003 Code (Law No. 571/2003) and came into force on 1 January 2016. The provisions relating to worship are almost similar in the two codes. However, the 2016 one introduces some important new features :

a) Religious associations benefit from the same tax relief as recognised denominations (18 to date).
b) Recognised denominations and religious associations are exempt from property tax for buildings and land, as was the case before 1 January 2016. From now on, however, they will be exempt only if all profits are used in the current or subsequent years to maintain the unity of religious denominations, for the construction and repair of places of worship and ecclesiastical buildings, for activities in the field of education, to provide, in its own name or in partnership, social services approved in accordance with the law, or for specific actions and other non-profit activities specific to religious denominations.
c) Expansion of the tax base to buildings and land used by recognised denominations and religious associations for economic activities.
d) As regards taxes on buildings, the new Tax Code distinguishes between residential and non-residential buildings, and includes presbyteries in the category of residential buildings. As a result, recognised religious denominations and religious associations are required to pay taxes for the housing of priests. That being, the actual application of this tax is the responsibility of the local community.

The consequences of these measures were felt in particular by the majority denomination, the Romanian Orthodox Church. After the fall of the atheist Communist regime, the Romanian Orthodox Church focused on renovating and building churches and social and cultural establishments. Emblematic of this vast undertaking is the People’s Salvation Cathedral, which some consider a necessity, while others see it as megalomaniac. Most of these projects were funded by the State. In the new financial environment, the Romanian Orthodox Church, despite the financial support of the municipality of Bucharest and other local public institutions, is finding it very difficult to continue to self-finance the projects already started, especially the People’s Salvation Cathedral which was to be completed on 1 December 2018, for the centenary of the Romanian nation.

Some voices criticised the tax exemptions for religious denominations, referring mainly to the majority denomination. The Romanian Orthodox Church voiced its willingness to discuss the taxation of its income and property, but only if the issue of restitution or compensation for all Church property confiscated by the Romanian state during the Communist regime was also addressed, so that the Church could acquire the resources needed to continue its social and philanthropic work.

Gabriel Birsan
  • January 2016 : Religion classes in Romania’s public schools

Since the end of 2014 and throughout 2015, Romanian public debate has been extensively occupied by sharp controversies about religion classes. A discipline in pre-university education, compulsory in the teaching curriculum from pre-school to the final year of high school, it has ceased to be a simple academic subject and has become the focus of national debate. This shift came about when the method for enrolling in religion classes was modified, as a direct result of a decision of the Constitutional Court of Romania.

Read the full article of Vasile Cretu in pdf (in French).

Vasile Cretu
  • 20 January 2016 : Legislative bill on the Family

On 25 November 2015, a constitutional bill was published in the Official Gazette of Romania (Section One, No. 882), aimed at redefining Article 48(1) of the Romanian Constitution. This bill is the result of a reflection carried out by an “initiative committee” composed of sixteen people, including several public figures. This committee met under the supervision of the “Coalition for Family”, an informal group of 23 non-governmental organisations from all across the country (details in Romanian here).

In its current form, Article 48 of the Constitution provides that “Family is based on the freely-consented marriage between two spouses, on their equality and on their parental rights and obligations of raising, educating and instructing their children”. This bill aims to redefine the family as “based on freely-consented marriage between a man and a woman, on their equality and on the parental rights and obligations of raising, educating and instructing their children”.

Having reviewed the European legal texts concerning the family and the European situation concerning marriage, the initiators of this action – in their written motivations – show that such a reformulation of the constitutional text is in fact the legitimate extension of the legal provisions already provided for by the Civil Code (adopted by law 287/2009 and entered into force on 1 October 2011 (details in Romanian here). They argue their point on the basis of two articles of the Civil Code, Book II – On the family, Heading 1 – General provisions :
- Article 258. 4 which explicitly stipulates that “in the meaning of this code, the word ‘spouses’ is understood to mean a man and a woman, legally bound by marriage”,
- Article 259.1 which defines marriage as a “freely-consented union between a man and a woman”.

In order for this initiative to be validated and for the constitutional text to be officially modified, four other steps are still needed :

1. At least 500,000 people with voting rights, spread over at least half the territory of the country, i.e., 20,000 people per department will have to sign in favour of the referendum, by 24 May 2016 (i.e. 6 months after the publication of the draft law).

2. Once these signatures are secured, the draft law – together with the 500,000 signatures – must be submitted to the Parliament of Romania.

3. The Constitutional Court will then be referred to for an opinion. If it gives its consent, Parliament can vote to amend the text of the constitution.

4. The final step will consist of a national referendum on the amendment of Romania’s Basic Law. If the result of the votes is positive and the referendum is validated, the legislative text will be amended.

The initiative is publicly supported by the Romanian Orthodox Church, other religious denominations and other legal entities wishing to preserve the specificity and traditions of the Romanian people. However, the initiative is opposed by NGOs supporting LGBT rights.

According to information from representatives of the “Coalition for Family”, as of 20 January 2016, 825,000 people had already signed to have the constitutional text modified.

Petrisor Ghidu

D 13 janvier 2017    AGabriel Birsan APetrisor Ghidu AVasile Cretu

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