TrustHLT/LaCour huggingface dataset:
Síofra O’Leary (Judge): My second question, which also refers to Romanian legislation, concerns Ordinance 94 of 2000, which provided that the legal status of buildings which serve as places of worship shall be established by a special law.
Síofra O’Leary (Judge): From the information in the case file before us, it appears that no such law was ever adopted.
Síofra O’Leary (Judge): So it would be useful if the government could outline what that special law was intended to provide, and more importantly, why it was never adopted.
Síofra O’Leary (Judge): The question which is addressed principally to the applicants, but again, the government is invited or welcome to respond to it in their reply, relates to Article 4 of Legislative Degree 126-1990, which provides that the state may provide for support for the construction of new churches and may make available appropriate land and funds for that purpose.
Síofra O’Leary (Judge): Again, according to the information in the case file, many other Greek Catholic parishes have sought to avail of Article 4.
Síofra O’Leary (Judge): My question is therefore, has the applicant parish done so?
Síofra O’Leary (Judge): And if not, why not?
Guido Raimondi (JudgeP): Mr. President, Sajó please.
András Sajó (Judge): May I take up on the last question of my learned colleague?
András Sajó (Judge): Is there a law in place that would, in fact, provide details in regard to the legislative decree of 1990, in particular regarding Article 4?
András Sajó (Judge): So is there a law implementing it?
András Sajó (Judge): Now, I'm sorry, but I really have to ask very elementary questions for those who know Romanian law.
András Sajó (Judge): I'm not privileged in that regard.
András Sajó (Judge): So could the government, but of course the applicant's lawyer is free to comment, could the government explain to me what would be an ordinary vindicatio rei procedure or proceedings in a case that is not related to this specific situation?
András Sajó (Judge): And you emphasize that it is about a specific situation.
András Sajó (Judge): I will come back to that.
András Sajó (Judge): I ask this, and I would like clarification, because of the following reason.
András Sajó (Judge): I've seen a number of judgments where, and it's also in the judgment of the chamber, that the procedure is generally, as in most countries, a comparison of titles.
András Sajó (Judge): Now in the countries I'm familiar with, the more recent title shall prevail.
András Sajó (Judge): And the more recent title in those countries I know would be the claim of the Orthodox, because in this case, in 1967, in other cases anyway after 1948, it was transferred to the Orthodox.
András Sajó (Judge): It seems to be that this is not the case in Romania, because if this were the case, there is no reason for the special law.
András Sajó (Judge): So I wonder what is really the situation in this type of return of property cases.
András Sajó (Judge): Without the interpretation given by the Constitutional Court, I understand that your position is that this is a specific issue because it is related to the exercise of freedom of religion.
András Sajó (Judge): And I understand that there can be arguments made that a special law applies.
András Sajó (Judge): But what if there is no special law?
András Sajó (Judge): Is it the case that the 1990 decree, legislative decree, in principle, annulled the titles, created a situation where possession matters, but title is not anymore in place, the 1948 title?
András Sajó (Judge): I just don't understand the situation.
András Sajó (Judge): Now may I ask again the government to explain the relevance of census.
András Sajó (Judge): Was the census taken with a specific provision indicating that those who declared to pertain to one or another religion express their wish to maintain property?
András Sajó (Judge): Was this purely statistical or was it an expression of will?
András Sajó (Judge): The people who were subjected to the census aware of possible implications of their choice.
András Sajó (Judge): Secondly, is the declaration in the census an indicator of the actual religious practice?
András Sajó (Judge): Do you have data on actual religious practice compared to the census data?
András Sajó (Judge): May I ask a hypothetical?
András Sajó (Judge): Imagine that there is a diocese where there were 100 Greek Catholic churches before 1948.
András Sajó (Judge): And the Greek Catholics were also in the diocese in an absolute majority or relative majority.
András Sajó (Judge): Let's imagine, and this is my hypothetical question, that today, according to the statistical average, they are below 1%, but we have cases where there were 30%.
András Sajó (Judge): So imagine, let's take that scenario.
András Sajó (Judge): Let's assume that there are 30% believers of the Greek Catholic faith.
András Sajó (Judge): Is it the case that although there are 30% believers following the principle of the wish or will of the majority as expressed in the census, all 100 shall be returned, all 100 former Catholic churches shall be kept by the orthodox majority?
András Sajó (Judge): Is that result foreseeable in case the bill of the majority is followed as indicated by the or understood by the constitutional court?
András Sajó (Judge): I think that's one more question to the government.
András Sajó (Judge): Do I understand you correctly that this being a special law, the decisive consideration is the will of the majority?
András Sajó (Judge): So in other words, if under the Vindicatio Rei title, it would be Greek Catholic to have the title, this is a precondition for a consideration by the court.
András Sajó (Judge): And then the considerations of the religious majority shall prevail.
András Sajó (Judge): And if so, is this something that falls under the exceptions of Golder?
András Sajó (Judge): Because it is not an absolute right to have access to the court.
András Sajó (Judge): So the question is whether this is one of the exceptions recognized by Golder.
András Sajó (Judge): Thank you very much.
Guido Raimondi (JudgeP): Now, Judge Pinto de Albuquerque, please.
Paulo Pinto de Albuquerque (Judge): My question is addressed to the applicant, but of course the government can also take a position on this.
Paulo Pinto de Albuquerque (Judge): The applicant's position is that, and the core of the applicant's argumentation is that the rights of a minority are illusory if they are in the hands of the majority.
Paulo Pinto de Albuquerque (Judge): Now, in order to check if Romanian law, the 1990 law, effectively protects in practical terms the property rights of the Greek Catholics, could you please provide the court with the overall market value for property returned until today to Greek Catholics in terms of buildings and building area?
Paulo Pinto de Albuquerque (Judge): And could you compare this market value with the market value for the property not returned?
Paulo Pinto de Albuquerque (Judge): You need not, of course, to be precise.
Paulo Pinto de Albuquerque (Judge): An overall idea would suffice.
Paulo Pinto de Albuquerque (Judge): Thank you very much.
Guido Raimondi (JudgeP): S'il n'y a pas d'autres questions, donc la cour va maintenant...
Guido Raimondi (JudgeP): Pardon.
Guido Raimondi (JudgeP): Oh, I'm sorry.
Guido Raimondi (JudgeP): Monsieur le juge Ravarani, je vous en prie.
Georges Ravarani (Judge): J'ai une toute petite question qui est posée conjointement aux 2 partis.
Georges Ravarani (Judge): J'étais étonné d'entendre pendant les plaidoiries que les 2 partis ne sont pas d'accord sur les travaux parlementaires qui ont donné lieu à la définition de la notion de droit commun, qui me paraît essentielle dans cette affaire.
Georges Ravarani (Judge): Il est tout à fait étonnant qu'on ne puisse pas se mettre d'accord sur ce qui a été finalement dit au Parlement.
Georges Ravarani (Judge): Et il serait utile que les 2 partis puissent donner une réponse univoque sur ce que veut signifier droit commun.
Georges Ravarani (Judge): Est-ce vraiment le droit traditionnel de la comparaison des titres, comme le prétend l'avocate de la partie récurrente, ou est-ce que c'est la règle de la volonté de la majorité?
Georges Ravarani (Judge): On peut interpréter une loi, ça c'est tout à fait normal, mais on pourrait quand même pouvoir se mettre d'accord sur ce qui a été dit au Parlement.
Georges Ravarani (Judge): Il m'intéresserait que les 2 partis puissent donner une réponse plus univoque et pas totalement contradictoire quant à cet effet objectif.
Georges Ravarani (Judge): Je vous remercie.
Guido Raimondi (JudgeP): Merci beaucoup.
Guido Raimondi (JudgeP): Maintenant, il n'y a vraiment pas d'autres questions.
Guido Raimondi (JudgeP): Et alors, la cour va se retirer pour 20 minutes.
Guido Raimondi (JudgeP): Je dirais donc qu'on reprend en 11 heures moins de 20.
Guido Raimondi (JudgeP): Après quoi, les partis pourront présenter de brèves observations, réponses aux plaidoiries adverses et répondre aux questions des juges.
Guido Raimondi (JudgeP): L'audience est suspendue.
Guido Raimondi (JudgeP): L'audience est reprise.
Guido Raimondi (JudgeP): Et la parole est à maître Hatneanu.
Guido Raimondi (JudgeP): Vous avez la parole maître.
AP1 (Applicant): I will start my rebuttal on a more personal note.
AP1 (Applicant): This case is one of the hardest I ever litigated, but not because it is very complex.
AP1 (Applicant): On the contrary, it is so straightforward and so self-evident that any additional explanation seemed superfluous.
AP1 (Applicant): This case is not about the European courts overstepping the state's margin of appreciation or acting as a force instance, as the chamber considered.
AP1 (Applicant): It is about the effectiveness in practice of a provision allowing for access to a court, which was already adopted by the state based on its margin of appreciation.
AP1 (Applicant): It is about the effectiveness of a legal provision that, as a result of a biased interpretation, allows only one party to access court, only to find out it is always wrong, unless the other party in the procedure agrees to the contrary.
AP1 (Applicant): The government produced only one case in which a Greek Catholic won, despite the will of the other party, and the cases from 2012, when the High Court jurisprudence was not fully developed according to the government.
AP1 (Applicant): On this issue, it is not clear for me when, at the moment, the government considers that this interpretation, this jurisprudence, was finally established.
AP1 (Applicant): As in the original observation, it states about 2012, 2013.
AP1 (Applicant): And today, we heard about 2010, 2011.
AP1 (Applicant): This case is about the current applicant, which fully benefited of a sham of a judicial procedure.
AP1 (Applicant): No, the court did not need time to adjust to a new legal provision.
AP1 (Applicant): And that provision in itself, access to court based on the common law, was rather old.
AP1 (Applicant): The courts, and especially the High Court, needed time to find a way to overturn a decision of the legislator and to preserve the status quo.
AP1 (Applicant): This is not effective access to justice.
AP1 (Applicant): Isn't it rather strange that in the cases presented by the government, and the one before you included, the lower courts, which are closer to the affected communities, were more willing to apply the civil law and to allow the Greek Catholic claims, while the High Court forced them against it?
AP1 (Applicant): Isn't it strange that the High Court developed an apparently complicated system of assessing the Greek Catholic claims on the merits, but which in fact has only one aim, to virtually always dismiss these claims?
AP1 (Applicant): Some of the so-called assessment on the merits criteria are quite relevant in their cynical approach.
AP1 (Applicant): Greek Catholics did not willingly leave the church in 1948.
AP1 (Applicant): Those who refused to do so were imprisoned, and many died in prisons.
AP1 (Applicant): So how their inexistent willingness to leave the church in 1948 can become a criterion on the merits of their case now?
AP1 (Applicant): Or how can it be held against them that no Greek Catholics were born after 1948 if the church was forcibly and officially disbanded?
AP1 (Applicant): What matters is that they exist now.
AP1 (Applicant): And the precondition obviously met in the present case, where we speak about 500 persons.
AP1 (Applicant): The so-called criteria are in fact, in our opinions, most strings to cover the unmeaningness to look at the merits of the property case and to leave the solution to the parties, something that the government is also claiming as rational in the name of state neutrality.
AP1 (Applicant): This is called denial of justice in my book.
AP1 (Applicant): And the government should have had the courage to assume it as such, not by overturning the meaning of a well-established legal phrase.
AP1 (Applicant): This is a context of this case and not its merits.
AP1 (Applicant): So I cannot agree with the government's submission that the applicant's application can be considered an axio popularis.
AP1 (Applicant): If our it's an axio popularis, then what is the defense of the government, who all concentrated only on the general issues at stake?
AP1 (Applicant): In the applicant's case, a court of appeal and the high court especially mentioned the reason for limiting their right to a court, such as the government and, at the more general level, the constitutional court did, not to correct an abuse with another abuse, notwithstanding the unfairness and bias in equaling applying the law today with a blatant abuse of the communist regime and not an act of reparation as the government tried to present the 1948 Act, the applicants wonder on what would the concrete abuse generating by applying the civil law in their case had been.
AP1 (Applicant): The opposing party would have not been left without a place of worship.
AP1 (Applicant): Its members would not have been forced to leave their church.
AP1 (Applicant): They would still have two churches for practicing religion, one of which former Greek Catholic.
AP1 (Applicant): But such an analysis was never made by the domestic courts finding against the applicants.
AP1 (Applicant): If the chamber judgment stays as it is, no such analysis would ever be made.
AP1 (Applicant): The will of the majority will be applied with full power as a sole criterion as being endorsed by the European court.
AP1 (Applicant): With regards to the questions the judges addressed the applicants, in respect of the question on the so-called analysis on the merits done by the Alba Iulia Court of Appeal and the High Court, two of the three judges of the High Court of Cassation and Justice, it is our interpretation, while reading the domestic procedure, the domestic legislation, and the judgment, that there was not a full analysis on the merits and full comparisons of title to properties done by the exact same courts which applies a principle of majority.
AP1 (Applicant): The Junidwara Tribunal and also the minority judge in the High Court also performed a comparison of the titles to properties based on the same legal provision of the civil code, but without applying the principle of majority.
AP1 (Applicant): And their result was the exact opposite of those of the judges applying the principle of majority.
AP1 (Applicant): So it is our interpretation.
AP1 (Applicant): And that's why I have insisted so much on the context of the affair and of the jurisprudence of the courts, not because we want to challenge the law as such in this particular case, but really understand what is going on in these cases.
AP1 (Applicant): So the judges applying the principle of majority, putting it at the core of their judgment on the merits, so-called merits, will also find ways to overturn the provisions of the civil law as well.
AP1 (Applicant): For example, in this particular case, and there were questions about comparing titles to property in the system as well, what it matters is to see, and there is a whole jurisprudence before the European Court on property cases against Romania as such, and probably you are familiar with it.
AP1 (Applicant): The procedure through which these churches should have been passed from the Greek Catholics with the help of the state to the Orthodox was provided by the decree 368 per 1948, and together with the decree 177 of 48 on churches.
AP1 (Applicant): And the provision, the procedure provided for in these particular pieces of legislation was not followed in this specific case.
AP1 (Applicant): So that should have been taken into consideration when comparing the titles to property as well.
AP1 (Applicant): And in the Romanian system, what it matters is not what title is the newest, but what is the most consolidated, as we call it.
AP1 (Applicant): And you have the initial title of the Greek Catholics, which was registered in the land book, and you have then a title, a non-existent title of the Orthodox, because they had no title.
AP1 (Applicant): They registered in the late 60s their property based on the decree 358 of 84, but without the conditions of that decree being met.
AP1 (Applicant): So that should have been the analysis of the courts comparing the titles to property.
AP1 (Applicant): You will find that kind of analysis, but a very brief one, in the decisions which enforce the principle of majority.
AP1 (Applicant): On the other hand, you will find a detailed analysis of all pieces of legislation by the courts that are not applying the principle of majority.
AP1 (Applicant): And of course, I'm referring to the present case, not any other case.
AP1 (Applicant): There was a question about how the principle of majority and the provision of common law are compatible.
AP1 (Applicant): Indeed, it is probably the heart of the matter if the two are compatible or not.
AP1 (Applicant): As under the common law, the will of a one party does not relevant at all to the outcome of the procedure.
AP1 (Applicant): It is our interpretation, especially in the light of the jurisprudence quoted by the government, they say now it is quite constant, and we agree with it.
AP1 (Applicant): The Greek Catholics will lose.
AP1 (Applicant): So that's why if there was a way to combine the two and to result in various outcomes, depending on various local factors from community to community, the jurisprudence and the interpretation and combining the two, the principle of the majority and the principle of the will of the majority and the provision of common law, which have resulted in a diverse case law where depending on the concrete facts, the Greek Catholics might lose or might win.
AP1 (Applicant): Yes, we would have agreed that the two can be combined.
AP1 (Applicant): But in reality, we see very clearly, and now even more, that in the material time, the applicants addressed the domestic courts.
AP1 (Applicant): There is no way to combine the two, because the only way they managed to combine them was to create a system when one party always loses.
AP1 (Applicant): Unless, of course, the other party agrees, because the government provided a couple of cases where actually the Greek Catholics won in court because the Orthodox agreed to return the church.
AP1 (Applicant): Why there is need for a court procedure for that, we don't know.
AP1 (Applicant): Another question referred to Article 4 of the decree law, 126 per 1990.
AP1 (Applicant): Well, indeed, the applicants in the current case, I'm talking about the parish in Lupen, the Lupen parish, because there is another Greek Catholic parish in Lupen, but then did not apply for financial support based on Article 4.
AP1 (Applicant): These supports the applicants received, and it's mentioned on a more general scale to support Greek Catholics received from the state, is not based on Article 4.
AP1 (Applicant): It's based on a general law that provides for financial support of all churches and recognized religions in Romania, not something specific for Greek Catholics as Decree 126 is.
AP1 (Applicant): But there was a well-founded reason why they have not asked for the financial support to build a new church.
AP1 (Applicant): And that was related to the local conditions in Lupen.
AP1 (Applicant): As I said, there were two Greek Catholic churches in Lupen, and two Greek Catholic parishes were re-established after 1990.
AP1 (Applicant): And they thought, at the same time, that the two churches are with the Orthodox now, and the Orthodox have a third church as well.
AP1 (Applicant): So they thought it is rather normal that they would ask for this church in kind to have it as such.
AP1 (Applicant): And after that was not possible, and after all the fights, for the other church, they preferred not to ask it before courts, but to ask for some financial support.
AP1 (Applicant): The fact is, even today, there is no church built.
AP1 (Applicant): They did receive land, but they have no money to build the church.
AP1 (Applicant): That's why the applicants in the current case wanted at least to get one of the churches of Lupen back in order to be able to practice their religion.
AP1 (Applicant): And I was stunned by the government's comments that giving back a church would actually mean infringement of the right to practice religion by the majority.
AP1 (Applicant): Why is it not the other way also, that if you're not giving a church back, and the minority does not have a church, why is not an infringement on their right to religion?
AP1 (Applicant): But that is not the subject matter of today's hearing.
AP1 (Applicant): As this part of the complaint, the breach of Article 9 is not before you today.
AP1 (Applicant): But in the chamber procedures, the government was quite strong in saying there is no breach of the minority's rights to a religion due to the fact they have no access to a church.
AP1 (Applicant): Now, why one way to the majority and another way for the minority?
AP1 (Applicant): With a question on the census, it was assessing the will in this particular case or not, according to our information.
AP1 (Applicant): There was no.
AP1 (Applicant): I mean, the local authorities do have the possibility to organize a form of consulting the population on a specific matter.
AP1 (Applicant): We are not aware of something like that.
AP1 (Applicant): We are not aware that something like that was done.
AP1 (Applicant): The data that are used by the courts when saying there are 500 Greek Catholics and 26,000 Orthodox in Lupen are part of the general census data, the previous one, not the latest.
AP1 (Applicant): And it's just a statement of the person that were interviewed during the census on their religion.
AP1 (Applicant): It has nothing to do with the practice of religion, or to the use of a church as part of the practice.
AP1 (Applicant): It's just general data.
AP1 (Applicant): And those were taken into consideration by the court in their reasonings.
AP1 (Applicant): With referring to the question of the market value of the churches that were returned, and those who stayed, which stayed with the Orthodox, I'm not aware of any such analysis being performed so far.
AP1 (Applicant): I only know of specific cases.
AP1 (Applicant): We have the data provided by the government with a number of the churches that, one way or another, were returned to the Greek Catholics via court proceedings only a couple of dozens, and via some form of local agreement or express of the will of the majority.
AP1 (Applicant): There are a bit more than 250, if I remember correctly, from the data provided by the government.
AP1 (Applicant): But from practice and from speaking with the applicants in the current cases, one is one that is aware of more cases than one.
AP1 (Applicant): Usually, the Orthodox are willing to give back churches that no longer use, which are old, and which are of no value to them anymore, even if they keep them closed, just not to return them to the Greek Catholics.