AS TO THE ADMISSIBILITY OF
Applications nos. 412/03 and 35677/04
by THE HOLY SYNOD OF THE BULGARIAN
ORTHODOX CHURCH AND OTHERS
The European Court of Human Rights (Fifth Section), sitting on 22 May 2007 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above applications lodged on 12 December 2002 and 28 September 2004 respectively and,
Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the third party, the Holy Synod of the Bulgarian Orthodox Church presided over by Patriarch Maxim,
Having deliberated, decides as follows:
Application no. 412/03 was submitted by Metropolitan Inokentii on behalf of the Holy Synod of the Bulgarian Orthodox Church (the leadership formerly presided over by the late Patriarch Pimen) (“the applicant organisation”).
Application no. 35677/04 was submitted by Mr Assen Iordanov Milushev, a Bulgarian national born in 1952 and residing in Sofia, and five other individuals – Christian Orthodox believers and employees of the applicant organisation: Mr Petar Ivanov Petrov, Mr Stoyan Ivanov Gruichev, Ms Liubka Borisova Nikolova, Ms Rositsa Danailova Grozdanova and Ms Liliana Markova Shtereva.
The applicants were represented by Mr L. Popov, a lawyer practising in Sofia. The respondent Government were represented by their Agent, Mrs M. Karadjova, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The Bulgarian Orthodox Church between 1949 and 1989
In 1949 the authorities in Bulgaria enacted legislation regulating the organisational structure and functioning of religious denominations (the Religious Denominations Act 1949).
In accordance with the Act, each religious denomination had to apply for registration and approval of its statute by the Council of Ministers and to register its leadership with the Directorate of Religious Denominations (“the Directorate”) at the Council of Ministers. The local leaderships were registered by the municipal authorities.
In reality, the leadership of religious denominations was pre-approved or even directly nominated by the authorities.
The Bulgarian Orthodox Church was no exception. In 1971, the Central Committee of the Bulgarian Communist Party nominated Metropolitan Maxim for Patriarch and the Holy Synod, the Church’s collective governing body, elected him on that post. At the time of this election, the membership of the Holy Synod had not been renewed for sixteen years, contrary to the statute of the Church.
In 1971 Patriarch Maxim’s leadership was registered by the Council of Ministers under the 1949 Act.
Patriarch Maxim has been internationally accepted as the Head of the Bulgarian Orthodox Church.
2. Divisions and claims for leadership 1989-2003
Soon after the beginning of the democratisation in Bulgaria in the end of 1989, a number of Christian Orthodox believers and politicians sought to replace the leadership of the Bulgarian Orthodox Church. They considered that Patriarch Maxim had been proclaimed Bulgarian Patriarch in violation of traditional canons and the statute of the Church and that he had been responsible for acts incompatible with the duties of the Patriarch.
Patriarch Maxim also had supporters. This situation caused divisions and internal conflict within the Church and among politicians.
The relations between State and religious denominations continued to be regulated by the 1949 Act, which was interpreted in the administrative practice of the Directorate and the Council of Ministers as prohibiting parallel organisations of the same religious denomination and requiring that each religious denomination must have a single leadership. Thus, despite the divisions in the two main religious communities in the country, the Christian Orthodox and Muslim communities (within which separate leaderships exercised de facto control over places of worship and monasteries), the law continued to treat each religious denomination as an unified legal person represented and governed by the leadership registered with the Council of Ministers under the 1949 Act.
(b) Developments until 2002
In the end of 1991, following Parliamentary elections, a new government was formed by the Union of Democratic Forces and the Movement for Rights and Freedoms.
On 25 May 1992 the Directorate issued a decision stating that the nomination of Maxim as Bulgarian Patriarch and Head of the Church in 1971 had been in violation of the statute of the Church and ordered his replacement by an interim council pending the election of new leadership by a Church Convention. Metropolitan Pimen was appointed chair of the interim council.
The leadership presided over by Patriarch Maxim appealed to the Supreme Court. By judgments of 2 July 1992 and 5 November 1992 the Supreme Court rejected the appeal. It stated that the Directorate had merely certified that another person represented the Church and its decision, therefore, had not affected Patriarch Maxim’s rights. In so far as the Directorate had also appointed an interim leadership, that decision was null and void as being ultra vires, the Directorate lacking the power to make appointments in the Church.
In the following years, the leadership dispute within the Church continued, each of the two leaderships having its supporters among the clergy and the believers. A number of churches and monasteries became known as “belonging” to the applicant organisation, popularly referred to as “the alternative Synod”, since the religious ministers in those places recognised the leadership of the applicant organisation. In some cases, “alternative” church councils, belonging to the applicant organisation, obtained notary deeds for such properties. Also several churches were built during the relevant period partly with funds raised by the applicant organisation. Such was the case of, among others, the church St Tsar Boris I in Sofia. It appears that there were also cases in which the applicant organisation took possession of existing buildings with the assistance of the prosecuting authorities.
At the same time, the official position of the Council of Ministers and the Directorate (expressed, inter alia, in decision R-63 of 9 November 1995 of the Deputy Prime Minister) was that Patriarch Maxim remained the sole legitimate leader of the Bulgarian Orthodox Church, as registered with the Directorate.
At all relevant times, Patriarch Maxim’s leadership enjoyed international support from Orthodox Churches and other religious organisations worldwide.
On 4 July 1996, a Church Convention organised by several religious leaders of the “alternative Synod” (the applicant organisation), elected Metropolitan Pimen as Patriarch and Head of the Church and Inokentii as Metropolitan of Sofia.
In 1996 Patriarch Pimen applied to the Directorate seeking registration as the official leadership of the Bulgarian Orthodox Church. The Directorate did not reply. Patriarch Pimen appealed to the Supreme Court against the tacit refusal.
By judgment of 13 December 1996 the Supreme Court, noting that the Church was a registered religious denomination and that the Directorate was under a duty to examine requests for changes in the leadership of religious denominations, found that the Directorate’s tacit refusal to examine the applicant organisation’s request was unlawful. The Directorate apparently never complied.
The leadership presided over by Patriarch Maxim considered that the acts of Patriarch Pimen were contrary to the 1950 statute of the Bulgarian Orthodox Church.
In December 1996 the Directorate examined and granted a request submitted by Patriarch Maxim for the registration of amendments in the structure of the Church. That decision was appealed against by the applicant organisation to the Supreme Administrative Court.
By judgment of 5 March 1997 the Supreme Administrative Court declared the Directorate’s decision of December 1996 null and void. As a result, the 1996 registration of the Church as presided over by Patriarch Maxim was cancelled.
In February 1997 the government of the Bulgarian Socialist Party stepped down and an interim cabinet was appointed. Following Parliamentary elections, a new government of the Union of Democratic Forces was formed.
In 1997 the mayor of Sofia granted the registration request of the applicant organisation’s local leadership. In the ensuing judicial proceedings instituted by the other leadership, in its judgment of 18 October 2000 the Supreme Administrative Court noted the developments in the Church in the previous years and concluded that two religious organisation bearing the name Bulgarian Orthodox Church existed in Bulgaria. Therefore, the Church presided over by Patriarch Maxim had no standing to appeal against decisions concerning the Church presided over by Patriarch Pimen. The Supreme Administrative Court thus rejected the appeal as inadmissible.
Patriarch Pimen passed away in April 1999. The applicant organisation appointed Metropolitan Inokentii to act as Chair of the Holy Council and its representative.
On 28 June 2001 the applicant organisation asked the Directorate to register the new leadership. As no reply was received, the applicant organisation submitted an appeal to the Supreme Administrative Court. On 9 July 2002 the court rejected the appeal, finding that the issue had already been decided by judgment of 13 December 1996 (see above).
The Directorate and the Council of Ministers never registered the applicant organisation.
2. The authorities’ measures to put an end to the divisions in the Bulgarian Orthodox Church
(a) The new legal regime
In June 2001, following Parliamentary elections, the government of the Union of Democratic Forces was replaced by a government formed by the National Movement Simeon the Second.
Representatives of the new ruling political party publicly expressed their opinion that Patriarch Maxim was the legitimate leader of the Church and stated their intention to introduce legislation with the aim to put an end to the divisions in the Church.
That was done with effect from 1 January 2003, when the new Religious Denominations Act 2003 came into force (see below, Relevant domestic law and practice).
The new Act provided, inter alia, for the ex lege recognition of the Bulgarian Orthodox Church. The Church had to be registered by the Sofia City Court, ex officio. It is unclear whether that was done and, if so, whether the registration specified the name of the person heading the Church.
(b) The applicant organisation’s attempts to obtain recognition under the new legal regime
On an unspecified date in 2003 the applicant organisation applied to the Sofia City Court for the registration of its local organisation in Sofia. The request was made by Metropolitan Inokentii, who stated that he headed and represented the Holy Synod and the Bulgarian Orthodox Church.
On 23 September 2003 the Sofia City Court rejected the request. The court noted that registration could only be granted if requested by the person representing the Church. The court further stated that the fact that the Bulgarian Patriarch was Maxim was “publicly known and internationally recognised”. The opinion of five judges of the Constitutional Court in a judgment of 15 July 2003 allegedly supported that view (see below). On that basis the court declared the request inadmissible as it had not been submitted by Patriarch Maxim.
On appeal, the Sofia City Court’s judgment was upheld by the Sofia Appellate Court on 4 November 2003. The Appellate Court noted that the applicant organisation had not submitted a copy of its internal statute and had not proved that Metropolitan Inokentii represented the Church. In particular, the judgments of the Supreme Court of 1992 (see above), relied upon by the applicant organisation, did not prove the relevant facts. Moreover, since the entry into force of the new Religious Denominations Act 2003, it was no longer possible for the executive branch to interfere with the internal organisation of religious organisations. Therefore, the information received from the Directorate about “current internal and international aspects concerning the Church” had been for information only.
The final decision was that of the Supreme Court of Cassation of 8 January 2004. The Supreme Court of Cassation upheld the lower courts’ reasoning and stated that the request was inadmissible in the absence of proof about the leadership of the Church and its representative power.
(c) Dismissal of religious ministers associated with the applicant organisation and their forceful eviction from places of worship and other buildings
During the relevant period some religious ministers who associated with the applicant organisation decided to return under the leadership of Patriarch Maxim. In respect of those who did not do so, in 2003 and later the leadership of the Bulgarian Orthodox Church presided over by Patriarch Maxim issued decisions terminating their functions of religious ministers. Some of the ousted ministers unsuccessfully challenged such “dismissals” before the civil courts.
On an unspecified date the Church, as represented by Patriarch Maxim, invited the applicant organisation to vacate all churches and religious buildings it controlled. As that was not done, on 2 July 2004 a complaint to the prosecution authorities was filed.
On an unspecified date in July 2004 the Chief Public Prosecutor’s Office instructed local prosecutors to assist the Church in recovering its property. On 20 July 2004 a number of local prosecutors issued orders for the eviction of persons “unlawfully occupying” churches and religious institutions.
In one of those decisions, issued by the Sofia prosecutor regarding the church “Saint Paraskeva”, it was noted that the Religious Denominations Act 2003 did not allow the existence of more than one religious denomination bearing the same name and prohibited the use of the name and property of a religious denomination by persons who had seceded from it. The prosecutor further observed that the courts had rejected the applicant organisation’s request for registration in Sofia and that its representatives had been invited to leave the church voluntarily. Thus, the applicant organisation unlawfully prevented the legitimate religious minister appointed by the Church to perform his duties in the “Saint Paraskeva” church. For these reasons police eviction was ordered.
On 21 July 2004 early in the morning police blocked more than fifty churches and monasteries in the country, evicted the religious ministers and staff who identified themselves with the applicant organisation and transferred the possession of the buildings to representatives of the other leadership. The applicant organisation submits that among those buildings there were several new churches, built entirely under its leadership.
During the police action several persons, including Ms Shtereva, one of the applicants, sustained light injuries. Ms Shtereva was pushed and dragged by police officers. At about noon on 21 July 2001 she underwent a medical examination which revealed the presence of several haematomas on her arms, buttocks and legs. Ms Shtereva has not filed a complaint with the police or the prosecuting authorities.
Some of the ousted religious ministers sought the assistance of the prosecuting authorities against the forceful evictions. That was refused in decisions stating that the persons who had entered into possession of the disputed buildings were legitimate representatives of the Bulgarian Orthodox Church and the buildings belonged to it.
(d) Other developments
In 2005 criminal proceedings were opened against Metropolitan Inokentii and Metropolitan Gavrail for usurping the functions of religious ministers contrary to Article 274 of the Criminal Code.
B. Relevant domestic law [and practice]
1. The Constitution
“(1) Religions shall be free.
(2) Religious institutions shall be separate from the State...
(4) Religious institutions and communities, and religious beliefs shall not be used for political ends.”
“(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers.
(2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.”
By judgment of 11 June 1992 the Constitutional Court, interpreting the 1991 Constitution, stated, inter alia, that the State should not interfere with the internal organisation of religious communities and institutions except in accordance with Articles 13 § 4 and 37 § 2 of the Constitution.
2. The Religious Denominations Act 1949
The Act governed the organisational structure and functioning of religious denominations between 1949 and 2003, most of its provisions relevant to the present case having remained unchanged.
It provided that each religious denomination had to apply for registration and approval of its statute by the Council of Ministers and to register its leadership with the Directorate. The local leaderships were registered by the municipal authorities.
The 1949 Act was interpreted in administrative practice as prohibiting parallel organisations of the same religious denomination and requiring that each religious denomination must have a single leadership.
During the relevant period, the judicial practice in appeals against Council of Ministers’ decisions on the registration of religious denominations and their leaderships was contradictory. In some cases the courts took the view that the Council of Ministers and the Directorate enjoyed unfettered discretion in such registrations. In other cases the courts reviewed the change-of-leadership decisions for compliance with the statute of the respective religious denomination, as registered by the Directorate. In one case the Supreme Court of Cassation recognised the existence of two parallel organisations of one and the same religious denomination (see the following judgments of the Supreme Administrative Court: judgment no. 4816 of 21 September 1999 in case no. 2697/99, judgment no. 2919 of 28 April 2001 in case no. 8194/99 and judgment no. 9184 of 16 October 2003 in case no. 6747/02).
3. The Religious Denominations Act 2003
The Act provides for judicial registration of all religious denominations except the Bulgarian Orthodox Church, which is recognised as legal person ex lege. Section 10 of the new Act provides, inter alia, that the Bulgarian Orthodox Church is a legal person whose structure is determined by its internal statute. In accordance with the same provision, the Church “is headed by the Holy Synod and is represented by the Bulgarian Patriarch ...”
In accordance with paragraph 2 of the transitory provisions, the Bulgarian Orthodox Church and other denominations registered at the Directorate under the 1949 Act are re-registered ex officio at the Sofia City Court. Thereafter, the central leadership of the re-registered religious denominations must apply to the respective Regional Court for the registration of their local organisations.
Section 15(2) provides that there can be no more than one religious denomination with the same name. Section 36 provides that a person who acts on behalf of a religious denomination without authorisation is to be fined by the Directorate of Religious Denominations.
Paragraph 3 of the transitional provisions to the Act provides that persons who had seceded from a registered religious institution before the Act’s entry into force in breach of the institution’s internal rules are not entitled to use the name of the religious institution or its assets.
4. The Constitutional Court’s judgment of 15 July 2003
In February 2003 fifty members of Parliament asked the Constitutional Court to repeal certain provisions of the new Religious Denominations Act 2003 as being unconstitutional and contrary to the Convention.
Paragraph 3 of the transitional provisions to the new Act was among the provisions challenged. Some of the other provisions that are relevant to the applicants’ complaints, such as Sections 15(2) and 36 of the new Act, were not challenged.
The Constitutional Court gave judgment on 15 July 2003.
The Constitutional Court could not reach a majority verdict, an equal number of judges having voted in favour and against the request to declare paragraph 3 of the transitional provisions unconstitutional. According to the Constitutional Court’s practice, in such circumstances the request for a legal provision to be struck down is considered to be dismissed by default.
The judges who voted against the request considered, inter alia, that the principle of legal certainty required that persons who had seceded from a religious denomination should not be allowed to use its name. Further, it was obvious that they could not claim part of its assets, as the assets belonged to the religious denomination as a legal person.
The judges who considered that the provision was unconstitutional stated that it purported to regulate issues that concerned the internal organisation of religious communities and thus violated their autonomy. Those judges further stated that the provision, applied in the context of existing disputes, favoured one of the groups in a divided religious community and, therefore, did not contribute to maintaining tolerance but rather frustrated that aim. It thus violated Article 9 of the Convention.
5. Article 274 of the Criminal Code
This provision makes it punishable to usurp the functions of a public figure or to wear attire or symbols one is not entitled to. The punishment is imprisonment of up to one year or community labour („пробация”).
C. Relevant International Material
In its resolution 1390(2004), adopted on 7 September 2004, the Parliamentary Assembly of the Council of Europe criticised the new Religious Denominations Act 2003 and stated, among other things:
“The strongest doubts concern the state interference allowed for, or even operated directly by the [Religious Denominations Act 2003], in the internal affairs of religious communities. This concerns in particular the leadership quarrel between the two Bulgarian Orthodox synods led, respectively, by Patriarch Maxim and by Metropolitan Innokentii, who disputes the legitimacy of Maxim as Patriarch. The ex lege recognition of the Bulgarian Orthodox Church, as defined meticulously in Article 10, paragraph 1, exempting this institution from the usual registration procedure, which also includes a check on the legitimacy of the leadership, is generally seen as intended to settle the dispute between Maxim and Innokentii in favour of the former. The alternative synod is effectively barred from registering as a new religious institution by the prohibition against the registration of another institution using the same name and headquarters and the punitive provisions empowering the Directorate of Religious Affairs to sanction “unauthorised representatives”...
The Assembly therefore recommends to the Bulgarian authorities: ...as regards Article 10 paragraph 2 [of the Act] (ex lege recognition of the Bulgarian Orthodox Church): either to delete this provision outright, thereby subjecting the Bulgarian Orthodox Church to the same registration requirements as other religious communities; or to ensure in other ways without interference by the executive that the leadership of the Bulgarian Orthodox Church is legitimate according to Orthodox canonical law; ... as regards Article 15, paragraph 2 (no registration of an identical religious community): either to delete this provision, or to ensure its interpretation in such a way that only the strict and literal identity of names and headquarters precludes the registration of a breakaway group;... regarding the registration procedure: to clarify the non-binding character of the opinions of the Directorate of Religious Affairs; to ensure the adversarial nature of the registration procedure, including free access to information, a fair hearing to be given to the applicant and the proper motivation of decisions ...”
The applicants relied on Articles 6, 9 and 13 of the Convention and Article 1 of Protocol No. 1. One of the applicants, Ms Shtereva, also relied on Article 3 of the Convention in respect alleged police ill-treatment.
The applicants complained that in 2003 and the following years the State interfered in the internal dispute within the Church and with their freedom of religion. In particular, the applicant organisation and believers who recognised its leadership had been evicted from their places of worship and pressure had been brought to bear on them to accept against their will the leadership of Patriarch Maxim. Furthermore, they had been deprived of their property – churches built with the believers’ donations.
The applicants submitted that the impugned acts had been arbitrary, unlawful and unnecessary in a democratic society. In their view, there was no justification for forcing them to accept Patriarch Maxim’s leadership. In so far as there was a dispute about property, it should have been decided by the courts, not by prosecutors. The applicants also submitted that they did not have effective remedies and access to court.
A. Alleged violation of Article 3 of the Convention in respect of Ms Shtereva
Ms Shtereva, one of the applicants, complained that she had been beaten during the police action on 21 July 2004.
The Government stated that Ms Shtereva had not filed a complaint against the police.
Ms Shtereva did not comment.
The Court notes that Ms Shtereva failed to submit to the prosecuting authorities a complaint in respect of the alleged ill-treatment. Her complaint under Article 3 of the Convention submitted directly to the Court must therefore be rejected under Article 35 §§ 1 and 4 for failure to exhaust domestic remedies.
B. Alleged violations of Articles 6, 9 and 13 of the Convention and Article 1 of Protocol No. 1
1. The applicant organisation’s locus standi and name
The Government disputed the applicant organisation’s locus standi, stating that it had never been registered and was not, therefore, a non-governmental organisation within the meaning of Article 34 of the Convention but rather a group of individuals. Even if it were accepted that the applicant organisation was in principle entitled to lodge a complaint, it could not do so under the name of “Holy Synod of the Bulgarian Orthodox Church” because that would be tantamount to usurping the name of another organisation, the legally recognised Holy Synod of the Bulgarian Orthodox Church presided over by Patriarch Maxim. Furthermore, referring to a newspaper article, the Government stated that Metropolitan Inokentii, who had signed the application on behalf of the applicant organisation, had probably been replaced by decision of the applicant organisation of 2004.
The applicants replied that their complaints concerned the Government’s arbitrary and unlawful acts preventing the applicant organisation’s recognition and activities. The applicant organisation, the Holy Synod of the Bulgarian Orthodox Church represented by Metropolitan Inokentii, was not a new entity but a legitimate leadership of the Church and was entitled to use its name. The applicants protested against the Government’s refusal to recognise the fact that the Christian Orthodox community in Bulgaria had been divided in the last fifteen years and that the “alternative Synod” legitimately represented at least part of the Bulgarian Orthodox Church. The applicants complained that the law did not allow partitions in divided religious communities and that the authorities had denied the applicant organisation’s legitimate claim to existence and functioning.
The third party, the Holy Synod of the Bulgarian Orthodox Church presided over by Patriarch Maxim, considered that it was the sole legitimate continuation of the Bulgarian Orthodox Church, founded in the 9th century. In its view the applicant organisation had been created through arbitrary State interference, between 1992 and 2002, in violation of the statute of the Church. It had no legitimacy in canon or in law.
The Court reiterates that a Church or ecclesiastical body may, as such, exercise on behalf of its adherents the rights guaranteed by Articles 9 and 11 of the Convention and that registration or legal personality is not a pre-condition for exercising such rights or for filing an application before the Court under Article 34 of the Convention (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000-VII, mutatis mutandis, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001-IX, Supreme Holy Council of the Muslim Community v. Bulgaria, no. 39023/97, 16 December 2004 and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, ECHR 2001-XII). Therefore, the applicant organisation has locus standi before the Court.
As to the applicant organisation’s name, the Court notes that this question is closely linked to the merits of the complaints under examination. At the present stage of the proceedings, the Court considers that there is no valid reason for refusing to use the name the applicant organisation had chosen for itself. In order to avoid confusion, in the present case, when using the name “Holy Synod of the Bulgarian Orthodox Church” by reference to the applicant organisation, it is sufficient to add words such as “represented by Metropolitan Inokentii”.
Finally, noting that Metropolitan Inokentii was the leader of the applicant organisation at the time when application no. 412/03 was introduced and that it has not been shown that the applicant organisation did not wish to pursue the case, the Court rejects the remainder of the Government’s locus standi objections.
2. Alleged failure to exhaust all domestic remedies
The Government stated that the applicant organisation had not appealed against some of the decisions issued between 1996 and 2002 by administrative bodies or courts, that following the entry into force of the new Religious Denominations Act 2003 the applicant organisation’s request for registration had been refused for lack of proof that it had been submitted by representatives of the Bulgarian Orthodox Church presided over by Patriarch Maxim, that the applicant organisation should have requested registration as a new religious denomination, that the applicants had not appealed before a higher prosecutor against the regional prosecutors’ decisions of 2004 to evict them from churches and other buildings and that they had not brought a rei vindicatio or other similar civil action before the courts.
The applicants replied that they had made use of all possibilities under domestic law.
The Court observes that the applicants made use of a multitude of legal actions against the impugned administrative and judicial decisions and that their main complaint is directed against the Religious Denominations Act 2003 as interpreted by the domestic authorities. It is not disputed that it was not possible for the applicants to challenge the Act as such and that their attempts to challenge its enforcement against them were unsuccessful. In these circumstances the Court concludes that the applicants have exhausted all effective domestic remedies in respect of their complaints under Articles 6, 9 and 13 of the Convention and Article 1 of Protocol No. 1.
3. The parties’ arguments on the substance of the complaints
(a) The Government
The Government considered that there had been no State interference with the applicants’ rights under Articles 9 and 11 of the Convention.
In particular, the Religious Denominations Act 2003, which provided that the Bulgarian Orthodox Church, unlike all other religious denominations, did not need to register with the Directorate and thus was subject to a special legal regime, was based on the existing similar legal solutions in a number of European countries, such as, for example, Denmark and Italy.
The 2003 Act did not in any way inhibit the free formation and activities of religious communities. The applicants were free to found a religious organisation and obtain legal personality by registering with the Directorate or, if they so wished, function as a non-registered group. The applicants had never sought registration under the 2003 Act.
It was clear – in the Government’s view – that what the applicants aimed at was not the free exercise of their religion but administrative control over an existing religious denomination and its property.
In so far as the applicants drew parallels with the case of Hasan and Chaush v. Bulgaria [GC], no. 30985/96, ECHR 2000-XI, the case at hand was different in that the canons of the Orthodox Church provided that the Patriarch was elected for life. The traditional canons did not allow challenges to his legitimacy. Patriarch Maxim was therefore the legitimate and internationally recognised Bulgarian Patriarch and would continue to hold this title until the end of his life. By recognising that fact the State had not interfered with the internal affairs of the religious community. To accept the contrary would be tantamount to considering that by recognising the Pope as Head of the Roman Catholic Church, the Member States of the Council of Europe interfered with the rights of believers who did not recognise his leadership.
As regards the events of July 2004, the Government stated that the prosecuting authorities and the police had assisted the Bulgarian Orthodox Church in recovering its property, unlawfully occupied by persons associated with the applicant organisation. The Church had sought the help of the public authorities to enable its ministers to take effective control of the Church’s property. Had the authorities refused assistance, they would have become liable for a failure to abide by their positive obligations under Article 9 of the Convention to secure the peaceful enjoyment of religious freedoms by the followers of the Bulgarian Orthodox Church. The applicants were free to practice their religion, in private or in public, by opening their own places of worship but could not lay claims on the property of the Church. Indeed, the events of July 2004 illustrated the fact that the applicants’ struggle was not about freedom of religion – which they enjoyed – but about control over property.
Finally, in the Government’s view, Article 9 did not enshrine a State duty to secure a right of dissent within a religious organisation. The State authorities’ duties under the Convention in respect of a member of a religious denomination who did not accept the religious leadership was limited to securing him or her a right to leave the organisation.
In respect of the complaints under Article 6 and Article 1 of Protocol No. 1 to the Convention, the Government stated that the applicants had not shown that they had property rights in the temples or other buildings at issue or other interest protected by Article 1 of Protocol No. 1. Their claim that some of the churches from which they had been evicted had been built by them had been unproven. In the Government’s view, the prosecuting authorities had lawfully acted to remove the applicants from the premises, upon request by Patriarch Maxim. In particular, in accordance with the Religious Denominations Act 2003 the Head of the Bulgarian Orthodox Church was its Patriarch. For the prosecuting authorities it had been clear that Maxim was the Patriarch.
The Government also stated that no separate issue arose under Article 13 of the Convention.
(b) The applicants
The applicants stated that the Religious Denominations Act 2003 in itself constituted an arbitrary interference with their rights under Article 9 of the Convention and Article 1 of Protocol No.1 and the unavailability of remedies in this respect contravened Articles 6 and 13 of the Convention.
The Government’s reference to the legal regime of the predominant religions in Denmark and Italy was misleading and inappropriate. The crucial difference in the present case was that the ex lege recognition of the Bulgarian Orthodox Church had been introduced in the Religious Denominations Act 2003 in the context of an on-going dispute between two leaderships and had, moreover, aimed at putting an end to this dispute by favouring one of the two leaderships to the exclusion of the other. However, the Court had held, in particular, in Hasan and Chaush v. Bulgaria (cited above), that the use of legislation and decrees to place a religious community under a single leadership and the removal of a dissenting group from places of worship or other property constituted arbitrary State interference with the internal organisation of the religious community. The heavy-handedness and discriminatory intent of the Bulgarian Government in the present case not only mirrored their approach criticised by the Court in Hasan and Chaush but far surpassed it in gravity.
The applicants stressed that the Government’s suggestion that they should register as a new religious denomination was no answer to their grievances. The present case did not concern a refusal of registration of a new religious group but a State interference in an internal conflict within an existing religious denomination. The Government misleadingly tried to represent the applicant organisation as usurpers of Church property, but omitted important facts such as that the leaders and religious ministers of the applicant organisation had always been part of the Bulgarian Orthodox Church and of its leadership, some of them for decades. Furthermore, many believers did recognise the applicant organisation as the legitimate leadership of the Bulgarian Orthodox Church. Instead of helping the two wings in the Bulgarian Orthodox Church in a peaceful co-existence, the authorities decided to remove one of them and give its full support to the other.
The applicants also considered that a number of provisions of the Religious Denominations Act 2003 were vague and the authorities’ refusal to recognise the applicant organisation was arbitrary. In particular, since the Act provided that the leadership of the Bulgarian Orthodox Church did not need to register, it was unclear on what basis did the authorities determine – in 2004 – that Patriarch Maxim and not Metropolitan Inokentii represented the Bulgarian Orthodox Church. The grave deficiencies of the Act had been noted by the Parliamentary Assembly of the Council of Europe in its Resolution 1390 (2004).
The applicants further stated that the authorities aimed at destroying the applicant organisation via, among other means, depriving it of any property. The applicants provided a list of churches that had been constructed after 1996, when Patriarch Pimen and later Metropolitan Inokentii had taken over as leaders of the Bulgarian Orthodox Church. The applicants also listed the churches for which they possessed notary deeds issued in the name of the church councils belonging to the applicant organisation and churches still under construction.
The applicants stressed that their organisation had been deprived of its property through legislative acts and arbitrary decisions of the prosecuting authorities. In their view, they stood no chance to seek protection from the civil courts, since the courts refused to recognise them as legitimate representatives of the Bulgarian Orthodox Church.
(c) The third party
The third party made submissions on the history of the Bulgarian Orthodox Church and the leadership dispute since 1989. They stated, among other things, that the Bulgarian Orthodox Church was an ecumenical Church administered by the Holy Synod. In accordance with its statute, working against the unity of the Church was an offence punishable by excommunication and anathema.
Patriarch Maxim had been validly elected in 1971 and had been recognised worldwide as the head of the Bulgarian Orthodox Church, including by the Ecumenical Patriarch Bartholomew and all Orthodox Churches. Moreover, all Orthodox Churches had condemned the efforts of the applicants to divide the orthodox believers in Bulgaria and had expressed their support for the Bulgarian Orthodox Church presided over by Patriarch Maxim.
The third party further submitted that the applicant organisation had been the product of direct State interference in the internal affairs of the Bulgarian Orthodox Church, between 1992 and 2002. As it had been noted by human rights groups, in 1992 “the new Government [had] sought to remove ... a number of clergy in different religions, including the head of the Orthodox Church ... [on] suspicion that these clergy [had not followed] the Government policy, or [because] they [had] occupied official positions that government supporters [had] had aspirations to obtain (Bulgarian Helsinki Committee, annual report 1991/92)”. Following the Government’s decision of 1992, offices and churches had been occupied illegally by the “alternative Synod” (the applicant organisation). Also, the Chief Public Prosecutor until 1999 and the mayor of Sofia until 2002 had actively encouraged and assisted the applicant organisation. However, the courts had resisted the efforts of the applicants to obtain full control over the Church.
In the submission of the third party, against this background, the events of 2003 and 2004 had been nothing more than restoration of law and justice. The Church had had no choice but to seek the assistance of the prosecuting authorities to recover its property unlawfully occupied by others.
4. The Court’s decision on admissibility of the complaints under Articles 6, 9 and 13 of the Convention and under Article 1 of Protocol No. 1
In the light of the parties’ submissions, noting that the above complaints raise serious issues of fact and law, the determination of which requires an examination of the merits, the Court concludes that they are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. It follows that these complaints must be declared admissible.
For these reasons, the Court unanimously
Decides to join the applications;
Declares admissible, without prejudging the merits, the applicants’ complaints concerning the alleged State interference with the internal affairs of the Christian Orthodox Church, alleged deprivation of property and lack of access to court and effective remedies in this respect;
Declares inadmissible the remainder of the application.
Claudia Westerdiek Peer Lorenzen
HOLY SYNOD OF THE BULGARIAN ORTHODOX CHURCH and Others v. BULGARIA
HOLY SYNOD OF THE BULGARIAN ORTHODOX CHURCH and Others v. BULGARIA