EUROPEAN COURT OF HUMAN RIGHTS
(Application no. 30985/96)
This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court.
The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:
Mr L. Wildhaber, President,
Mr J.-P. Costa,
Mr A. Pastor Ridruejo,
Mr L. Ferrari Bravo,
Mr G. Bonello,
Mr J. Makarczyk,
Mr P. Kuris,
Mrs F. Tulkens,
Mrs V. Stráznická,
Mr V. Butkevych,
Mr J. Casadevall,
Mrs H.S. Greve,
Mr A.B. Baka,
Mr R. Maruste,
Mr E. Levits,
Mrs S. Botoucharova,
Mr M. Ugrekhelidze, judges,
and also of Mrs M. de Boer-Buquicchio, Deputy Registrar.
deliberated in private on 29 May and
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)1 by the European Commission of Human Rights (“the Commission”) on 30 October 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).
case originated in an application (no. 30985/96) against
applicants alleged violations of Articles 6, 9, 11 and 13 of the Convention and
of Article 1 of Protocol No. 1 in respect of the alleged forced replacement of
the leadership of the Muslim religious community in
Commission declared the application admissible on
the Court the applicants were represented by Mr Yonko Grozev, a lawyer practising in
7. The applicants and the Government each filed a memorial.
hearing took place in public in the
There appeared before the Court:
(a) for the Government
Mrs Violina Djidjeva, Ministry of Justice, Agent;
(b) for the applicants
Mr Yonko Grozev, lawyer, Counsel.
The applicants were also present. The Court heard addresses by Mrs Djidjeva and Mr Grozev.
Mr Fischbach, who was initially a member of the Grand Chamber in the present case, was unable to take part in its examination after the hearing. He was replaced by Mr Levits, substitute judge.
I. THE CIRCUMSTANCES OF THE CASE
A. The applicants
9. Mr Fikri Sali
Hasan (“the first applicant”) was the Chief Mufti of
Bulgarian Muslims from 1992 until the events complained of. Mr
Ismail Ahmed Chaush (“the
second applicant”) was formerly a teacher at the Islamic Institute in
In his submissions to the Court the second applicant stated that from February 1995 he had also worked on a part-time basis as secretary to the Chief Mufti’s Office (Glavno miuftiistvo), the national leadership of the Muslim religious organisation, and editor of “Musulmanin”, its newspaper. The Government disputed these assertions.
B. Background of the case
10. At the end of 1989 a process of democratisation
general elections held in
10 February 1992 the Directorate of Religious Denominations (Direktsiia po veroizpovedaniiata),
a governmental agency attached to the Council of Ministers, declared the
election of Mr Gendzhev in
1988 as Chief Mufti of the Muslims in Bulgaria null and void and proclaimed his removal
from that position. On
12. Following these events Mr Gendzhev, who claimed that he remained the Chief Mufti of the Bulgarian Muslims, challenged the decision of
National Conference of Muslims, organised by the
interim leadership, took place on
C. Events of 1994 and early 1995
14. While the leadership dispute between Mr Gendzhev and Mr Hasan continued, the official position of the Directorate of Religious Denominations, throughout 1993 and at least in the first half of 1994, remained that the first applicant was the legitimate Chief Mufti of Bulgarian Muslims.
the end of 1994 parliamentary elections took place in
“As the Directorate of Religious Denominations was concerned with [the] irregularities [as regards the election of local muftis] as early as the middle of 1994, it repeatedly ... urged the rapid resolution of the problems ... Unfortunately no specific measures were undertaken ... As a result the conflicts in the religious community deepened, and discontent among Muslims increased, leading to the holding of an extraordinary national conference on 2 November 1994. This brought to light a new problem, related to the shortcomings of the statute of the Muslim religious community... [The statute] does not clarify the procedure for convening a national conference ... Issues concerning the participants, and the manner in which they are chosen ..., are not regulated.
for the executive branch of the State it becomes legally impossible to decide
whether the national conference is in conformity with the statute [of the
Muslim religion] and, accordingly, whether its decisions are valid. These
decisions, quite understandably, could be challenged by some of the Muslims in
Directorate of Religious Denominations cannot disregard the findings of the
[Chamber of the] Supreme Court in its decision of 7 [April] 1993. It is
mentioned therein that the Directorate had acted ultra vires
when removing Mr Gendzhev
from his position of Chief Mufti and that the decision of the Directorate of
worried as regards the current situation and deeply concerned over the
well-being of the Muslims in
Firmly convinced that the disputed questions in the religious community should not be decided by administrative means by the executive branch of the State ... the Directorate appeals to you to show good will and reach a consensus for the holding of a united conference ...”
27 January 1995 the Supreme Holy Council presided over by Mr Hasan announced that it had postponed the national
D. Removal of the first applicant from his position of Chief Mufti
accordance with Decree KV-15 of
statute of the Muslim religion in
24. Neither Decree R-12, nor the decision of the Directorate of Religious Denominations gave any reasons, nor any explanation as regards the procedure followed. The decisions were not formally served on Mr Hasan, who learned about them from the press.
E. The appeal to the Supreme Court against Decree R-12
Muslim religious community in Bulgaria
... has, in 1888, 1891, 1919, 1949, 1986, 1992 and 1995, repeatedly changed its
statute as concerns its organisational structure ...,
but never as regards its religious foundation. Decree R-12 of
This letter was apparently the first document originating from the competent State bodies which implied clearly that the statute of the Muslim religious community approved by Decree R-12 had replaced the previous statute and that the new registered leadership had replaced the first applicant.
first applicant also submitted that the conference of
F. The national conference of
national conference of Muslims in
33. On an unspecified date the first applicant appealed to the Supreme Court against the tacit refusal of the Council of Ministers to register the decisions of the March 1995 conference.
Court ruled that the tacit refusal of the Council of Ministers had been unlawful and ordered the transmission of the file to the Council of Ministers, which was required to examine it.
38. Despite these Supreme Court judgments the Council of Ministers did not grant registration to the religious leadership headed by Mr Hasan.
G. The 1997 unification conference and subsequent developments
39. In February 1997 the government of the Bulgarian Socialist Party stepped down and an interim cabinet was appointed. At the general elections which followed in April 1997 the Union of Democratic Forces obtained a majority in Parliament and formed a new government.
Directorate of Religious Denominations urged the two rival leaderships, of Mr Hasan and of Mr Gendzhev, to negotiate a
42. The Directorate of Religious Denominations took an active part in organising the national conference. The mayors in many localities distributed to the local chapters forms bearing the seal of the Directorate. These forms were filled out at the meetings of the local chapters which elected delegates to the national conference and were certified by the mayors’ signatures.
the religious community which accepted Mr Gendzhev’s authority was involved in the unification
process, Mr Gendzhev
himself and some of his supporters did not sign the agreement of
45. Mr Gendzhev, who claimed that he
remained the Chief Mufti, appealed to the Supreme Administrative Court (V”rkhoven
against the Government’s decision to register the new leadership. By a judgment
II. RELEVANT DOMESTIC LAW AND PRACTICE
46. The relevant provisions of the 1991 Constitution read as follows:
“(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.”
Constitutional Court’s judgment no. 5 of
48. The Religious Denominations Act came into force in 1949 and has been amended several times since then. The relevant provisions of the Act, as in force at the time of the events at issue, read as follows.
“(1) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by the Council of Ministers, or by a Deputy Prime Minister authorised for this purpose.
(2) The Council of Ministers, or a Deputy Prime Minister authorised for this purpose, shall revoke the recognition, by a reasoned decision, if the activities of the religious denomination breach the law, public order or morals.”
“(1) Every religious denomination shall have a leadership accountable to the State.
(2) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment... “
“(1) The national governing bodies of the religious denominations shall register with the Directorate of Religious Denominations of the Council of Ministers, and local governing bodies with the local municipalities, and they shall submit a list of the names of all members of these governing bodies.”
49. The Act also lays down rules regarding the activities of a religious denomination, imposes requirements as regards its clergy and gives the Directorate of Religious Denominations certain supervisory functions. In its judgment no. 5 of 11 June 1992 the Constitutional Court, while agreeing that certain provisions of the Religious Denominations Act were clearly unconstitutional, found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to declare them inapplicable.
50. The applicants contend that as a consequence of the provisions of section 6 of the Act, and since there is no public register for recognised religious denominations, in practice a religious community can establish its existence as a legal entity only by producing a copy of a letter or a decision to that effect issued by the Directorate of Religious Denominations. The same applies to the leader of a religious denomination when he needs to provide accreditation.
51. Under Decree No. 125 of the Council of Ministers of 6 December 1990, as amended, the competence of the Directorate of Religious Denominations includes “contacts between the State and religions denominations”, assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications.
52. There are no procedural provisions under Bulgarian law specifically applicable to the examination by the Council of Ministers, or by a Deputy Prime Minister, of a petition for authorisation of a religious denomination. Section 3 of the Administrative Procedure Act (Zakon za administrativnoto proizvodstvo), which contains a general legal regime on the procedure for issuing of and appeal against administrative decisions, provides that the Act is not applicable as regards decisions of the Council of Ministers.
I. THE gOVERNMENT’S PRELIMINARY OBJECTION
53. Before the Court the Government maintained that the application should be rejected for failure to exhaust domestic remedies, regard being had to the fact that the domestic judicial appeals had been submitted by the first applicant on behalf of the Chief Mufti’s Office, and not in his individual capacity.
The applicants stated that they had no standing to institute proceedings in their individual capacity. The only possibility was an appeal on behalf of the community. Furthermore, the appeals on behalf of the Chief Mufti’s Office had proved to be ineffective. The applicants referred to their complaint under Article 13 of the Convention.
Court reiterates that objections of the kind now made by the Government should
be raised before the admissibility of the application is considered (see, among
other authorities, the Campbell and Fell v. the United Kingdom judgment of 28 June 1984,
Series A no. 80, p. 31, § 57, the Artico v. Italy judgment of 13
May 1980, Series A no. 37, p. 13, § 27 and Brumărescu
v. Romania [GC],
no. 28342/95, §§ 52 and 53, ECHR 1999- ). However, the Government’s objection
was first raised on
II. ARTICLE 9 OF THE CONVENTION
applicants complained that the alleged forced replacement of the leadership of
the Muslim religious community in
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A. Applicability of Article 9
1. Arguments before the Court
(a) The applicants
56. The applicants maintained that the right to manifest one’s religion in community with others meant that the community should be allowed to organise itself according to its own rules. In their view any interference in the internal life of the organisation was a matter of concern not only to the organisation but also to every person who belonged to the religious community and, in particular, to those directly involved in the religious or organisational leadership.
The applicants stated that for a religious community the organisational structure was not simply a form of their existence, but had a substantive meaning. The identity of the leaders of the community was crucial, history abounding with examples of religious leaders converting believers or founding new religions. No less important for the individual believer was the way in which the organisation managed its places of worship and its property.
The applicants were thus of the opinion that the alleged forced removal of the leadership of their religious community concerned their individual rights protected by Article 9 of the Convention, the more so given the first applicant’s position of Chief Mufti and the second applicant’s involvement in the life of the community.
(b) The Government
57. The Government maintained that in the Convention organs’ practice an application invoking Article 9 together with other provisions of the Convention would normally be examined under the other provisions invoked. They therefore concentrated in their memorial on Article 11 of the Convention. In their view not every act motivated by religious belief could constitute a manifestation of religion, within the meaning of Article 9.
Government further submitted that in
Against that background the Government asserted that the facts invoked by the applicants had no bearing on their right to practise their religion, individually or collectively, in private or in public, to observe religious holidays, or to teach in schools.
(b) The Commission
59. The Commission considered that the organisation of a religious community was an important part of religious life and that participation therein is a manifestation of one’s religion. The applicants’ complaints therefore fell within the ambit of Article 9 of the Convention.
2. The Court’s assessment
60. The Court recalls that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Serif v. Greece, no. 38178/97, § 49, ECHR 1999- and the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, pp. 17-18, §§ 31 and 33).
religious freedom is primarily a matter of individual conscience, it also
implies, inter alia, freedom to manifest one’s
religion, alone and in private, or in community with others, in public and
within the circle of those whose faith one shares. Article 9 lists a number of
forms which manifestation of one’s religion or belief may take,
namely worship, teaching, practice and observance. Nevertheless, Article 9 does
not protect every act motivated or inspired by a religion or belief (see the Kalaç v.
61. In the present case the parties differ on the question whether or not the events under consideration, which all relate to the organisation and leadership of the Muslim community in Bulgaria, concern the right of the individual applicants to freedom to manifest their religion and, consequently, whether or not Article 9 of the Convention applies. The applicants maintained that their religious liberties were at stake, whereas the Government analysed the complaints mainly from the angle of Article 11 of the Convention.
62. The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one’s religion, protected by Article 9 of the Convention.
Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the Convention which safeguards associative life against unjustified State interference. Seen in this perspective, the believer’s right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable.
63. There is no doubt, in the present case, that the applicants are active members of the religious community. The first applicant was an elected Chief Mufti of the Bulgarian Muslims. The Court need not establish whether the second applicant, who used to work as an Islamic teacher, was also employed as a secretary to the Chief Mufti’s Office, it being undisputed that Mr Chaush is a Muslim believer who actively participated in religious life at the relevant time.
64. It follows that the events complained of concerned both applicants’ right to freedom of religion, as enshrined in Article 9 of the Convention. That provision was therefore applicable.
65. Further, the Court does not consider that the case is better dealt with solely under Article 11 of the Convention, as suggested by the Government. Such an approach would take the applicants’ complaints out of their context and disregard their substance.
The Court finds, therefore, that the applicant’s complaints fall to be examined under Article 9 of the Convention. Insofar as they touch upon the organisation of the religious community, the Court reiterates that Article 9 must be interpreted in the light of the protection afforded by Article 11 of the Convention.
B. Compliance with Article 9
1. Arguments before the Court
(a) The applicants
66. The applicants contended that the State authorities had interfered twice with the organisational life of the Muslim community. They had first replaced, in February 1995, the legitimate leadership of the community led by the first applicant and then refused recognition, in the following years, of the re-elected leadership of the first applicant.
the applicants’ view the measures undertaken by the State had profound
consequences and amounted to replacement of the whole organisational
structure of the Muslim community and a complete destruction of the normal
community life. All income was frozen, offices were seized by force, control
over mosques was transferred, and any use of the communities’ documents and
property by the leadership led by the first applicant was made impossible. Mr Hasan was thus compelled to
continue his activities as head of the second largest religion in
applicants further maintained that State interference with the internal affairs
of the religious community had not been based on clear legal rules. They
considered that the law in
The relevant law, which had remained unchanged since the events complained of, allegedly provided for a discretionary power of the Government to change religious leaderships at will. In the absence of a clear procedure in this respect or a public register of the by-laws and the representation of religious denominations, the system of ad hoc letters, issued by the Directorate of Religious Denominations to confirm the representation of the community to interested third parties and even to courts, allegedly created vast opportunities for arbitrary exercise of powers. In the applicant’s view the Government had failed in their duty to enact an adequate legal framework in this respect.
68. The applicants further claimed that Decree R-12 was in breach of the relevant law as it sanctioned a leadership which had not been elected in accordance with the statute and the by-laws of the Muslim community. These rules provided for a procedure for the election of leaders at a national conference convened by decision of the Supreme Holy Council, the Chief Mufti, and the Control Commission. Having recognised these rules in 1992, the authorities should not have registered leaders elected in breach thereof.
in the applicants’ view the replacement of the leadership had been achieved
through arbitrary decrees which gave no reasons and had
been issued without the parties concerned even being informed. The refusal of the Council of Ministers to comply with two judgments of the Supreme Court had been another arbitrary interference with the internal life of the community. The prosecuting authorities’ refusal to intervene and remedy what the applicants saw as a blatant criminal act, namely the forcible eviction of the first applicant and the staff from the building of the Chief Mufti’s Office on
69. The applicants further asserted that the interference with their rights under Article 9 of the Convention had no legitimate aim. It could not be argued seriously that the Government’s purpose was to ensure clarity as to the representation of the Muslim religious community. Their actions at the material time had replaced one leadership of the community with another.
(b) The Government
70. The Government submitted that there had not been any interference with the applicants’ rights under Article 9 of the Convention. The acts of the Directorate of Religious Denominations were of a declarative nature. They did not give rise to rights and obligations and consequently were not capable of affecting the legal rights of others. According to the Court’s case-law a registration requirement in religious matters was not as such incompatible with the Convention.
the Government’s view nothing prevented the applicants from freely
participating in the organisation of the Muslim
community during the period of time under consideration. There was no evidence
that the applicants could not hold meetings or could not be elected to the
leadership of the Muslim community. Indeed, on 6 March 1995 they had freely organised a new national conference at which the first
applicant had been re-elected Chief Mufti. The fact that there was another
national conference, that of
in the Government’s view, it was not the State that had replaced the first
applicant as Chief Mufti, but the independent will of the Muslim believers. In
fact, Mr Hasan did not meet
the age and qualifications requirements for the post of Chief Mufti, as
provided for in the statute of the Muslim religion in
72. The Government also submitted that the State had continued to pay subsidies to the Muslim community. The question who managed these funds had been decided freely by the community. The Government further rejected as unsubstantiated and ill-founded the first applicant’s allegation that he could not address the faithful through the media on the occasion of religious holidays, the media being free and independent from the State. In the Government’s view all complaints concerning the alleged indirect effects of the registration of another leadership were ill-founded.
the Government’s opinion the applicants were pursuing their own personal career
agenda by falsely presenting before the Court the events complained of as
involving human rights issues. If their logic was followed, every leader of a
religious community who had lost the confidence of the believers could lodge an
application. That would create a dangerous precedent. The Government urged the
Court to distance itself from such essentially political disputes. They
reiterated that the Parliamentary Assembly of the Council of Europe had noted
the progress made in
(c) The Commission
74. The Commission found unanimously that there had been an unlawful State interference with the internal organisation of the Muslim community and the applicants’ right to freedom of religion.
2. The Court’s assessment
(a) Whether there has been an interference
75. The Court must examine whether there has been State interference with the internal organisation of the Muslim community and, consequently, with the applicants’ right to freedom of religion.
76. The Government’s position was entirely based on the assertion that the impugned acts of the Directorate of Religious Denominations could not be regarded as an interference with the internal organisation of the community as they had been of a purely declaratory nature and had constituted nothing more than an administrative registration. The applicants alleged that these acts had had serious legal and practical consequences and had been aimed directly at removing the legitimate leadership of the Muslim community and replacing it by leaders politically associated with the government of the day.
77. The Court does not deem it necessary to decide in abstracto whether acts of formal registration of religious communities and changes in their leadership constitute an interference with the rights protected by Article 9 of the Convention.
78. Nevertheless, the Court considers, like the Commission, that facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in this domain must lead to the conclusion that the State interfered with the believers’ freedom to manifest their religion within the meaning of Article 9 of the Convention. It recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. State action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. In democratic societies the State does not need to take measures to ensure that religious communities are brought under a unified leadership (Serif v. Greece, no. 38178/97, § 52, ECHR 1999- ).
the present case the Court notes that by virtue of Decree R-12 and the decision
of the Directorate of Religious Denominations of
Court further observes that in
resulting situation remained unchanged throughout 1996 and until October 1997
as the authorities repeatedly refused to give effect to the decisions of the
national conference organised by the first applicant
is true that in its judgments of
However, those judgments did not have any practical effect, the Council of Ministers having refused to comply with them.
81. The Government’s argument that nothing prevented the first applicant and those supporting him from organising meetings is not an answer to the applicants’ grievances. It cannot be seriously maintained that any State action short of restricting the freedom of assembly could not amount to an interference with the rights protected by Article 9 of the Convention even though it adversely affected the internal life of the religious community.
82. The Court therefore finds, like the Commission, that Decree R-12, the decision of the Directorate of Religious Denominations of 23 February 1995, and the subsequent refusal of the Council of Ministers to recognise the existence of the organisation led by Mr Hasan were more than acts of routine registration or of correcting past irregularities. Their effect was to favour one faction of the Muslim community, granting it the status of the single official leadership, to the complete exclusion of the hitherto recognised leadership. The acts of the authorities operated, in law and in practice, to deprive the excluded leadership of any possibility of continuing to represent at least part of the Muslim community and of managing its affairs according to the will of that part of the community.
There was therefore an interference with the internal organisation of the Muslim religious community and with the applicants’ right to freedom of religion as protected by Article 9 of the Convention.
83. Such an interference entails a violation of that provision unless it is prescribed by law and necessary in a democratic society in pursuance of a legitimate aim (cf. Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 75 and 84, ECHR 2000- ).
(b) Whether the interference was justified
84. The Court reiterates its settled case-law according to which the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be both adequately accessible and foreseeable, that is formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct (see, the Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31, § 49; the Larissis and Others v. Greece judgment of 24 February 1998, Reports 1998-I, p. 378, § 40; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999- ; and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000- ).
For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see the above cited Rotaru judgment, § 55).
The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see the above cited Hashman and Harrup judgment, § 31, and the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 26, § 68).
85. The Court notes that in the present case the relevant law does not provide for any substantive criteria on the basis of which the Council of Ministers and the Directorate of Religious Denominations register religious denominations and changes of their leadership in a situation of internal divisions and conflicting claims for legitimacy. Moreover, there are no procedural safeguards, such as adversarial proceedings before an independent body, against arbitrary exercise of the discretion left to the executive.
Furthermore, Decree R-12 and the decision of the Directorate were never notified to those directly affected. These acts were not reasoned and were unclear to the extent that they did not even mention the first applicant, although they were intended to, and indeed did, remove him from his position as Chief Mufti.
The Court has already found that these acts and the subsequent refusal of the Council of Ministers to recognise the leadership of Mr Hasan had the effect of arbitrarily favouring one faction of the divided religious community. It is noteworthy in this context that the replacement of the community’s leadership in 1995, as well as in 1992 and 1997, occurred shortly after a change of government.
86. The Court finds, therefore, that the interference with the internal organisation of the Muslim community and the applicants’ freedom of religion was not “prescribed by law” in that it was arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability.
Court further agrees with the Commission that the repeated refusal of the
Council of Ministers to comply with the judgments of the Supreme Court of 1996
and 1997 was a clearly unlawful act of particular gravity. The rule of law, one
of the fundamental principles of a democratic society, is inherent in all
Articles of the Convention and entails a duty on the part of the State and any
public authority to comply with judicial orders
or decisions against it (see the Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, §§ 40, 41; and Iatridis v. Greece [GC], no. 31197/96, § 58, ECHR 1999- ).
88. In view of these findings the Court deems it unnecessary to continue the examination of the applicants’ complaints in respect of the “legitimate aim” and “necessary in a democratic society” requirements. Such an examination can only be undertaken if the aim of the interference is clearly defined in domestic law.
89. There has therefore been a violation of Article 9 of the Convention.
III. ARTICLE 11 OF THE CONVENTION
90. The applicants complained that the State interference with the internal organisation of the Muslim religious community also violated their rights under Article 11 of the Convention. The Government denied that the Muslim community was an “association” and maintained that in any event there had not been any State interference with rights protected by that Article. The Commission considered that it was not necessary to examine the applicants’ complaints under Article 11 of the Convention separately.
91. The Court, like the Commission, considers that no separate issue arises under Article 11 of the Convention. It has already dealt with the complaint concerning State interference with the internal organisation of the Muslim religious community under Article 9 of the Convention, interpreted in the light of Article 11 (see paragraphs 62 and 65 above).
IV. ARTICLE 13 OF THE CONVENTION
92. The applicants complained that they did not have an effective remedy against the interference with their right to freedom of religion. They invoked Article 13, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. Arguments before the Court
applicants submitted, inter alia, that the
procedure before the Supreme Court, which ended with a judgment of
94. The Government replied that the applicants had not instituted any proceedings in their capacity as individuals. In these circumstances they could not claim in abstracto that the law did not guarantee effective remedies.
In the Government’s view the applicants could have requested the institution of criminal proceedings under sections 164 and 165 of the Penal Code, which concern hate speech and impeding the free manifestation of religion through force or duress.
95. The Commission considered that the applicants did not have an effective remedy and that there had been a violation of Article 13 of the Convention.
2. The Court’s assessment
96. The Court recalls that Article 13 guarantees the availability at national level of a remedy in respect of grievances which can be regarded as “arguable” in terms of the Convention. Such a remedy must allow the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they discharge their obligations under Article 13. The remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (Çakici v. Turkey [GC], no. 23657/94, § 112, ECHR 1999- ).
97. In the present case the Court has found that the applicants’ rights under Article 9 of the Convention were infringed. They therefore had an arguable claim within the meaning of the Court’s case-law.
98. The Court further considers that the scope of the obligation under Article 13 varies depending on the nature of the Convention right invoked. Like the Commission, it takes the view that in the context of the present case Article 13 cannot be seen as requiring a possibility for every believer, such as the second applicant, to institute in his individual capacity formal proceedings challenging a decision concerning the registration of his religious community’s leadership. Individual believers’ interests in this respect can be safeguarded by their turning to their leaders and supporting any legal action which the latter may initiate.
99. The Court thus finds that in such a case the State’s obligation under Article 13 may well be discharged by the provision of remedies which are only accessible to representatives of the religious community aggrieved by a State interference with its internal organisation. In the present case the first applicant, Mr Hasan, was the leader of the faction of the Muslim organisation which was replaced through the State decisions complained of. The Court will therefore examine whether effective remedies existed for the first applicant in his capacity as religious leader.
100. The Court observes that Mr Hasan, acting as Chief Mufti, attempted to obtain a remedy against the interference with the internal organisation of the religious community by challenging Decree R-12 before the Supreme Court. The Supreme Court did not question Mr Hasan’s locus standi and accepted the case for examination. A representative of the religious community was thus provided access to a judicial remedy.
However, the Supreme Court refused to study the substantive issues, considering that the Council of Ministers enjoyed full discretion whether or not to register the statute and leadership of a religious denomination, and only ruled on the formal question whether Decree R-12 was issued by the competent body.
The appeal to the Supreme Court against Decree R-12 was not, therefore, an effective remedy.
other two appeals to the Supreme Court, which were submitted by the first
applicant against the refusal of the Council of Ministers to register the
results of the national conference of
102. The Government suggested that the applicants could have requested the institution of criminal proceedings against persons who might have impeded the exercise of their freedom of religion.
The Court observes, however, that the first applicant did in fact turn for assistance to the prosecuting authorities, but to no avail (see above paragraph 26).
Furthermore, the Government have not indicated how criminal proceedings, if instituted, could have led to an examination of the substance of the applicants’ complaints, which concern decisions issued by a Deputy Prime Minister and the Directorate of Religious Denominations and found by the Supreme Court, in its judgment of 27 July 1995, to have been formally lawful. It is unclear how such proceedings could have remedied the situation complained of.
103. The Government have not indicated any other remedy which could be used by the applicants or other representatives of the religious community.
104. The Court finds, therefore, that the leadership of the faction led by Mr Hasan were unable to mount an effective challenge to the unlawful State interference in the internal affairs of the religious community and to assert their right to organisational autonomy, as protected by Article 9 of the Convention.
It follows that neither applicant had an effective remedy in respect of the violation of Article 9. There has therefore been a violation of Article 13 of the Convention.
105. The applicants complained that they did not have access to a court for the determination of certain civil rights. In their view Decree R-12 was decisive for some of their civil rights. These were the first applicant’s right, in his capacity of Chief Mufti, to manage the religious affairs of the community, to administer its funds and property, and his right to remuneration for his service as Chief Mufti, and the second applicant’s right to continue his job of an Islamic teacher, from which he was allegedly de facto dismissed. The applicants asserted that the determination of their civil rights without them having been parties to any proceedings, and without the Supreme Court having examined in substance the challenge against Decree R-12, was contrary to Article 6 of the Convention.
106. The Government submitted that the misfortunes in the applicants’ careers were not the consequence of the impugned decisions. The applicants had not been parties to the proceedings before the Supreme Court against Decree R-12. Furthermore, if the second applicant had had an employment contract, he could have challenged its termination before the courts.
107. The Commission considered that the applicants’ complaints under Article 6 were unsubstantiated.
108. The Court notes that the applicants have not substantiated the legal basis and the content of their alleged civil rights. Furthermore, they have not shown that there existed any obstacles preventing them from bringing civil actions before the courts in respect of their alleged right to remuneration.
The Court therefore finds that there has been no violation of Article 6 of the Convention.
VI. ARTICLE 1 of protocol No. 1 to THE CONVENTION
109. The Court notes that the applicants did not reiterate their complaints made before the Commission under Article 1 of Protocol No. 1 to the Convention.
In those circumstances the Court sees no reason to deal with them of its own motion.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
110. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. Pecuniary damages
111. The first applicant claims 9,240 new Bulgarian levs (BGN) in respect of lost salary for the period between his removal from the post of Chief Mufti in February 1995 and November 1997, when a Chief Mufti elected at a unification conference took office.
He also claims costs for maintaining his activities as Chief Mufti between February 1995 and November 1997 (rent for an office and publication of the “Musulmanin” newspaper) in the amount of 5,500 US dollars (USD).
The second applicant claims BGN 6,060 in lost salary as secretary to the Chief Mufti’s Office and editor of the “Musulmanin” newspaper for the period between February 1995 and November 1997.
112. The applicants supported their claims by copies of contracts for the rent of two apartments, receipts concerning expenses for the publication of the “Musulmanin” newspaper and for the holding of local meetings of the religious community, and a declaration from a Mr Velev who certified that he knew the applicants, that the second applicant used to perform “secretarial functions” at the Chief Mufti’s Office and used to be the editor of the “Musulmanin” newspaper, and that as far as he remembered the applicants’ monthly salaries were the equivalent of BGN 280 for the first applicant and BGN 200 for the second applicant.
applicants stated that they were unable to present other documentary proof as
all documents concerning their income had remained in the building of the Chief
Mufti’s Office from where they had been evicted by force on
113. The Government submitted that all claims were unsubstantiated and not supported by sufficient evidence. In particular, the claims in respect of lost salary were without any basis, the applicants not having presented a single payment slip. Furthermore, a number of documents submitted by the applicants were unclear and contained numerous contradictions. The contracts for the rent of two apartments mentioned that the apartments were to be used by the tenant not only as offices but also as residences. There was no proof that the tenants had actually moved in or had paid the rent. In one contract the figure “1995” had clearly been overwritten to read “1996”.
The Government further pointed out that the applicants had used arbitrary methods of calculation. In particular, the first applicant claimed that as of February 1995 his salary was 10,000 “old” Bulgarian levs (BGL) and that this amount was the equivalent of BGN 280. However, this calculation had apparently been made on the basis of the exchange rate of the Bulgarian lev with another currency. In fact, in July 1999 BGL 1,000 (“old” levs) became BGN 1 (“new” lev). Thus, BGL 10,000 would be the equivalent of BGN 10.
114. As regards the expenses for the publication of the “Musulmanin” newspaper the Government contended that there were contradictions between the initial submissions of the applicants where they had claimed expenses in respect of three issues of the newspaper, and their later submissions, where they mentioned two issues and then four issues. Furthermore, the trade name of the newspaper had been registered by a third person and nothing demonstrated that the applicants could claim expenses in respect of the publication of this newspaper.
respect of the second applicant the Government submitted a copy of a letter
116. The Government finally asserted that in February 1995 the first applicant had ceased to be Chief Mufti and could not therefore claim sums in respect of expenses allegedly incurred in his activities as Chief Mufti.
117. The Court considers that Mr Chaush, the second applicant, has not established a direct causal link between the violation found in the present case and the loss of income or other pecuniary damage allegedly suffered by him. The present case did not concern the circumstances of the second applicant’s alleged dismissal from his position of an Islamic teacher, but the interference with his right to freedom of religion resulting from the forced removal of the leadership of the religious community to which he adhered as an active member. His claim for pecuniary damages is therefore dismissed.
118. In respect of the first applicant, it appears that some of the amounts claimed by him, such as sums for rent of offices and publication of a newspaper, concern the Chief Mufti’s Office, which initially submitted an application to the Commission but then withdrew from the proceedings (see paragraph 2 above). Such amounts notwithstanding, the Court considers that the first applicant personally must have suffered some pecuniary damage as a result of his unlawful removal from the position of Chief Mufti and the forced eviction from the building of the Chief Mufti’s Office. His claim in this respect, however, is not supported by reliable documentary evidence. As regards the alleged loss of income he has only submitted a declaration by a person who allegedly knew the amount of his salary. The Court finds therefore that the claim for pecuniary damages cannot be granted (cf. Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 54, ECHR 1999- ).
Nevertheless, the Court accepts that the first applicant’s inability to furnish documentary proof may to a certain extent be due to the fact that he was evicted by force from his office in February 1995 and denied access to his documentation. It will therefore take these circumstances into account when deciding on the first applicant’s claim for non-pecuniary damages.
2. Non-pecuniary damages
119. The first applicant claimed USD 50,000 and the second applicant USD 30,000 under this head.
The applicants submitted that they had suffered considerable distress over a long period of time. The first applicant had been the head of the second largest religious community in the country. His duty and responsibility vis-ŕ-vis the thousands of believers who had placed their trust in him as their representative had been to ensure the functioning of the legitimate leadership of the religious community. The fact that he could not succeed in this task on account of the unlawful interference of the State with the internal organisation of the Muslim religion caused him acute emotional suffering. This situation was aggravated by the complete disrespect of the authorities for the rule of law between February 1995 and October 1997 when the applicants made numerous attempts to obtain justice, but were simply ignored. Throughout this period of time they continued to work facing enormous difficulties.
120. The Government invited the Court to reject the applicants’ claims and to accept that the finding of a violation would be sufficient just satisfaction.
The Government stated that the applicants had not shown damage to their reputation or their health and could not therefore claim non-pecuniary damages. Their personal emotional reactions to the events complained of were of a purely subjective nature and could not serve as grounds for a quantified claim.
the Government’s submission the amounts claimed were in any event excessive and
did not find support in the Court’s case-law or the practice of the Committee
of Ministers. Furthermore, the applicants’ claims were exorbitant in view of
the standard of living in
Court considers that the unlawful State interference with the organisation of the Muslim community has undoubtedly caused
distress to the first applicant, who was removed from his position as head of
the second largest religion in
continuous disrespect for his rights, the lack of any clear legal foundation for the acts of the authorities and their failure to provide an effective remedy.
Court considers, however, that the claims are excessive, regard being had to
its case-law (see Thlimmenos v. Greece [GC], no. 34369/97, § 70, ECHR 2000-
, Ceylan v. Turkey [GC], no. 23556/94, § 50, ECHR 1999-
and the following judgments cited above: Kokkinakis v.
Making its assessment on an equitable basis, the Court awards BGN 10,000 to the first applicant.
As regards the second applicant the Court holds that the finding of violations of the Convention constitutes sufficient just satisfaction.
B. Costs and expenses
122. The applicants claimed USD 3,150 for 105 hours of work (at the rate of USD 30 per hour) by their lawyer on the proceedings before the Commission and the Court, an additional USD 640 for 16 hours of legal work on the hearing before the Court and USD 2,685 for expenses related to the hearing in Strasbourg on 29 May 2000. The latter amount included USD 1,560 in airfares for the two applicants and their lawyer, USD 1,080 in subsistence expenses for three days (on the basis of USD 120 per day per person) and USD 55 paid for French visas.
The amount claimed by the applicants is the equivalent of about BGN 13,500.
123. The Government pointed out that part of the legal work concerned the initial complaints of the Chief Mufti’s Office before the Commission. However, the Chief Mufti’s Office withdrew its complaints. The Government further objected to the hourly rate applied by the applicant’s lawyer, which was many times superior to the normal rate charged by lawyers in Bulgaria, and submitted that the “time sheet” presented by the lawyer was unreliable. Finally, the amounts claimed in respect of airfares and subsistence expenses were not supported by invoices.
124. The Court agrees with the Government that a certain reduction should be applied in view of the fact that part of the costs were incurred in relation to the complaints which were disjoined and struck off by the Commission on 17 September 1998 (see paragraph 2 above). The remainder of the claim does not appear excessive in the light of the Court’s case-law (see the Lukanov v. Bulgaria judgment of 10 March 1997, Reports 1997- , § 56, the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998 - , §§ 176-178, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999- and Velikova v. Bulgaria, no. 41488/98, § 104, ECHR 2000- ).
The Court accordingly awards the sum of BGN 10,000 in respect of costs and expenses, together with any value added tax that may be chargeable, less 18,655.87 French francs received by the applicants by way of legal aid, to be converted into Bulgarian levs at the rate applicable on the date of settlement.
C. Default interest
to the information available to the Court, the statutory rate of interest
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government’s preliminary objection;
2. Holds unanimously that there has been a violation of Article 9 of the Convention;
3. Holds unanimously that no separate issue arises under Article 11 of the Convention;
4. Holds unanimously that there has been a violation of Article 13 of the Convention;
5. Holds unanimously that there has been no violation of Article 6 of the Convention;
6. Holds unanimously that it is not necessary to examine the complaints under Article 1 of Protocol No. 1 to the Convention;
7. Holds unanimously that the respondent State is to pay within three months to the first applicant, for non-pecuniary damage, 10,000 (ten thousand) Bulgarian levs;
8. Holds by eleven votes to six that the finding of violations of the Convention constitutes sufficient just satisfaction in respect of the second applicant;
9. Holds unanimously that the respondent State is to pay within three months to both applicants, for costs and expenses, the global sum of 10,000 (ten thousand) Bulgarian levs plus any value added tax that may be chargeable, less 18,655.87 French francs (eighteen thousand six hundred and fifty-five francs and eighty-seven centimes) received by them by way of legal aid, to be converted into Bulgarian levs at the rate applicable on the date of settlement;
10. Holds unanimously that simple interest at an annual rate of 13,85% shall be payable from the expiry of the above-mentioned three months until settlement.
11. Dismisses unanimously the remainder of the applicants’ claims for just satisfaction.
in English and in French, and delivered at a public hearing in the Human Rights
Maud de Boer Buquicchio
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Mrs Tulkens and Mr Casadevall, joined by Mr Bonello, Mrs Stráznická, Mrs Greve and Mr Maruste, is annexed to this judgment.
Joint partly dissenting opinion of Judges Tulkens and Casadevall, joined by Judges Bonello, Stráznická, Greve and Maruste
1. We do not agree with the majority regarding point 8 of the operative provisions, on just satisfaction for the second applicant in respect of non-pecuniary damage.
2. Since the freedom of thought, conscience and religion protected by Article 9 of the Convention is one of the foundations of a democratic society, as the judgment quite rightly points out, we consider that the mere finding of a violation of that provision does not in itself constitute sufficient just satisfaction.
3. In the present case there is no doubt that both the first and the second applicants were victims of the violations alleged and that they were both “active members of the religious community...” Moreover, it is undisputed that the second applicant, Mr Chaush, who used to work as a Muslim teacher, “is a ... believer who actively participated in religious life at the relevant time” (see paragraph 63 of the judgment), and he “continued to work facing enormous difficulties” for nearly three years (see paragraph 119 in fine).
4. That being so, we think that the second applicant also suffered distress and sustained non-pecuniary damage, certainly less serious damage than the first applicant, but damage which nevertheless warranted an award of just satisfaction to Mr Chaush under Article 41 of the Convention.
Notes by the Registry
No. 11 came into force on
1. The full text of the Commission’s opinion will be reproduced as an annex to the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but in the meantime a copy of the Commission’s report is obtainable from the Registry.