EUROPEAN COURT OF
HUMAN RIGHTS
CASE OF HASAN AND CHAUSH v.
(Application no. 30985/96)
JUDGMENT
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.
In
the case of Hasan and Chaush
v. Bulgaria,
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.
Having
deliberated in private on 29 May and
Delivers
the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
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).
2. The
case originated in an application (no. 30985/96) against
3. The
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
4. The
Commission declared the application admissible on
5. Before
the Court the applicants were represented by Mr Yonko Grozev, a lawyer practising in
6. On
7. The
applicants and the Government each filed a memorial.
8. A
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.
THE FACTS
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
commenced in
11. Following
general elections held in
On
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
13. The
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.
15. On
16. On
17. On
18. At
the end of 1994 parliamentary elections took place in
19. On
“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.
Therefore,
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
The
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
Extremely
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 ...”
20. On
27 January 1995 the Supreme Holy Council presided over by Mr Hasan announced that it had postponed the national
conference until
D. Removal of the first applicant from his
position of Chief Mufti
21. On
“In
accordance with Decree KV-15 of
22. The
statute of the Muslim religion in
23. On
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.
25. On
26. On
E. The appeal to the
Supreme Court against Decree R-12
27. On
“The
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.
28. On
29. The
first applicant also submitted that the conference of
30. On
F. The national conference of
31. The
national conference of Muslims in
32. On
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.
34. On
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.
35. On
36. On
37. On
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.
40. On
41. The
Directorate of Religious Denominations urged the two rival leaderships, of Mr Hasan and of Mr Gendzhev, to negotiate a
solution. On
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.
43. On
44. Although
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
administrativen s”d)
against the Government’s decision to register the new leadership. By a judgment
of
II. RELEVANT DOMESTIC LAW AND PRACTICE
46. The
relevant provisions of the 1991 Constitution read as follows:
Article
13
“(1)
Religions shall be free.
(2)
Religious institutions shall be separate from the State.
(3)
Eastern Orthodox Christianity shall be considered the traditional religion in
the
(4)
Religious institutions and communities, and religious beliefs shall not be used
for political ends.”
Article
37
“(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.”
47. The
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.
Section
6
“(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.”
Section
9
“(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... “
Section
16
“(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.
THE LAW
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.
54. The
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
55. The
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.
58. The
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).
While
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.
In
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
67. The
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.
Furthermore,
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.
71. In
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
Therefore,
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.
73. In
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- ).
79. In
the present case the Court notes that by virtue of Decree R-12 and the decision
of the Directorate of Religious Denominations of
The
Court further observes that in
The
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
on
80. It
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.
87. The
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
93. The
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.
101. The
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.
V. ARTICLE 6 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.”
A. Damages
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.
The
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.
115. In
respect of the second applicant the Government submitted a copy of a letter
dated
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.
In
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
121. The
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.
The
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
125. According
to the information available to the Court, the statutory rate of interest
applicable in
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.
Done
in English and in French, and delivered at a public hearing in the Human Rights
Building,
Luzius Wildhaber
President
Maud de Boer Buquicchio
Deputy Registrar
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.
L.W.
M.B.
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
1. Protocol
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.