FORMER FIRST SECTION
CASE OF SUPREME HOLY COUNCIL OF THE MUSLIM COMMUNITY
(Application no. 39023/97)
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Supreme Holy Council of the
Muslim Community v.
The European Court of Human Rights (Former First Section), sitting as a Chamber composed of:
Mr P. Lorenzen,
Mrs F. Tulkens,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 9 September,
28 October and
Delivers the following judgment, which was adopted on the last‑mentioned date:
1. The case originated in an application (no. 39023/97) against the Republic of Bulgaria lodged on 9 September 1997 with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on behalf of the Supreme Holy Council of the Muslim Community (“the applicant organisation”), which was at the relevant time one of the rival factions claiming leadership of the Muslim community in Bulgaria.
2. The applicant was
represented by Mrs S. Margaritova-Vutchkova, a lawyer practising in
3. The applicant organisation
alleged, in particular, that it had been the victim of arbitrary and
discriminatory State interference in the organisation of the Muslim community
4. The application was transmitted
to the Court on
5. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. By a partial decision of
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant, the Supreme
Holy Council (Висш
съвет) of the Muslim Community, headed by
Mr Nedim Gendzhev, was the officially recognised leadership of Muslims in
A. The relevant background: changes of leadership of the Muslim community before 1997
1. The removal of Mr Gendzhev in 1992
the end of 1989 a process of democratisation commenced in
9. At the end of 1991 a new Government, formed by the Union of Democratic Forces (Съюз на демократичните сили – “the SDS”) and the Movement for Rights and Freedoms (Движение за права и свободи – “the DPS”), took office.
10. On 10 February 1992 the Directorate of Religious Denominations (Дирекция по вероизповеданията - “the Directorate”), 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. This decision was based on findings, inter alia, that Mr Gendzhev’s election in 1988 had been politically motivated.
11. The Directorate appointed a three-member interim governing body of the Muslims’ religious organisation, considering that that was “the only possible means of preventing the organisational disintegration of the Muslim denomination”.
national conference of Muslims, organised by the interim leadership, took place
Gendzhev, who claimed that he remained the Chief Mufti, challenged the decision
2. The reinstatement of Mr Gendzhev in 1995
14. The leadership dispute between Mr Gendzhev and Mr Hasan continued throughout 1993 and 1994. The official position of the Directorate of Religious Denominations remained that Mr Hasan was the legitimate Chief Mufti of the Bulgarian Muslims. At the same time the Directorate apparently sought to “resolve” the dispute through the “unification” of the two factions under a common leadership.
the end of 1994 parliamentary elections took place in
Hasan appealed to the Supreme Court against the decision of the Directorate
registering Mr Gendzhev’s leadership. Mr Hasan submitted, inter alia, that the conference of
20. As regards the request for interpretation of the February 1995 decision, it was not open to the Supreme Court, in the context of those particular proceedings, to state its opinion as to whether it had the effect of creating a new legal person, or introducing changes, and whether after this decision there existed two parallel Muslim religious organisations.
3. Mr Hasan’s attempts in 1996 and 1997 to restore his position
21. Following the removal of Mr Hasan, in 1995 the Muslim believers who supported him held their own assembly and re-elected him Chief Mufti, while introducing changes in the organisation’s statute and leadership. Mr Hasan then applied to the Directorate of Religious Denominations for registration of the amended statute and the new leadership. Not having received any response, Mr Hasan appealed to the Supreme Court against the tacit refusal of his application.
25. On 13 March 1997 the Supreme Court quashed the refusal of the Deputy Prime Minister to register the 1995 statute and leadership headed by Mr Hasan on the ground that it was unlawful and contrary to Article 13 of the Constitution. That refusal was, moreover, “an unlawful administrative intervention into the internal organisation of [a] religious community”. The Supreme Court again ordered the transmission of the file to the Council of Ministers for registration.
26. Despite the Supreme Court judgments of 1996 and 1997 the Council of Ministers did not grant registration to the religious leadership headed by Mr Hasan.
B. The change of leadership in 1997 and ensuing judicial proceedings
1. The national conference of October 1997
27. In February 1997 the government of the BSP stepped down and an interim cabinet was appointed. At the general elections that followed in April 1997 the SDS obtained a majority in Parliament and formed a new government.
28. The new Deputy Prime Minister and the Directorate of Religious Denominations urged the two rival leaderships, of Mr Hasan and of Mr Gendzhev, to negotiate a unification.
29. On 12 September 1997, in a letter to the Deputy Prime Minister and the Directorate, the religious leadership presided over by Mr Hasan demanded the removal of Mr Gendzhev.
“1. The all-Muslim conference shall be organised on the basis of full representation of the Muslim denomination. It shall not be based on the two existing statutes [of the rival leaderships]. [The] Deputy Prime Minister ... and the Director of Religious Denominations undertake to guarantee the implementation of this principle.
2. ... The [rival groups] undertake not to obstruct the spirit of unification underlying the conference, failing which the Directorate shall take appropriate administrative measures against the persons suspected of [obstruction].
3. Pending the conference, the [leadership headed by Mr Gendzhev] undertakes to refrain from any administrative decisions, [such as] appointments ...
4. The [leadership headed by Mr Gendzhev] consents to a freeze on all bank accounts ... and declares that pending the conference it will not enter into any transaction ...
7. The joint committee shall draw up rules and a procedure for the organisation of the conference...”
32. On an unspecified date the joint committee ruled that the assembly of each local community attending a mosque should elect two delegates to the national conference. It also decided that the minutes of the assemblies’ proceedings had to be entered on a form provided by the Directorate of Religious Denominations and certified by the local mayor.
assemblies for the election of delegates were held on
applicant organisation has submitted copies of two complaints to the
21 and 22 October 1997 Mr Gendzhev and those who had signed the unification
agreement on behalf of the Supreme Holy Council headed by him wrote to the
Prime Minister and the Directorate of Religious Denominations stating that the
conference planned for 23 October was not being organised in accordance with
the statute of the Muslim religious organisation and that it was therefore
unlawful. Those who had signed the agreement of
38. According to the
applicant organisation, the DPS, a political party with a large majority of ethnic
Turks among its members, was involved in the organisation of the conference. The
party was allegedly very close to the ruling SDS and was implementing the
political decision to replace the leadership of the Muslim community. According
to the applicant organisation, about one hundred of the delegates on
conference adopted a new statute of the Muslim denomination in
2. Judicial appeals by the Supreme Holy Council led by Mr Gendzhev
Gendzhev, who claimed that he remained the President of the Supreme Holy
Council, appealed on its behalf to the
44. On an appeal by the
applicant organisation, on
45. In the reopened
proceedings a three-member bench of the
46. The court found that the
acts of the authorities did not constitute an interference with the internal
organisation of the Muslim community. The decision to hold a unification
conference had been taken freely by representatives of the two rival groups.
The rules and procedures for the election of delegates and for the holding of
the October 1997 conference, including those concerning the results of the
local elections for delegates and their certification, had been drawn up by the
joint committee. The Directorate of Religious Denominations had contributed to
the organisation of the conference purely at the parties’ request. It had acted
in accordance with the agreement between the two leaderships and the decisions
of the joint committee. The Directorate’s task had been to contribute to and
guarantee tolerance and respect in inter-religious relations as well as in the
relations between different groups belonging to one and the same religion. The
fact that the Supreme Holy Council presided over by Mr Gendzhev had withdrawn at
the last minute did not call into question the validity of the conference,
which had taken place in accordance with the negotiated rules. It was true that
these rules derogated from the statute of the Muslim community as in force at
the relevant time but the derogation had been decided upon freely by the two
leaderships in order to resolve the conflict within the community. It followed
that the impugned act, the decision of
47. The applicant
organisation submitted a cassation appeal against the judgment of
3. Subsequent events
49. The divide within the
Muslim community in
50. In July 2004 the Sofia
City Court appointed three persons to represent the Muslim community in
II. RELEVANT DOMESTIC LAW AND PRACTICE
51. 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.”
53. The Religious Denominations Act 1949 was amended several times. 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.”
54. The Act also laid down rules regarding the activities of a religious denomination, imposed requirements as regards its clergy and gave the Directorate of Religious Denominations wide 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 (the court cited as examples several provisions concerning the powers of the Directorate to dismiss clergymen and to control the activities of religious organisations), 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.
55. 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.
56. In accordance with the Regulations on the registration of the local leadership of religious denominations, issued by the Government in 1994 (State Gazette no. 87 of 25 October 1994), such registration is only possible if the election of a local leadership has been approved by the registered national leadership of the religious denomination.
57. The Religious Denominations Act 1949 has been interpreted in the administrative practice of the Directorate and the Council of Ministers as requiring that each religious denomination must have a single leadership and that parallel organisations of the same religious denomination are not allowed. The judicial practice during the relevant period evolved from the initial position that the Council of Ministers and the Directorate enjoyed unfettered discretion in the registration of the leadership and statute of a religious denomination (see paragraphs 13 and 19 above) to the position that the courts, when asked to rule on the lawfulness of a Government decision registering a new religious leadership, had to examine whether the new leadership had been appointed in compliance with the religious denomination’s statute, in its version as registered by the Directorate (see paragraphs 22 and 25 above and also the following judgments of the Supreme Administrative Court: judgment no. 4816 of 21 September 1999 in case no. 2697/99, judgment no. 2919 of 28 April 2001 in case no. 8194/99 and judgment no. 9184 of 16 October 2003 in case no. 6747/02).
58. The Religious
Denominations Act 1949 was repealed with effect as from
59. The new Act provides for judicial registration of religious denominations as legal persons. Before deciding, the court may request an expert opinion from the Directorate of Religious Denominations.
60. Section 15(2) provides that no more than one registration may be made concerning a religious denomination with the same name. Section 36 provides that a person who acts on behalf of a religious denomination without authorisation is to be fined by the Directorate of Religious Denominations. Paragraph 3 of the transitional provisions to the Act provides that persons who had seceded from a registered religious institution before the Act’s entry into force in breach of the institution’s government-registered internal rules are not entitled to use the name of the religious institution or its assets.
61. In February 2003 fifty
members of Parliament asked the Constitutional Court to repeal certain
provisions of the new Act as being unconstitutional and contrary to the
62. Sections 15(2) and 36 were not among the provisions challenged but paragraph 3 of the transitional provisions was (see paragraph 60 above).
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
64. The applicant organisation complained that the authorities had organised and manipulated the October 1997 Muslim conference with the aim of favouring one of the rival leaderships and removing Mr Gendzhev, thus arbitrarily intervening in the affairs of the Muslim community.
65. The Court considers that the above complaints fall to be examined under Article 9 of the Convention, which provides:
“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. The parties’ submissions
1. The applicant organisation
66. The applicant organisation submitted that Mr Gendzhev had been unlawfully removed in 1992 by Mr Hasan and that in 1997 Mr Hasan had sought a repeat of these events, counting on the support of the SDS, the political party which had “helped” him in 1992, and which had again come to power in 1997.
67. The applicant organisation further stated that Mr Gendzhev had actively sought the achievement of unification, which he considered important for the well-being of the Muslim community, but had had to withdraw because of irregularities in the election of delegates. The Government’s argument that the withdrawal of several persons did not affect the legitimacy of the conference was flawed since the leaders had withdrawn precisely because of the illegitimacy of the local elections of delegates.
68. In particular, the authorities had gone far beyond what was necessary for the organisation of the conference and had mounted a concerted effort to remove Mr Gendzhev. Pressure had been brought to bear on local communities in the elections for delegates. The election results had been manipulated since, contrary to the relevant regulations, elections had been held in many villages which were not independent municipalities. On at least three occasions the results had been forged.
2. The Government
69. The Government stated
that the divisions within the Muslim religious community in
70. Furthermore, as established by the courts later, the election of delegates had proceeded normally. The large turnout had demonstrated the community’s will for unification.
71. The Government also underlined that the case did not concern a process of putting two religious communities under a single leadership but a situation where one religious community had two leaderships. Contradictory decisions of the authorities during the period 1992-1997, including those criticised by the Court in its Hasan and Chaush v. Bulgaria judgment, had resulted in confusion as to the leadership of the Muslim community. Unlike in previous years, however, in 1997 the State had not interfered in the internal affairs of the community but had only assisted it in its efforts to achieve unification, as part of the authorities’ duty under the Constitution to help maintaining a climate of tolerance in religious life.
72. The Government stated that the reasons given by Mr Gendzhev and the five members of the contact group nominated by the Supreme Holy Council presided over by him for their withdrawal from the national conference were vague and left the impression that they had simply been dissatisfied with the results of the primary elections of delegates. The Government considered that the withdrawal of five persons did not call into question the legitimacy of the national conference and that the authorities had rightly accepted its results.
B. The Court’s assessment
1. Applicability of Article 9
73. In accordance with the Court’s case-law, 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. Participation in the life of the community is a manifestation of one’s religion, protected by Article 9 of the Convention. The right to freedom of religion under Article 9, interpreted in the light of Article 11, the provision which safeguards associations against unjustified State interference, encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000-XI).
74. The applicant
organisation was the official body representing and managing the Muslim
religious community in
75. It follows that the applicant organisation’s complaints fall within the ambit of Article 9 of the Convention, which is applicable.
2. Compliance with Article 9
(a) Whether there was an interference
76. According to the Court’s case-law, State measures favouring a particular leader or group in a divided religious community or seeking to compel the community, or part of it, to place itself under a single leadership against its will would constitute an infringement of the freedom of religion (see Serif v. Greece, no. 38178/97, §§ 49, 52 and 53, ECHR 1999-IX and Hasan and Chaush v. Bulgaria, cited above, § 78).
77. The present case concerns the replacement of the Bulgarian Muslim community’s leadership in October 1997 and the ensuing proceedings. The central issue in dispute is whether these events were the result of undue State pressure or nothing more than a change of leadership freely effected by the community.
78. The impugned change of
leadership was decided in October 1997 by a unification assembly convened
pursuant to an agreement entered into by the two rival leaderships, in
accordance with rules set out by a joint committee that included
representatives of the applicant organisation (see paragraphs 31-33 above). The
Directorate of Religious Denominations and the local authorities participated
in the process in that they urged the two groups to unite, took an active part
in the organisation of the October 1997 assembly and registered the leadership
it elected as the sole representative of the Muslim community in
79. The Government argued that the authorities had merely mediated between the opposing groups and assisted the unification process as they were under a constitutional duty to secure religious tolerance and peaceful relations between groups of believers.
80. The Court agrees that States have such a duty and that discharging it may require engaging in mediation. Neutral mediation between groups of believers would not in principle amount to State interference with the believers’ rights under Article 9 of the Convention, although the State authorities must be cautious in this particularly delicate area.
81. The Court notes, however, that the unification process in 1997 took place against the backdrop of the events in 1992 and 1995 when changes of government were swiftly followed by State action to replace religious leaders and grant legal recognition to one of the two rival leaderships (see paragraphs 8-20 and 27 above). It is highly significant that the relevant law as applied in practice required – and still requires – all believers belonging to a particular religion and willing to participate in the community’s organisation to form a single structure, headed by a single leadership even if the community is divided, without the possibility for those supporting other leaders to have an independent organisational life and control over part of the community’s assets (see paragraphs 17, 23, 40, 53-63 above). The law thus left no choice to the religious leaders but to compete in seeking the recognition of the government of the day, each leader proposing to “unite” the believers under his guidance.
82. Against that background, the fact that in 1997 the new Government called for the unification of the divided Muslim community (see paragraphs 28-30, 34 and 37 above) is of particular significance.
83. The Court considers that the applicant organisation’s allegation that the mayors of a number of localities and political figures participated too closely in the selection of delegates to the October 1997 assembly does not appear implausible.
84. Furthermore, even if the initial participation of the Directorate is seen as nothing more than neutral mediation in the preparation of a unification assembly, matters changed at the moment when the Directorate continued to insist on “unification" despite the fact that the leaders of the applicant organisation decided to withdraw. It was not for the State to decide whether or not Mr Gendzhev and the organisation presided over by him should or should not withdraw. The Directorate could have noted the failure of the unification effort and expressed readiness to continue assisting the parties through mediation, if all concerned so desired. Instead, the leaders elected by the October 1997 conference obtained the status of the sole legitimate leadership of the Muslim community and as a result the applicant organisation could no longer represent at least part of the religious community and manage its affairs and assets according to the will of that part of the community (see paragraphs 31-40 above).
85. The Court thus finds that there has been an interference with the applicant organisation’s rights under Article 9 of the Convention in that the relevant law and practice and the authorities’ actions in October 1997 had the effect of compelling the divided community to have a single leadership against the will of one of the two rival leaderships.
86. 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.
(b) Whether the interference was prescribed by law
87. The Government’s decision registering a change of leadership in the Muslim community relied on sections 6 and 16 of the Religious Denominations Act (see paragraph 53 above).
88. In the case of Hasan and Chaush v. Bulgaria, cited above (§ 86), the Court found that the interference with the internal organisation of the Muslim community in 1995-1997 had not been “prescribed by law” as it had been arbitrary and based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability of the law.
89. Although the same legal provisions applied in the present case, the Court observes that there were considerable differences in the authorities’ approach. In 1997 the authorities did not make use of the unfettered discretion they enjoyed under the applicable law and proceeded on the basis that the rival groups had set up their own rules through an agreement derogating from the existing statute of the Muslim denomination (see paragraphs 31 and 46 above).
90. In these specific circumstances, the Court, having regard to the fact that the gist of the applicant organisation’s allegations concerns the alleged lack of justification for the State interference with the internal affairs of the Muslim community, considers that it is not necessary to rule on the lawfulness of that interference.
(c) Whether the interference pursued a legitimate aim
91. The applicant organisation submitted that the authorities’ aim had been to remove Mr Gendzhev and the leadership presided over by him. The Government stated that they had sought to help resolve the conflict in the Muslim community and remedy the consequences of past unlawful State actions.
92. The Court accepts that the authorities’ general concern was to restore legality and remedy the arbitrary removal in 1995 of Mr Hasan and the leadership presided over by him. Seen in this perspective, the interference with the internal organisation of the Muslim community was in principle aimed at the protection of public order and of the rights and freedoms of others.
(d) Whether the interference was necessary in a democratic society
93. The Court reiterates that the autonomous existence of religious communities is indispensable for pluralism in a democratic society. While it may be necessary for the State to take action to reconcile the interests of the various religions and religious groups that coexist in a democratic society, the State has a duty to remain neutral and impartial in exercising its regulatory power and in its relations with the various religions, denominations and beliefs. What is at stake here is the preservation of pluralism and the proper functioning of democracy, one of the principal characteristics of which is the possibility it offers of resolving a country’s problems through dialogue, even when they are irksome (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p.18, § 33, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123 ECHR 2001-XII, and Hasan and Chaush v. Bulgaria, cited above, § 78).
94. In the present case, the relevant law and practice and the authorities’ actions in October 1997 had the effect of compelling the divided community to have a single leadership against the will of one of the two rival leaderships (see paragraph 85 above).
95. As a result, one of the groups of leaders was favoured and the other excluded and deprived of the possibility of continuing to manage autonomously the affairs and assets of that part of the community which supported it (see paragraph 84 above).
96. It is true that States enjoy a wide margin of appreciation in the particularly delicate area of their relations with religious communities (see Cha’are Shalom Ve Tsedek v. France, cited above, § 84). The Court reiterates, however, that in democratic societies the State does not need in principle to take measures to ensure that religious communities remain or are brought under a unified leadership. The role of the authorities in a situation of conflict between or within religious groups is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. As the Court has already stated above, State measures favouring a particular leader of a divided religious community or seeking to compel the community, or part of it, to place itself under a single leadership against its will would constitute an infringement of the freedom of religion. (see Serif v. Greece, cited above, §§ 49, 52 and 53, and Hasan and Chaush v. Bulgaria, cited above, § 78).
97. The Government have not stated why in the present case their aim to restore legality and remedy injustices could not be achieved by other means, without compelling the divided community under a single leadership. It is significant in this regard that despite the “unification” process in 1997 the conflict in the religious community continued (see paragraphs 49 and 50 above).
98. In sum, the Court considers that the Bulgarian authorities went beyond the limits of their margin of appreciation under Article 9 § 2 of the Convention.
99. It follows that the interference with the applicant organisation’s rights under Article 9 of the Convention in 1997 was not necessary in a democratic society for the protection of public order or the rights and freedoms of others and was therefore contrary to that provision.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
100. The applicant organisation complained that the judicial proceedings it had instituted had not provided an effective remedy against the arbitrary acts of the authorities and that no other remedies had been available.
101. The Court considers that the above complaint falls to be examined under Article 13 of the Convention, which provides:
“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.”
102. The Government submitted that the courts, by examining the applicant organisation’s appeals on the merits, provided an effective remedy against the alleged interference with the believers’ Article 9 rights.
103. In accordance with the Court’s case-law, 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 (see Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV).
104. The applicant organisation’s claim under Article 9 of the Convention was undoubtedly arguable (see paragraph 99 above). It follows that Article 13 required the availability of an effective domestic remedy.
105. The applicant
organisation was provided with a judicial remedy. The
107. The Court reiterates, however, that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention (see Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, § 61; Kudła v. Poland [GC], no. 30210/96, § 151, ECHR 2000‑XI, and Connors v. the United Kingdom, no. 66746/01, § 109, 27 May 2004).
108. The applicant organisation’s complaint related in essence to one of the principles underlying the applicable legal regime. It cannot be considered that Article 13 of the Convention required the provision of a remedy to challenge that regime.
109. It follows that there has been no violation of Article 13 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLES 6 AND 14 OF THE CONVENTION
110. The applicant
organisation alleged that there had been a number of separate violations of
Article 6 of the Convention in the 1998-2000 proceedings before the
111. The provisions relied upon provide in so far as relevant:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an ...impartial tribunal...”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
112. Having regard to its findings under Article 9 and 13 of the Convention, the Court finds that it is not necessary to examine the same issues under Articles 6 and 14 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
113. 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.”
114. The applicant organisation claimed 25,000 euros (“EUR”) for the alleged damage to the reputation of Mr Gendzhev and the leadership presided over by him and the consequences of the State interference in the internal affairs of the Muslim community.
115. The Government considered that the amount claimed was excessive and that the finding of a violation of the Convention would be sufficient just satisfaction.
116. Having regard to the circumstances of the present case and its case-law concerning claims for non-pecuniary damage made on behalf of legal persons or organisations (see Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 57, ECHR 1999-VIII; Comingersoll S.A. v. Portugal [GC], no 35382/97, ECHR 2000-IV, § 35; Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 121, ECHR 2001-IX; and Metropolitan Church of Bessarabia and Others v. Moldova, cited above, § 146), the Court considers that an award under this head is appropriate. The unjustified State interference with the organisation of the religious community must have caused non-pecuniary damage to the applicant organisation. Deciding on an equitable basis, the Court awards EUR 5,000 in respect of non-pecuniary damage, to be paid to Mr N. Gendzhev as the representative of the applicant organisation.
B. Costs and expenses
applicant organisation claimed approximately EUR 6,800 for legal work in the
domestic proceedings and before the Convention institutions and the equivalent
of approximately EUR 500 for translation costs, express mail and overhead
expenses. It presented copies of legal-fee agreements between the applicant organisation
and Mrs Margaritova‑Vutchkova, its legal representative before the
Court, receipts showing that it had paid sums to three lawyers, including
Mrs Margaritova-Vutchkova, for work done in several sets of separate
judicial proceedings in
118. The Government stated that no time-sheet for Mrs Margaritova‑Vutchkova’s work had been submitted and that some of the fees paid to other lawyers concerned domestic proceedings unrelated to the present case. The Government also stated that the fees and expenses claimed were excessive.
119. On the basis of the legal-fee agreement submitted by the applicant organisation and the relevant receipts, the Court concludes that the legal costs claimed were, for the most part, actually and necessarily incurred, but applies a reduction on account of the fact that some of the initial complaints were declared inadmissible (see paragraph 6 above). Deciding on an equitable basis, the Court awards EUR 5,000 for costs and expenses.
C. Default interest
120. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 9 of the Convention;
2. Holds that there has not been a violation of Article 13 of the Convention;
3. Holds that it is not necessary to examine the complaints under Articles 6 and 14 of the Convention;
(a) that the respondent State is to pay to Mr N. Gendzhev, the representative of the applicant organisation, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing
Sřren Nielsen Christos