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Publication:[not yet received]
Title:Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) v. Bulgaria
Application No:412/03, 35677/04
Respondent:Bulgaria
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment:22-01-2009
Articles:6
9
13
P1-1
41		Conclusion:No violation of article 6
Violation of article 9
No violation of article 13
Compensation awarded for costs and expenses
Question under article 41 partly reserved
Keywords:ACCESS TO COURT / RELIGIOUS FREEDOM / EFFECTIVE REMEDY / PROPERTY

Summary:
(Press release)
The first applicant, the Holy Synod presided over by the Metropolitan Inokentiy ("the alternative Synod"), is one of the two rival leaderships of the divided Bulgarian Orthodox Church (the Church). The remaining applicants are six employees of the alternative Synod, namely Assen Milushev, Petar Petrov, Stoyan Gruichev, Liubka Nikolova, Rositsa Grozdanova and Liliana Shtereva. Soon after the democratic changes of 1989, a number of Christian Orthodox believers, who subsequently became popularly known as the "alternative Synod", sought to replace the existing leadership of the Bulgarian Orthodox Church. They considered that Patriarch Maxim, who had been leading the Church since 1971 and had been nominated by the Communist Party, had been proclaimed Patriarch in violation of traditional canons and the statute of the Church. In 1992 the Government intervened in the internal organisation of the Church by appointing an interim council pending the holding of a Church Convention to elect a new Patriarch. The Bulgarian courts found that that intervention was unlawful. In the following years, the leadership dispute within the Church continued. Each of the two leaderships had its supporters among the clergy and the believers and held religious conventions and congregations with the aim of uniting the Bulgarian Orthodox Church and having its leader recognised as the sole legitimate Head of the Church. In the ensuing judicial proceedings for registration the courts issued contradictory decisions. Each of the conflicting groups in the Church associated itself with one of the main political forces at the time.

Following a change in Government, the majority's political leaders publicly supported Patriarch Maxim and declared their intention to unite the Church. A new law - the Religious Denominations Act 2002 - was introduced with a view to putting an end to the divisions in the Church. The law prohibited religious denominations from having the same name and stated that persons who had split from a registered religious institution were not entitled to use that institution's name or assets. The law also exempted the Church from a formal registration procedure of its central leadership. In 2003, the alternative Synod was refused registration of most of its local church councils throughout the country. The main argument of the courts for their refusal was that registration could only be granted if requested by the person representing the Church. In their view, this had not been the case. Following a complaint filed by Patriarch Maxim against the leader of the alternative Synod and his supporters, on 19 and 20 July 2004 local prosecutors throughout the country issued orders for the eviction of persons "unlawfully occupying" churches and religious institutions. As a result the police blocked more than 50 churches and monasteries in the country, evicted the religious ministers and staff who identified themselves with the alternative Synod, and formally transferred the possession of the buildings to representatives of the rival leadership.

Relying on Article 9 (freedom of thought, conscience and religion), the applicants complained that in 2003 and the following years the state had interfered arbitrarily in the internal dispute in the Bulgarian Orthodox Church with the aim of forcing all clergy and believers under the leadership of the person favoured by the authorities. The applicants also submitted that they had not had access to court, had been deprived of their property and had not had effective remedies in respect of their Convention rights, in breach of Articles 6  (right to a fair hearing), Article 1 of Protocol 1 (protection of property) and Article 13  (right to effective remedy).

Article 9
The Court first noted that, in the context of an ongoing dispute between two groups claiming leadership of the Church, in 2002 and the following years the State had taken action to terminate the autonomous existence of one of the two opposing groups and had provided the other group with exclusive control over the affairs of the whole religious community. It found that that had been contrary to the Government's duty to remain neutral in such matters, as it had not been a question of merely recognising the canonical leadership of the Church but a question of which leadership had been canonical. The authorities had therefore taken sides in an unsettled controversy deeply dividing the religious community. That had amounted to an interference with the applicants' right to freedom of religion, which had included the right to organisational autonomy of the religious community.

The Court noted that the whole system of registrations of religious communities in Bulgaria had been influenced by political considerations for decades and that by 2002 the Church had been genuinely divided for more than ten years. The Court disagreed with the Government's view that the applicants had been nothing more than persons occupying churches unlawfully. The Court observed that the alternative Synod's leader had been nominated by a Church convention attended by a significant number of clergy and believers. Further still, believers, church councils and senior clergy members throughout the country had accepted the alternative Synod as the legitimate leadership of the Church.

The Court held that the need to remedy the unlawful doings of the governments in 1992 and the following years could not justify the excessive acts that had occurred in the present case, namely the suppression of the applicants' activities as an alternative leadership within the Church and their expulsion from temples, monasteries and other Church premises. While the Court accepted that in 2002 the Bulgarian authorities had had good reasons to consider action to help overcome the conflict in the Church, only neutral measures ensuring legal certainty and foreseeable procedures for the settling of disputes could have been justified. The Court criticised the fact that hundreds of clergy and believers were evicted from their temples in July 2004 without a proper legal basis. That had amounted to an intervention by the prosecutors and the police in a private law dispute which should have been examined by the courts.

The Court further considered that the relevant provisions of the Religious Denominations Act 2002 had been formulated with a false appearance of neutrality. The courts and prosecutors had in fact identified the "valid" leadership of the Church essentially on the basis of the view held by the majority in Parliament and the Government that Patriarch Maxim was the sole legitimate representative of the Church. The Court found that the 2002 Act had not met the Convention standards of quality of the law, in so far as it had left open to arbitrary interpretation the issue of legal representation of the Church and had the effect of forcing the believers to accept a single leadership against their will.

The Court took note of the Government's position about the historical importance of Church unity but stated that the case before it was not about the desirability of finding a solution. It concerned the fact that the authorities had decided to impose a solution through legislative intervention and wide ranging actions to eliminate one of the two opposing leaderships and force the believers to accept the other leadership. The Court's case-law in this respect was clear: in democratic societies it was not for the State to take measures to ensure that religious communities remained or were forced under a unified leadership.

The Court concluded that the sweeping measures which the state authorities had undertaken, namely forcing the religious community to unite under a single leadership had been unlawful and unnecessary, and had gone against the organisational autonomy of the Church, in violation of the applicants' rights under Article 9.

Article 6 and Article 1 of Protocol No. 1
Concerning the six individual applicants:
The Court found that their complaints under these Articles had to be rejected as unproven.

Concerning the alternative Synod:
The Court held that no separate issue arose under these Articles. In particular, the Court found that the alternative Synod's claims under both of these Articles concerned in fact state interference in the internal organisation of the Church, which had already been examined under Article 9.

Article 13
The Court found no violation of this Article. It considered that, as the violation of the applicants' rights had resulted from the 2002 law and the measures for its implementation, the State had not been obliged to make available special remedies to challenge that law.

Article 41
The Court held that the question of the application of Article 41 (just satisfaction) was not ready for decision in so far as pecuniary and non-pecuniary damage was concerned, and awarded the applicants, jointly, 8,000 euros (EUR) for costs and expenses.

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Last Modified: 26-02-2013 10:24:53 (Documentation SIM)