CEDH · CASELAW;CLIN;ENG — 22 janvier 2009

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Bulgaria - 412/03 Judgment 22.1.2009 [Section V] Article 9 Article 9-1 Freedom of religion Unjustified State interference in the internal leadership dispute of a divided religious community by assisting one of the opposing groups to gain full control: violation   Facts : 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 employees   of the alternative Synod. 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. Following a change in Government, the majority's political leaders publicly supported Patriarch Maxim. A new law - the Religious Denominations Act 2002 (the 2002 Act) - was introduced with a view to putting an end to the divisions in the Church. It provided, inter alia , for the ex lege recognition of the Church. It also introduced a provision which stated that the Church “is headed by the Holy Synod and is represented by the Bulgarian Patriarch ...” The Act prohibited religious denominations from having the same name and stated that persons who had seceded from a registered religious institution were not entitled to use its name or assets. 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, Patriarch Maxim was “publicly known and internationally recognised” as the head of the Church. Following a complaint filed by Patriarch Maxim, in 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. Patriarch Maxim's leadership enjoyed international support from Orthodox Churches and other religious organisations worldwide. The applicant organisation has never had significant international support from Orthodox Churches outside Bulgaria. Law: (a)     Applicability : The events complained of concerned State action which, in the context of an ongoing dispute between two groups claiming leadership of the Church, had had the effect of terminating the autonomous existence of one of the two opposing groups and providing the other group with exclusive representative power and control over the affairs of the whole religious community. The impugned State actions therefore fell to be examined under Article   9. The Court's task was to examine whether the enactment of the 2002 Act and its implementation constituted an unlawful and unjustified State interference with the internal organisation of the Church and the applicants' rights. It was not the Court's task, and indeed it was not the task of any authority outside the Bulgarian Christian Orthodox community and its institutions, to assess the validity under canon law of the opposing claims to legitimacy made by the rival leaderships. (b)     Existence of State interference : Contrary to what the Government had submitted, the authorities' involvement had not been limited to mere recognition of the Church's leadership that was legitimate under canon law. The question of which leadership was canonical had been in dispute within the religious community itself and there had been no authoritative decision by the community settling this dispute. Despite these realities, the 2002 Act had declared the ex lege recognition of the Church as a single legal person led by a single leadership and had forced the religious community under one of the two existing leaderships. The authorities had thus taken sides in an unsettled controversy deeply dividing the religious community. The fact that the applicants could have founded a new religious organisation under a different name from that of the Bulgarian Orthodox Church could not lead to the conclusion that there had been no State interference with the internal organisation of the Church. (c)     Necessity of interference : The ongoing dispute in the Church had generated legal uncertainty. In particular, each of the rival leaderships had endeavoured to obtain control over places of worship and Church assets and it had often been difficult to ascertain the representatives of parishes. A number of judicial decisions concerning the Church's leaderships and their representative powers had been issued over the years, some of them contradictory. All this had engendered difficulties not only within the religious community but also for persons and institutions having relations with the Church. Therefore, the Bulgarian authorities had had good reasons to consider action to help overcome the conflict in the Church. On the other hand, the Court could not accept the view that the applicants had been nothing more than persons occupying churches unlawfully. The Church conventions which supported the two rival leaderships had each been attended by hundreds of representatives of local parishes and other clergy and believers, and that was how the applicant organisation had obtained control over certain Church assets and temples. While it was likely that but for the unlawful State acts of 1992 the applicants would have probably gained less influence, the relevant fact was that by 2002, when the State authorities had undertaken the impugned action to “unite” the Church, it had been de facto and genuinely divided for more than ten years, on the basis of arguments which were not frivolous or untenable. In such conditions, the legitimate aim of remedying the injustices could not warrant the use of State power to take sweeping measures, imposing a return to the status quo ante against the will of a part of the religious community. The need to restore legality, on which the Government had relied, could only justify neutral measures ensuring legal certainty and foreseeable procedures for the settling of disputes. In the present case, however, the State authorities had gone far beyond the restoration of justice and undertaken actions directly forcing the community under one of the two rival leaderships and suppressing the other. Hundreds of clergy and believers had thus been evicted from their temples, which had amounted to an unlawful intervention by the prosecutors and the police in a private law dispute which should have been examined by the courts. Such measures had to be regarded as disproportionate. The disproportionate nature of these measures had been exacerbated by the fact that the 2002 Act had not met the Convention standards of quality of the law, in so far as its provisions had been formulated with a false appearance of neutrality and had disregarded the fact that the Church had been deeply divided, which was tantamount to forcing the believers to accept a single leadership against their will. In particular, the issue of legal representation of the Church had been left open to arbitrary interpretation. Some domestic courts and the prosecuting authorities had relied essentially on the views of the majority in Parliament and the Government that Patriarch Maxim was the sole legitimate representative of the Church. However, neither the unity of the Church, even though it was a matter of the utmost importance for its adherents and for Bulgarian society in general, nor the Government's purported aim of securing respect for the precepts of religious canon could justify State action imposing such unity by force and disregarding the position of numerous Christian Orthodox believers in Bulgaria who supported the applicant organisation. In sum, despite the wide margin of appreciation left to the national authorities, they had interfered with the organisational autonomy of the Church and the applicants' rights under Article 9 of the Convention in a manner which could not be accepted as lawful and necessary in a democratic society. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes