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New Bulgarian Law on Religion
known as the Confessions Act 2002
Doc. 10065
9 February 2004
Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Domenico Contestabile, Italy, Group of the European People's Party
For debate in the Standing Committee — see Rule 15 of the Rules of Procedure
Summary
The Bulgarian Law on Religion (Confessions Act 2002) has given rise to some concerns as regards the freedom of religion in this country, in particular as regards the state’s neutrality in religious matters. This document addresses these issues in light of the case law of the European Court of Human Rights and makes proposals to resolve some problems either by modifying certain passages of the Law or by applying them in a way that is in conformity with European standards, in the spirit of religious tolerance that has prevailed throughout most of Bulgaria’s history.
I. Draft resolution [Link to the adopted text]
1. The new Bulgarian Law on Religion known as the Confessions Act 2002 entered into force on 1 January 2003, replacing the Denominations Act of 1949, which had allowed for unfettered government interference in the internal affairs of all religious denominations. After years of protracted negotiations on various drafts, the Confessions Act 2002 was adopted at the end of December 2002.
2. The Confessions Act 2002 represents an important step forward by comparison with the Denominations Act 1949. It recognises religious freedom as a fundamental right, declares that all religions are free and equal and lays down the separation of the Church and the State. At the same time, it allows for the State and local communities to support religious activities, including through tax advantages and the provision of places of worship. Finally, it operates an important change in the role of the Directorate “Religion” of the Bulgarian Council of Ministers, which is evolving from a directing and controlling organ into a chiefly advisory body whose task it is to watch over the respect for religious freedom.
3. The Confessions Act has nevertheless given rise to some criticism by many religious communities - with the exception of the official Bulgarian Orthodox Church lead by Patriarch Maxim and of the Jewish Community - and by NGO’s such as the Bulgarian Helsinki Committee.
4. Many religious communities regret the provisions - in particular Article 10 - which grant the Bulgarian Orthodox Church a special role and exempt it from the registration requirement which the Act generally foresees as a precondition for legal personality. They fear the psychological impact of this clause which could lead to discrimination against other religions on different levels of State administration. Some practical problems have already surfaced concerning alleged factual inequalities in the tax treatment of the income sources of different religious communities, access to the teaching of religion and delays in the processing of applications for registration.
5. Some perplexity stems from the poor drafting of the Act which has caused confusion and concern among many religious groups. Key provisions governing the registration of religious institutions and the extent to which re-registration of existing institutions is required (at the central and/or local level) do indeed seem unclear. Neither the procedure to be followed (delays, appeals, adversarial nature, precise role of the Directorate “Religions”) nor the substantive criteria for registration are laid down clearly in the Act. Likewise, the Act fails to recognise explicitly the freedom of thought (i.e. the right not to believe) and does not clarify the rights of believers of unregistered religious communities.
6. The formulation of the restrictions placed on religious freedoms in Article 7 of the Act has also given rise to concern. In particular, the prohibition of the use of religion for “political objectives”, in conjunction with the Act’s punitive provisions, could effectively exclude religious communities from important policy debates in civil society on issues such as abortion, euthanasia, cloning, family and social policies, which also have a direct relation to the values they defend.
7. The strongest doubts concern the State interference allowed for, or even operated directly by the 2002 Confessions Act, in the internal affairs of religious communities. This concerns in particular the leadership quarrel between the two Bulgarian Orthodox synods lead, respectively, by Patriarch Maxim and by Metropolitan Innokentii, who disputes the legitimacy of Maxim as Patriarch. The ex lege recognition of the Bulgarian Orthodox Church, as defined meticulously in Article 10 (1), exempting this institution from the usual registration procedure, which also includes a check on the legitimacy of the leadership, is generally seen as intended to settle the dispute between Maxim and Innokentii in favour of the former. The
alternative synod is effectively barred from registering as a new religious institution by the prohibition against the registration of another institution using the same name and headquarters and the punitive provisions empowering the Directorate “Religions” to sanction “unauthorised representatives”. In this way, the 2002 Confessions Act appears as the fulfilment of a promise made to Patriarch Maxim by the present Government and the new President to overcome the split within the Bulgarian Orthodox Church.
8. The Parliamentary Assembly, taking into account the case-law of the European Court of Human Rights in this field, as developed in particular in its judgments in the cases of Hasan and Chaush v. Bulgaria, Metropolitan Church of Bessarabia and others v. Moldova, Serif v. Greece, and Kokkinakis v. Greece, considers that:
i. freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the European Convention on Human Rights;
ii. the State’s role is that of a neutral and impartial organizer of the exercise of various religions, faiths and beliefs;
iii. religious communities may not be discriminated in comparison with other actors of civil society; their activities “shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” (cf. Article 9 para. 2 of the European Convention on Human Rights (ECHR));
iv. the law prescribing restrictions to religious freedom must meet the standards of clarity and foresee ability derived from the principle of the rule of law so as to avoid giving the executive unfettered discretion to intervene in religious affairs;
v. in democratic societies, the State need not take measures to ensure that religious communities remain or are brought under a unified leadership. Tensions arising in situations where a religious community becomes divided are an unavoidable consequence of pluralism. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism but to ensure that the competing groups tolerate each other.
9. The Assembly therefore recommends to the Bulgarian authorities:
i. as regards Article 10 of the Act:
a. Article 10 (1) and (3) (special recognition of Eastern Orthodoxy and the principle of non-discrimination): recognising that the wording of these provisions is not objectionable per se, to ensure that the special recognition given to Eastern Orthodoxy does not lead to the discrimination of other religions for practical purposes such as state or municipal support, the restitution of property, tax treatment, the teaching of religion, etc.;
b. Article 10 (2) (ex lege recognition of the Bulgarian Orthodox Church): either to delete this provision outright, thereby subjecting the Bulgarian Orthodox Church to the same registration requirements as other religious communities; or to ensure in other ways without interference by the executive that the leadership of the Bulgarian Orthodox Church is legitimate according to orthodox canonical law.
ii. as regards Article 15 (2) (no registration of an identical religious community): either to delete this provision, or to ensure its interpretation in such a way that only the strict and literal identity of names and headquarters precludes the registration of a breakaway group;
iii. as regards Article 14 and following (registration of religious communities),
a. regarding the substantive criteria for registration: either to add an express clarification that the Sofia city court and the Directorate “Religions” may not enter into value judgments on religious beliefs or rules, or to ensure that these provisions are applied in such a way that all religious communities shall be registered as long as they provide the information foreseen in Article 17, their name and headquarters are not strictly identical with those of another religious community having applied for registration earlier, and they do not violate Article 7 as modified or interpreted in accordance with Article 9 of the ECHR;
b. regarding the registration procedure: to clarify the non-binding character of the opinions of the Directorate “Religions”; to ensure the adversarial nature of the registration procedure, including free access to information, a fair hearing to be given to the applicant and the proper motivation of decisions;
iv. as regards Article 7 (limits of religious freedom): either to change its wording to incorporate that of Article 9 para. 2 of the ECHR, or to ensure that it is interpreted narrowly and applied in accordance with the standards of the ECHR, in particular as regards the legitimate participation of religious communities in public policy debates;
v. as regards Article 36 pp. (punitive provisions) : to lay down in the text of the Act, or ensure by way of interpretation, that the procedure to be followed for the infliction of penalties and appeals lodged against them shall fulfil the requirements of a fair trial under the rule of law.
II. Explanatory Memorandum
by Mr Domenico Contestabile, Rapporteur
A. Origin of the Rapporteur’s mandate
1. A motion for an order (Doc 9703 dated 13 February 2003) sponsored by Mr Atkinson (United Kingdom, EDG) and others and transmitted to the Committee on Legal Affairs and Human Rights on 31 March 2003 (reference No 2806) expressed a number of concerns regarding the new law on registration of religious organisations known as the Confessions Act, promulgated on 29 December 2002.
2. The movers were, in particular, concerned “at the position of privilege established by the law in favor of one particular religious organisation, the Bulgarian Orthodox Church, despite its assertion that all religions should be equal”, and “at the separate procedure for registration that is adopted by the law towards other religious organisations, despite its assertion that no discrimination shall be permitted.”
3. The movers further “regret that the draft law was not referred to the Council of Europe for consultation despite concerns expressed during the monitoring process by its two rapporteurs (Mr Atkinson and Gjellerod) towards such a law during their visits”.
4. At its meeting on 4 April 2003, the Committee on Legal Affairs and Human Rights appointed me as Rapporteur. At its following meeting on 29 April 2003, I was authorised to undertake a fact-finding visit to Sofia (programme of my visit appended).
b. Background: a tradition of religious freedom and tolerance in Bulgaria, interrupted by totalitarian rule
5. The Bulgarian Confessions Act that I was asked to comment on must be seen in its historic and political context.
6. During the communist period, the Denominations Act of 1949 allowed for unfettered government interference in the internal affairs of all religious denominations. Religion was the only officially tolerated alternative to the ideological monopoly of the communist party, and the authorities made sure that it was under strict control, until the “dying-off” of religion expected in the long run. The law allowed the government to remove religious ministers from office, prohibited religious charitable activities and, in particular, forbade the religious education of the young and established control over any type of religious publications. But repressive and discriminatory as it was, it seems that the old law was found suitable by politicians during the first years of democratic change in their efforts to support and promote their own faithful inside the principal religious denominations and use them for party-political purposes[1].
7. Apart from the communist episode, Bulgaria takes legitimate pride in a long tradition of religious freedom and tolerance, beginning with the peaceful coexistence of Islam and Christianity during many years of Ottoman rule. Historically, Bulgarian Orthodoxy is widely seen as a catalyst of Bulgarian nationhood, of the emancipation of the Bulgarian people. This specific historic role of Orthodoxy has historically not given rise to intolerance vis-�-vis other religious communities. A widely celebrated example for the religious tolerance of the Bulgarian people and its remarkable courage in actively standing up for the rights of religious minorities is the rescue of the Bulgarian Jewish community during Word War II. Against this background, it is not surprising that the representatives of the Jewish community were the least worried about the new Confessions Act among the leaders of different religious communities whom I met during my visit to Sofia. The Jewish leaders, but also representatives of other religious minorities, referred to this act of heroism of the Bulgarian people with a great deal of gratitude and admiration. In view of this historical precedent, I am myself inclined to give Bulgaria the benefit of the doubt, as regards the political will to safeguard religious freedom and tolerance.
8. This being said, it is my task as Rapporteur to take an objective look at the different provisions of the Law, in order to assess their compatibility with the standards set by the Council of Europe, which Bulgaria has voluntarily accepted in joining our organization.
C. Description of the disputed provisions of the Bulgarian Confessions Act adopted in December 2002
a. The special role of the Bulgarian Orthodox Church
9. The Preamble of the Act refers to the special role the Bulgarian Orthodox Church has played in the history of the Bulgarian nation. Article 10 goes on to stipulate that the “traditional religion in the Republic of Bulgaria is Eastern Orthodoxy”, which has played a “historic role for the Bulgarian state” and has “actual significance for its state life”. Article 10 further lays down that Eastern Orthodoxy is “expressed and represented by the self-ruled Bulgarian East Orthodox Church, which under the name Patriarchate is the legal successor of the Bulgarian Exarchate and is member of the One, Holy, Council and Apostle Church. It is lead by the Holy Synod and is represented by the Bulgarian Patriarch, who is also the Bishop of Sofia.” Article 10 (2) rules that the Bulgarian Orthodox Church is a corporate body whose structure and management are determined in its statute. Article 10 (3) states that the first two paragraphs cannot be grounds for granting any privileges or priorities.
b. Freedom and equality of religions, separation of State and Church
10. According to Article 2 of the Act, the right to religion shall be “basic, absolute, subjective, personal and inviolable”, and it shall include the right to freely form religious beliefs, to choose, change and practice religion individually or collectively, publicly or privately. Article 3 adds that nobody can be persecuted or restricted in his rights due to religious beliefs, or granted privileges or subjected to restrictions based on affiliation or refusal of affiliation with a religion. Article 4 (1) specifies that religions shall be free and equal, and that the religious institutions shall be separated from the state. Article 4 (2) adds that state interference in the internal organization of the religious communities and institutions shall be inadmissible. According to paragraph (3), the state shall ensure conditions for free and unhindered exercise of the right to religion, and paragraph (4) reiterates that discrimination on a religious basis shall not be admitted.
c. Registration requirement
11. According to Article 14 of the Act, religious communities “may”, “can” or “shall”[2] be registered with in order to obtain legal personality. Article 15 grants the Sofia city court the competence to deal with such a registration. The Act does not specify the criteria on the basis of which registration will be granted, or may be withheld. Article 17 merely lists the obligatory content of a religious community’s statute, i.e.: name and headquarters, “presentation of the belief, conviction, and the liturgical practice”, structure and bodies of the religion, the way of determining the management bodies, representatives of the religion, and the way of determining them, funding and property, provisions on termination and liquidation. Once a confession has been registered, it may establish local subdivisions (Article 19 of the Act) and
it enjoys the rights mentioned in Chapters 4 and 5 of the Act (Property and Finance, and Health, Social and Educational Activities of the Religions). Article 8 (6) foresees that the registration may be revoked. One of the grounds for revocation is that the religious institution has been used for “political purposes” (Article 7 (2)).
12. It is not clear which rights, if any, a religious community enjoys that has not obtained, or subsequently lost its status as a legal person (“religious institution”). It appears that the rights of Articles 5 and 6 (for example, to express religious convictions in divine services, rituals and customs, to maintain places for divine service, to produce, acquire and use the necessary materials for religious ceremonies, to publish religious publications, to preach and teach, to collect donations) flow from the right to religion as such and are therefore independent of the legal status of the community. By contrast, the rights of “religious institutions” enumerated in Chapters 4 and 5 (including the rights to own property – Article 21, to receive public subsidies and support - Articles 22 and 25, and to set up theological colleges – Article 33) seem to be reserved only for religious institutions, which have become legal persons through registration (argumentum e contrario)[3].
d. Restrictions placed upon the freedom of religion
13. According to Article 7 (1), the freedom of religion cannot be directed against the national security, public order, public health and morale, or against the rights and liberties of other persons. Article 7 (2) adds that religious communities and institutions, as well as belief convictions, cannot be used for “political objectives”.
14. The sanctions in case of a violation of these restrictions are laid down in Article 8. They include the stopping of the creed’s publishing activity, the ceasing of the activity of the religion’s corporate body for up to 6 months, and even the definitive revocation of the registration of the corporate body. In addition, the punitive provisions of Chapter 7 (administrative fines) are at the disposal of the Directorate “Religions” of the Council of Ministers, both against individuals and religious groups as such.
e. The role of the Directorate “Religions”
15. Article 35 of the Act assigns certain functions to the Directorate “Religions”, a governmental agency described as a “specialized administration of the Council of Ministers”. This agency has been transformed from a controlling organ under the old Religious Denominations Act into an advisory and coordinating body whose task it is to guarantee the respect for religious rights and freedoms. Its tasks include advising the Sofia city court, at its request, on questions related to the registration of religious communities (Article 16), and to check signals and complaints about the conduct of illegal religious activities within the meaning of Article 7. Articles 36-40 give the Directorate the power to impose financial sanctions against individuals and communities committing offences against the Act. Article 40 foresees the possibility of appeal against such sanctions.
D. Council of Europe standards regarding freedom of thought, conscience and religion
16. Article 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion) is the main standard of reference. Article 9 must be read in conjunction with Article 14 ECHR (prohibition of discrimination). A number of general principles can be derived from the case-law of the European Court of Human Rights, in particular from the Court’s judgments in the cases of Hasan and Chaush v. Bulgaria, Serif v. Greece, Refah partisi v. Turkey, Kokkinakis v. Greece and Hoffmann v. Austria[4].
17. Among the general principles developed by the European Court of Human Rights, the following are of particular interest: for the assessment of the Bulgarian Confessions Act 2002.
18. Fundamental importance of religious freedom: “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.” (European Court of Human Rights, Kokkinakis v. Greece (1993), para. 31).
19. Scope of the right to religious freedom: includes the right to try and convince others, and the right to legal protection of the community as such: “[…] it includes in principle the right to try and convince one’s neighbour, for example through ‘teaching’, failing which, moreover, ‘freedom to change [one’s] religion or belief’, enshrined in Article 9, would be likely to remain a dead letter.” (ibid.) It is also a collective right. The Court stated that “one of the means of exercising the right to manifest one’s religion, especially for a religious community, in its collective dimension, is the possibility of ensuring judicial protection of the community, its members and its assets, so that Article 9 must be seen not only in the light of Article 11, but also in the light of Article 6.” (European Court of Human Rights, Metropolitan Church a.o. v. Moldova (2001), para. 118).
20. Non-discrimination between various religious groups: the Court has “frequently emphasized the State’s role as the neutral and impartial organizer of the exercise of various religions, faiths and beliefs” (European Court of Human Rights (2003), Refah partisi a.o. v. Turkey (Grand Chamber), para. 91). It follows that any discrimination between religious groups and their members will be contrary to the ECHR (cf. European Court of Human Rights, Hoffmann v. Austria (1993), para. 33), and that the State must not make any value judgments concerning religion or belief. “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.” (European Court of Human Rights, Hasan and Chaush v. Bulgaria (2000), para. 78).
21. Autonomy: freedom from arbitrary State intervention, free choice of leadership and respect for pluralism: “[…], 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 at the very heart of the protection which Article 9 affords” (Hasan and Chaush v. Bulgaria, para. 62). “The Court does not consider that, in democratic societies, the State needs to take measures to ensure that religious communities remain or are brought under a unified leadership.” (European Court of Human Rights, Serif v. Greece (1999), para. 52). In the same judgment (para. 53), the Court “recognizes that it is possible that tension is created in situations where a religious or any other community becomes divided, it considers that this is one of the unavoidable consequences of pluralism. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.”
In Metropolitan Church of Bessarabia and others v. Moldova (2001), the Court re-affirmed these principles and stressed the importance of non-interference by the State, and of legal protection to be granted to religious communities in the following terms: “[S]ince religious communities traditionally exist in the form of organized structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. Seen in that perspective, […] the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention.” (ibid., para. 118).
22. Restrictions placed on religious freedom must comply with the principle of the rule of law: The European Court of Human Rights has established in its case law that the terms “prescribed by law“ and “in accordance with the law” in Articles 8 to 11 of the Convention “[…] not only require that the impugned measures have some basis in domestic law, but also refer to the quality of the law in question, which must be sufficiently accessible and foreseeable as to its effects, that is formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct.” (Metropolitan Church of Bessarabia v. Moldova, ibid., para. 109).
E. Application of the Council of Europe standards to the disputed provisions of the Confessions Act 2002
a. The special role of the Bulgarian Orthodox Church
23. The recognition of the special role of the Bulgarian Orthodox Church (above para. 9) is considered by the representatives of all other religious communities that I have met (with the exception of the Jewish representatives) as an unjustified privilege that is contrary to the state’s obligation of neutrality. Some found that this passage of the Act was an illicit value judgment by the State in favour of Eastern Orthodoxy, thereby discriminating against all other religions. Several interlocutors stressed that the special role recognized by the Act was not merely symbolic, but had some very practical, tangible aspects, in particular the registration requirement for all other religious communities (also for breakaway orthodox communities), which placed a considerable administrative and financial burden on other religions. One non-orthodox interlocutor raised the point that the absence of a registration requirement for the official Bulgarian Orthodox Church could also have the effect of discriminating against orthodox believers themselves who in this way were deprived of the benefit of a procedure designed to ensure a neutral “check” on the legitimacy of the leadership of each religious community.
24. Another very tangible differentiation was mentioned to me by a representative of the Bulgarian Council of Protestant Churches: according to the regulations in force, the main source of income of the Orthodox Church – the sale of candles – was tax-exempt, whereas a 20% excise tax was levied on donations not related to the sale of religious articles, which are the main source of funding of other religious communities.
25. Yet another example of a possible State bias against other religious groups was brought to my attention recently. Instruction No. 2/23.06.2003 on religious instruction as a teaching subject, in force since 4 July 2003, requires in its Article 11 that “teachers in religion” can only be those who have a degree from a theology department of a Bulgarian University, or graduates of the High Islamic Institute. This effectively excludes Catholics and Protestants from teaching religion, as the theology departments still require an orthodox baptismal certificate for enrolment, and the High Islamic Institute’s graduates are usually Muslims. I was told that this is not new, but the new Instruction, issued after the entry into force of the 2002 Confessions Act, has not seized the opportunity to improve the situation.
26. The Holy Synod of the Bulgarian Orthodox Church represented by Patriarch Maxim[5] considers that the Act simply “gives what is due to the natural rights of the Bulgarian Orthodox Church, which for centuries has legitimized Bulgarian statehood. […] ‘Traditionality’ of the Eastern Orthodox religious denomination in the Republic of Bulgaria means not only its early emergence and adoption in historical terms (9th century), but also the confession on a mass scale of this religion for twelve centuries by the predominant part of the Bulgarian nation (almost in its entirety) and the centuries-long continuity of the confession.” The Holy Synod compares the recognition of certain religious communities in other countries with the Bulgarian concept of “traditional religion”, which it considers “in the highest degree delicate and tolerant compared to similar concepts in other Constitutions and laws of EU Member States, which legitimize the religion of the majority of the believers with concepts like “state”, “official”, or “dominant” (e.g. the Constitutions of: Greece, Denmark, Italy, Norway and Poland, and the Law on Protestantism in Austria).” [6]
27. In my opinion, in view also of similar provisions in the constitutions and laws of other countries that have not given rise to criticism from the Council of Europe (although the situation varies strongly between the countries enumerated in the above-cited position paper of the Holy Synod), the merely symbolic recognition of the historical role of the Bulgarian Orthodox Church as formulated in Article 10 (1) is acceptable. The formulation does not offend believers of other faiths, merely recognizing in positive terms the historical contribution of the Orthodox Church to Bulgarian nationhood, without denigrating or aggressing other religions. Furthermore, the Act affirms itself the principle of non-discrimination (Article 4 (4)), and stresses that Article 10 (1) cannot be a ground for granting “privileges or priorities”. The actual application of the Act, by all State instances involved (the Directorate “Religions”, but also the Sofia city court, the municipalities involved in registering local branches, the customs and tax authorities etc.) will show if Article 10 (1) and Articles 4 (4) and 10 (3) are in contradiction with one another, as the opponents of the Confessions Act 2002 say, or if Article 10 (1) is indeed a purely symbolic recognition of historical fact. In the absence of sufficient experience with the application of the Act, which entered into force only 8 months ago, I am inclined to give the Bulgarian government the benefit of the doubt. But it will be necessary to follow-up on the actual practice of equal treatment of the various religious communities, including such mundane issues as the practical effects of customs and tax provisions on the different churches.
b. Unification ex lege of the Bulgarian Orthodox Church?
28. The provision in Article 10 (2) recognizing the Bulgarian Orthodox Church as defined in Article 10 (1)[7] ex lege as a corporate body whose structure and management are determined in its statute, must also be seen, against the background of the split within the Bulgarian Orthodox Church between the followers of Patriarch Maxim and those of Metropolitan Innokentii, both of whom I had the honour of meeting in the presence of the members of the two Holy Synods. Interestingly, the leaders of both Synods confirmed that they were not separated by theological disagreements. Metropolitan Innokentii merely disputes the legitimacy of the appointment of Patriarch Maxim, whom he describes as being a collaborator with the former atheist communist regime, and Patriarch Maxim accuses Metropolitan Innokentii of disobeying canonical law.
29. Critics of the Act, including the United Democratic Forces (UDF), which are part of the present government coalition, contend that the main purpose of this provision is to settle the above-mentioned split in favour of Patriarch Maxim. They argue that the exemption of the official Bulgarian Orthodox Church from the normal registration procedure was designed to avoid exposing the illegality of the appointment of Patriarch Maxim in 1971, which would otherwise come to light during the registration procedure. In conjunction with punitive clauses empowering the Directorate “Religions” to sanction the followers of the alternative synod continuing to profess eastern orthodoxy[8] and with the fact that all assets belonging to the Bulgarian Orthodox Church (in particular, its places of worship) were being brought under the control of the “official” synod, followers of the “alternative synod” were effectively deprived of their right of freedom of religion by the state’s intervention in favour of the official synod. Metropolitan Innokentii submitted several examples for the eviction of priests following him by violent mobs, with the security forces refusing to intervene. Metropolitan Innokentii complained that priests who had followed him had been evicted by force from the churches in which they had been serving for many years. These evictions had been perpetrated by violent mobs, and the State authorities in charge of maintaining law and order had refused to intervene[9]. Metropolitan Innokentii likened these incidents to the violent repression against upright priests under the communist regime, which Patriarch Maxim, who owed his nomination to the same regime, had failed to resist. For Metropolitan Innokentii, the 2002 Confessions Act, which had the support of the Bulgarian Socialist Party, the successor of the communist party, was designed to sow confusion among Orthodox believers in order to undermine their faith.
30. He also complained that even before the enactment of the new law in December 2002, and even more so, since then, the highest authorities of the State systematically invited Patriarch Maxim to all official functions, treating him as the sole representative of Bulgarian orthodoxy, and denying the alternative synod any access to public media.
31. The proponents of the Act consider that the ex lege recognition of the Bulgarian Orthodox Church as described in Article 10 (1) is merely a recognition of historical fact. Any breakaway group, including that led by Metropolitan Innokentii, remained free to register as a separate legal person, without however being able to use the name and headquarters of the existing Bulgarian Orthodox Church, or its assets (cf. Article 15 (2): “Inadmissible shall be to exist more than one corporate body as religion with one and the same name and headquarters”.
32. Representatives of the Government and of the parliamentary majority that adopted the Act in turn accused the UDF of misusing the issue of religious freedom for their own party-political ends. They contended that the UDF, while in Government together with the Movement for Rights and Freedoms, had made use of the old 1949 Law on Religious Denominations, which gave the State sweeping powers to interfere in the running of religious organizations, to replace existing religious leaders by their own favorites[10]. As far as the Orthodox Church was concerned, the UDF favorite was in their opinion Metropolitan Innokentii. Prime Minister Saxe-Cobourg, who received me for an extensive exchange of views on the topic, stressed the importance that he attached to religious peace in his country, which had been undermined for many years by the rivalry between Maxim and Innokentii. He did not consider that there was an important difference between the two church leaders concerning their attitude to the communist regime. Faced with this dispute, he favoured the formal legitimacy conferred upon Patriarch Maxim by his election in 1971. The Prime Minister stressed that the vast majority of Orthodox believers in Bulgaria followed the Holy Synod led by Patriarch Maxim.
33. In my view, the starting-point should be the case-law of the European Court of Human Rights. In the terms used by the Court, “[s]tate 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.” (Hasan and Chaush v. Bulgaria, ibid., para. 78; Serif v. Greece, ibid., para. 52; Metropolitan Church of Bessarabia v. Moldova, para. 117). For the same reasons on which the Court relied in the first of the above cases, concerning the Muslim community in Bulgaria, it is also not for the State to decide the leadership dispute within the Bulgarian Orthodox Church, one way or another.
34. In my view, and as far as I have been able to clarify the background of this Law, the parliamentary majority, which passed the 2002 Confessions Act may indeed have attempted to settle the dispute between the two synods led, respectively, by Patriarch Maxim and Metropolitan Innokentii, in favour of the former. In view of the case-law of the European Court of Human Rights summarized above, I cannot but consider the relevant provisions of the Act and the preference given to the synod led by Patriarch Maxim by the State in practical terms as a State interference in the affairs of the Bulgarian Orthodox Church, and thus as a possible infringement of the right to freedom of religion (cf. the European Court of Human Rights in Metropolitan Church of Bessarabia v. Moldova, as cited above in para. 21).
35. But the case law of the Court of Human Rights does not amount to an outright prohibition against any State interference in religious affairs. In the Metropolitan Church of Bessarabia v. Moldova case[11], the Court noted that according to its settled case-law, “the Court leaves to States party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary, but that goes hand in hand with European supervision of both the relevant legislation and the decisions applying it. The Court’s task is to ascertain whether the measures taken at national level are justified in principle and proportionate.”
36. According to Article 9 ECHR, the interference with religious freedom must be “prescribed by law” and “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”.
37. As far as the condition of the interference being “prescribed by law” is concerned, it is specified in the case-law of the Court of Human Rights that these terms “[…] not only require that the impugned measures have some basis in domestic law, but also refer to the quality of the law in question, which must be sufficiently accessible and foreseeable as to its effects, that is formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct.” (Metropolitan Church of Bessarabia v. Moldova, ibid., para. 109). Whilst some passages of the 2002 Confessions Act do seem to lack clarity, the choice of the official representative of Bulgarian Orthodoxy in Article 10 (1) seems to be sufficiently clear to all concerned.
38. The next test, according to Article 9 ECHR is whether the interference pursues a legitimate aim, i.e. whether it is intended to protect public safety or public order. Given the disturbances of public safety and order caused by the dispute between the followers of the two competing synods (cf. above para.29, footnote 9), it is arguable that the settlement of this dispute, once and for all, by the legislator is intended to restore public safety and order, which are threatened by an ongoing violent dispute within what is by far the most important religious community in the country.
39. But this interference with religious freedom, albeit prescribed by law in pursuit of a legitimate aim, must also be “necessary in a democratic society”. The Court has recognized that “in a democratic society, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.” (Metropolitan Church of Bessarabia v. Moldova, para. 115). But the Court has also stressed the State’s duty of neutrality and impartiality, and the importance of pluralism, also in the religious field (see above, para. 20). Accordingly, “the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.” (ibid., para. 116). Given the importance of religious pluralism, which is inherent in the concept of a democratic society, a good deal of weight must be given to this need when determining whether the interference corresponds to a “pressing social need” and is “proportionate to the legitimate aim pursued” (cf. European Court of Human Rights, in: Metropolitan Church of Bessarabia v. Moldova, ibid., para. 119).
40. In light of the above, I cannot but conclude that the Bulgarian State, both the legislator in adopting certain provisions of the 2002 Confessions Act (in particular, Article 10 (1) and (2)) and the executive, insofar as it has supported one competing synod over the other, has to this extent failed in its duty of neutrality.
41. The solution chosen for the leadership dispute in the Bulgarian Orthodox Church of recognizing ex lege one leadership whilst effectively outlawing the other is therefore in my view not appropriate in a democratic society. The right to secede from the official church – regulated by objective, neutral provisions regarding the future use of the name of the religious community, its assets, prayer-houses etc., in accordance with the wishes of the believers[12] – could be an appropriate remedy in the case of a theological schism motivating the creation of a new religious community. The situation at issue here is merely a dispute about the legitimacy of the present leadership of the one Church professing the otherwise undisputed Eastern Orthodox beliefs. In this case, it would be, in my opinion, more in line with the concept of a democratic society for the State to provide an appropriate legal framework in which the leadership dispute can be resolved by the believers themselves, without state interference in favour of the one or the other side.
c. The registration of religious communities
42. The registration foreseen by Chapter 3 of the Act as a requirement for the acquisition of legal personality by a religious community (which, through registration, becomes a “religious institution”, cf. para. 1 of the Additional provisions) has given rise to criticism under two main angles.
43. The first criticism voiced by the opponents of the Act is that the registration requirement is discriminatory against all other religious communities than the official Bulgarian Orthodox Church, which is recognized ex lege by Article 10 (2). Other religious communities have to go through what they consider as a burdensome and costly procedure in order to obtain registration. Some of them, in particular the more recently implanted protestant denominations, feel discriminated and even threatened by this requirement.
44. Registration requirements as such have been found acceptable in the past by Council of Europe bodies (cf. the Report on Russia’s law on religion, by Kevin McNamara dated 25 March 2002, Doc. 9393). I consider them as a perfectly justifiable regulation of religious freedom by the State, which has a legitimate interest in keeping an overview over the different religious activities in the country. A properly administered registration procedure enables the State to fulfill its legitimate duties of ensuring tolerance between opposing groups, and of controlling extremism and fundamentalism (cf. European Court of Human Rights, Refah Partisi and others v. Turkey (2003) para. 91, 100).
45. The exemption of one religious community from the requirement of registration need not per se constitute an act of discrimination against the others. Discrimination is commonly defined as differentiation without appropriate justification. When the exemption of one or more religious communities from registration merely constitutes the recognition of a pre-existing, historical difference – such as the centuries-long existence of the Bulgarian Orthodox Church as a corporate body – I find it acceptable, as long as the registration requirement placed upon the other churches does not constitute an undue burden on them (but see above para. 28, regarding the inner-orthodox dispute).
46. This leads to the second criticism leveled against the registration requirement: that the definition of the requirements for registration is unclear and gives unacceptably wide discretion to the Sofia city court and the Directorate “Religions”.
47. In my view, the list of obligatory information to be provided in the statute of the religion under Article 17 of the Act is quite acceptable under one condition: that items 2. (“presentation of the belief conviction and the liturgical practice”), 4. (“the way of determining of the management bodies, their authorities and the duration of their mandate”) and 5. (“the persons, who have the right to represent the religion and the way of determining them”) are interpreted as mere formal information requirements, as the other items in the list. They must not give rise to any subjective “assessment” by the Sofia city court or the Directorate “Religions” leading to a value judgment on the basis of which registration may be granted or refused. Such a value judgment would go against the State’s duty of neutrality as developed by the European Court of Human Rights (see above, para. 20).
48. Given that the Act foresees no substantive criteria for evaluation, any discretion given to State authorities to refuse registration of a religious community on the basis of a substantive evaluation, for example of its “belief conviction”, or of the way it chooses its spiritual leaders would also fail the test developed by the European Court of Human Rights according to which any interference with religious freedom must be “prescribed by law”, i.e. by a legal rule that is “sufficiently accessible and foreseeable as to its effects”. The Court stated in its judgment in Metropolitan Church of Bessarabia v. Moldova (para. 109) that “[i]n matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise.”
49. But as before, I am prepared to give the Bulgarian legislator the benefit of the doubt and trust that the registration of religious communities will be carried out in practice in a non-discriminatory way, based upon a purely formal interpretation of the items of Article 17.
50. However, in this context, I can also not hide the fact that several interlocutors have informed me during my fact-finding visit that they are worried about the length of the registration proceedings engaged after the entry into force of the Act. These included even representatives of the Jewish community, whose attitude to the 2002 Confessions Act is otherwise among the most positive.
51. As to the Muslim community, Chief Mufti Selim Mehmed of the High Muslim Council was only mildly critical of the fact that the Bulgarian Orthodox Church was exempted from the registration requirement. Two competing muslim leaders (Prof. Nedim Guendjev, “Chairman of the Supreme Spiritual Council of the Muslims in the Republic of Bulgaria”, and Hadji Nedjib Mutalib Daud, “Chief Mufti and Chairman of the Sunnit-Hanefit Religion in Bulgaria”) were more outspoken in their criticism. Both accused the Directorate “Religions” of pursuing a party-political agenda, insofar as the Muslim community was concerned. Mr Guendjev claimed that he was chased from his office as Chief Mufti due to pressure by the Movement for Rights and Freedom, to whose Bureau the present Deputy Director of the Directorate “Religions”, Mr. Ayrus Hadji, belonged. He informed me that he had filed a complaint with the European Court of Human Rights[13] against the Bulgarian Government. Hadji Daud, in turn, has filed, on 28 April 2003, an application to register a new religious institution as legal successor of the pre-1949 Sunni-Hanefit faith. He informed me that on 9 June 2003, the Deputy Director of the Department “Religions” had sent a negative opinion to the Sofia city court, which he said was motivated by political considerations, to protect the monopoly of the “official” Chief Mufti’s office, which in his view was under the control of the Movement for Rights and Freedoms.
52. Whilst some starting problems in the application of a new law, by a new authority – the Sofia city court has no previous experience of religious matters – are inevitable, I should like to appeal to those responsible to apply due diligence to the treatment of all requests for registration currently in process. Without wishing to take sides in any way in the dispute among the different Muslim groups, the problems in this community are just another example for the importance of the State remaining strictly neutral in religious matters. This must apply especially to the registration procedure, if it is to remain acceptable as a purely administrative tool.
d. Legal restrictions of the right to religion
53. The legal limits placed on religious freedom in Article 7 (1) and (2)[14] go beyond those foreseen in Article 9 of the ECHR. In fact, Article 9 does not provide for restrictions regarding the pursuit of “political objectives”, and the restrictions allowed by Article 9 in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others must be “prescribed by law” and “necessary in a democratic society”.
54. Article 7, in conjunction with the tough sanctions foreseen in Articles 8 and Articles 36 pp, could give rise to a situation in which religious communities are effectively excluded from participating in fundamental political debates which, in a democratic society, legitimately involve all sectors of civil society. Pluralism and the proper functioning of democracy, as well as religious freedom (believers being required to engage themselves in public life in defense of core values) would be at risk if religious communities would be barred from participating in public debates on life-and-death topics such as abortion, euthanasia, cloning, but also issues touching on human solidarity as advocated by many religious groups such as family-friendly policies, social protection of the needy, etc.
55. Several interlocutors have mentioned to me that the 2002 Confessions Act still gives the State the power to treat religious communities more harshly than other associations or non-profit organizations, which was seen as a remnant of the “suspicious” attitude towards religion permeating the 1949 Confessions Act[15]. I was also told that the vague formulation of the restrictions in Article 7 would fail the predictability test as established by the European Court of Human Rights and would grant the State authorities the kind of unfettered discretion that the Court disallows when fundamental rights such as that to freedom of religion are at stake (cf. the citation of the Court above para. 46).
56. Personally, I should like to revert to my previously justified presumption of good faith in favour of the Bulgarian legislator, and consider that the restrictions foreseen in Article 7, and in particular the prohibition of the pursuit of “political objectives” will be construed narrowly so as to cover only the worst cases of abuse of a religious “umbrella” to cover extremist political activities aimed at the overthrow of democracy.[16] Of course, it would be a particularly appreciable sign of goodwill if the legislator would amend the wording of Article 7 in such a way as to simply repeat the provisions of Article 9 ECHR.
e. The role of the Directorate “Religions”
57. The Director of the Directorate “Religions”, Mr Ivan Jelev, and Professor Ognyan Gerdjikov, speaker of the Bulgarian National Assembly, have most eloquently explained to me that the role of his office has changed dramatically under the new Act. From a controlling body under the old Religious Denominations Act, it had been transformed into a specialized administration with the Council of Ministers with advisory and coordinating functions, acting as a guarantor for the respect of religious rights and freedoms.
58. My contacts with a number of representatives of various religious communities have given me the impression that some minority groups are still somewhat wary of the role of this office, which they fear may not change in practice in the way described above. Their fears relate on the one hand to the “opinions” the Directorate shall give to the Sofia city court on matters concerning the registration of religious communities (Article 16), and to the decisive role the Directorate plays according to para. 4 of the additional provisions regarding the legal succession between religious groups. On the other hand, they relate to the Directorate’s role under chapters 6 and 7 of the Act given this office a role which is at the same time investigative (Article 35 lit. 8.: “check signals and appeals about implementing illegal religious activity in connection with Article 7 of this law and if necessary notify the bodies of prosecution”), and punitive (Articles 36-39, in particular Article 39 (2): “The punitive decrees shall be issued by the director of the Directorate “Religions” of the Council of Ministers.
59. In my view, as far as the Directorate’s opinions are concerned, the key is that they are given in a spirit of openness and tolerance, the presence of which I presume, in line with the generally positive impression I gained during my fact-finding visit. It may thus be presumed that the opinions, in the same way as the decisions regarding the registration of religious communities by the Sofia city court (cf. above, para. 45), will respect the case law of the European Court of Human Rights, i.e. limit themselves to a formal interpretation of the requirements of Article 17, respect the State’s duty of neutrality, and avoid passing value judgments on religious beliefs.
60. As far as the punitive functions are concerned, I expect in the same spirit that the Directorate will interpret the limitative provisions, in particular those of Article 7, in a restrictive way (cf. above, para. 51), and that the procedures followed by the Directorate, and those applicable to the appeal foreseen in Article 40, will satisfy the requirements of the ECHR regarding the infliction of criminal sanctions (in particular, an adversarial procedure protecting the rights of the defense).
F. Conclusion
61. In my view, the 2002 Confessions Act is an important step forward for the protection of religious freedom in Bulgaria, by comparison with its predecessor, the 1949 Religious Denominations Act. The 2002 Confessions Act has given rise to some doubts related mainly to the special role it foresees for the Bulgarian Orthodox Church, which other religions fear may be an excuse for discriminatory treatment, the way it attempts to overcome the split between the two Orthodox synods, and the strict controls imposed on religious communities’ participation in “political” debates.
62. Given the centuries of religious tolerance in Bulgaria, interrupted only during the period of the communist regime, I am inclined to consider that most of the criticisms can be resolved by a fair application in practice of the 2002 Confessions Act, guided by the principles developed by the European Court of Human Rights. Of course, a clarification in this sense in the wording of the Act itself would be most welcome.
63. I should therefore like to propose open formulations for the draft resolution that our Committee could propose to the Assembly, leaving the choice of the method used in order to ensure religious freedom in accordance with the European Convention on Human Rights to the Bulgarian authorities themselves. In this sense, we could address the following recommendations to the Bulgarian authorities, after the presentation of the problems encountered and the reminder of the general principles in paragraphs 1. to 8. of the Preliminary Draft Resolution presented at the start of this document:
“9. The Assembly therefore recommends to the Bulgarian authorities:
i. as regards Article 10 of the Act:
a. Article 10 (1) and (3) (special recognition of Eastern Orthodoxy and the principle of non-discrimination): recognising that the wording of these provisions is not objectionable per se, to ensure that the special recognition given to Eastern Orthodoxy does not lead to the discrimination of other religions for practical purposes such as state or municipal support, the restitution of property, tax treatment, the teaching of religion, etc.;
b. Article 10 (2) (ex lege recognition of the Bulgarian Orthodox Church): either to delete this provision outright, thereby subjecting the Bulgarian Orthodox Church to the same registration requirements as other religious communities; or to ensure in other ways without interference by the executive that the leadership of the Bulgarian Orthodox Church is legitimate according to orthodox canonical law;
ii. as regards Article 15 (2) (no registration of an identical religious community): either to delete this provision, or to ensure its interpretation in such a way that only the strict and literal identity of names and headquarters precludes the registration of a breakaway group;
iii. as regards Article 14 and following (registration of religious communities),
a. regarding the substantive criteria for registration: either to add an express clarification that the Sofia city court and the Directorate “Religions” may not enter into value judgments on religious beliefs or rules, or to ensure that these provisions are applied in such a way that all religious communities shall be registered as long as they provide the information foreseen in Article 17, their name and headquarters are not strictly identical with those of another religious community having applied for registration earlier, and they do not violate Article 7 as modified or interpreted in accordance with Article 9 ECHR;
b. Regarding the registration procedure: to clarify the non-binding character of the opinions of the Directorate “Religions”; to ensure the adversarial nature of the registration procedure, including free access to information, a fair hearing to be given to the applicant, and the proper motivation of decisions;
iv. as regards Article 7 (limits of religious freedom): either to change its wording to incorporate that of Article 9 para. 2 ECHR, or to ensure that it is interpreted narrowly and applied in accordance with the standards of the ECHR, in particular as regards the legitimate participation of religious communities in public policy debates;
v. as regards Article 36 pp. (punitive provisions) : to lay down in the text of the Act, or ensure by way of interpretation that the procedure to be followed for the infliction of penalties and appeals lodged against them shall fulfil the requirements of a fair trial under the rule of law.”
APPENDIX
Programme of the fact-finding visit to Bulgaria by Mr Contestabile
Sofia, 11 - 12 June 2003
| Wednesday 11 June 2003 | |
| 9.30 am | Meeting with the President of the National Assembly of the Republic of Bulgaria, Professor Ognian Gerdjikov |
| 10 am | Meeting with the Members of the Committee on Human Rights and Religions of the National Assembly (“Zapad” Hall, National Assembly) |
| 11 am | Meeting with the Director of the Directorate “Religions” of the Council of Ministers, Mr Ivan Jelev (Council of Ministers) |
| 12 – 2 pm | Working lunch, meeting with the Members of the Bulgarian Parliamentary Delegation to Parliamentary Assembly of the Council of Europe |
| 2.15 pm | Meeting with Patriarch Maxim and Members of the Holy Synod (Building of the Holy Synod) |
| 3 pm | Meeting with H.E.Archbishop Guiseppe Leanza, Nuntius of the Holy See |
| 3.30 pm | Meeting with Mr. Selim Mehmed, Chief Mufty, and Members of the High Muslim Council (“Zapad” Hall, National Assembly) |
| 4.15 pm | Meeting with Members of the Central Jewish Council (“Zapad” Hall, National Assembly”) |
| 5 pm | Meeting with H.E. Bishop Christo Projkov, Apostolic Exarch, (“Zapad” Hall, National Assembly) |
| 5.30 pm | Meeting with H.E. the Prime Minister Saxe-Cobourg (“Zapad” Hall, National Assembly) |
| 6 pm | Meeting with Representatives of the Protestant Churches in Bulgaria (“Zapad” Hall, National Assembly) |
| 6.30 pm | Meeting with Metropolitan Innokentii (“Zapad” Hall, National Assembly) |
| 7.30 pm | Dinner hosted by Mr. Younal LOUTFI, Vice-president of the Bulgarian Parliament, Chairman of the Bulgarian Delegation to Parliamentary Assembly of the Council of Europe, Vice-president of PACE |
| Thursday 12 June 2003 | |
| 9 am | Meeting with Professor N. Guendjev, Chairman of the Supreme Spiritual Council of the Muslims in the Republic of Bulgaria, and Hadji Nedjib Mutalib Daud, Chief Mufti and Chairman of the Sunnit-Hanefit Religion in Bulgaria (Hilton Hotel) |
| 10 am | Delegation debriefing |
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 9703, Reference 2806 of 31 March 2003
Draft resolution adopted unanimously by the Committee on 15 December 2003
Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Ak�am, Mr Alibeyli, Mrs Arifi, Mr Arzilli, Mrs Azevedo, Mr Barquero V�zquez, Mr Bartumeu Cassany, Mrs Bemelmans-Videc, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein (alternate: Mr Shishlov), Mrs Christmas-M�ller, Mr Cilevics, Mr Contestabile, Mr Daly, Mr Davis (alternate: Mr Lloyd), Mr Dimas, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mr Frunda, Mr Galchenko, Mr Gedei, Mr Goris, Mr Guardans, Mr G�nd�z, Mrs Hajiyeva, Mrs Hakl, Mr Ionnadis, Mr Holovaty (alternate: Mr Shybko), Mr Ivanov, Mr Kalezic, Mr Kelber, Mr Kelemen, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli (alternate: Mr Ates), Mr Manzella, Mr Martins, Mr Masson (alternate: Mr Hunault), Mr McNamara, Mr Monfils, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mrs P�tursd�ttir, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Sol� Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko, Mr Takkula, Mrs Tevdoradze, Mr Toshev, Mr Wilkinson, Mrs Wohlwend
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Cupina, Mr Milner
[1] Cf. the interesting article by Prof. Krassimir Kanev, Director of the Bulgarian Helsinki Committee: “The New Bulgarian Religious Law – Restrictive and Discriminatory”.
I should like to acknowledge the valuable information drawn from two expert’s reports prepared on the topic of the Bulgarian Confessions Act 2002 respectively by Professors M. D. Evans and R.A Lawson.
[2] Depending on the translation used; the Rapporteur has worked with an English translation of the Act provided by the Secretariat of the Bulgarian delegation to the Council of Europe Parliamentary Assembly; the Report by Prof M. D. Evans is based on another translation using the term “shall”; Professor Evans refers to yet another translation using the term “may”.
[3] The interpretation of the Law is made difficult by the fact that it is done on the basis of a translation, which means that differences in the terminology used in different parts of the Law (for example, religious community versus religious institution) may or may not be a sufficient basis to conclude that different legal consequences attach.
[4] These judgments will be quoted in the form in which they are published on the internet site of the European Court of Human Rights.
[5] Whose legitimacy as Patriarch is put into doubt by Metropolitan Innokentii and his followers, who maintain that the election of Patriarch Maxim in 1971, under the communist regime, does not stand up to legal scrutiny against the standards of the statute of the Bulgarian Orthodox Church.
[6] Cited from the written submission received from Patriarch Maxim.
[7] As “the self-ruled Bulgarian East Orthodox Church, which under the name Patriarchate is legal successor of the Bulgarian Exarchate and is member of the One, Holy, Council and Apostle Church. It is lead by the Holy Synod and is represented by the Bulgarian Patriarch, who is also the Bishop of Sofia.”
[8] Cf. Article 36 (1): “The one, who without representative power implements activity on behalf of a religion, shall be punished with a fine […]”; Article 36 (2): increase of the fine for repeat offenders.
[9] On 21 July 2002, in the town of Bansko, the priest Stefan Kamberov was killed, allegedly by followers of the Synod of Patriarch Maxim. The criminal prosecution is still ongoing.
On 5 April 2003, in the town of Pomorie, special anti-organised crime police helped priests belonging to the official synod occupy the church of “Sv. Rozdestvo Bogorodichno”, chasing away the parochial priest Dimitar Mitev, the guardians of the temple and the worshipers present at that time.
On 16 May 2003, in the town of Dobrich, a group of civilians, and priests obedient to Patriarch Maxim, in the presence of police officers, seized the local church, changed the locks and prevented any religious activities.
On 19 May 2003, in the city of Varna, 30 persons entered by force the church “Sv. Atanasij”, changing the locks of all the doors and prevented the parish priest of many years, Lyubomir Popov, and other members from fulfilling his duties. According to the submission by Metropolitan Innokentii, the church still remains closed, and the faithful are obliged to hold their divine services in the street. I was handed, in Sofia, a binder with more than 5,000 signatures collected, according to Metropolitan Innokentii, in just a few days, protesting against the attitude of the public authorities, including the prosecutor’s office, which, after some hesitation, concluded that this was “not an urgent case”.
[10] The case of Hasan and Chaush v. Bulgaria, decided by the European Court of Human Rights in October 2000, concerns a similar leadership dispute within the Sunni Muslim community. The Court noted, not without a pinch of irony, that “[i]ndeed, the replacement of the leadership of the Muslim religious community had curiously coincided with the change of Government in Bulgaria.” In fact, Mr Guendjev, who had been elected Chief Mufti in 1988, was replaced by Mr Hasan, after the Directorate of Religious Denominations declared Mr Guendjev’s election null and void, subsequently to the 1991 elections which had given the UDF and the Movement for Rights and Freedoms a majority. After the Bulgarian Socialist Party came to power at the end of 1994, Mr Guendjev was reinstated as Chief Mufti. Mr Hasan won his appeal before the European Court of Human Rights against his eviction, following which another leadership was installed. Mr Guendjev has in turn filed a suit in Strasbourg against his removal from office in 1997 – which, he claims, had been ordered by the Movement for Rights and Freedoms.
[11] Ibid., para. 119.
[12] It is doubtful whether the provisions of the 2002 Confessions Act would fulfil these conditions, as Articles 9 and 15 (2) are not clear as to whether they exclude only the use of exactly the same name by the breakaway group, or also that of another name including some reference to eastern orthodoxy. The discretion of the Sofia city court, or of the Directorate “Religions”, in giving the opinion the Sofia court would likely request, is very wide. These provisions would therefore be likely to fail the “prescribed by law” test developed by the European Court of Human Rights.
[13] Cf. the facts underlying the judgment of the Court of Human Rights in Hasan and Chaush v. Bulgaria: Mr Hasan obtained a condemnation of the Bulgarian government for its interference leading to his replacement by Mr Guendjev, after a change of political majorities. Mr Hasan had previously replaced in his turn Mr Guendjev. The circumstances of this earlier revirement appear to be the subject of Mr Guendjev’s appeal to the Court in Strasbourg.
[14] Wording reproduced in para. 13 above.
[15] Another example for a remnant of suspicious attitude is Article 35 (5) of the Act foreseeing that visits by foreign clergy shall be subject to an “opinion” by the Directorate “Religions”. It is not clear from the Act why permission is required at all for such visits, and why only central bodies of religious “institutions” (what about – unregistered – religious communities ?) can request such a permission.
[16] Cf. European Court of Human Rights, in Refah Partisi and others v.Turkey (2003), para. 100: “In view of the clear link between the Convention and democracy […], no-one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society.”