|
|
|
|
|
|
Application No. 28626/95
by Khristiansko Sdruzhenie "Svideteli na
Iehova" (Christian Association Jehovah's
Witnesses) against Bulgaria
The European Commission of Human Rights sitting in private
on 3 July 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
J.-C. SOYER
H. DANELIUS
J.-C. GEUS
M.A. NOWICKI
I. BÉKÉS
D. SVÁBY
G. RESS
A. PERENIC
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 September
1995 by Khristiansko Sdruzhenie "Svideteli na Iehova" (Christian
Association Jehovah's Witnesses) against Bulgaria and registered
on 21 September 1995 under file No. 28626/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of
Procedure of the Commission;
- the observations submitted by the respondent Government on
3 May 1996 and 2 April 1997 and the observations in reply
submitted by the applicant association on 21 June 1996 and
1 April 1997;
- the parties' oral submissions at the hearing on 3 July
1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an association which bears the name
Khristiansko Sdruzhenie "Svideteli na Iehova" (Christian
Association Jehovah's Witnesses). Before the Commission it is
represented by MM. Alain Garay and Philippe Goni, lawyers
practising in Paris.
The facts of the case as submitted by the parties may be
summarised as follows.
A. Particular circumstances of the case
The applicant association
There is disagreement between the parties as to the time
when followers of Jehovah's Witnesses first appeared in
Bulgaria. The applicant association contends that there is
information about Jehovah's Witnesses' presence as early as in
1888. The Government maintain that they were unknown in
Bulgaria before 1989.
According to the applicant association the number of its
members and followers today in Bulgaria is between 500 and 1000.
On 30 January 1991 the applicant association was founded by
five individuals at a meeting in Sofia. The founders adopted a
statute of the association and elected a four-member board. The
statute provided inter alia that the association's aims were:
dissemination of the truths of the Bible, training of clergymen,
establishment and enhancement of contacts among Jehovah's
Witnesses in the country and from abroad, and promotion of such
moral values as honesty, morality, rejection of drugs, alcohol
and tobacco, respect for the family, and obedience to the State
authorities. It was also stated that the association would
pursue its aims by organising, among other things, meetings of
followers, translation and publication of religious materials
and teaching. Section 8 of the statute provided that a member
is free to leave the association at any time.
The board members applied to the Sofia City Court ( ) for
registration as a non-profit association under the Persons and
Family Act ( ).
The Court held a hearing on the matter with the
participation of a prosecutor, who stated that the association
should be registered as the legal requirements were met. On 17
July 1991 the Court registered the applicant association,
whereupon, in accordance with the Persons and Family Act, it
obtained legal personality. In its decision the Court stated
that all necessary documents had been presented and were in
conformity with the relevant provisions of the Persons and
Family Act.
The Public Prosecutor's Office (), whose task in
registration proceedings is the defence of the public interest,
did not challenge the applicant association's registration
before the Supreme Court ( ), as it could have done under the
law within seven days.
Refusal of authorisation to the applicant association
On 18 February 1994 the Persons and Family Act was amended
to the effect that religious associations were required to re-
register subject to consent by the Council of Ministers (see
below Relevant domestic law). This amendment aimed at the
unification of the legal regime in respect of religious
organisations, because under the Religious Denominations Act (
), a religious community needs the authorisation of the Council
of Ministers in order to acquire the status of a recognised
religious denomination.
On 23 March 1994 the applicant association submitted to the
Council of Ministers a petition requesting authorisation for re-
registration. The judgment of the Sofia City Court of 17 July
1991 and the statute of the applicant association were enclosed
therewith.
On several occasions during the following three months
representatives of the applicant association unsuccessfully
requested to meet officials from the Directorate of Religious
Denominations ( ) at the Council of Ministers in order to
present their arguments on the matter.
On 17 June 1994 the daily newspaper "24 Hours" published an
article which explained that the Council of Ministers had
refused authorisation for the re-registration of 24 religious
communities and named the applicant association and several
others among them.
On 23 June 1994 the applicant association submitted a
petition to the Council of Ministers citing the published
information and asking for an official decision.
On 28 June 1994 the Council of Ministers adopted Decision
No. 255 thereby granting authorisation for the registration of
17 associations and refusing it for 24 others including the
applicant association. The decision stated that it was based on
Section 133a and the transitional provision of the Persons and
Family Act; no further reasoning was provided.
The applicant association did not receive an official copy
of this decision. Members of the applicant association first
became aware of its contents on 5 August 1994 during a police
action in the town of Haskovo (see below Suppression of the
applicant association's meetings). On 9 September 1994 Decision
No. 255 was published in the State Gazette, the official organ
of the State.
On 15 September 1994 the applicant association appealed to
the Supreme Court ( ) against this decision. In their written
submissions the representatives of the applicant association
stated inter alia that the decision contravened the relevant
provisions of the Administrative Procedure Act ( ) and Article
6 of the Convention as no reasons whatsoever had been given for
the refusal of authorisation. Also, the decision amounted to a
breach of the applicant's rights under the Constitution and
under Articles 9, 10, 11, 14 and 18 of the Convention because
Jehovah's Witnesses' activities did not fall within any of the
grounds allowing restrictions on the exercise of the right to
association, and of the freedoms of religion and of expression.
The applicant association further stated in brief some
principles of Jehovah's Witnesses' religious philosophy
emphasising their dedication to morality, respect for the public
order and for the family. Also, the history of their religion
clearly showed that they attached utmost importance to peace and
did "not take part in the wars of the nations", while having
full respect for the convictions of others and, consequently,
acknowledging and not interfering with the authority of the
State to maintain armed forces.
The Council of Ministers made written submissions in
response stating that Section 133a and the transitional
provision of the Persons and Family Act did not place any
restriction on the exercise of the Council of Ministers'
discretion whether or not to authorise the registration of a
religious association. Therefore, and since the Supreme Court
was not competent to examine on the merits a Council of
Ministers' decision which had been within the latter's
discretionary powers, the appeal was considered to be
inadmissible.
Alternatively, the Council of Ministers contended that
Decision No. 255 was in conformity with the Constitution and
that the Council of Ministers had taken into account the
"international practice and the social practice in the country".
Also, the decision was not arbitrary as it had been taken "on
the basis of the assessments of various experts".
The Council of Ministers contended that the statute of the
applicant association did not correspond to the essence of
Jehovah's Witnesses' religion and to their practices "as they
[were] known around the world". This was so because, inter
alia,
"... ninety-nine percent of the pertinent
bibliography, predominantly in English, indicate that
notwithstanding the allegation of Watch Tower, the managing
body of [Jehovah's Witnesses'] community, that their
doctrine is Christian and that it is based on the Bible, in
fact it denies almost all basic Christian concepts. It is
known that Jehovah's Witnesses have made their own
translation of the Bible, which is a forgery from a
linguistic and a historical point of view."
Also, it was not true that Jehovah's Witnesses had respect
for the law and for the public order. Rather, "it [was] well
known that they [had] a doctrine requiring the replacement of
the civil society by a theocratic society, which [was] contrary
to the Constitution of Bulgaria". Furthermore, it was forbidden
for Jehovah's Witnesses to take oath before the national flag or
to honour other State symbols, as well as to serve in the army.
In fact, this had been admitted by the applicant association
which had stated in its appeal that its followers did not take
part in wars.
Moreover, Jehovah's Witnesses' rejection of blood
transfusions was contrary to the law and deprived the members of
the religious group of their constitutional right of choice in
respect of their health and life. Also, the creed at issue
involved the devaluation of human life, a hostile attitude
towards science, labelled as devil's act, and incitement to
social marginalisation. Many authors had found that the level
of psychiatric illnesses among Jehovah's Witnesses was higher
than among other people. Moreover, there had been cases of mass
suicide.
The Supreme Court held a hearing on the matter. In
response to the Government's submissions, the applicant
association stated inter alia that it was absurd to accept that
the Council of Ministers could enjoy a discretion beyond the
provisions of the Constitution and the Convention and that
therefore the Supreme Court was competent to examine the
constitutionality of the impugned decision.
On 13 March 1995 the Supreme Court dismissed the appeal.
The judgment, insofar as relevant, states as follows:
<Translation>
"I. As to the admissibility of the appeal.
... the [Supreme Court's] competence to examine
disputes as regards the lawfulness of the Council of
Ministers' acts is derived from Section 125 para. 2 of the
Constitution and Section 99 para. 2 of the Act on the
Judiciary ... Therefore, the Supreme Court is competent to
examine the lawfulness of the impugned decision.
II. On the merits.
Examined on the merits, the appeal is ill-founded.
Under the new Section 133a and the first paragraph of
the transitional provision of the Persons and Family Act,
the Council of Ministers is empowered to authorise the
registration of legal persons, which are non-profit
associations ... [engaged in religious activities]. This
legal regime does not provide for the participation of the
petitioner in the process of the examination of the
petition.
The limitations on religious denominations are
enunciated in the provisions of Section 37 para. 2 of the
Constitution and Article 9 para. 2 of the Convention, which
is in force in respect of Bulgaria as from 7 September
1992. The question whether the aims declared in the
[applicant association's] draft statute of association are
in compliance with the exhaustive list of limitations
contained in the above provisions, is within the competence
of the highest organ of the executive power, who decides
on the basis of its free assessment. The judicial control
of lawfulness in such a case is limited to an examination
whether the impugned act is within the administrative
organ's competence and whether it complies with the
procedural and substantial legal requirements as regards
its adoption.
In the present case the Council of Ministers, when
adopting the impugned refusal, acted within its competence
under the law (Section 133a of the Persons and Family Act).
The competence requirements and the procedure for the
examination of the petition were respected. The act has a
reasoning, as the legal ground for its adoption was
indicated.
The issue whether the draft statute of the [applicant
association] is in conformity with the limitations provided
for by law is within the competence of the Council of
Ministers and cannot be the subject to the present judicial
control."
It appears that despite Decision No. 255 of the Council of
Ministers and its confirmation by the Supreme Court, the
applicant association's registration at the Sofia City Court
remained intact. However, on an unspecified date in 1997 a
prosecutor requested the Sofia City Court to annul this
registration.
Suppression of the applicant association's meetings
On 5 August 1994 in the town of Haskovo police officers
blocked the entrance of the convention hall where Jehovah's
Witnesses were holding a national meeting with the participation
of about 400 persons. The police explained that Jehovah's
Witnesses had been refused authorisation by the Council of
Ministers and that they had not requested permission from the
mayor for their convention. The police produced a copy of
Decision No. 255 of 28 June 1994 of the Council of Ministers.
The participants dispersed peacefully.
On 17 October 1994 the mayor of the town of Targovishte
issued order No. 458 prohibiting the "use of municipal property
for religious services and marches in the open [organised by]
religious denominations which are not registered in the region
of Targovishte municipality". Copies of the order were sent
inter alia to the District Prosecutor's Office and to the
police.
On 15 November 1994 the Director of Religious
Denominations at the Council of Ministers sent a letter to the
mayor of Sofia stating that he had information about public
meetings of unregistered religious denominations, which had been
held in municipal premises. The letter stated further that "
... such associations do not enjoy the privileged status under
the Religious Denominations Act ( ) with the ensuing
consequences" and insisted that the production of a certificate
for registration should be requested as a condition for renting
municipal premises. The Director also stated that on "special
occasions" the assistance of the police should be sought
"according to the criteria laid down in Section 37 para. 2 of
the Constitution".
On 5 March 1995 in the town of Plovdiv five policemen armed
with pistols and a carbine broke into a private apartment where
about 30 Jehovah's Witnesses were holding a meeting and
confiscated religious materials. At least two persons were
arrested, held at the police station for several hours and
ordered to explain in writing the nature of the meeting. They
also had to sign warning forms, thereby undertaking not to
engage in organised preaching for Jehovah's Witnesses and
acknowledging that they were aware of the potential liability in
case of non-compliance.
On 13 May 1995 in the town of Kuistendil the police
disrupted a meeting of Jehovah's Witnesses and brought some of
them to the police station. At least one of the participants
was interrogated by an investigating judge. The questions
concerned the nature of the Jehovah's Witnesses' creed, the
names of members and followers in Kuistendil, the financial
sources of the religious community and its links with
foreigners.
Following some of the police actions complaints were
submitted to the competent Prosecutor's Offices. The results of
any proceedings taken on this basis have not been disclosed.
Seizure of books and other measures
Since May 1994 the Sofia customs office has refused to
allow the importation of religious books sent to the address of
the applicant association. The materials sent between 15 June
and 1 July 1994 have been returned to the sender.
On 14 July 1994 Mr. B. and Ms. C., Jehovah's Witnesses from
the town of Assenovgrad, were arrested for several hours as they
were offering religious books to the public. The books found in
their possession were confiscated. Mr. B. was allegedly beaten
by the police. On 27 July 1994 the director of the local police
sent a letter to the municipal education authority indicating
that Ms. C., who was a teacher, had been arrested while visiting
private homes and distributing books of Jehovah's Witnesses, an
activity "for which she had not obtained authorisation". The
letter further stated that Jehovah's Witnesses had been refused
re-registration and that their activities were illegal.
On 24 September 1994 Ms. T. was arrested for several hours
in the town of Razgrad and some 200 copies of religious
materials were confiscated from her. Similar arrests in Razgrad
of two other Jehovah's Witnesses, again followed by seizures,
took place on 23 and 28 January 1995.
On 8 March 1995 religious books were confiscated from three
Jehovah's Witnesses in the town of Burgas.
On all occasions, when religious books were confiscated in
various places of the country, the police filled out official
forms for searches, seizures or for voluntary surrender of
movables, which are normally used in the course of police
inquiries and criminal proceedings. Some forms indicated that
the seizures had been effected in accordance with Sections 134 -
138 of the Code of Criminal Procedure ( ) (see below Relevant
domestic law). Other forms did not state any legal basis. Most
of the documents did not contain any reference to particular
criminal proceedings, the pertinent place which existed in some
of the forms having been left blank. Not all of the seizures
had been authorised by a prosecutor in writing.
Between October 1994 and March 1995 three Polish citizens,
who were followers of Jehovah's Witnesses, were expelled from
the country. The decisions stated as grounds for the expulsions
that the persons concerned were "members of and worked for
Jehovah's Witnesses, a sect which is banned in the Republic of
Bulgaria".
Publications in the media
Since 1992 the Bulgarian press has been publishing numerous
information and comments about religious "sects" and, in
particular, about Jehovah's Witnesses. The applicant
association refer in particular to some 120 publications dating
between March 1993 and July 1995, presented in full text or by
their title. The publications are from 23 newspapers. The
majority thereof contains information and allegations about,
inter alia, unnatural practices and rituals, the incitement of
young people to suicidal acts, and fraudulent preaching. Sects
are often depicted as executors of the will of foreign powers
and interests.
The Government dispute the pertinence of most of the press
material stating that part of it concerns other sects, and that
the choice of articles is arbitrary, the resulting impression
not reflecting adequately the attitude of the press. Thus, the
press has published an interview with Mr. Garay, the applicant
association's representative, and other material.
Some of the articles submitted by the applicant association
contain interviews of the Director of Religious Denominations,
who explained that the religion of Jehovah's Witnesses was a
threat to public health, morals and national security inter alia
because it rejected blood transfusions, lacked respect for State
symbols and for the law, and marginalised young people. In an
interview published on 8 November 1994 in "Trud" the Director
stated inter alia that "it is established that Jehovah's
Witnesses suffer from psychological problems, and that
schizophrenia, neurosis, etc. occur more frequently among them."
In an article of 26 June 1996 the newspaper "24 hours"
presented the following statement of Mr. K, from the Directorate
of Religious Denominations: "[Jehovah's Witnesses] endanger the
national security and the life of the people... Different
religious organisations which pursue political aims are entering
Bulgaria..." In some other articles the police and the
Bulgarian Orthodox Christian Church were mentioned as the
sources of information as regards the alleged unnatural
practices of Jehovah's Witnesses.
Some of the publications contain explanations from official
sources as regards the legal meaning and the consequences of
Decision No. 255 of the Council of Ministers. Thus in his
interview of 8 November 1994 the Director of Religious
Denominations explained that any individual follower of
Jehovah's Witnesses was "free to practise this religion, thus
assuming a personal responsibility". However, the State could
not give "legal status" to sects whose practice had been
contrary to the law. Other publications cite sources from the
police and local officials and qualify the unregistered sects as
banned and the practice of their religion as strictly
prohibited.
The press also covered extensively some police actions
against the applicant association and other "sects". Some
journalists stated that certain police actions had been
requested by the Directorate of Religious Denominations. Many
of these publications in various newspapers explained that the
followers of unregistered sects were criminally liable for
having participated in meetings or for possessing religious
books and that proceedings against them were to be instituted.
Measures, such as seizures and arrests were depicted as a
necessary and lawful consequence of the refusal of the Council
of Ministers to authorise the registration of certain sects. A
large number of articles had titles which used shocking
expressions. Also, the majority of the publications urged the
authorities to deal quickly and mercilessly with the sects. In
some articles the police was criticised as it allegedly did not
act resolutely and in others it was praised for having dispersed
meetings, confiscated books or arrested followers.
On several occasions the applicant association approached
various privately owned newspapers with a request to publish
responses to the allegations concerning Jehovah's Witnesses.
However, all newspapers allegedly refused to publish any
statement or material offered by the applicant association.
B. Relevant domestic law and practice
1. The relevant provisions of the Constitution read as
follows:
<Translation>
Section 13
"(1) The religious denominations shall be free.
(2) The religious institutions shall be separate from
the State.
(3) Eastern Orthodox Christianity shall be considered
the traditional religion in the Republic of Bulgaria.
(4) Religious institutions and communities, and
religious beliefs shall not be used for political ends."
Section 37
"(1) The freedom of conscience, the freedom of thought
and the choice of religion and of religious or atheistic
views shall be inviolable. The State shall assist the
maintenance of tolerance and respect among the believers of
different denominations, and among believers and non-
believers.
(2) The freedom of conscience and religion shall not
be practised to the detriment of national security, public
order, public health and morals, or of the rights and
freedoms of others."
<Bulgarian>
13
"(1) .
(2) .
(3) .
(4) , ."
37
"(1) , . , .
(2) , , ."
Decision No. 5 of the Constitutional Court of 11 June 1992
provides a legally binding interpretation of the above
provisions. It states inter alia that the legitimate grounds
for interference with a person's freedom of religion as
contained therein cannot be subject to lenient interpretations.
An act of Parliament can only determine the procedure for their
enforcement.
<Translation>
Section 58 para. 2
"(2) Religious or other beliefs shall not be a ground
to refuse the discharge of obligations established under
the Constitution or Acts of Parliament."
Section 59
"(1) The defence of the fatherland shall be a duty and
a matter of honour of every Bulgarian citizen...
(2) The carrying out of military obligations, and the
conditions and procedure for exemption therefrom or for
replacing them with alternative service shall be
established by an Act of Parliament."
<Bulgarian>
58 . 2
"(2) , ."
59
"(1) ...
(2) , ."
2. The Religious Denominations Act, in force since 1949 with
some amendments, provides that a "religious denomination", whose
statute has been approved by the Council of Ministers, "becomes
recognised and obtains legal personality". The Act further lays
down elaborate rules as regards the structure, management and
activities of a religious denomination, imposes requirements as
regards its clergy and empowers the Directorate of Religious
Denominations with certain control functions. The Bulgarian
Orthodox Christian Church and other religious denominations are
governed by this Act. Section 20 of the Act provides that the
creation of associations with religious aims is within the ambit
of the general laws and administrative regulations.
3. The Persons and Family Act regulates, inter alia, the
registration of non-profit associations. Sections 134 - 148
contain the requirements as regards the founding of such
associations. These requirements concern the rules for
membership, the structure, the election and competence of the
governing bodies and the contents of the association's statute.
Section 136 para. 1 provides as follows.
<Translation>
"A non-profit association shall be registered upon a
petition submitted by its governing board. The founding
decision and the statute signed by the founders, as well as
proof of compliance with the requirements of the law as
regards the existence of the association shall be enclosed
therewith."
<Bulgarian>
136 . 1
" , , , , ."
Section 133a and the transitional provision, which were
introduced on 15 February 1994, read as follows:
<Translation>
Section 133a
"Legal persons, which are non-profit organisations and
whose activities are typical for a religious denomination,
or who perform religious or educational religious
activities, shall be registered under this chapter after
having obtained the consent of the Council of Ministers."
Transitional Provision
"(1) Registered legal persons which are non-profit
organisations under Section 133a shall be re-registered
upon a petition submitted by their managing boards in a
three months' time limit following this Law's entry into
force, provided that there has been a consent from the
Council of Ministers.
(2) The registration of legal persons which are non-
profit organisations and have failed to comply with the
requirements of the preceding paragraph shall be cancelled
and their activities suspended."
<Bulgarian>
133
" , , , , , ."
(.. . 15 1994)
"(1) , . 133, , , .
(2) , ."
4. 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
the religions", assistance to central and local administrative
authorities in solving problems which involve religious matters
and assistance to religious organisations as regards education
and publications.
Also, the Directorate is competent to exercise the "control
provided for in Section 133a of the Persons and Family Act".
According to Section 4 of the Decree, a standing consultative
committee at the Directorate is entrusted with "providing
opinions on the petitions for registration of new religions and
participating in the exercise of control on religious
activities".
5. There are no procedural provisions under Bulgarian law
specifically applicable to the examination by the Council of
Ministers of a petition for authorisation of a religious
association. The Administrative Procedure Act, which contains a
general legal regime concerning the procedure for the delivery
of and appeal against administrative decisions, expressly
excludes the Council of Ministers' decisions.
In its decision no. 13 of 22 July 1993 (. 13 .. 13/93, ..
. 65/93), which provides a binding interpretation of Section 125
para. 2 of the Constitution, the Constitutional Court has stated
that the judicial control over the acts of the executive does
not infringe their independence as it is limited only to issues
of lawfulness. The courts cannot decide issues on which the
administration enjoys full discretion and "cannot control the
exercise of the administrative organ's free discretion ..."
COMPLAINTS
1. The applicant association complains under Article 9 of the
Convention.
It submits that the Council of Ministers' decision, which
was in reality taken by the Directorate of Religious
Denominations, had in effect officially prohibited the practice
and manifestation of the Jehovah's Witnesses' religion in
Bulgaria. One and the same State organ, after having decided
arbitrarily and as a sole instance on the "unlawfulness" of the
Jehovah's Witnesses' religious beliefs, acted brutally and
persistently to suppress them. This was done by the Directorate
inter alia through directly ordered police actions, instructions
to local officials, hostile statements in the press and general
support for a media "campaign" against the applicant
association.
All these acts and practices were unlawful as they were
arbitrary. Furthermore, it was unlawful to interpret a refusal
for the registration of an association as amounting to official
prohibition to practise a certain religion. However, this was
how the Persons and Family Act and Decision No. 255 were
interpreted and applied by the central and local authorities.
The acts of the authorities were unlawful also because they were
in breach of Section 37 of the Constitution and Section 3(6) of
Decree No. 125 of 6 December 1990 which provided that the State,
and in particular the Directorate of Religious Denominations,
should contribute to the creation of a climate of tolerance in
religious matters.
The specific acts of suppression of the applicant
association's activities, such as dispersing meetings held in
convention halls and in private apartments, seizure of religious
books, and arrests, were also unlawful, as they had no basis in
Bulgarian law.
Furthermore, the decisions in the applicant association's
case and the suppression of its activities were not necessary in
a democratic society, these measures having been drastic and
incompatible with the basic values of tolerance and pluralism.
Therefore, they were disproportionate to any conceivable
legitimate aim. Moreover, Bulgaria was the only member of the
Council of Europe refusing registration to Jehovah's Witnesses.
2. The applicant association complains under Article 10 of the
Convention of the media "campaign" allegedly launched against it
by the authorities, of the alleged impossibility to publish
materials in response, and of the seizure and restrictions
imposed on the receipt and dissemination of religious books.
Thus a significant amount of the hostile publications in
the press consisted of declarations and interviews of state
officials or other information cited from official sources.
These statements of the authorities formed the public opinion
and led to the refusal of privately owned newspapers to publish
materials defending adverse views.
These actions of the authorities, as well as the refusal of
the customs authorities to allow the importation of religious
materials and their seizure by the police, had no basis in
Bulgarian law and were not necessary in a democratic society.
3. The applicant association also complains under Article 11
of the Convention.
Thus, pursuant to the amendment of the Persons and Family
Act, a religious association has no choice but to apply for
authorisation by the Council of Ministers and, if refused, to
suspend its activities. In the applicant association's case the
Council of Ministers refused authorisation arbitrarily and
without providing any reasons, which rendered its act unlawful.
Thereupon the activities of the applicant association were
officially prohibited and forcefully suppressed on the basis of
an unlawful decision. Also, the peaceful assemblies organised
by the applicant association were dispersed by the police
without any legal basis.
Furthermore, the interferences with the applicant
association's rights under Article 11 of the Convention did not
have a legitimate purpose, but rather aimed directly at
suppressing its freedom of religion. The applicant association
did not pose any threat under para. 2 of Article 11 of the
Convention. This was so because, inter alia, the Bulgarian
courts had already examined in 1991 the applicant association's
activities and had found them to be lawful.
4. The applicant association complains under Article 14 in
conjunction with Article 11 of the Convention that the Council
of Ministers refused some petitions for authorisation and
granted others without any reasoning, which rendered the
difference in treatment unjustified and discriminatory.
Furthermore, the rule in Section 133a of the Persons and Family
Act is discriminatory as it distinguishes between religious and
non-religious associations by requiring authorisation only for
the former.
5. The applicant association complains under Article 6 para. 1
of the Convention that it was denied access to an independent
and impartial tribunal in the determination of its civil rights.
The civil rights involved were the right of a non-profit
organisation which had met the requirements of the law to
acquire legal personality and also the right to association as
enshrined in the Bulgarian Constitution. These rights were
determined in a final manner by the Council of Ministers, which
was neither independent nor a tribunal, and which decided
without hearing the applicant association, did not provide any
reasoning and acted in breach of basic safeguards of
administrative procedure as they exist under Bulgarian law. The
guarantees of Article 6 para. 1 of the Convention were not
afforded by the Supreme Court either, as the Court found itself
not competent to examine the substance of the legal dispute.
In its written observations the applicant association also
invokes Article 13 of the Convention alleging that it did not
have any effective remedy against the breaches of Articles 9, 10
and 11.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 September 1995 and
registered on 21 September 1995.
On 21 January 1996 the Commission decided to communicate
the application to the respondent Government.
The Government's written observations were submitted on 3
May 1996, after an extension of the time-limit fixed for that
purpose. The applicant association replied on 21 June 1996.
On 20 January 1997 the Commission decided to hold a hearing
on the admissibility and merits of the application.
The hearing took place on 3 July 1997, after an adjournment
requested by the respondent Government. The Government were
represented by Mrs. Violina Djidjeva, co-agent, Ministry of
Justice. The applicant association was represented by MM. Alain
Garay, Philippe Goni and Michel de Guillenchmidt, avocats à la
Cour, Paris, France, and by Mr. Lioubomir Kioutchokov, founding
member of the applicant association.
THE LAW
1. The applicant association complains under Articles 9, 10,
11 and 14 of the Convention that it was refused authorisation to
re-register, that its activities are suppressed, and of the
alleged media campaign against it. It also complains under
Articles 6 para. 1 and 13 of the Convention in respect of the
proceedings leading to the refusal of authorisation.
The Commission notes at the outset that part of the events
complained of relate to acts of the authorities such as
intrusions in private premises, arrests, and seizures of books
affecting individual members of the association, who have not
submitted applications to the Commission.
In this respect the Government submit that the applicant
association cannot complain, under Article 25 of the Convention,
of alleged breaches of the rights of its members. The
Government also submit that the individual members have not
exhausted the remedies available to them. Thus, as regards the
arrests, searches and seizures complained of, they are free to
appeal to the prosecutor, as provided for under the Code of
Criminal Procedure.
The applicant association explains that the events
affecting individual members are relied upon only as examples to
illustrate the consequences of the refusal of authorisation for
the association's renewed registration.
The Commission finds, therefore, that it is not called upon
to deal with alleged breaches of the rights of individual
members of the applicant association, but has to examine only
the complaints concerning the association.
2. In their written submissions the Government raised a
preliminary objection that the application was an abuse of the
right of individual petition. Thus, the applicant association
continues its activities in Bulgaria despite the provision of
Article 133a of the Persons and Family Act under which its
activities are suspended. According to the Government the
application also contains defamatory statements against the
Bulgarian authorities, biased interpretation of the domestic
law, and quotations of isolated paragraphs of press articles.
This allegedly amounts to an attempt to mislead the Commission.
At the oral hearing before the Commission the Government
also claimed that the applicant association did not have locus
standi to bring an application to the Commission under Article
25 of the Convention. The Government maintained that the
applicant association did not have legal personality and that
this was due to the association's own negligence as it failed to
submit a request for re-registration to the Sofia City Court
before 22 May 1994, within the three months' time-limit under
the 1994 amendment to the Persons and Family Act.
The applicant association disputes the Government's
position.
The Commission considers that the Government's argument
that there has been an abuse of the right of petition within the
meaning of Article 27 para. 2 of the Convention could only be
accepted if it were clear that the applicant association had
knowingly based its application on untrue facts. However, this
is far from clear at the present stage of the proceedings and it
is therefore impossible to reject the application on this ground
(cf. No. 22497/93, Dec. 20.2.95, D.R. 80, p. 138; No. 24760/94,
Dec. 27.6.96, D.R. 86 pp. 54, 68).
As regards Article 25 of the Convention, the Commission
recalls that an application under this provision can be brought,
inter alia, by a "non-governmental organisation" or a "group of
individuals" which claims to be a victim of a violation of the
Convention (cf., e.g., No. 8440/78, Dec. 16.7.80, D.R. 21 p.
138). According to the Commission's case-law non-governmental
organisations include also religious associations without legal
personality (cf. No. 8652/79, Dec. 15.10.81, D.R. 26, p. 89).
Therefore, the Commission need not decide whether the
applicant association, which apparently is still formally
registered at the Sofia City Court, has or does not have legal
personality. Moreover, the applicant association's complaints
concern precisely the acts of the authorities to suppress it.
The Government's preliminary objections must therefore
fail.
3. The applicant association complains under Articles 9, 10,
11 and 14 of the Convention that it was refused authorisation to
re-register, that its activities are suppressed, and of the
alleged media campaign against it.
a) In their initial observations the Government stated that
the applicant association had exhausted all domestic remedies
and had complied with the six months' time-limit within the
meaning of Article 26 of the Convention. The Government stated,
inter alia, that under Section 133a and the transitional
provision of the Persons and Family Act the Council of
Ministers' authorisation was a conditio sine qua non for the re-
registration of a religious association. The Government also
explained that the effect of the 1994 amendment of the Persons
and Family Act was that all religious associations had to
suspend their activities immediately, upon the amendment's entry
into force in February 1994, and to wait for the Council of
Ministers' authorisation. They could only resume their
activities if the Council of Ministers' decision was favourable.
At the oral hearing before the Commission the Government
altered their position on this question. The Government now
maintain that under Section 133a and the transitional provision
of the Persons and Family Act, introduced in February 1994, a
religious association had to submit a request to the competent
court for renewed registration within three months of the
amendment's entry into force and, simultaneously or
subsequently, to request an authorisation from the Council of
Ministers.
The Government maintain that if the applicant association
had seized the Sofia City Court, the proceedings before that
Court would have been suspended until the Council of Ministers'
decision on the request for authorisation. Then, after receipt
of the decision of the Council of Ministers, the Sofia City
Court would have examined the petition for re-registration and
would have delivered a reasoned judgment. Furthermore, in case
this judgment was unfavourable to the association, the latter
could have then appealed to a civil chamber of the Supreme
Court.
In the Government's view, as maintained at the oral
hearing, the association's registration was suspended, but not
as a result of the Council of Ministers' Decision No. 255.
Since the applicant association failed to submit a request to
the Sofia City Court for renewed registration within the
required three months' time-limit, its registration was
automatically suspended upon the expiry of this time-limit, and
took effect on 22 May 1994.
The Government further submit that as a result the six
months' period under Article 26 of the Convention ran from 22
May 1994 and that, consequently, the application to the
Commission was late.
The applicant association replies that the transitional
provision of the Persons and Family Act does not specify whether
the request for re-registration had to be submitted first to the
competent court and then to the Council of Ministers or vice
versa. Since the important element is the authorisation by the
Council of Ministers, without which no re-registration is
possible, the applicant association found it logical to lodge
its petition with the Council of Ministers, and it did so within
the three months' time-limit. Furthermore, neither the Council
of Ministers, nor the Supreme Court when examining the appeal
against Decision No. 255, found any procedural irregularity.
They accepted that the request, and the appeal, respectively,
were admissible from a procedural point of view and examined
them.
The applicant association further submits that the role of
the Sofia City Court under the amended regime for the
registration of religious associations is purely technical,
namely, to order the cancellation of an existing registration or
its renewal depending on whether the Council of Ministers has
given an authorisation.
The Commission recalls that Article 26 of the Convention
only requires normal recourse by an applicant to such remedies
as are effective, sufficient and available. For a remedy to be
effective, it must be, inter alia, capable of remedying the
criticised state of affairs directly. Moreover, a remedy must
exist with a sufficient degree of certainty to be regarded as
effective (No. 26384/95, Dec. 26.6.96, D.R. 86 p. 143).
The Commission also recalls that the application of the
rule of exhaustion of domestic remedies must make due allowance
for the fact that it is being applied in the context of
machinery for the protection of human rights that the
Contracting States have agreed to set up. Accordingly the Court
has recognised that Article 26 must be applied in a manner
corresponding to the reality of the applicant's situation, with
some degree of flexibility and without excessive formalism (see
Eur. Court HR, Airey v. Ireland judgement of 9 October 1979,
Series A no. 32, p. 12 para. 23; Cardot v. France judgment of 19
March 1991, Series A no. 200, p. 18 para. 34; Akdivar v. Turkey
judgment of 16 September 1996, para. 69, to be published in
Reports of Judgments and Decisions 1996).
In the present case the Commission notes that the applicant
association complains, in essence, that following the amendment
of the Persons and Family Act in 1994 it was refused its right
to function as a religious association and to continue its
activities. The Government now maintain that this was the
result of the association's own procedural mistake, as it
wrongly addressed its request for authorisation to re-register
and that, therefore, the requirements of Article 26 of the
Convention have not been complied with.
The Commission notes that the transitional provision of the
Persons and Family Act does not state whether a religious
association, in order to comply with the three months' time-
limit for requesting re-registration, has to submit first a
request to the court where it was registered, or must commence
by addressing directly the Council of Ministers with a petition
for authorisation. Moreover, even the Government's
interpretation of the law appears to be contradictory.
In any event, it is undisputed that without the Council of
Ministers' authorisation it is impossible to obtain re-
registration and that the courts are not competent to revise the
Council of Ministers' assessment. As a result, and based on the
text of Section 133a and the transitional provision of the
Persons and Family Act, it appears that the Sofia City Court, if
it was seised with a request for re-registration, would have no
power either to reconsider the issue of authorisation or to
order re-registration in defiance of the Council of Ministers'
refusal. Therefore, a petition to the Sofia City Court for re-
registration cannot be regarded as an effective remedy in
respect of the applicant association's complaints.
Finally, even assuming that the applicant association's
registration may have been considered cancelled ex lege on 22
May 1994, when the three months' time-limit expired, it appears
clear that this would not have had irreversible consequences if
the Council of Ministers had later given its authorisation. The
applicant association could then have applied for a fresh
registration under Section 133a. It was unable to do so because
of Decision No. 255.
The Commission finds, therefore, that the applicant
association, by addressing a request for authorisation to the
Council of Ministers within the relevant three months' time-
limit and by appealing to the Supreme Court against the Council
of Ministers' refusal, made a normal use of the remedies which
in the particular context must be regarded as adequate and
sufficient. It also follows that by introducing its application
to the Commission less than six months after the Supreme Court's
decision of 13 March 1995 the association has complied with the
six months' rule under Article 26 of the Convention.
b) The Government also submit that the applicant association
has not exhausted the remedies available to it in respect of the
particular acts of suppression of its activities. Thus, as
regards the alleged defamatory media campaign it is open to the
association to bring actions against journalists.
The applicant association replies inter alia that Decision
No. 255 of the Council of Ministers deprived it of legal status
to bring actions or employ other remedies.
The Commission notes that the applicant association's
registration at the Sofia City Court has apparently not been
formally cancelled. However, it appears that this is due to an
omission on the part of the authorities, the transitional
provision of the Persons and Family Act clearly stating that the
registration of a religious association which has been refused
authorisation, shall be cancelled. Also, the opinion that the
annulment of the registration takes effect ex lege, by virtue of
the Council of Ministers' refusal of authorisation, is shared by
the Bulgarian authorities involved. This view has been
expressed by the Government in their submissions to the
Commission, as well as by all local and central organs, when
suppressing the applicant association's activities.
Therefore, it cannot be reproached to the applicant
association that it did not embark on an attempt to rely on its
still existent formal registration and bring actions or lodge
complaints. Indeed, it appears that in 1997 the authorities
initiated action to rectify their omission, the formal annulment
of the association's registration having been requested by a
prosecutor.
Furthermore, the termination of the activities of a
religious association was, under the transitional provision of
the Persons and Family Act, an automatic result of the refusal
of re-registration.
The Commission finds that in these circumstances the
applicant association did not need to lodge complaints against
every act of the authorities in order to exhaust all domestic
remedies within the meaning of Article 26 of the Convention.
c) The Government also maintain that the application is
manifestly ill-founded.
The Government submit that there has been no interference
with rights under Article 9 of the Convention because the
suspension of the association's registration and activities has
no bearing on the right of every individual Jehovah's Witness to
practise his religion, this right being guaranteed by the
Constitution. The Government further state that there has been
an interference with the association's rights under Article 11,
but that it was justified under the second paragraph of this
provision. Under Article 10 of the Convention the Government
submit that the press in a democratic society has the right and
the duty to inform the public about the danger which a religious
association may represent. The Government submit that public
officials have not made defamatory statements, but have only
informed about the doctrine of Jehovah's Witnesses.
As regards Article 14 of the Convention the Government
submit that the refusal of authorisation was based solely on the
conclusion that the applicant association posed a threat to
society. It was not based on the fact that the association
represented an "untraditional" religion. Thus, 30 religious
cults and 17 associations from various religious traditions have
been registered in Bulgaria.
The Government submit that when the applicant association
was registered in 1991 the court was competent only to examine
the compliance with the formal requirements for registration.
The court had no power to scrutinise the association's religious
practices and doctrine. It was precisely for this reason that
between 1991 and 1994 about 150 religious groups chose to
register as associations under the Persons and Family Act
instead of applying for registration under the Religious
Denominations Act, which provided for an examination, by the
Council of Ministers, of the religious activities of the
respective applicant. This legislative discrepancy prompted the
amendment of the Persons and Family Act in 1994, which
introduced, in Section 133a of the Persons and Family Act, the
requirement of prior authorisation for the registration of an
association with religious activities. The authorisation was
entrusted to the Council of Ministers, because it was considered
that the examination of the ideas and practices of the religious
associations and their conformity with the law did not fall
within the competence of the courts.
As regards the examination of the applicant association's
petition for re-registration in 1994, the Government submit that
under Bulgarian law the Council of Ministers has no obligation
to give reasons for its decisions. Therefore Decision No. 255
was published without a reasoning.
As regards the proceedings before the Supreme Court the
Government submit that the Court was not competent to examine
the "correctness" of Decision No. 255. In view of this limited
competence of the Supreme Court the Council of Ministers did not
present evidence about the unlawful and dangerous religious
practices of the applicant association. However, it would have
done so if the applicant association had requested it.
The Government submit that such evidence existed, and that
it was taken into account by the Council of Ministers. The
Government further summarise this evidence.
The Government submit, firstly, that the applicant
association's statute did not require a minimum age for
membership and that children have been participating in its
religious activities without the consent of their parents.
Moreover, there have been occasions where teachers adhering to
the association have abused their position to preach in school
among minors. The Government state that the distribution to
children of forms for the refusal of blood transfusion and of
other religious materials without the consent of the parents is
an unlawful practice which infringes public health and the
rights and freedoms of others.
The Government then proceed to an analysis of Jehovah's
Witnesses' religious doctrine and state that it contains ideas
and canons which are contrary to the Constitution and endanger
public health, national security, and the rights and freedoms of
others.
The Government maintain that Jehovah's Witnesses preach
disrespect for the democratic institutions and the national
symbols and require their adepts to disobey the law when it is
contrary to the "divine law". Also, the Government submit that
Jehovah's Witnesses refuse to bear arms and to work in the
public service and that they are seeking the establishment of a
theocratic society. This element of their doctrine endangers
national security.
The Government also consider that Jehovah's Witnesses are
intolerant and may become violent in respect of other religions,
that they seek social marginalisation and avoid integration in
the society. Furthermore, their doctrine does not have respect
for the value of human life as it requires to refuse blood
transfusions even when this would bring death.
The Government conclude that the suspension of the
applicant association's registration and activities was a
necessary preventive measure. In view of Jehovah's Witnesses'
dangerous doctrine and because of their attempts to attract
adepts, and especially minors, the Bulgarian authorities had to
act and needed not wait to see the inevitable grave consequences
of Jehovah's Witnesses' activities. The Government also
maintain that the suppression of the association's functioning
was lawful. Thus, the relevant law did not require always a
written order for searches and seizures, an oral approval by a
prosecutor in urgent cases being sufficient.
The applicant association argues that the suspension of its
registration and activities constituted an interference with its
rights under Articles 9, 10 and 11 of the Convention. The
applicant association objects to the Government's contention
that every individual Jehovah's Witness is free to practise his
religion, and states that Article 9 of the Convention protects
the right to manifest one's religion "in community with others"
and "in public", not only individually. Furthermore, the
applicant association submits that the scale and the direction
of the measures against it are such that they aim directly to
suppress and prohibit the Jehovah's Witnesses' religion and
that, therefore, they have no legitimate purpose under the
second paragraphs of Articles 9, 10 and 11 of the Convention.
The applicant association contends that the measures
against it are not necessary in a democratic society within the
meaning of these provisions. Thus, the association maintains
that it does not pose a threat as alleged by the authorities.
As regards the alleged unlawful activities of Jehovah's
Witnesses with children the applicant association submits that
children cannot become members of the association but only
participate, together with their parents, in the religious
activities of the community. As regards a "pioneer card" issued
to a Ms. V., the applicant association explains that the card
was issued when Ms. V. was 16 years old and could assume some
civil obligations herself. Also, Ms. V.'s card prohibiting
blood transfusion aims at "informing the medical professionals
[of the parents' religious stand], and not at imposing on them a
certain medical practice."
In respect of the refusal of blood transfusion, the
applicant association submits that while this is part of the
religious doctrine of Jehovah's Witnesses, its acceptance
depends on the personal choice of the individual concerned.
There are no religious sanctions for a Jehovah's Witness who
chooses to accept blood transfusion. Therefore, the fact that
the religious doctrine of Jehovah's Witnesses is against blood
transfusion cannot amount to a threat to "public health", every
individual being free in his or her choice.
The applicant association also contends that blood
transfusion can be very dangerous, because of contamination.
Furthermore, referring to publications and research of medical
professionals, the applicant association submits that surgery
and other medical treatment can be effected successfully without
resort to blood transfusion. Moreover, there are several
hospitals in Bulgaria which apply surgery without blood
transfusion. Also, the applicant association submits that the
Court has already dealt with this issue in Hoffmann v. Austria
(Eur. Court HR, judgment of 23 June 1993, Series A no. 255-C).
As regards the refusal of Jehovah's Witnesses to bear arms
the applicant association state that the Constitution, in
Section 59 para. 2, provides for an alternative service for
conscientious objectors, and that therefore refusal to bear arms
cannot be unlawful or contrary to national security under
Bulgarian law. Moreover, various acts of the Council of Europe
and of other international organisations have recognised the
rights of the conscientious objectors. It cannot be maintained,
therefore, that the position of the Jehovah's Witnesses as
regards military service endangers national security.
The applicant association denies the Government's
allegation that Jehovah's Witnesses were seeking a theocratic
society. They are respectful of public authority, work in
public service and respect the opinion of others. They do not
disturb ceremonies honouring the national flag or other symbols,
but simply refrain from taking an active part in them.
Moreover, Jehovah's Witnesses worldwide participate in social
activities.
The applicant association further submits that the
Government's analysis of their doctrine demonstrates the
ambition of the State to play the role of a guarantor of the
nation's moral values, which is an inadmissible taking of sides
on ideological issues. In this context Decision No. 255 of June
1994 appears to be a judgment over Jehovah's Witnesses'
religious and moral values, a judgment which the Government
consider themselves to be competent to deliver on behalf of the
people. At the same time, according to the applicant
association, the authorities have not attempted at all to strike
a balance between the individual and the public interests. It
is not serious to claim, according to the applicant association,
that a religious group of about 500 to 1000 persons may
represent a threat to the State, with its 8 million inhabitants.
Moreover, Bulgaria is the only member of the Council of
Europe refusing registration to Jehovah's Witnesses.
The applicant association submits, under Article 14 in
conjunction with Article 11 of the Convention, that the
Government have not shown the existence of justified grounds of
distinction between the religious associations which were
registered and those which were not.
Having examined the applicant association's complaints
under Articles 9, 10, 11 and 14, the Commission finds that they
raise serious questions of fact and law which are of such
complexity that their determination should depend on an
examination of the merits. This part of the application cannot,
therefore, be regarded as manifestly ill-founded within the
meaning of Article 27 para. 2 of the Convention, and no other
ground for declaring it inadmissible has been established.
4. The applicant association also complains, under Article 6
para. 1 of the Convention, that its civil right to legal
personality was decided by the Council of Ministers, the Supreme
Court having refused to discuss the substance of the dispute,
and under Article 13 of the Convention that it did not have an
effective remedy against the breaches of its Convention rights.
These provisions, insofar as relevant, read as follows:
Article 6 para. 1 of the Convention
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public
hearing ... by an independent and impartial tribunal ..."
Article 13 of the Convention
"Everyone whose rights and freedoms as set forth in
this 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."
The Government dispute the applicability of Article 6 of
the Convention, stating that it concerns only civil rights and
obligations of individuals, the issues concerning freedom of
association being covered by Article 11. The Government also
submit that the Council of Ministers' decision was subject to
judicial control before the Supreme Court. This control is
limited to issues of lawfulness only, which, according to the
Government, is a normal practice in all countries. The
Government refer to decision No. 13 of 22 July 1993 of the
Constitutional Court (see above Relevant domestic law and
practice).
The applicant association maintains its complaints.
Having examined the applicant association's complaints
under Articles 6 para. 1 and 13 of the Convention, the
Commission finds that they raise serious questions of fact and
law which are of such complexity that their determination should
depend on an examination of the merits. The remainder of the
application cannot, therefore, be regarded as manifestly ill-
founded within the meaning of Article 27 para. 2 of the
Convention, and no other ground for declaring it inadmissible
has been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M. de SALVIA S. TRECHSEL
Deputy Secretary President
to the Commission of the Commission
28626/95
28626/95