Decisione 03 luglio 1997
Testimoni di Geova v. Bulgaria: rifiuto di registrazione
Commissione Europea dei Diritti dell’Uomo. Pronuncia 2 giugno 1997: “Case of Christian Association Jehovah’s Witnesses v. Bulgaria”.
The European Commission of Human Rights sitting in private on 3 July 1997, the following members being present:
Mr. S. TRECHSEL,
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
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;
Decides as follows:
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 (Gradski sad) for registration as a non-profit association under the Persons and Family Act (Zakon za litzata i semeistvoto).
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 (Prokuratura), whose task in registration proceedings is the defence of the public interest, did not challenge the applicant association’s registration before the Supreme Court (Vathoven sad), 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 (Zakon za izpovedaniata), 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 (Direktzia po veroizpovedaniata) 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 (Varhoven sad) 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 (Zakon za administrativnoto proizvodstvo) 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, labeled 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:
“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 (Zakon za izpovedaniata) 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 Kiustendil 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 Kiustendil, 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 (Nakazatelno-protzesualen kodeks) (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:
(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.”
(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.”
(1) Veroizpovedaniata sa svobodni.
(2) Religioznite institutzii sa otdeleni ot darzhavata.
(3) Traditzionnata religia v Republika Bulgaria e iztochnopravoslavnoto veroizpovedanie.
(4) Religioznite obshtnosti i institutzii, kakto i verskite ubezhdenia ne mogat da se izpolzvat za politicheski tzeli.”
(1) Svobodata na savestta, svobodata na misalta i na izbora na veroizpovedanie i na religiozni ili ateistichni vazgledi sa nenakarnimi. Darzhavata sadeistva za poddarzhane na tarpimost i uvazhenie mezhdu viarvashtite ot razlichni veroizpovedania, kakto i mezhdu viarvashti i neviarvashti.
(2) Svobodata na savestta i veroizpovedanieto ne mozhe da bade nasochena sreshtu natzionalnata sigurnost, obshtestvenia red, narodnotot zdrave i morala ili sreshtu pravata i svobodite na drugi grazhdani.”
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.
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.”
(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.”
Chlen 58 al. 2
(2) Religioznite i drugite ubezhdenia ne sa osnovanie za otkaz da se izpalniavat zadalzheniata, ustanoveni v Konstitutziata i zakonite.”
(1) Zashtitata na otechestvoto e dulg i chest za vseki bulgarski grazhdanin…
(2) Izpalnenieto na voinskite zadalzhenia, usloviata I redat za osvobozhdavaneto ot tiah ili za zamianata im s alternativna sluzhba se urezhdat sas zakon.”
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.
“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.”
Chlen 136 al. 1
“Vpisvaneto na sdruzhenieto stava po molba na upravitelnia savet, kam koiato triabva da se prilozhat reshenieto za osnovavaneto mu i ustavat na sashtoto, podpisan ot osnovatelite, kakto i dokazatelstva, che sa izpalneni iziskvaniata na osobenite zakoni za sashtestvuvaneto na sdruzhenieto.”
Section 133a and the transitional provision, which were introduced on 15 February 1994, read as follows:
“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.”
(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.”
“Yuridicheskite litza s nestopanska tzel, koito izvarshvat deinost, prisashta na izpovedanie, ili osashtestviavat religiozna ili religioznoprosvetna deinost, se registrirat po reda na tazi glava, sled saglasie na Ministerskia savet.”
Prehodna razporedba (D.V. br. 15 ot 1994)
(1) Vpisanite do sega yuridicheski litza s nestopanska tzel, posocheni v chlen 133a, se preregistrirat po iskane na tehnite rakovodni organi, napraveno v srok ot tri mesetza ot vlizaneto na tozi zakon v sila, pri saglasie na Ministerskia savet.
(2) Zalichava se vpisvaneto i se prekratiava deinostta na yuridicheski litza s nestopanska tzel, koito ne izpalniavat usloviata po predhodnata alineia.”
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 (resh. 13 po k.d. 13/93, D.V. br. 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…”
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 organized 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.
1. The applicant association complains under Articles 9, 10, 11 and 14 (Art. 9, 10, 11, 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 (Art. 6-1, 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 (Art. 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 (Art. 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 (Art. 27-2) 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 (Art. 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 organizations 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 (Art. 9, 10, 11, 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 (Art. 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 (Art. 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 (Art. 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 (Art. 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 (Art. 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 (Art. 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 (Art. 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 (Art. 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 (Art. 11), but that it was justified under the second paragraph of this provision. Under Article 10 (Art. 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 (Art. 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 (Art. 9, 10, 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 (Art. 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 (Art. 9, 10, 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 (Art. 14+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 (Art. 9, 10, 11, 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 (Art. 27-2) 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 (Art. 6-1) 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 (Art. 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 (Art. 6-1) 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 (Art. 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 (Art. 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 (Art. 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 (Art. 6-1, 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 (Art. 27-2) 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.
President of the Commission
M. de SALVIA
Deputy Secretary to the Commission