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Management And Internal Organisation

Supreme Holy Council of the Muslim Community v Bulgaria, 16 December 2004 [ECtHR]

Case no 39023/97

64.  The applicant organisation complained that the authorities had organised and manipulated the October 1997 Muslim conference with the aim of favouring one of the rival leaderships and removing Mr Gendzhev, thus arbitrarily intervening in the affairs of the Muslim community.

65.  The Court considers that the above complaints fall to be examined under Article 9 of the Convention ...

1.  Applicability of Article 9

73.  In accordance with the Court’s case-law, while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Participation in the life of the community is a manifestation of one’s religion, protected by Article 9 of the Convention. The right to freedom of religion under Article 9, interpreted in the light of Article 11, the provision which safeguards associations against unjustified State interference, encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000-XI). 

74.  The applicant organisation was the official body representing and managing the Muslim religious community in Bulgaria between February 1995 and October 1997. It complained about alleged arbitrary interference by the State with the organisation and leadership of that community. An ecclesiastical or religious body may, as such, exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention (see, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000-VII).

75.  It follows that the applicant organisation’s complaints fall within the ambit of Article 9 of the Convention, which is applicable. 

2.  Compliance with Article 9

(a)  Whether there was an interference

76.  According to the Court’s case-law, State measures favouring a particular leader or group in a divided religious community or seeking to compel the community, or part of it, to place itself under a single leadership against its will would constitute an infringement of the freedom of religion (see Serif v. Greece, no. 38178/97, §§ 49, 52 and 53, ECHR 1999-IX and Hasan and Chaush v. Bulgaria, cited above, § 78).

77.  The present case concerns the replacement of the Bulgarian Muslim community’s leadership in October 1997 and the ensuing proceedings. The central issue in dispute is whether these events were the result of undue State pressure or nothing more than a change of leadership freely effected by the community. 

78.  The impugned change of leadership was decided in October 1997 by a unification assembly convened pursuant to an agreement entered into by the two rival leaderships, in accordance with rules set out by a joint committee that included representatives of the applicant organisation (see paragraphs 31-33 above). The Directorate of Religious Denominations and the local authorities participated in the process in that they urged the two groups to unite, took an active part in the organisation of the October 1997 assembly and registered the leadership it elected as the sole representative of the Muslim community in Bulgaria  (see paragraphs 28-30, 34 and 37 above).

79.  The Government argued that the authorities had merely mediated between the opposing groups and assisted the unification process as they were under a constitutional duty to secure religious tolerance and peaceful relations between groups of believers.  

80.  The Court agrees that States have such a duty and that discharging it may require engaging in mediation. Neutral mediation between groups of believers would not in principle amount to State interference with the believers’ rights under Article 9 of the Convention, although the State authorities must be cautious in this particularly delicate area. 

81.  The Court notes, however, that the unification process in 1997 took place against the backdrop of the events in 1992 and 1995 when changes of government were swiftly followed by State action to replace religious leaders and grant legal recognition to one of the two rival leaderships (see paragraphs 8-20 and 27 above). It is highly significant that the relevant law as applied in practice required – and still requires – all believers belonging to a particular religion and willing to participate in the community’s organisation to form a single structure, headed by a single leadership even if the community is divided, without the possibility for those supporting other leaders to have an independent organisational life and control over part of the community’s assets (see paragraphs 17, 23, 40, 53-63 above). The law thus left no choice to the religious leaders but to compete in seeking the recognition of the government of the day, each leader proposing to “unite” the believers under his guidance.  

82.  Against that background, the fact that in 1997 the new Government called for the unification of the divided Muslim community (see paragraphs 28-30, 34 and 37 above) is of particular significance. 

83.  The Court considers that the applicant organisation’s allegation that the mayors of a number of localities and political figures participated too closely in the selection of delegates to the October 1997 assembly does not appear implausible.

84. Furthermore, even if the initial participation of the Directorate is seen as nothing more than neutral mediation in the preparation of a unification assembly, matters changed at the moment when the Directorate continued to insist on “unification" despite the fact that the leaders of the applicant organisation decided to withdraw. It was not for the State to decide whether or not Mr Gendzhev and the organisation presided over by him should or should not withdraw. The Directorate could have noted the failure of the unification effort and expressed readiness to continue assisting the parties through mediation, if all concerned so desired. Instead, the leaders elected by the October 1997 conference obtained the status of the sole legitimate leadership of the Muslim community and as a result the applicant organisation could no longer represent at least part of the religious community and manage its affairs and assets according to the will of that part of the community (see paragraphs 31-40 above).

85.  The Court thus finds that there has been an interference with the applicant organisation’s rights under Article 9 of the Convention in that the relevant law and practice and the authorities’ actions in October 1997 had the effect of compelling the divided community to have a single leadership against the will of one of the two rival leaderships.

86.  Such an interference entails a violation of that provision unless it is prescribed by law and necessary in a democratic society in pursuance of a legitimate aim.

(b)  Whether the interference was prescribed by law

87.  The Government’s decision registering a change of leadership in the Muslim community relied on sections 6 and 16 of the Religious Denominations Act (see paragraph 53 above).

88.  In the case of Hasan and Chaush v. Bulgaria, cited above (§ 86), the Court found that the interference with the internal organisation of the Muslim community in 1995-1997 had not been “prescribed by law” as it had been arbitrary and based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability of the law.

89.  Although the same legal provisions applied in the present case, the Court observes that there were considerable differences in the authorities’ approach. In 1997 the authorities did not make use of the unfettered discretion they enjoyed under the applicable law and proceeded on the basis that the rival groups had set up their own rules through an agreement derogating from the existing statute of the Muslim denomination (see paragraphs 31 and 46 above). 

90.  In these specific circumstances, the Court, having regard to the fact that the gist of the applicant organisation’s allegations concerns the alleged lack of justification for the State interference with the internal affairs of the Muslim community, considers that it is not necessary to rule on the lawfulness of that interference. 

(c)  Whether the interference pursued a legitimate aim

91. The applicant organisation submitted that the authorities’ aim had been to remove Mr Gendzhev and the leadership presided over by him. The Government stated that they had sought to help resolve the conflict in the Muslim community and remedy the consequences of past unlawful State actions.

92.  The Court accepts that the authorities’ general concern was to restore legality and remedy the arbitrary removal in 1995 of Mr Hasan and the leadership presided over by him. Seen in this perspective, the interference with the internal organisation of the Muslim community was in principle aimed at the protection of public order and of the rights and freedoms of others. 

(d)  Whether the interference was necessary in a democratic society

93.  The Court reiterates that the autonomous existence of religious communities is indispensable for pluralism in a democratic society. While it may be necessary for the State to take action to reconcile the interests of the various religions and religious groups that coexist in a democratic society, the State has a duty to remain neutral and impartial in exercising its regulatory power and in its relations with the various religions, denominations and beliefs. What is at stake here is the preservation of pluralism and the proper functioning of democracy, one of the principal characteristics of which is the possibility it offers of resolving a country’s problems through dialogue, even when they are irksome (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p.18, § 33, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123 ECHR 2001-XII, and Hasan and Chaush v. Bulgaria, cited above, § 78).

94.  In the present case, the relevant law and practice and the authorities’ actions in October 1997 had the effect of compelling the divided community to have a single leadership against the will of one of the two rival leaderships (see paragraph 85 above). 

95.  As a result, one of the groups of leaders was favoured and the other excluded and deprived of the possibility of continuing to manage autonomously the affairs and assets of that part of the community which supported it (see paragraph 84 above).

96.  It is true that States enjoy a wide margin of appreciation in the particularly delicate area of their relations with religious communities (see Cha’are Shalom Ve Tsedek v. France, cited above, § 84). The Court reiterates, however, that in democratic societies the State does not need in principle to take measures to ensure that religious communities remain or are brought under a unified leadership. The role of the authorities in a situation of conflict between or within religious groups is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. As the Court has already stated above, State measures favouring a particular leader of a divided religious community or seeking to compel the community, or part of it, to place itself under a single leadership against its will would constitute an infringement of the freedom of religion. (see Serif v. Greece, cited above, §§ 49, 52 and 53, and Hasan and Chaush v. Bulgaria, cited above, § 78). 

97.  The Government have not stated why in the present case their aim to restore legality and remedy injustices could not be achieved by other means, without compelling the divided community under a single leadership.  It is significant in this regard that despite the “unification” process in 1997 the conflict in the religious community continued (see paragraphs 49 and 50 above). 

98.  In sum, the Court considers that the Bulgarian authorities went beyond the limits of their margin of appreciation under Article 9 § 2 of the Convention.  

99.  It follows that the interference with the applicant organisation’s rights under Article 9 of the Convention in 1997 was not necessary in a democratic society for the protection of public order or the rights and freedoms of others and was therefore contrary to that provision.

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Jurisprudence

Choice of leadership Freedom to decide Ability to establish branches