Cases nos 412/03 and 35677/04
84. The applicants complained that in 2003 and the following years the State had interfered in an arbitrary fashion in the internal dispute in the Bulgarian Orthodox Church with the aim of forcing all clergy and believers under the leadership of the person favoured by the authorities, Patriarch Maxim. They relied on Article 9 of the Convention ...
1. Whether the events complained of fall to be examined under Article 9
100. The Government and the third party expressed doubts as to whether the case was about freedom of religion. They alleged that the applicants’ concern was not the practice of religion but their ambition to control property and gain power to administer the Bulgarian Orthodox Church. The Government also stated that it was not the Court’s role to decide who the legitimate leader of the Bulgarian Orthodox Church was and expressed the view that for that reason the case did not concern human rights.
101. The applicants reiterated that they were complaining about arbitrary State interference in the Church’s internal leadership dispute.
102. The Court observes that the events complained of concern State action which, in the context of an ongoing dispute between two groups claiming leadership of the Bulgarian Orthodox Church, had the effect of terminating the autonomous existence of one of the two opposing groups and providing the other group with exclusive representative power and control over the affairs of the whole religious community (see paragraphs 42-46 and 70-74 above). These events, which included police eviction of hundreds of clergy and believers from their temples, affected adversely not only the religious leaders but also the Christian Orthodox believers and their community as a whole (see paragraphs 56-61 above). The Court considers that in principle such events fall to be examined under Article 9 of the Convention, the provision protecting freedom of religion.
103. It is true that the conflict in the Bulgarian Orthodox Church was not about divergent religious beliefs and practices but mainly about the choice of leadership (see paragraphs 14-41 above). As the Court has noted in previous cases, however, the personality of the religious leaders is of importance to the members of the religious community. Participation in the organisational life of the community is a manifestation of one’s religion, protected by Article 9 of the Convention. For these reasons, the Court has held that under Article 9 of the Convention, interpreted in the light of Article 11, the right of believers to freedom of religion encompasses the expectation that the community will be allowed to function free from arbitrary State intervention in its organisation. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable (see Hasan and Chaush (cited above), § 62, and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 118, ECHR 2001‑XII).104
. The Court finds, therefore, that the State actions complained of – which concerned the leadership and organisation of the Christian Orthodox community in Bulgaria – must be examined under Article 9. The Court’s task is to examine whether the enactment of the 2002 Act and its implementation constituted, as alleged by the applicants, an unlawful and unjustified State interference with the internal organisation of the Bulgarian Orthodox Church and the applicants’ rights under Article 9 of the Convention. It is certainly not the Court’s task to determine the canonical legitimacy of Church leaders.
2. Whether there has been State interference
105. Despite the nature and effects of the State action complained of (see paragraph 102 above), the Government averred that there had not been State interference. They relied on two main points, which the Court will address below.
(a) Whether the State did nothing more than recognising the leadership that was legitimate under canon law
106. The Government stated that the enactment of the 2002 Act and its implementation amounted to nothing more than recognition of the leadership of the Church, as determined by its own canons. Those canons enshrined the unity of the Church and prohibited alternative leaderships and divisions in organisational or property matters. In the Government’s view the recognition of the canonical leadership of the Church by the State was an act of respect for its autonomy and canons, not interference with them. The third party was of the same opinion. The applicants disagreed (see paragraphs 86-99 above).
107. In the Court’s view, the Government’s argument fails to take into account the fact that the impugned State actions were undertaken in conditions involving genuinely deep division and incompatible claims to legitimacy by two opposing groups of leaders of the Christian Orthodox community in Bulgaria, each supported by decisions of separate Church conventions. Moreover, the State actions complained of were not limited simply to recognition. They included legislation passed with the aim of restoring the unity of the Church and sweeping measures throughout the country enforced by the prosecuting authorities against a large group of clergy members who were seen as their religious leaders by part of the clergy and believers belonging to the Christian Orthodox community in Bulgaria (see paragraphs 42-64 above).
108. The present case is thus different from the case of Kohn v. Germany ((dec.), no. 47021/99, 23 March 2000), in which the domestic civil courts merely took note of a decision of the religious community’s competent adjudication body, which had dealt with an internal dispute about one of its local representatives.
109. In the case at hand the Church conventions which supported the two rival leaderships were each attended by hundreds of representatives of local parishes and other clergy and believers (see paragraphs 23, 35 and 37 above). At the relevant time, therefore, the question of which leadership was canonical was in dispute within the religious community itself and there was no authoritative decision by the community settling this dispute. Despite these realities, the 2002 Act declared the ex lege recognition of the Bulgarian Orthodox Church as a single legal person led by a single leadership and forced the religious community under one of the two existing leaderships (see paragraphs 42-48 and 70-74 above). The authorities thus took sides in an unsettled controversy deeply dividing the religious community.
110. The above is sufficient, in the Court’s view, for it to conclude that, contrary to the Government’s submission, the authorities’ involvement was not limited to mere recognition of the existence of the Church’s leadership. The respondent Government’s remaining arguments in support of their view that Patriarch Maxim was the canonical leader of the Church concern the justification for and proportionality of this intervention and will be examined by the Court under that head.
(b) Significance of the fact that the applicants are free to practise their religion and found a new church
111. The Court observes that the applicant organisation and the individual applicants are not prevented from founding and registering a new religious organisation and engaging in worship, teaching or other religious activities. It would be sufficient for the applicants to agree to register and act under a different name from that of the Bulgarian Orthodox Church. Although such registration would not help them recover the buildings they were evicted from, it would allow them to build new churches.
112. As the applicants rightly pointed out, however, the present case is not about a refusal to register a new religious group bearing a name identical to an existing one but about State action to “resolve” a leadership dispute in a divided religious community by assisting one of the opposing groups to gain full control, to the exclusion of the rival group. It is obvious that but for the State actions complained of, the applicants would have continued to administer autonomously the affairs of the part of the Christian Orthodox community in Bulgaria which recognised the applicant organisation as its leadership.
113. Therefore, the possibility for the applicants to found a new religious organisation, while it may be relevant in the assessment of proportionality, cannot lead to the conclusion that there was no State interference with the internal organisation of the Bulgarian Orthodox Church.
(c) Conclusion as regards the existence of State interference
114. The Court concludes that the actions complained of constituted State interference with the internal organisation of the Bulgarian Orthodox Church and, therefore, with the rights of the applicant organisation and the individual applicants under Article 9 of the Convention, interpreted in the light of Article 11.
115. Such an interference entails a violation of the Convention unless it is prescribed by law and necessary in a democratic society in pursuance of a legitimate aim (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 75 and 84, ECHR 2000-VII).
116. The interference with the applicants’ rights was based on a legislative act – the 2002 Act – and effected through judicial decisions and prosecutors’ orders (see paragraphs 42-64 above).
117. The Court considers that the question whether this legal basis met the Convention requirements of lawfulness, in the sense of compliance with the principles of rule of law and freedom from arbitrariness, must be examined in the context of the main issue in the present case – whether or not the impugned interference pursued a legitimate aim and could be considered necessary in a democratic society for the achievement of such aim. This approach is not unusual, in particular, in cases concerning complex situations arising in the unique conditions of transition from a totalitarian State to democracy and the rule of law (see a similar approach in Supreme Holy Council of the Muslim Community v. Bulgaria, no. 39023/97, § 90, 16 December 2004, and Svyato-Mykhaylivska Parafiya v. Ukraine, no. 77703/01, § 131, 14 June 2007).
4. Legitimate aim, proportionality and necessity in a democratic society
(a) General principles
118. The Court refers to its settled case-law to the effect that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is of central importance to believers, but also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society depends on it (see Church of Scientology Moscow v. Russia, no. 18147/02, § 71, 5 April 2007).
119. States enjoy a wide margin of appreciation in the particularly delicate area of their relations with religio back