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Management And Internal Organisation

Hasan and Chaush v Bulgaria, 26 October 2000 [ECtHR]

Case no 30985/96

II.  Alleged violation of ARTICLE 9 OF THE CONVENTION

55.  The applicants complained that the alleged forced replacement of the leadership of the Muslim religious community in Bulgaria in 1995 and the ensuing events up to October 1997 had given rise to a violation of their rights under Article 9 of the Convention ...

A.  Applicability of Article 9

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60.  The Court recalls that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Serif v. Greece, no. 38178/97, § 49, ECHR 1999-IX, and the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, pp. 17-18, §§ 31 and 33).

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. Article 9 lists a number of forms which manifestation of one's religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see the Kalaç v. Turkey judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1209, § 27).

61.  In the present case the parties differ on the question whether or not the events under consideration, which all relate to the organisation and leadership of the Muslim community in Bulgaria, concern the right of the individual applicants to freedom to manifest their religion and, consequently, whether or not Article 9 of the Convention applies. The applicants maintained that their religious liberties were at stake, whereas the Government analysed the complaints mainly from the angle of Article 11 of the Convention.

62.  The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one's religion, protected by Article 9 of the Convention.

Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in this perspective, the believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. 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.

63.  There is no doubt, in the present case, that the applicants are active members of the religious community. The first applicant was an elected Chief Mufti of the Bulgarian Muslims. The Court need not establish whether the second applicant, who used to work as an Islamic teacher, was also employed as a secretary to the Chief Mufti's Office, it being undisputed that Mr Chaush is a Muslim believer who actively participated in religious life at the relevant time.

64.  It follows that the events complained of concerned both applicants' right to freedom of religion, as enshrined in Article 9 of the Convention. That provision is therefore applicable.

65.  Further, the Court does not consider that the case is better dealt with solely under Article 11 of the Convention, as suggested by the Government. Such an approach would take the applicants' complaints out of their context and disregard their substance.

The Court finds, therefore, that the applicants' complaints fall to be examined under Article 9 of the Convention. In so far as they touch upon the organisation of the religious community, the Court reiterates that Article 9 must be interpreted in the light of the protection afforded by Article 11 of the Convention.

B.  Compliance with Article 9

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(a)  Whether there has been an interference

75.  The Court must examine whether there has been State interference with the internal organisation of the Muslim community and, consequently, with the applicants' right to freedom of religion.

76.  The Government's position was entirely based on the assertion that the impugned acts of the Directorate of Religious Denominations could not be regarded as an interference with the internal organisation of the community as they had been of a purely declaratory nature and had constituted nothing more than an administrative registration. The applicants alleged that these acts had had serious legal and practical consequences and had been aimed directly at removing the legitimate leadership of the Muslim community and replacing it by leaders politically associated with the government of the day.

77.  The Court does not deem it necessary to decide in abstracto whether acts of formal registration of religious communities and changes in their leadership constitute an interference with the rights protected by Article 9 of the Convention.

78.  Nevertheless, the Court considers, like the Commission, that facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in this domain must lead to the conclusion that the State interfered with the believers' freedom to manifest their religion within the meaning of Article 9 of the Convention. It recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. State action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. In democratic societies the State does not need to take measures to ensure that religious communities are brought under a unified leadership (see Serif, cited above, § 52).

79.  In the present case the Court notes that by virtue of Decree R-12 and the decision of the Directorate of Religious Denominations of 23 February 1995 the executive branch of government in Bulgaria proclaimed changes in the leadership and statute of the Muslim religious community. No reasons were given for this decision. There was no explanation why preference was to be given to the leaders elected at the national conference of 2 November 1994, which was organised by Mr Gendzhev's followers, and not to the first applicant, who had the support of another part of the community, as evidenced by the results of the national conference held on 6 March 1995.

The Court further observes that in Bulgaria the legitimacy and representation powers of the leadership of a religious denomination are certified by the Directorate of Religious Denominations. The first applicant was thus deprived of his representation powers in law and in practice by virtue of the impugned decisions of February 1995. He was refused assistance by the prosecuting authorities against the forced eviction from the offices of the Chief Mufti precisely on the ground that Decree R-12 proclaimed another person as the Chief Mufti. He was apparently not able to retain control over at least part of the property belonging to the community, although Mr Hasan undoubtedly had the support of a significant proportion of its members. The impugned decisions thus clearly had the effect of putting an end to the first applicant's functions as Chief Mufti, removing the hitherto recognised leadership of the religious community and disallowing its statute and by-laws. 

The resulting situation remained unchanged throughout 1996 and until October 1997 as the authorities repeatedly refused to give effect to the decisions of the national conference organised by the first applicant on 6 March 1995.

80.  It is true that in its judgments of 14 October 1996 and 13 March 1997 the Supreme Court implicitly refused to accept that the registration of a new leadership of the divided religious community had the effect of removing the previously recognised leadership of the rival faction. It therefore found that the Council of Ministers was under an obligation to examine the first applicant's request for registration of a new statute. However, those judgments did not have any practical effect, the Council of Ministers having refused to comply with them.

81.  The Government's argument that nothing prevented the first applicant and those supporting him from organising meetings is not an answer to the applicants' grievances. It cannot be seriously maintained that any State action short of restricting the freedom of assembly could not amount to an interference with the rights protected by Article 9 of the Convention even though it adversely affected the internal life of the religious community.

82.  The Court therefore finds, like the Commission, that Decree R-12, the decision of the Directorate of Religious Denominations of 23 February 1995, and the subsequent refusal of the Council of Ministers to recognise the existence of the organisation led by Mr Hasan were more than acts of routine registration or of correcting past irregularities. Their effect was to favour one faction of the Muslim community, granting it the status of the single official leadership, to the complete exclusion of the hitherto recognised leadership. The acts of the authorities operated, in law and in practice, to deprive the excluded leadership of any possibility of continuing to represent at least part of the Muslim community and of managing its affairs according to the will of that part of the community.

There was therefore an interference with the internal organisation of the Muslim religious community and with the applicants' right to freedom of religion as protected by Article 9 of the Convention.

83.  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 (see Cha'are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 75 and 84, ECHR 2000-VII). 

(b)  Whether the interference was justified

84.  The Court reiterates its settled case-law according to which the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 31, § 49; the Larissis and Others v. Greece judgment of 24 February 1998, Reports 1998-I, p. 378, § 40; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V).

For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see Rotaru, cited above, § 55).

The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup, cited above, § 31, and the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 26, § 68).

851.  The Court notes that in the present case the relevant law does not provide for any substantive criteria on the basis of which the Council of Ministers and the Directorate of Religious Denominations register religious denominations and changes of their leadership in a situation of internal divisions and conflicting claims for legitimacy. Moreover, there are no procedural safeguards, such as adversarial proceedings before an independent body, against arbitrary exercise of the discretion left to the executive.

Furthermore, Decree R-12 and the decision of the Directorate were never notified to those directly affected. These acts were not reasoned and were unclear to the extent that they did not even mention the first applicant, although they were intended to, and indeed did, remove him from his position as Chief Mufti.

The Court has already found that these acts and the subsequent refusal of the Council of Ministers to recognise the leadership of Mr Hasan had the effect of arbitrarily favouring one faction of the divided religious community. It is noteworthy in this context that the replacement of the community's leadership in 1995, as well as in 1992 and 1997, occurred shortly after a change of government.

86.  The Court finds, therefore, that the interference with the internal organisation of the Muslim community and the applicants' freedom of religion was not “prescribed by law” in that it was arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability.

87.  The Court further agrees with the Commission that the repeated refusal of the Council of Ministers to comply with the judgments of the Supreme Court of 1996 and 1997 was a clearly unlawful act of particular gravity. The rule of law, one of the fundamental principles of a democratic society, is inherent in all Articles of the Convention and entails a duty on the part of the State and any public authority to comply with judicial orders or decisions against it (see the Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, pp. 510-11, §§ 40-41, and Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II).

88.  In view of these findings the Court deems it unnecessary to continue the examination of the applicants' complaints in respect of the “legitimate aim” and “necessary in a democratic society” requirements. Such an examination can only be undertaken if the aim of the interference is clearly defined in domestic law.

89.  There has, therefore, been a violation of Article 9 of the Convention.

III.  alleged violation of ARTICLE 11 OF THE CONVENTION

90.  The applicants complained that the State interference with the internal organisation of the Muslim religious community also violated their rights under Article 11 of the Convention. The Government denied that the Muslim community was an “association” and maintained that in any event there had not been any State interference with rights protected by that Article. The Commission considered that it was not necessary to examine the applicants' complaints under Article 11 of the Convention separately.

91.  The Court, like the Commission, considers that no separate issue arises under Article 11 of the Convention. It has already dealt with the complaint concerning State interference with the internal organisation of the Muslim religious community under Article 9 of the Convention, interpreted in the light of Article 11 (see paragraphs 62 and 65 above).

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Jurisprudence

Choice of leadership Freedom to decide Ability to establish branches