CASE OF HASAN AND CHAUSH v. BULGARIA
Preliminary objection rejected (estoppel);Violation of Art. 9;Violation of Art. 13;No violation of Art. 6;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Not necessary to examine Art. 11
Luzius Wildhaber
9. Mr Fikri Sali Hasan (“the first applicant”) was Chief Mufti of the Bulgarian Muslims from 1992 until the events complained of. Mr Ismail Ahmed Chaush (“the second applicant”) was formerly a teacher at the Islamic Institute in Sofia. In his submissions to the Court the second applicant stated that from February 1995 he had also worked on a part-time basis as secretary to the Chief Mufti's Office (Главно мюфтийство), the national leadership of the Muslim religious organisation, and editor of Musulmanin, its newspaper. The Government disputed these assertions. 10. At the end of 1989 a process of democratisation commenced in Bulgaria. Soon thereafter some Muslim believers and activists of the Muslim religion in the country sought to replace the leadership of their religious organisation. They considered that Mr Gendzhev, who was the Chief Mufti at that time, and the members of the Supreme Holy Council (Висш духовен съвет) had collaborated with the communist regime. The old leadership, with Mr Gendzhev as Chief Mufti of the Bulgarian Muslims, also had supporters. This situation caused divisions and internal conflict within the Muslim community in Bulgaria. 11. Following general elections held in Bulgaria in October 1991 a new government, formed by the Union of Democratic Forces (СДС) and the Movement for Rights and Freedoms (ДПС), took office towards the end of 1991. On 10 February 1992 the Directorate of Religious Denominations (Дирекция по вероизповеданията), a governmental agency attached to the Council of Ministers, declared the election of Mr Gendzhev in 1988 as Chief Mufti of the Bulgarian Muslims null and void and proclaimed his removal from that position. On 21 February 1992 the Directorate registered a threemember Interim Holy Council as a temporary governing body of the Muslims' religious organisation, pending the election of a new permanent leadership by a national conference of all Muslims. 12. Following these events Mr Gendzhev, who claimed that he remained Chief Mufti of the Bulgarian Muslims, challenged the decision of 10 February 1992 before the Supreme Court. On 28 April 1992 the Supreme Court rejected his appeal. The court found that the decision of the Directorate of Religious Denominations was not subject to judicial appeal. The ensuing petition for review, submitted by Mr Gendzhev against the Supreme Court's decision, was examined by a five-member Chamber of the Supreme Court. On 7 April 1993 the Chamber dismissed the petition. While confirming the rejection of Mr Gendzhev's appeal, the Chamber also discussed the merits of the appeal. It found, inter alia, that the Directorate's decision to declare Mr Gendzhev's election null and void had been within its competence. In so far as the impugned decision had also proclaimed “the removal” of Mr Gendzhev from his position of Chief Mufti, this had been ultra vires. However, it was unnecessary to annul this part of the Directorate's decision as in any event it had no legal consequences. 13. The National Conference of Muslims, organised by the interim leadership, took place on 19 September 1992. It elected Mr Fikri Sali Hasan (the first applicant) as Chief Mufti of the Bulgarian Muslims and also approved a new Statute of the Religious Organisation of Muslims in Bulgaria (Устав за духовното устройство и управление на мюсюлманите в България). On 1 October 1992 the Directorate of Religious Denominations registered the statute and the new leadership in accordance with sections 6 and 16 of the Religious Denominations Act. 14. While the leadership dispute between Mr Gendzhev and Mr Hasan continued, the official position of the Directorate of Religious Denominations, throughout 1993 and at least the first half of 1994, remained that the first applicant was the legitimate Chief Mufti of the Bulgarian Muslims. 15. On 29 July 1994 the Directorate of Religious Denominations wrote a letter to Mr Hasan urging him to organise a national conference of all Muslims to solve certain problems arising from irregularities in the election of local religious leaders. The irregularities in question apparently concerned alleged inconsistencies with the internal statute of the Muslim religious organisation, and not breaches of the law. 16. On 2 November 1994 the supporters of Mr Gendzhev held a national conference. The conference proclaimed itself the legitimate representative of Muslim believers, elected an alternative leadership and adopted a statute. Mr Gendzhev was elected President of the Supreme Holy Council. After the conference the newly elected leaders applied to the Directorate of Religious Denominations for registration as the legitimate leadership of the Bulgarian Muslims. 17. On 3 January 1995 the Supreme Holy Council presided over by the first applicant decided to convene a national conference on 28 January 1995. 18. At the end of 1994, parliamentary elections took place in Bulgaria. The Bulgarian Socialist Party (БСП) obtained a majority in Parliament and formed a new government, which took office in January 1995. 19. On 16 January 1995 the Directorate of Religious Denominations wrote a letter to the first applicant in his capacity of Chief Mufti urging him to postpone the conference. The letter stated, inter alia : “As the Directorate of Religious Denominations was concerned with [the] irregularities [as regards the election of local muftis] as early as the middle of 1994, it repeatedly ... urged the rapid resolution of the problems ... Unfortunately no specific measures were undertaken ... As a result the conflicts in the religious community deepened, and discontent among Muslims increased, leading to the holding of an extraordinary national conference on 2 November 1994. This brought to light a new problem, related to the shortcomings of the statute of the Muslim religious community... [The statute] does not clarify the procedure for convening a national conference ... Issues concerning the participants, and the manner in which they are chosen ..., are not regulated. Therefore, for the executive branch of the State it becomes legally impossible to decide whether the national conference is in conformity with the statute [of the Muslim religion] and, accordingly, whether its decisions are valid. These decisions, quite understandably, could be challenged by some of the Muslims in Bulgaria. Any other national conference, except one organised by a joint committee [of the rival leaderships], would raise the same problem. Moreover, the decision of 3 January 1995 of the Supreme Holy Council to hold an extraordinary national conference on 28 January 1995 is signed only by six legitimate members of the Holy Council... [and] ... cannot be regarded as being in conformity with the statute. The Directorate of Religious Denominations cannot disregard the findings of the [Chamber of the] Supreme Court in its decision of 7 [April] 1993. It is mentioned therein that the Directorate had acted ultra vires when removing Mr Gendzhev from his position of Chief Mufti and that the decision of the Directorate of 10 February 1992 could not have legal consequences. Extremely worried as regards the current situation and deeply concerned over the well-being of the Muslims in Bulgaria, the Directorate of Religious Denominations supports the opinion of the Chief Mufti [the first applicant] that it is not advisable to rush ahead with the holding of an extraordinary conference before overcoming the conflicts in the religious community ... Firmly convinced that the disputed questions in the religious community should not be decided by administrative means by the executive branch of the State ... the Directorate appeals to you to show good will and reach a consensus for the holding of a united conference ...” 20. On 27 January 1995 the Supreme Holy Council presided over by Mr Hasan announced that it had postponed the national conference until 6 March 1995. 21. On 22 February 1995 Mr Shivarov, Deputy Prime Minister of Bulgaria, issued Decree R-12, which reads as follows: “In accordance with Decree KV-15 of 6 February 1995 of the Council of Ministers read in conjunction with section 6 of the Religious Denominations Act, I approve the statute of the Muslim religion in Bulgaria, based in Sofia.” 22. The statute of the Muslim religion in Bulgaria mentioned in the decree was apparently the one adopted at the rival national conference, organised by Mr Gendzhev and held on 2 November 1994. Decree KV-15, referred to in Decree R-12, determined that Deputy Prime Minister Shivarov should be in charge of supervising the activity of the Directorate of Religious Denominations. 23. On 23 February 1995 the Directorate of Religious Denominations of the Council of Ministers issued a decision which stated that, in accordance with sections 6, 9 and 16 of the Religious Denominations Act and Decree R12 of the Deputy Prime Minister, it had registered a new leadership of the Bulgarian Muslim community. The leadership thus registered included Mr Gendzhev as President of the Supreme Holy Council and, apparently, those elected at the conference of 2 November 1994. 24. Neither Decree R-12 nor the decision of the Directorate of Religious Denominations gave any reasons or any explanation regarding the procedure followed. The decisions were not formally served on Mr Hasan, who learned about them from the press. 25. On 27 February 1995 the newly registered leadership of the Muslim community accompanied by private security guards entered the premises of the Chief Mufti's Office in Sofia, forcibly evicted the staff working there, and occupied the building. The applicants submit that the police, who arrived after the surprise action, immediately stepped in to protect the new occupants of the building. Following the action of 27 February 1995 the new leadership took over all documents and assets belonging to the religious organisation of Bulgarian Muslims in Sofia and, in the months which followed, in various other towns in the country. The Directorate of Religious Denominations allegedly sent letters to the banks where the Muslim religious organisation had its accounts, informing them of the change of leadership. In the following weeks several municipalities, allegedly upon the instructions of the Directorate, registered new regional muftis. Also, the staff of the Chief Mufti's Office and ten Islamic teachers, the second applicant among them, were allegedly dismissed de facto as they were prevented from continuing their work. 26. On 27 February 1995, immediately after the take-over, the first applicant submitted to the Chief Public Prosecutor's Office (Главна прокуратура) a request for assistance, stating that there had been an unlawful mob action and that the persons who had occupied the building of the Chief Mufti's Office were squatters who had to be evicted. By decisions of 8 and 28 March 1995 the prosecuting authorities refused to take action. They found, inter alia, that the new occupants of the building had legal grounds to stay there as they were duly registered by the Directorate of Religious Denominations and represented the religious leadership of the Muslim community in the country. 27. On 23 March 1995, apparently in reply to a request from the first applicant, the Directorate of Religious Denominations sent him, in his capacity as a private person, a letter which stated, inter alia: “The Muslim religious community in Bulgaria ... has, in 1888, 1891, 1919, 1949, 1986, 1992 and 1995, repeatedly changed its statute as concerns its organisational structure ..., but never as regards its religious foundation. Decree R-12 of 22 February 1995 ... sanctions an [organisational] change, which the religious community itself wished to undertake ...” This letter was apparently the first document originating from the competent State bodies which implied clearly that the statute of the Muslim religious community approved by Decree R-12 had replaced the previous statute and that the new registered leadership had replaced the first applicant. 28. On 18 April 1995 the first applicant, acting on behalf of the Chief Mufti's Office which he headed, lodged an appeal against Decree R-12 with the Supreme Court. He stated that, on the face of it, Decree R-12 stipulated nothing more than the registration of a new religious organisation. However, from the decisions and the letter of the Directorate of Religious Denominations which had followed, it had become clear that what had taken place was the replacement of the statute and the leadership of an existing religious denomination. Furthermore, it transpired that the motivation behind this act had been the understanding that the Muslim religion in Bulgaria could have only one leadership and one statute. The State did not have the right to impose such a view on Muslims, multiple religious organisations of one and the same religion being normal in other countries, as in Bulgaria. Therefore the Council of Ministers had acted beyond its powers. The resulting interference in the internal disputes of the Muslim religious community was unlawful. At the oral hearing held by the Supreme Court the first applicant also stated that there had been an unlawful interference with Muslims' religious liberties, as enshrined in the Constitution. 29. The first applicant also submitted that the conference of 2 November 1994 had been organised by people outside the Muslim religious organisation over which he presided. Accordingly, they could register their own religious organisation but could not claim to replace the leadership of another. The second applicant asked the Supreme Court either to declare Decree R-12 null and void as being against the law, or to declare that it constituted the registration of a new religious community, the existing Muslim organisation being unaffected. 30. On 27 July 1995 the Supreme Court dismissed the appeal. The court stated that under the Religious Denominations Act the Council of Ministers enjoyed full discretion in its decision as to whether or not to register the statute of a given religion. The Supreme Court's jurisdiction was therefore limited to an examination of whether the impugned decision had been issued by the competent administrative organ and whether the procedural requirements had been complied with. In that respect Decree R-12 was lawful. As regards the request for interpretation of Decree R-12, it was not open to the Supreme Court, in the framework of those particular proceedings, to state its opinion as to whether it had the effect of creating a new legal person, or introducing changes, and whether after this decision there existed two parallel Muslim religious organisations. 31. The national conference of Muslims in Bulgaria organised by Mr Hasan took place as planned on 6 March 1995. The minutes of the conference establish that it was attended by 1,553 persons, of whom 1,188 were official delegates with voting rights. These were representatives of eleven local chapters and of the central leadership. The conference adopted some amendments of the statute of the Muslim community and elected its leadership. The first applicant was re-elected Chief Mufti. 32. On 5 June 1995 the first applicant, acting as Chief Mufti, submitted a petition to the Council of Ministers requesting the registration of the new statute and leadership of Muslims in Bulgaria, as adopted by the conference of 6 March 1995. On 6 October 1995 he repeated the request. However, there was no response from the Council of Ministers. 33. On an unspecified date the first applicant appealed to the Supreme Court against the tacit refusal of the Council of Ministers to register the decisions of the March 1995 conference. 34. On 14 October 1996 the Supreme Court delivered its judgment. It noted that in 1992 the Chief Mufti's Office as represented by Mr Hasan had been duly registered as a religious denomination under section 6 of the Religious Denominations Act and had thus obtained legal personality of which it had not been subsequently deprived. Therefore the Council of Ministers was under an obligation, pursuant to sections 6 and 16 of the Act, to examine a request for registration of a new statute or of changes in the leadership in the existing religious denomination. Accordingly, the Supreme Court ruled that the tacit refusal of the Council of Ministers had been unlawful and ordered the transmission of the file to the Council of Ministers, which was required to examine it. 35. On 19 November 1996 Deputy Prime Minister Shivarov refused to register the 1995 statute and leadership of the Chief Mufti's Office as represented by Mr Hasan. He sent him a letter stating, inter alia, that the Council of Ministers had already registered a leadership of the Muslim community in Bulgaria, which was that elected by the November 1994 conference with Mr Gendzhev as President of the Supreme Holy Council. The Deputy Prime Minister concluded that the first applicant's request “[could not] be granted as it [was] clearly contrary to the provisions of the Religious Denominations Act”. 36. On 5 December 1996 the first applicant, acting as Chief Mufti, appealed to the Supreme Court against the refusal of the Deputy Prime Minister. 37. On 13 March 1997 the Supreme Court quashed that refusal on the ground that it was unlawful and contrary to Article 13 of the Constitution. The refusal constituted “an unlawful administrative intervention into the internal organisation of [a] religious community”. The Supreme Court again ordered the transmission of the file to the Council of Ministers for registration. 38. Despite these Supreme Court judgments the Council of Ministers did not grant registration to the religious leadership headed by Mr Hasan. 39. In February 1997 the government of the Bulgarian Socialist Party stepped down and an interim cabinet was appointed. At the general elections which followed in April 1997 the Union of Democratic Forces obtained a majority in Parliament and formed a new government. 40. On 24 March 1997 the first applicant again requested the Council of Ministers to register the 1995 statute and leadership. There followed informal contacts between the Muslim leadership of Mr Hasan and representatives of the government. The applicants were allegedly told that the government would only agree to register a new leadership of the Muslims if it was elected at a unification conference. 41. The Directorate of Religious Denominations urged the two rival leaderships of Mr Hasan and of Mr Gendzhev to negotiate a solution. On 12 September 1997 the leadership headed by Mr Hasan decided to accept the holding of a unification conference under certain conditions. A five-member contact group was appointed to hold negotiations. On 30 September 1997 representatives of the two rival leaderships signed an agreement to convene a national conference of all Muslim believers on 23 October 1997. The agreement, which was also signed by Deputy Prime Minister Metodiev and the Director of Religious Denominations, provided, inter alia, that the parties would not obstruct the unification process, failing which the Directorate would take appropriate administrative measures. In addition, the leadership of Mr Gendzhev undertook not to dispose of any Muslim property or assets before the conference. 42. The Directorate of Religious Denominations took an active part in organising the national conference. The mayors in many localities distributed to the local chapters forms bearing the seal of the Directorate. These forms were filled out at the meetings of the local chapters which elected delegates to the national conference and were certified by the mayors' signatures. 43. On 23 October 1997, 1,384 delegates attended the conference. Only delegates whose election had been certified by the mayors were allowed to participate. The conference adopted a new statute of the Muslim denomination in Bulgaria and elected a new leadership comprising members of the leadership of Mr Hasan and others. Mr Hasan apparently attended the conference and approved of the new leadership. Six leaders of the group led by him were elected to the new Supreme Holy Council. Mr Hasan was not among them. On 28 October 1997 the government registered the newly elected leadership. 44. Although the religious community which accepted Mr Gendzhev's authority was involved in the unification process, Mr Gendzhev himself and some of his supporters did not sign the agreement of 30 September 1997 and did not attend the conference, considering that it was manipulated by the State. The conference voted a resolution authorising the new leadership to conduct an audit and seek the prosecution of Mr Gendzhev for alleged unlawful transactions. 45. Mr Gendzhev, who claimed that he remained the Chief Mufti, appealed to the Supreme Administrative Court (Върховен административен съд) against the government's decision to register the new leadership. By a judgment of 16 July 1998 the Supreme Administrative Court rejected the appeal as being inadmissible. It found that the Chief Mufti's Office of Mr Gendzhev had no locus standi to lodge an appeal as it had never been validly registered. Decree R-12 of 22 February 1995 had been signed by Deputy Prime Minister Shivarov, who had not been duly authorised by the Council of Ministers. Decree KV-15 did not contain an express authorisation for the Deputy Prime Minister to approve the statutes of religious denominations. As a result the Chief Mufti's Office of Mr Gendzhev had never legally existed and all its acts between 1995 and 1997 were null and void. 46. The relevant provisions of the 1991 Constitution read as follows: Article 13 “(1) Religions shall be free. (2) 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.” Article 37 “(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers. (2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.” 47. The Constitutional Court's judgment no. 5 of 11 June 1992 provides a legally binding interpretation of the above provisions. It states, inter alia, that the State must not interfere with the internal organisation of religious communities and institutions, which must be regulated by their own statutes and rules. The State may interfere with the activity of a religious community or institution only in the cases contemplated in Articles 13 § 4 and 37 § 2 of the Constitution. An assessment as to whether there is such a case may also be undertaken at the time of registration of a religious community or institution. 48. The Religious Denominations Act came into force in 1949 and has been amended several times since then. The relevant provisions of the Act, as in force at the time of the events at issue, read as follows. Section 6 “(1) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by the Council of Ministers, or by a Deputy Prime Minister authorised for this purpose. (2) The Council of Ministers, or a Deputy Prime Minister authorised for this purpose, shall revoke the recognition, by a reasoned decision, if the activities of the religious denomination breach the law, public order or morals.” Section 9 “(1) Every religious denomination shall have a leadership accountable to the State. (2) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment ...” Section 16 “(1) The national governing bodies of the religious denominations shall register with the Directorate of Religious Denominations of the Council of Ministers, and local governing bodies with the local municipalities, and they shall submit a list of the names of all members of these governing bodies.” 49. The Act also lays down rules regarding the activities of a religious denomination, imposes requirements as regards its clergy and gives the Directorate of Religious Denominations certain supervisory functions. In its judgment no. 5 of 11 June 1992 the Constitutional Court, while agreeing that certain provisions of the Religious Denominations Act were clearly unconstitutional, found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to declare them inapplicable. 50. The applicants contended that as a consequence of the provisions of section 6 of the Act, and since there is no public register for recognised religious denominations, in practice a religious community can establish its existence as a legal entity only by producing a copy of a letter or a decision to that effect issued by the Directorate of Religious Denominations. The same applies to the leader of a religious denomination when he needs to provide accreditation. 51. 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 religions denominations”, assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications. 52. There are no procedural provisions under Bulgarian law specifically applicable to the examination by the Council of Ministers, or by a deputy prime minister, of a petition for authorisation of a religious denomination. Section 3 of the Administrative Procedure Act (Закон за административното производство), which contains a general legal regime on the procedure for the issuing of and appeal against administrative decisions, provides that the Act is not applicable as regards decisions of the Council of Ministers.