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Supreme Holy Council of the Muslim Community v. Bulgaria (Application No. 39023/97)

 

From DADEL

 

1) Reference Details

 

Jurisdiction: European Court of Human Rights Date of decision: 16 March 2005

 

Link to full case: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=709439&portal=h bkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

 

2) Facts

 

The applicant, the Supreme Holy Council of the Muslim Community, alleged that it had been the victim of arbitrary and discriminatory State interference in the organization of the Official Muslim Community in Bulgaria. It also claimed that the requirements of impartiality and fairness had been breached in the ensuing judicial proceedings. It alleged violations of articles 6, 9, 13, and 14.

 

Mr. Nedim Gendzhev, head of the Supreme Holy Council of the Muslim Community, was the officially recognized leader of the Muslims in Bulgaria from 1995-7. Bulgarian law only allowed one Muslim community to be registered. In fact, there are two separate rival Muslim communities that have operated since the arrival of democracy in the country.

 

In 1991, a new coalition government came to power, led by the majority party, the Union of Democratic Forces (UDF). On February 10, 1992, The Directorate of Religious Denominations declared the election of Mr. Genzdzhev as Chief Mufti of the Muslim Community in Bulgaria, null and void and removed him from that office. This decisions was based on the government’s belief that his election had been politically motivated and he had collaborated with the old communist regime. Mr. Gendzhev unsuccessfully challenged his removal before the Bulgarian Supreme court but ultimately lost.

 

On September 19, 1992, Mr. Fikri Sali Hasan was elected Chief Mufti. The organization approved a new statute and registered in accordance with sections 6 and 16 of the Religious Denominations Act.

 

On November 2, 1994, Mr. Gendshev and his supporters held a national conference where he was elected President of the Supreme Holy Council, and they adopted a statute which was submitted to the Directorate for registration. In the parliamentary elections of 1994, the Bulgarian Socialist Party (BSP) won a majority and took office in January of 1995. On February 22, 1995, the deputy Prime Minister approved the new statute of the Supreme Holy Council and removed Mr. Hasan and his leadership. Mr. Gendshev and his faction assumed full control over the property and activities of the Muslim Community.

 

Mr. Hasan appealed to the Bulgarian Supreme Court. He argued that the Directorate had no authority to interfere in religious organizations and that, while they could register a new community, they could not replace the leadership of another existing organization and could not impose a single leadership on the Muslims. The Supreme Court dismissed the appeal, stating that under the Religious Denominations Act the Council of Ministers enjoyed full discretion in its decision.

 

In 1995, Mr. Hasan held his own assembly where he was elected Chief Mufti and then applied for registration of a newly amended statute. The Directorate ignored his request and Mr. Hasan appealed to the Supreme Court against the tacit refusal of his application. The Supreme Court ruled that the Council of Ministers’ tacit refusal was unlawful and remitted the file to the Council of Ministers, which was required to examine it.

 

On November 19, 1996 the deputy Prime Minister refused to register the statute. Mr. Hasan appealed. The Supreme Court held on March 13, 1997 that the Deputy Prime Minister’s refusal was unconstitutional and contrary to Article 13 of the Constitution as “an unlawful administrative intervention into the internal organization of [a] religious community.” Nevertheless, the Council of Ministers did not grant registration to Mr. Hasan’s organization In 1997, The SDS again obtained a majority in Parliament. This time they urged the two Muslim groups to work toward reunification. On September 30, 1997, the rival groups agreed to hold a national conference of all Muslim believers. Their agreement stated that each local community must elect two delegates, whose election would be certified by the local mayor.

 

In October of 1997 Mr. Genzhev wrote to the Prime Minister and the Directorate stating that the conference was not being organized in accordance with the statute of the Muslim religious organization. Mr. Genzhev claimed the conference was therefore unlawful and further stated that those who had signed the agreement had been forced to do so by the Director of Religious Denominations, which he said was an unacceptable State interference in the Muslims’ internal affairs.

 

Nevertheless, the conference went forward. Many of the delegates were from the DPS, a political party with close ties to the ruling SDS. The conference elected Mr. Hasan as leader. It also authorized the new leadership to conduct an audit and to seek the prosecution of Mr. Gendzhev for alleged unlawful transactions.

 

Mr. Gendzhev, appealed arguing that the conference had been unlawful. On July 16, 1998 the Supreme Administrative Court, rejected the appeal as being inadmissible. It found Supreme Holy Council had no locus standi to lodge an appeal as it had never been validly registered. On appeal this decision was overturned.

 

3) Admissibility

 

The application was found to be partly admissible.

 

4) Merits

 

The applicant organization complained that the Bulgarian authorities had organized and manipulated the October 1997 Muslim Conference with the aim of favoring one of the rival Muslim leaderships. The court examined this complaint under Article 9. The Government argued that the role of the Directorate had been that of a neutral guarantor of the agreement entered into freely by the opposing factions.

 

The court found that Article 9 safeguards associations against unjustified State interference. An ecclesiastical or religious body may, as such, exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention. The court found that the applicant’s organization’s complaints fall within the ambit of Article 9.

 

The court found that the existing laws left no choice to the religious leaders but to compete in seeking the recognition of the government of the day, since only one organization would be recognized. The court found the applicant organization accusation that political figures participated too closely in the selection of delegates to the council to be very plausible. The court also stated that it was not for the Directorate to insist on unification. The choice of whether to withdraw or participate in the conference must be left to Mr. Gendzhev and his organization. The court found there had been interference under Article 9.

 

Article 9 allows the states interference if three conditions are met. These are if the interference is prescribed by law; if it pursued a legitimate aim and if it was necessary for a democratic society. The court noted that there had been considerable differences in the authorities’ approach. The court found that the authorities general concern was to restore legality and public order, a legitimate aim. Finally, the court held that in democratic societies it is not necessary to bring religious communities into a unified body. In fact the opposite is true. The role of authorities should be to ensure toleration of competing groups. The applicant also complained that the judicial proceedings had not provided an effective remedy and therefore violated Article 13. The court found that the applicant organization had a judicial remedy. The Supreme Administrative Court examined the merits of the case. Article 13 does not provide a provision to challenge a state’s laws.

 

The applicant organization also alleged a number of violations of Article 6. Furthermore, it complained of disclosed discrimination contrary to Article 14, since the authorities had favored one of the rival leaderships. The court found that these issues had already been discussed and that it was not necessary to reexamine them.

 

5) Decision

 

The Court unanimously held that:

 

  1. There was a violation of Article 9;
  2. There was not a violation of Article 13;

 

  1. It was not necessary to examine the complaints under Articles 6 and 14;

 

  1. The court awarded 5,000 Euros in non-pecuniary damage and 5,000 in costs and expenses, plus any tax that would be chargeable on the amounts.

 

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