FIFTH SECTION

CASE OF IVANOVA v. BULGARIA

(Application no. 52435/99)

JUDGMENT

STRASBOURG 

12 April 2007

FINAL

12/07/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ivanova v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having deliberated in private on 20 March 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 52435/99) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Kalinka Todorova Ivanova, who was born in 1950 and lives in Ruse (“the applicant”), on 27 May 1999.

2.  The applicant was represented by Mr Y. Grozev, a lawyer practising in Sofia.

3.  The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Dimova and Ms M. Kotzeva, of the Ministry of Justice.

4.  The applicant alleged that her right to freedom of religion had been violated because her employment had been terminated on account of her religious beliefs (Article 9), which had amounted to discrimination on religious grounds (Article 14, in conjunction with Article 9).

5.  By a decision of 14 February 2006 the Court declared the application partly admissible.

6.  The parties did not submit further written observations on the merits (Rule 59 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Background information

1.  General background

7.  In February 1994 the Persons and Family Act was amended to require the registration with the Council of Ministers of non-profit organisations which had religious or related activities. Seventy-eight requests for registration were submitted, but only twenty-three organisations were registered. Those turned down were primarily Protestant groups.

8.  Denial of legal status made it impossible for those organisations to hire public lecture halls or sign contracts in the name of the organisation. The unregistered organisations were unable to open bank accounts or publish journals or newspapers in the name of the organisation and were denied certain tax advantages.

9.  Among the organisations whose registration was turned down was “Word of Life”, a Christian Evangelical group that had become active in Bulgaria in the early 1990s.

2.  Word of Life

10.  As a result of the authorities' refusal to register Word of Life, the religious organisation began clandestine activities. Meetings were periodically thwarted by the police followed by media propaganda against the organisation and its members.

11.  On 20 June 1994, acting on an order from the Sofia's Prosecutor's Office, the police closed a hall used by Word of Life in Sofia and prevented members from using it.

12.  On 22 June 1994 a Swedish citizen was expelled from Bulgaria because of his participation in a Word of Life course (see Lilja v. Bulgaria (dec.), no. 41574/98, 20 November 2003).

13.  On 23 June 1994 a force of around thirty policemen prevented members of Word of Life from attending a meeting at a hall, because it had purportedly been cancelled.

14.  On 23 February 1995 the police raided private homes in the town of Veliko Turnovo and a conference hall in the Hotel Etur. They confiscated religious literature, audio tapes and video cassettes, which they displayed at a press conference the next day. No charges were subsequently brought against any members of Word of Life.

15.  On 20 July and 27 September 1995 the police raided two gatherings of Word of Life followers in private homes. Religious literature was confiscated and the hosts were required to declare in writing that they would no longer organise religious gatherings in their homes.

3.  The River Shipbuilding and Navigation School in Ruse

16.  Throughout 1994 and 1995 the local Ruse media reported regularly on “unlawful” gatherings and religious activities by Word of Life followers. The media campaign intensified, with the national press joining in, during the summer and autumn of 1995. Press coverage was focused on the River Shipbuilding and Navigation School (Техникум по речно корабостроене и корабоплаване – “the School”) in Ruse because several of the non-academic staff were allegedly followers of Word of Life. The media also waged a personal campaign against some of those individuals by naming and condemning them as followers of the religious organisation. It called for their dismissal and named the applicant as one of the individuals whose employment should be terminated (see, for example, paragraph 22 below).

17.  As a direct result, the Regional Prosecutor's Office and the National Security Service initiated inquiries into the religious activities of the School's staff members.

18.  On 18 September 1995 the Regional Prosecutor's Office, in summarising the findings of the National Security Service, found that there were insufficient grounds for opening a preliminary investigation. At the same time it stated that, inter alia, the activities at the School were “not free of criminal culpability”, and that they were in contravention of the Religious Denominations Act and “probably” the relevant education Acts and regulations. Moreover, the allegedly “unlawful” religious activities were considered to have been carried out with the tacit approval of its principal.

19.  Soon thereafter, the Regional Governor (областният управител) and a local member of parliament (“the MP”) called for radical measures to be taken to curb the alleged religious activities at the School and to dismiss the principal. They made public threats that, if such measures were not taken, they would petition the Ministry of Education, Science and Technology (“the Ministry”) to dismiss the Chief Educational Inspector for Ruse (“the Educational Inspector”).

20.  On 23 October 1995 the principal of the School was dismissed by the Ministry. The dismissal order directly referred to the negative media coverage and the findings of the Regional Prosecutor's Office and accused her of tolerating the activities of Word of Life at the School to the detriment of its staff and pupils. It also suggested that the principal should have dismissed those members of staff who were Word of Life followers. It is unclear whether the principal appealed against her dismissal.

21.  A new principal was appointed soon thereafter.

22.  In a broadcast on the Hristo Botev radio station, aired on 7 December 1995, the MP stressed that there were still members of Word of Life working in the School, such as the swimming pool manager (the post occupied by the applicant), and inferred from this that the Ministry had not conclusively resolved the matter with the dismissal of the former principal.

B.  The applicant's career at the School

23.  The applicant was a mechanical engineer and had a second university degree in pedagogical sciences. She had been involved in the religious activities of Word of Life since 1994.

24.  On 14 October 1994 the applicant was appointed by the School to the post of “mechanic” at its swimming pool on a temporary employment contract until 23 February 1995.

25.  On an unspecified date, the Ministry approved a new roster of posts (щатно разписание) for the School effective as of 1 January 1995, which provided for the post of “swimming pool manager” with a requirement for the holder of the post to have completed a course of secondary education. By a further amendment of 1 April 1995 the holder of the post was required to have a higher-education qualification.

26.  On 6 April 1995 the applicant was promoted to the post of “swimming pool manager” and concluded a temporary employment contract with a term up to 31 August 1995.

27.  On 31 August 1995 the applicant's temporary employment contract was extended until 31 August 1996.

28.  On 20 September 1995 the applicant concluded an employment contract of indefinite duration, which provided for her appointment to the post of “swimming pool manager” as of 1 July 1995. Her job description indicated that her responsibilities included, inter alia, managing and supervising the staff of the swimming pool, organising their work schedules, monitoring the regular accounting of the proceeds from the swimming pool and organising the swimming lessons. The job description did not expressly refer to any education or professional qualification requirements for the post. The applicant's basic salary was set at 4,992 old Bulgarian levs (approximately 111 Deutsche marks (DEM)) with a 16% bonus for length of service.

29.  On an unspecified date the Ministry approved a new roster of posts for the School effective as of 1 October 1995. It provided for the post of “swimming pool manager” with a requirement that the holder of the post have a higher-education qualification.

C.  The applicant's dismissal from the School

30.  On 23 October 1995 the principal of the School was dismissed and a new one was appointed soon thereafter.

31.  On 2 November 1995 the applicant was summoned to a meeting with the Educational Inspector and his deputy. Another member of staff, Mrs M., was also summoned to the meeting, which took place on the premises of the School. At the meeting, the inspectors asked for their resignations as a means of easing public tensions. The applicant contended, although this was disputed by the Government, that the inspectors had threatened them that if they did not resign of their own accord or did not renounce their faith, they would be dismissed on disciplinary grounds. The inspectors claimed that irrespective of their work performance they “could instruct the [new] principal” to dismiss them. Mrs M. denied being a member of Word of Life, while the applicant did not and also refused to resign. No assessment or mention was made during the meeting as to whether the applicant was performing her job well and whether she met the requirements for holding her post.

32.  On 3 November 1995 the applicant informed the new principal of the School in writing of her meeting of the previous day with the Educational Inspector and his deputy. No action was taken in response.

33.  Thereafter, the new principal alienated the applicant – her office phone was removed, the locks to the swimming pool were changed without her being provided with a set of keys and the supervision of the renovation of the swimming pool was entrusted to a subordinate even though it should allegedly have been her responsibility. The new principal also made enquiries as to the applicant's work performance.

34.  On 24 November 1995 the human resources department of the School prepared a list of thirty-one employees allegedly without job descriptions. The applicant's name and post were among them.

35.  On 7 December 1995 Hristo Botev radio aired the interview with the MP in which he implied that the applicant's post was one of those still being occupied by a member of Word of Life (see paragraph 22 above).

36.  By an order of 28 December 1995 the applicant was dismissed, with immediate effect, on the grounds of not meeting the education and professional qualification requirements for the post of “swimming pool manager” (Article 328 § 1 (6) of the Labour Code). When she was served with the order, the applicant enquired as to which requirements she did not meet, but the new principal did not inform her.

D.  The proceedings against the dismissal

1.  Proceedings before the Ruse District Court

37.  On 27 May 1996 the applicant initiated proceedings before the Ruse District Court challenging the lawfulness of the dismissal. She also sought reinstatement in her previous post and compensation for loss of income.

38.  The applicant maintained that her dismissal was directly related to her religious beliefs and her refusal to resign of her own accord. Such a reason for terminating her employment contract, she argued, was a violation of Article 8 § 3 of the Labour Code and Article 37 of the Bulgarian Constitution, which prohibited religious discrimination.

39.  During the trial it was established that in December 1995 there had been a further amendment to the School's roster of posts, which the Ministry had approved in a letter of 30 January 1996, but with effect from 1 January 1996. The amended roster of posts no longer envisaged the post of “swimming pool manager”, but provided for the post of “sports complex organiser”. On an unspecified date a job description had also been prepared for the new post which set out the requirements for the holder of the post as follows: “university degree in sports, university degree in economics, as an exception – secondary education with specialisation in the relevant sport, qualified lifeguard, certified swimming instructor.”

40.  The applicant argued before the Ruse District Court that the changes to the School's roster of posts should have taken place in accordance with standard practices and should not have been arbitrary. She claimed that the standard practice was to make changes to the roster of posts before the beginning of the academic year. The applicant also claimed that the changes were arbitrary because there had not been any objective necessity, stemming from the work being performed, to change the requirements for the post.

41.  A hearing was held on 9 July 1996 at which the respondent party presented the new job description for the post of “sports complex organiser”.

42.  At a hearing on 19 November 1996 several witnesses gave evidence. The Educational Inspector testified that the standard practice was to make changes to the roster of posts before the academic year unless an urgent need, usually of a financial nature, required otherwise. He confirmed that he had met with the applicant in early November 1995 in connection with the findings of the Regional Prosecutor's Office and that he had invited her to resign in view of the mounting discontent and public opinion. He stated that he had not enquired as to the activities of Word of Life at the School and that he was not familiar with the applicant's work performance.

43.  Mrs M. also testified and informed the court that the new principal had threatened her with dismissal if she talked about her work at the School. She testified as to the meeting of 2 November 1995 with the Educational Inspector and stated that, faced with the claim of being a follower of Word of Life, she had denied it. She stated that she had broken down and cried during the meeting because she had two children to support and did not want to be left without a job. Mrs M. also informed the court that, as far as she was aware, the applicant had been a good and diligent employee, who had maintained good relations with the other members of staff.

44.  A teacher from the School also testified at the hearing. He informed the court that since its construction in 1974 the swimming pool had always had a manager, but that there had never been a requirement of a university degree in sports for the post. The teacher also testified as to the content of the radio broadcast of 7 December 1995, in which the applicant had been singled out for dismissal by the MP.

45.  On 25 November 1996 the applicant filed her written submissions with the Ruse District Court, contending that the evidence in the case supported her claim. She maintained that the School's roster of posts had been changed in the middle of the academic year with the sole aim of introducing such requirements for her post as to allow her dismissal on those grounds.

46.  On 5 May 1997 the Ruse District Court dismissed the applicant's claims. In its judgment the court noted that the burden of proof as to whether the dismissal had been lawful or not lay with the School. It found, inter alia, that the School had complied with the procedure for changing the roster of posts and that the new job description for the post was in conformity with the standard job descriptions for such posts as approved by the Ministry. In addition, the court found that with the changes to the requirements for the post the School had envisaged the possibility that the person appointed to the job would not only manage and organise the activities of the swimming pool but could also act as a lifeguard or swimming instructor, a factor which the court deemed to be of “vital importance”. Based on these considerations, the court found that “there really had been preconditions [which entailed] changing the requirements for the post” and that the dismissal was therefore lawful. Separately, the Ruse District Court found that the applicant's claims that her dismissal had been motivated by her religious beliefs were not supported by the evidence in the case, that in fact the applicant had had very good relations with the other members of staff and that there were no complaints as to her work performance. The court also reasoned that the applicant's assertions in this respect were refuted by the fact that Mrs M. was still employed by the School.

2.  Proceedings before the Ruse Regional Court

47.  On 27 June 1997 the applicant appealed against the judgment of the Ruse District Court. She claimed, inter alia, that its findings were not based on the evidence established in the case and were therefore unfounded. She claimed that the Ruse District Court had failed to make a proper assessment of key evidence, such as the testimonies of the Educational Inspector and Mrs M.

48.  The applicant also questioned the grounds of the first-instance court for dismissing her claim and contended that they were frivolous and at odds with the substance of her complaint alleging religious discrimination. Firstly, she had never claimed that her personal relations with her colleagues had suffered as a result of her religious beliefs. Secondly, she submitted that the first-instance court's reasoning that there had been no discrimination against her, considering that Mrs M. was still employed by the School, was incorrect as there were various possible reasons for Mrs M.'s continued employment, such as the fact that the media had not singled her out for dismissal.

49.  The applicant also claimed that the Ruse District Court had never analysed in substance her complaint alleging religious discrimination, but had dealt with the matter purely as an issue of unfair dismissal.

50.  Finally, she maintained that the facts of the case clearly showed that following her refusal to resign on 2 November 1995 the School had simply tried to find a legal ground for dismissing her and that the chosen method was to change the requirements for the post she occupied so that she would become ineligible to hold it.

51.  On 22 July 1997 the former principal of the School filed submissions with the Ruse Regional Court, attesting to a conversation she had had in June 1995 with the Educational Inspector. At the meeting he had identified four employees in respect of whom there had been “information that they were members of a sect” and whose employment he had insisted be terminated. At the time, the former principal had suggested that those employees resign of their own accord, but they had refused and no further action had been taken against them. It is unclear whether the applicant was one of those employees.

52.  In a judgment of 23 July 1997 the Ruse Regional Court dismissed the applicant's appeal. The court found, inter alia, that the School had both a need and the right to change the roster of posts and the requirements for the applicant's post and to dismiss her because she did not meet those requirements. It also found that the Ruse District Court had adequately addressed the applicant's allegations of religious discrimination and found them to be “totally and irrefutably ... irrelevant” based on the fact that she had maintained good relations with her colleagues and had been a good employee. Any allegations of subjective reasons or discriminatory grounds for her dismissal were therefore considered unfounded.

3.  Proceedings before the Supreme Court of Cassation

53.  On 18 September 1997 the applicant filed a petition for review (cassation appeal), claiming, inter alia, that the lower courts had failed to properly evaluate the evidence before them and had never addressed the substance of her complaint alleging religious discrimination. She maintained that they had failed to assess the circumstances surrounding her dismissal and especially the events leading up to it, which clearly demonstrated the real reason why this legal method had been used to terminate her employment.

54.  A hearing was conducted on 16 November 1998, which the applicant and her counsel, though duly summoned, did not attend. They presented their submissions to the court in writing.

55.  In a final judgment of 9 December 1998 the Supreme Court of Cassation dismissed the applicant's appeal. The court found, inter alia, that the applicant's arguments were unsubstantiated, and upheld the findings of the lower courts. It stressed that the School had the right to change the requirements for the post and that such changes were not subject to judicial review. In addition, it compared the duties and responsibilities of the posts of “swimming pool manager” and “sports complex organiser” and found them to be