CASE OF INDEPENDENT ORTHODOX CHURCH AND ZAHARIEV v. BULGARIA

FOURTH SECTION

CASE OF INDEPENDENT ORTHODOX CHURCH AND ZAHARIEV v. BULGARIA

(Application no. 76620/14)

JUDGMENT
 

STRASBOURG

20 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Independent Orthodox Church and Zahariev v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 76620/14) 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 the Independent Orthodox Church (“the applicant church”) and by Mr Nikola Minkov Zahariev, a Bulgarian national born in 1961 and living in the village of Belashtitsa, on 23 November 2014;

the decision to give the Bulgarian Government (“the Government”) notice of the complaints concerning the alleged limitation on the applicants’ right to manifest their religion and the alleged discrimination against the applicants in the exercise of that right, and to declare inadmissible the remainder of the application;

the parties’ observations;

the decision to examine the case simultaneously with the case of Bulgarian Orthodox Old Calendar Church and Others v. Bulgaria (no. 56751/13);

Noting:

the withdrawal from the case of Mr Yonko Grozev, the judge elected in respect of Bulgaria;

the Government’s objection that the application should not be examined by a Committee, which the Court rejects,

Having deliberated in private on 23 March 2021,

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

INTRODUCTION

1.  The case chiefly concerns a complaint, falling to be examined under Article 9 of the Convention read in the light of Article 11, that the refusal to register a church adhering to Eastern Orthodox Christianity owing to the purported similarity of its name and beliefs with those of the Bulgarian Orthodox Church, which is recognised by law, amounted to an unlawful and unjustified limitation on the right of that church and its adherents to manifest their religion.

THE FACTS

2.  The applicants were represented by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv.

3.  The Government were represented by their Agent, Ms R. Nikolova of the Ministry of Justice.THE APPLICANT CHURCH

4.  In July 2012 twenty-four people, including the second applicant, resolved to set up a new church called “Independent Orthodox Church”. They elected the second applicant as chairman of the church’s board. In its statute, adopted at the founding meeting, the church declared that it was an “independent spiritual community of people who proclaim themselves to be Orthodox Christians, are united around the Orthodox church doctrine, and are governed by priests and bishops elected by them” (clause 1). The statute went on to say that in its religious practice the church would base itself on the “Holy Scripture (the Bible), and the teachings of the One Holy Catholic and Apostolic Church” (clause 43(1)).ATTEMPT TO REGISTER THE APPLICANT CHURCH

5.  In August 2012 the applicant church applied to the Sofia City Court for registration. It enclosed with its application a certificate, issued the same month by a State-owned company which keeps a database of all companies and not-for-profit organisations, that its name did not match that of any other such entity.

6.  As allowed by the rules of procedure, the Sofia City Court invited the Religious Denominations Directorate attached to the Council of Ministers, to comment on the registration request. The Directorate advised the court that, since Article 13 § 3 of the Constitution and section 10 of the Religious Denominations Act 2002 (“the 2002 Act”) proclaimed Eastern Orthodoxy as the traditional religion of the Bulgarian people and provided that its representative was the Bulgarian Orthodox Church (see paragraphs 14 and 28 below), it would file its comments only after obtaining the opinion of the Holy Synod of that Church.

7.  The Directorate filed its comments in November 2012. In its view, the name of the applicant church was contrary to Article 13 § 3 of the Constitution and section 10 of the 2002 Act (see paragraphs 14 and 28 below). It also noted that by providing for ex lege recognition of the Bulgarian Orthodox Church, section 10(2) of the Act (see paragraph 28 below) had excluded Eastern Orthodoxy from the ambit of the registration procedure. The Directorate went on to say that, in view of the importance of the Bulgarian Orthodox Church in Bulgarian society, it had asked its Holy Synod to comment on the registration request as well, and would present to the Court that Synod’s submissions. However, it does not appear that the Synod’s submissions, if any, were later added to the case file.

8.  On 30 November 2012 the Sofia City Court refused to register the applicant church (see реш. от 30.11.2012 г. по гр. д. № 534/2012 г., СГС). It held that, as formulated by its founders, its beliefs matched those of the Bulgarian Orthodox Church, which had been proclaimed as the traditional religion in Bulgaria under Article 13 § 3 of the Constitution and section 10(1) of the 2002 Act (see paragraphs 14 and 28 below). The applicant church could not therefore be seen as a separate religious denomination within the meaning of section 9 of the Act (see paragraph 24 below). The name chosen for the church, which was materially similar to that of the Bulgarian Orthodox Church, was a further bar to its registration under section 15(2) of the Act (ibid.).

9.  The applicant church appealed. It submitted that under a proper interpretation of section 15(2) of the 2002 Act only a complete match of the names of two religious denominations amounted to a bar to registration. It also pointed out that the Sofia City Court had already registered a number of churches – many Armenian Apostolic Orthodox churches and a “Reformed Orthodox Church” – whose names included the word “Orthodox” and whose beliefs overlapped with those of the Bulgarian Orthodox Church. The applicant church went on to argue that the refusal had been in breach of Article 9 of the Convention, as interpreted by the Court, in particular, in Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria (nos. 412/03 and 35677/04, 22 January 2009).

10.  On 8 July 2013 the Sofia Court of Appeal upheld the refusal to register the applicant church (see реш. № 1447 от 08.07.2013 г. по т. д. № 183/2012 г., САС). It held that the State authorities were entitled to lay down the conditions under which a religious community could obtain legal personality, and this did not affect the right to associate. Anyone could exercise the right to manifest his or her religion by forming or joining a religious community, including an Eastern Orthodox one, but there was no corresponding duty to register such community. It was true that the names of the applicant church and of the Bulgarian Orthodox Church did not completely match. However, and this was not disputed by the applicant church, it adhered to the doctrine of Eastern Orthodoxy, whose main embodiment in Bulgarian society was the Bulgarian Orthodox Church. The applicant church did not claim that its beliefs and those of the Bulgarian Orthodox Church differed. A theological identity resulted in an identity of names, which was not permitted under the 2002 Act. There was no unconstitutional interference with the rights to freedom of religion and association because they were not absolute. The granting of legal personality to a religious community by way of registration chiefly concerned the possibilities for it to acquire property and carry out commercial activities. Laying down conditions for such registration was therefore not contrary to Article 9 of the Convention or the autonomy of religious communities. Regard also had to be had to the terms of paragraph 3 of the 2002 Act’s transitional and concluding provisions (see paragraph 25 below). In applying section 15(2) of the Act, one could not just mechanically compare the words comprising the name of a religious denomination. The prohibition of identical names in that provision meant that it was inadmissible to have two religious institutions with the same status and name. It was precisely with a view to avoiding that eventuality that the legislature had provided, in section 27(1) of the 2002 Act (see paragraph 29 below), for a possibility to create not-for-profit legal persons seeking to popularise and assist a religious denomination.

11.  The applicant church appealed on points of law. It reiterated and expanded upon the arguments which it had put forward in the proceedings below in relation to the proper construction of section 15(2) of the 2002 Act and the incompatibility with Article 9 of the Convention of the refusal to register it (see paragraph 9 above). It went on to argue that such refusal was also unconstitutional, and that the possibility to create a not-for-profit legal person would not achieve the same effect as its registration as a religious denomination.

12.  As required under the rules of procedure, the applicant church enclosed with the appeal submissions explaining why it should be admitted for examination. It argued that the questions whether (a) section 15(2) of the 2002 Act required a complete match of the names of two religious denominations, and (b) whether the use of the word “Orthodox” in the name of a denomination and (c) an overlap of its religious views with those of the Bulgarian Orthodox Church were sufficient to justify a refusal to register it, were important points of law which required further elucidation and had not been previously dealt with by the Supreme Court of Cassation.

13.  In a final decision of 15 July 2014 (опр. 464 от 15.07.2014 г. по т. д. № 3897/2013 г., ВКС, II т. о.), the Supreme Court of Cassation refused to admit the appeal for examination. It found that there was no divergent case-law on the first and third questions formulated by the applicant church, and no need to revise the existing case-law. For its part, the second question was not pertinent, as the lower court had not relied solely on the presence of the word “Orthodox” in the name of the applicant church to uphold the refusal to register it; it had had regard to the entirety of the church’s name and to its religious beliefs.

RELEVANT LEGAL FRAMEWORKBULGARIAN LAWThe Constitution

14.  The relevant provisions of the 1991 Constitution read:

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.  Freedom of conscience, 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.  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.”

15.  In June 1992 the Constitutional Court held, inter alia, that the State could interfere with the internal organisation of religious communities and institutions only in the situations contemplated in Articles 13 § 4 and 37 § 2 of the Constitution (see реш. № 5 от 11.06.1992 г. по к. д. № 11/1992 г., КС, обн. ДВ, бр. 49/1992 г.).The Religious Denominations Act 2002Background to the enactment of the Act

16.  Up until the end of 2002, the organisational structure and functioning of religious denominations and their official registration had been governed by the Religious Denominations Act 1949. According to the authorities’ usual practice, the Act was construed as requiring each religious denomination to have a single leadership and as prohibiting parallel organisations of the same denomination (see Supreme Holy Council of the Muslim Community v. Bulgaria, no. 39023/97, § 57, 16 December 2004, and Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others (merits), cited above, § 68).

17.  After the demise of the communist regime and an ensuing struggle within the Bulgarian Orthodox Church which resulted in two opposing leaderships, Parliament enacted the Religious Denominations Act 2002 with a view to putting an end to that division (for details, see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others (merits), cited above, §§ 9-48). The Act came into force on 1 January 2003.

18.  The record of the parliamentary debates leading up to the Act’s passage reveals an almost unanimous view that the Bulgarian Orthodox Church’s unity was of crucial national importance owing to its role in shaping and preserving Bulgarian national identity over the centuries (ibid., § 45).Content of the right to religion according to the Act

19.  Section 5(1) provides that the right to religion can be exercised by, among other things, forming or taking part in a religious community and organising the institutions of that community. Section 6(1)(1) goes on to specify that this right encompasses the right to create and maintain religious communities and institutions which have a structure and representation suited to the convictions of their members. Paragraph 1(3) of the Act’s transitional and concluding provisions defines a “religious community” as a voluntary association of people professing a given religion and carrying out religious services, rites and ceremonies, and a “religious institution” as a “religious community” which has been registered in accordance with the Act and has legal personality.Provisions governing the registration of religious communities

(a)   Effects of registration

20.  Section 14 provides that religious communities may acquire legal personality under the conditions laid down in the Act. This includes official registration by the Sofia City Court (section 15(1)).

21.  When a religious denomination has acquired legal personality, it may have and dispose of its own assets (section 21(1)), and receive State subsidies (sections 21(3) and 28(1)).

22.  According to sections 24(1)(9) and 71a(1) of the Local Taxes and Fees Act 1997, temples owned by duly registered religious denominations and the land on which they have been built are exempt from local taxes and waste disposal fees. Sections 24(2) and 71a(2) make the exemption subject to the land and buildings at issue not having commercial uses unconnected with their main religious function. Section 71a came into force on 1 January 2014.

(b)   Registration requirements

23.  The public register kept by the Sofia City Court must include information about, inter alia, the name of each registered religious denomination (section 18(2) of the 2002 Act).

24.  Section 9 provides that each religious denomination is characterised by its name and by the beliefs of the people which make up its religious community. For its part, section 15(2) provides that there can be no more than one religious denomination with the same name.

25.  Paragraph 3 of the Act’s transitional and concluding provisions provides that persons who have seceded from a registered religious institution before the Act’s entry into force in breach of that institution’s internal rules are not entitled to use its name or assets.

26.  The Sofia City Court and the Sofia Court of Appeal have relied on those provisions to hold that a religious denomination may be registered only if its name and religious doctrine differ from those of an already registered denomination (see реш. № 1519 от 17.08.2012 г. по ф. д. № 1017/2012 г., САС; реш. № 1145 от 06.06.2014 г. по в. гр. д. № 2076/2014 г., САС; and реш. № 341 от 06.02.2020 г. по в. г. д. № 3781/2019 г., САС) or of the Bulgarian Orthodox Church (see реш. № 677 от 29.04.2011 г. по ф. д. № 542/2011 г., САС; реш. № 1114 от 04.07.2011 г. по ф. д. № 513/2011 г., САС; реш. № 1447 от 08.07.2013 г. по ф. д. № 183/2013 г., САС; реш. № 2512 от 12.17.2015 г. по ф. д. № 3876/2015 г., САС; and реш. № 2307 от 06.12.2016 г. по ф. д. № 5164/2016 г., САС). With particular regard to the identity of the name, in those decisions the courts consistently held that slight differences in the words composing the name or in their order are not sufficient to consider that a denomination’s name is different. They thus held that the names “Orthodox Church in Bulgaria”, “Bulgarian Eastern Orthodox Church”, “Independent Orthodox Church”, “Orthodox Church” and “Orthodox Christian Church” were all “the same” as that of the Bulgarian Orthodox Church.[1]

27.  However, it appears that in spite of that case-law, by 2008 three Presbyterian, eleven Baptist and three Lutheran churches, some of them bearing very similar names, featured in the register kept by the Sofia City Court (see Genov v. Bulgaria, no. 40524/08, § 19 in fine, 23 March 2017).Ex lege legal personality of the Bulgarian Orthodox Church

28.  In contrast to all other religious communities, under section 10(2) of the 2002 Act the Bulgarian Orthodox Church was granted legal personality by operation of law (ex lege). Section 10(1), which echoes Article 13 § 3 of the Constitution (see paragraph 14 above), provides that Eastern Orthodoxy is the “traditional religion in the Republic of Bulgaria”, that “[i]t has a historical role for the Bulgarian State and a current importance for its Statehood”, and that its “embodiment and representative is the self-ruling Bulgarian Orthodox Church, which under the name Patriarchy is a successor of the Bulgarian Exarchate and a member of the Unified, Holy, Catholic and Apostolic Church”.Not-for-profit legal persons assisting and popularising a religious denomination

29.  Section 27(1) of the 2002 Act provides that, with the prior assent of the respective religious institution, it is possible to create a not-for-profit legal person seeking to assist and popularise a religious denomination which already has legal personality. Section 27(2) goes on to specify that such not-for-profit legal persons are not entitled to carry out activities which amount to the public practicing of religion.

30.  In 2017 the Sofia Court of Appeal upheld a refusal to register an association promoting Eastern Orthodoxy in the absence of evidence of prior assent by the Bulgarian Orthodox Church (see реш. № 1184 от 25.05.2017 г. по ф. д. № 2316/2017 г., САС).

31.  In 2010 the Sofia Court of Appeal relied on, inter alia, section 27(2) to uphold the forced dissolution of an association of Ahmadiyya Muslims which was carrying out religious services and ceremonies even though it had earlier been refused registration as a religious denomination (see реш. № 106 от 19.02.2010 г. по гр. д. № 1407/2008 г., САС; appeal on points of law not admitted: see опр. № 789 от 16.12.2010 г. по т. д. № 534/2010 г., ВКС, II т. о.).

32.  In 2012 the Sliven Regional Court likewise relied on, inter alia, section 27(2) to order the dissolution of a Muslin association which was organising public religious talks and sermons and public screenings of biographical films concerning a religious leader (see реш. № 98 от 09.11.2012 г. по гр. д. № 391/2012 г., ОС-Сливен).

33.  In 2013 the Shumen Regional Court similarly proceeded to order the dissolution of an association teaching Islam to minors whom it was sheltering in a hostel run by it (see реш. № 92 от 09.04.2013 г. по гр. д. № 623/2012 г., ОС-Шумен; upheld on appeal: see реш. № 142 от 03.10.2013 г. по гр. д. № 287/2013 г. АС-Варна, and опр. № 628 от 10.11.2014 г. по т. д. № 325/2014 г., ВКС, II т. о.).Legal challenge against the 2002 Act

34.  In February 2003 fifty members of Parliament asked the Constitutional Court to declare specific provisions of the 2002 Act, including paragraph 3 of its transitional and concluding provisions – but not section 15(2) (see paragraphs 24 and 25 above) – unconstitutional and contrary to the Convention. The court gave its judgment in July 2003 (see реш. № 12 от 15.07.2003 г. по к. д. № 3/2003 г., КС, обн. ДВ, бр. 66/2003 г.). It was unable to reach a majority decision, with an equal number of justices voting for and against declaring paragraph 3 unconstitutional. Pursuant to the Constitutional Court’s usual practice, in such circumstances the request for a legal provision to be declared unconstitutional is considered to be dismissed by default.

35.  The justices who voted against the request considered, inter alia, that the principle of legal certainty required that persons who had seceded from a religious denomination should not be allowed to use its name. Further, it was obvious that they could not claim a portion of its assets, as those belonged to the religious denomination as a legal person. For the justices who were of the view that paragraph 3 was unconstitutional, it purported to regulate the internal organisation of religious communities, and thus infringed their autonomy.RELEVANT COUNCIL OF EUROPE MATERIALS

36.  In its Resolution 1390 (2004), the Council of Europe’s Parliamentary Assembly noted, among other things, that the ex lege recognition of the Bulgarian Orthodox Church (see paragraph 28 above) was generally seen as intended to settle the dispute between its two rival synods in favour of one of them, and that one of those synods had been effectively barred from registering as a new religious institution by the prohibition against the registration of another institution using the same name (point 7). The Assembly advised the Bulgarian authorities “either to delete [section 15(2) of the 2002 Act – see paragraph 24 above], or to ensure its interpretation in such a way that only the strict and literal identity of names and headquarters precludes the registration of a breakaway group” (point 9.2).

THE LAWALLEGED VIOLATION OF ARTICLE 9 READ IN THE LIGHT OF aRTICLE 11 OF THE CONVENTION

37.  The applicants alleged that the refusal to register the applicant church had amounted to an unjustified interference with their right to freedom of religion. They relied on Article 9 of the Convention. For its part, the Court considers that the complaint falls to be examined under Article 9 read in the light of Article 11 of the Convention (see Metodiev and Others v. Bulgaria, no. 58088/08, § 26, 15 June 2017). These provisions read, in so far as relevant:

Article 9 (freedom of thought, conscience and religion)

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 11 (freedom of assembly and association)

“1.  Everyone has the right ... to freedom of association with others ...

2.  No restrictions shall be placed on the exercise of [this right] other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...”AdmissibilityAlleged abuse of the right of individual application

38.  The Government submitted that the complaint was abusive, as the applicant church did not have an identity different from that of the Bulgarian Orthodox Church and had not met the requirement under section 15(2) of the 2002 Act to have a different name. The request for its registration could thus be seen as a deliberate attempt at manipulation.

39.  The applicants submitted that the attempt to form and register the applicant church had been genuine and in good faith, and that this could not be seen as an abuse of the right of application or a manipulation.

40.  According to the Court’s case-law, the notion of “abuse” within the meaning of Article 35 § 3 (a) of the Convention must be understood as conduct of the applicant which is manifestly contrary to the purpose of the right of individual application enshrined in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it (see, among other authorities, Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009; Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 184, ECHR 2014 (extracts); and Dimović v. Serbia, no. 24463/11, § 21, 28 June 2016).

41.  There is no indication of such conduct by the applicants in this case. The questions whether the applicant church was in reality identical to the Bulgarian Orthodox Church and whether its name justifiably prevented its registration are part of the broader issue of whether the refusal to register the applicant church amounted to a “limitation” on the applicants’ right to manifest their religion which was “prescribed by law” and “necessary in a democratic society”. Although the Government disputed each of those points, nothing suggests that the facts which underpin them are somehow removed from reality or could be regarded as an attempt to mislead the Court (see, mutatis mutandis, Harakchiev and Tolumov, § 185, and Dimović, § 23, both cited above). Even if the applicant church did not fulfil the legal criteria for registration under Bulgarian law owing to its similarity with the Bulgarian Orthodox Church, that does not make its application to the Court abusive. The Government’s objection must therefore be rejected.Exhaustion of domestic remedies

42.  The Government submitted that the applicant church, whose adherents did not claim to follow a faith different from that of the Bulgarian Orthodox Church, could seek registration as an association under section 27(1) of the 2002 Act (see paragraph 29 above), and acquire legal personality in that way. In the circumstances, this was an effective remedy. There was no reason to suppose that the Bulgarian Orthodox Church would not assent to this.

43.  The applicants submitted that the applicant church had not been created to popularise another religious denomination such as the Bulgarian Orthodox Church, but to be an alternative to an existing one.

44.  The Court finds that the point raised by the Government in terms of an objection of non-exhaustion of domestic remedies is closely related to the merits of the complaint (see Genov v. Bulgaria, no. 40524/08, § 26, 23 March 2017). The objection must therefore be joined to the merits.Conclusion on the admissibility of the complaint

45.  The complaint is, moreover, not manifestly ill-founded or inadmissible on other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

(a)   The applicants

46.  The applicants submitted that the applicant church had its own identity and that its adherents wished to distinguish it from the Bulgarian Orthodox Church. In their view, the refusal to register the applicant church had amounted to a limitation on their right to manifest their religion, which also had a collective aspect.

47.  In the applicants’ view, the extensive interpretation of section 15(2) of the 2002 Act on the basis of which the Bulgarian courts had held that the applicant church’s name was identical to that of the Bulgarian Orthodox Church meant that the restriction had not been “prescribed by law”. The only correct way of construing section 15(2) was that it only barred a complete match of names. Moreover, no legal provision precluded the registration of a denomination espousing the same faith as another, or a denomination likewise adhering to Eastern Orthodoxy but separate from the Bulgarian Orthodox Church. The legal recognition of that church’s historical role did not mean that other Eastern Orthodox denominations were prohibited.

48.  The applicants went on to argue that the refusal to register the applicant church had not pursued a legitimate aim. Registration would not have imperilled legal certainty or the rights of others. In particular, nothing suggested that it would have confused the adherents of the Bulgarian Orthodox Church; the names of the two churches were sufficiently different to avert that risk. The word “Independent” in the applicant church’s name clearly showed that it sought to be an alternative to the Bulgarian Orthodox Church. The Bulgarian Orthodox Church’s leaders and the priests serving in its temples were, moreover, well known.

49.  Lastly, the applicants submitted that the refusal to register the applicant church had not been necessary in a democratic society. They pointed out that the refusal had prevented it, in law, from seeking financial assistance from the State, from being able to obtain income, and more generally from entering into legal relationships and protecting its rights. The refusal to register the church had also exposed its leaders to possible administrative fines for acting on behalf of a religious denomination without authority. They further considered that the reasons for the refusal were not valid. The only common point between the names of the applicant church and that of the Bulgarian Orthodox Church was the word “Orthodox”. The fact that the applicant church likewise adhered to the doctrine and rites of Eastern Orthodoxy was not a valid reason for denying it registration either. The Bulgarian courts’ stance suggested that the only way to practice Eastern Orthodoxy in Bulgaria was within the Bulgarian Orthodox Church. The State authorities were thus defining what Eastern Orthodoxy meant and which was the only church in Bulgaria in which those concerned could practice that religion collectively.

(b)   The Government

50.  The Government submitted that there had been no interference with the autonomous functioning of the applicant church. The authorities had not meddled in its religious activities, and it could engage in them without hindrance, even though it did not have legal personality. In Bulgaria, unlike in some other States, unregistered religious communities were not prohibited from setting up places of worship, holding religious services in public, producing and distributing religious literature, or engaging in other activities of that sort; registration did not confer any special rights. The inability of a non-registered religious community to obtain a State subsidy was not decisive, as this was not a right but merely a theoretical possibility. Nor was the impossibility for the applicant church directly to employ its ministers conclusive, as it could find other ways to remunerate them, and remuneration was in any event not the first consideration for people carrying out spiritual duties. Furthermore, there was no risk that ministers of the applicant church would be sanctioned for acting on behalf of a religious denomination without authority, since an unregistered religious association such as the applicant church did not fall within the statutory definition of “religious denomination”. Legal personality was not a prerequisite for the rights to associate and to manifest one’s religion collectively.

51.  The Government also pointed out that the case concerned a religious community which espoused the same faith as the traditional religion in Bulgaria – Eastern Orthodoxy – and a church analogous to the Bulgarian Orthodox Church. The applicant church’s name did not sufficiently differ from the name of that church, which could lead to confusion and by law precluded its registration, since section 15(2) of the 2002 Act did not require a complete match of names. The resemblance with the Bulgarian Orthodox Church was particularly problematic, since it was easily recognisable and the registration of an entity with a very similar name would infringe the rights of the majority of the population, who adhered to the Eastern Orthodox faith. The Government noted in that connection that where religious communities were concerned, their names and beliefs were often closely related. The refusal to register the applicant church had therefore been “prescribed by law”, was intended to protect public order and the rights and freedoms of others, and was fully justified. The applicant church had not proved that it had characteristics which truly distinguished it from the Bulgarian Orthodox Church, in terms of its name and its faith. Article 9 of the Convention read in conjunction with Article 11 could not be construed as requiring the registration of identical entities within the same religious denomination whose names were not clearly different. The refusal to register the applicant church had therefore not been a disproportionate interference with the applicants’ right to manifest their religion or freely associate.The Court’s assessment

(a)   Existence of a “limitation” on the applicants’ right to manifest their religion

52.  It is true that the absence of official registration and legal personality does not prevent the applicant church’s ministers from conducting religious services and its adherents from practicing (see Genov, § 37, and Metodiev and Others, § 36, both cited above, and contrast Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 105, ECHR 2001-XII). But the fact that the authorities have not actively intervened in the church’s activities is not decisive (see Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 67, 31 July 2008). Without official registration, the church could not obtain legal personality and thus exercise in its own name the rights pertaining thereto, such as the rights to own or lease property, keep bank accounts, appoint ministers and other employees, and ensure judicial protection of the religious community and its members and assets, all of which are essential for exercising the right to manifest one’s religion (see Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 85, ECHR 2009; Genov, cited above, § 37; and Metodiev and Others, cited above, § 36).

53.  Contrary to what has been suggested by the Sofia Court of Appeal and the Government (see paragraphs 10 in fine and 42 above), the applicant church could not make this good by registering as an association under section 27(1) of the 2002 Act (see paragraph 29 above). Even if that were possible, it would not have permitted the applicant church and its adherents to manifest their religion freely. According to section 27(2), such associations may not carry out activities which amount to the public practicing of religion, such as conducting religious services and ceremonies, organising public religious talks and sermons, and teaching religion (ibid., and see also paragraphs 31 to 33 above). Moreover, the Court has held that forcing an organisation to take a legal shape it does not seek can in itself unduly restrict freedom of association (see, mutatis mutandis, Zhechev v. Bulgaria, no. 57045/00, § 56, 21 June 2007, and Republican Party of Russia v. Russia, no. 12976/07, § 105, 12 April 2011). The same applies to freedom to manifest one’s religion. It follows that the Government’s objection of non-exhaustion of domestic remedies, which was joined to the merits (see paragraph 44 above), must be rejected.

54.  It also follows that the refusal to register the applicant church as a religious denomination amounted to a “limitation” on its right, and that of the second applicant, to manifest their religion (see Metodiev and Others, cited above, § 24).

(b)   Justification of the “limitation”

55.  To be compatible with Article 9 of the Convention, such “limitation” must be “prescribed by law”, pursue one or more of the legitimate aims set out in the second paragraph of that Article, and be “necessary in a democratic society” to attain those aims.

56.  The Bulgarian courts based the refusal to register the applicant church chiefly on sections 9 and 15(2) of the 2002 Act, as consistently interpreted by them (see paragraphs 8, 10, 24 and 26 above). The “limitation” can thus be seen as “prescribed by law” (see Genov, § 40, and Metodiev and Others, § 39, both cited above).

57.  In view of the grounds on which the Bulgarian courts refused to register the applicant church – that its name and faith were, in their view, in effect the same as those of the Bulgarian Orthodox Church – it can also be accepted that the “limitation” was intended to prevent confusion and safeguard legal certainty, and thus protect public order and the rights of others (see Genov, § 41, and Metodiev and Others, § 40, both cited above).

58.  The salient issue is whether the “limitation” was “necessary in a democratic society”.

59.  Requiring a religious organisation seeking registration to take on a name which is not liable to mislead believers and the general public and which enables it to be distinguished from already existing organisations can in principle be seen as a justified limitation on its right freely to choose itsname (see Genov, cited above, § 43; “Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy)” v. the former Yugoslav Republic of Macedonia, no. 3532/07, § 111, 16 November 2017; and Bektashi Community and Others v. the former Yugoslav Republic of Macedonia, nos. 48044/10 and 2 others, § 71, 12 April 2018). But the name of the applicant church – “Independent Orthodox Church” – was sufficiently specific to distinguish it from the Bulgarian Orthodox Church, the only common point between the two being the words “Orthodox” and “Church” (see, mutatis mutandis, Genov, cited above, § 43). Indeed, the difference between the two names appears to have been acknowledged by the Sofia Court of Appeal (see paragraph 10 above). Moreover, there is nothing to suggest that the applicant church wished to identify itself with the Bulgarian Orthodox Church (see, mutatis mutandis, “Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy)”, cited above, § 111).

60.  The other – apparently chief – reason cited by the Bulgarian courts to refuse to register the applicant church was that there was no difference between its beliefs and those of the Bulgarian Orthodox Church. However, the assessment of whether or not religious beliefs are identical is not a matter for the State authorities, but for the religious communities themselves. Moreover, such an approach has the consequences of only permitting the existence of a single institution per religious denomination and of compelling believers to turn to that institution, which is hard to reconcile with the effective exercise of the rights guaranteed by Articles 9 and 11 of the Convention (see Genov, cited above, §§ 44-45, and Metodiev and Others, §§ 45-46, both cited above). According to the Court’s settled case-law under those provisions, in democratic societies the State does not need to ensure that religious communities remain under a unified leadership (see, among other authorities, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000-XI; Metropolitan Church of Bessarabia and Others, cited above, § 117; Supreme Holy Council of the Muslim Community v. Bulgaria, no. 39023/97, § 96, 16 December 2004; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others (merits), cited above, §§ 120 and 147; Genov, cited above, § 45; and Metodiev and Others, cited above, § 46). Even if the creation of the applicant church was – as appears to be implied by the Sofia Court of Appeal’s reference to paragraph 3 of the 2002 Act’s transitional and concluding provisions (see paragraph 10 above) – prompted by a division within the Bulgarian Orthodox Church, this fact does not alter that (see, mutatis mutandis, Genov, cited above, § 46). Nor does the fact that the Bulgarian Orthodox Church’s unity is considered of the utmost importance for its adherents and for Bulgarian society in general (see paragraph 18 above). Pluralism, which is the basic fabric of democracy, is incompatible with State action compelling a religious community to unite under a single leadership (see, mutatis mutandis, Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others (merits), cited above, §§ 143-49, and “Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy)”, cited above, §§ 115-20).

61.  The refusal to register the applicant church was therefore not “necessary in a democratic society”. It follows that there has been a breach of Article 9 of the Convention read in the light of Article 11.ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

62.  The applicants complained that the refusal to register the applicant church had placed it in a less favourable position than the Bulgarian Orthodox Church, which had been granted legal recognition by operation of law and did not need to register, and also vis-à-vis other Orthodox churches which had obtained registration. The applicants relied on Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”The parties’ submissions

63.  The applicants noted that, unlike all other religious communities, the Bulgarian Orthodox Church did not have to seek registration in order to have its legal personality recognised by the State. It was thus being treated more favourably than all others. The applicants had also been treated less favourably than other Orthodox churches which had obtained registration, without any reasonable justification.

64.  The Government submitted that there had been reasonable grounds to grant the Bulgarian Orthodox Church a special legal position, as it had played a special historical role and embodied the traditional religion in the country. Singling Eastern Orthodoxy out as the predominant religion in Bulgaria was consistent with European democratic constitutional tradition. The applicant church could not be compared with the Bulgarian Orthodox Church, and the refusal to register it, which had been based on the courts’ assessment of whether it met the relevant requirements, could not be seen as discriminatory. As for the religious communities which had succeeded in obtaining registration, they had been able to do so simply because, unlike the applicant church, they had satisfied the requirements in question.The Court’s assessment

65.  The refusal to register the applicant church has already been examined under Articles 9 and 11 of the Convention. It is not necessary to additionally do so with reference to Article 14 of the Convention (see Metropolitan Church of Bessarabia and Others, cited above, § 134; Church of Scientology Moscow v. Russia, no. 18147/02, § 101, 5 April 2007; and Metodiev and Others, cited above, § 51). The Court is therefore not required to rule on the admissibility or the merits of the complaint under that provision.APPLICATION OF ARTICLE 41 OF THE CONVENTION

66.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

67.  The applicant church claimed 30,000 euros (EUR) in respect of non‑pecuniary damage, and the second applicant claimed EUR 20,000 under the same head. They submitted that they had both suffered that damage owing to the alleged breaches of Articles 9 and 14 of the Convention.

68.  The Government submitted that the applicant church’s claim was exorbitant, and that the second applicant’s claim was unfounded, since any sum awarded to the applicant church would in any event be paid to the second applicant, who was acting on its behalf. In the Government’s view, a finding of a violation would amount to sufficient just satisfaction.

69.  The Court finds that the refusal to register the applicant church must have caused it non-pecuniary damage and feelings of distress, anxiety and injustice to the second applicant, who is the chairman of its board (see paragraph 4 above). Assessing the point on an equitable basis, the Court awards the applicants jointly EUR 4,500, plus any tax that may be chargeable.

70.  This sum is to be paid to the second applicant for the benefit of the whole religious community (see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria (just satisfaction), nos. 412/03 and 35677/04, § 39, 16 September 2010).Costs and expenses

71.  The applicants claimed EUR 8,190 allegedly incurred in fees for twenty hours of work by their two lawyers on the appeals against the refusal to register the applicant church, and for forty-three hours of work by the same lawyers on the proceedings before the Court, all at the rate of EUR 130 per hour. In support of their request, the applicants submitted a conditional fee agreement between the second applicant and the two lawyers concerning the proceedings before the Court and a time-sheet. They asked that any sums awarded by the Court under this head be made payable to their two lawyers. The applicants further claimed EUR 153.39 in respect of translation expenses. They asked that any sums awarded by the Court under this head be made directly payable to the law firm of their second lawyer, Ekimdzhiev and Partners.

72.  The Government submitted that the claim went beyond the indicative legal fees in Bulgaria and was out of kilter with the low standard of living in the country. They were also of the view that the part of the claim pertaining to the domestic proceedings should not be taken into account.

73.  According to the Court’s case-law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, Merabishvili v. Georgia [GC], no. 72508/13, § 370, 28 November 2017).

74.  Since the proceedings in which the applicants appealed against the Sofia City Court’s refusal to register the applicant church (see paragraphs 9 and 11 above) were intended to secure compliance with Article 9 of the Convention, the lawyers’ fees referable to those proceedings are in principle recoverable under Article 41 of the Convention. But there is no evidence that the applicants have actually incurred those fees: the conditional fee agreement between the second applicant and the two legal representatives only concerns the proceedings before the Court (see paragraph 71 above).

75.  As regards the fees referable to the proceedings before the Court, the conditional fee agreement is in principle proof that the fees to which the claim relates have been actually incurred by the applicants (see Merabishvili, cited above, § 371, and Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 89, 21 April 2016). The main point of contention between the parties was whether those fees were reasonable as to quantum. The Court is not bound by domestic scales or standards in that assessment (see, among other authorities, Ivanova and Cherkezov, cited above, § 90). It notes that the hourly rate charged for the work of the applicants’ representatives (EUR 130) is considerably higher than those accepted as reasonable in recent cases against Bulgaria of similar complexity (EUR 80) (see Karaahmed v. Bulgaria, no. 30587/13, §§ 117 and 119, 24 February 2015, and Ivanova and Cherkezov, cited above, §§ 86 and 90). It is therefore not reasonable as to quantum. By contrast, in the light of the level of complexity of the issues thrown up by the case and the length and content of the submissions made on behalf of the applicants, the number of hours claimed appears reasonable. In view of these considerations, the applicants are to be awarded EUR 3,440, plus any tax that may be chargeable to them. In line with their request, this sum is to be paid directly into a bank account designated by their representatives.

76.  Translation costs are also in principle recoverable under Article 41 of the Convention (see, for instance, The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 40, Series A no. 38, cited above, § 40; Olsson v. Sweden (no. 2), 27 November 1992, § 114, Series A no. 250; Blokhin v. Russia [GC], no. 47152/06, § 229 in fine, 23 March 2016; and Marinova and Others v. Bulgaria, nos. 33502/07 and 3 others, § 133, 12 July 2016). In the present case, there is no reason to doubt that these were actually and necessarily incurred. They also appear reasonable as to quantum. The sum expended for translation – EUR 153.39 – is therefore to be awarded in full. To this should be added any tax that may be chargeable to the applicants. As the applicants requested, this sum is to be paid directly into the bank account of the law firm of their second representative, Ekimdzhiev and Partners.Default interest

77.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Joins the Government’s objection of non-exhaustion of domestic remedies to the merits of the complaint under Article 9 read in the light of Article 11 of the Convention;Declares the complaint under Article 9 read in the light of Article 11 of the Convention admissible;Holds that there has been a violation of Article 9 read in the light of Article 11 of the Convention, and dismisses the Government’s objection of non-exhaustion of domestic remedies;Holds that there is no need to examine the admissibility or the merits of the complaint under Article 14 of the Convention;Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be paid to the second applicant;

(ii)  EUR 3,593.39 (three thousand five hundred ninety-three euros and thirty-nine cents), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank accounts specified in the judgment;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 20 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse FreiwirthTim Eicke
Deputy RegistrarPresident

[1] An application has been lodged with the Court in relation to the refusal to register the “Orthodox Christian Church” (Orthodox Christian Church and Others v. Bulgaria, no. 31387/17).

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