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FIFTH
SECTION
CASE OF HOLY SYNOD OF THE BULGARIAN
ORTHODOX CHURCH
(METROPOLITAN INOKENTIY)
AND OTHERS v. BULGARIA
(Applications
nos. 412/03 and 35677/04)
JUDGMENT
(just
satisfaction)
STRASBOURG
16
September 2010
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 Holy Synod of the Bulgarian Orthodox Church
(Metropolitan Inokentiy) and Others v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications 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”). Application
no. 412/03 was lodged by MetropolitanInokentiy on behalf of the
“alternative Synod” of the Bulgarian Orthodox Church, one
of its two rival leaderships (“the applicant organisation”).
Application no. 35677/04 was lodged by six individuals,
Christian Orthodox believers who used to be employed by the applicant
organisation.
- In a judgment delivered on 22 January 2009 (“the
principal judgment”), which became final on 5 June 2009, the
Court held that there had been a violation of all the applicants’
rights under Article 9 in that “the pertinent provisions of the
2002 Religious Denominations Act, which did not meet the Convention
standard of quality of the law, and their implementation through
sweeping measures forcing the community to unite under the leadership
favoured by the Government went beyond any legitimate aim and
interfered with the organisational autonomy of the Church and the
applicants’ rights under Article 9 of the Convention in a
manner which cannot be accepted as lawful and necessary in a
democratic society, despite the wide margin of appreciation left to
the national authorities”. It also found that no separate issue
arose in respect of the complaints of the applicant organisation
under Article 6 and Article 1 of Protocol No. 1 and that there had
been no violation of the same provisions in respect of the six
individual applicants. It further found no violation of Article 13 in
respect of any of the applicants (see Holy
Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and
Others v. Bulgaria, nos. 412/03
and 35677/04, §§ 159, 160, 169, 172, 174 and 179 and
points 1-4 of the operative provisions, 22 January 2009).
- In
their submissions under Article 41 of the Convention, the applicants
sought, inter alia, an award for pecuniary and non-pecuniary
damage and costs.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards pecuniary and non-pecuniary damage,
the Court reserved it and invited the Government and the applicants
to submit, within three months, their written observations on that
issue and, in particular, to notify the Court of any agreement they
might reach. However, it awarded the applicants 8,000 euros (EUR) in
respect of costs and expenses (ibid., §§ 182, 188 and 189
and points 5-7 of the operative provisions).
- The
applicants and the Government each filed observations.
THE LAW
- 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.”
A. The parties’ submissions
1. The applicants
- The
applicants submitted that the Court should order a return to the
status quo ante as it existed prior to the events which
violated Article 9 of the Convention. In particular, they formulated
the following claims:
(i) The
restitution to the applicant organisation of 107 properties which
were taken away from it as a result of the State action violating
Article 9 of the Convention, and, failing such restitution, the
payment of adequate pecuniary compensation in the amount of EUR
678,054,000;
(ii) The
payment of EUR 194,708 to the six individual applicants in
application no. 35677/04 for pecuniary and non-pecuniary damage
resulting from the fact that they lost their employment as a
consequence of the State interference in the internal affairs of the
Church;
(iii) The
restitution to those concerned of all personal and legal documents,
such as employment contracts and books and property deeds, retained
as a result of the 2004 forced evictions from Church premises;
(iv) The
payment of EUR 4,262,400 to the applicant organisation as
compensation for the pecuniary and non-pecuniary damage suffered by
121 persons (64 clergy members and 57 auxiliary personnel) who lost
their positions with the Church allegedly as a consequence of the
State interference in its internal affairs, these persons being
applicants in other applications pending before the Court (Pantusheva
and Others, nos. 40047/04 et al. and Asenova and Others,
no. 25729/09);
(v) The
payment of EUR 1,000,000 for non-pecuniary damage in respect of the
suffering caused to over 720 clergy members, staff and believers
belonging to the applicant organisation and the prejudice caused to
the applicant organisation itself. The 720 or more persons in
question are applicants in the above-mentioned cases of Pantusheva
and Others and Asenova and Others, pending before the
Court; and
(vi) The
repeal of sections 10, 15(2), 18 and 36 of the Religious
Denominations Act and of paragraphs 2 and 3 of its transitional
provisions.
- The
applicants submitted the following arguments in support of their
claims.
- They
stressed that the violation found concerned unlawful and unjustified
interference in the internal organisation of the Bulgarian Orthodox
Church, including unlawful and arbitrary action by prosecutors and
the police to remove the applicants from temples and other church
property and considered, therefore, that nothing short of undoing the
result of those actions would be compatible with observance of the
law. Thus, the applicant organisation’s control over the
temples and other property should be restored and, once this was
done, the Holy Synod presided over by Patriarch Maxim would be free
to claim the disputed properties before the domestic courts which –
as the Court had noted in the principal judgment were the only
proper authorities to decide on private property disputes.
- The
applicants further stated that failing restitution of the temples and
other premises, the Court should award compensation corresponding to
their full value.
- The
applicants submitted a list of Church premises from which persons
belonging to the applicant organisation had been forcibly removed in
July 2004 and opinions of real estate experts on the value of some of
the properties. The applicants acknowledged that disputes might arise
as regards ownership rights and the value of the properties and
suggested that, as a last resort, the Court might consider directing
that a special commission be established to deal with these issues.
- As
to the Government’s submission that in 1992 and for several
years thereafter the applicants had occupied unlawfully some of the
buildings at issue, the applicants submitted that no such findings
had been made by the domestic authorities and that this question was
in any event without relevance to the issue currently before the
Court, namely reparation for the serious violations of the
applicants’ rights committed by the authorities in 2002, 2004
and the years thereafter.
- In
respect of their claims concerning the alleged loss of employment and
livelihood, the applicants submitted a statement by one of the
applicants, the former accountant of the applicant organisation, and
documents concerning the income and employment status of some of the
clergy and Church staff. The applicants emphasised that they were
unable to present further documentation as the applicant
organisation’s files had never been restored following the
police action of 21 July 2004. The authorities should therefore be
ordered to secure the return of the confiscated documents.
2. The respondent Government
- The
Government argued that the finding of a violation of Article 9 was
sufficient just satisfaction for the applicants.
- In
the event of the Court deciding to award compensation, the Government
stated that it should be limited to the direct and immediate damage
resulting from the violation of the Convention found in the present
case. As the Court had only found a breach of Article 9 and had
rejected the applicants’ complaints under Article 6 and Article
1 of Protocol No. 1, the applicants were not entitled to claim
restitution of properties or compensation for them.
- The
Government further explained that the buildings claimed by the
applicants belonged to the Bulgarian Orthodox Church and the
Bulgarian people and that the authorities had no power to order their
restitution. Some of them had been built centuries ago. Moreover, the
applicants, who had occupied these buildings unlawfully in 1992 and
the years thereafter, were not entitled to profit from their own
wrongdoing.
- As
regards the amount claimed in respect of the value of the temples,
the Government stated that the expert assessments submitted by the
applicants were arbitrary and deceitful, as a number of the buildings
in question were historic landmarks which enjoyed special legal
protection. Such buildings did not have a “market” value.
- The
Government’s position on the alleged loss of income was that it
was unrelated to the violation of the Convention found in the present
case and that in any event the persons concerned were free to claim
unpaid salaries or other compensation in the domestic courts. The
Government also submitted copies of documents demonstrating that a
number of the persons concerned had realised other income after the
events complained of and could not, therefore, maintain that as a
result of the events of July 2004 they had suffered damage
corresponding to their salaries. Finally, the lists of persons
concerned were inaccurate, unclear and not supported by evidence.
- With
regard to non-pecuniary damage, the Government asked the Court to
take into consideration the fact that Metropolitan Inokentiy had
participated in the events at the beginning of the 1990s and had
therefore contributed by his behaviour to “the events that had
followed”. The Government also averred that the claims were
excessive and unclear in so far as they concerned unspecified persons
who were not applicants in the present case. In the Government’s
view, EUR 3,000 for Metropolitan Inokentiy and EUR 1,000 for each of
the six individual applicants would be sufficient just satisfaction.
- As
regards general measures in execution of the Court’s judgment
on the merits, the Government expressed the view that the applicants
should seek their reintegration into the Bulgarian Orthodox Church
presided over by Patriarch Maxim, the canonical leader. Some of the
applicants’ former adherents had already done so. In so far as
the applicants sought the reinstatement of clergy members in their
functions in specific temples, this was an issue to be decided by the
Church in accordance with canon. The Government, being neutral in
religious matters, could not interfere with such internal Church
matters, although they had expressed willingness to help through
mediation.
- As
to the applicants’ request for legislative amendments, the
Government submitted that Parliament was independent in its
assessment of whether legislation must be amended. One of the
relevant provisions, section 118 of the Judiciary Act 1994, which had
served as the basis for the prosecutors’ orders in the
applicants’ case, had been repealed in 2007. As to the
Religious Denominations Act 2002, it reflected the “national
view” that its provisions did not contravene Article 9 of the
Convention and were based on millennial traditions of the Bulgarian
Orthodox Church. In particular, it was not true that the Act left it
to State organs to determine who the canonical leader of the Church
was.
B. The Court’s assessment
1. Scope of the case
- As
it did in the principal judgment, the Court finds it necessary to
reiterate that the scope of the present case is limited to the
complaints submitted by the applicant organisation, the Holy Synod of
the Bulgarian Orthodox Church presided over by Metropolitan
Inokentiy, and the six individual applicants (see paragraph 1 above
and paragraphs 82 and 83 of the principal judgment).
2. Claim for a return to the status
quo ante
- A
judgment in which the Court finds a breach of the Convention imposes
on the respondent State a legal obligation to put an end to the
violation and make reparation for its consequences in such a way as
to restore as far as possible the situation existing before the
breach. If the internal law allows only partial reparation to be
made, Article 41 of the Convention gives the Court the power to award
compensation to the party injured by the act or omission that has led
to the finding of a violation of the Convention. The Court enjoys a
certain discretion in the exercise of that power, as the adjective
“just” and the phrase “if necessary” attest.
Among the matters which the Court takes into account when assessing
compensation are pecuniary damage, that is the loss actually suffered
as a direct result of the alleged violation, and non-pecuniary
damage, that is reparation for the anxiety, inconvenience and
uncertainty caused by the violation, and other non-pecuniary loss. In
addition, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment (see Comingersoll S.A. v. Portugal [GC],
no. 35382/97, § 29, ECHR 2000 IV).
- The
Court observes that as a result of the violation of Article 9 in the
present case the applicant organisation was prevented from continuing
to manage the affairs of part of the Christian Orthodox community in
Bulgaria and thus lost control over temples and other buildings (see
paragraphs 102, 107-110, 112, 139, 140, 156 and 159 of the principal
judgment).
- The
applicants considered that, therefore, undoing the consequences of
the violation of the Convention required the restitution of the
buildings concerned and, in general, a return to the status quo
ante.
- As
the Court has already noted, however, there was no dispossession of
the legal person of the Bulgarian Orthodox Church by the State. The
violation of the Convention found in the present case concerned State
interference in the internal organisation of the Church and its
leadership by way of legislation and judicial and prosecutors’
decisions (see paragraphs 159 and 173 of the principal
judgment).
- Furthermore,
as the Court noted in the principal judgment, at all the relevant
times the applicant organisation and the leadership headed by
Patriarch Maxim were de facto two rival structures, each of
them considering itself to be the legitimate personification of the
Bulgarian Orthodox Church. Neither the applicant organisation nor the
supporters of Patriarch Maxim have ever sought legal personality or a
separate existence from the Church. Each of the two rival groups
regarded the Bulgarian Orthodox Church as one indivisible whole in
law and in canon and sought recognition as its sole legitimate
leadership (see paragraph 170 of the principal judgment). The
applicant organisation, the leadership which was ousted, cannot claim
a separate proprietary interest in buildings or other assets which
were the property of parishes that adhered to it or the Church as a
whole.
- In
addition, it is noteworthy that the situation that obtained prior to
the State interference in the affairs of the Church was not one
flowing from clear rules but a de facto state of affairs which
evolved in contradictory directions between 1992 and 2002 and, most
importantly, was ultimately dependent on decisions to be taken by the
Bulgarian Orthodox Church (see paragraphs 14-41 of the principal
judgment).
- In
these circumstances the principle of restitutio in integrum
cannot be seen as requiring the respondent State to engage in yet
further interference in the internal organisation of the Church in
order to restore the applicant organisation’s control over
assets, reinstate clergy members in their previous positions or
otherwise force a return to the status quo ante. Such actions
would encroach on the internal autonomy of the Bulgarian Orthodox
Church.
- In
the Court’s view, therefore, just satisfaction in the present
case must mainly take the form of compensation to be paid by the
State.
- In
so far as the applicants also claim restitution of personal
documents, the Court notes that they have not shown that these were
retained by the State authorities.
3. Damage
(a) The applicant organisation
(i) Pecuniary damage
- For
the reasons set out in paragraphs 25-28 above, the Court considers
that the alternative leadership of the Church (the applicant
organisation) did not have a separate proprietary interest in
buildings or other assets which were the property of parishes that
adhered to it or the Church as a whole. The State action which
violated Article 9 of the Convention did not encroach on property
rights but interfered with the free choice of the Church’s
leadership (see paragraphs 159, 170 and 173 of the principal
judgment).
- The
claims of the applicant organisation for compensation in respect of
pecuniary damage must therefore be dismissed.
(ii) Non-pecuniary damage
- Noting
that the unjustified and unlawful State action against the
“alternative Synod” resulted in its practical elimination
(see paragraph 156 of the principal judgment) and having regard to
the fact that it is not possible to restore the situation that
obtained prior to the violation of the Convention found in the
present case (see paragraphs 24-29 above), the Court considers that
the applicant organisation, as the leadership of all those who were
affected, must be paid compensation in respect of non-pecuniary
damage.
- The
absence of legal personality of the applicant organisation is not an
obstacle in this respect (see, in particular, Supreme Holy
Council of the Muslim Community v. Bulgaria, no. 39023/97, §
116, 16 December 2004; Metropolitan Church of Bessarabia and
Others v. Moldova, no. 45701/99, § 146, ECHR 2001 XII;
and Biserica Adevărat Ortodoxă din Moldova and Others v.
Moldova, no. 952/03, § 61, 27 February 2007).
- In
determining the amount the Court has had regard to the awards made in
the above-mentioned judgments, which disclose certain similarities
with the present case. It considers, however, that a significantly
higher award is justified in this case having regard to the nature
and scale of the violation of the applicant organisation’s
rights under Article 9. In particular, the State interference was the
result of legislative provisions adopted with the aim of forcing the
religious community to “unite” and those provisions were
enforced through arbitrary judicial decisions and the massive
unlawful police operation of 21 July 2004, when the Chief Public
Prosecutor sent the police to “resolve” an intra-communal
dispute by evicting hundreds of religious ministers and believers
from more than fifty churches and other buildings throughout the
country (see paragraphs 57-60, 107-109 and 140 of the principal
judgment).
- In
determining the award, the Court also has regard to the fact that the
applicant organisation’s claims are made on behalf of the
religious community it leads (see paragraph 7 above). An
ecclesiastical or religious body may, as such, exercise on behalf of
its adherents the rights guaranteed by Article 9 of the Convention
(see Cha’are Shalom Ve Tsedek v. France [GC], no.
27417/95, § 72, ECHR 2000-VII).
- Lastly,
the Court cannot accept the Government’s argument that the
applicants had their share of responsibility in the impugned events
and should not, therefore, be awarded just satisfaction. In so far as
this argument is based on the Government’s view that the
alternative Synod was not canonical, the Court refers to its
conclusions in the principal judgment that in a democratic society
canonical legitimacy, which is solely for the religious community to
determine, cannot justify the sweeping measures taken against the
applicants by unlawful means against a background of divisions and an
internal leadership dispute within the Church. Furthermore, in so far
as the Government refer to the unlawful decisions of 1992 which
proclaimed the removal of Patriarch Maxim, these were State acts (see
paragraphs 17, 128, 137, 142, 147-149 and 155 of the principal
judgment).
- Deciding
on an equitable basis, the Court awards the applicant organisation
EUR 50,000 in respect of non-pecuniary damage, to be paid to
Metropolitan Inokentiy, its leader at the relevant time, for the
benefit of the religious community.
(b) The six individual applicants
(i) Pecuniary damage
- The
six individual applicants were employees of the Bulgarian Orthodox
Church. They were not religious ministers (see paragraph 3 of the
principal judgment). With regard to their claim for compensation for
loss of salary, the Court observes that none of these applicants has
sought to enforce their rights under the Labour Code through the
courts. The applicants’ claim being that since 21 July 2004
they have not been allowed to continue working and have not been
paid, there is nothing in the file to indicate that they could not
bring an action under the Labour Code.
- In
so far as the six individual applicants may be understood to be
claiming that as believers they felt unable to continue to perform
their functions, and thus lost income, as a result of the fact that
the State forcibly imposed on them religious leaders whom they did
not accept as legitimate, the Court considers that the causal link
between the violation of Article 9 found in this case and the loss of
income claimed is merely indirect. The violation found concerned the
applicants’ freedom of religion and their right to a religious
life free from unjustified State interference. It did not concern
their professional activities as employees of the Bulgarian Orthodox
Church.
- The
claims of the individual applicants for pecuniary damage must
therefore be dismissed (see, for a similar approach, Miroļubovs
and Others v. Latvia, no. 798/05, §
118, 15 September 2009).
(ii) Non-pecuniary damage
- The
Court observes that in previous cases concerning forced change of
leadership of a religious community it has awarded sums in respect of
non-pecuniary damage only to the ousted leaders or members of
governing bodies (see Miroļubovs and
Others v. Latvia, cited above, §§
7 and 123; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, §§
9 and 121, ECHR 2000 XI; and, mutatis mutandis,
Serif v. Greece, no. 38178/97, §§ 11 and 61, ECHR
1999 IX).
- Moreover,
in the case of Hasan and Chaush, cited above, the Court
rejected the claim for non-pecuniary damage submitted by the second
applicant, a believer and employee of the religious organisation who
was not a religious leader, taking the view that the finding of a
violation of the Convention constituted sufficient just satisfaction
for him (ibid., § 121).
- The
same conclusion is valid in respect of the six individual applicants.
As the Court has previously stated in the context of Article 13,
individual believers’ interests in respect of claims concerning
State interference with the organisation of a religious community can
be safeguarded by their turning to their leaders and supporting any
legal action which the latter may initiate (see Hasan and Chaush,
cited above, § 98). Similarly, in the Court’s view, since
the leadership directly affected by the violation of Article 9 in the
present case claimed compensation for the non-pecuniary damage
suffered by the religious community it leads, there is no room for
separate awards to the six individual applicants.
- The
remaining claims for just satisfaction submitted by the six
individual applicants must therefore be dismissed.
4. Other measures
- The
Court reiterates that, in the context of the execution of judgments
in accordance with Article 46 of the Convention, a judgment in which
the Court finds a violation of the Convention or its Protocols
imposes on the respondent State a legal obligation not just to pay
those concerned the sums awarded by way of just satisfaction, but
also to choose, subject to supervision by the Committee of Ministers,
the general and/or, if appropriate, individual measures to be adopted
in its domestic legal order. Furthermore, it follows from the
Convention, and from Article 1 in particular, that in ratifying the
Convention the Contracting States undertake to ensure that their
domestic legislation is compatible with it (see Maestri v. Italy
[GC], no. 39748/98, § 47, ECHR 2004 I).
- Contracting
States’ duty in international law to comply with the
requirements of the Convention may require action to be taken by any
State authority, including the legislature (see, as a recent example,
Viaşu v. Romania, no. 75951/01,
9 December 2008).
- In
the principal judgment, the Court made the following relevant
findings:
“In the Court’s view, the 2002 Act did not
meet the Convention standards of quality of the law, in so far as its
provisions disregarded the fact that the Bulgarian Orthodox Church
was deeply divided and left open to arbitrary interpretation the
issue of legal representation of the Church ... Moreover, although
the ex lege recognition of the Church cannot be seen as
incompatible with Article 9 in principle, its introduction in a time
of deep division was tantamount to forcing the believers to accept a
single leadership against their will. Those provisions of the 2002
Act – still in force continue to generate legal
uncertainty, as it can be seen from the contradictory judicial
decisions that have been adopted and the events that have unfolded
since the Act’s entry into force ...
In addition, as the Court found above, the massive
evictions carried out in July 2004 by prosecutors’ orders
cannot be considered lawful, having regard to the provisions of the
Bulgarian Constitution on freedom of religion, the lack of clear
basis to identify the ‘valid’ leadership of the Church
and the fact that they purported to ‘resolve’ private
disputes, including about property, which fell under the jurisdiction
of the courts ...”
- In
view of these findings, in order to assist the respondent Government
in the execution of their duty under Article 46 of the Convention,
the Court expresses the view that the general measures in execution
of its judgments in this case should include such amendment to the
Religious Denominations Act 2002 as to ensure that leadership
conflicts in religious communities are left to be resolved by the
religious community concerned and that disputes about the civil
consequences of such conflicts are decided by the courts.
5. Costs and expenses
- The
applicants did not claim any costs incurred after the principal
judgment.
6. Default interest
- The
Court considers it appropriate that the default interest 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
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant organisation, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 50,000
(fifty thousand euros) in respect of non-pecuniary damage, plus any
tax that may be chargeable, to be converted into Bulgarian levs at
the rate applicable at the date of settlement, this amount being
payable into the bank account of the applicant organisation’s
representative, Metropolitan Inokentiy (Mr Ivan Stoyanov Petrov);
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 16 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the separate
opinion of Judge Kalaydjieva is annexed to this judgment.
P.L.
C.W.
PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA
I
fully subscribe to the conclusions reached in the principal judgment
in the present case, which reflect the long history and regrettable
history of state interference with the leadership of the Bulgarian
Orthodox Church. The Court’s conclusions in this case come
hardly as a surprise after the judgments of the Court in the cases of
Hasan and Chaush v. Bulgaria [GC] (no. 30985/96, ECHR 2000 XI)
and of Supreme Holy Council of the Muslim Community v. Bulgaria
(no. 39023/97, 16 December 2004), and Resolution 1390 (2004) of
PACE in regard of the 2002 Denominations Act. In my view the absence
of legal certainty and the events following the adoption the 2002
Denomination Act demonstrate a continuing potential risk that the
“recognised”, rival or future candidate central leaders
will remain equally vulnerable to the imposed preferences of each
future government to step in power.
Having
noted that the parties in the two present applications no. 412/03 and
35677/04, relied among other things, on arguments concerning the
subject matter of other applications (see § 82 of the principal
judgment), the Court examined all relevant information and concluded
that “there has been a violation of Article 9 of the
Convention, interpreted in the light of Article 11 (see §
160). In the operative part it held that “there has been a
violation of Article 9 in respect of all applicants”, that is,
the “applicant organisation” – the Holy Synod of
the Bulgarian Orthodox Church (Metropolitan Inokentiy) in the first
of the joined applications no. 412/03 - and the six (remaining after
the withdrawal of Mr. Balachev’s complaints) individual
applicants in application no. 35677/04 who complained among other
things, of their forceful eviction from the St. Paraskeva Church in
Sofia in 2004.
In
its principal judgment the Court did not specify its findings as to
the victim status of the different applicants and/or the manner and
the extent to which each of them was affected by any aspect of the
generally described interference or how far they sustained distress
and suffering as a result. These circumstances are the major elements
scrutinized by the Court in the determination of the appropriate
compensation in each individual case. I agree with the majority’s
views and conclusions in rejecting the applicants’ claims for
pecuniary damages including the restoration of a high number of
temples, monasteries and other estates or their “market price”.
I also fully share the view that the exceptional scale and the
gravity of the sweeping measures of forced police evictions in the
present case call for the determination of a higher amount to
compensate the suffering sustained.
My
misgivings concern some of the elements taken into consideration in
the determination of the applicant’s suffering and their
appropriate compensation. As correctly indicated “in previous
similar cases concerning forced change of leadership of a religious
community, [the Court] has awarded sums in respect of [resulting]
non-pecuniary damage only to the ousted leaders or members of
governing bodies”(see § 43 of the present judgment with
further reference). Indeed, the Court defined such individuals as
directly affected by a violation of “Article 9 interpreted in
the light of Article 11 of the Convention” and has so far not
interpreted Article 9 of the Convention to involve or guarantee an
individual right to a preferred spiritual leader or a “right
to a free choice of Church leadership” (see § 32).
In my view - even if the rights of individual believers or followers
of a certain spiritual leader under Article 9 may be considered
affected by the authorities’ interference with their
leadership, the level of their suffering may hardly be compared to
that of the leaders concerned. I regret the fact that the majority
failed to express their views on these aspects of the situation of
the six individual applicants in Appl. no. 35677/04 and instead
follow a logic which placed the compensation allegedly claimed by the
first applicant organisation among the elements to determine the
appropriate award for the different applicants.
It
should be noted in the interest of fairness that in reality neither
the “applicant organisation”, nor Metropolitan Inokentiy
claimed compensation on behalf of other individual applicants in the
present two or the 40 pending applications before the Court. “In
particular [the applicants, or more precisely – their
common legal represntative], formulated the following claims (see
§ 7 of the present judgment):... (v) EUR 1,000,000 for
non pecuniary damages in respect of the suffering caused to over
720 clergy members, staff and believers belonging to the
applicant organization and the prejudice caused to the applicant
organization itself. The 720 or more persons in question are
applicants in the ... mentioned cases of Pantusheva and Others and
Asenova and Others, pending before the Court”. The first
applicant also never claimed that it represented these individuals
for the purposes of the Convention proceedings or within the meaning
of any national or canonical rules. In my view the fact the
applicants’ claims were formulated in such a global and
imprecise manner may not be interpreted as a request by the first
applicant on behalf of “all those who are affected”,
or leading necessarily to the finding “that the applicant’s
organisation’s claims are made on behalf of the religious
community it leads” (see § 37 with reference to the
above quoted § 7). Such a finding may also easily, but unfairly,
leave the incorrect impression that the first applicant’s
representative pursued personal financial interests at the expense of
other individuals’ suffering. Even if indeed made (and it was
not), an imprecisely formulated claim may neither bind the Court, nor
substitute its reasoning in individualizing the suffering and the
appropriate compensation of the applicants under Article 41 of the
Convention.
While
noting correctly the principle that “in previous cases [the
Court] has awarded non-pecuniary damage only to ousted leaders or
members of governing bodies” (see §§ 43 and 44), the
majority considered that “the applicant organisation must be
paid compensation in respect of non-pecuniary damage, as the
leadership of all those who were affected” (§ 34) and
that further on “there is no room for separate awards to the
six applicants, since the leadership directly affected by the
violation of Article 9 in the present case claimed compensation for
the non-pecuniary damage suffered by the religious community it
leads”.
Unlike
in the case of “Hasan and Chaush”, where the
Convention bodies discussed at length the two applicants’
victim status (Report of the Commission adopted on 26 October 1999),
the manner in which they were affected by the impugned interference,
their position as “active members of the religious
community” and persons who “actively participated
in religious life” and “continued to work facing
enormous difficulties” as well as the distress suffered and
the individual non-pecuniary damage sustained (see §§ 63,
119 and 121 of this judgment as well as the joint partly dissenting
opinion of judges Tulkens, Casadevall, Bonello, Straznicka, Greve and
Maruste), the majority in the present case failed to provide detailed
views on the six applicants’ situation and redirected its
consideration to the first applicant, relying on some similarity with
the Court’s view on ecclesiastical bodies’ locus
standi (§ 37). In my view that “an ecclesiastic
body or religious body may, as such, exercise on behalf of its
adherents the rights guaranteed by Article 9 of the Convention”
– as found in Cha’are Shalom Ve Tsedek v. France
[GC] (no. 27417/95, ECHR 2000 VII) - does not necessarily mean
that the first applicant organisation did or could have successfully
exercised the other individual applicant’s rights under Article
41. In my view the question in the present case was not whether the
applicant organisation may claim the rights of its followers under
Article 9, but the extent to which the declared violation of this
provision affected each of the applicants or resulted in any distress
or suffering, which calls for pecuniary compensation.
The
observed collective determination of this compensation resembles a
novel “class action” approach” and appears to
unjustifiably “personify” the claimed individual
sufferings by awarding a global compensation payable to “the
leadership of all those affected”. The majority’s finding
that “since the directly affected leadership claimed
compensation for the religious community, there is no room for
separate awards to individual applicants” (see § 45) is
apparently equally applicable to “all those affected” and
seems to summarily preempt the consideration of their complaints.
In my
view the intended Solomonic solution of the original dispute between
individuals and the authorities in fact transforms it into a dispute
among the complaining community and redirects its resolution to its
leader.
This
impression is strongly supported by the fact that the majority
awarded this global amount “for the benefit of the religious
community” (see § 39) – a view that confronts the
applicant Metropolitan Inokentiy with a bitter dilemma: whether to
accept the unsolicited authorization to complete the exercise of the
Court’s duty to determine an appropriate part of the obtained
global award for each of “all those affected“, or –
failing to do so in the absence of clear judicial guidelines –
to use the award in providing a nation-wide mess of pottage for the
entire “religious community” without distinguishing
between his spiritual followers and opponents. In the circumstances
of the present case it is questionable whether this generously
proposed global solution does justice to the individual applicants,
or in fact risks to further deepen the division amongst believers
along new lines.
