FI FTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62193/00 by Boris Petkov BORISOV and Others against Bulgaria

The European Court of Human Rights (Fi fth Section), sitting on 26 February 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Volodymyr Butkevych , Rait Maruste , Mark Villiger , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 25 July 2000 ,

Having regard to the partial decision of 8 September 2005,

Having deliberated, decides as follows:

THE FACTS

The applicants are five individuals and the Roma Church in Bulgaria (“the applicant organisation”), an organisation founded by them.

The five individual applicants, Mr Boris Petkov Borisov , Mr Georgi Alexandrov Kirilov , Ms Iskra Borisova Mladenova , Mr Tassi Tsenov Tassev and Mr Petko Borisov Traikov are Bulgarian nationals who lived at the relevant time in the city of Lom .

The applicant organisation was founded in 1999.

All applicants wer e represented before the Court by Ms R. Nehrizova and Ms N. Stefanova , lawyer s practising in Sofia . The respondent Government were represented by their Agent Ms M. Karadjova , of the Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

1. Alleged disruption of religious meetings

One of the applicants, Mr Borisov used to be a religious minister in the Baptist Church in Lom until August 1996, when he was dismissed.

Thereafter, Mr Borisov started organising religious meetings in a house in Lom where the individual applicants and other persons prayed and discussed religious matters.

It appears that the house in question belonged to the Baptist Church in Lom . It was built by their followers who had donated money and worked on the site.

Mr Borisov , however, claimed that the house belonged to him.

According to the applicants, in 1997 and 1998 police officers allegedly visited the prayer house at least three times and told the participants that religious activities without registration as a religious community were not allowed. Each time the participants were allegedly ordered to leave.

The applicants never submitted complaints in respect of those alleged events.

On 27 April 1998 Mr Borisov was allegedly taken by police officers from his brother ’ s home and detained “for a week”. He was allegedly questioned about his religious beliefs and activities and warned against conducting religious services without registration.

It appears that on an unspecified date the Baptist Church in Lom took possession of the disputed house. According to the applicants, this happened with the assistance of the police.

In 2004, Mr Borisov wrote a complaint to the prosecuting authorities about a number of different events, including property disputes and his application for welfare payments, and also stated that in 1998 he had been detained unlawfully. By decisions of 10 May and 12 July 2004 the relevant prosecutors refused to open criminal proceedings noting that some of his complaints concerned civil law disputes and that after verification his allegation that he had been detained in 1998 had proved groundless.

2. Attempts to register the applicant association

At a meeting on 3 May 1999 the individual applicants and 30 other individuals, residents of Lom , founded the applicant organisation, the Roma Church in Bulgaria . They approved its statute and elected its governing council. Mr Borisov was elected its President.

In accordance with the applicant organisation ’ s Statute, it would engage in Bible studies, prayers and charity.

On 3 June 1999 the applicant organisation applied to the Council of Ministers for registration as a religious denomination under the Religious Denominations Act.

As no reply was received, on 13 July 1999 an appeal was filed with the Supreme Administrative Court against the tacit refusal of the Council of Ministers.

On 21 September 1999 the Council of Ministers replied to the application for registration by letter. It stated, inter alia , that the applicant organisation ’ s submissions did not provide sufficient information about the religion it practiced and thus did not permit a conclusion that the applicant organisation had the characteristic features of a distinct religious denomination. The letter, which was apparently made on a model form used in similar circumstances, stated that the applicant organisation should rectify the deficiencies in its application.

In the proceedings before the Supreme Administrative Court the parties made written submissions. The Council of Ministers stated, inter alia , that the applicant organisation had been invited to submit additional information and explain the features that characterised it as a distinct religious denomination. The applicant organisation had not replied.

By decision of 3 December 1999 the Supreme Administrative Court rejected the appeal as inadmissible. It found that the registration proceedings were pending before the Council of Ministers which had invited the applicant organisation to rectify its application. The applicant organisation had not replied. Therefore, there had not been a tacit refusal and the appeal was premature.

Upon the applicant organisation ’ s appeal, on 26 January 2000 a five-member chamber of the Supreme Administrative Court upheld the decision of 3 December 1999 .

The applicant organisation never replied to the Council of Minister ’ s letter of 21 September 1999.

3. Other relevant facts

In 2001 Mr Borisov was officially registered as the local leader of another religious organisation, the Evangelic Pentecostal Church in Kriva Bara, the region of Montana .

B. Relevant domestic law and practice

1. Lawfulness of religious activities without registration

There is no provision of Bulgarian law requiring a religious group organising public religious activities to register as a legal person. Nonetheless, at the relevant time, the police often disrupted religious meetings of unregistered groups. In administrative practice, the view according to which religious activities were not allowed without registration was widespread (see the facts in Khristiansko sdruzhenie Svideteli na J ehova v. Bulgaria , no. 28626/98, Commission ’ s decision of 3 July 1997 and Lotter and Lotter v. Bulgaria ( dec .), no. 39015/97, 6 February 2003 and Al- Nashif v. Bulgaria , no. 50963/99, § § 29 and 59-61, 20 June 2002 ).

In its judgment no. 3270 of 14 May 2001 in case no. 2174/2000 , the Supreme Administrative Court observed that the relevant law did not impose an obligation for a religious group to register and that the view that registration was a necessary pre-condition for religious gatherings was contra legem .

The Religious Denominations Act 2003, which superseded earlier legislation, does not require registration as a pre-condition for public religious gatherings.

2. Registration of religious groups as legal persons

At the relevant time and until 1 January 2003, a religious group wishing to obtain registration as a legal person could register at the local regional court as an association under section 133a of the Persons and Family Act, with the authorisation of the Council of Ministers. At the relevant time several dozen religious groups belonging to various religions were registered as associations.

Separately, religious denominations were subject to registration in accordance with the Religious Denominations Act 1949, as in force at the relevant time and until 1 January 2003 . The Bulgarian Orthodox Church, the Muslim community, the Jewish community, the Catholic Church, several protestant churches and other religions were registered as religious denominations in Bulgaria .

On 1 January 2003 the Religious Denominations Act 2003 entered into force. It introduced changes in the registration procedure for religious denominations. It also repealed section 133a of the Persons and Family Act.

3. Remedies in cases of unlawful detention, deprivation of possessions and unlawful police action

In accordance with section 70 § 3 of the Ministry of the Interior Act 1997 and Article 152a of the Code of Criminal Procedure as in force at the relevant time, every detained person has the right to appeal to a court against his detention.

A person claiming that his property has been unlawfully taken away from him may bring a rei vindicatio action or an action for possession under the Property Act.

It is open to alleged victims of unlawful police actions to submit complaints to the prosecution authorities and to bring civil proceedings under the State Responsibility for Damage Act 1988.

COMPLAINTS

1. The applicants complained under Article s 9, 11 and 13 of the Convention that their religious gatherings in 1997 and 1998 were disrupted by the police and de facto prohibited owing to an administrative practice considering unlawful all religious gatherings of unregistered groups. In support of these allegations the applicants submitted written statements signed by three persons who had allegedly witnessed the police interventions.

2. The applicants also complained, relying on Article s 9, 11 and 13 of the Convention , that their attempt, in 1999 and 2000, to register the Roma Church in Bulgaria as a religious denomination was unsuccessful and that as a result their religious group was suppressed by the authorities.

THE LAW

1. Complaints concerning the alleged disruption of the applicants ’ religious gatherings

The applicants complained under Article s 9, 11 and 13 of the Convention that their religious gatherings in 1997 and 1998 were disrupted by the police and de facto prohibited.

The Government stated, inter alia , that the applicants had failed to exhaust domestic remedies as they had never complained before a domestic authority about the alleged interference with their religious freedoms. The Government also stated that the alleged facts were unproven as the only evidence submitted by the applicants – written statements by three persons – was unreliable.

The applicants replied that their version of the facts was fully credible seen against the background of the administrative practice, prevalent at the relevant time, which treated as banned all religious activities of unregistered groups.

The Court observes that the applicants never complained at the domestic level about the disruption of their religious gatherings in 1997 and 1998. The complaint submitted by Mr Borisov in 2004, six or more years after the relevant events, concerned various other unrelated matters. With regard to Mr Borisov ’ s alleged unlawful arrest and detention in 1998, the Court notes that he never appealed against it before a court as he could have (see above, Relevant domestic law and practice).

In so far as the applicants may be understood as arguing that they had no effective remedies because of the administrative practice which treated as unlawful the activities of unregistered religious groups, the Court notes that in cases concerning other religious groups the Bulgarian courts recognised that registration was not required for holding religious meetings. It has not been established, therefore, that the available domestic remedies – which apparently included complaints against the police and civil actions for damages – were devoid of any chance of success and therefore ineffective.

As the applicants raised the above complaints for the first time before the Court and never addressed them to a domestic authority, the Court considers that they failed to exhaust all domestic remedies as required by Article 35 § 1 of the Convention.

At all events, if it is assumed that the applicants did not have effective domestic remedies, the Court observes that contrary to Article 35 § 1 of the Convention, they submitted their complaints more than six months after the relevant events, which occurred in 1997 and 1998.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

2. Complaints concerning the registration of the applicant organisation

The applicants complained, relying on Articles 9, 11 and 13 of the Convention, that the applicant organisation was refused registration and thus suppressed by the authorities.

The Government stated that the application for registration of the applicant organisation had never been refused. In fact, the applicants had not complied with the directions requiring them to amend and clarify their registration request. The fact that in 2001 the first applicant, Mr Borisov , had been registered as the leader of another church demonstrated that registration was possible when requested in compliance with the relevant rules. The Government further stated that the applicants were also free to register their organisation as a religious association under the Persons and Family Act, as in force at the relevant time, or to function as an unregistered religious group.

The applicants submitted that although there had been no formal refusal of registration, the reply received from the Council of Ministers on 21 September 1999 and the approach of the Supreme Administrative Court had the effect of putting an end to the possibilities to seek registration. That was so because the Council of Ministers had requested from the applicant organisation to clarify their religious practice and the features that distinguish it, whereas the relevant law did not provide expressly for such information to be submitted in registration proceedings. Nor was there any legitimate purpose in requesting such information. Moreover, it was obvious that the applicant organisation would be refused registration regardless of any additional material. Since the Supreme Administrative Court refused to examine the merits of the dispute concerning the Council of Ministers ’ refusal, there was no other remedy available to the applicant organisation.

The Court notes that in the registration proceedings the applicant organisation was invited to submit additional information and clarifications but did not reply. In so far as the applicants considered that they were not required to submit the requested information, it was open to them to express this view in their reply and, in case of subsequent refusal of registration, to appeal before the competent court. It is undisputed that had the applicants done so, the courts would have been able to deal with the merits of the registration issue and, in particular, hear arguments related to the applicants ’ freedom of religion.

The above is sufficient to conclude that the applicants failed to exhaust all domestic remedies as required by Article 35 § 1 of the Convention. It follows that the remainder of the application must be rejected in accordance with paragraph 4 of that provision.

Accordingly, the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

Claudia Westerdiek Peer Lorenzen Registrar President