FIRST SECTION

PARTIAL DECISION

AS TO THE ADMIS S IBILITY OF

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

The European Court of Human Rights (First Section), sitting on 8 September 2005 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs S. Botoucharova , Mr A. Kovler , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , and Mr S. Nielsen , Section Registrar ,

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

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 are represented before the Court by Ms R. Nehrizova and Ms N. Stefanova , lawyer s practising in Sofia .

A. The circumstances of the case

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

1. Events concerning the applicants ’ religious activities

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.

According to Mr Borisov , the prayer house belonged to him as he had built it. He submits that he lived in it and that it was therefore both a prayer house and his home.

It appears that the Baptist Church in Lom considers that the house belongs to them as it was built by their followers who donated money and worked on the site.

The applicants ’ meetings were often interrupted by the police. In 1997 police officers visited the prayer house at least three times, told the participants that religious activities without registration as a religious community were not allowed and also that they needed a permission to use the building as a prayer house. Each time the participants were ordered to leave.

On 27 April 1998 Mr Borisov was allegedly taken by police officers from his brother ’ s home and brought to the police station. He was questioned about his religious beliefs and activities and was warned against conducting religious services without registration. Mr Borisov alleges that he was kept in detention for a week but that his detention was not documented.

Mr Borisov did not appeal against his detention as he could have.

In April 1998 the police placed a lock on the door of the prayer house. It appears that on an unspecified date the Baptist Church in Lom took possession of the house.

Mr Borisov has not brought an action for possession, as he could have under the Property Act.

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 their 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.

The Supreme Administrative Court also admitted a written opinion by the President of the Union of Baptist Churches in Bulgaria , who stated, inter alia , that the creation of separate churches on an ethnic basis was not in conformity with the Baptist tradition and could be dangerous. He also stated that Mr Borisov had been dismissed from the clergy of the Baptist Church since he had entered into a relationship with a woman at a time when his divorce proceedings had been pending and was generally untrustworthy.

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 .

The applicants submit that the authorities continued to harass them through oral warnings that they should cease their religious meetings.

For an unspecified period of time the applicants continued their religious gatherings in Mr Borisov ’ s parents ’ home. It appears, however, that in 2002 or 2003 the followers of the applicants gradually returned to the Baptist Church in Lom and abandoned their religious activities as a separate group.

In 2004, Mr Borisov complained to the prosecuting authorities that in 1998 he had been detained unlawfully and that he had been deprived of his house. By decision of 10 May 2004 a district prosecutor refused to open criminal proceedings noting that there was no evidence in support of Mr Borisov ’ s allegations. Mr Borisov appealed. On 12 July 2004 the Regional Prosecutor ’ s Office in Montana confirmed the refusal, noting, in addition, that the dispute concerning the house was a civil dispute to be decided by the courts.

2. Other events

In 2001 the former wife of one of the applicants, Mr Borisov , instituted against him civil proceedings seeking the payment of alimony. It appears that she obtained a judicial order against Mr Borisov but he did not pay. Upon her complaint, on an unspecified date criminal proceedings were instituted against Mr Borisov for wilful refusal to pay alimony. By judgment of 3 October 2002 of the Lom District Court, upheld on appeal by the Montana Regional Court on 17 July 2003 , Mr Borisov was found guilty and sentenced to an unspecified period of compulsory residence in Lom .

In 2003 Mr Borisov travelled to the Netherlands and unsuccessfully sought a residence permit there. He returned to Bulgaria towards the end of 2003.

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 ).

The judicial practice on the issue is scant. The following relevant judgments have been reported or cited by the applicants.

In a judgment of 28 March 1998 the Sofia District Court examined a claim for damages submitted by an individual who had been summoned by the police, questioned about her religious activities and warned orally that she should cease those activities as the religious group to which she belonged had been refused registration. That had been done pursuant to a prosecutor ’ s order who had ordered measures “to curtail the possibilities of the [religious group] to organise gatherings and manifest their beliefs”. On the same day the police had searched the plaintiff ’ s apartment and had seized religious literature.

In its judgment the Sofia District Court found that the questioning and warning had been lawful. That was so because the religious group to which the plaintiff belonged had been refused registration and, therefore, her continuing religious activities had been unlawful. The court found, on the other hand, that the search had been unlawful as it had not been conducted in the context of pending criminal proceedings. The police was ordered to return the seized literature and pay compensation (judgment of 28 March 1998 in case no. 11650/95, Sofia District Court).

In a judgment of 2 February 1999 the Sofia District Court, examining a claim for damages arising out of searches disrupting a religious gathering, stated that the right of a group of individuals to gather and worship did not depend on whether or not they had registered as a religious body. However, the claims were dismissed since the searches conducted by the police had been lawful. The police had acted on the basis of a prosecutor ’ s order. The court further stated that it was legitimate for the authorities to react to information that an unregistered association conducted untraditional religious activities and possibly posed a danger to public health and morals and to order searches to verify that information (judgment of 2 February 1999 in case no. 11281/95, Sofia District Court, first civil division).

In its judgment no. 3270 of 14 May 2001 in case no. 2174/2000 , a three-member chamber of 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. It appears that after 1 January 2003 religious groups can only register as religious denominations, if they wish to obtain legal personality.

COMPLAINTS

1. The applicants complain under Article s 9 and 11 of the Convention that their religious gatherings were disrupted by the police and that their attempt to register the Roma Church in Bulgaria as a religious denomination was unsuccessful.

The applicants submit that although there was 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, from the text of the letter of the Council of Ministers it was clear that the applicant organisation would be refused registration regardless of any additional material that they could submit. 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 applicants further submit that their religious activities were repeatedly disrupted by the police and that following the refusal of their registration request, their activities were de facto prohibited since in accordance with the established administrative practice in Bulgaria, the authorities did not tolerate any religious activities by non-registered entities.

The applicants maintain that the resulting interference with their rights was not lawful because it was based on unclear legal provisions and on an administrative practice that did not have clear legal basis.

Furthermore, the interference was not necessary in a democratic society as the applicants did not endanger the public order, the rights of others or national security.

2. The applicants also complain under Article 13 of the Convention that they did not have effective remedies in respect of the unjustified interference with their rights under Articles 9 and 11 of the Convention.

3. One of the applicants, Mr Borisov , also complains that the authorities deprived him of his right to use his house. He submits, in addition, that his conviction and sentence for failure to pay alimony was unfair and had the effect of sentencing him to homelessness since he was obliged to reside in Lom whereas at the same time he was denied access to his house there.

THE LAW

1. The applicants complain under Article s 9 and 11 of the Convention that their religious gatherings were disrupted by the police and that their request for registration as a religious denomination was not granted. They also complain under Article 13 of the Convention that they did not have effective remedies in this respect.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the above complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. One of the applicants, Mr Borisov , complains that the authorities deprived him of his right to use his house, that the criminal proceedings against him were unfair and that his sentence obliged him to remain homeless.

T he Court has examined Mr Borisov ’ s complaints as they have been submitted . In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the se complaints must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant s ’ complaints concerning the disruption of their religious meetings and the registration of the applicant organisation ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President