Communicated on 13 May 2015

FOURTH SECTION

Application no. 41214/13 MUSLIM BOARD STARTSEVO against Bulgaria lodged on 19 June 2013

STATEMENT OF FACTS

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

1. The applicant organisation ( Мюсюлманско настоятелство Старцево ) is a local branch of the body representing and managing the Muslim religious community in Bulgaria. It was registered as a legal entity in 2001 by the municipal authorities in Zlatograd and represents the Muslim community in the village of Startsevo . It is represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska , lawyers practising in Plovdiv.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant organisation, may be summarised as follows.

1. Background

3. The applicant organisation maintains that for over one hundred years it has owned a Muslim cemetery in the village of Startsevo , has buried the Muslim community ’ s dead there and has performed the associated rituals. It also claims that it is the successor of a Muslim organisation which obtained a court decision in 1924 recognising its property right to a cemetery occupying 20,000 square metres of land in the village of Startsevo .

4 . In March 1978 the plot of land on which the cemetery was located was apparently included by the authorities in the zoning plan of the village of Startsevo and was divided into two separate plots numbered 532 and 533.

5. By an order of the Municipal Council of Smolyan of 30 December 1982, plot no. 532, measuring approximately 10,600 square metres, was earmarked for the construction of a factory. On that basis the authorities authorised a State enterprise to start construction works on the plot. The factory was built sometime after 1982 and it occupied approximately 3 ,000 square metres of the plot. Apparently plot no. 532 was never subject to an expropriation procedure by the State.

6 . On an unspecified date plot no. 533, measuring approximately 9,000 square metres, was earmarked by the authorities for use as a “cemetery”. The applicant organisation continued carrying out funerals and performing associated rituals on that plot.

7 . The applicant organisation alleges that in 1982 the authorities paid certain individuals to remove and destroy the headstones and memorials on plot no. 532. It also alleges that approximately 3,000 square metres of topsoil from that plot was removed for the future construction works but the individuals whose relatives were buried there were not allowed to rebury them.

8. On 25 August 1998 the administration of the Regional Governor of Plovdiv issued a declaration of State property concerning plot no. 532. Some corrections to that declaration were made on 28 April 1999. The declaration stated that the plot had formerly been State property and that it had been included in the assets of a State-owned company.

9. In 1999 the applicant organisation made an inquiry with the authorities about the legal status of plots nos. 532 and 533. In June 1999 it obtained two certificates issued by the administration of the Regional Governor of Smolyan and the municipal authorities in Zlatograd , stating that no declarations of State or municipal property had been issued in respect of the plots.

10. On an unspecified date a winding-up procedure was started in respect of the State-owned company in whose assets plot no. 532 had been included. Subsequently, third parties acquired title to that plot from the State-owned company.

11. On 6 March 2007 the Zlatograd Municipality issued a declaration of municipal property in respect of plot no. 533, stating that the plot was public municipal property and had been earmarked for use as a cemetery of the village of Startsevo . The declaration certified that the plot was formerly State property and that no other property declarations in respect of it had been previously issued. There is no information indicating that any expropriation procedure was carried out by the State or the municipality in respect of that plot.

2. The proceedings in respect of plot no. 532

12. In January 2007 Elias OOD, a privately-owned company claiming property rights to part of plot no. 532, started building a commercial building on approximately 2,000 square metres of the plot. People from the village of Startsevo protested against the construction works and attempted to block them.

13. In March 2007 the applicant organisation brought rei vindicatio proceedings against Elias OOD, claiming that it was the rightful owner of plot no. 532, the ownership of which it had acquired through adverse possession exercised for approximately 200 years. It also requested that the court order an injunction suspending the construction works of the proposed buildings while the rei vindicatio proceedings were pending, a request that was granted in May 2007. The regional building directorate subsequently carried out an on-site inspection and established that Elias OOD had complied with the court injunction.

14. In response to a request for information submitted by the applicant organisation to the mayor of Startsevo , the latter stated in a letter dated 28 November 2007 that, pursuant to an agreement between the municipality and Elias OOD, some earth had been removed from part of the plot and had been used for restoring gullied landscapes and concealing unauthorised waste disposal sites.

15. In a judgment of 3 December 2007 the Zlatograd District Court dismissed the rei vindicatio claim brought by the applicant organisation. Following remittal of the case by the Supreme Court of Cassation for re-examination, in a judgment of 27 April 2012 the Smolyan Regional Court upheld the lower court ’ s conclusions. The courts established that in 1982 the State authorities had changed the status of plot no. 532 by earmarking it for future industrial development, had cleared the topsoil from the plot, had prepared it for construction and a factory had thereafter been built. Since then the plot had no longer been used as a cemetery and funerals had been carried out on the neighbouring plot which was earmarked for use as a cemetery. The court held that in those circumstances the applicant organisation had failed to establish that it had acquired the plot through adverse possession after 1982 and that the performance of rituals could not be considered as constituting adverse possession. Moreover, it failed to prove that it was the successor of the Muslim organisation that had been acknowledged as the owner of the cemetery in 1924, or to establish that plot no. 532 was identical with the plot mentioned in the decision of 1924.

16. The applicant organisation filed an appeal on points of law. In accordance with the procedure for examining appeals on points of law, the defendant ’ s submissions as to the admissibility of the appeal were not communicated to the applicant organisation. In a fi nal decision of 21 December 2012 the Supreme Court of Cassation, examining the case in camera , found the appeal inadmissible as the claim fell below the statutory monetary threshold of 5,000 new Bulgarian levs (BGN, the equivalent of approximately 2,500 euros) for appeals on points of law.

17. While the rei vindicatio proceedings were pending, on 17 October 2007 the applicant organisation requested that the court examine the rei vindicatio claim together with claims for a declaration of nullity of the declaration of State property of 25 August 1998 issued in respect of plot no. 532 and the contracts of sale and purchase with which that plot had subsequently been transferred to third parties. It also requested that the court deliver a declaratory judgment against the State and those third parties to the effect that the applicant organisation was the owner of plot no. 532. The Zlatograd District Court refused to examine those claims jointly as not all parties concerned were also parties to the rei vindicatio proceedings. In a decision of 22 October 2010 the Smolyan Regional Court remitted the case to the Zlatograd District Court instructing it to deliver a decision on the newly brought claims. In a decision of 27 January 2011 the Zlatograd District Court ordered that separate proceedings be opened in respect of those claims.

18. Separate proceedings were subsequently opened. On 5 November 2013 the Zlatograd District Court declared the applicant organisation ’ s ownership claim against the State inadmissible on the grounds that plot no. 532 was no longer State property and that the State was not disputing that fact. The court held that the proceedings should continue only in respect of the ownership claim against the other defendants. The claim for a declaration of nullity of the declaration of State property of 25 August 1998 was also found inadmissible on the grounds that such a declaration could not, by its nature, create any property entitlement. The proceedings for a declaration of nullity of the third parties ’ sale and purchase contracts were terminated since the applicant organisation had failed to specify the value of that claim or to pay the respective court fee, after having been given instructions to do so.

19. The applicant organisation appealed. On 14 December 2013 the Smolyan Regional Court upheld the lower court ’ s conclusions. On 6 February 2014 the Supreme Court of Cassation refused an appeal on points of law. The proceedings are apparently pending in respect of the applicant organisation ’ s ownership claim against third parties.

20. The applicant organisation also lodged complaints with the prosecution authorities about the construction works on plot no. 532 and against the public officials who had issued the declaration of State property of 25 August 1998 concerning that plot. Criminal proceedings were opened and were later terminated in part, since no criminal activity in relation to the construction works in 2007 ‒ in particular no desecration or damaging of graves ‒ had been established. Witnesses heard by the prosecution authorities apparently claimed that they had not seen any signs of damaged graves or human remains at the construction site. The criminal proceedings in relation to the issuing of the declaration of State property were stayed since ‒ although there was some indication that a criminal offence might have been committed in respect of the correction made in the declaration on 28 April 1999 ‒ it could not be established who the perpetrator was.

21. The applicant organisation maintains that the soil in plot no. 532 still contains the remains of the individuals buried there and that even after 1982 it continued to bury the dead in the part of the plot that was free from construction work, and also to perform rituals on it. The applicant organisation does not appear to have requested that the authorities allow it to rebury the remains of those individuals or to have appealed against any refusal on their part.

3. The proceedings related to the applicant organisation ’ s property rights over plot no. 533

22. On 12 March 2012 the applicant organisation brought civil proceedings against the mayor of Zlatograd and the Zlatograd Municipality, requesting that the court deliver a declaratory judgment that the applicant organisation was the owner of plot no. 533. It also requested that the court rescind the declaration of municipal property of 6 March 2007 and order the municipal authorities to stop interfering with its property rights and with its freedom to practise its religion on the plot.

23. In a decision of 15 June 2012 the Zlatograd District Court declared the applicant organisation ’ s claims inadmissible. On appeal, on 8 October 2012 the Smolyan Regional Court upheld the lower court ’ s conclusion in respect of the claim for rescission of the declaration of municipal property, holding that that declaration could not create property entitlement but merely served as a note regarding the status of the plot in the municipal register. The court quashed the remainder of the decision. It ordered the lower court to instruct the applicant organisation to clarify whether its ownership claim against the mayor concerned him as an individual or as a representative of the municipality, and to specify the actions of the municipal authorities about which it was complaining.

24. The applicant organisation appealed against the part of the decision that declared inadmissible its claim for rescission of the declaration of municipal property. In a final decision of 4 February 2013 the Supreme Court of Cassation refused an appeal on points of law.

25. On 14 February 2013, acting in response to the order of the Smolyan Regional Court of 8 October 2012, the Zlatograd District Court instructed the applicant organisation to clarify its ownership claim against the mayor and to specify of which municipal authorities ’ actions it was complaining. By a letter of 25 February 2013 the applicant organisation informed the court that the mayor had claimed property rights to plot no. 533 solely on behalf of the municipality.

26. In a decision of 18 May 2013 the Zlatograd District Court declared the claim against the mayor concerning the property rights to the plot inadmissible, because he had claimed ownership not as an individual but as a representative of the municipality. Hence, the applicant organisation had a legal interest in seeking a declaratory judgment only in respect of the municipality and the proceedings were to continue only against it. The claim against the municipal authorities, seeking to stop them from interfering with the applicant organisation ’ s property rights, was also declared inadmissible. The court categorised that claim as actio negatoria and pointed out that the applicant organisation had failed to specify, even after having been prompted to do so, any concrete actions with which the defendants had allegedly interfered with the exercise of its property rights, and to lodge any concrete requests with the court in that respect.

27. The proceedings apparently continued in respect of the property claim against the Zlatograd municipality.

4. The proceedings related to the applicant organisation ’ s right to manifest its religion on plot no. 533

28. In the same proceedings which it brought before the Zlatograd District Court in respect of its property rights related to plot no. 533, the applicant association brought a parallel separate claim, asserting that the municipal authorities were obstructing it in the exercise of its religious rights on the plot and asking the court to order them to stop that. In the same decision of 14 February 2013 (see paragraph 25 above) the Zlatograd District Court instructed the applicant to specify the acts with which it claimed that municipality representatives had obstructed its free exercise of its right to religion.

29. The applicant association responded on 25 February 2013. It specified in particular that, during numerous meetings its representatives have had with the mayor in the latter ’ s office, in the mosque ’ s courtyard, in the centre of Startsevo or in other places, the mayor had stated that the Muslim community was not entitled to maintain the plot according to Muslim tradition because the cemetery belonged to the entire community of Startsevo . The mayor had also insisted that the rituals must be performed in accordance with the municipal rules and therefore only in temples and not on the plot and had issued fines in that connection. Furthermore, the applicant organisation claimed that representatives of the municipality had physically vandalised stone memorials on graves bearing Muslim symbols. The applicants asked the court to allow it produce evidence in connection with its claim above.

30. The respondent party replied on 17 April 2013. It stated more specifically that the applicant ’ s claim about its right to religion had to be examined separately from its property-related claim, as otherwise it would be inadmissible. The respondent party pointed out that a special law, the Religious Denominations Act 2002 (“the Act 2002”) governed the freedom to manifest one ’ s religion.

31. In its decision of 18 May 2013 the Zlatograd District Court accepted the respondent authorities ’ position that the claim about undue interference with the applicant ’ s freedom to manifest its religion could not be examined in the context of the property dispute, as the right to freedom of religion is not an element of the right to property. The actio negatoria brought by the applicant, asking the court to stop the municipal authorities from interfering with the applicant organisation ’ s property rights, was inappropriate for a claim about interference with the right to religion. The court pointed out that the right to freedom of religion was governed by a special law, the Act 2002 which provided for a specific procedure for protecting that right and for imposing administrative penalties. In addition, the court held, the general criminal law provided for criminal responsibility in certain cases of interference with the freedom to manifest one ’ s religion. Consequently, the court concluded, the applicant lacked legal interest and its claim was inadmissible.

32. The applicant organisation appealed. In a decision of 20 June 2013 the Smolyan Regional Court upheld the lower court ’ s conclusions. In a decision of 28 October 2013 the Supreme Court of Cassation refused an appeal on points of law.

33. Apparently the applicant organisation has continued to bury the dead and to perform rituals on plot no. 533. It claims that the current mayor obstructs it in the performance of commemorative services on the plot by imposing various requirements that conflict with the rites of the Muslim religion.

34. The applicant organisation does not seem to have sought the imposition of sanctions under the Religious Denominations Act 2002 or the Criminal Code in respect of its allegation that the Zlatograd municipal authorities had been obstructing it in the practice of its religion.

5. Other developments

35. The applicant organisation also complained to various State institutions about the actions undertaken concerning plot no. 532 and the dispute over the ownership of plots nos. 532 and 533. By a letter of 29 June 2009 the Directorate of Religious Denominations attached to the Council of Ministers advised the applicant organisation to claim restitution of the plots at issue under the Religious Denominations Act 2002. The applicant organisation does not seem to have claimed any property rights over the disputed plots on a restitution basis.

36. The applicant organisation complained to the prosecution authorities about the issuance of the declaration of municipal property of 6 March 2007 concerning plot no. 533. It claimed that by issuing the impugned declaration the officials concerned had committed forgery, which constituted an action breaching its freedom of religion. It requested that the prosecution authorities order the mayor to rescind the declaration of municipal property. The public prosecutors refused to open criminal proceedings on the ground that it had not been established that a crime had been committed with the issuing of the impugned declaration. The prosecutors noted that the public officials had verified that no other owners had been entered in the property registers in respect of that plot.

B. Relevant domestic law

37. Article 13 § 1 of the 1991 Constitution provides that religions shall be free. Article 37 guarantees freedom of conscience, thought and choice of religion or of religious or atheistic views. F reedom of conscience and religion cannot be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.

38. The Religious Denominations Act 2002 (“the Act of 2002”) lays down the rules regarding the activities of religious denominations, imposes requirements as regards its clergy, and gives the Directorate of Religious Denominations attached to the Council of Ministers certain supervisory functions. Section 24 provides for the possibility for religious denominations to own and maintain cemeteries (such a possibility did not exist under the Religious Denominations Act 1949, in force until 2002). The Act of 2002 also provides for the Directorate of Religious Denominations to have competence to conduct checks on complaints about violations of the freedom of religion, and to impose administrative sanctions on individuals and legal entities in the event of a breach of the Act ’ s provisions (sections 35 § 5, 37 and 38).

39. Under paragraph 5 of the transitional and concluding provisions of the Act of 2002, religious denominations are entitled to restitution of previously nationalised, confiscated, or illegally transferred property. The restitution can be claimed under the Restitution of Property of Nationalised Real Estate Act 1992, that is ex lege , provided that the property at issue still exists and is owned by the State, municipalities, State enterprises or State-owned companies. The adverse possession that applied before the entry into force of the Act of 2002 is not to be taken into account, and a new period of adverse possession shall be deemed to have started to run from the entry into force of the Act in 2002. Where restitution was not possible, claims for compensation under the Compensation of Owners of Nationalised Properties Act 1997 could be lodged within a year of the entry into force of the Act in 2002.

40. In accordance with section 2 § 2 of the Local Government and Local Administration Act 1991, municipal councils can adopt regulations and ordinances which lay down rules ‒ applicable within the territory of the particular municipality ‒ regarding the exercise of their powers. Ordinance No. 19 of 2010 issued by the Municipal Council of Zlatograd set out the rules of organisation and management of cemeteries in the territory of the Municipality of Zlatograd , including the village of Startsevo . The Ordinance lays down rules for the use of a cemetery plot and for burial of the dead, as well as for the performance of rituals. Under these provisions, the relatives of the dead may perform rituals ‒ including rituals of religious character ‒ in the funeral chapel at the cemetery and/or at the graveside.

41. The hygienic requirements regarding the establishment and maintenance of cemeteries and the burying and disinterring of dead bodies were laid down in Ordinance No. 21 of 1984 issued by the Minister of Public Health, in force until 2011. It was superseded by Or dinance No. 2 issued by the Minister of Health concerning the health requirements for cemeteries and for the burying and transportation of the dead, which contains similar provisions.

42. Articles 164 and 165 of the Criminal Code provide for criminal liability in respect of acts that hinder the exercise of freedom of religion by others, including the desecration of graves and the obstruction of religious services and rituals through use of force or threats.

COMPLAINTS

43. The applicant organisation complains in particular under Article 9 of the Convention that its freedom to manifest its religion has been breached as the municipal authorities continuously prevented it from observing Muslim religion rituals when burying the dead in plot no. 533.

44. The applicant organisation also complains under Article 13 of the Convention that it did not have an effective domestic remedy in respect of the alleged breach of Article 9 the Convention.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s freedom to manifest its religion, within the meaning of Article 9 § 1 of the Convention, in particular as a result of the alleged acts by representatives of the municipality hindering it in the free exercise of its burial practices and rituals in the cemetery on plot no. 533?

2. If so, was that interference prescribed by law and necessary in terms of Article 9 § 2 of the Convention?

3. Does the applicant association have a victim status under the Convention and, if yes, as of what point in time?

4. Did the applicant organisation have an effective domestic remedy, as provided for in Article 13 of the Convention, in conjunction with its complaint under Article 9 of the Convention?