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.