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					                   BEFORE

   THE EUROPEAN COURT OF HUMAN RIGHTS




                  REQUEST

      OF THE BULGARIAN GOVERNMENT

    UNDER ARTICLE 43 OF THE CONVENTION




               IN THE CASE OF

       HOLY SYNOD OF THE BULGARIAN
ORTHODOX CHURCH (METROPOLITAN INOKENTIY)
                AND OTHERS




                   VERSUS



                  BULGARIA



     APPLICATIONS nos 412/03 AND 35677/04
    І. INTRODUCTION
   1. On 22 January 2009 the European Court of Human Rights ECtHR delivered its judgement
on the above-mentioned case and unanimously held that the Bulgarian State has violated the
rights of the applicants proclaimed in Article 9 of the Convention for the Protection of Human
Rights and Fundamental Freedoms. The remainder of the applicants' claims have been dismissed,
whereas the Court has reserved the question of the satisfaction under Article 41.
   2. The Bulgarian Government hereby holds that the judgement delivered, in so far as it finds a
violation of Article 9, raises serious questions affecting the interpretation and application of the
Convention, as well as a serious issue of general importance thereby rendering Article 43(2) of
the European Convention for Human Rights (ECHR) applicable.
   3. The judgement appealed is not in compliance with the Court's case-law and is not grounded
on the facts of the case.
   4. For the above-stated reasons the Bulgarian Government requests that the case be referred to
the Grand Chamber of the ECtHR to rule on the justification of the Court's findings in the light of
the general principles and standards enshrined in the Convention.

    ІІ. REASONS FOR REFERRAL
   5. The Government considers that the judgment raises the following serious issues affecting
the interpretation and application of the Convention: the assessment by the Court, in accordance
with the Convention's criteria, of facts and actions of the State that had taken place before the
date on which Bulgaria signed the ECHR 7 May 1992; the documents directly relevant to the
case, to which the Court refers and on which it bases its judgment, in particular the omission of
the Statute of the Bulgarian Orthodox Church; the role of canon law and its acknowledgement by
the state in applying Article 9; the obligations of the State in relation to the principle of non-
interference in the life of the religious communities; the scope of the Court's assessment of the
State's actions; the application of the principles of legal certainty as well as the state's power
regarding the protection of legal security and public order; applying different criteria to states "in
transition".
   6. In this relation the Government would like also to note that the Court's judgement roused
serious public anxiety, within the State and the Bulgarian society1, as well as in the whole
Orthodox community, concerning the following issues of general importance dealt with in the
case:
   7. The judgement adopted essentially disputes the obligation of the State to ensure protection
of the citizens' legal interests by means of an action based in law. At the same time it disputes the
duty of the State to act in such circumstances, in the name of public order and stability and legal
certainty.
   8. By finding a violation of Article 9 of the Convention, the of the Court - Fifth Section,
attempts to reinterpret canon law and denies canonical continuity regarding the organisation of
the Bulgarian Orthodox Church. Furthermore, this inconsistency with the principles of Article 9
of the Convention rules out any possibility for the State to intervene in any way with a view to
protecting the religious rights of citizens.
   9. The judgement of the Court - Fifth Section in this case contradicts the established
centuries-old organisation of the Bulgarian Orthodox Church and the other Eastern Orthodox
churches. For them the applicability of canon law, including regarding the life-long mandate of

1
 Enclosure № 1 - “Error of Judgment, A Case of the European Court of Human Rights vs. the Church” edited by
Georgi Todorov.

                                                                                                         2
the religious leader and the inadmissibility of subsequently questioning his enthronement outside
the framework of the Statute of the respective autocephalous church, is mandatory. These
provisions may not be disputed by lay authorities.
   10. The ECtHR judgment raises an issue of utmost general importance for all religious
denominations and churches, namely that of their uniform organisation and management. By
accepting the internal rules of their religious denomination, the applicants in the case have
thereby submitted to the principle that disputing the statutory and canonically legitimate
leadership is completely inadmissible. Any such dispute shall be in clear contradiction with the
canon of the Orthodox religion and anyone who has voluntarily submitted himself to the canon is
subject to epitemia, in case he violates it.
   11. Although the Court - Fifth Section states in its Judgment that it is not competent to rule
on issues related to canon, it nevertheless rules on the most essential canonical and dogmatic
issue affecting the existence of the Bulgarian Orthodox Church, namely by admitting the
possibility that there are sides disputing its leadership. This is contrary the very basic tenets of the
Orthodox Church. The Court's examination of disputes regarding the leadership of any religious
denomination outside the framework of its internal rules destroys its institutional unity. Allowing
for the possibility to question the election of a religious leader after a period of more than twenty
years essentially violates the principle of legal certainty.
   12. The formal approach of the Court - Fifth Section in the case at hand sets a dangerous
precedent that would allow to question the leadership of every single religious leader (not only
belonging to an Orthodox church), as long as the opposing side succeeds in organising, by ill-
intended means, an appropriate group of people.
   13. In fact, by overruling canon law and norms, the Court - Fifth Section opens a possibility
for violating the rights of believers, as enshrined in Article 9 of the Convention, to abide by the
canon law and follow their God-given leader.

   ІІІ. PRELIMINARY CONSIDERATIONS:

   1. Regarding the section “Relevant Domestic Law and practice”

    14. In Section II of the Judgement of 22 January 2009 the Court - Fifth Section refers, as
relevant to the case at hand, to the Constitution of the Republic of Bulgaria of 1991 (without,
however, making reference to the specific provision of its Article 13 para. 3 regarding the
traditional religion in Bulgaria, namely Eastern Orthodox Christianity), the Religious
Denominations Act 1949, the Religious Denominations Act 2002, the ruling of the Constitutional
Court of 15 July 2003, and Article 274 of the Bulgarian Penal Code. At the same time the Court -
Fifth Section has entirely disregarded the Statute of the Bulgarian Orthodox Church, a document
which is crucial for the essence of the case. The decisions of the Holy Expanded and Supra-
jurisdictional Pan-Orthodox Council of 1998 are not mentioned either. All key issues of the case
at hand should be viewed against these two acts, which are legally binding for the Bulgarian
Orthodox Church and the entire Orthodox religious community in Bulgaria.
    15. The Court - Fifth Section disregarding these two key documents that regulate the relations
in the Orthodox religious community and are of an absolutely binding nature, and without which
it is impossible to either analyse the legal aspects and facts of the dispute or reach accurate
conclusions on the case, inevitably resulted in the Court - Fifth Section delivering a judgement
that contradicts the facts and applicable law.
    16. The right to religious denomination within the meaning of Article 9 includes in the first
place compliance with and respect for the autonomous law of each denomination, which in the
case of the Orthodox Church is the canon law. By disregarding the decision of the Holy
Expanded and Supra-jurisdictional Pan-Orthodox Council of 1998, which resolves the schism in
                                                                                                 3
the Bulgarian Orthodox Church in accordance with the canon law, the ECtHR itself violates
Article 9 of the Convention since the basis for exercising the right to religion is its internal rules
and autonomous decisions.
    17. The basic evidence regarding the canonical legitimacy of Patriarch Maxim2 as leader of
the Bulgarian Orthodox Church, the senior Orthodox convention's assessment of the behaviour of
the descending group and the non-interference of state authorities in affairs3 of the Church are all
in line with the aforementioned.
    18. Likewise, in Section IIІ of the Judgement of 22 January 2009, Relevant International
Material (§81), the Court - Fifth Section refers to Resolution 1390 (2004) of the Parliamentary
Assembly of the Council of Europe as relevant to the case. It must be underscored that this
document (which furthermore is selectively quoted and interpreted) does not comprise legally
binding norms and thus may not serve as the basis for resolving a legal dispute. Pursuant to the
Statute of the Council of Europe, the Parliamentary Assembly is a consultative organ of the
Organisation and its acts are not legal instruments imposing any legal obligations on the States
Party to the Convention. Therefore Resolution 1390 (2004) of the Parliamentary Assembly may
not be considered an 'international standard' and thus may not be attributed legal value relevant to
the dispute at hand.
    19. As regards the documents admitted that the Court views as relevant to the case, the
Government considers that the Court has ignored the factual violation by the applicants of the
requirement of Article 11(h) of the Practice Direction for Written Pleadings whereby pleadings
presented by the parties (in this case the applicant) should 'give a reference to every document or
piece of evidence mentioned in the pleading and annexed thereto'. In violation of this
requirement, the Court - Fifth Section has not required the applicant organisation and the other
applicants to furnish legally valid, specific, and authentic documents evidencing the following:
- that the applicants or some of them have any relation whatsoever, in canonical legal sense,
to the Bulgarian Orthodox Church
- that the applicants enjoy, as established in national legislation, the right of property or the
right of use of the real estates of the Bulgarian Orthodox Church in relation to which they
make their claims in the application.
    20. Similarly, no authentic documents have been requested evidencing the fact that the person
who lodged the application on behalf of the "alternative Synod"4 of the Bulgarian Orthodox
Church (this is the way in which the Court refers to the applicant in para. 2), is in fact
representing the "Holy Synod of the Bulgarian Orthodox Church" or has any legal grounds to
name itself "Holy Synod" in any legally valid or relevant way.

    2. Disregarding the principle of the right to be heard in legal proceedings:

   21. The analysis of the Court judgement indicates that the Court disregards the principle of
the right to be heard in legal proceedings. In particular as regards the Bulgarian Orthodox
Church, the Fifth Section of the Court seems to contest almost all arguments made by Church or
Government representatives, while in relation to the separatists (the applicant organisation) it
takes at face value various statements of theirs, and even admits those as evidence.5



2
  Enclosure № 2 - Enclosed copy of the Tsarkoven vestnik (Church Newspaper) containing greetings of other
Orthodox Churches’ leaders on the occasion of the election of Patriarch Maxim for head of the Bulgarian Orthodox
Church.
3
  Enclosure № 3 - Shorthand record of the decisions endorsed by the Pan-Orthodox Council of 1998.
4
  Enclosure № 18
5
  Le principe du contradictoire
                                                                                                              4
   3. Regarding the Court considering and evaluating under Article 9 facts and actions
preceding Bulgaria's accession to the ECHR

   22. In Part I (paras. 9 - 13) of the judgement of 22 January 2009 the Court - Fifth Section
makes a selective overview of the history of the State - Church relations after 1949 and on the
basis of its own political assessment of selected events from this period holds that Maxim was
elected as patriarch in 1971 on the basis of a nomination of the Central Committee of the then in
power Bulgarian Communist Party, which is presented as evidence of the state interference in the
internal affairs of the Church..
   23. Furthermore, having made this purely political presumption, in paras. 126-127 of the
judgement the Court - Fifth Section finds it established, on the basis of the same political
presumption, that the "history of State intervention in the management and organisation of
religious communities in Bulgaria dates back decades", that "during the communist period
religious freedoms were reduced to a minimum and the leaderships of religious communities,
including the Bulgarian Orthodox Church, were nominated and controlled by the Communist
Party and the State authorities", that "even after the Convention's entry into force in respect of
Bulgaria in 1992 a practice of State interference in the internal organisation of the country's two
main religious communities, the Christian Orthodox and the Muslim communities, continued,
albeit in a different form", to finally state that this "background" is "relevant to the assessment of
the events in the present case" (§127).
   24. While it is not necessary to elucidate the possible inaccuracies of the Court - Fifth Section
arbitrary political evaluation of the facts, it should be nevertheless be emphasized that the Court
has no jurisdiction ratione temporis to make such an assessment of facts and circumstances that
took place before Bulgaria signed and ratified the Convention for the Protection of Human Rights
and Fundamental Freedoms.
   25. This is all the more inadmissible in view of the fact that this arbitrary political evaluation
serves as a basis for subsequent statements of the Court - Fifth Section aimed at contesting the
legitimacy of the Bulgarian Patriarch Maxim.
   26. We hereby observe that facts and acts that took place prior to the entry into force of the
ECHR in relation to a State may in principle be reviewed by the Court to the extend that they
may shed light on the history of a dispute that the Court is dealing with. At the same time it is
inadmissible that those facts and acts are viewed in the light of Article 9 of the Convention and
the Court case law, as this would be in violation of a fundamental principle of the international
treaty law binding also the Court, namely that the Convention has no retroactive effect (see
also Article 28 of the Vienna Convention on the Law of Treaties).
   27. Therefore, in the case at hand, the Court may make such an assessment in the light
of Article 9 and relevant case law only in relation to relevant facts and acts that have taken
place after 7 May 1992 when Bulgaria acceded to the ECHR. In accordance with Article 18 of
the Vienna Convention on the Law of Treaties, the "State is obliged to refrain from acts which
would defeat the object and purpose of a treaty when (a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification, acceptance or approval, until it shall
have made its intention clear not to become a party to the treaty".

  4. Actions of state organs that the Court should have reviewed in the light of Article 9 of the
Convention and the relevant case-law

   28. As clarified in the preceding paragraphs, the Court's Fifth Section had first to review in
the light of Article 9 of the Convention and the relevant case law and then take into account in
delivering its judgement Act No. 92 of 25 May 1992 of Metodi Spassov, head of the Religious
Denominations Directorate with the Council of Ministers, whereby the acting Holy Synod was
                                                                                                    5
pronounced to be 'unlawful leadership of the Bulgarian Orthodox Church'. By way of the same
act M. Spassov set up a new leadership of the Church and appointed an interim council headed by
Metropolitan Pimen of Nevrokop in violation of the applicable canon law and national
legislation.
   29. It is obvious that this act of the Religious Denominations director was committed in clear
violation of the national law and of Article 9 of the ECHR as regards state non-interference
in the internal affairs of the religious denomination.
   30. At the same time this act triggered a series of unlawful actions, some of them forceful
actions of state authorities directly led and encouraged by governments formed by the right -
wing Union of Democratic Forces, gravely violating Bulgaria's obligations pursuant to Article 9
of the Convention.
   31. Thus, on the basis of Act No. 92 of 25 May 1992, as early as 1 June 1992 the Holy Synod
premises were occupied by military forces pursuant to an order of the then minister of defence
Alexander Staliyski. Under the leadership of Hristofor Sabev and politicians from the Union of
Democratic Forces, the Sofia Seminary was taken by force. An unsuccessful attempt to take over
the Sofia Bishopric followed.
   32. These and similar other inadmissible acts encroaching on the Bulgarian Orthodox Church
were subsequently committed on a regular basis (mostly at the time of governments formed by
the Union of Democratic Forces) until 2002, when the new Religious Denominations Act was
adopted.

   5. Political aspects of the Court's Fifth Section judgement

   33. Both the obiter dicta and ratio decidendi of the judgement are strongly politically
influenced and contain inadmissible qualifications and formulations in terms of objectivity
regarding the election and appointment of the patriarch by the Communist Party and similar
political phraseology, which in fact renders the Judgment in the case at hand into an act of
political evaluation of the state: of its autonomy to adopt laws, of its Constitutional Court to rule
on laws' compliance with the Constitution, of particular periods of its history.
   34. According to Article 13(2) of the Bulgarian Constitution, similarly to the preceding two
Constitutions, the religious institutions are separate from the State, thus any interference by the
State in Church affairs, apart from cases where such an interference is justified, is inadmissible.
In the case at hand the State has not committed a violation: it treated as legitimate representative
an organ of the Bulgarian Orthodox Church that was set up in line with the Orthodox religion
canons. The ECtHR did not review whether or not the applicant organisation complies with the
canon law or the national legislation but simply assumed its legitimacy thus interfering
inadmissibly in the internal organisation of the public relations related to the Bulgarian Orthodox
Church on constitutional and legislative level.

 ІV. REGARDING THE VIOLATION FOUND OF ARTICLE 9 OF THE
CONVENTION, INTERPRETED IN THE LIGHT OF ARTICLE 11.

A). Regarding the Court's assumption that the State took action in the context of an
existing division in the Bulgarian Orthodox Church

   35. The Court found that the Bulgarian State has violated Article 9 of the ECHR on the basis
of an entirely erroneous assumption that the State acted in the context of an existing division
in the Bulgarian Orthodox Church.
   36. The election, enthronement and international recognition of the heads of Orthodox
Churches in the Eastern Orthodoxy are regulated by centuries-old Orthodox canons. Heads
                                                                                              6
of Orthodox Churches serve lifetime, therefore challenging the legitimacy of any patriarch
is inadmissible. This is exclusively an issue of canon law and thus falls outside the scope of
application of the Convention.
    37. Consequently, the alleged "incompatible claims to legitimacy by two opposing groups
of leaders of the Christian Orthodox community in Bulgaria" (§ 107) as defined by the
Court's Fifth Section, are in fact an attempt to contest the legitimate canonical leadership of the
Bulgarian Orthodox Church by a group of people making use of non-canonical and unlawful
means. Therefore, there are no "two" synods, but only attempts to replace the legitimate
leadership of the Bulgarian Orthodox Church with another, illegitimate one. The applicant
Inokentiy is the one who wants to provoke the Court and thus secure for himself "recognition"
outside canon law.
    38. Even the Court's Fifth Section admits that the conflict in the Bulgarian Orthodox
Church was not about divergent religious beliefs and practices but mainly about the choice
of leadership (§103). This choice however is not for the believers to make as the Court - Fifth
Section erroneously assumes in para. 109 ("there was no authoritative decision by the
community"), but is governed by strict rules and procedures set forth by canon law and by which
all Orthodox Church community members must abide.
    39. Consequently, from a legal point of view only one leadership of the Bulgarian Orthodox
Church is legitimate. In canonical terms one may not speak of "another" or "alternative
leadership".

      1). Canonical legitimacy of the leadership of the Bulgarian Orthodox Church

   40. The college governing body of the Bulgarian Orthodox Church, the Holy Synod, is vested
in the principle of communion (съборното начало) and is not elected for a set term of office.
Members of the Holy Synod may only be replaced in cases when the throne of the patriarch is
widowed or, respectively, the metropolitan seat becomes vacant. In those cases that are explicitly
provided for in the Statute of the Bulgarian Orthodox Church a patriarch or metropolitan is
elected by empowered election conventions (оправомощени избирателни събрания) following
a strict election procedure. This procedure does envisage that specified persons may contest the
election of a patriarch or a metropolitan within set terms; however according to Article 18 of the
Statute this is only possible at an earlier stage, namely during the election of the delegates in the
Patriarch Election Convention (Патриаршеския избирателен събор). It is essential to underline
that the right to contest according to the Statute of the Bulgarian Orthodox Church may be
exercised within set terms but it must precede the canonical election.
   41. The election of Maxim as Bulgarian patriarch in 1971 was conducted in compliance with
Chapter Two 'ELECTION OF PATRIARCH' of the Statute6 of the Bulgarian Orthodox Church.
Patriarch Maxim was enthroned in the presence of the heads of the Eastern Orthodox churches.
The act of enthronement obliges the heads of the Orthodox autocephalous churches to take heed
thereof. In this way the unity and integrity of the Orthodox Church all over the world is
implemented and demonstrated.
   42. After serving as Patriarch on the throne for 18 years, the Bulgarian patriarch and
Metropolitan of Sofia Cyril passed away on 7 March 1971. In accordance with Article 17 of the
Statute of the Bulgarian Orthodox Church, Metropolitan Pimen of Nevrokop acted as interim
council head for seven days, until 13 March 1971. On the basis of the same Statute provision at a
convention of the Holy Synod of 13 March 1971 Metropolitan Maxim of Lovech was elected
interim council head. On 25 June 1971 the Holy Synod, acting in full composition and in
accordance with Article 20 of the Statute of the Bulgarian Orthodox Church, elected by secret

6
    Enclosure № 4 and 5 - Statute of the Bulgarian Orthodox Church
                                                                                                   7
ballot three diocese (eparchy) metropolitans as worthy to occupy the seat of Patriarch: Lovech
Metropolitan Maxim, Vratsa Metropolitan Paissiy and Metropolitan of Dorostol and Cherven,
Sofroniy. A record to that end was made in the Chronicle of the Holy Synod. On 4 July 1971 the
church convention for election of patriarch elected the Lovech Metropolitan Maxim Metropolitan
of Sofia and Bulgarian Patriarch. The election was duly recorded in the Chronicles of the Holy
Synod and the record was signed by all metropolitans, members of the Holy Synod, clergy and
believers who took part in the election.7
   43. On 5 July 1971 the senior member of the Holy Synod sent a letter to the chairman of the
special body at the Ministry of Foreign Affairs8 entrusted to deal with issues of religious cults,
thereby informing him of the election of a new Bulgarian Patriarch. In this way the duty set in
Article 16 of the Religious Denominations Act (repealed) for the central governing organs of the
religious denominations to register with the Religious Denominations Directorate at the Council
of Ministers was complied with. In the course of the following years the Bulgarian Patriarch, in
his capacity of head of the Holy Synod, has duly informed the Religious Denominations
Directorate for every election of a new Metropolitan.
   44. Since 1971 the Bulgarian Patriarch and the Holy Synod he represented have been
recognised and respected by the whole Bulgarian people and state authorities alike. Both the
prime-minister Simeon Saxe Cobourg Gotha and the president Georgi Parvanov swore a solemn
oath before the patriarch in the Bulgarian parliament upon assuming their respective offices in
2001 and 2002. Heads of diplomatic missions, on their own initiative, and regardless of the
religion they practice, all meet the Bulgarian Patriarch Maxim after they present their credentials
to the respective state authorities. On the international arena the Bulgarian Patriarch and
Metropolitan of Sofia Maxim and the Holy Synod he represents have always enjoyed, and still
enjoy, the recognition of all Eastern Orthodox churches, members of the One, Holy, Catholic and
Apostolic Church. It is only with him and the Holy Synod represented by him that the head of the
Roman Catholic Church and other Churches have established official relations.
   45. The Court's Fifth Section makes the assumption that religious denominations are
nominated and even directly appointed by the Bulgarian Communist Party and that the Bulgarian
Orthodox Church makes no exception. The recommendations and observations of the Communist
Party referred to by the Court are presented as established legal acts with legal consequences that
affect the choice of patriarch, while the Court more than anyone else should be conversant with
the fact that these observations and recommendations have no legal value.
   46. Perhaps, in making this assumption, the Court has referred to a decision of the Religious
Denominations Commission of the 36th National Assembly, chaired by Hristofor Sabev, which
basically claims that the choice of patriarch is illegitimate due to interference by the "Communist
power" in the election process.
   47. It should be observed in this regard that Standing Commissions at the National Assembly
may issue opinions but do not have the right, and may not make any statements regarding the
choice of a patriarch convened 21 years earlier (as per that point in time, 1992) - as this amounts
to interference in the internal administrative affairs of the Bulgarian Orthodox Church and
contravenes the constitutionally enshrined principle of separateness of the church from the state
(see Article 13 para. 2 of the Constitution).
   48. The Bulgarian Orthodox Church and its organs cannot be blamed or held responsible for
any attempts by any state bodies to intervene in the internal affairs of the Church, including in the
election procedures. At the same time the internal documents of the Central Committee of the
Bulgarian Communist Party have no legal value and thus can neither bind, not substitute the will
or the ballot cast by the voters.
7
  Enclosure № 6 - Act for the election of three eparchy metropolitans as worthy of the patriarch’s seat (Chronicles,
pp. 275-276)
8
  Enclosure № 7 - Letter to the Ministry of foreign affairs
                                                                                                                  8
   49. The election of Patriarch Maxim has not been contested by believers or the clergy after it
took place. As the Church Convention, including the one for the election of a Patriarch, is
constituted following a multiple level election procedure, it is possible to contest the
ineligibility of voters at a certain point in time (according to Article 18 para. 2 of the Statute
of the Bulgarian Orthodox Church then in force), but not later than three days after the
election takes place. The choice of a patriarch of the Bulgarian Orthodox Church may not
be reviewed by any organ of lay authority, especially thirty years later.
   50. It should furthermore be observed that were His Holiness the Bulgarian Patriarch Maxim
not a legitimate patriarch, this would place those that have seceded from the Unity of the Church
into the position of illegitimate priests, which would make their position nonsensical. The Court's
Fifth Section entirely ignores the principle of legal certainty in reviewing the state interference
and pays no heed to the religious and public chaos that would set in should the legitimacy of the
patriarch be repealed retroactively after 30 years. The law does not allow that a subjective right
related to election rights and the constitution of organs be exercised unrestricted in time, since
this would endanger the stability of the legal and public systems.
   51. Patriarch Maxim has been recognised worldwide as head of the Bulgarian Orthodox
Church by all Orthodox Churches, as evidenced by the greetings extended during the
Church Convention for election of a patriarch. The Government recalls that patriarchs and
other representatives of all Eastern Orthodox churches - members of the One, Holy, Catholic and
Apostolic Church took part in the act of enthronement, including the then Ecumenical Patriarch
of Constantinople Athenagoras, Nicholas VI Patriarch of Alexandria, Ilia Patriarch of Antioch,
Benedict Patriarch of Jerusalem, Makarios Archbishop of Cyprus, Hieronymus Archbishop of
Athens and others.
   52. „The Orthodox Church worldwide has recognised, by three separate acts at different
points in time (the first, in 1953 when the Patriarchical status of the Bulgarian Church was
restored; the second, in 1998 when the pan-Orthodox Expanded Suprajurisdictional Council
overcame the existing schism; and the third, in 2009, when the pan-Orthodox communion of
representatives of the Eastern Orthodox churches established the church status of the Bulgarian
Church) which is the Orthodox or canonical Bulgarian Church. This established compliance
with the canon that serves to reiterate the singleness of this same Church, manifests the
institutional legality in the public context and in the framework of the positive national law in
Bulgaria and by extension throughout Europe";
   53. „The Court, be it a national Bulgarian or a European one, is not competent to determine
which is the Orthodox Church in Bulgaria, nor even to determine whether or not those who
seceded represent a Church, from a scientific religious or canon law perspective. This exclusive
competence belongs to the Orthodox Church, which already pronounced itself three times (in
1953, 1998, and 2009), in clear canonical terms and speaking in a single and clear voice".9

  2). Relevance of the canon law in proving the compliance with canon law of the
Bulgarian Orthodox Church leadership

   54. The fundamental principle of the One Holy Catholic and Apostolic Church is unity. The
Bulgarian Orthodox Church and each of the Eastern Orthodox churches has established its
management and organisation on the basis of this universal principle. In this sense it is not a
question of an autonomous decision or statement by part of the members of the Eastern
Orthodox community to set up for themselves a number of Orthodox churches with
leaderships up to their individual understandings. That is why it is not possible that in the

9
 Enclosure № 8 - Archimandrite Gregory, professor in canon law at the University of Athens and Paris, expert canon
opinion regarding the Orthodox church issue at hand.
                                                                                                                9
framework of a single Eastern Orthodox Church there are two legal persons that represent her.10
No one contests the free will of believers practising a religious denomination, in case of a
disagreement with the principles of management or the persons that represent her, to secede from
it and set up a religious community or church of their own, but the latter may not have the
characteristics of an orthodox church, since only this Eastern Orthodox church that has been
recognised by the other Orthodox churches is part of the Eastern Orthodoxy. Recognising
canonically a church and its head is primary, while its recognition by the state bears only
secondary importance. In this sense the state recognising Patriarch Maxim as a legitimate
representative of the Bulgarian Orthodox Church and the Holy Synod as a supreme college body
of government is not an act of state interference since this legal recognition by the State only
follows the primary canonical recognition by the other Orthodox churches, including by way
of decisions of the Holy Expanded Supra-jurisdictional Pan-Orthodox Council.

     3). Role and significance of the conventions in the Orthodox world

     а) National-level conventions

   55. The major issues concerning the life of the Church on national level are dealt with by
convening Councils of the Church and the People. This Council exercises the legislative power in
the Bulgarian Orthodox Church and is convened by the Bulgarian Patriarch and Metropolitan of
Sofia. Bishops, clergy and believers take part in the Council (Article 8 of the Statute of the
Bulgarian Orthodox Church). The supreme judicial and management authority is exercised by the
Holy Synod (Article 9 of the Statute). General economic and financial matters are managed by
the Supreme Church Council (Article 10 of the Statute).
   56. Pursuant to Article 109 of the Statute, the "Bishops Council shall deal with major issues
related to the religious denomination and procedures, and such of disciplinary and judicial
nature, whenever the Holy Synod deems it necessary. The Bishops Council comprises all bishops
of the Bulgarian Orthodox Church. Its decisions shall be final". Grave breaches of bishops are
subject to the Bishops Council as first and final instance (Article 180(b)). Pursuant to Article 188
item 3, dissent is a violation of the church regulations - "seceding from the Church unity or
severing the connection with the legitimately established church authorities". The most severe
sanctions for clergy found guilty are listed in Article 189, items 12 to 14 of the Statute, and are as
follows: epitemia (низвержение) (combined or not with excommunication as envisaged in the
canons), excommunication (отлъчване) (full separation from the communion of the Church) and
anathema.
   57. In this connection, on 24 July 1996, the Eighth Bishops Convention of the Bulgarian
Orthodox Church was convened to 'agree on a position as regards the Council of the Church and
the People convened by the separatists on 1 July 1996'. In the press release the Bishops Council11
of the Bulgarian Orthodox Church "requests the reverend legislative, executive and judicial
authorities, in the name of preserving the unity of the Church and of the Bulgarian Orthodox
people, to endorse and abide by the decisions of the Bishops Council". The government was
informed of the decisions of the Council in a letter of 29 July 1996. Therein the head of the Holy
Synod requested that the decisions of the separatist so-called Council of the Church and the
People be deemed not valid by the lay authorities and that all potential claims and demands of the
separatists not be granted, while the sanctioned and defrocked separatists not be heeded in any
official capacity.12


10
   Enclosure № 9 - Archimandrite Gregory
11
   Enclosure № 10 - Decisions of the Eighth Bishops Council of the Bulgarian Orthodox Church
12
   Enclosure № 11 - Letter of 29 July 1996 to the head of the Holy Synod
                                                                                                   10
     b) Pan-Orthodox Council

   58. In its judgment the Court's Fifth Section makes a single reference to the Holy Expanded
Pan-Orthodox Supra-jurisdictional Council of 1998, while totally ignoring the legal significance
of the decisions adopted by that Council, which decisions are directly relevant to the case at hand.
   59. The role of the Pan-Orthodox Councils in legal and canonical terms: The Pan-
Orthodox Council is the supreme forum of the Ecumenical Orthodoxy (similar to the ecumenical
councils in the early years of Christianity). According to the canons of the Orthodox Church, its
decisions are imperative and final for the Orthodox churches.
   60. On 30 September and 1 October 1998 a Holy Expanded Pan-Orthodox Supra-
jurisdictional Council took place in Sofia at the request of the Bulgarian Patriarch and
Metropolitan of Sofia Maxim and by the invitation and presided by ecumenical patriarch
Bartholomew. Church primates - patriarchs, archbishop, metropolitans and representatives of the
Eastern Orthodox Churches attended the Council that was convened to "review and resolve the
problems created by the division dating since 1992 in the Holy Bulgarian Church". The group of
separatists headed by the former Metropolitan Pimen was also invited to attend. Following their
repentance (including that of the applicant Inokentiy), they were admitted back to the Church
fold. Item 3 of the decisions mentions inter alia that "All holy temples, holy places and their
various real estates so far in possession of the persons admitted in this way to the Church, shall
pass on to the one and only canonical Bulgarian Church".
   61. By adopting unanimously the above-mentioned decisions, the Pan-Orthodox Council thus
considered the "division created in 1992 repealed and removed from the life and memory of the
Holy Bulgarian Church and thus of the entire Orthodox Church..." 13
   62. The decisions of the Holy Expanded Pan-Orthodox Supra-jurisdictional Council (30
September - 1 October 1998) were confirmed also by the Jerusalem Council of 20 January 2000
and of the Constantinople Council of December 2000, which firmly placed those who dissented
from the communion of the Bulgarian Orthodox Church - both clergy and believers - not only
beyond the realms of the Bulgarian Orthodox Church, but outside the entire ecumenical
Orthodoxy.
   63. The decisions of the Council of 1998 only confirm the legitimate leadership of the
Bulgarian Orthodox Church, the Holy Synod headed by Patriarch Maxim, since from the
perspective of the canon law the continuity of the Bulgarian Orthodox Church leadership has
never been interrupted.
   64. It must be emphasized that the Holy Expanded Pan-Orthodox Supra-jurisdictional Council
that took place in Sofia in 1998 has been mentioned in the chronology of events (paras. 35 and
36) but has not been taken into consideration at all by the Fifth Section of the Court when
analysing the relevant facts of the case. Even in the section on the circumstances of the case the
Court's Fifth Section does not refer to the essential conclusions from the Pan-Orthodox Council,
the most important one being that the "dispute" and the division in the Bulgarian Orthodox
Church that started back in 1992 has been canonically resolved and overcome.
   65. In para. 36 of the judgment the Court's Fifth Section states that the council "did not bring
about reconciliation" and apparently "Patriarch Pimen and Metropolitan Inokentiy either did not
make statements of repentance at the Church Convention or retracted them" but makes no
reference to any evidence to that end (e.g. withdrawal of the repentance made). At the same time,
as evidenced in the records of the Council (enclosed) and the religious rituals performed during
the Church convention, such repentance did take place.


13
  Enclosure № 16 - Decision of the Holy Expanded Supra-jurisdictional Pan-Orthodox Council convened on 30
September 1998 in Sofia.
                                                                                                      11
   66. The decisions of the Council, as explained above, are imperative and are not subject to
appeal; they must be complied with. Failure to abide by these decisions by the persons that were
ultimately excommunicated results in their full separation not only from the Bulgarian Orthodox
Church but from the entire Holy Orthodoxy.14 The canonical resolution of such an issue rules out
that the matter is reviewed by any other Church or secular body. Only through repentance may
those who dissented from the Unity of the Church return back to the Church fold.
   67. Therefore, by stating that the religious community has not been offered a sufficiently
authoritative resolution of the issue and thus qualifying the Holy Expanded Pan-Orthodox Supra-
jurisdictional Council and the value of its decisions, the Fifth Section of the Court disqualifies the
most authoritative organ of the Orthodox community and contests the canonical and legal validity
of its decisions.
   68. A communiqué (encl.) of the Pan-Orthodox working meeting convened in 2009 reads as
follows, "The question arises why this act of the Council has not been considered and
acknowledged by the Court for Human Rights in Strasbourg, a fact which has influenced its final
judgment. Provided this authoritative and binding decision of the Council that puts an end to the
division in the Bulgarian Orthodox Church, a statement to the end that the Bulgarian State has
arbitrarily interfered, including through legislative means, in the internal affairs of the Bulgarian
Orthodox Church is groundless".
   69. It must be noted that all essential matters regarding the leadership of the autocephalous
Orthodox churches are settled precisely and singly by this supreme Orthodox organ:
        - in 1973, at the request of the Holy Synod of the Church of Cyprus, Nicholas VI,
Patriarch of Alexandria, convened and chaired an expanded Orthodox convention that settled the
issue whether or not the archbishop of the Cypriot Church may be head of state. The decisions of
the convention thus provided that archbishop Makarios may hold the president seat due to
exceptional circumstances;
        - in 2005 the Ecumenical Patriarch Bartholomew convened, at the request of the Holy
Synod of the Jerusalem Patriarchy, a Pan-Orthodox Council where the primates of all Eastern
Orthodox Churches attended to resolve the crisis related to the deposing of the elected in 2001
Patriarch of Jerusalem Irenaios. The Pan-Orthodox convention stipulated that Irenaios should
withdraw. He was succeeded by Theofilos III from the Jerusalem Patriarchy who was recognised
by all jurisdictions for Patriarch of the Holy City of Jerusalem and Palestine;
        - in 2006 the Ecumenical Patriarch Bartholomew convened, at the request of the Holy
Synod of the Cypriot Orthodox Church, a Pan-Orthodox Council in Switzerland where the
representatives of the four ancient patriarchies (Constantinople, Alexandria, Antioch, Jerusalem)
took part, as well as the metropolitans of the Archbishopric of Cyprus. Following the ancient
canons of the Orthodox Christianity, the Council relieved of his position archbishop
Chrysostomos as he was prevented from discharging his duties due to Alzheimer's disease
and scheduled elections for a new primate of the Church of Cyprus.
   70. The Court in its jurisprudence has also acknowledged the supreme role of the Ecumenical
Patriarchy in the Orthodox world (judgment Affaire Fener Rum Patrikligi (Patriarcat
Oecumenique) c. Turquie (Requête no 14340/05) „Le requérant, Fener Rum Patrikliği (le
Patriarcat œcuménique), est une Église orthodoxe établie à Istanbul qui dispose d'une primauté
d'honneur et d'un rôle d'initiative et de coordination dans l'ensemble du monde orthodoxe.
Actuellement, il réunit et représente la minorité orthodoxe en Turquie. Il est représenté par Sa
Sainteté le patriarche œcuménique Bartholoméos Ier."




14
  The message was presented to the Court by the third party, the Bulgarian Orthodox Church, as represented by
Patriarch Maxim.
                                                                                                          12
  c) The so-called "Councils of the Church and the People" convened in the period 1996 -
1999 not in conformity with the Statute and the canons

   71. In 1996 the Holy Synod became aware that the dissented metropolitan Pimen (appointed
interim council head of the Church in 1992 by letter no. 92 of 25 May 1992) was in the process
of organising a Council of the Church and the People. In this connection, on 29 May 1996 the
Holy Synod sent a letter to the Prime Minister informing him that pursuant to Article 130 para. 1
of the Statute of the Bulgarian Orthodox Church such councils are convened, chaired and closed
by the patriarch or his delegate, and the Government is informed thereof in accordance with
Article 39 para. 2. The Holy Synod drew attention to the fact that the organisers of the
convention are defrocked and deprived of any church and administrative rights and thus avail of
no canonical or any other justification to convene such a council.15 Therefore this convention has
none of the attributes of a Council of the Church and the People since it was organised in
violation of the Statute and in this sense is unlawful.
   72. Nevertheless, on 4 July 1996 the applicants held a convention, which they named a
"Council of the Church and the People" and which "elected" Metropolitan Pimen as Patriarch and
head of the Church, and Inokentiy as Metropolitan of Sofia. They further claim that amendments
to the Statute of the Bulgarian Orthodox Church were adopted during the "Council". In this
regard it must be emphasized that this convention was not held in compliance with the Statute of
the Bulgarian Orthodox Church - it is only the Holy Synod, and not "several hundred clergy
members and believers" (§23 of the judgment) that can convene a Council to elect a new head of
the Church. Furthermore, all metropolitans and not just the three clergymen dissented and
seceded from the unity of the Church must attend such a Council. Even if it was assumed that the
Council was convened in compliance with the canons, the election of Pimen as Patriarch and
head of the Church and of Inokentiy as Metropolitan of Sofia violates the Statute of the Bulgarian
Orthodox Church, which stipulates that the Bulgarian Patriarch shall be the Metropolitan of
Sofia. According to Article 14 of the Statute, the "Bulgarian Patriarch shall be Metropolitan of
Sofia. He shall serve for life.".
   73. The decision furthermore violates the general church, rules of Orthodoxy, which require
that head of an Eastern Orthodox Church is the metropolitan of its capital city. The representative
authority of each autocephalous Eastern Orthodox Church is vested in and exercised by its
primate - metropolitan, archbishop, patriarch, who by force of tradition and canons is the eparchy
prelate (metropolitan) of the capital (main) city.16
   74. The attention of the Court would also be drawn to the contradiction of the following two
facts. The applicant organisation convened in 1996 the so-called "Council of the Church and the
People", which, as has been mentioned already, elected a new "Patriarch" in violation of the
Statute of the Bulgarian Orthodox Church and the canon. Since the applicants deem the 1996
"Council" canonically legitimate and therefore bound to produce legal consequences in the
Orthodox world, it remains unclear what necessitated holding a second congregation on 9 and 10
November 1998, which voted to remove Patriarch Maxim (para. 37), provided he should be
considered removed as early as 1996. Moreover, this congregation was held after the Holy
Expanded Supra-jurisdictional Pan-Orthodox Council and is in full violation of the canon rules.



15
  Enclosure № 12 - Letter of the Holy Synod to the Prime-Minister of 29 May 1996.
16
  For example, the Patriarch of Jerusalem and Palestine; of Alexandria and Africa; of Antioch and the East;
Patriarch of Constantinople and Ecumenical Patriarch; of Moscow and Russia; of Belgrade and Serbia; of Bucharest
and Romania, etc. See apostolic rule 34, rule 3 of the Second Ecumenical Council, rule 28 of the Fourth Ecumenical
Council etc.

                                                                                                               13
   4). Consequences in case of disregarding the decisions of the Holy Expanded Supra-
jurisdictional Pan-Orthodox Council:

    75. According to the Orthodox canons, clergy members who fail to comply with the decisions
of the Holy Expanded Supra-jurisdictional Pan-Orthodox Council, are considered not only to
have seceded from the Bulgarian Orthodox Church, but from the Orthodoxy altogether, due to the
grave breach of canons which such non-compliance constitutes. Furthermore, the belonging of a
clergyman to the Orthodox Church is not only a question of self-determination or exercise of an
individual right, but first and foremost of compliance with centuries-old rules, canons and
requirements that may not be altered by the secular authorities or upon the demand of a group of
clergymen or believers.
    76. Therefore the Government fully acknowledges the practice of applying the Convention in
this regard and adheres to the principle as formulated by the Court that "religious associations
are free to determine at their own discretion the manner in which new members are admitted and
existing members excluded" (see Svyato-Mykhaylivska Parafiya v. Ukraine, paragraph 150).
    77. In its case-law the Court also finds that „the church itself is protected in its right to
manifest its religion, to organise and carry out worship, teaching practice and observance, and it
is free to act out and enforce uniformity in these matters. Further, in a State church system its
servants are employed for the purpose of applying and teaching a specific religion. Their
individual freedom of thought, conscience or religion is exercised at the moment they accept or
refuse employment as clergymen, and their right to leave the church guarantees their freedom
of religion in case they oppose its teachings. It is ultimately the Church that may impose on its
clergymen and other servants certain restrictions and requirements for compliance with the rules
and doctrine and where those persons reject, or object to, the church canons, their right to
freedom of religion is guaranteed by their right to leave this Church (applications 7374/76 Х v
Denmark, D&R5(1976), 12356/86 Karlsson v. Sweden, D&R57(1988)”.”
    78. "On the other hand if the requirements imposed upon a person by the church should be in
conflict with his convictions he should be free to leave his office, and the Commission regards
this as an ultimate guarantee of his right to freedom of thought, conscience and religion". It
obviously means that in case of a conflict in the church discipline and hierarchy, a servant or
member of the church who no longer adheres to this hierarchy, must choose one of the two
possibilities - either abide by the hierarchy and the discipline or leave the church (applications
12356/86 Karlsson v. Sweden, D&R57(1988) Rommelfanger v. Germany 12242/86, 7374/76 Х v
Denmark, D&R5(1976).”.
    79. There are no objective legal considerations to depart from this well established practice of
the Court in the case at hand and treat the applicants differently, in contradiction with it. This
would raise serious questions as to the principle of the application of identical standards with
respect to the religious denominations of the Council of Europe Member States and would allow
for a grave and inadmissible conflict in the interpretation and application of the provisions of the
Convention.
    80. It should be underlined furthermore that the "internal structure of a religious organisation
and the regulations governing its membership must be seen as a means by which such
organisations are able to express their beliefs and maintain their religious traditions" (see
Svyato-Mykhaylivska Parafiya v. Ukraine, §150 cited above). The applicant acted in
contradiction with this principle established by the Court's case-law; he used his membership
relationship with the Holy Synod to contest the religious traditions of the Bulgarian Orthodox
Church by proclaiming himself leader through illegitimate means according to the canon (and not
determined as unlawful by the State).
    81. Consequently, the Bulgarian State has not exercised any discretion in regard to this matter
which is entirely within the competence of the canon law.
                                                                                                 14
      5). International recognition of the legitimate leadership headed by Patriarch Maxim

   82. The legitimacy of the Bulgarian Patriarchy is recognised by the Ecumenical Patriarchy of
Constantinople and by all heads of Orthodox Churches in the world.
   83. It should be emphasised that pursuant to the Statute of the Bulgarian Orthodox Church
and the Orthodox canon, ever since the election of a new Patriarch of the Bulgarian Orthodox
Church in 1971 till the present day the continuity of the church leadership has not been violated.
This continuity has not been interrupted by the non-canonical congregation held in 1996 either,
as evidenced by the above-mentioned decisions of the Holy Expanded Supra-jurisdictional Pan-
Orthodox Council of 1998 and the address to the Bulgarian people of the Ecumenical Patriarch
Bartholomew on behalf of the primates of the Eastern Orthodox Churches in 2000, where
he calls upon all Orthodox believers in Bulgaria to remain in unity with their canonical bishops
and the canonical Holy Synod headed by His Holiness the Bulgarian Patriarch and Sofia
Metropolitan Maxim who "alone is recognised as such by all Orthodox Churches".
   84. Since 1971 the Holy Synod as the supreme governing body of the Bulgarian Orthodox
Church and the Bulgarian Patriarch who represents the Bulgarian Orthodox Church, have
enjoyed the recognition and respect of the Bulgarian people and the official state institutions
alike. Heads of diplomatic missions, on their own initiative, and regardless of the religion they
practice, all meet the Bulgarian Patriarch Maxim after they present their credentials to the
respective state authorities. On the international arena the Bulgarian Patriarch and Metropolitan
of Sofia Maxim and the Holy Synod he represents have always enjoyed, and still enjoy, the
recognition of all Eastern Orthodox churches, members of the One, Holy, Catholic and Apostolic
Church.
   85. Another indication of the international recognition of the Bulgarian Patriarch is the Pan-
Orthodox meeting of March 2009, where the representatives of the Orthodox autocephalous
churches stated in a press release that the Pan-Orthodox meeting was a continuation of the Holy
Expanded Supra-jurisdictional Pan-Orthodox Council of 1998 and that the "unity of the
Bulgarian Orthodox Church and the compliance with the canon of the Holy Synod and His
Holiness [Patriarch Maxim] are beyond any shadow of doubt from the view of the canon law and
the ecumenical Orthodoxy".17

  6). The Religious Denominations Act of 2002 and its compatibility with Article 9 of the
Convention

   86. In para. 157 of the judgement it is correctly stated that the "ex lege recognition of the
Church cannot be seen as incompatible with Article 9 in principle". Article 10 of the Religious
Denominations Act reproduces the organisational structure of the Bulgarian Orthodox Church, in
accordance with its Statute, and thus provides that the Church is headed by a Holy Synod and
represented by the Bulgarian Patriarch. This text demonstrates that the legislator takes into
account that these are issues pertaining to the internal organisation of the Church and the latter is
the only body authorised to amend the provisions of its Statute.
   87. It should further be noted that this also complies with the recommendation in Resolution
1390 (2004) of the Parliamentary Assembly of the Council of Europe "to ensure in other ways
without interference by the executive that the leadership of the Bulgarian Orthodox Church is
legitimate according to Orthodox canonical law".
   88. On the other hand however, the statement that follows in the same paragraph (157) of the
judgment that the 2002 Act was incompatible with Article 9 of the Convention is based again on

17
     Enclosure № 15
                                                                                                  15
the initial erroneous assumption that the introduction of the ex lege recognition of the Church was
done "in a time of deep division" "when two leaderships claimed legitimacy and used two
different versions of the Statute of the Church" (para. 153). As demonstrated above, such a
statement runs contrary to the facts and the applicable law.
   89. The Court's Fifth Section considered whether the registration of the Bulgarian Orthodox
Church leadership as represented by Patriarch Maxim did not place it in a privileged position, and
thus discriminatory vis-à-vis the other religious communities.
   90. The Religious Denominations Act does not require registration by the court of the
Bulgarian Orthodox Church. The status of the subjects recognised ex lege implies precisely that
there is no need of subsequent approval by a court (including by means of registration) of the
internal acts of the organisation. It brings ipso facto legal consequences and is not subject to
discretion. There is no formal legal impediment for a subject to be recognised by the law itself
and usually this is the case as regards institutions of general and intransient historical importance
and national value.
   91. Likewise, according to the Court's case-law, the legal personality of a church is evidenced
also by a series of conclusive acts that demonstrate its role in public life and the turnover. In its
judgement Case of Canea Catholic Church v. Greece of 16 December 1997, for example, the
Court stated that it "cannot accept the Government's argument that the applicant church should
have carried out the formalities necessary for acquiring one or other form of legal personality
provided for in the Civil Code as there was nothing to suggest that it would one day be deprived
of access to a court in order to defend its civil rights" (para. 40). The Court further held in the
same judgement that "Settled case-law and administrative practice had, over the course of the
years, created legal certainty, both in property matters and as regards the representation of the
various Catholic parish churches in legal proceedings, and the applicant church could
reasonably rely on that".
   92. Recognising a subject by law rules out in legal and logical terms its registration or entry in
public records. For that reason a subsequent hypothetical registration of the religious
denomination in public records would create, rather than resolve the pending problems since it
would confuse the two types of subjects - those existing ex lege and those subject to registration.
That is why we share the reservations expressed by the Court in the above-mentioned judgement
that "Quite apart from the difficulties of adapting a church to that kind of structure and the
procedural problems which might arise in the event of litigation, such late compliance with the
relevant rules of domestic law might be interpreted as an admission that countless acts of the
applicant church in the past were not valid."
   93. On the other hand, in the case of the Bulgarian Orthodox Church, registration of the
applicant organisation with an identical name would constitute a violation of the "rights of
others".
   94. Making use of the identical name, "Bulgarian Orthodox Church - Patriarchy" by another
Orthodox religious community, different from the canonically recognised one, is in fact
violation of the rights of the other, by far more numerous, part of the Bulgarian Orthodox
believers. At the same time the applicant organisation may not make use of that name on the
basis of the right to self-determination of the, churches, as this right rules out the possibility that
one church uses the name of another church.
   95. In this sense the judgement of the Court of 17 February 2004 in the case Gorzelik and
others v Poland regarding the Union of People of Silesian Nationality (Application no.
44158/98) reads that this Union may not use the name in question since this would violate the
"rights of others"
   96. The Bulgarian State has consistently maintained that the national court should not refuse
the registration of a religious organisation under a name distinct from that of an already existing
ex lege religious community.
                                                                                                    16
   97. Therefore, in the case at hand the State refraining from any action may not be qualified as
an unlawful act, as it was in the interest of Bulgarian society and aimed at protecting the rights
and freedoms of others.

   B). Obligations of the State as regards the principle of State non-interference in areas of
exclusive competence of the religious communities

    98. The Bulgarian government does not agree that the "actions complained of constitute[d]
State interference with the internal organisation of the Bulgarian Orthodox Church" (para. 114)
and that this interference has affected adversely the Christian Orthodox believers and their
community as a whole (para. 102). In its consistent practice the Court admits that organising the
exercise of religious cults by the state leads to religious harmony and tolerance. The Court does
not ignore the margin of appreciation of the State in similar situations (judgement Manoussakis
and Others v. Greece of 26 September 1996, Reports 1996-IV, p. 1364, §44), "particularly with
regard to establishment of the delicate relations between the Churches and the State" (judgement
Cha're Shalom Ve Tsedek vs France of 27 June 2000, §84).
    99. Besides, the development of the Court's jurisprudence demonstrates that the State has also
the positive obligation to protect the freedom of religion. In the case Shalom Ve Tsedek vs France
of 27 June 2000, for example, the French State gave a particular example of positive action by the
State with a view to guaranteeing the freedom of religion.
    100. The Court's case-law indicates that the State may and should interfere, in order to avoid
semi-legal practices and contradictory court rulings and putting at risk the legal certainty. This is
precisely what the Bulgarian State did by undertaking actions to restore the status quo that was
violated as a result of unlawful acts of illegitimate authority on the part of the applicants. The
adoption of the Religious Denominations Act in 2002 follows the same pattern of measures
aimed at preventing the recurrence in the future of similar situations that threaten the peaceful
exercise by an existing religious community of the right to freedom of religion by allowing that
its own members to infringe upon its internal rules, with the aid of the authorities.
    101. In para. 110 of the judgement the Fifth Section holds that the authorities' involvement
was not limited to mere recognition of the existence of the Church's leadership. In fact that is
precisely what the Bulgarian authorities did they recognised the legitimate leadership of the
Bulgarian Orthodox Church by referring to the Statute of the Church and the canon law in this
sphere. Neither the Constitution, nor the (repealed) Religious Denominations Act or the Statutes
of the Church contain any provisions authorising the State through its institutions to approve the
leaderships of the religious denominations. The Statute of the Bulgarian Orthodox Church has
never since its adoption been contested, either through by administrative or judicial means.
    102. The actions following the recognition of the legitimate leadership of the Church did not
aim at uniting the believers under a single leadership, but rather meant to restore the principle of
legal certainty, which for years had been undermined by the actions of the applicant's followers.

  C). Role of the Court in assessing the legitimacy of the leadership of the Bulgarian
Orthodox Church

   103. The judgement explicitly states that "[I]t is certainly not the Court's task to determine the
canonical legitimacy of Church leaders" (§104), which is even more straightforwardly stated in
§137: "It is not the Court's task, and indeed it is not the task of any authority outside the
Bulgarian Christian Orthodox community and its institutions, to assess the validity under canon
law of the opposing claims to legitimacy made by the rival leaderships". At the same time, further
down in the same paragraph, contrary to the aforementioned, the Fifth Section explains that it
will attempt precisely that: "In the examination of the events under the Convention, however, the
                                                                                                  17
relevant fact is that by 2002, when the State authorities undertook the impugned action to "unite"
the Church, it had been de facto and genuinely divided for more than ten years and had two rival
leaderships, each of them considering, on the basis of arguments which were not frivolous or
untenable, that the other leadership was not canonical". The very finding of the Court of a
division in the Church is in itself an act of interpretation of the canon rules, as well as in
disrespect of the decisions of the supreme forum of Orthodox churches, namely the Holy Pan-
Orthodox Supra-jurisdictional Council of 1998.
   104. Paragraph 147 of the judgement explicitly states that "[T]he Court's case-law in this
respect is clear: in democratic societies it is not for the State to take measures to ensure that
religious communities remain or are brought under a unified leadership…". Evidently the Court
had to examine the issue of the legitimacy of the leader, in order to hold whether or not there has
been a violation of the Convention. This legitimacy however may only be determined by
applying the canon law and rules.

   D). Scope of Article 9 and its inapplicability, either individually or interpreted in the
light of Article 11, in relation to the events described

   105. The Bulgarian Government maintains its position already stated above that there has
been no violation by the State of the rights of the applicants under Article 9, interpreted
individually or in connection to Article 11.
   106. The conflict between the head of the Bulgarian Orthodox Church Patriarch Maxim and
the applicants (the separatists) who unlawfully tried to deprive him of his authority as Patriarch
is not y due to any substantial obstacles to exercising the freedom of religion or to conflicts
between the two groups of the divided Orthodox community based on differences in the
religious views, but mostly to the unjustified claims by the leaders of the separatists vis-a-vis the
head of the Bulgarian Orthodox Church. The Government fully agrees with the finding of the
Court in paragraph 103 of the judgement that "[I]t is true that the conflict in the Bulgarian
Orthodox Church was not about divergent religious beliefs and practices but mainly about the
choice of leadership (see paragraphs 14-41)". It follows from the judgment that the question is of
internal church legal nature (organisation of the church power, procedure for election of head of
the Church, etc.).
   107. The conviction of the separatists that the Bulgarian Orthodox Church has another
legitimately elected head cannot be considered as directly related to the freedom of religious
denomination and freedom of religion as they are of a totally different nature. The refusal of the
State to recognise the unlawful claims of the separatists regarding the change of the leadership of
the Bulgarian Orthodox Church and to facilitate such claims which are not rooted in law cannot
be viewed to constitute a violation of Article 9 of the ECHR.
   108. Firstly, as regards the alleged interference in the internal organisation of the Orthodox
religious denomination, the Bulgarian government shares the view stated in a number of the
Court's judgements that "since religious communities traditionally exist in the form of organised
structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which
safeguards associative life against unjustified State interference" paragraph 34) and "the right of
believers to freedom of religion, which includes the right to manifest one's religion in community
with others, encompasses the expectation that believers will be allowed to associate freely,
without arbitrary State intervention" (Metropolitan Church of Bessarabia and Others v. Moldova,
application no. 45701/99, paragraph 118).
   109. In the case at hand however the applicants do not complain of their impossibility to
associate freely and to exercise their religious rights. What they aim at is usurping, by overtaking
from the inside and using instruments of the secular power, a lawfully existing denomination by
replacing its legitimate and recognised leadership, in violation of the canonical rules. That is why
                                                                                                  18
Article 9 may not be invoked to provide protection of such a behaviour as this would result in
infringing on the rights of the Orthodox believers of the existing Bulgarian Orthodox Church,
namely to be led by leaders who have been elected according to the rules of the canon and have
been recognised by the entire Orthodox church hierarchy - the Constantinople Patriarchy, the
Greek (Hellenic) and Cypriote Archbishoprics.
    110. In practice the Court's case-law shows that Article 9 „does not protect every act
motivated or inspired by a religion or belief" (see Kalaç v. Turkey of 1 July 1997, Reports 1997-
IV, p. 1209, paragraph 27) and this gives reason to the Bulgarian government to state once again
that the claims of the applicants exceed the scope of rights guaranteed by Article 9.
    111. The Court's Fifth Section does not deny that it is not the "Court's task to determine the
canonical legitimacy of Church leaders" (paragraph 104 of the judgement), but by ruling on this
issue it contradicts its own principles. In the case Svyato-Mykhaylivska Parafiya v. Ukraine, for
example, the Court criticises, in paragraph 149, both the Kyiv City Court and the Supreme Court
of Ukraine for ignoring the internal regulations of the Parish, and the history of the Parish
administration and basing their findings on an "unclear reference" as to what constituted a
"religious group" and to arguably analogous meanings of the words "parish", "group", "general
assembly" and "parishioners' assembly". The European Court accordingly found that the Kyiv
City Court's refusal to order the registration of the changes and amendments that had been made
to the statute was based on reasoning that was not "relevant or sufficient".
    112. In the case of the Bulgarian Orthodox Church, the - Court's Fifth Section ignores
precisely the legitimacy of the Bulgarian Patriarch and the internal regulations governing the
Church community life - both requirements adhered to in the above-quoted judgement. That is
why it reaches an erroneous conclusion that in fact "two opposing groups of leaders, each
supported by decisions of separate Church conventions" hold claims to legitimacy (para. 107).
    113. In its well established practice the Court confirms that it must look at the interference
complained of in the light of the case as a whole and determine whether it was "proportionate to
the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify
it are "relevant and sufficient" (see Case of Gorzelik and Others v. Poland, appl. no. 44158/98).
In this connection the Bulgarian Government views that, albeit relevant, the arguments it
provided in relation to the actions complained of have been underestimated or entirely ignored.
    114. In examining whether the state interference in the dispute regarding the leadership of the
Bulgarian Orthodox Church is "unlawful and unjustified" (para. 104), the Court overlooks also
the norms of the canon law, on the basis of which it should asses whether the action of the
authorities was lawful and justified. Some general conclusions from the Court's case-law are put
forward, but these are not applicable in the context of the established balance between the
positive secular law and canon law. Furthermore, they even put at risk the national legal order.
    115. The unlawful actions of the applicants have serious legal and practical consequences and
were aimed at immediately removing the legitimate leadership of the Orthodox community and
replace it with leaders related politically with the then ruling government. These unlawful acts
cannot create rights protected by the Convention as they contradict a fundamental legal principle
(known since Roman times and incorporating the nemo dat quod non habet principle), namely
that no one can draw rights from his or her own unlawful behaviour.
    116. The attitude of the believers or the clergy in a religious denomination toward its
leadership and management should be examined not in terms of the right to association, but
should be assessed within the context of the internal rules of this religious community. The
judgement raises an essential question of general importance regarding the interpretation and
application of Article 9 in the light of Article 11 of the Convention. The - Court's Fifth Section
only examined the legal being of the religious denominations and churches, without taking into
account their specific nature of religious denominations and churches, and treated the issue of

                                                                                                19
the internal corporate freedom in the framework of a religious denomination as a manifestation of
the principle of plurality in a democratic society.
   117. No church has originated on the basis of a constituent act of a legal person, but is rooted
in a common belief. Article 10 of the Religious Denominations Act only reproduces what the
Bulgarian Orthodox Church is by force of its Statute and the canons.
   118. The Church may not be considered in purely legal terms, as an association based on the
right to association because its foundations are different - it is based in the belief, and not on the
common will of the founding members set to achieve a particular objective or pursue a particular
interest. Internally Churches are organised according to their autonomous internal rules, and not
to the principles of the domestic law of the State regarding associations. The opposite would be
tantamount to infringing upon the freedom of religion as set forth in Article 9 of the Convention.
   119. The Court's case-law shows that the list of restrictions to the freedom of religion and
association set in Articles 9 and 11 of the ECHR respectively is exhaustive. The "exceptions to
the rule of freedom of association are to be construed strictly and only convincing and compelling
reasons can justify restrictions on that freedom. (See Gorzelik, cited above, § 95; Sidiropoulos,
cited above, § 40; and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos.
29221/95 and 29225/95, § 84, ECHR 2001-IX; Svyato-Mykhaylivska Parafiya v. Ukraine,
judgement of 14 June 2007, etc.
   120. In this sense the actions of the State may be justified only if they meet the following
requirements under the Convention: prescribed by law and necessary in a democratic society
in pursuing a legitimate objective. The arguments are the following:

   1. The requirement "prescribed by law"

    121. According to the established practice of the Court, the requirement "prescribed by law"
implies that the contested measures are based in national law. "It also refers to the quality of the
law in question, requiring that it be accessible to the persons concerned and formulated with
sufficient precision to enable them - if need be, with appropriate advice - to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given action may entail and to
regulate their conduct" (See judgement Gorzelik and Others v. Poland [GC], no. 44158/98,
paragraph 64, ECHR 2004-I; judgement Sunday Times v. the United Kingdom of 26 February
1979, Series A No. 30, p. 31, paragraph 49; judgement Larissis and Others v. Greece of 24
February 1998, Reports 1998-I of 24 February 1998, p. 378, paragraph 40; Hashman and Harrup
v. the United Kingdom, Grand Chamber, Appl. No. 25594/94, para. 31, ECHR 1999; and Rotaru
v. Romania, Grand Chamber, Appl. No. 28341/95, para. 52, ECHR 2000. „The law must indicate
the scope of any such discretion conferred on the competent authorities and the manner of its
exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to
give the individual adequate protection against arbitrary interference" (See Hasan and Chaush v.
Bulgaria, Grand Chamber, Appl. No. 30985/96, para. 84, Rotaru v. Romania, para. 55).
    122. The actions taken by the Bulgarian Government fully meet the requirement "prescribed
by law" as interpreted in the Court's case-law.
    123. The Government highlights that law enforcement in Bulgaria is within the competence
of the executive power, and that all Bulgarian citizens, regardless of their religious denomination,
must abide by the law. The legal system of any State must create equal conditions for all citizens
to exercise their religious rights, while at the same time it must ensure compliance with all other
laws. In this connection the state organs acting in 2004 had legitimate reasons to exercise their
powers in case of a genuine necessity and upon a particular request - in this case by the Bulgarian
Orthodox Church, aimed at protecting its property against persons whom the Church itself does
not consider belonging to it.

                                                                                                   20
    124. Pursuant to the legislation in force in 2004, the Prosecutor's office is the authority
empowered to provide urgent protection of infringed property rights at pre-trial phase. The
actions of the Prosecutor's office are also based on notary invitations18 served to the applicants
on behalf of the Bulgarian Orthodox Church. The applicants were thus informed and granted
sufficient time to abide by the request to leave the property which did not belong to them and
which they illegally occupied.
    125. It is an undisputed fact that the religious community, through the Holy Synod of the
Bulgarian Orthodox Church and in the framework of its Statute, determines which clergymen and
in which temples shall perform their duties. There is no practice for the clergymen to choose
themselves their places of service, nor are these places of service permanent. For the priests the
temples are places of employment and they must leave them, especially in case of disagreement
with the hierarchical management.
    126. As the persons in question did not respond to the invitations, the Holy Synod lodged
complaints with the PG Office on 30 June 2004 and with the Sofia City Court on 2 July 2004.
(encl.) to the complaints were the respective documents and notary invitations, together with a
request to verify whether these persons were acting within the scope of their rights and powers.
A list of the illegally occupied temples of the Bulgarian Orthodox Church was enclosed. On the
basis of the complaints, prosecutorial files were opened and checks were ordered to verify the
authenticity of the information. On 20 July 2004 an order was issued by the Sofia Prosecutor's
Office to the Ministry of Interior bodies to provide support to the Bulgarian Orthodox Church
"by ensuring access to the legitimate clergyman". On 21 July 2004 all church premises that had
been illegally occupied by persons self-proclaimed as the 'Holy Synod' were transferred back to
persons authorised by Patriarch Maxim and the metropolitans. Nowhere did the police resort to
the use of force as no resistance was offered. A single incident took place in front of the St.
Paraskeva Church in Sofia as several persons put up resistance to the law enforcement officials.
In the following months most of the clergymen across the country, who had seceded from the
unity of the Church, submitted requests for repentance and were admitted back to the canonical
Church. Most of them were reinstated in the same temples they used to serve in during the period
of Church division.
    127. Such requests for repentance19 were submitted by the heads of the Sts. Cyril and
Methodius temple, Sts. Peter and Pavel temple, St. Petka Samardzhiyska temple, St. Sofia and St.
Transfiguration of Jesus temples. The applicant Inokentiy refers to those same temples. One of
the persons who repented - Anatoly Balchev, withdrew his name from application no. 35677/04
to the European Court of Human Rights.
    128. The Government emphasizes that pursuant to Article 127 of the Constitution of the
Republic of Bulgaria the Prosecutor's Office is empowered to monitor compliance with the law
in the country. It has no powers to interpret law provisions or rulings of the Constitutional Court,
but to ensure their strict application and observance by all citizens. The Prosecutor's Office was
under the obligation, after it had been seized with a complaint from the Holy Synod of the
Bulgarian Orthodox Church20, signed by Patriarch Maxim, to undertake the necessary actions to
check the existence of breaches of the law or of crimes, to their termination and the avoidance
of any harmful consequences thereof, as well as to ensure assistance from the law enforcement
bodies of the Ministry of Interior. It should be pointed out that pursuant to Article 6, para. 1,
item 2 of the Religious Denominations Act, the right to to freedom of religion shall also include
the right to establish and maintain places of worship and religious reunion. The real estates of
the Bulgarian Orthodox Church and its local units - metropolis, churches and monasteries, are

18
   Enclosure № 17
19
   Enclosure № 14
20
   Enclosure № 13
                                                                                                 21
administered by its supreme bodies (the Holy Synod, eparchy metropolitans and eparchy
councils) so no deals of transfer of property or property rights are possible.
     129. The Government would like to emphasize that all actions of the Prosecutor's Office in
2004 were within the framework of its competence as set forth in the Bulgarian Constitution and
the Judicial System Act (repealed), in particular Article 118 thereof, in force at that specific point
in time. This provision is based on extensive practice and is aimed at ensuring protection against
arbitrary actions of unentitled persons. In the national legal doctrine and practice the entry to an
estate (writ of possession) does not constitute a forceful deprivation of possession as long as it
is a lawful interference by a state body and the requirements of the law are met.
     130. The government maintains that the Court's Fifth Section has incorrectly interpreted the
competence of the Prosecutor's Office by reference to Zlínsat, spol. s r.o., v. Bulgaria, no.
57785/00, paras. 97-101, 15 June 2006 and has thus qualified the actions of the Prosecutor's
Office as unlawful intervention in private matters (para. 140).
     131. The Prosecutor's Office did not aim at intervening in a private law dispute or in the
organisation of the religious community, but only acted within its powers as set by law and in
accordance with Article 118 of the Judicial System Act:
       „ Art. 118. The prosecution shall supervise law abidance by:
       1. (new - SG 39/06, in force from 12.05.2006) conducting the investigation and exercising
supervision over its lawful execution;
       2. (new - SG 39/06, in force from 12.05.2006) carrying out investigation;
       3. (suppl. SG 74/02, prev. text of item 1 - SG 39/06, in force from 12.05.2006) bringing to
justice, by the order and within a period established by law, the persons who have committed
crimes, and by indicting in criminal cases initiated by the Prosecution;
       4. (prev. text of item 2 - SG 39/06, in force from 12.05.2006) exerting control over the
execution of penal and other measures of compulsion;
       5. (suppl. SG 133/98, prev. text of item 3 - SG 39/06, in force from 12.05.2006)
undertaking actions for repealing unlawful acts and for restoring, in urgent cases, arbitrarily
breached rights
       6. (prev. text of item 4 - SG 39/06, in force from 12.05.2006) taking part in civil and
administrative cases in the cases envisaged by law".
       132. In this connection it should be emphasized that the actions of the Prosecutor's Office
were based on the clear legal identity of the plaintiffs as representatives of the Bulgarian
Orthodox Church on the basis of canonical continuity, as well as the Religious Denominations
Act and Ruling no. 12 of 15 July 2003 of the Constitutional Court.
       133. As the Court's Fifth Section reiterates, "[W]hile it is true that the secession of a
dissenting group from the religious community may prompt civil-law consequences decided by
the authorities (see Griechische Kirchengemeinde München und Bayern E.V. v. Germany (dec.),
no. 52336/99, 18 September 2007, para. 141). In this context the law in force prescribes that the
Prosecutor's Office effectively exercise its powers in relation to the plaintiff's request. The
Prosecutior's Office is the body that must refer the matter to the police who in turn, in line with
the Ministry of Interior Act, is entitled to take measures, including eviction of persons who
refuse to comply with orders of the law enforcement officials.
    134. The Government supports the Court's view of the "need to remedy the unlawful acts of
1992 and the following years"; however it rejects the Court's finding that the actions were
undertaken with a view to the "suppression of the applicants' activities as an alternative
leadership within the Church and their expulsion from temples, monasteries and other Church
premises" by making recourse to "sweeping use of State power" (para. 142).
    135. The Government reiterates that the persons in questions were duly informed by notary
invitations to leave their places of work, but the latter did not comply with this request. The
Prosecutor's Office ordered termination of the arbitrary acts that were aimed not only against the
                                                                                                   22
property of the Bulgarian Orthodox Church through unlawful possession, but also at preventing
the conduct of the respective religious services and rituals, which was in the interest of the
believers. It is beyond any dispute for the parties to this case that the temples belong to the
Bulgarian Orthodox Church and their ownership or possession may not be claimed by anyone
else but the Church.

   2. "pursuing a legitimate objective allowed under the Convention"

   2.1). The 2002 Religious Denominations Act

    136. In its judgement (para. 104), theCourt's Fifth Section determines the basis for its
subsequent analysis: "The Court's task is to examine whether the enactment of the 2002 Act and
its implementation constituted, as alleged by the applicants, an unlawful and unjustified State
interference with the internal organisation of the Bulgarian Orthodox Church and the applicants'
rights under Article 9 of the Convention". This implies examining the purpose of the Religious
Denominations Act and whether it was legitimate or not.
    137. Firstly, the Court's Fifth Section includes the 2002 Act in the list of "authorities' measures
to put an end to the divisions in the Bulgarian Orthodox Church", thus suggesting a purpose of
the Religious Denominations Act, which it does not have. Such a purpose may not be construed
on the basis of the parliamentary debates referred to in the same section since the views
mentioned belong to a „number of deputies" (para. 46) and hence do not reflect the collective will
of the legislative body. Further in its judgement the Fifth Section finds, in relation to the
impugned State actions, that those, including the "legislation passed with the aim of restoring the
unity of the Church" "were undertaken in conditions involving genuinely deep division and
incompatible claims to legitimacy by two opposing groups of leaders of the Christian Orthodox
community in Bulgaria" (para. 107).
    138. As has been established above, in 2002 there indeed was already an "authoritative
decision by the community settling this dispute" (para. 109) in accordance with the applicable
canon law. Given this, it is not possible to speak of refer to a "dispute" or a "division". Therefore,
qualifying the Religious Denominations Act in terms of "legal techniques of questionable
quality" (para. 157), a "measure" or "legislation passed with the aim of restoring the unity of the
Church" (para. 107) is not supported by the facts.
    139. At the same time, the Court correctly indicates in paragraph 122 of the judgement that
"one of the aims of the 2002 Act, taken as a whole, was to improve the legal regulation of
religious denominations" and that "[S]uch improvement… and its realisation was undoubtedly in
the public interest".
    140. Furthermore, one of the aims of the 2002 Religious Denominations Act was establishing
legal certainty as a key element of the rule of law and a prerequisite for protecting third parties'
rights.
    141. The Bulgarian Orthodox Church is a legal person pursuant to the 1949 Religious
Denominations Act. Its legal personality was confirmed by the 2002 Religious Denominations
Act. To function normally, every legal person needs organs to formulate its will as a legal entity.
It would be inadmissible therefore that there are two duplicating rival bodies claiming to
represent the same legal person.
    142. Besides, as a distinct legal person, the Bulgarian Orthodox Church establishes relations
with third parties, and those relations are governed by the general legal regulations. In this sense
a basic aspect of the legal certainty of third parties is that the legal person is duly represented in
conducting property transactions and assuming liability.
    143. Thus, precisely in the light of the afore-mentioned, Article 10 of the Religious
Denominations Act provides that the "Bulgarian Orthodox Church is headed by the Holy Synod
                                                                                                    23
and is represented by the Bulgarian Patriarch, who is the Metropolitan of Sofia". This provision
of the law reproduces basic canonical principles set forth in the Statute of the Bulgarian Orthodox
Church. Defining the Church as a member of the One, Holy, Catholic and Apostolic Church in
accordance with Article 1 of its Statute is a result of the fact that the Ecumenical Councils have
established a uniform management structure and no Eastern Orthodox Church may divert from
these rules.
   144. This consistent institutional Church architectonics determines the structure and
organisation of the Bulgarian Orthodox Church as a subject in law, a fact that the legislator duly
reflected in Article 10, para. 2 of the Religious Denominations Act, thus referring matters
regarding the Church organisation and management to its Statute, in line with the constitutionally
enshrined principle that religious institutions are separate from the State.
   145. The Court's Fifth Section incorrectly ascribes to Article 10 of the Religious
Denominations Act the effect of forcing the religious community to unite under one of the two
existing leaderships (para. 109), thus prejudging the dispute over the leadership of the Bulgarian
Orthodox Church. In fact Article 10 does not specify the person who is the head of the Church,
but only refers to his position in the Church hierarchy.
   146. This is confirmed by the fact that following the enforcement of the Act the applicant
organisation did not attempt registration as it identifies itself with the leadership of the Bulgarian
Orthodox Church. Instead it attempted to register its Sofia organisation and its request was
refused on the grounds that such a request may only be granted if filed by a person authorised to
represent the Church. This is precisely the aim of the Act - to provide for supervision by the
national courts, for every individual case, of the Church representation as construed on the basis
of its internal canonical rules.
   147. Similarly the Government cannot agree with the linkage established by the Court's Fifth
section in para. 157 between the Act as a "legal technique of questionable quality" and the
"disproportionate nature of the State interference complained of". The ex lege recognition of the
legal personality of the Church is presented by the Court's Fifth section as a method to force the
community under a single leadership, despite the fact that a possible requirement for registration
would have an identical effect if the Bulgarian Court registers Patriarch Maxim as head of the
Bulgarian Orthodox Church. In this sense the implied purpose of the law has no relevance to the
fact of ex lege recognition.
   148. The Court's Fifth Section further considers that one of the consequences of the Act
application is the legal uncertainty, related also to the events of 2004. On the contrary, the actions
of the Bulgarian state authorities in 2004 were aimed precisely at restoring legality and
overcoming a situation of legal chaos that persisted until 2004 due to the illegitimate actions of
the applicants and their supporters.
   149. Secondly, in para. 123 the Court's Fifth section examines the lawfulness of the
provisions of the Act provisions, holding that the "more specific question whether the same
could be said about those provisions of the Act which resulted in the impugned interference in the
organisation of the Bulgarian Orthodox Church is inseparable from the issue of necessity and
proportionality in a democratic society…".
   150. The judgement rightly acknowledges the general principle of State non-interference in
Church matters of the canon, and that the State should respect the principle of neutrality and
impartiality in exercising its powers to regulate. Led precisely by these principles, the Bulgarian
State only reproduces a canon rule. The ultimate purpose of the Act thus is to restore the legal
certainty.
   151. In relation to the finding in para. 130 that a "number of judicial decisions concerning the
Church's leaderships and their representative powers had been issued over the years, some of
them contradictory", it should be noted that these national court judgments may be divided into
two groups.
                                                                                                   24
   152. In the first group of judgments the courts, in the course of their analysis of the relevant
circumstances, examined the position of the applicants in the light of the elevant provisions of
the canon law, while in the other group of judgments this mandatory condition was not met.
Hence the difference in the operative parts of the judgments.

   2.2). Applying a discriminatory approach

   153. The Court's Fifth Section states, in paragraph 117 of the judgement, that it will apply an
approach which is "not unusual, in particular, in cases concerning complex situations arising in
the unique conditions of transition from a totalitarian State to democracy and the rule of law".
Throughout the judgement the Court refers on numerous occasions to the political past of the
State, the practice of State interference, and the unusual circumstances of countries in transition,
in order to reach the conclusion that "[I]n the Court's view, the 2002 Act did not meet the
Convention standards of quality of the law" (para. 157).
   154. The Bulgarian Government maintains that such a line of reasoning treats States in a
discriminatory fashion and introduces the presumption of a law of lower quality solely due to the
fact that the country at a certain point in its historical development has made a transition from
totalitarian state to democracy.
   155. Such reasoning would render any law adopted by a country in transition not meeting the
"Convention standards of quality of the law".
   156. The Religious Denominations Act however was enacted more than 10 years after the
new democratic Constitution of Bulgaria was adopted. The Act was adopted by a democratically
elected National Assembly (Parliament) in accordance with the Constitution and the elections
laws. Pursuant to Article 67, para. 1 of the Constitution, the Members of Parliament represent
not only their constituencies but the entire nation. Therefore, the Religious Denominations Act
should be considered in accordance with the same criteria that apply to each act of legislation of
a democratic State. Every derogation of this principle would tantamount to discrimination.

   2.3). "Quality" of the law

   157. The 2002 Religious Denominations Act was drafted and applied in accordance with the
international standards in this field, including the ICCPR and the European Convention on
Human Rights. The Act guarantees both equal treatment of the religious denominations and
protection of the religious rights and freedoms, following the understanding of the Bulgarian
legislator that the freedom to religion is an absolute personal human right. The freedom, both of
an individual and a community, of choice, change, public or private practice, through worship,
observance and rituals is guaranteed.
   158. The role of the State in the relationships with religious institutions is regulated to allow
for free exercise of the right to religious denomination and to facilitate tolerance and respect
among believers of different denominations and non-believers. State interference in the internal
organisation of the religious communities and institutions is prohibited. The religious
communities are separated from the State.
   159. The Bulgarian Constitutional Court has not found the Act in contradiction to the
Constitution although some of its provisions were contested by individual MPs. The Court's
Fifth Section refers to this fact and the Constitutional Court disagreements to justify its
presumption on the "quality of the law" by attributing particular significance to the views of those
members of the Constitutional Court who found the Act anti-constitutional, despite the fact that
the same number of justices upheld the Act (para. 146).
   160. In this respect it must be underlined that it is not the individual justices' views that matter
but the final legal outcome, namely that the Constitutional Court did not uphold that the
                                                                                                    25
Religious Denominations Act contravened the Constitution. This is the legal outcome that the
European Court of Human Rights should consider.

   2.4). Actions of the Prosecution Office in 2004

   161. The Bulgarian Government maintains that the state actions in 2004 pursued a legitimate
objective in line with the standards of the Convention, namely legal certainty, safeguarding the
rights and interests of others and protection of public order.
   162. The actions complained of were firstly necessary state interference aimed at restoring the
legal certainty (and not the unity of the believers as the judgement erroneously finds), i.e. the
separatists were committing the Bulgarian Orthodox Church by acts with legal consequences
outside the scope of the Church and thus a continuing inaction on the part of the State would have
led to a situation of legal chaos.
   163. The Government has already indicated in its observations that in 2004 the Bulgarian
Orthodox Church sent notary invitations to the applicants thus informing them, in full compliance
with the Statute of the Church and the canon, that they were not entitled to present themselves as
members of the Church, to use and dispose of Church property and to make use of a name
identical to the one of the Bulgarian Orthodox Church. The persons concerned however did not
respond to these invitations, hence the Holy Synod had to refer the issue to the Prosecutor's
Office. Following checks on the authenticity of the information submitted, the competent
Ministry of Interior bodies were subsequently ordered to secure access to the temples to the
legitimate clergymen.
   164. The State apparently had to intervene in this situation of a violation of the legal order and
the right to property as the applicants held the Church property without being entitled to it on any
legal grounds. It is a fundamental legal principle that only the person entitled to a property may
use and dispose of it, regardless of whether the holder is a natural or a legal person, including a
religious institution.
   165. In paragraph 112 the Court's Fifth Section concludes that "but for the State actions
complained of, the applicants would have continued to administer autonomously the affairs of the
part of the Christian Orthodox community in Bulgaria". Such a conclusion contravenes the
canonical Church rules and the alleged intentions of the applicants who contest the legitimacy of
Patriarch Maxim. Furthermore, the assumption that the applicants' dispute with the legitimate
canonical leadership creates for them individual property rights is entirely groundless and
contradicts fundamental legal principles.
   166. In addition, paragraph 134 of the judgement reads that the division resulted in the
applicants obtaining "control over certain Church assets" where the applicants should not be
treated as common violators illegally possessing the premises of the churches. This analysis
contradicts the principle of legal certainty and the principle of protection of the right of property.
It justifies certain powers in relation to the property solely with the subjective fact of
disagreement with the legitimate leadership of the property rights holder. According to the
national law and the, Statute of the Church, clergy members neither own nor possess any
temples. Every claim to that end would be a violation and unlawful attempt for appropriation.
Temples are owned by boards of trustees according to the will of the grantors with whose aid the
temples were built. Holder of the right of ownership of the real estates, including the temples, is
the Bulgarian Orthodox Church - Patriarchy and its local units - metropolis, monasteries and
churches.
   167. Therefore the right of ownership of the temples may not be examined separately from the
right to freedom of the Orthodox religion because the Church owns the property and it is
managed and disposed of in the way in which the Church canons prescribe (see paras. 173 and
174 of the judgement). The Patriarch and the Holy Synod do not own, but only administer the
                                                                                                   26
Church assets. „It is therefore impossible that two bishops secede from and sever their links with
the Church, but at the same time claim property rights and related elements thereof. We cannot
possibly think of two ministers in a Government who claim for themselves or for their supporters
property rights and parts of state property because they posses something more in the sphere of
human rights, namely the right (sic) to set up a parallel state-like entity and a parallel state".21
   168. In this regard the Government would like to note that the applicants did not contest
before any Bulgarian court the ownership of the temples.
   169. Secondly, the actions of the judicial authorities in 2004 were aimed at protecting the
public order and safeguarding the rights and freedoms of others. In case of a threat, or violation
of, the public order and the rights and freedoms of others, the authorities is empowered to protect
the interests of the holders of the rights.
   170. The judgement correctly states in paras. 20 and 102 that the applicants did not own any
property and did not possess any temples on a clear legal basis. The judgement furthermore points
that "[T]here were also a number of cases where the applicant organisation took possession of
existing buildings by force". To be more specific, that was the case not in some but in all cases
where members of the applicant organisation held the possession without any legal grounds.
   171. In the established circumstances it would be inadmissible that the applicants be granted
the possibility to benefit from their illegal conduct. In this context a hypothetical inaction by the
State would violate the right of property of others since no one may claim property that does not
belong to them or impede the legitimate owner to enjoy his rights in line with Article 1 of
Protocol I.
   172. Furthermore the Court's case-law confirms that "one of the means of exercising the right
to manifest one's religion, especially for a religious community, in its collective dimension, is the
possibility of ensuring judicial protection of the community, its members and its assets" (see
Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 118, ECHR 2001-
XII).
   173. In paragraph 141 (last sentences) of the judgement, the - Court's Fifth Section admits
that the "secession of a dissenting group from the religious community may prompt civil-law
consequences decided by the authorities". At the same time, in contradiction with the facts and
the applicable law, the Court finds that the actions of the authorities, in view of their legal
consequences, constituted interference in an internal Church dispute and meant to suppress one of
the two rival groups. This line of reasoning of the Court in fact deprives the State to ensure that
those eligible enjoy the civil-law consequences, which in itself contravenes the principles of legal
certainty and protection of the right of property.

      3. "Necessary in a democratic society"

   174. The Bulgarian Government fully shares the well established case-law of the Court that
restrictions to the freedom of religion may only be imposed in case of a "pressing social need"
and must be "proportionate to the legitimate aim pursued" (see, among others, The Wingrove v.
the United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-
V, p. 1956, § 53). It also agrees that the "notion "necessary" does not have the flexibility of such
expressions as "useful" or "desirable" (see Gorzelik, paras. 94-95).
    175. It is precisely in this context that the Government cannot agree with the Fifth Section's
statement that the actions of the competent executive bodies were disproportionate and executed
"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" (paragraph 159).
21
     See Enclosure № 8 and Enclosure № 9 - Archimandrite Gregory (n 8).


                                                                                                  27
    176. The Court correctly notes in paragraph 159 of the judgement that the State has a certain
margin of appreciation as regards the scope and need of state interference. At the same time a
balance must be found between the obligation of the state to protect the rights and freedoms of
others and the need to counteract the applicant's unlawful actions. In this context the Court
considers that "pluralism and democracy are, by the nature of things, based on a compromise that
requires various concessions by individuals and groups of individuals. The latter must sometimes
be prepared to limit some of their freedoms so as to ensure the greater stability of the country as a
whole" (Gorzelik, paragraph 66).
    177. The Court has often in its case-law highlighted the "State's role as the neutral and
impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role
is conducive to public order, religious harmony and tolerance in a democratic society" (see
Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports 1996-IV, p. 1365, §
47; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000-XI; Refah Partisi (the
Welfare Party and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §
91, ECHR 2003-II).
    178. On the other hand, the Court holds that in some cases the imposition of radical, even
drastic measures, is justified, "The dissolution of a political party accompanied by a temporary
ban prohibiting its leaders from exercising political responsibilities was a drastic measure and
that measures of such severity might be applied only in the most serious cases" (Socialist Party
and Others v. Turkey judgment cited above, § 51; and Refah Partisi and Others v. Turkey, nos.
41340/98, 41342/98, 41343/98, 41344/98, §§ 81 et seq., ECHR 2001, Gorzelik, §60).
    179. In the judgment on the case at hand, the "Court accepts that in 2002 the Bulgarian
authorities had legitimate reasons to consider some form of action with the aim of helping to
overcome the conflict in the Church, if possible, or limiting its negative effect on public order
and legal certainty" (paragraph 131). The "ongoing dispute in the Church was a source of friction
between the opposing groups and generated legal uncertainty" (paragraph 130). In these
circumstances the State disposes of a margin of appreciation as to the means to pursue a
legitimate aim. In this sense the Grand Chamber holds in Gorzelik that "there may also be cases
in which the choice of measures available to the authorities for responding to a "pressing social
need" in relation to the perceived harmful consequences linked to the existence or activities of an
association is unavoidably limited".
    180. In addition the Government refers to one of the Court's arguments in the judgement of
Supreme Holy Council of the Muslim Community v. Bulgaria (Application no. 39023/97) of 16
December 2004 that the "Government have not stated why in the present case their aim to restore
legality and remedy injustices could not be achieved by other means, without compelling the
divided community under a single leadership" (paragraph 97). In the case at hand therefore, if
the Government provides convincing arguments for state interference and proof of a pressing
social need, which is the case, no violation of Article 9, individually or in connection with Article
11, should be found. The Government has provided such arguments but the Fifth Section took no
heed thereof when delivering its judgement.
    181. The Government completely agrees with what the Court has stated in a number of cases
(see for example Leyla Şahin v. Turkey, paragraph 109) that where, on matters regarding the
relationship between the State and individual religious denominations, the public opinion
largely diverges, particular attention should be paid to the role of the competent national
decision-making body (see, mutatis mutandis, Cha'are Shalom Ve Tsedek, cited above, § 84, and
Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports 1996-V, pp. 1957-58,
§ 58).
    182. In addition, we hereby note that in its case-law the Court has found that "it is not
possible to discern throughout Europe a uniform conception of the significance of religion in
society" (see Otto-Preminger-Institut v. Austria, judgment of 20 September 1994, Series A no.
                                                                                                    28
295-A, p. 19, paragraph 50). The national rules for regulating these delicate matters vary
according to the state and its national traditions and requirements imposed by the need to protect
the rights and freedoms of others and to maintain the public order (see, mutatis mutandis,
Wingrove, cited above, p. 1957, § 57). This is why we fully agree with the Court's view that
"аccordingly, the choice of the extent and form such regulations should take must inevitably be
left up to a point to the State concerned, as it will depend on the specific domestic context" (see,
mutatis mutandis, Gorzelik and Others, cited above, § 67, and Murphy v. Ireland, no. 44179/98, §
73, ECHR 2003-IX). The same is the approach of the European union22.
     183. This same approach when examining the state actions should be applied in the case at
hand.

      E). Scope of the Court's assessment of the measures undertaken by the State

    184. The Court's task in determining whether the measures taken at national level were
justified in principle and proportionate is explained in Leyla Şahin v. Turkey (paragraph 110) (see
also Manoussakis and Others v Greece, p. 1364, paragraph 44).
    185. In the case at hand, in line with the case-law in determining the margin of the State's
appreciation, the Court should take into account the national context and the specific aims that
the state actions pursued (mutatis mutandis, Kokkinakis, cited above, p. 17, § 31; Manoussakis
and Others, cited above, p. 1364, § 44; and Casado Coca, cited above, p. 21, § 55). In the case at
hand the Bulgarian authorities set themselves legitimate aims in accordance with the Convention,
namely the restoring of the legal certainty, protecting the rights and freedoms of others and
safeguarding the public order.
    186. The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the
competent national authorities but rather to review the conformity of their decisions with the
standards of the Convention. This does not mean that the supervision is limited to ascertaining
whether the respondent State exercised its discretion reasonably, carefully or in good faith; what
the Court has to do is to look at the interference complained of in the light of the case as a whole
and determine whether the reasons adduced by the national authorities to justify it are "relevant
and sufficient" (see, mutatis mutandis, the Ahmed and Others v. the United Kingdom judgment of
2 September 1998, Reports 1998-VI, pp. 2377-78, § 55, and the Goodwin v. the United Kingdom
judgment of 27 March 1996, Reports 1996-II, pp. 500-501, § 40).
    187. In this connection the Government contests the findings of the Court in paragraph 157,
where "the Court considers that the disproportionate nature of the interference complained of
was exacerbated by the fact that it was effected through legal techniques of questionable quality,
having regard to the Convention principles of the rule of law and clarity and foreseeability of the
law. In particular, the Court notes that the impugned provisions of the 2002 Act were formulated
with a false appearance of neutrality…" (see paragraph 157).
    188. Such findings are inadmissible and fall outside the Court's competence and, as evidenced
by the facts, erroneous. They do not rest on legal arguments and may only be qualified as
subjective and partial. It is not for the Court to make a non-legal evaluation of the laws of a
State, or the actions of a State's legislative power, or the legislative techniques they employ.
    189. To conclude, in the case at hand the state actions were in compliance with the
requirements of Article 9 of the Convention, a fact that was not acknowledged by the Court's
Fifth Section in delivering its judgement. It should be noted in this regard that the Court's Fifth
section did not take into consideration the established international recognition, the compliance
with the canon, the unity and the legitimacy of the Bulgarian Orthodox Church, which are of
particular traditional significance for the Bulgarian people.

22
     Enclosure № 19
                                                                                                   29
    190. On the basis of the analysis of the judgement made above, the Government requests the
referral of the case to the Grand Chamber of the ECtHR, as the judgement delivered raises
serious issues affecting the interpretation and application of the Convention, as well as a serious
issue of general importance and therefore the requirements of Article 43 para. 2 of the European
Convention on Human Rights are met. The judgement appealed deviates from the Court's case-
law and at the same time is not grounded on the facts under the case.


   NOW THEREFORE

    191. The Government requests the referral of the case to the Grand Chamber of the Court,
according to Article 43 paras. 1 and 2 of the Convention, and the modification of the Fifth
Section' s judgment of 22nd January 2009 on applications Nos 412/03 and 35677/04, so that it
will be found that there has been no violation of Article 9 in connection with Article 11 of the
Convention.



       Sofia, 21 April 2009


                                            Government's Agent for Procedural Representation
                                            before the European Court of Human Rights:




                                            Nina Nikolova




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