DECISION № 214
Sofia, 16.12.2024
IN THE NAME OF THE PEOPLE
SUPREME COURT OF CASSATION of the Republic of Bulgaria, Commercial Chamber, Second Department, in a court session on the twenty-first of November two thousand and twenty-four, composed of:
CHAIRMAN: BOYAN BALEVSKI
MEMBERS: ANNA BAEVA
ANNA NAENOVA
under the secretary Ivona Moikina, having heard the report of Judge Anna Baeva, case number 563 on the inventory for 2022.3. and in order to pronounce, took into account the following:
The proceedings are under Art. 290 of the Civil Procedure Code.
It was established upon a cassation appeal of the “Bulgarian Orthodox Old-style Church”, represented by F. D. S., through attorney N. D. by the Supreme Administrative Court, against decision No. 2 of 07.02.2023 on appeal No. 5/2022 of the Sofia Court of Appeal, which confirmed decision No. 65 of 01.11.2022 on appeal No. 25/22 on the inventory of the Sofia City Court, TO, which refused to enter the same religious institution, established at a constituent assembly on 13.06.2022, in the public register under Art. 18 of the Law on Religions at the court.
The cassation applicant maintains that the appealed decision is unlawful and unfounded. It challenges the appellate court’s conclusion that a condition for the registration of the religious institution is recognition by the local Eastern Orthodox Church under canon law, by presenting considerations for its contradiction both with the specific instructions of the ECHR on the present case, but also with the repeated interpretation of the ECHR of the positive obligations of the Bulgarian state to guarantee regional pluralism – that the state, represented by the court, should remain neutral and impartial in exercising its regulatory powers and in its relations with different religions, denominations and groups within them, by ensuring that the disputing groups within them are equal and respected. It maintains that recognition by a local church as a condition for registration is not provided for in the law, but was invented by the appellate court, and deprives all citizens of the Republic of Bulgaria who do not wish to be under the jurisdiction of the Bulgarian Orthodox Church – Bulgarian Orthodox Church for one or another religious reason of the right to self-determination as Eastern Orthodox, thus violating their right to free choice of religion and self-government. It finds that Article 37, paragraph 2 of the Constitution and Article 7, paragraphs 1 and 2 of the Civil Code exhaustively list the grounds on which the right to religion may be restricted, and they cannot be interpreted broadly. It points out that the “Bulgarian Orthodox Old-Style Church” has never been a structural division of the BOC – BP and could not have been separated as such, but emerged as an independent religious community at the will of individual individuals, Orthodox Christians, who have no formal commitments to the structures, nor claims to the property of the BOC – BP. Therefore, it requests that the appealed decision be annulled and that the requested entry be granted.
By Resolution No. 2279 of 16.08.2024. under Case No. 563/2023. of the Supreme Court of Cassation, the TC has admitted a cassation appeal of the appeal decision on the issue of what are the prerequisites for registration of an Eastern Orthodox denomination in Bulgaria and whether a condition for such registration is the recognition of the community as a religious institution by other local Orthodox churches. Cassation review is allowed on the basis of Art. 280, para. 1, item 2 of the Civil Procedure Code to verify whether the resolution of the issue given by the appellate court corresponds to decision No. 5 of 11.07.1992 under case number No. 11/1992 of the Constitutional Court of the Republic of Bulgaria.
The Supreme Court of Cassation, Chamber of Commerce, Second Department, having assessed the data in the case in view of the stated grounds of cassation and in accordance with its powers under Art. 290, para. 2 of the Civil Procedure Code, adopts the following:
The Court of Appeal, in order to confirm the decision of the registry court appealed before it, by which the entry of the religious institution “Bulgarian Orthodox Old-style Church” in the register under Art. 18 of the Law on Religions, has set forth considerations based on the general constitutional regulation contained in Articles 13 and 37 of the Constitution of the Republic of Bulgaria on freedom of religion and on the inviolability of this principle, as well as on the limits of the exercise of this right, outlined by the prohibition on the use of religious communities and institutions and religious beliefs for political purposes (Article 13, paragraph 4 of the Constitution), as well as against national security, public order, public health and morality or against the rights and freedoms of other citizens.
He also analyzed the special legislative framework contained in the Law on Religious Denominations, comparing the legal definitions contained in §1, items 1, 2 and 3 of the PZR of the law, respectively, of the general concept of religion as a set of religious beliefs and principles, the religious community and its religious institution, as well as the concepts of religious community and religious institution, in connection with Art. 5 and Art. 6 of the law. Based on this, he concluded that every individual is free to profess and practice any religious belief, regardless of whether it is registered or recognized by the state, as long as it does not violate the restrictions under Art. 13, para. 4 and Art. 37, para. 2 of the CRB. He pointed out that under the same conditions, a religious belief may also be professed and practiced by a group of individuals, without the need for this religious community to register as a religious institution, and that the registration by which it acquires the status of a legal entity is conditioned by compliance with the minimum requirements established in the Law on Religious Denominations, including regarding its name (in view of the prohibition under Article 15, Paragraph 2, that it repeats that of an already registered one), as well as regarding the compliance of the content of the statute adopted at the constituent assembly with the requirements of Article 17 of the law. He found the appellant’s complaint that an expert opinion of the Directorate of Religious Denominations of the Council of Ministers and the opinion of the Bulgarian Orthodox Church-Bulgarian Orthodox Church attached to it were accepted as evidence in the registration proceedings to be unfounded, on the grounds that the norm of Article 16 of the Law on Religious Denominations expressly provides for the possibility for the court to request such an opinion in connection with the registration of religious communities. It accepted that the law did not prohibit the existence of more than one exponent of the Eastern Orthodox faith, and that the court of first instance had not denied this possibility, but had indicated the necessary facts establishing recognition by other local Orthodox churches under canon law, evidence of which the applicant had not presented. Next, the appellate court set out considerations in connection with compliance with the requirements of Article 17 of the Law on Denominations with regard to the statute of the religious institution submitted to the registration court, holding that it did not constitute valid evidence in the case, since it was not signed and not certified, and that it did not contain data on when and by whom it was adopted. In connection with the requisites of the content of the statute prescribed by the same provision, he indicated that it lacks an indication of the seat of the religious institution applied for registration and a specific and clear statement of the liturgical practice, with which he further justified the final result – confirmation of the decision of the registration court, which refused registration.
On the relevant legal issue:
Interpretation of Art. 13, paras. 1 and 2 and Art. 37 of the Constitution in connection with the relationships between religious communities and institutions, on the one hand, and the state, on the other, in the implementation of the constitutionally proclaimed right to religion was made by decision No. 5 of 11.07.1992 under case number No. 11/1992 of the Constitutional Court of the Republic of Bulgaria. Based on the analysis of the aforementioned texts, the Constitutional Court has accepted that the right to religion, as well as the rights of thought and belief, is an absolutely fundamental personal right, directly related to the intimate spiritual peace of the human person, and therefore represents a value of the highest order, which determines not only the possible powers in its exercise, but also outlines the overall legal regime governing this sphere.
He pointed out that the right to religion encompasses the following more important powers: the right to freely choose one’s religion and the possibility of freely exercising one’s religion through the press, speech, through the creation of religious communities and associations, their activities within the community and outside it as manifestations of society. He explained that the religious community includes all persons who profess a common religious belief, and religious institutions are the elements of the organizational form and structure through which the relevant community carries out its activities within the community and outside it – in society. He pointed out that the right to religion is an absolutely personal, inviolable fundamental human right, which, however, is not limitless from the point of view of its actual exercise, but he emphasized that the limits for this are strictly and comprehensively established in the Constitution and it is inadmissible to expand them either by law or by interpretation. The role of the state in relation to the right to religious belief and the communities and institutions through which it is exercised is explained by way of interpretation, stating that the state is obliged to ensure conditions for the free and unhindered exercise of the personal right to religious belief of every Bulgarian citizen in every respect. It is accepted that the state, through its bodies and institutions, cannot interfere and administer the internal organizational life of religious communities and institutions, and the rights of the state to interfere in the activities of religious communities and institutions are limited to taking the necessary measures only and exclusively in cases where the hypotheses of Art. 13, para. 4 and Art. 37, para. 2 of the Constitution are present, and such an assessment is also made in the event of registration of church communities or institutions.
For these reasons, the Constitutional Court has accepted that the right to religion cannot be restricted in any way except in the cases of Art. 13, para. 4 and Art. 37, para. 2 of the Constitution, namely when religious communities and institutions are used for political purposes or when freedom of conscience and religion is directed against national security, public order, public health and morality or against the rights and freedoms of other citizens. It has accepted that the specified restrictive grounds are exhaustively listed and cannot be expanded or supplemented by law or by interpretation, and only the specific mechanisms for their implementation can be determined by law. It has accepted that religious communities and institutions are separated from the state and state interference and state administration of the internal organizational life of religious communities and institutions, as well as their public manifestation, is inadmissible, except in the cases already mentioned in Art. 13, para. 4 and Art. 37, para. 2 of the Constitution.
The interpretation given by the Constitutional Court requires a conclusion that in view of the principle of the secular state, when ruling on a request for registration of a religious institution, the court referred to cannot take into account canon law, but should assess the existence of the prerequisites provided for in the current positive law (the Constitution of the Republic of Bulgaria and the Law on Religions). The present panel, taking into account the reasons for the appeal decision, finds that with regard to the relevant legal issue on which cassation control is allowed, the permission given by the appeal court is in contradiction with the interpretation of the provisions of Art. 13 and Art. 37 of the Constitution adopted in Decision No. 5 of 11.07.1992 under Case No. 11/1992 of the Constitutional Court. Contrary to the Constitutional Court’s acceptance that the restrictive grounds specified in Art. 13, para. 4 and Art. 37, para. 2 of the Constitution are exhaustively listed and cannot be expanded or supplemented by law or by interpretation, the Court of Appeal, sharing the opinion of the court of first instance, took into account the presence of evidence establishing recognition of the religious community by other local Orthodox churches under canon law as a prerequisite for granting the requested entry.
On the merits of the cassation appeal:
The minutes of the founding assembly of the “Bulgarian Orthodox Old-Style Church” of 13.06.2022 presented in the case establish that on the specified date the four founders present made a decision to establish a religious denomination with the specified name and with headquarters in [settlement], Buxton district, [street] for the adoption of its statutes, as well as for the election of its governing bodies. The presented statutes meet the requirements of Art. 17 of the Denominations Act, including, contrary to the conclusion of the appellate court, containing the name and headquarters of the religious denomination – “Bulgarian Orthodox Old-Style Church” with headquarters in [settlement] /Art. 1/, as well as a statement of religious belief /Art. 2/ and liturgical practice /Art. 8/ of the statutes. In connection with the assessment of compliance with the requirement of Art. 17, item 2 of the Religious Act, it should be noted that the statute does not need to contain a detailed statement of the text of the services themselves and the calendar of holidays, and in this case the reference made in Art. 8 to the “Jerusalem liturgical statute and the patristic eortology (church calendar) in its authentic form for both the movable holidays related to the Orthodox Paschalia and the Menaion cycle of the immovable holidays”, and indicating the places of the services, is sufficient.
A notification letter from the “Information Service” was also submitted regarding the uniqueness of the name “Bulgarian Orthodox Old-Style Church”.
The present panel, taking into account the evidence presented, finds that the requirements provided for in the Law on Religions for registering the religious institution with the name “Bulgarian Orthodox Old-Style Church” are met. In this case, the restrictions on the right to religion under Art. 13, para. 4 and Art. 37, para. 2 of the Constitution and Art. 7, para. 1 and para. 2 of the Religious Freedom Act, related to public/national security, public order, health, morality or the rights and freedoms of other persons and to the use of religious communities and institutions for political purposes, and upon assessment of proportionality – if they are necessary in a democratic society (Art. 9 in conjunction with Art. 11 of the CPRHR), which are exhaustively regulated in the current positive law, are not present. The statute adopted by the founders meets the content requirements provided for in Art. 17 of the Religious Freedom Act. The condition of Art. 15, para. 2 of the Religious Freedom Act that the name of the religious community should not repeat the name of an already registered religious institution is also met. The word “old-style” included in the name sufficiently distinguishes the newly established religious institution, and also expresses the differences of the religious community with regard to religious holidays, the observance of which, according to Art. 6, para. 1, item 9 of the Religious Act, is included in the right to religion.
There is also no obstacle to the requested registration arising from Art. 13, para. 3 of the Constitution and Art. 10, paras. 1 and para. 2 of the Religious Act, which provide that the traditional religion in the Republic of Bulgaria is Eastern Orthodoxy and its exponent is the “Bulgarian Orthodox Church – Bulgarian Patriarchate”, which is a legal entity by virtue of the law. As adopted in decision No. 12 of 15.07.2003. under case number No. 3/2003. of the Constitutional Court, the recognition of the status of a legal entity of the “Bulgarian Orthodox Church – Bulgarian Patriarchate” does not violate the right of persons to freely associate – both that of Eastern Orthodox Christians and of non-Orthodox Christians and those who profess another faith, with only a difference being provided for in terms of the condition and procedure for acquiring legal personality, without affecting either the freedom of choice of religion or the right to exercise it in community.
The conclusion of the appellate court that the absence of evidence establishing recognition of the religious community by other local Orthodox churches under canon law constitutes grounds for refusing to register it is also incorrect. This conclusion contradicts the decision No. 5 of 11.07.1992 under case number No. 11/1992. of the Constitutional Court interpretation that outside the cases of Art. 13, para. 4 and Art. 37, para. 2 of the Constitution, which are exhaustively listed and cannot be expanded or supplemented by law or by interpretation, the state cannot restrict the right to religion and cannot interfere in the internal organizational life of religious communities and institutions, as well as in their public manifestation. At the same time, in the reasons for decision No. 12 of 15.07.2003. under case No. 3/2003. of the Constitutional Court it is stated that the provision of Art. 10, para. 1 of the Constitution reflects the traditional character of the Eastern Orthodox religion proclaimed in Art. 13, para. 3 of the Constitution and generally known historical facts related to the main features of the “Bulgarian Orthodox Church”, with which it identifies itself. The reasons for the decision lead to the conclusion that from the aforementioned provisions, confirming the status of the “Bulgarian Orthodox Church – Bulgarian Patriarchate”, it cannot be deduced that its recognition by the BOC is a condition for the registration of another Eastern Orthodox religious institution – BP and the other local Eastern Orthodox churches.
This conclusion is also supported by the provision of Art. 10, Para. 3 of the Law on Religious Affairs, according to which Para. 1 and Para. 2 cannot be grounds for granting privileges or any advantages by law.
The conclusion that the prerequisites for registration of the religious institution are present also corresponds to Art. 9 and Art. 11 of the Convention on the Rights of the Child, as well as to the decision of 20.04.2021 of the ECHR in the case “Bulgarian Orthodox Old-Style Church and Others v. Bulgaria” (application 56751/2013), issued on the occasion of a previous refusal to register the same religious institution, which found a violation of Art. 9 in conjunction with Art. 11 of the Convention on the Rights of the Child. This decision accepted that it concerns a small Orthodox community of “old-style” believers, who are not part of the “Bulgarian Orthodox Church – Bulgarian Patriarchate” due to doctrinal differences – regarding the calendar applicable to the services of fixed holidays (non-adoption of the new Julian calendar), without having a formal connection with the structure, nor claims to the property of this church. It was explicitly emphasized that the state, represented by the court, must remain neutral and impartial in exercising its regulatory powers and in its relations with different religions, which would be achieved through registration. This decision and the interpretation given therein of the provisions of the Code of Civil Procedure should be taken into account in the present proceedings, initiated on a new application for registration of the religious institution, insofar as the procedure regulated in Art. 303, para. 1, item 7 of the Civil Procedure Code is inapplicable with respect to the decision issued in the previous registration proceedings.
The decision of the ECHR is not in contradiction with the constitutional traditions existing in the country, the accepted values and needs of society. There are no objective circumstances on the basis of which it can be assumed that the registration of the cassationist would affect the rights of the “Bulgarian Orthodox Church – Bulgarian Patriarchate” and its members. It is indisputable that this religious institution, having existed for centuries, has participated in the strengthening of the Bulgarian national spirit and statehood, that it currently unites the majority of Orthodox Christians in the country, that it is united, authoritative and enjoys the exceptional respect of the institutions and society. At the same time, the requested registration is for a small religious community that has existed for 30 years and has no claims to the internal organization and property of the “Bulgarian Orthodox Church – Bulgarian Patriarchate”.
For the reasons stated, the present panel finds that the appealed appellate decision is incorrect and should be annulled, and a decision should be issued allowing the requested registration.
Thus motivated, the Supreme Court of Cassation, Commercial Chamber, on the basis of Art. 293, para. 1 in connection with para. 2 of the Civil Procedure Code
DECIDES:
CANCELS decision No. 2 of 07.02.2023 on appeal No. 5/2022 of the Sofia Court of Appeal, which confirmed decision No. 65 of 01.11.2022 on appeal No. 25/22 on the inventory of the Sofia City Court, TO, which refused entry in the public register under Art. 18 of the Law on Religious Denominations at the Court of a religious institution with the name “Bulgarian Orthodox Old-Style Church”, established at a founding council on 13.06.2022, instead of which DECIDES:
ENTRIES in the register of religious denominations at the Sofia City Court a religious institution with the name “Bulgarian Orthodox Old-Style Church”;
Headquarters and management address: [settlement], [neighborhood], [street];
Governing bodies: Primate; Synod of Bishops; Church Council; Church Court;
Primate: His Holiness Metropolitan F. D. S. with Personal Identification Number [PIN]
Synod of Bishops: His Holiness Metropolitan F. D. S. with Personal Identification Number [PIN], Bishop of Sozopol S. (B. Ch. O.) with Personal Identification Number [PIN], temporary member – Archbishop of Moldova and Chisinau G. (V. K.), citizen of Ukraine, with passport FE427792, issued on 26.04.2016 by the Ministry of Internal Affairs of Ukraine;
Church Council: Bishop of Sozopol S. (B. Ch. O.) with Personal Identification Number [PIN], Priest K. H. D. with Personal Identification Number [PIN], Priest I. K. M. with Personal Identification Number [PIN], S. T. T. with Personal Identification Number [PIN], I. N. G. with Personal Identification Number [PIN] – secretary.
The religious institution is represented by T. Metropolitan F. D. S. with Personal Identification Number [PIN] – head.
The decision is final and subject to registration.
CHAIRMAN: MEMBERS:
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First published in this link of The European Times.
