Human
rights news: May 2001
TOLERANCE
FOUNDATION*
An associated member of Human Rights without Frontiers International
PRESS RELEASE
Translator's note: This summary of the opinions of the experts was made through the Bulgarian translation of the English original. Because of the lack of access to the original text it is possible mistakes and discrepancies were made in the translation of the Press Release into English and especially in the transcription of the names. The translator would like to excuse for them.
Sofia, May 17, 2001 - Recently we were acquainted with the opinion stated by the experts from the Council of Europe regarding the final version of Bulgarian Draft Denominations Act. As it is well known, on 2 February 2000 three initial Drafts were passed with a great majority at first reading. On 12 October the final version of the Draft - a synthesis of the initial three abovementioned versions, which had to be approved and passed on the second, final reading to become an acting Law, was introduced into Parliament by its Commission on the Human Rights and Religious Issues.
After the outspoken protests expressed by almost all of the religious communi-ties as well as by the Human Rights organisations at the conference, organised on 20 October 2001 by Tolerance Foundation. The evaluation of the experts of the Council of Europe became known about a month ago. Actually it is ultimately negative and maybe this is the reason about it being concealed by the Parliament. It was by means of unofficial sources of information that this negative evaluation spread about, and became known by the Religious and Human Rights organisations.
The text given below actually represents a summary of the most essential remarks as concerns the bill itself, made by the Council of Europe's experts. Their corrections, remarks and recommendations have been printed in a volume of 29 pages total and owing to this they're not very appropriate for distribution by Internet.
Here is a
list of the Council of Europe Directorate on Human Rights' experts, who have
expressed their point of view:
- Prof. L.L. Kristian, Louvain-la-Neuve University, Belgium
- Prof. Malcolm Evans, Bristol University, United Kingdom
- Prof. R.A. Lowson in collaboration with D-r. B.K. Albaushenie and Mr. K. Gauluke,
Leiden University, the Netherlands.
Prof. L.L. Kristian, besides the broad opinion, is also the author of a summarised evaluation of himself and his colleagues, in conclusion wrote:
"The analysis of the draft as a whole reveals that the core problem, which has been pointed out unanimously, is serious enough in mandate the conclusion, that considerable improvements have to be made to bring it in line with the requirments of the European Convention on Human Rights".
Furthermore in the conclusion of the overall texts he mentions:
"The shortcomings of the draft are such that the present summary, as well as the three separate reports, are limited to stressing the incongruity in the approach and the range of the issue, and not on trivial technical problems".
All experts recognise that the Draft has some positive features, mostly concentrated on its primary chapters, virtually repeating the fundamental rights, recognised in Article 9 of the European Convention on Human Rights. Nevertheless, they criticise specific points, namely the legal regulations, emphasising their discrepancy not only with the requirements of Article 9, but also with the previous practise of the European Court of Human Rights on the same article.
* * *
The most
significant criticism of the experts is directed to the procedure for legal
registration of the religious organisations. According to them, "the very
procedure for registeration contains serious shortcomings from the point of
view of the European Convention on Human Rights:
A. The theological prejudice against the legal registration;
B. Restriction of the religious pluralism and development;
C. Confusing points as concerns the criteria connected with the refusal for
legal registration or nullification of the registration itself;
D. Lack of criteria for subsidising religious communities."
The experts
claim that the administration of the relations between the state and the religious
communities is actually discriminative in its core: "Even if we presume,
that on the second level the established relations between the state and the
church are in compliance with the criteria of the European Convention, and even
if the principles of the legal registration "prior tempore potior jure"
are neutral, the regime itself has to be revised as concerns every point from
A to D including, in order to guarantee lack of intervention on the ground of
the doctrine and to provide non-discrimination".
As for the
findings in point A, it is stated that the rules for registration of religious
organisations, formulated in the final version of the Draft, contravene with
the principle of the state's impartiality in the values in the process of the
recognition under the rules of the law for each one of the religious organisations.
"The mere fact that liturgical and the ritual grounds play a crucial role
in the process of the registration (see Art. 16, Par. 1 of the Bulgarian Draft),
arises serious questions in relation with the Convention. It is true that in
the case of Hasan and Chaush v. Bulgaria the ECHR did not take a decision
on whether the formal registration actually represents an intervention in the
rights, granted by Article 9 of the European Convention (§ 77). But according
to the jurisprudence of the Court, the authorities are entitled to judge only
whether the formal requirements have been fulfilled "... the requirement
of authorisation is in compliance with Article 9 of the European Convention,
as far as it provides for the Minister to conclude, that the formal requirements
have been fulfilled" (European Court of Human Rights, 1996, 26. 09. Manussakis
v. Greece, RJD, 1996, p. 1346, § 47). The analysis of the faith, as well
as the ritual and the liturgical practice, would be in disagreement with the
essential principle, that the state itself could not impose an evaluation in
the sphere of the religion or the faith".
The experts
claim also, that the Bulgarian Draft limits in a considerable extent the right
for religious pluralism, and furthermore specify point B: " According to
the Draft it seems impossible for a religious community to be registered in
the court with the so- called religious grounds, "Identical" with
these of a already registered creed, even under other name". This note
is especially important: the endeavours the religious communities to be united
on the ground of a Juridical principle as "one liturgical prac-tice, one
name, one registered faith" wouldn't be in compliance with as concerns
the "necessity" in a democratic society". In relation with the
above- mentioned the expert Mr. Lowson quotes the decision of the European Court
after the case Serif v. Greece (at first instance), dated from the 1999, 14th
of December. (Serif v. Greece, 38178/97): "As for the rest, the Court does
not consider that, in democratic societies, the State needs to take measures
to ensure that the religious communities remain to are brought under a unified
leadership"(§ 52). "Although the Court recognises that it is possible
that it is possible that tension is created in situations where a religious
or any other community becomes divided, it considers that this is one of unavoidable
consequences of pluralism. The role of the authorities in such circumstances
is not to remove the cause of tension by eliminating pluralism, but to ensure
that the competing groups tolerate each other …"(§ 53).
Developing
the ascertainment of the point B, the experts, and particularly Mr. Evans also
claim that the formulated in the Draft's Art. 28, par. 2 requirements for denial
of the registration are discriminative, because they give to both of the executive
branch and the local authorities the right to deprive the religious organisations
from registration on the ground of the authorities' estimation whether the religious
communities' liturgical practice complies with what they have declared that
they'll follow".
"Art.
28, par. 2 of the Draft seems as well to be in disagreement with the Art. 9
par. 2 of the European Convention, because it presumes, that every diversion
from the recognised liturgical form and ritual of the particular religion, as
well as the development of its religious concepts could be used as ground for
denial of the registration. This text may be used practically as potentially
requiring from the side of the State for change in the liturgy, rituals, so
on, that has to be established. Taken by it, this is an example of an infringement
of the European Convention for the human rights protection and the right of
the religious creeds to practise at eases its own religion. The denial of the
regis-tration on the ground of this reason, which seems quite possible in the
actual version of the Draft, will not be possible to be justified at all. This
automation in the process of the appliance of the denial of the registration
won't stand analysis according t the criteria of the Art. 9, par. 2 of the European
Convention for Human Rights.
After the
experts and again after the particular standpoint of Mr. Evans, developing point
D, a significant violation of the European Convention's requirements is that
the grounds for refusal of registration of a religious community are broader
than the rec-ognised in the Art. 9 of the European Convention: "The stressed
grounds for possible refusal for registration are very broad... Art. 19 of the
Draft are much wide-ranged than Art. 9, par. 2, of the European Convention,
and also includes, for example, "national security", or the situations,
in which a particular religion is trying to "achieve political aims, or
to stimulate religious, ethnic or racial confrontation". It is evident
that the for-mer formulation provides very convenient ground for the denial
of a particular religion's registration, which can try to attract some followers
to its faith, who can be already at-tracted by other creed, and on this ground
one may suggest that it's in total disagreement with the principles in Art.
9 of the Convention. It should note down that the additional provisions, attached
to the Draft contain a list of circumstances, under which it is pre-sumed that
on the ground of them a denial is possible, independent of whether the facts
presume these or not these circumstances. These circumstances have been also
formulated quite indistinctly, for example: "An act, that violates the
commonly accepted style of living during a definite period of time and definite
place "or" public acts, which actually represent a grave malpractice
of the established ethic rules during definite period of time and definite place"
(par. 3 and 6 of the additional provisions).
Last, but
not the least, an important shortcoming of the Draft is the lack of distinct
criteria, according to which the State can grant subsidy to the religious organisations,
is the more broadly developed conclusion after point D. More particularly, Mr.
Lowson said: "It is arguable whether the states of the Convention are obliged
or not to subsidise the religious organisations. Once after a decision for support
has been made, this must be done in non-discriminative way (Art. 14 of the European
Convention, see also European Court, 1985, 28th of May, Abduaziz and others
v. UK, serial A, vol. 94/, §82; look up also the final decision of the European
Court, 1994, 19th of December, VDSO and Gubi v. Austria, serial A, vol. 302,
§ 37).
Besides the
above-mentioned notes, a number of another notes were made to the Draft.
Among them
a significant one is related with the fact that the religious community, which
hasn't obtained a status of a denomination, in fact is deprived of substantial
part of its rights. To say it in other way, after the Draft a collective right
of confession of a religion may be exercised only if the particular religious
community is officially recognised by the State. "The Draft itself doesn't
precise the rights of the religious community which hasn't acquired a statute
of a creed. In the frames of an interpretation a con-trario may be presumed,
that such kind of community couldn't be entitled to be a denomination or faith,
are listed in Chapter 5, including the right to found "places for public
worship" (Art. 33); also it is deprived of right to develop a social activities
(Art. 45), is the opinion of Mr. Lowson. The important note is also the one
that, at lest according to the terms of the English translation of the Draft
the granted rights are provided only for Bulgarian citizens, not for all, without
distinction of the citizenship.
It is emphasised
as well, that according to Art. 10, par. 9 of the Draft the Religious Directorate
exercises supervision over the activity of the denominations as concerns the
respect of their statues. After Mr. Evans "This arises the fundamental
question whether the states, which had joined the European Convention, are entitled
to intervene in such an extent in the practice of the religious groups. It is
presumed that they are not entitled to. At the sane time, for the case Manousakis
the Court pointed out: "Like the applicants, the Court recognises that
the States are entitled to verify whether a movement or association carries
on, ostensibly in pursuit of religious aims, activities which are harmful to
the population." European Court for Human Rights, 1996, 26th of September,
Manousakis v. Greece, /RJD, 1996, p.1346 , §40".
At the same
time the Court as thought accepts the exercise of control only when there's
a danger for the population ("activities, which are harmful for the population").
It is not an obligation such kind of menace to exist when a particular religious
group endeavours to develop its own liturgical practice and rituals. On the
contrary - in many cases in a change of the religious practice any possible
harm for the population is not expected. The religion is alive: it permanently
adapts to the actual condition those val-ues, which are considered as constant.
If the authorities trouble that process, this will be accepted as an act against
the independence of the religious groups.
For these
reasons it's still not very clear why the supervision, provided in the Art.
10, par. 9 of the Draft is considered at all as necessary. The content of the
religious activities is not in the sphere of the activity of the State. This
problem is becoming even more serious, when one includes the fact that the Religious
Directorate can impose considerable fines in cases of "malpractice"
(Art. 51 of the Draft).
According
to Prof. Evans, not taking into consideration the overall shortcomings, the
essential one is that the Draft has been directed mainly to restricting of the
freedom of religion "…the core hardship is that the Draft has been shaped
in a way that restricts the range of the freedom of the religion rather than
providing the widest possi-ble freedom of self-identification and also its restrictions
to be reduced only to the prescriptions of the law, which are necessary in a
democratic society".
In the long run, the summary of Prof. Evans is appropriate being a final overall evaluation from the experts of the whole Draft. "It is highly recommendable that the overall Draft should be revised thoroughly as concerns the conception, in order to be able to reflect this main principle. This does not mean that the juridical regulation of the issue, related with the religious organization, is not suitable; this means that the pursuited aims and the way by which the regulation has been achieved must reflect the priorities and the approaches of the European Convention on Human Rights. In compliance with this point of view it is necessary to recognize Art. 9 of the Convention as a starting point because the conformity with the other prescriptions of the Convention must be analysed namely from that viewpoint. Only in case that the Draft is in a sufficient accordance with the basic approach of Art. 9 of the convention another problems concerning other articles of that Convention can be examined. From my point of view the presented Draft is so incongruent from a possible conformity with the above mentioned Article, that it would be untimely if we attempt to interpret it like this".
* * *>
Tolerance
Foundation repeatedly has pointed out that, as the initial versions, and the
final ones as well are in controversy with the principles, proclaimed of the
European Convention on Human Rights. The same conclusions were made by the majority
of the religious leaders in Bulgaria in their official declarations dated 2000,
9 February and 20 October the same year. Similar conclusions were made also
by the outstanding international expert on the religious human rights problems
Prof. William Cole Durham Jr. The general conclusion that the Bulgarian Draft
Denominations Act is not only discriminative in its regulations, but also enters
in sharp contradiction with the requirements of the European Convention came
Tolerance Foundation, the Bulgarian Helsinki Committee and the Bulgarian Society
for protection and encouragement of Religious Freedom in their joint 'Open Letter
to the Members of the Bulgarian National Assembly' that was sent to them in
last November.
The analysis
of the experts of the Council of Europe has a great importance due to the fact
that the ruling elite in Bulgaria claims that joining to united Europe is its
first priority. Because of this the negative assessment of these experts means
that the Bulgaria political class has to totally revise its standpoints, as
concerns the freedom of the religions of the Bulgarian citizens, if it wants
it declarations, that in Bulgaria the religious human rights are respected,
to be believed.
Tolerance Foundation hopes, that the National Assembly, which is pending to be elected on the forthcoming general elections on the 2001, 17 June, will consider the standpoint of the experts, and will approve new, entirely different Denominations Act. It has to replace the current Law that as it is well known was adopted in 1949 in the beginning of the communist rule in Bulgaria.
On behalf of Tolerance Foundation:
Emil Cohen,
President
* The TOLERANCE FOUNDATION is a human rights group monitoring the freedom of conscience and the religious freedom practices in Bulgaria, providing legal assistance to victims of discrimination based on religion, as well as propagating the idea of toler-ance towards religious and other convictions.
The group was founded in 1994. Mr. Emil Cohen is President of the Tolerance Founda-tion. Since April 2001 the organisation has been an associate member of Human Rights without Frontiers International.
Address: 1000 Sofia, 163A "Rakovsky" St.
Phone/fax: (+359 2) 981 23 57
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E-mail: toleranc@geobiz.com