Bulgarian Constitutional Court on Religion and Minorities (1998)

Bulgarian Constitutional Court - DECISION № 2 OF FEBRUARY 18 1998 ON CONSTITUTIONAL CASE № 15 OF 1997 [Extract]

Promulgated SG. 22/24 Feb 1998

The Constitutional Court composed of: chairman - Zhivko Stalev, and members: Assen Manov, Tsanko Hadzhistoichev, Stanislav Dimitrov, Nedelcho Beronov, Dimiter Gotchev, Stefanka Stoyanova, Ivan Grigorov, Todor Todorov, Alexander Arabadzhiev, Georgi Markov, Margarita Zaharieva, with the participation of record-keeper Sylvia Vassileva, considered at a closed door sitting held on February 18 1998, constitutional case No. 15 of 1997, reported by magistrate Todor Todorov.

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16. On Art. 8 of the Convention [The Framework Convention on national minorities (referred to further on in the Decision only as the Convention) was signed by the president of the Republic of Bulgaria on October 9 1997 in Strasbourg.]

a) By force of Art. 8 of the Constitution “The parties commit themselves to recognize the right of every individual belonging to a national minority of professing his religion or convictions, as well as the right of establishing religious institutions, organizations and associations.

In the request the conformity of this provision with the Constitution has been challenged in the context of the possibility of “forming political parties on an ethnic and religious basis”, i. e., of a contradiction with Art. 11, para 4 of the Constitution.

b) The Court stresses that the recognition of the religious identity of every individual is an underlying constitutional principle. This principle and the principle of recognition of the atheistic convictions are equally important(Art. 37, para 1 of the Constitution), with both of them being derivatives of the supreme constitutional principles of humanism, tolerance and recognition of human dignity (The Preamble to the Constitution).

c) The freedom of religion has been systematically regulated in the Constitution in chapter “Basic rights and obligations of the citizens” The court considers that being a basic human right this freedom is of an individual, personal nature and involves both the act of the faith and the free performance of the religious rituals. The restrictions on the freedom of the exercise of religion are admissible only in support of explicitly stressed constitutional values - the national security, public order, public health and morality, the rights and freedoms of the other citizens (Art. 37, para 2 of the Constitution). In this sense is also decision No. 5 of June 11 1992 of the Constitutional court on constitutional case No. 11 of 1992 - SG No. 49 1992.

The freedom of the exercise of religion as a right of freedom of religion has been explicitly proclaimed in international agreements to which Bulgaria is a signatory. According to Art. 18, para 1 IPCPR “Every individual has the right of freedom of... religion. This right involves the freedom to profess or accept a religion or conviction by an individual’s own choice and the freedom of professing his religion or convictions individually or collectively, publicly or privately, through public worship, rituals, religious rites and education”. The right of the freedom of religion has been regulated in a similar way in Art. 9 ECHR.

d) The Constitution of the Republic of Bulgaria guarantees the freedom of religion. Under Art. 13, para 1 of the Constitution “Religions are free”. From the general context of this article regulating further on the principle of separation of the church from the state - “The religious institutions are separated from the state” (para 2) and stressing the traditional for Bulgaria nature of the East Orthodox religious denomination (para 3), it becomes obvious that the basic aim of Art. 13 of the Constitution is to regulate the relations between the state and the believers. Of particular significance for the question set forth in the request is the provision of Art. 13, para 4 of the Constitution according to which “The religious communities and institutions, as well as the religious convictions cannot be used for political purposes”.

e) Semantically the word “religious denominations” in this case also comprises the personal composition of the religious systems in the sense of communities; the religious institutions, the church in particular, are separate from and independent of the state, while the state is secular; the traditionalism of the Eastern Orthodoxy is an expression of its historical and cultural role and significance for the Bulgarian state, as well as its present importance for state life, reflected most of all in the official holidays (all Sundays, the New Year, Easter, Christmas).

The ban on using religious communities and institutions as well as religious convictions for political goals ensues from the link of the religion with the dignity of the individual “All people are born free and equal in dignity and rights” (Art. 6, para 1 of the Constitution). The use of religious communities and institutions or of religious convictions for political goals is a flagrant violation of the equality in terms of people’s dignity since by rule the political goals are connected with the establishment of power relations between people.

The Constitutional Court deems it necessary to underline that the use of the religious communities and institutions or of the religious convictions for advocating religious fundamentalism or extremism is always a gross violation not only of Art. 11, para 4 of the Constitution, but also of other underlying constitutional principles expressed in a number of provisions - Art. 12, para 2, Art. 13, para 4, Art. 37, para 2, Art. 44, para 2 of the Constitution.

f) The provision of Art. 8 of the Convention specifies the preceding norm of Art. 7 concerning the right of association. The fact that this right is explicitly granted to persons belonging to national minorities by the sense of the Convention, does not add anything new to the existing provision in the Bulgarian law. In conformity with the norm of Art. 14 ECHR, the right of association cannot be rejected to persons for reasons of their “belonging to a national minority”. The Court reminds that the right of the citizens to associate, in religious communities included, as well as to establish religious institutions is a constitutionally recognized right - Art. 44, para 1 and Art. 13 of the Constitution. The regime of functioning of the religious communities and institutions is determined by a law on the basis of the constitutionally established principles. The religious institutions, organizations and associations are an element of the civil society and their existence and functioning are subordinate to the constitutional and legal provision in the law-based state.

g) The Court does not deem it necessary to again expound the considerations stressed in item 15, letter “g” of this decision. These considerations are fully valid concerning the correlation between Art. 8 of the Convention and Art. 11, para 4 of the Constitution. For this reason the above two provisions conform with one another.

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