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IVANOVA v. BULGARIA - 52435/99 [2007] ECHR 270 (12 April 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/270.html
Cite as:
[2007] ECHR 270
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FIFTH
SECTION
CASE OF IVANOVA v. BULGARIA
(Application
no. 52435/99)
JUDGMENT
STRASBOURG
12 April 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ivanova v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 52435/99) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Ms Kalinka Todorova
Ivanova, who was born in 1950 and lives in Ruse (“the
applicant”), on 27 May 1999.
The
applicant was represented by Mr Y. Grozev, a lawyer practising in
Sofia.
The
Bulgarian Government (“the Government”) were represented
by their Agents, Ms M. Dimova and Ms M. Kotzeva, of the Ministry of
Justice.
The
applicant alleged that her right to freedom of religion had been
violated because her employment had been terminated on account of her
religious beliefs (Article 9), which had amounted to discrimination
on religious grounds (Article 14, in conjunction with Article 9).
By
a decision of 14 February 2006 the Court declared the application
partly admissible.
The
parties did not submit further written observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background information
1. General background
In
February 1994 the Persons and Family Act was amended to require the
registration with the Council of Ministers of non-profit
organisations which had religious or related activities.
Seventy-eight requests for registration were submitted, but only
twenty-three organisations were registered. Those turned down were
primarily Protestant groups.
Denial
of legal status made it impossible for those organisations to hire
public lecture halls or sign contracts in the name of the
organisation. The unregistered organisations were unable to open bank
accounts or publish journals or newspapers in the name of the
organisation and were denied certain tax advantages.
Among
the organisations whose registration was turned down was “Word
of Life”, a Christian Evangelical group that had become active
in Bulgaria in the early 1990s.
2. Word of Life
As
a result of the authorities' refusal to register Word of Life, the
religious organisation began clandestine activities. Meetings were
periodically thwarted by the police followed by media propaganda
against the organisation and its members.
On
20 June 1994, acting on an order from the Sofia's Prosecutor's
Office, the police closed a hall used by Word of Life in Sofia and
prevented members from using it.
On
22 June 1994 a Swedish citizen was expelled from Bulgaria because of
his participation in a Word of Life course (see Lilja v. Bulgaria
(dec.), no. 41574/98, 20 November 2003).
On
23 June 1994 a force of around thirty policemen prevented members of
Word of Life from attending a meeting at a hall, because it had
purportedly been cancelled.
On
23 February 1995 the police raided private homes in the town of
Veliko Turnovo and a conference hall in the Hotel Etur. They
confiscated religious literature, audio tapes and video cassettes,
which they displayed at a press conference the next day. No charges
were subsequently brought against any members of Word of Life.
On
20 July and 27 September 1995 the police raided two gatherings of
Word of Life followers in private homes. Religious literature was
confiscated and the hosts were required to declare in writing that
they would no longer organise religious gatherings in their homes.
3. The River Shipbuilding and Navigation School in Ruse
Throughout
1994 and 1995 the local Ruse media reported regularly on “unlawful”
gatherings and religious activities by Word of Life followers. The
media campaign intensified, with the national press joining in,
during the summer and autumn of 1995. Press coverage was focused on
the River Shipbuilding and Navigation School (Техникум
по речно корабостроене
и корабоплаване
– “the School”) in Ruse because several of the
non-academic staff were allegedly followers of Word of Life. The
media also waged a personal campaign against some of those
individuals by naming and condemning them as followers of the
religious organisation. It called for their dismissal and named the
applicant as one of the individuals whose employment should be
terminated (see, for example, paragraph 22 below).
As
a direct result, the Regional Prosecutor's Office and the National
Security Service initiated inquiries into the religious activities of
the School's staff members.
On
18 September 1995 the Regional Prosecutor's Office, in summarising
the findings of the National Security Service, found that there were
insufficient grounds for opening a preliminary investigation. At the
same time it stated that, inter alia, the activities at the
School were “not free of criminal culpability”, and that
they were in contravention of the Religious Denominations Act and
“probably” the relevant education Acts and regulations.
Moreover, the allegedly “unlawful” religious activities
were considered to have been carried out with the tacit approval of
its principal.
Soon
thereafter, the Regional Governor (областният
управител) and
a local member of parliament (“the MP”) called for
radical measures to be taken to curb the alleged religious activities
at the School and to dismiss the principal. They made public threats
that, if such measures were not taken, they would petition the
Ministry of Education, Science and Technology (“the Ministry”)
to dismiss the Chief Educational Inspector for Ruse (“the
Educational Inspector”).
On
23 October 1995 the principal of the School was dismissed by the
Ministry. The dismissal order directly referred to the negative media
coverage and the findings of the Regional Prosecutor's Office and
accused her of tolerating the activities of Word of Life at the
School to the detriment of its staff and pupils. It also suggested
that the principal should have dismissed those members of staff who
were Word of Life followers. It is unclear whether the principal
appealed against her dismissal.
A
new principal was appointed soon thereafter.
In
a broadcast on the Hristo Botev radio station, aired on 7 December
1995, the MP stressed that there were still members of Word of Life
working in the School, such as the swimming pool manager (the post
occupied by the applicant), and inferred from this that the Ministry
had not conclusively resolved the matter with the dismissal of the
former principal.
B. The applicant's career at the School
The
applicant was a mechanical engineer and had a second university
degree in pedagogical sciences. She had been involved in the
religious activities of Word of Life since 1994.
On
14 October 1994 the applicant was appointed by the School to the post
of “mechanic” at its swimming pool on a temporary
employment contract until 23 February 1995.
On
an unspecified date, the Ministry approved a new roster of posts
(щатно разписание)
for the School effective as of 1 January 1995, which provided for the
post of “swimming pool manager” with a requirement for
the holder of the post to have completed a course of secondary
education. By a further amendment of 1 April 1995 the holder of
the post was required to have a higher-education qualification.
On
6 April 1995 the applicant was promoted to the post of “swimming
pool manager” and concluded a temporary employment contract
with a term up to 31 August 1995.
On
31 August 1995 the applicant's temporary employment contract was
extended until 31 August 1996.
On
20 September 1995 the applicant concluded an employment contract of
indefinite duration, which provided for her appointment to the post
of “swimming pool manager” as of 1 July 1995. Her job
description indicated that her responsibilities included, inter
alia, managing and supervising the staff of the swimming pool,
organising their work schedules, monitoring the regular accounting of
the proceeds from the swimming pool and organising the swimming
lessons. The job description did not expressly refer to any education
or professional qualification requirements for the post. The
applicant's basic salary was set at 4,992 old Bulgarian levs
(approximately 111 Deutsche marks (DEM)) with a 16% bonus for length
of service.
On
an unspecified date the Ministry approved a new roster of posts for
the School effective as of 1 October 1995. It provided for the post
of “swimming pool manager” with a requirement that the
holder of the post have a higher-education qualification.
C. The applicant's dismissal from the School
On
23 October 1995 the principal of the School was dismissed and a new
one was appointed soon thereafter.
On
2 November 1995 the applicant was summoned to a meeting with the
Educational Inspector and his deputy. Another member of staff, Mrs
M., was also summoned to the meeting, which took place on the
premises of the School. At the meeting, the inspectors asked for
their resignations as a means of easing public tensions. The
applicant contended, although this was disputed by the Government,
that the inspectors had threatened them that if they did not resign
of their own accord or did not renounce their faith, they would be
dismissed on disciplinary grounds. The inspectors claimed that
irrespective of their work performance they “could instruct the
[new] principal” to dismiss them. Mrs M. denied being a member
of Word of Life, while the applicant did not and also refused to
resign. No assessment or mention was made during the meeting as to
whether the applicant was performing her job well and whether she met
the requirements for holding her post.
On
3 November 1995 the applicant informed the new principal of the
School in writing of her meeting of the previous day with the
Educational Inspector and his deputy. No action was taken in
response.
Thereafter,
the new principal alienated the applicant – her office phone
was removed, the locks to the swimming pool were changed without her
being provided with a set of keys and the supervision of the
renovation of the swimming pool was entrusted to a subordinate even
though it should allegedly have been her responsibility. The new
principal also made enquiries as to the applicant's work performance.
On
24 November 1995 the human resources department of the School
prepared a list of thirty-one employees allegedly without job
descriptions. The applicant's name and post were among them.
On
7 December 1995 Hristo Botev radio aired the interview with the MP in
which he implied that the applicant's post was one of those still
being occupied by a member of Word of Life (see paragraph 22 above).
By
an order of 28 December 1995 the applicant was dismissed, with
immediate effect, on the grounds of not meeting the education and
professional qualification requirements for the post of “swimming
pool manager” (Article 328 § 1 (6) of the Labour Code).
When she was served with the order, the applicant enquired as to
which requirements she did not meet, but the new principal did not
inform her.
D. The proceedings against the dismissal
1. Proceedings before the Ruse District Court
On
27 May 1996 the applicant initiated proceedings before the Ruse
District Court challenging the lawfulness of the dismissal. She also
sought reinstatement in her previous post and compensation for loss
of income.
The
applicant maintained that her dismissal was directly related to her
religious beliefs and her refusal to resign of her own accord. Such a
reason for terminating her employment contract, she argued, was a
violation of Article 8 § 3 of the Labour Code and Article 37 of
the Bulgarian Constitution, which prohibited religious
discrimination.
During
the trial it was established that in December 1995 there had been a
further amendment to the School's roster of posts, which the Ministry
had approved in a letter of 30 January 1996, but with effect from
1 January 1996. The amended roster of posts no longer envisaged
the post of “swimming pool manager”, but provided for the
post of “sports complex organiser”. On an unspecified
date a job description had also been prepared for the new post which
set out the requirements for the holder of the post as follows:
“university degree in sports, university degree in economics,
as an exception – secondary education with specialisation in
the relevant sport, qualified lifeguard, certified swimming
instructor.”
The
applicant argued before the Ruse District Court that the changes to
the School's roster of posts should have taken place in accordance
with standard practices and should not have been arbitrary. She
claimed that the standard practice was to make changes to the roster
of posts before the beginning of the academic year. The applicant
also claimed that the changes were arbitrary because there had not
been any objective necessity, stemming from the work being performed,
to change the requirements for the post.
A
hearing was held on 9 July 1996 at which the respondent party
presented the new job description for the post of “sports
complex organiser”.
At
a hearing on 19 November 1996 several witnesses gave evidence. The
Educational Inspector testified that the standard practice was to
make changes to the roster of posts before the academic year unless
an urgent need, usually of a financial nature, required otherwise. He
confirmed that he had met with the applicant in early November 1995
in connection with the findings of the Regional Prosecutor's Office
and that he had invited her to resign in view of the mounting
discontent and public opinion. He stated that he had not enquired as
to the activities of Word of Life at the School and that he was not
familiar with the applicant's work performance.
Mrs
M. also testified and informed the court that the new principal had
threatened her with dismissal if she talked about her work at the
School. She testified as to the meeting of 2 November 1995 with the
Educational Inspector and stated that, faced with the claim of being
a follower of Word of Life, she had denied it. She stated that she
had broken down and cried during the meeting because she had two
children to support and did not want to be left without a job. Mrs M.
also informed the court that, as far as she was aware, the applicant
had been a good and diligent employee, who had maintained good
relations with the other members of staff.
A
teacher from the School also testified at the hearing. He informed
the court that since its construction in 1974 the swimming pool had
always had a manager, but that there had never been a requirement of
a university degree in sports for the post. The teacher also
testified as to the content of the radio broadcast of 7 December
1995, in which the applicant had been singled out for dismissal by
the MP.
On
25 November 1996 the applicant filed her written submissions with the
Ruse District Court, contending that the evidence in the case
supported her claim. She maintained that the School's roster of posts
had been changed in the middle of the academic year with the sole aim
of introducing such requirements for her post as to allow her
dismissal on those grounds.
On
5 May 1997 the Ruse District Court dismissed the applicant's claims.
In its judgment the court noted that the burden of proof as to
whether the dismissal had been lawful or not lay with the School. It
found, inter alia, that the School had complied with the
procedure for changing the roster of posts and that the new job
description for the post was in conformity with the standard job
descriptions for such posts as approved by the Ministry. In addition,
the court found that with the changes to the requirements for the
post the School had envisaged the possibility that the person
appointed to the job would not only manage and organise the
activities of the swimming pool but could also act as a lifeguard or
swimming instructor, a factor which the court deemed to be of “vital
importance”. Based on these considerations, the court found
that “there really had been preconditions [which entailed]
changing the requirements for the post” and that the dismissal
was therefore lawful. Separately, the Ruse District Court found that
the applicant's claims that her dismissal had been motivated by her
religious beliefs were not supported by the evidence in the case,
that in fact the applicant had had very good relations with the other
members of staff and that there were no complaints as to her work
performance. The court also reasoned that the applicant's assertions
in this respect were refuted by the fact that Mrs M. was still
employed by the School.
2. Proceedings before the Ruse Regional Court
On
27 June 1997 the applicant appealed against the judgment of the Ruse
District Court. She claimed, inter alia, that its findings
were not based on the evidence established in the case and were
therefore unfounded. She claimed that the Ruse District Court had
failed to make a proper assessment of key evidence, such as the
testimonies of the Educational Inspector and Mrs M.
The
applicant also questioned the grounds of the first-instance court for
dismissing her claim and contended that they were frivolous and at
odds with the substance of her complaint alleging religious
discrimination. Firstly, she had never claimed that her personal
relations with her colleagues had suffered as a result of her
religious beliefs. Secondly, she submitted that the first-instance
court's reasoning that there had been no discrimination against her,
considering that Mrs M. was still employed by the School, was
incorrect as there were various possible reasons for Mrs M.'s
continued employment, such as the fact that the media had not singled
her out for dismissal.
The
applicant also claimed that the Ruse District Court had never
analysed in substance her complaint alleging religious
discrimination, but had dealt with the matter purely as an issue of
unfair dismissal.
Finally,
she maintained that the facts of the case clearly showed that
following her refusal to resign on 2 November 1995 the School had
simply tried to find a legal ground for dismissing her and that the
chosen method was to change the requirements for the post she
occupied so that she would become ineligible to hold it.
On
22 July 1997 the former principal of the School filed submissions
with the Ruse Regional Court, attesting to a conversation she had had
in June 1995 with the Educational Inspector. At the meeting he had
identified four employees in respect of whom there had been
“information that they were members of a sect” and whose
employment he had insisted be terminated. At the time, the former
principal had suggested that those employees resign of their own
accord, but they had refused and no further action had been taken
against them. It is unclear whether the applicant was one of those
employees.
In
a judgment of 23 July 1997 the Ruse Regional Court dismissed the
applicant's appeal. The court found, inter alia, that the
School had both a need and the right to change the roster of posts
and the requirements for the applicant's post and to dismiss her
because she did not meet those requirements. It also found that the
Ruse District Court had adequately addressed the applicant's
allegations of religious discrimination and found them to be “totally
and irrefutably ... irrelevant” based on the fact that she had
maintained good relations with her colleagues and had been a good
employee. Any allegations of subjective reasons or discriminatory
grounds for her dismissal were therefore considered unfounded.
3. Proceedings before the Supreme Court of Cassation
On
18 September 1997 the applicant filed a petition for review
(cassation appeal), claiming, inter alia, that the lower
courts had failed to properly evaluate the evidence before them and
had never addressed the substance of her complaint alleging religious
discrimination. She maintained that they had failed to assess the
circumstances surrounding her dismissal and especially the events
leading up to it, which clearly demonstrated the real reason why this
legal method had been used to terminate her employment.
A
hearing was conducted on 16 November 1998, which the applicant and
her counsel, though duly summoned, did not attend. They presented
their submissions to the court in writing.
In
a final judgment of 9 December 1998 the Supreme Court of Cassation
dismissed the applicant's appeal. The court found, inter alia,
that the applicant's arguments were unsubstantiated, and upheld the
findings of the lower courts. It stressed that the School had the
right to change the requirements for the post and that such changes
were not subject to judicial review. In addition, it compared the
duties and responsibilities of the posts of “swimming pool
manager” and “sports complex organiser” and found
them to be essentially the same. The Supreme Court of Cassation also
noted that the old job description had lacked any education or
professional qualification requirements for the post, while the new
one had included such requirements. It reasoned, therefore, that the
employer had simply filled a gap that had previously existed in that
respect.
The
court refused to address the remainder of the arguments of the
applicant as it found them to be irrelevant to the proceedings and to
the issue of the dismissal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Freedom of religion
The
relevant provisions of the 1991 Constitution read as follows:
Article 13
“(1) Religions shall be free.
...”
Article 37
“(1) The freedom of conscience, the
freedom of thought and the choice of religion or of religious or
atheistic views shall be inviolable. The State shall assist in the
maintenance of tolerance and respect between the adherents of
different denominations, and between believers and non-believers.
(2) The freedom of conscience and religion
shall not be exercised to the detriment of national security, public
order, public health and morals, or of the rights and freedoms of
others.”
The
relevant provisions of the Religious Denominations Act 1949 read as
follows:
Section 1
“All citizens in the Republic of Bulgaria shall be
afforded the freedom of conscience and religion.”
Section 4
“No one shall be persecuted or restricted in his
civil and political rights, nor be dismissed from the performance of
duties entrusted to him by law, on account of belonging to one or
another religious denomination or for not associating with any one
religious denomination...”
B. Protection against discrimination
The
Bulgarian Constitution (Article 38), the Education Act of 1991
(section 4) and the Labour Code (Article 8 § 3) provide for
protection against discrimination grounded on, inter alia,
religious beliefs.
An
amendment of Article 8 § 3 of the Labour Code of 31 March 2001
widened the scope of protection against discrimination in the
workplace to include “indirect discrimination”, which was
defined in item 7 of § 1 of the Supplementary Provisions to the
Labour Code as follows:
“'Indirect' [refers to] the discrimination whereby
ostensibly legal solutions are used in exercising labour rights and
duties, but they are applied, in the light of the criteria under
Article 8 § 3 [of the Labour Code], in a manner which in reality
and in fact places some workers and employees in [a] less favourable
or privileged position compared to others. Discrimination [does not
exist where] the differences or the preferences [are] based on the
qualification requirements for performing a specific job, or where
special protection is given to certain [types of] workers and
employees (juveniles, pregnant women and mothers of young children,
disabled people, those with reduced working capacity and other
similar groups), as established by normative acts.”
The
above definition was repealed on 1 January 2004 with the entry into
force of the Protection Against Discrimination Act, which provides a
comprehensive framework for protection against discrimination.
Section 4(3) of the Act introduced the following new definition
of “indirect discrimination”:
“Indirect discrimination is placing a person on
the basis of the criteria in section 1 [sex, race, nationality,
ethnicity..., religion and belief...] in a less favourable position
in comparison to other persons by way of an ostensibly neutral
provision, criterion or practice, unless the said provision,
criterion or practice is objectively justified in view of a statutory
aim and the means of attaining the said aim are appropriate and
necessary.”
C. Termination of employment contract
An
employer may terminate a contract of employment by giving notice in
writing to an employee where he or she does not have the necessary
education or vocational training for performing the work assigned
(Article 328 § 1 (6) of the Labour Code).
In
reviewing such terminations the domestic courts have as their
established practice that for a dismissal to be lawful (under Article
328 § 1 (6) of the Labour Code) it is sufficient for the courts
to establish that there were new requirements in terms of education
or vocational training for performing the assigned work which the
employee no longer met, without their being required to assess the
necessity for introducing such requirements (see, for example,
решение на ВС
№ 77 от 22.ІІ.1995 г. по
гр. д. № 1062 от 1994 г.,
ІІІ г. о.).
D. The secular nature of the system of education
Section
5 of the Education Act (1991) proclaims the system of education to be
secular.
III. REPORTS ON RELIGIOUS FREEDOMS IN THE COUNTRY DURING
THE RELEVANT PERIOD
A. Country Reports of the European Commission against
Racism and Intolerance (ECRI)
The
European Commission against Racism and Intolerance (“ECRI”),
in its three reports on Bulgaria for the years 1997–1999, found
that during the period there had been a high degree of intolerance in
the media towards minority religious groups, particularly new
religions. It also found the authorities to be somewhat passive in
the face of acts of intolerance, which were not sufficiently combated
or punished.
ECRI
also reported that there had been religious discrimination in the
field of education and that there had been cases of dismissal in the
public sector for religious beliefs.
B. Reports by NGOs
Human
Rights Watch and the Bulgarian Helsinki Committee, in their annual
reports for the years 1994–1996, noted that violations of
religious freedoms in Bulgaria had significantly increased over the
period, especially with regard to what had been referred to as
“non-traditional” religious denominations. They observed
that the authorities had sought to impose restrictions on thought and
religion and to restrict religious diversity, for example by
introducing a requirement that non-profit organisations which pursued
religious or related activities or dispensed religious education must
first obtain the approval of the Council of Ministers before they
registered as such.
The
NGOs also reported that there had been cases of dismissal in the
public sector for religious beliefs and mentioned specific instances
involving followers of Word of Life.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
The
applicant complained under Article 9 of the Convention that she had
been dismissed from her job because of her religious beliefs and that
this had constituted a violation of her right to freedom of religion.
Article
9 of the Convention provides:
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or
beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals,
or for the protection of the rights and freedoms of others.”
A. The parties' submissions
The
Government contended that the applicant's complaint was unfounded and
unsubstantiated as it was grounded on assertions, which were not
supported by tangible evidence.
The
Government questioned the reliance on various media and other reports
in substantiating the applicant's complaints and considered them
immaterial to the case. Nevertheless, in respect of the media
campaigns, the Government contended that they did not infringe on the
applicant's right to freedom of religion. To the contrary, they
considered them a legitimate exercise of the media's right of freedom
of expression, in so far as they were expressing the reservations of
the public towards members of a religious organisation allegedly
proselytising among the pupils of the School with the tacit support
or approval of the institution's former principal. In any event, the
Government considered that the media's singling out of the applicant
had not, in itself, infringed her right to freedom of religion.
In
respect of the investigations of the Prosecutor's Office into the
activities of Word of Life, the Government argued that they had been
justified and that they had simply been in response to the
community's suspicions of its members' activities at the School.
Moreover, they submitted that the investigations had been initiated
in response to credible information that the School's premises were
being used for religious activities in apparent violation of the
secular nature of the institution. Thus, the Government contended
that these investigations could not be considered, in themselves, an
infringement of the applicant's right to freedom of religion.
In
respect of the termination of the applicant's employment, the
Government argued that it had not been grounded on her religious
beliefs or activities. They submitted that it was simply the result
of the elimination of certain deficiencies in the administration of
the School in order to provide all employees with complete job
descriptions and, in the case of the applicant, to lay down justified
education and professional qualification requirements for her post.
The Government further noted that her dismissal had been based on the
applicable legislation, which provided for termination of an
employment agreement if the requirements for a post changed and the
employee holding it no longer met those requirements.
Separately,
the Government submitted that any limitations imposed on the
applicant's right to manifest her religion within the confines of the
School had been justified. They referred to the secular nature of the
system of education in Bulgaria and submitted that this principle
applied both to the teaching activities of the School and to its
premises, contending that this was a justified limitation of the
right to manifest one's religion. They pointed out in this connection
that one of the grounds for dismissing the School's former principal
had been her failure to maintain the secular nature of the
institution by allegedly allowing proselytising on the premises by
Word of Life, but argued that that had had no direct relevance or
effect on the applicant.
In
her submissions in reply, the applicant referred to the sequence of
events leading up to her dismissal and considered them clearly
indicative of the real reason for her dismissal. In addition, she
argued that the new principal of the School had been aware of the
reasons for the dismissal of her predecessor. Considering her good
working relationship with her colleagues and her satisfactory work
performance, the applicant argued that it had not been possible to
dismiss her on grounds directly relating to her work. Accordingly,
the applicant asserted that in order to effect the desired dismissal,
the new principal had settled on the unusual method of changing the
roster of posts and the requirements for her post. The use of this
legal technique, she contended, had not, however, changed the real
reason for her dismissal, namely her religious beliefs.
Lastly,
the applicant noted that the standard of proof required under Article
9 of the Convention was proof beyond reasonable doubt, but observed
that the Court had previously stated that “such proof may
follow from the co-existence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of facts”
(she cited Anguelova v. Bulgaria, no. 38361/97, §
111, ECHR 2002-IV). The applicant submitted that, considered in its
entirety, the evidence in her case clearly met the requisite burden
of proof and established beyond reasonable doubt that the substantive
reason for her dismissal had been her religious beliefs.
B. General principles
The
Court reiterates that, as enshrined in Article 9 of the Convention,
freedom of thought, conscience and religion is one of the foundations
of a “democratic society” within the meaning of the
Convention (see Kokkinakis v. Greece, judgment of 25 May 1993,
Series A no. 260-A, p. 17, § 31).
While
religious freedom is primarily a matter of individual conscience, it
also implies, inter alia, freedom to “manifest [one's]
religion”. According to Article 9 of the Convention, freedom to
manifest one's religion is not only exercisable in community with
others, “in public” and within the circle of those whose
faith one shares, but can also be asserted “alone” and
“in private”; furthermore, it includes in principle the
right to try to convince one's neighbour, for example through
“teaching”, failing which, moreover, “freedom to
change [one's] religion or belief”, enshrined in the said
Article, would be likely to remain a dead letter (ibid.).
The
fundamental nature of the rights guaranteed in Article 9 § 1 of
the Convention is also reflected in the wording of the paragraph
providing for limitations on them. Unlike the second paragraphs of
Articles 8, 10 and 11 of the Convention, which cover all the rights
mentioned in the first paragraphs of those Articles, that of Article
9 of the Convention refers only to “freedom to manifest one's
religion or belief”. In so doing, it recognises that in
democratic societies, in which several religions coexist within one
and the same population, it may be necessary to place restrictions on
this freedom in order to reconcile the interests of the various
groups and ensure that everyone's beliefs are respected (see
Kokkinakis, cited above, p. 18, § 33). At the same
time, it emphasises the primary importance of the right to freedom of
thought, conscience and religion and the fact that a State cannot
dictate what a person believes or take coercive steps to make him
change his beliefs.
In
the context of complaints under Article 9 of the Convention for
dismissal from service, the Commission stated on several occasions
that pressuring an individual to change his religious beliefs or
preventing him from manifesting them would be an interference at
variance with the said Article (see Knudsen v. Norway, no.
11045/84, Commission decision of 8 March 1985, Decisions and
Reports 42, pp. 247-58, at p. 258, and Konttinen v. Finland,
no. 24949/94, Commission decision of 3 December 1996, unreported).
The Court has come to a similar conclusion in the context of a
teacher's complaints under Articles 10 and 11 of the Convention that
she was dismissed from service on account of her political allegiance
(see, mutatis mutandis, Vogt v. Germany, judgment of
26 September 1995, Series A no. 323, pp. 23 and 31, §§
44 and 65).
C. Application of these principles to the present case
The
Court considers that the issue at the heart of the present case is
whether the applicant's employment was terminated solely as a result
of the School's justified need to change the requirements for her
post, as the Government claimed, or whether, as the applicant argued,
she was dismissed because of her religious beliefs.
The
Court notes that the Government made lengthy submissions on the
secular nature of the system of education and the need to preserve it
as such (see paragraphs 70-74 above). They referred to certain
alleged instances of proselytising at the School by members of staff,
from which they attempted to infer (a) that the authorities had
legitimate fears that unlawful activities were occurring, (b) that
the applicant, as a follower of Word of Life, was probably involved
in them, and (c) that the authorities had a justified aim of stopping
the alleged proselytising. However, the Government did not provide
any evidence that there had ever been any credible accusations that
the applicant had proselytised at the School. The Government's
submissions on this point are somewhat ambiguous and contradictory,
because despite the lengthy arguments submitted in respect of the
applicant's alleged involvement in proselytising at the School, they
explicitly claimed that the termination of her employment had had
nothing whatsoever to do with her religious beliefs (see paragraph 73
above).
On
the contrary, by assessing the facts in the case and considering the
sequence of events in their entirety, rather than as separate and
distinct incidents, the Court finds evidence of a causal link between
the various events which resulted in the applicant's dismissal. In
particular, as a result of the ongoing campaigns in the media (see
paragraph 16 above), the Regional Prosecutor's Office and the
National Security Service initiated inquiries into the religious
activities of the School's staff members (see paragraph 17 above).
This resulted in a report of 18 September 1995 by the Regional
Prosecutor's Office, which stated, inter alia, that “unlawful”
religious activities were allegedly being carried out at the School
with the tacit approval of its principal (see paragraph 18 above). On
20 September 1995 the applicant's employment contract was changed
from a fixed-term contract to one of indefinite duration (see
paragraph 28 above). A new roster of posts for the School was
introduced as of 1 October 1995, which required the holder of the
applicant's post to have a higher-education qualification but without
specifying any particular type of degree (see paragraph 29 above).
The Educational Inspector was threatened with dismissal by the
Regional Governor and the MP unless he took radical measures to curb
the religious activities at the School and dismiss the principal (see
paragraph 19 above). On 23 October 1995 the principal of the School
was dismissed by the Ministry for, inter alia, tolerating the
activities of Word of Life at the School and for not having dismissed
those members of staff who were followers of the organisation (see
paragraph 20 above). A new principal was appointed soon afterwards
(see paragraph 21 above). At the meeting on 2 November 1995 with the
Educational Inspector and his deputy, the applicant and Mrs M. were
asked to resign or renounce their faith, otherwise the inspectors
would “instruct the [new] principal” to dismiss them
irrespective of their work performance (see paragraphs 31 and 42-43
above). Mrs M., faced with being unable to support her two children
if she were dismissed, denied being a member of Word of Life and
there were apparently no subsequent repercussions for her (see
paragraphs 43 and 46, last sentence, above). The applicant
meanwhile refused to resign or renounce her faith, which led to her
being alienated by the new principal (see paragraphs 31 and 33
above). Enquiries were also made as to her work performance, which
appears to have been satisfactory (see paragraphs 33, 43, 46 and 52
above). In a radio interview on 7 December 1995 the MP singled out
the applicant's post as still being occupied by a member of Word of
Life (see paragraphs 22 and 44 above). The applicant was dismissed in
an order of 28 December 1995 on the ground of not meeting the
requirements for the post to which she had been promoted more than
eight months previously and which featured on a roster of posts
approved by the Ministry (see paragraphs 25-29 and 36 above).
Finally, a new roster of posts for the School was approved by the
Ministry on 30 January 1996, effective as of 1 January 1996, which
transformed the applicant's post into the new post of “sports
complex organiser” with a requirement that its holder have a
“university degree in sports, university degree in economics,
as an exception – secondary education with specialisation in
the relevant sport, qualified lifeguard, certified swimming
instructor” (see paragraph 39 above). It should be noted,
however, that since the construction of the School's swimming pool in
1974 there had never been a requirement for its manager to have a
university degree in sports (see paragraph 44 above). In addition,
when the Supreme Court of Cassation compared the duties and
responsibilities of the posts of “swimming pool manager”
and “sports complex organiser”, it found them to be
essentially the same (see paragraph 55 above).
Considering
the above facts and the sequence of events, the Court finds that the
termination of the applicant's employment was not simply the result
of a justified amendment of the requirements for her post, but in
fact took place on account of her religious beliefs and affiliation
with Word of Life, thus constituting an interference with her right
to freedom of religion at variance with Article 9 of the Convention.
The fact that the applicant's employment was terminated in accordance
with the applicable labour legislation – by introducing new
requirements for her post which she did not meet – fails to
eliminate the substantive motive for her dismissal. Most telling in
this respect is the meeting of 2 November 1995 at which the applicant
was pressured by two Government officials to renounce her religious
beliefs in order to keep her job (see paragraphs 31 and 42-43 above),
which the Court considers a flagrant violation of her right to
freedom of religion guaranteed under Article 9 of the Convention (see
the general principles and case-law references in paragraphs 77-80
above).
In
respect of the State's responsibility, the Court considers it to be
engaged by the fact that the applicant was employed as a non-academic
staff member at the School, which was under the direct supervision of
the Ministry. Moreover, it notes the ongoing activities in breaking
up gatherings of Word of Life around the country, the involvement of
other authorities and officials such as the Regional Prosecutor's
Office, the National Security Service, the MP and the Educational
Inspector, and the resulting disciplinary dismissal of the former
principal because of her alleged tacit approval of religious
activities in the School. These events hint at a policy of
intolerance by the authorities during the relevant period towards
Word of Life, its activities and followers in Ruse, and at the School
in particular. The dismissal of the applicant soon after the
appointment of the new principal appears, therefore, to have resulted
directly from the implementation of that policy.
In
view of the above, the Court finds that the applicant's right to
freedom of religion was violated because her employment had been
terminated on account of her religious beliefs. There has therefore
been a violation of Article 9 of the Convention on that account.
II. ALLEGED VIOLATION OF ARTICLE 14, IN CONJUNCTION WITH
ARTICLE 9 OF THE CONVENTION
The
applicant complained under Article 14, in conjunction with Article 9
of the Convention, that her dismissal from the School had been
inconsistent with the requirement of non-discrimination set forth in
the Convention.
Article
14 of the Convention provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Government contended that the applicant's complaint was unfounded and
completely unsubstantiated. They noted that the applicant had had a
very good working relationship with the other employees at the School
and that she had not had any criticism of her work, a fact which they
considered could not be reconciled with her complaint of
discrimination. The Government reiterated their argument that the
applicant's dismissal was the result of the elimination of certain
deficiencies in the administration of the School.
The
Government also claimed that of the four persons named by the media
as members of Word of Life working at the School, only the
applicant's employment had been terminated. They argued that this
lack of any repercussions for the other alleged members of Word of
Life indicated that there had not been a concerted effort or intent
by the authorities to terminate their employment.
Separately,
the Government submitted that in the years preceding the applicant's
dismissal more than twenty other employees had been dismissed and
inferred that the termination of her employment should be considered
within the context of ongoing redundancies at the institution. They
also found it inappropriate and discriminatory against other
employees to be required to grant special protection to religious
employees faced with termination of their employment.
In
her submissions in reply, the applicant reiterated her complaint. She
did not submit separate observations on her complaint of
discrimination on religious grounds, other than those provided in the
context of Article 9 of the Convention, which she considered equally
relevant. However, in her submissions under Article 9 of the
Convention the applicant stated that by the time of her meeting on 2
November 1995 with the Educational Inspector, the other members of
Word of Life employed at the School, with the exception of Mrs M.,
had already left the institution of their own accord for personal
reasons or as a result of the negative publicity.
The
Court notes that the applicant's complaint relating to Article 14 of
the Convention amounts to a repetition of her complaints under
Article 9 of the Convention. Accordingly, it considers that there is
no cause to examine it separately (see, mutatis mutandis,
Metropolitan Church of Bessarabia and Others v. Moldova, no.
45701/99, § 134, ECHR 2001-XII).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 590 euros (EUR) in respect of pecuniary damage in
compensation for the loss of earnings resulting from her dismissal
from the School. Her claim was based on the domestic statutory
provisions, which provided that an unlawfully dismissed employee was
entitled to compensation for the period in which he or she remained
unemployed, but for no more than six months. The applicant stated
that she had remained unemployed for more than six months after her
dismissal and was therefore making a claim for the full six-month
compensation for loss of earnings. The last salary she claimed to
have received from the School had been in the amount of 6,043.52 old
Bulgarian levs, which the applicant stated to have been equivalent to
approximately DEM 120 or EUR 60. Thus, she calculated the six-month
compensation claimed for loss of earnings to be approximately
equivalent to DEM 622.80 or EUR 311.40. The applicant also claimed
interest at a rate of 6% per annum for the period May 1996 to May
2006, which, together with the compensation claimed, made a total of
EUR 589.23.
The
applicant also claimed EUR 6,000 in respect of non-pecuniary damage
for the emotional pain and suffering caused by the violation of her
rights under Articles 9 and 14 of the Convention. She stressed that
as a result of the actions of the School's authorities she had been
discriminated against on the basis of her religious beliefs and that
the domestic courts had failed to provide redress for her complaints.
In addition, the applicant claimed that, on account of the
accompanying media campaigns during the period, she had also suffered
significant public prejudice. Accordingly, she had been unable to
find employment for a considerable length of time and had had to
start work as a self-employed trader at an open-air market. Lastly,
the applicant argued that the domestic courts' refusal to examine in
substance her discrimination complaint had further contributed to her
feeling of distress and helplessness, and had increased her emotional
suffering.
The
Government did not submit any comments on the applicant's claims in
respect of pecuniary and non-pecuniary damage.
The
Court has found that the authorities were responsible for violating
the applicant's right to freedom of religion because her employment
was terminated on account of her religious beliefs (see paragraph 86
above). Following her dismissal she remained without employment for
more than six months. Thus, there is a direct causal link between the
established violation of the Convention and the applicant's loss of
earnings. In respect of the amount of compensation claimed, the Court
notes that the Government challenged neither its basis nor the
applicant's calculations in respect of the amounts due. Accordingly,
the Court awards the amount of EUR 589.23.
In
respect of the non-pecuniary damage claimed, the Court considers it
reasonable to accept that as a result of the violation of the
applicant's right under Article 9 of the Convention she suffered a
certain degree of emotional pain and suffering, possibly even public
prejudice. As with her claim for pecuniary damage, the Government
challenged neither the grounds nor the amount of the compensation
sought by the applicant. Taking into account the specific
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant the sum of EUR 4,000 as
compensation for the non pecuniary damage arising out of the
violation of her right under Article 9 of the Convention.
B. Costs and expenses
The
applicant claimed EUR 500 for the legal work by her lawyer before the
domestic courts. She also sought EUR 3,290 for 47 hours of legal work
by her lawyer before the Court, at the hourly rate of EUR 70. She
submitted a legal fees agreement with her lawyer and a timesheet for
the work relating to the proceedings before the Court. The applicant
requested that the costs and expenses incurred should be paid
directly to her lawyer, Mr Y. Grozev.
The
Government did not submit any comments on the applicant's claims for
costs and expenses.
The
Court reiterates that according to its case-law, an applicant is
entitled to reimbursement of his or her costs and expenses only in so
far as it has been shown that these have been actually and
necessarily incurred and were reasonable as to quantum. Noting the
particular complexity of the case, both before the domestic courts
and the Court, the associated submissions of the applicant's lawyer
and the other relevant factors, and the fact that the applicant was
paid EUR 701 in legal aid by the Council of Europe, the Court
considers it reasonable to award the sum of EUR 2,500 in respect of
costs and expenses, plus any tax that may be chargeable on that
amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article
9 of the Convention;
Holds that there is no need to examine
separately the complaint under Article 14 of the Convention;
Holds
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable on the date of
settlement:
(i) EUR
589.23 (five hundred and eighty-nine euros and twenty-three cents) in
respect of pecuniary damage;
(ii) EUR
4,000 (four thousand euros) in respect of non-pecuniary damage;
(iii) EUR
2,500 (two thousand five hundred euros) in respect of costs and
expenses, payable into the bank account of the applicant's lawyer in
Bulgaria, Mr Y. Grozev;
(iv) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
