The issue of state registration of religious organisations has come up yet again…

The background

In January 2007, in Sofia, seven people decided to set up a new religious association, “The International Society for Krishna Consciousness (ISKCON) – Sofia, Nadezhda” with Mr Genov as chairman. ISKCON, based in India, had already registered a Bulgarian branch as a religious organisation in 1991 and had re-registered it in March 2003. When Mr Genov applied to the court of first instance to register the new association, the Department for Religious Matters observed that the new association could not be distinguished from the one already registered. In March 2007, the court rejected Mr Genov’s application, finding that the name of the new association resembled that of the existing association, that the constitution was identical and that the stated aim of the new association – to change the organisation of the association that had already been registered – created a risk of schism.

Mr Genov’s subsequent appeal failed. The Court of Cassation agreed with the Court of Appeal: the Religion Act expressly prohibited the registration of two religious organisations with the same name and head office, the new association was located in Sofia – despite the specific indication of a neighbourhood – and registration was only possible on the initiative of the parent organisation – which was not the case here.

The judgment

In Genov v Bulgaria [2017] ECHR 275, Mr Genov argued before the ECtHR that refusing to register the association violated his rights under Articles 9  and 11 ECHR.

The Court reiterated that freedom of thought, conscience and religion under Article 9 was one of the foundations of a “democratic society” within the meaning of the Convention. If religious freedom was first and foremost a matter of conscience, it also implied freedom to manifest one’s religion, individually and privately or collectively, in public and in the circle of those whose faith one shared [33]. Because religious communities traditionally existed in the form of organised structures, where the question of organisation was at issue Article 9 had to be interpreted in the light of Article 11. The autonomy of religious communities was essential to pluralism in a democratic society and was therefore at the very heart of the protection afforded by Article 9 [34]. Furthermore, the possibility for citizens to form a legal entity in order to act collectively in a field of common interest was one of the most important aspects of the right to freedom of association: otherwise, that right would be devoid of any meaning [35].

In the present case, without prior registration by the court, the association could not acquire legal personality and exercise the rights to own or lease property, to open bank accounts or to take legal proceedings which are essential for the exercise of the right to manifest one’s religion; moreover, Bulgarian law did not allow a religious association to acquire legal personality by any means other than by registration as a cult [37]. In the circumstances, the Court considered that refusing to allow the applicant to register the association interfered with the exercise of his Article 9 rights, interpreted In the light of Article 11 [38].

The similarity of the name of the association whose application had been refused with that of the pre-existing association was not sufficient to justify the refusal [43]. As regards the approach taken by the Supreme Court of Cassation – that the adherents shared the same beliefs and rites as those of the pre-existing association – that would in practice lead to the refusal of registration to any new cult that had the same doctrine as an existing one [44]. Such an approach was difficult to reconcile with freedom of religion and freedom of association as guaranteed by Articles 9 and 11 [45].

Mr Genov had expressly stated in the domestic proceedings that the founding members of the new association wished to create a new religious organisation rather than a branch of the pre-existing one. The fact that he was required to practise his beliefs in the framework of the organisation already registered – on the ground that, in the opinion of the domestic authorities, his beliefs were identical to those of the existing association – did not appear as necessary and proportionate to the pursuit of the legitimate objective of allowing the public to distinguish different religious associations. And contrary to the Government’s suggestion that he had failed to exhaust domestic remedies, there appeared to be none to exhaust [46]. The refusal to register the association created by the applicant had not, therefore, been “necessary in a democratic society” and there had been a violation of Article 9 read with Article 11.