IMPORTANT NOTICE!  At the time of writing this report the Bill had not yet become a law.  On December 20, 2002, the Bulgarian National Assembly voted the draft law into effect.  Thus, as you read the paper consider all the comments regarding the draft law as comments to an actual law.

 

Read a translation of the actual draft law in English

 

ANALYSIS OF A GENERAL BILL OF A LAW ON RELIGIOUS CONFESSIONS

INTRODUCED IN THE BULGARIAN NATIONAL ASSEMBLY

BY THE HUMAN RIGHTS AND RELIGIOUS CONFESSIONS COMMITTEE

ON DEC 4, 2002

 

 

By Viktor Kostov

Lawyer on the issues of religious freedom, Director of The Center for Religious Freedom,

a project of Door of Hope International – an international charitable

and human rights organization

 

 

 

This report is addressed to the legislator and the general Bulgarian and international public. The purpose of the report is to contribute to the public debate on the passing of a Law on Religion in Bulgaria to protect the right of freedom of religion and of conscience, and the establishment of civil society in the country.

 

 

 

The report is available on-line in Bulgarian and English at:

http://freedom1.hit.bg

or

http://bclf.tripod.com/freedom_bg.htm

http://bclf.tripod.com/freedom_en.htm

 

 

 

 

 

 

December 2002

Sofia, Bulgaria

 

 

 

 

 

 

 

 

 

 

CONTENTS

 

 

LIST OF ABBREVIATIONS. 2

SUMMARY.. 3

INTRODUCTION AND STRUCTURE OF THE REPORT. 4

POSITIVE TENDENCIES. 4

SHORTCOMINGS OF THE BILL – A GENERAL OVERVIEW... 4

ARGUMENTS ABOUT THE SHORTCOMINGS OF THE BILL. 6

A. Confused terminology and philosophical concepts. 6

B. Permissive registration arrangement 10

C. Intervention of the state in the right to freedom of religion. 11

D. Religious education and youth. 13

CONCLUDING REMARKS. 15

 

 

 

 

 

 

 

LIST OF ABBREVIATIONS

 

 

DRC – Directorate “Religious Confessions”

 

ECHR, the Convention – the European Convention for Defense of Human Rights and Basic Freedoms

 

LRC, BLRC, the Bill, the Unified Draft, the Draft - General Bill of a Law on Religious Confessions introduced in the Bulgarian National Assembly on Dec 4, 2002

 

CRB, the Constitution – the Constitution of the Republic of Bulgaria

 

SCC – Sofia City Court

 

 

 

 

                                                                                               

SUMMARY

 

The Unified Bill based on the bills for a Law on Religion introduced in 2001 and the spring of 2002 has several improvements compared to the preceding drafts. Part of the terminology of the law has been defined; certain rules have been adopted that comply with the ECHR. The gross discrepancy between the recitals of the law declaring freedom of religion and its denial in practice by the detailed provisions – a feature typical of the preceding bills – has been by far alleviated in the General Bill. The confusion imposed by the preceding bills as to who were the addressees of the law has been averted in the Unified Bill. This renders the law non-discriminatory towards faith on the strength of a different immigration status.

 

Unfortunately, however, the shortcomings of this bill make it just as unfit to fulfill the role of a good regulator of the freedom of religion, unless it undergoes certain amendments. The reformed view it demonstrates has not reached the level of reform needed to make it adequate for a free and civil society. The terminology of the Draft – crucial to understanding the essence of the right to freedom of religion – is obsolete, unchanged, and used with various meanings. The mere fact of drafting a bill to regulate religious beliefs, provided that there are no laws regulating other types of belief, introduces, by itself, discrimination against the freedom of religious belief. But the shortcomings have a tangible form.     

 

The Unified Bill allows the state to intervene in the inside life of religious communities and institutions (art. 4, par. 2 compared to art.7, par.3). Article 7, par. 1 includes an overstatement of the principle of lawful and relevant for democratic societies restriction to the freedom of conscience by introducing restrictions to the right of freedom of religion more severe than those required by the ECHR. The law infringes thereby art. 17 of the ECHR. Article 11 allows for a privileged treatment of one religious institution, which has been granted the exclusive right to represent all believers of a given religious confession, notwithstanding their will. This passage of the bill makes statements that are irrelevant to a law and entails specific political consequences.

 

The existence of a Directorate “Religious Confessions” has been furthered, its rights including acts of control over certain aspects of people’s faith. Requirements for a centralization of religious institutions has been introduced, allowing for state intervention in the life and decisions of religious communities – such as the restriction to form and register nonprofit organizations with religious goals other than those approved by religious institutions. There is no clear and explicit statement that the freedom of religion includes practice of faith without state registration and the forming of a legal entity. Large fees are imposed for a vaguely defined religious activity. The adoption of terminology complying with that of the European Convention has been overlooked – instead of a law on the freedom of religion the old term ‘religious confessions’ is used, which confuses the individual right with the religious organization. The legal restrictions to the right of freedom of religion (art.7, par 1, art.9) are larger than those in the ECHR whereby art. 17 of the ECHR is infringed.

 

The obvious conclusion is that the Unified Bill on Religious Confessions ought to be further amended in order to provide the basis for an adequate law protecting the freedom of religion in Bulgaria and promoting the establishment of a free and civil society in the country. The significant difficulties in understanding the essence of the right to freedom of religion and conscience, which became evident by the long and unsuccessful missions of similar bills in Bulgaria for the past 12 years, make it obligatory for the legislator to allow the direct application of the existing rules of the CRB and the ECHR on these issues. Religious organizations wishing to have legal entities ought to be registered under the general terms of the Law for Legal Nonprofit Entities. This state of affairs will need to last at least until society and the legislator develop a profound understanding of the freedom of conscience and religion, so that a first-rate law on the issues of protection of religious beliefs in Bulgaria can be drafted.

INTRODUCTION AND STRUCTURE OF THE REPORT

 

The draft of a religious law in Bulgaria reviewed in this report was introduced in the National Assembly on Dec 4, 2002. It is based on the three preceding bills on this matter. They were in turn introduced in the National Assembly of Bulgaria in July 2001 and April 2002. This analysis does not discuss proposals and amendments to the bill made after Dec 4, 2002. The reviewed bill, called Unified Bill on Religious Confessions, is referred to in this report also as ‘the Unified Bill/Draft’, ‘the Bill’, or simply as ‘LRC’. 

 

This report is composed of three parts. The first part is a one-page summary offering a brief overview of the contents of the passages in the law and the basic conclusions from it. The second part lists in brief the amendments and major groups of shortcomings of the bill. This section is intended to facilitate orientation of my disagreements with the basic statements in certain parts of the bill. The third part contains argumentation of the criticism addressed to the bill. The last paragraph offers some practical advice to those involved in the drafting of a law on the issues of religion in Bulgaria.

 

POSITIVE TENDENCIES

 

Compared to the letter and spirit of two of the three preceding bills, this Unified Bill marks a partial progress in the right direction.

 

A point to make here is that some of the aspects of the two exceptionally repressive and restrictive bills (of a total of three) regarding the freedom of religion have undergone amendments. These improvements are as follows:

(1)    All persons subject to the Bulgarian jurisdiction are addressees of the law. The preceding bills applied the terms ‘citizens’, ‘refugees’ and other that narrow the application of the law in regard to a number of groups with a certain immigration status that reside on the territory of Bulgaria (art. 1, BLRC).

(2)    The definitions ‘religious confessions’, ‘religious community’ and ‘religious institution’ are introduced (par.1 BLRC).

(3)    Many of the components of the right to religious confessions are explicitly stated, which elucidates the legal requirements for guaranteeing the freedom of conscience and religion (art.6, par.1).

(4)    The right of parents and guardians to provide religious ‘education’ to their children or to those entrusted to them respectively, is included (art. 6, par.2).

  

Unfortunately, the will of the legislator for reforming the bill on religious matters has not been fully exercised and the above improvements are by far insufficient.

 

 

SHORTCOMINGS OF THE BILL – A GENERAL OVERVIEW

 

The BLRC still carries the old spirit of disbelief toward religious faith and a disposition of control over religious activity. In my opinion, the shortcomings of the present bill of a religious law can be grouped in four basic categories: shortcomings related to terminology and philosophy, intervention of the state in the life of believers, restrictive registration arrangement, and restrictions to religious education.

 

 

A. Confused terminology and philosophical concepts

 

Confused terminology is a manifestation, and source, of lack of understanding of the philosophy of the right to religious confession. Listed below are some basic examples where the terminology of the Unified Bill contradicts the right to freedom of religion:

(1)    Overstated effect of restrictions to the right of freedom of faith. There are terminological inconsistencies with art. 9, par. 1 of the ECHR (art. 7, par. 1 of the BLRC). The BLRC introduces restrictions to the right of freedom of religion, but not to the right of freedom of non-religious belief. This introduces discrimination against religion. The ECHR, for example, provides in art. 9, par.2 for restrictions not only to religious belief, but also to any other belief.

(2)    Use of obsolete terminology.  Such is the use ‘religious confession’ instead of ‘right to freedom of religion.’ The same holds true for the titles of the law - ‘Law on Religious Confessions’, instead of ‘Law on the Freedom of Religion’.

(3)    Confusing use of the terms. ‘Right to religious confession’ and ‘religious confession’ as an institution have different meanings which are not specified in their use throughout the draft (art.1, 2 and then art.2, par.1, especially art. 3, par. 1, last sentence. Also, art. 13, par.23 and other provisions of the BLRC).

 

B. Permissive registration arrangement

 

(4)    The dual registration arrangement has been preserved in view of exerting control, not facilitating religious association:

o         Dual, judicial and administrative arrangement of registration – with the Sofia City Court (SCC) and with the mayors of local branches;

o         Impossibility of local registration of religious institutions – a geographic centralization in the SCC;

o         Non-admission to form foundations and associations with religious and religious-based charitable activity;

 

C. Intervention of the state in the right to freedom of religion

 

(5)    Preferential treatment has unnecessarily been granted to the Orthodox Church and to one of its fractions as unique interpreter of Orthodox faith (art. 11, par. 1, 2).

(6)    The existence of a Directorate “Religious Confessions” has been furthered as a state executor of the cooperation for mutual understanding policy, but also as a body intervening in religious life (see art. 37, points 3, 4, 5, 6, 8);

(7)    Restriction to the right of freedom of conscience and the right of freedom of religion through a centralized structure imposed to religious institutions – a restriction to the right of registration of foundations and associations (art. 29);

(8)    Lack of explicit statement of the possibility of the right of freedom of religion to be exercised without registration with the state;

(9)    Large fees for vaguely defined infractions (art. 38, par.1).

 

D. Religious education

 

(10)Lack of comprehensive definition of the right of parents to provide religious education to their children.

(11)Vague definition of the prohibition against the involvement of juveniles in the activities of religious confessions (art. 7, par. 4).

 

 

 

 

 

 

 

 

 

ARGUMENTS ABOUT THE SHORTCOMINGS OF THE BILL

 

Despite the improvements, the Unified Bill on Religious Confessions furthers the tradition of attempting to draft a religious law. The present bill of a Law on religious confessions also includes restrictions to the right of freedom of conscience and freedom of religion that collide with the standards of a free democratic society and the rules of the CRB and the ECHR. In my opinion, the shortcomings of the present bill of a religious law can be grouped in four basic categories: Shortcomings related to terminology and philosophy, intervention of the state in the life of believers, restrictive registration arrangement, and restrictions to religious education.

 

A. Confused terminology and philosophical concepts

 

Much of the criticism toward the preceding bills of a religious law was focused on the vague terminology and its disorderly use. Unfortunately, the legislator has not paid attention to these shortcomings and they have not been corrected in the Unified Bill. The ambition to define the basic notions of the law is commendable. However, in a certain way, the definition of ‘religious confession’ and the use of this term confuse rather than explain the meaning and the nature of the right to freedom of religion. In para. 1 of the bill ‘religious confession’ is defined as ‘a set of religious principles and beliefs’. Art. 21, par. 1, for example, says that ‘religious confessions can have local branches’. How could a set of religious principles and beliefs have local branches? The legislator has once again mingled the right of freedom of religion and the resulting religious organization, which are two quite different categories, into one. 

 

This deficiency results from the dual use of the term ‘religious confession’ (see also art. 1, 13, 20, 22). Articles 1 and 2 make it clear that there is a ‘right of religious confession’. These and other passages reveal that there is also ‘religious confession’ in the sense of a religious organization. Article 5, par.1 talks about exercising the ‘right of religious confession’ by forming or participating in a religious community. Article 10 specifies that ‘distinct religious confessions’ are ‘characterized among themselves’ by name, religious beliefs, and physical persons. Is it the distinct rights of religious confession or the distinct organizations founded on the basis of the right of religious confession that have those characteristics? The bill gives no explanation to this confusion.

 

Article 15 talks about ‘religious communities’ that can obtain the status of legal entities. Art. 18 concerning the registration of religious communities as legal entities, talks about ‘Articles of Incorporation of the religious confession’ without any explanation whatsoever why are ‘religious community’ and ‘religious confession’ considered as mutually replaceable terms by the authors. A possible interpretation of the will of the legislator in this case is that the term ‘religious confession’ has for him also the meaning of ‘religious community’ and/or ‘a registered religious community with the status of legal entity’. Unfortunately, such reciprocal use attenuates the meaning and eventually the protection of the basic right to freedom of religion.

 

There are still other examples of the contradictory use of the terminology of the most important part of this law – the definition of the right of freedom of religion. The persistent reluctance to adopt the clear terminology of art. 9 of the ECHR brings about unfortunate results in this bill as well.

 

The terminology of art. 7, which outlines the framework of the legal restriction to the right of freedom of religion is vague and far-fetched. We ought to point out as well that the Bulgarian legislator has decided to tread on other countries’ territories through the provision that ‘the freedom of religious confession’ cannot be oriented against the rights and freedoms of citizens ‘subject to the jurisdiction of the Republic of Bulgaria or other countries’ (art. 7, par.1). Needless to remind the Bulgarian legislator that the operation of the laws passed by him cannot be extended on territories that are not under the sovereignty of the Bulgarian state. This passage is not only redundant, but also inapplicable for those who would abuse the right of freedom of religion under foreign jurisdictions.

 

The restrictions in art. 7 of the bill have even more important deficiencies that reflect misunderstandings of the philosophy of the nature of the right of freedom of religion and conscience. This provision says that ‘the right of freedom of religious confession cannot be oriented against …’. This line of thoughts reveals that the legislator considers freedom a threat and not a right due to all. The authors of the bill regard the ‘freedom of religious confession’ as a category that threatens the order and the values of society and that can be ‘oriented against’ them.

 

If we study the terminology of art.9 of the ECHR, from which the quoted passage of the bill has borrowed parts, we will find that the line of thought of par. 2 about restricting the freedom of religion is quite different. It says, ‘the freedom to profess a religion or certain beliefs is only subject to restrictions such as …’, whereupon a limited number of restrictions to this freedom are listed. In other words, the authors of the ECHR consider freedom as an unchallengeable fact that can only be restricted in exceptional and explicitly defined cases that are relevant to a democratic society. The European legislator considers religious freedom as an inalienable and absolute right. Even when restrictions are imposed, it is not the right itself that they restrict, but the abuse of this right turning freedom of religion and belief into a weapon against freedom. Paragraph 2 of art. 9 of the ECHR requires that restrictions to the right of freedom of religion be determined by law (and not by the whim of a regional mayor or even a Minister) and also, that restrictions should be necessary (i.e. needed for the normal operation of society).

 

Apart from these two conditions, which have to act together, there is also a requirement that the necessity for such a restriction be relevant to a democratic society. Obviously, the needs of a totalitarian society differ to a great extent from those of a democratic one. For example, it was necessary for the totalitarian Communist society to oppress each belief other than Communist, including religious faith. It is necessary for the democratic society to protect the freedom, rights, and dignity of its members in the context of justice, truth and integrity. This necessity for a democratic society sometimes calls for a careful balance between opposing interests. This is why, par. 2 provides for the listing of those public interests that would justify, if threatened, the restriction to the right of freedom of religion and belief. They are named explicitly: public security, protection of public order, health and morals or protection of the rights and freedoms of others.

 

What are the grounds for restricting the freedom of religious confession[1] according to the Bulgarian legislator? They are: national security, public order, health and morals and the rights and freedoms of other persons subject to the jurisdiction of Bulgaria and other countries. In this case,  digression from the European terminology also engenders serious problems (notwithstanding that the CRB also uses the term ‘national security’ in art. 37, par.2).

 

The following table allows for comparing the restrictive provisions of the Bulgarian and European laws (It is important to note the ECHR is part of the internal Bulgarian law of 1992).

 

 

 

 

 

 

 

 

ECHR, art. 9, par.2	Unified Bill of LRC, art. 7, par. 1[2]
Restrictions to freedom of religion and of belief	Prohibition for orienting the freedom of religious confession
Only (1) those provided for by the law (2) necessary in a democratic society	Against … (no restriction to the prohibition)
In the interest of protecting the public security	National security
For the protection of public order	Public order
…of public health	national health
… public morals	morals
Protecting the rights and freedoms of others	Against the rights and freedoms of persons subject to the jurisdiction of Bulgaria or other countries
---	Religious belief and organizations cannot be used for political purposes

 

Table 1. Comparison between restrictions to the right of freedom of religion and of belief in the ECHR and the restrictions to the right of freedom of religion in the Unified Bill.

 

The table reveals that the ECHR suggests “limited” restrictions to the protection of other values that, at a certain point, collide with a particular use of the freedom of religion and beliefs. Please, note that these restrictions are applied not only to religious beliefs, but also to any kind of beliefs! This is a point of crucial importance in the differences between the ECHR and the Bulgarian bill – the restrictions of art. 9, par. 2 of the ECHR are applied to any belief, whether religious, philosophical, or atheistic. On the other hand, the Bulgarian bill of a religious law imposes restrictions only against the ‘freedom of religious confession’.[3] Neither in this bill, nor in other bills or laws are the rights of others subject to such restrictions. For example, there is no legal restriction for using of atheistic or occult beliefs against national security, public health and ethics or the rights and freedoms of others.[4] This fact suffices to reveal the discriminatory attitude of the bill of a LRC towards religious faith.

 

There is also a difference between the term ‘public security’ used in the ECHR and ‘national security’ used in the Unified Bill. The first term implies protection of what is good for society. The second one implies what is good for a particular political situation or power. National security is protected by government authorities, while public interest is protected by the state, as well as by nonprofit organizations and individuals. The restrictions imposed by art. 7, par. 1 do not meet the requirements of European standards and philosophy of the nature of the right of freedom of religion and belief.

 

The following fact is evidence to the lack of understanding of the nature of this right: art. 7, par. 1, last sentence reads, ‘No grounds for restricting the right of religious confession other than the listed ones can be brought under regulations’. And in the very next sentence of the Bill, the authors introduce yet another restriction to the right of religious confession in addition to those listed in par.1! Article 7, par. 2 reads, ‘Religious communities and institutions, as well as religious beliefs cannot be used for political purposes’.[5] Such an attitude toward their own texts can be defined as thoughtless – to nullify your own statements in the same breath that you have made them. At the same time, nowhere in this bill or in other Bulgarian laws have any restrictions to the use of atheistic belief for political purposes.

 

Conclusions 

 

The deficiencies in the terminology in the Unified Bill on Religious Confessions reveals a lack of understanding of the philosophy of the right to freedom of religion and beliefs. The restrictions to the freedom of religion, called “freedom of religious confession,” stated in art. 7 of the Unified Bill do not comply with art. 9, par. 2 of the ECHR. Article 7 of the Bill is a direct infraction of art. 17 of the ECHR, which prohibits the interpretation of provisions of the Convention as destructive for the rights and freedoms provided in it or as imposing heavier restrictions than those in the Convention.

 

To summarize, the basic Shortcomings of the Bill concerning a misinterpretation of the philosophical nature of the right of freedom of religion are:

 

1.       Overstated restrictions to the right of freedom of religion (art. 7, par. 1), which is an infraction of art. 17 of the ECHR;

2.       Use of obsolete terminology – ‘religious confession’ instead of ‘right to freedom of religion’. The same holds true for the titles of the law - ‘Law on Religious Confessions’, instead of ‘Law on the Freedom of Religion’. Here again, in spite of the new definitions there is a confusing use of terms: ‘right to religious confession’ and ‘religious confession’ as an institution (first in art.1, then in art.2, par.1, and especially in art. 3, par. 1, last sentence. See art. 13, par. 1, art. 23, par. 1).[6]

3.       Treating the freedom of religion as a special belief, different than other types of philosophical beliefs. Thus, for example, atheistic, occult, ecologic beliefs and organizations are outside of the scope of control and supervision of the state; the passing of the BLRC in this version would lead to law-regulated discrimination against religion.

 

 

B. Permissive registration arrangement

 

Ever since the time of the Soviet Union, Bulgarian authorities and society tend to think of registration with a state body as permission for faith sanctioned by the state. The actual meaning of “registration” in a free civil society is radically different. This is the chance given to believers to create a legal fiction – a legal person – to advance their activity and enable them to exercise the right to association. The Unified Bill reveals the attempt of the legislator to break off from the permissive registration arrangement for believers and their organizations. However, this attempt was half hearted. Traces of the old way of thinking show up in the principles laid down in the registration procedure:

 

The registration arrangement has been furthered in view of exerting control, and not facilitating religious association:

 

Dual registration arrangement – a judicial and an administrative procedure – with the Sofia City Court (SCC) and with the mayors for declaring local branches (art. 21, par. 1). Registration with mayors does not have legal consequences, for example the local branch does not obtain the status of a separate legal entity. Registration of local churches with the mayors’ offices are practically unnecessary.  Understanding the mind of the legislator will reveal the purpose of this procedure—it is meant to serve as state control over local religious groups connected to the headquarters of the religious community. If it were necessary to specify the governance of the local group when the latter rents a hall for conducting religious service, for example, a letter from the headquarters would suffice. The identity of the local governance is not an issue of interest to the state, but of the private organization.  Yet a philosophy of state intervention in the private conscience calls for this exact measure.

  

Impossibility of local registration of religious institutions – a geographic centralization in the SCC (art. 16). It is not proper to restrict the right of religious association by introducing a centralized registration system. There is no reason why a religious confession that has emerged in the town of Bourgas cannot be registered in the local regional court, but it has to go for an expensive registration in Sofia. This requirement reveals the legislator’s aspiration to cement state control and centralization in matters of religion. It hinders and makes expensive the possibility to exercise the right of religious-based association in towns and villages far from Sofia.

 

Assessment of faith by the state during registration. Article 18 provides a possibility that the Directorate “Religious Confessions” give ‘expert opinions’ to SCC regarding the registration of one or another religious community. This right of the Department is a direct intervention of the state in the right of freedom of religion, against the rules of the Bill itself (art. 4, par. 1, 2, 4) and in violation of the prohibition that the state assess religious beliefs.[7] 

 

Non-admission to form foundations and associations with religious and religious-based charitable activity (art. 20). This provision is one of the most striking examples of the restrictive nature of some of the rules of the Bill. What would happen if a religious confession that does not wish to have the status of a legal entity decided to form a legal nonprofit entity for ‘supporting and raising awareness of the same’? If the answer is yes, it can do that, obviously religious communities that are not registered have more liberty to act and exercise their rights than the registered communities. The purpose of registration proves to be a means of state control. Members of registered communities are required to have a permission from the institutions to raise awareness of a certain religious confession, which renders the freedom of religion dependable on the permission of others.8

 

If the answer is no, religious communities that are not registered cannot form foundations and associations, then there is a conspicuous discrimination against religious groups that do not wish to be registered by the state as religious institutions. Paragraph 2 of the same provision says that legal nonprofit entities that raise awareness of a particular religious confession ‘do not have the right to activities that practice in public a religious confession’. Once again, such a contradiction is inadmissible. How can one raise awareness of something they are forbidden to exercise in public? Which religious community leader would allow the registration of a legal entity in view of practicing a forbidden activity? This is virtually what the legislator suggests in art. 29, par. 1 and 2. And is practice in public of a religious confession really forbidden? Article 2, par. 2 guarantees the right of all to freely exercise their religious confessions, including in public. In order to escape from the depressive reality of the ridiculous contradictions in the cited provisions, we ought to take a look at the next groups of infractions in the Unified Bill.

 

C. Intervention of the state in the right to freedom of religion

 

Apart from demonstrating a restrictive registration arrangement, part of the above arguments are also a direct intervention of the state in the will and inside life of believers and their organizations. Listed below are some examples of provisions from the Bill that are even more illustrative to this tendency:

 

Art. 9.

 

This provision lists the ways through which the freedom of religion is practically restricted. Probably, the authors have listed the methods for restriction in an attempt to comply with the requirement of art. 9, par. 2 of the ECHR, which states that restrictions to the freedom of conscience be only subject to those provided for by law. These methods reveal a lack of understanding for the right of religion. Without going into detail, I would only draw attention to art. 9, point 6, which stipulates a ‘6-months suspension of activity’. From an individual viewpoint of the right of freedom of religion, this restriction probably means that the state can forbid me to have a prayer life and read the Scriptures for 6 months? The rest of the “restrictions” in this provision are just as poorly worded and dangerous to a democratic society.

 

Art. 11.

 

I am positive that other critics have also noticed that art. 11. par.1 of the LRC is untenable, and this is why I will not go into detail about this provision. It is totally untenable and demonstrates inadmissible disrespect for the law (ECHR, CRB), and even violates it. This article violates the right of freedom of religion by striving to subdue the conscience of Orthodox believers and bind the exercise of their faith with one particular institution. The Supreme Administrative Court of the Republic of Bulgaria has a ruling with which it confirms that there could exist more than one Orthodox Church in Bulgaria9 (“Church” in the sense of ‘institution’, not of ‘faith’). It is wrongful to use the legislative power to achieve religious-political results, and it collides with the principles of free and lawful society. Orthodox believers are people who have the right to self-determination as believers and the state authorities cannot use the mechanisms of the state machine to replace people’s conscience and will. The Byzantine theory of the “symphony” between the state and church power, although deeply engraved in the historical traditions of Bulgarian lands, is an inappropriate basis for the drafting of a law that respects the freedom of conscience and religion of all. This provision ought to be dropped off.

 

Art. 37.

 

The Directorate “Religious Confessions” has been furthered as a state executor of the policy of mutual understanding between believers from different groups, but also as a body intervening in religious life. The LRC provides for specific powers that give ground to consider the Directorate “Religious Confessions” as a body intervening in the internal organizational life of religious communities.

 

Art. 37, point 4 – gives ‘expert conclusions and opinions’ on the registration of religious communities as legal entities (see art. 18);

            Point 5 – DRC gives opinions about applications for residence visas of foreign religious ministers. This right is a direct intervention in the activities of faith groups. There is also another type of restriction in this point – the legislator makes the tacit presumption that only those foreign religious ministers who have been invited by the headquarters of a religious confession[8] can obtain a long-residence visa. If local branches and religious groups could apply for visas for foreign ministers without needing permission by the Directorate “Religious Confessions”, then local churches and groups would have had more rights than the Headquarters. This is hardly what the legislator has had in mind. On the contrary, the author had meant the impossibility that foreign ministers be invited by anyone else but the Headquarters of the ‘religious confessions’. This is evidence to the typical communist regime mentality – centralization of the governance of faith communities in view of controlling more easily their activities by exerting pressure over the Headquarters. The possibility for exerting pressure over contacts with foreign religious ministers and the decision to make local governances dependant on two institutions – mayor registration on the one hand, and the Headquarters of the religious institution on the other – identify the Bill with the school of control over people’s conscience and religious confessions of the communist regime.

            Point 6 – The text does not make clear what exactly is ‘abuse’ of the right of religious confession. According to the legislator, religious confession is a set of religious principles and beliefs on the basis of which religious faith is practiced. The authors do not clarify why would somebody’s beliefs violate the rights and freedoms of others. Once again we can see the difference between the understanding of the philosophy of the freedom of religion in the ECHR and of the authors of the BLRC. The right to freedom of religion, in its nature, cannot be oriented against other persons. It can, however, be restricted in rare and comprehensively defined cases. Citizens’ signals for inspection of ‘abuse of the right of religious confessions’ is ground for arbitrary acts of the state and harassment of believers. 

            Point 8 – just as in art. 6, such arguments hold true to this point as well. There is no such notion as ‘illegal religious activity’. Would anyone control an illegal atheistic activity? Who would supervise the illegal occult, psychic, free-mason, and astrologic activity, which are not religious beliefs in the narrow sense of the Bill? This power is a sure guarantee for arbitrary acts of the state.

 

 

 

 

Art. 38.

 

Par.1 reads, ‘He who exercises activity on behalf of a religious confession without having representative powers is fined 100 to 300 leva’.[9]  The absurdity of this provision discredits whatever positive impression there is from the attempt at liberating the letter and the spirit of the Bill. Who is he who gives representative powers for exercising faith-related activity? The answer is: the one and only God. This is what the freedom of conscience and the freedom of religion are all about – that the faith you have gives you the power to exercise your faith. How could an institution, called by the authors of the LRC a ‘religious confession,’ have a monopoly over people’s conscience and their right to faith and opinion and expression of opinion, including through religious activity? Or has the legislator forgotten his own provision in art. 2 of the Bill that ‘the right of religious confession is a basic, absolute, individual, inalienable’? Obviously, the authors of the Bill wish to fine anyone who preaches his faith without having been authorized by God Himself whom they worship. I consider it thoughtless to impose a fine for lack of representative power to believe, which is what this provision virtually requires.

 

Par.2 provides for a fine of 1,000 leva for a second action. It is hard to say what the author had meant with this text. The legislator obviously wanted to guarantee that no one would preach someone else’s religious beliefs. But how can a license or a trade mark exist for the human conscience and its convictions?  Don’t we all exchange ideas and on that basis form our world view and convictions? I have to regretfully point out that the negligence the authors of the Bill have shown to understanding the nature of the freedom of conscience and belief and the freedom of religion, and the patent desire to control this freedom they have manifested in the cited provision, compromise the reputation of the Bulgarian legislator.

 

Art. 29.

 

This text restricts the freedom of conscience and the freedom of religion by imposing a centralized structure of religious institutions – a restriction to the right of registering foundations and associations (art. 29, see the passage above about the registration arrangement).

 

Finally, although this is one of the most important characteristics of the approach toward the freedom of religion, we have to make the point that the rights of non-registered religions have not been stated. The Bill does not explicitly express the possibility for the right of freedom of religion to be exercised without the need for a registration by the state. This possibility has only been implied through the introduction of separate definitions of a religious community and a religious institution. At the same time, the use of “religious confession” confuses these definitions and mixes them to the detriment of the law. The impression is created that only those religious institutions that are registered with SCC are a religious confession. This confusion combined with a long-lived deception in Bulgarian society that in order to believe one needs permission from the authorities, is a formula for violating the freedom of religion.

 

D. Religious education and youth

 

I have two main remarks in this area: insufficient guarantee to the right of parents to provide religious education and training to their children, and too heavy restrictions to believers and their activity regarding youth under 18 years of age (art. 6, par. 2 and 7, par. 4).

 

Art.6, par.2

 

An example of the deficient will for a change of the spirit of the law for religion is the inconclusive rule, which enables parents to ‘instruct’ their children according to religion (art. 6, par. 2). Art. 53 of the Bulgarian constitution talks about the rights (and obligation) of parents to bringing up, instructing and educating their children. In comparison to the constitutional text, the religious law does not guarantee the right of parents to bring up and educate their children according to their own religious beliefs. However, this right—the right to instruct one’s children— does not suffice if the parent cannot require that the education of his child comply with the ethical and religious beliefs of the parents. What is the use of the right of religious instruction within the family, if a child is educated at school in a doctrine that totally opposes the religious belief taught by his parents during the religious ‘training’ of the child?

 

An example of such a situation is when parents train their child to believe that according to the Bible man has been created by God in His image and likeness. The child, however, goes to a Bulgarian public school. In Bulgarian schools, Darwin’s atheistic theory that man descends from animals, particularly from the monkey, is still widely taught. How far does the freedom of religious training go, if this training is threatened by a mandatory understanding of an anti-religious education? If the child presents at school an alternative to Darwin’s theory about the origin of man, the most likely outcome will be a poor grade for his or her knowledge. The state monopoly of a doctrine with philosophical ideology, adopted in public educational programs, virtually restricts the freedom of religion. This restrictive aspect is also present in the bill because of the lack of comprehensive definition of the rights of parents and guardians.

 

However, there is no reason for such a lack of a comprehensive definition. The first Protocol of the ECHR guarantees exactly these rights.10 This Protocol has been ratified by Bulgaria with clauses that are not relevant to the nature of the issue I pose. Article 2 of the Protocol affirms the obligation of the state to ‘respect the right of parents to educate and teach their children according to their own religious and philosophical beliefs’. This means in practice that not only the bringing up, but also the education and teaching of the child are subject to the freedom of parents to require compliance with their own religious beliefs. The provisions of art. 2 of this First Protocol of the Convention ought to be included in the bill of a LRC and the religious law ought to guarantee the right of parents to religious upbringing and education of their children.

 

Art. 7, par. 4.

 

This provision obliges religious communities to ‘not involve juveniles in their activities, if there is an explicit disagreement on the side of their parents, guardians, or trustees’.

 

The improvident and restrictive nature of this requirement becomes evident from the vague wording of the text. There is a big difference between a 6-year-old and a 17-year-old ‘juvenile’. What does the text ‘not involve in their activities’ precisely mean? Perhaps, to take them out by force, if they go to a religious service? Or, if they question about God and the faith of a particular believer, the latter should keep quiet and not respond or pretend not to hear the child? The requirement for an explicit disagreement of the parents is also questionable. In front of whom should they express their disagreement? Should the disagreement be made orally or in writing? In the presence of the children or without their participation? The Bulgarian law recognizes the partial legal capacity of juvenile children (14-18 years of age). Would the juvenile have the right to speak regarding the ‘explicit disagreement’ of his parents? To what extent should the juvenile be deprived of his right to freedom of conscience in order to satisfy the right of his parents of freedom to form their child’s world view?11 The provision gives no answer to these questions, and the lack of clarity will be a further source of conflict and misunderstanding.

 

 

 

CONCLUDING REMARKS

 

Since 1992, the ECHR has been a Bulgarian law, valid on the whole territory of the Republic of Bulgaria. The Unified Bill on Religious Confessions violates a series of provisions of the ECHR. A violation is the use of basic terms in a vague and confusing way. Heavier restrictions are introduced to the right of freedom of religion than is necessary in a democratic and free society. Where the ECHR talks about freedom of conscience – religious and non-religious beliefs, the Bulgarian legislator wishes to introduce a law only in view of regulating religious beliefs. No law regulates the atheistic or other philosophic beliefs, and this division of human conscience to religious and non-religious introduces discrimination of people on the basis of their faith. A series of passages in the law reveal a patent striving of the state to control the conscience and exercise of faith of people – a registration arrangement with unnecessary registrations with local authorities, opinions of a state body on faith beliefs (although called ‘expert opinion), imposing of fines for vaguely defined religious activities, improvident protection of the right of parents and guardians to educate their children according to their faith.

 

On the basis of these remarks, the Unified Bill ought not to be voted in the National Assembly as a law regulating the issues of religion in Bulgaria.[10] Such a decision would be a political and legislative mistake. In its present version, this bill is still unfit to serve its purpose of such a law in a free and democratic society.

 

Until time is ripe for such a law on the issues of religion, religious organizations that wish to form legal entities ought to obey the general order of activity and registration of nonprofit organizations. Then, there will not be a vacuum on the issues of religious freedom – the rules of the ECHR will be directly applied, as well as those rules of the CRB that treat the issue and do not collide with the ECHR. These supreme laws in Bulgaria are sufficient to guarantee the freedom of religion in Bulgaria. Meanwhile, Bulgaria must duly study the experience of societies with traditions in keeping the freedom of conscience and religion – some Western European democracies and the USA. It is only the full and steadfast guarantee of the freedom of conscience and freedom of beliefs, including religious beliefs, that can make sure that Bulgaria follow the way of freedom, and not of improvident reforms and finally – oppression.

 

 

Sofia, December12, 2002