Communicated on 25 August 2014
FIRST SECTION
Application no. 48044/10
BEKTASHI COMMUNITY and others against the former Yugoslav Republic of Macedonia
and 2 other applications
(see list appended)
The Bektashi community (“the first applicant”) is a religious community that was not granted the status of a legal entity at national level. Mr E. Brahimaj (“the second applicant”) is an Albanian national and lives in Tetovo, the former Yugoslav Republic of Macedonia. As stated by the applicants, he is a religious practitioner, a member of the first applicant who holds a position in the highest hierarchy of the community. Mr A. Sulejmani (“the third applicant”) is a Macedonian national and lives in Gostivar, the former Yugoslav Republic of Macedonia. He is a member and representative of the first applicant. The applicants are represented before the Court by Mr A. Godžo and Mr D. Godžo, lawyers practising in Ohrid, the former Yugoslav Republic of Macedonia.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Background to the cases
As stated by the applicants, Bektashi existed and professed their religion in the respondent State for many centuries. The first applicant professed in “Teke Sersem Ali-Harabati Baba” in Tetovo, the former Yugoslav Republic of Macedonia, as its primary seat. Until the events in 2009-2010 (see below), the first applicant existed and professed religion in practice in full capacity. In the past, it was also referred to and existed under the name “Islamic Bektashi Community”.
On 25 August 1997 the State Religious Commission (“the Commission”), which was competent, under the Act on religious communities and groups of 1997 (“the 1997 Act”), to deal with religious matters, requested that the first applicant submit inter alia a copy of its application for registration with the Ministry of the Interior (“the Ministry”), the competent body at the time, and a certificate in which the Ministry had confirmed that the first applicant had been listed in its records (потврда за постојано пријавување). As stated in the request, it was made in order that the Commission “transfer (in the register) the religious communities and groups that have so far been listed in (пријавени) the Ministry of the Interior” (see section 35 of the 1997 Act (see “Relevant domestic law and international materials” below).
On 1 March 1999 the Ministry issued a certificate (потврда) attesting that the first applicant (under the name “Islamic Bektashi Community” in Tetovo) had submitted an application for registration in February 1993.
On 23 June 2000 the Commission issued a certificate (“the 2000 certificate”) that on 13 June 2000 the first applicant had filed “an application in accordance with the 1997 Act”. The certificate further stated:
“Since the statutory conditions are met, the Bektashi Community in the Republic of Macedonia is listed (пријавена)”.
With a decision of 18 July 2000, the State Statistical Office specified that the first applicant’s main activities were “activities of religious organisations”; specified its seat (site “Arabati Baba”); and attributed corresponding indexes and business codes.
In a letter of 13 June 2002, the Commission referred to the 2000 certificate and stated that:
“the Bektashi community in the Republic of Macedonia is registered in the register of religious communities and groups ... seated in ... (site ‘Arabati Baba’) in Tetovo”.
In 2003 a local non-governmental organisation (Macedonian Centre for International Cooperation) published an “Address book of religious communities in Macedonia”. As stated in the Address book, it included the religious entities recorded in the Commission’s register. The first applicant was listed in the Address book on the basis of the 2000 certificate.
On 20 February 2007 the Commission authorised the second applicant to carry out “religious ceremonies and rituals in lawful premises of the Bekstashi community of the Republic of Macedonia”.
2. Proceedings in which the first applicant claimed recognition and continuation of its legal status as a religious community (application no. 48044/10)
On 4 June 2009 the first applicant requested, under section 35 of the Act on legal status of a church, religious communities and groups of 2007 (“the 2007 Act”) (see “Relevant domestic law and international materials” below) that the competent court recognise its continuing legal status and record it accordingly in the Single court register. In support it submitted the 2000 certificate (see above).
On 2 October 2010 the Skopje Court of First Instance (“the first-instance court”) dismissed the first applicant’s request finding that it had not been listed, at the time, in the Ministry and accordingly the Commission had not been required to register it in its records under section 35 of the 1997 Act. In June 2000 the first applicant applied to the Commission, which the latter acknowledged with the 2000 certificate. The latter was in compliance with decisions of December 1998 (U.br.223/97) and October 1999 (U.br.114/09) in which the Constitutional Court declared unconstitutional the statutory provisions which provided for registration of religious entities. The first-instance court established that the first applicant had never been registered (регистрирана) by the Commission, but only listed (пријавена), let alone before 1998, as required under section 35(2) of the 2007 Act. Consequently, the Commission had not been required, as specified in section 35(1) of the 2007 Act, to transfer the data “recorded in its register” to the first-instance court. That requirement concerned only registered and not listed religious entities. The first-instance court concluded that the first applicant had never obtained the status of a legal entity, which recognition and continuation it sought with the application.
On 18 February 2010 the Skopje Court of Appeal upheld this decision and the reasons contained therein.
3. Proceedings for registration of the first applicant (application no.75722/12)
On 22 November 2010 the first applicant filed an application seeking that the first-instance court register it (as “Bektashi religious community of the Republic of Macedonia”) in the Single court register of churches, religious communities and groups. On the same date, it requested that the Ministry of Justice gave permission for the use of the word “Macedonia” in its name, to which the Ministry did not reply. On 30 November 2010 the first-instance court requested that the application be completed with certain documents. In reply to that request, on 18 December 2010 the third applicant, as the first applicant’s authorised representative, informed the court that on 15 December 2010 the founders of the first applicant had held a meeting on which they had discussed the issues raised by the court. The following relevant documents were appended to the application for registration: (a) record of the founding meeting; (b) founding decision; (c) description of the doctrinal sources; (d) decisions concerning the authorised person to represent the first applicant and submit the application for registration; (e) certificates of nationality for the founding members; (f) graphical description of the religious insignia.
On 20 December 2010 the first-instance court refused to register the first applicant as “Bektashi religious community” on the following grounds: (a) the name “Bektashi” has already been used by another religious entity registered in the Single court register; (b) the first applicant’s doctrinal sources were identical with the doctrinal sources of another already registered religious entity; and (c) the first applicant did not submit proof of ownership of the site “Arabati Baba” in Tetovo, indicated as its seat in the application for registration.
The applicants appealed against this decision and sought that the Court of Appeal held a public session under section 351(2) of the Civil Proceedings Act (see “Relevant domestic law and international materials” below).
On a hearing held in private on 14 April 2011, the Skopje Court of Appeal accepted the applicants’ appeal and quashed the lower court’s decision finding that the latter did not specify: (a) which registered religious entity used the name “Bektashi”; (b) which statutory provision forbid the use of identical doctrinal sources by more religious communities and groups; and (c) the law did not specify that an application for registration could be refused due to the absence of proof of ownership of the seat of a religious community.
On 27 May 2011 the first-instance court again refused to register the first applicant. It established that on 15 December 2010, 9 founding members, including the third applicant, had held a founding meeting of the first applicant. At the meeting, they had authorised the third applicant to represent the first applicant and submit the application for its registration. They also had adopted the following doctrinal sources of the first applicant:
“Islamic religion and the teaching of the Holy Koran, which is supplemented and interpreted by the knowledge and practices of prophet Mohamed and Imam Ali, the Holy Ehlibeyt (the prophet’s family) and the Holy Journey of Haji Bektash Veli.”
The first-instance court refused to register the first applicant in the Single court register for the following reasons: (a) its name contained the word “Bekstashi”, which had already been used by another religious entity, namely “Ehlibeyt Bektashi religious group in Macedonia”, registered in the Single court register on 10 September 2010; and (b) its doctrinal sources were not different from the doctrinal sources of the Islamic Religious Community, which had existed for centuries and which had been registered in the Single court register on 14 November 2008. In this connection, the court interpreted the first applicant’s doctrinal sources. It held that the doctrinal sources were to be regarded as official insignia of a religious entity within the meaning of section 10(1) of the 2007 Act and they accordingly had to differ from the doctrinal sources of already registered religious entities.
The first applicant challenged the grounds on which the first-instance court had based the refusal for its registration. It argued that there was no other religious entity registered under the same name. In this connection it submitted that there were 6 registered religious entities that contained the word “Christian” in their name and 2 registered entities that used the word “Islamic”. The same rule and standard should apply in the first applicant’s case. It was so since the intention of the 2007 Act was not to ban the use of words that had generic and not exclusive meaning. Otherwise, it would mean that the law allowed the registration of only one religious entity containing the word Christian, Islamic, Bektashi, Jewish, Tarikat, Buddhist, Zen, Zoroastric. It also argued that the first applicant had sought registration as a religious community, as opposed to “Ehlibeyt Bektashi”, which was registered as a religious group; its name was substantially different from the name of that entity; the first applicant had existed for decades and centuries, as evident from the Address book and correspondence with various State institutions. As regards the doctrinal sources, the first applicant argued that they could not be regarded official insignia within the meaning of section 10(1) of the 2007 Act. Doctrinal sources could be identical for more religious entities (as the Bible was common for Orthodox and Catholics; Koran was common for the Islamic Religious Community, Bektashi, Shia or Suni). They were of an ideological nature and were not constant nor could be interpreted in that way. In this connection it stated that the interpretation which the court had given regarding its doctrinal sources, namely that they were identical to the doctrinal sources of all Islamic teaching, was wrong. The mere fact that the court interpreted its doctrinal sources implied that the State was not separated from the religion. Furthermore, if that interpretation was based on some materials, they were not communicated to the first applicant nor it was given the opportunity to present its views on a public hearing. In this respect, it requested that the Court of Appeal held a public session. Lastly, it complained that it was discriminated due to the following: (a) the Ministry of Justice had not replied to its request for use of the word “Macedonia” in its name (thus preventing it to use a name of its own choice); (b) the first-instance court wrongly interpreted its doctrinal sources; and (c) it was the only religious entity which was prevented from using the word “Bektashi” in its name, unlike religious entities that use the words “Christian” or “Islamic”.
On a hearing held in private on 17 November 2011, the Skopje Court of Appeal dismissed the appeal and upheld the lower court’s decision. The court held that although the name of the first applicant was not entirely identical with the name of the “Ehlibeyt Bektashi religious group of Macedonia”, it contained the name “Bektashi”, which was decisive and represented a synonym for the religious entity. Consequently, the registration of the first applicant could create confusion among the believers. The court did not give any reason regarding the doctrinal sources of the first applicant.
4. Constitutional appeal against the courts’ refusal to register the first applicant (application no. 25176/13)
On 20 February 2012 the first and third applicants (and two other individuals) lodged with the Constitutional Court a constitutional appeal complaining that they were discriminated contrary to Article 110 § 3 of the Constitution. They gave a summary of the factual background described above and submitted arguments similar to those raised in the appeal against the first-instance court’s decision of 27 May 2011 (see above). They complained that the use of the term “Bektashi” could not be exclusive (alike the use of “Christian” and “Islamic”). Furthermore, the registration of the “Ehlibeyt Bektashi religious group in Macedonia” implied that the domestic authorities had implicitly accepted that the doctrinal sources of that religious group had been allegedly identical with the teaching of the Islamic Religious Community. They requested that the Constitutional Court hold a public session (јавна расправа) in accordance with section 55 (they referred in error to section 56) of the Rules of Court (see the “Relevant domestic law and international materials”).
On 20 November 2012 the Constitutional Court dismissed the constitutional appeal. It decided after it had obtained the list of religious entities registered in the Single court register, as well as the file regarding the registration of the “Ehlibeyt Bektashi religious group in Macedonia”. As to the latter, it established that the first-instance court had not analysed its doctrinal sources nor had it compared them with the teaching of the Islamic Religious Community. The relevant parts of the Constitutional Court’s decision read as follows:
“...in the present case, the court considers that it should examine whether the refusal to register the Bektashi religious community violated the freedom of religion and whether there are elements of discrimination on religious grounds.
As regards the first part of the question, it appears that, from section 9 of the Act on legal status of a church, religious communities and groups, the registration in the Single court register is a requirement for a religious entity to obtain the status of a legal entity, but it is not a precondition for religious ceremonies, rituals and prays, which believers ... can hold irrespective of the fact whether they are organised as a registered religious legal entity.
In the present case, having regard to the arguments put forward in the application and the established facts, it appears that the applicants, who define themselves as members of the Bektashi community, have freely professed their religion for many years; they participate in public life; they communicate with State bodies; participate in religious gatherings and conferences. This leads to a conclusion that although they are not formally registered under the [2007 Act], they can profess their religion freely and can hold religious ceremonies in accordance with the Islamic religion, without any pressure or persecution. Consequently, the freedom of religion of the applicants is not being violated.
In order to reply whether there are elements of discrimination in the dismissal of the application for registration of the Bektashi religious community, the Constitutional Court assesses whether the courts, which decided in the registration proceedings ... gave sufficient reasons and whether the refusal to register the Bektashi religious community was based on relevant and reasonable grounds, namely whether the refusal for registration pursued a legitimate aim and whether there was a measure of proportionality between the means used and the aim pursued ...”
The court then referred to the grounds on which the first-instance court based its decision to refuse to register the first applicant and stated that:
“The Constitutional Court endorses the findings of the first-instance court according to which the name and the doctrinal sources are official insignia of a religious entity ...
This is even more relevant regarding smaller religious entities, namely [entities] that ... manifest their existence through these two elements. Consequently, the fact that the [first applicant] is identical with another already registered religious entity can create confusion in the public; can bring the believers in confusion, which represent, at the same time, a violation of their religious beliefs. Consequently, it is not in dispute that the right of a religious entity to be registered should be secured in the context of the freedom of religion, but it should not violate the religious rights and feelings of members of already registered religious entities.
...Each religious entity, a church, religious community or a group, enjoys the right to be distinct; to be recognised in the public with its specific identity, which, if it does not exist or if there is a competition, can create confusion in the public; in case there are more parallel entities among which there is a competitiveness, infinite parallelism and division.
The aim of the statutory requirement that the name and official insignia of religious entities, including the doctrinal sources, are different ... is to prevent a confusion of believers, a wrong perception and lawful infinite division of followers of the same religion in several religious communities or entities. In the court’s view, these aims are legitimate and necessary in order to protect the freedoms and rights of others and to secure religious tolerance and prevention of religious conflicts, as an element of the protection of public order, which is the responsibility of the State.
In view of the foregoing, the Constitutional Court considers that the refusal to register the Bektashi religious community did not violate the freedom of religion of the applicants, nor they were discriminated on the basis of their religion.”
B. Relevant domestic law and international materials
1. Constitution of 1991
Article 110 § 3 provides that the Constitutional Court protects the freedoms and rights of individuals and citizens concerning the freedom of conviction, conscience, thought and public expression of thought; political association and activity; and the prohibition of discrimination among citizens on the grounds of sex, race, religion, national, social and political affiliation.
2. Act on legal status of a church, religious communities and groups of 2007 (Official Gazette. No.113/2007)
Under section 9 (1) and (3) of the 2007 Act, the legal status of a church, religious community and religious group is gained through registration in the single court register. A church, religious community or religious group will be recorded in the register only if such church, religious community or religious group has not previously been registered.
Section 10 provides that the name and insignia of any new church, religious community and religious group should be different from the names and insignia of other already registered churches, religious communities or groups.
Section 12(2) § 4 provides that an applicant association should append its doctrinal sources (извори на учење) to an application for registration.
Under section 35, the Commission is obliged to submit, within 60 days after the 2007 Act entered into force, relevant data regarding the existing religious entities recorded in its register (запишани во нејзиниот регистар) to the first-instance court. All churches, religious communities and groups registered (регистрирани) by that body until 1998 can withhold the existing legal status. All relevant data are recorded in the Single court register.
3. Civil Proceedings Act of 2005
Under section 351(2) of the Civil Proceedings Act, the second-instance court would hold a hearing when it is necessary to repeat already admitted evidence in order to establish the facts correctly.
4. Act on religious communities and religious groups (Official Gazette no. 35/1997)
Section 35 of the 1997 Act, as valid at the time, provided that the Commission would transfer, within one month after that Act had entered into force, into its register the religious communities and groups, which had been listed in the Ministry until that Act had entered into force.
5. Rules of Procedure of the Constitutional Court (Official Gazette no.70/1992)
Under 55(1) and (2) of the Rules of Procedure of the Constitutional Court, it decides cases for the protection of human rights and freedoms, in principle, on a public session (јавна расправа), to which the following are invited to attend: the parties to the proceedings; the Ombudsman; and other persons, if necessary.
6. Opinion on the Draft Law on the legal status of a church, religious community and a religious group, European Commission for Democracy Through Law (Venice Commission) Opinion No. 424/2007, 13 March 2007
The Opinion reflects the views of the Venice Commission regarding the draft Act 2007, as it stood at the time. The most relevant parts of the Opinion read as follows:
46. Pluralism is ‘indissociable from a democratic society within the meaning of the Convention.’ Religious freedom involves freedom to manifest one’s religion in private and in community with others and this is especially relevant to the question of registration of churches, communities and groups. Whilst it may in certain circumstances be necessary to restrict freedom of manifestation of religion where several religions co-exist so as to ‘ensure that everyone’s beliefs are respected,’ the state must remain neutral and impartial and ‘not ... remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.’ Assessment of the legitimacy of religious beliefs or ‘favouring a particular leader or organs of a divided religious community’ would constitute an infringement of the freedom of religion.
47. When regulating in the religious field, a State has to remain neutral and impartial.
63. ...The drafters consider that the State has the duty to protect the public from confusion and therefore could refuse registration to any religious entity which would not sufficiently distinguish itself from already registered religious entities.
68. In draft Article 9.4 a religious entity cannot be registered if it has or uses ‘the same or a name similar to an already registered church, religious community or religious’ ...
69. Here again it is doubtful that these restrictions can be considered as lawful in the meaning of the strict requirement of Article 9.2 ECHR.
70. Protecting believers from confusion ... cannot be considered as sufficient.
7. Other relevant international materials
The non-registration of the first applicant was noted in the 2011 and 2012 Progress Reports of the European Commission, as well as in the US State Department International Religious Freedom Report for 2012, concerning the respondent State.
COMPLAINTS
The applicants complain under Article 6 of the Convention that they were not given the opportunity to present their arguments verbally before any domestic court, including the Constitutional Court, which decided similar cases, in principle, on a public session. They also complain that the refusal of the domestic courts to recognise the continuing legal status of the first applicant and to register it under the 2007 Act violated their rights under Articles 9, 11 and 14 of the Convention.
QUESTIONS
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, has there been a public hearing in the present cases, as required by Article 6 § 1 of the Convention?
2. Has there been a violation of the applicants’ freedom of religion, contrary to Article 9 of the Convention?
3. Has there been a violation of the applicants’ right to freedom of association, contrary to Article 11 of the Convention?
4. Have the applicants suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Articles 9 or 11 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
48044/10
14/08/2010
BEKTAŠISKA ZAEDNICA (Bektashi community)
Mr Edmond BRAHIMAJ
Mr Arben SULEJMANI
22 May 1968, Gostivar
Mr Aleksandar and Mr Dragan GODŽO
75722/12
08/06/2012
25176/13
25/01/2013
Full & Egal Universal Law Academy