CASE OF CHURCH OF REAL ORTODOX CHRISTIAN AND IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

CASE OF CHURCH OF REAL ORTHODOX CHRISTIANS AND IVANOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

(Application no. 35700/11)

JUDGMENT

STRASBOURG

29 November 2018

This judgment is final but it may be subject to editorial revision.

In the case of Church of Real Orthodox Christians and Ivanovski v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 6 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 35700/11) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Church of Real Orthodox Christians (“the applicant association”), a religious association that was not granted legal-entity status at national level, and Mr Kiril Ivanovski (“the second applicant”), on 7 June 2011.

2. The applicants were represented by Mr V. Atanasov, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their initial Agent, Mr K. Bogdanov, and then their current Agent, Ms D. Djonova.

3. On 25 August 2014 the Government was informed of the complaints concerning the refusal of the respondent State to register the applicant association as a religious association and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The second applicant was born in 1957 and lives in Prilep.

5. On 8 November 2008 seven persons, including the second applicant, founded the applicant association. The founding members adopted several documents concerning the applicant association, including its Charter, the relevant parts of which read as follows:

Article 1

“The Church of Real Orthodox Christians of Macedonia [hereinafter “the Church”] is a voluntary association of individuals, who exercise, through their religious beliefs and doctrinal sources, the freedom of religion ... through preaching; prayer; religious rituals; and other forms of expression.”

Article 3

“The seat of the [applicant association] is [the street name].”

Article 8

“The aims of the Church are the following:

...

- to promote, stimulate and educate the members about the spiritual life and development;

- to hold and organise religious education; educative religious discussions and lectures; public religious debates; visits to monasteries ... to hold preaching sessions; prayer meetings ... and other orthodox rituals;

- to organise humanitarian funds and actions for the well-being and support of people;

- to take care and support all who are in a need of help ...;

...

- to inform the orthodox followers about religious holidays and culture;

- to publish bulletins, material, publications, books and advertising material with orthodox content;

- to organise and hold joint meetings, rituals and other religious activities with other orthodox churches in the State and abroad with whom the Church is in union.”

...”

Article 9

“As part of its activity, the Church will publish literature with orthodox content and establish funds, in particular, for:

- publication of bulletins and periodicals ...;

- publication of chronicles concerning the work of the members;

- publication of books;

- creation of funds for financial aid.”

Article 11

“The publication and humanitarian activity of the Church, as well as the funds that it will establish, shall be financed by:

- sponsors;

- donations;

- contributions;

- funds gained by its own economic activities.”

Article 27

“The Church will be financed by:

- economic activities;

- sponsorship;

- donations;

- voluntary contributions and funds, and so forth.”

6. On 26 November 2008 the Ministry of Justice granted permission to the applicant association to use the word “Macedonia” in the name.

7. On 3 December 2008 the second applicant, acting as an authorised representative of the applicant association, submitted an application for its registration as a religious association. As stated in the application, it appended, inter alia, evidence that its founding members were Macedonian nationals. By a letter of 19 December 2008, the Skopje Court of First Instance (“the Registration Court”) acknowledged receipt of all appended documents and requested that the applicants complete the application by specifying the organisational form under which the applicant association sought registration. On 5 January 2009 the applicants replied that the applicant association sought registration as a church.

8. On 6 March 2009 the Registration Court rejected the application as incomplete. Whereas it confirmed that nationality documentation was in the file, the court held that it was unable to establish whether the application for registration had been submitted in good time. That decision was quashed on appeal by the Skopje Court of Appeal, which found no reasons why the Registration Court had not sought that the applicants complete the application in that respect by its request of 19 December 2008.

9. On 10 May 2010 the Registration Court dismissed “the application of the applicant association” for registration, finding that it had requested registration as a religious entity under the Legal Status of Churches, Religious Communities and Religious Groups Act (“the 2007 Act”) only for formal reasons, while in practice it would operate as an association of citizens to which the Association of Citizens and Foundations Act applied. In this connection, the court held that: (a) the text of Article 1 of the Charter was not identical to the text of section 2 of the 2007 Act; (b) Articles 9 and 10 of the Charter specified that the applicant association would publish literature with religious content and would create funds, which, according to the court, was contrary to the aims specified in section 2 of the 2007 Act. In this connection it was noted that Articles 11 and 27 of the Charter specified that the applicant association would be financed, inter alia, by economic activities (стопанска дејност), which was contrary to sections 30-33 of the 2007 Act; (c) there was no evidence that the founding members and the second applicant were Macedonian nationals; and (d) despite the fact that the founding members had adopted the required documents for registration of the applicant association, they had not discussed the issues specified in section 13(1)(2-6) of the 2007 Act.

10. Referring to sections 7 and 8 of the 2007 Act, the court also found that:

“The registration of the voluntary association of physical persons under the name ‘Church of Real Orthodox Christians of Macedonia’ ... would violate the freedom of religion ... of all physical persons-believers who exercise the[ir] freedom of religion through already registered religious communities and, in particular, the lawful legal status of other registered voluntary associations of physical persons ... and their managing bodies; hierarchy; their competence; titles; religious activity and everything that is regulated by their rules ...

... the free manifestation of religion cannot endanger ... human rights and freedoms of others ...”

11. The second applicant lodged an appeal with the Skopje Court of Appeal in which he complained on behalf of the applicant association that the reasons given by the Registration Court were unclear and contradictory. In this connection he argued, inter alia, that he had submitted copies of nationality documentation for the founding members; that section 31 of the 2007 Act provided that religious entities could publish relevant literature; that the sources of income provided for in the Charter corresponded to those set forth in the 2007 Act; and that the Registration Court had not explained how and why the registration of the applicant association would affect the religious beliefs and managing bodies of other registered religious communities.

12. On 16 December 2010 the Skopje Court of Appeal upheld the lower court’s decision, finding that the reasoning contained therein was clear and consistent. It held that Article 11 of the Charter provided that the applicant association would be financed from funds obtained from economic activities, which implied that it would be for-profit, contrary to section 33(2) of the 2007 Act. Furthermore, the permission granted by the Ministry of Justice of 26 November 2008 (see paragraph 6 above) concerned “the Church of Real Orthodox Christians” and not “the Church of Real Orthodox Christians of Macedonia”. Lastly, it established that there was no evidence in the case file regarding the nationality of the founding members and the second applicant. The court did not address the remaining complaints.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Constitution

13. Article 110 § 3 of the Constitution provides that the Constitutional Court safeguards the freedoms and rights of individuals and citizens concerning the freedom of belief, 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 or national, social or political affiliation.

2. Legal Status of Churches, Religious Communities and Religious Groups Act (Official Gazette. No. 113/2007)

14. Under section 2 of the 2007 Act, a church, religious community or religious group is a voluntary association of physical persons exercising their freedom of religion through their religious conviction and doctrinal sources.

15. Section 8 provides that the freedom of expression in terms of religion or thought can be limited in accordance with law only if necessary in the interest of public safety, order, health or morals, as well as the protection of the rights and freedoms of others.

16. Under section 9(1), a church, religious community and association are registered in the single court register, thereby obtaining the status of a legal entity.

17. Section 10(3) of the 2007 Act provides that the Ministry of Justice alone grants permission for the use of the word “Macedonia”.

18. Section 12 of the 2007 Act sets out the documents that are required to be submitted along with the application for registration. Under sub-section 3 of this section, the application for registration shall be submitted within thirty days of the date of the founding decision. Section 12(4) provides that the competent court will invite the applicant to complete the application for registration.

19. Under section 13(1)(2-6), the founding decision must specify the following: the seat of the church, religious community or group; its official insignia; the way it will manifest its religious conviction and carry out religious rituals; and the way it is financed and its financing will be supervised.

20. Under section 31, churches, religious communities and religious groups can, inter alia, publish, import and export printed material, in accordance with the law.

21. Section 32 provides that the churches, religious communities and religious groups can gain income from their own assets, private philanthropy, donations and other sources of income.

22. Section 33(2) provides that rules concerning non-profit organisations and associations of public interest apply to the financing and financial expenditure of churches, religious communities and associations.

B. Relevant domestic case-law

23. The domestic practice relevant to the present case was described in the Orthodox Ohrid Archdiocese case (see “Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy)” v. the former Yugoslav Republic of Macedonia, no. 3532/07, §§ 20, 36, 55, 56 and 58, 16 November 2017 – hereinafter “the Ohrid Archdiocese case”).

THE LAW

I. ALLEGED VIOLATIONS OF THE CONVENTION

24. The applicants complained that the refusal of the respondent State to register the applicant association as a religious association had been in violation of their rights under Articles 9 and 11 of the Convention. For the reasons stated in the Ohrid Archdiocese case the Court considers that these complaints should be analysed from the standpoint of Article 11 of the Convention read in the light of Article 9 (ibid., § 61). They further alleged that the refusal had also been in violation of Article 14 to the Convention, taken in conjunction with Article 9. These Articles read as follows:

Article 9

“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.”

Article 11

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Article 14

“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.”

A. Admissibility

1. The parties’ submissions

25. The Government submitted that the applicants had failed to exhaust domestic remedies. In particular they had not lodged a constitutional appeal, which the Court recognised as an effective remedy. They had also not provided any reasons for that failure. The existence of mere doubts as to the prospects of success of that remedy was not a valid reason for failing to exhaust it.

26. The applicants argued that the Constitutional Court had jurisdiction to examine the compatibility of laws and other general regulations with the Constitution. It was not competent to review court decisions.

2. The Court’s assessment

27. The relevant Convention principles have been summarised in the Court’s judgment in the case of Vučković and Others (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). In particular, “the obligation to exhaust” requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (ibid., §§ 71 and 77).

28. Turning to the present case, the Court reiterates that the Constitutional Court’s jurisdiction in protecting human rights and freedoms is regulated by Article 110 § 3 of the Constitution, which provides for an exhaustive list of rights and freedoms on which that court is competent to decide (see paragraph 13 above). On that list, and relevant to the present case, are the freedoms of belief, conscience, thought and public expression of thought, as well as the prohibition of discrimination on the grounds of religion. In several previous cases against the respondent State, the Court accepted that the constitutional appeal was to be regarded an effective remedy with respect to these rights and freedoms (see Ohrid Archdiocese case, §§ 67 and 68).

29. In the present case, the Court observes that the applicants failed to bring their allegations of discrimination before the Constitutional Court. Furthermore, they did not argue that there were any special circumstances absolving them from the obligation to exhaust the constitutional appeal that was at their disposal.

30. It follows that the allegations of discrimination on religious grounds must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

31. As to the applicants’ complaint under Article 11 read in the light of Article 9, in the Ohrid Archdiocese case the Court held that it had not been presented with “any argument or example of domestic case-law that any other aspect (besides the political aspect) of freedom of association, including the religious aspect, fell within the jurisdiction of the Constitutional Court (ibid., § 71). It further noted the Constitutional Court’s practice at the relevant time of declining jurisdiction to deal with appeals of associations or organisations in general, as well as appeals of individuals submitted in their name and on behalf of non-registered religious associations with which they were associated (see ibid., § 70 and paragraph 23 above). In the present case, the Government did not present any argument or material to show that the constitutional appeal had been a sufficiently certain remedy at the time the applicants would have been required to exhaust it for their grievances under Article 11 read in the light of Article 9. Consequently, the Government’s non-exhaustion objection must be rejected.

32. Notwithstanding the absence of any objection by the Government as to the admissibility of the application regarding its compatibility ratione personae in so far as it concerns the second applicant, the Court considers necessary to address the issue of his standing under Article 34 of the Convention.

33. In this connection it observes that in the impugned proceedings the second applicant acted on behalf of the applicant association as its authorised representative (see paragraphs 7 and 11 above). Having regard to the fact that the principal issue before the Court is the domestic authorities’ refusal to register the applicant association as a religious (legal) entity and the alleged resulting violation of its rights under Articles 9 and 11 of the Convention, the interests of the second applicant will, in any event, in the Court’s opinion, be sufficiently secured by a ruling on the case advanced by the applicant association (see Bektashi Community and Others v. the former Yugoslav Republic of Macedonia, nos. 48044/10 and 2 others, § 49, 12 April 2018).

34. It follows that the application, in so far as the second applicant is concerned, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

35. The Government did not raise any other objection regarding the admissibility of the applicant association’s complaint under Article 11 read in the light of Article 9. It observes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

36. The applicants submitted that the nationality documentation of the applicant association’s founders had been submitted on the file, which the Registration Court had acknowledged in its decision of 6 March 2009. They further reiterated their arguments that the non-registration of the applicant association had amounted to a violation of their rights under this head.

37. The Government agreed that the refusal of the domestic courts to register the applicant association had amounted to an interference with its rights under Article 11 of the Convention. The refusal had been lawful and had pursued a legitimate aim, namely that of the protection of the rights and freedoms of others, in particular adherents of the Macedonian Orthodox Church. Furthermore, the reasons adduced by the courts had been relevant and sufficient. In this connection they averred that in the domestic case file there had been no proof attesting to the Macedonian nationality of the applicant association’s founders, a fact which the applicants had failed to remedy in the impugned proceedings.

2. The Court’s assessment

38. The relevant Convention principles have been summarised in the Court’s judgment in the Ohrid Archdiocese case (ibid., §§ 78, 93-96).

39. The Court accepts that there has been an interference with the applicant association’s rights under Article 11, read in the light of Article 9 of the Convention. Indeed, the result of the refusal was that the applicant association was prevented from obtaining legal personality and deprived of the opportunity to enjoy effectively the panoply of rights reserved for recognised religious organisations (ibid., § 81).

40. Furthermore, the Court accepts that the interference in question was “prescribed by law”, specifically the 2007 Act, as interpreted and applied by the national courts, and that it pursued a “legitimate aim”, namely that of the protection of the rights and freedoms of others.

41. The Court must now scrutinise the particular grounds relied on by the domestic authorities to justify the interference. In so doing, its task is not to substitute its own view for that of the relevant national authorities, but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued”, and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 108, 10 June 2010).

42. In this connection it notes that the domestic courts in their decisions referred to several formal deficiencies in justification of the refusal to register the applicant association (see paragraphs 9 and 12 above).

43. The Registration Court found that the text of Article 1 of the applicant association’s Charter was not identical to the text of section 2 of the 2007 Act. The Court finds no statutory provision setting out such a requirement for associations seeking registration as religious entities. Furthermore, it has not been argued that such a requirement was a result of an established domestic practice. The Registration Court further found that the application for registration had not been supported by nationality documentation for the founding members.

44. The Court observes that the Registration Court did not raise the issue of missing documentation concerning the nationality of the founding members in its request seeking that the applicants complete the application for registration. More importantly, in its decision of 6 March 2009 it clearly acknowledged that the required documentation had been submitted in evidence (see paragraph 9 above).

45. Furthermore, the Court is not convinced by that court’s findings that the Charter had not complied with section 13(1)(2-6) of the 2007 Act, or at least it did not make clear what their exact import had been for allowing the applicant association’s registration. It also did not explain why publication of religious literature and creation of funds, as well as being financed by economic activities, contradicted the general aims of the 2007 Act (section 2) and, in particular, sections 31 and 32, which allowed religious associations to, inter alia, publish material and gain income from their own assets and other sources of income (see paragraphs 14, 20 and 21 above). In any event, the Court notes that no mention of these latter issues was made in the letter of 19 December 2008 in which the Registration Court asked the applicants to complete the application.

46. In such circumstances, the Court is not satisfied that the reasons adduced regarding the formal deficiencies for registration were “relevant and sufficient”.

47. The other grounds on which the impugned decisions were based concerned the domestic courts’ finding that the applicant association’s registration would violate the freedom of religion of other believers who were affiliated with already registered religious entities. The Court notes that such a conclusion was of a general nature and was not supported by any facts. The courts did not identify the individuals and religious entities who would have been threatened had the applicant association been registered, let alone provide any further explanation. Whereas the Government indicated that it would have been the Macedonian Orthodox Church and its followers (see paragraph 38 above), they did not provide any convincing explanation that could justify the use of measures which had gone so far as to prevent the applicant association comprehensively and unconditionally from even commencing any activity (see the Ohrid Archdiocese case, § 117 and the references cited therein).

48. It cannot therefore be said that the reasons provided by the national courts were “relevant and sufficient” to justify the interference in this case. Accordingly, the impugned refusal to register the applicant association as a religious association cannot be accepted as necessary in a democratic society. It follows that there has been a violation of Article 11 of the Convention, interpreted in the light of Article 9.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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

50. The applicants claimed the total amount of 40,000 euros (EUR) in respect of non-pecuniary damage, of which EUR 15,000 were for the emotional suffering and anxiety suffered by the second applicant as a result of the alleged violation of his rights under Articles 9 and 11 of the Convention.

51. The Government contested these claims as unsubstantiated and excessive.

52. The Court accepts that the applicant association has suffered non‑pecuniary damage as a consequence of the violation of its right to freedom of association and freedom of religion. Deciding on an equitable basis and having regard to its case-law in similar cases, the Court awards the applicant association the global sum of EUR 3,000 euros, plus any tax that may be chargeable. This amount should be paid to the second applicant.

B. Costs and expenses

53. The applicants also claimed EUR 1,000 for the costs and expenses incurred before the domestic courts and EUR 800 for those incurred before the Court. This latter figure included EUR 600 for legal fees and EUR 200 for translating expenses. The applicants did not submit any supporting document.

54. The Government contested these claims as unsubstantiated, excessive and not actually incurred.

55. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004‑IV). The Court points out that under Rule 60 §§ 2 and 3 of the Rules of Court, “the applicant must submit itemised particulars of all claims, together with any relevant supporting documents”, failing which “the Chamber may reject the claim in whole or in part” (see Lazoroski v. the former Yugoslav Republic of Macedonia, no. 4922/04, § 88, 8 October 2009). In the present case, the Court notes that the applicants have failed to substantiate their claim with any supporting documents. In such circumstances, the Court makes no award.

C. Default interest

56. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaints of the applicant association under Articles 9 and 11 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 11 of the Convention, read in the light of Article 9 in respect of the applicant association;

3. Holds

(a) that the respondent State is to pay the applicant association, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into national the currency of the respondent State at the rate applicable at the date of settlement; this sum is to be paid to the second applicant;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant association’s claim for just satisfaction.

Done in English, and notified in writing on 29 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposAleš Pejchal
RegistrarPresident

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