Communicated on 25 August 2014
FIRST SECTION
Applications nos. 52849/09 and 35700/11
STAVROPIGIJALEN MANASTIR ‘SVETI JOVAN ZLATOUST’ against the former Yugoslav Republic of Macedonia
and CHURCH OF REAL ORTHODOX CHRISTIANS AND KIRIL IVANOVSKI v. against the former Yugoslav Republic of Macedonia
STATEMENT OF FACTS
The applicants are religious associations that were not granted the status of a legal entity at national level, as well as Mr K.Ivanovski (“the second applicant”), the legal representative of the applicant association in the application no. 35700/11. For more details, see attached Appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Application no. 52849/09
On 29 October 2008 O.M., M.I. and B.T., former nuns in the Macedonian Orthodox Church (“the Church”), founded the applicant association. On the same date, the founding members rendered the following acts: (a) a founding decision; (b) decisions by which O.M. was authorised to represent the applicant association and submit an application for its registration; and (c) Charter (Статут) of the applicant association.
The relevant parts of the founding decision read as follows:
“Article 1
This decision serves (the purpose of) the registration of ‘Stavropigijalen Manastir Sveti Jovan Zlatoust’ in the register of churches, religious communities (верски заедници) and associations (религиозни групи) in the Republic of Macedonia, as a voluntary, non-profitable association of Christians, who do not belong to any religious community and in particular, have nothing in common with the Macedonian Orthodox Church.
Article 3
Because it is a Christian religious community ...”
The relevant parts of the Charter read as follows:
“Article 1
The Stavropigijalen Manastir Sveti Jovan Zlatoust is a voluntary association of physical persons, who profess, through their religious beliefs and doctrinal sources, the freedom of religion joined by religion and identity through preaches; prays; religious rituals; and other forms of expression.
Article 2
The Stavropigijalen Manastir Sveti Jovan Zlatoust is a religious community founded by nuns (completely devoted to God) and private citizens (световни лица), whose religious beliefs correspond to the Old and New Testament (the Bible).
Article 3
The name of the religious community is: Stavropigijalen Manastir Sveti Jovan Zlatoust, with a seat in v. Nizopole-Bitola.”
On 5 November 2008 O.M. submitted an application for registration of the applicant association “as one of the religious communities” before the Skopje Court of First Instance (“the first-instance court”). The above documents were appended to the application. On 10 December 2008 the first-instance court requested that the applicant association submit evidence concerning the nationality of its founding members. As evident from the available material, the applicant association complied with that requirement.
On 18 February 2009 the first-instance court refused to register “the voluntary association of physical persons, indicated in the application as “Stavropigijalen Manastir Sveti Jovan Zlatoust”. It found that the application for registration did not meet the requirements specified in the Act on the legal status of a church, religious community and association (“the Act”, see “Relevant domestic law” below) in that (a) it concerned a form of voluntary association of physical persons which was not specified by the Act and (b) the registration of the applicant association would violate the freedom of religion of other lawfully registered voluntary associations of physical persons. As to the former, the court held that the Act provided for the registration of churches, religious communities and associations and not of other religious entities, namely a “monastery” (манастири), as specified in Article 1 of the applicant’s Charter.
The applicant association complained against that decision arguing that it had sought to be registered as a religious community under the name specified in the founding documents, which was evident from the application for registration. It also submitted that the non-registration was the most drastic measure (in this connection it argued that the court could have specified if any shortcomings could be rectified). The court failed to explain whose religious beliefs would be affected with its registration. Assuming that it concerned the followers of the Church, the court did not explain how its registration would violate their rights. The applicant further added that in 2002 the first-instance court had refused to register it as a non-governmental organisation with an instruction that an association with such name should seek registration under the then valid act regarding religious communities and associations.
On 29 April 2009 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision endorsing the reasons given therein.
On an unspecified date, O.M. lodged a constitutional appeal with the Constitutional Court seeking that it examines “the violation of the freedom of religion of followers of a religious association to whom I belong.” On 9 September 2009 the Constitutional Court rejected (отфрла) the constitutional appeal concerning “the freedom of conviction and prohibition of discrimination on the account of religion.” It ruled that O.M. had lodged the appeal on behalf of the so-called religious association and she had failed to submit any arguments, evidence or facts in order to substantiate the alleged discrimination and violation of the freedom of religion (U.br.189/2009).
B. Application no. 35700/11
On 8 November 2008 seven people, including the second applicant, founded the applicant association. The founding members rendered the following documents: (a) a founding decision; (b) decisions by which the second applicant was authorised to represent the applicant association; (c) description of the doctrinal sources of the applicant association and (d) Charter of the applicant association.
The relevant parts of the Charter read as follows:
“Article 1
The Church of True Orthodox Christians of Macedonia (hereinafter “the CTOCM”) is a voluntary association of physical persons, who profess, through their religious beliefs and doctrinal sources, the freedom of religion joined in ideological union (едномислие) by religion and identity through preaches; prays; religious rituals; and other forms of expression.
Article 8
The aims of the CTOCM 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 of monasteries ... to hold preaches; prays ... 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 public about religious holidays and culture;
- to publish bulletins, materials, publications, books and advertising materials with orthodox contents;
- to organise and hold joint meetings, rituals and other religious activities with other orthodox churches in the State and abroad with whom the CTOCM is in union.
...
Article 9
As part of its activity, the CTOCM will publish literature with orthodox contents and establish funds, in particular:
- publication of bulletins and editions ...;
- 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 CTOCM, as well as the funds that it would establish, shall be financed by:
- sponsors;
- donations;
- contributions;
- funds gained by own economic activities.
Article 27
The CTOCM will be financed by:
- economic activity;
- sponsorship;
- donations;
- voluntary contributions and funds etc.
On 26 November 2008 the Ministry of Justice granted permission that “Macedonia” is used in the name of the applicant association.
On 3 December 2008 (26 October 2008 under the Julian calendar) the second applicant submitted an application for registration of the applicant association before the first-instance court. As indicated in the application, the above documents, as well as evidence that the founding members and the second applicant were Macedonian nationals, were appended to the application. With a submission of 19 December 2008, the first-instance court acknowledged receipt of the application and the appended documents and requested that the applicants specify the form under which the applicant association requested registration. On 6 March 2009 the first-instance court rejected the application as incomplete. Whereas it confirmed that the above documents, including the nationality certificates, were appended to the application for registration, the court found that the founding documents of the applicant association set two different dates regarding its incorporation. In such circumstances, the court was unable to establish whether the application for registration had been submitted within the time-limit specified under section 12(3) of the Act (see “Relevant domestic law” below). On 17 December 2009 the Skopje Court of Appeal quashed this decision and remitted the case for re-examination.
On 10 May 2010 the first-instance court refused to register the applicant association finding that the latter had requested registration as a religious entity under the Act only for formal reasons, while in practice it would operate as an association of citizens to which the Act on associations of citizens and foundations applied. In this connection, the first-instance court held that: (a) the text of Article 1 of the Charter was not identical with the text of section 2 of the Act; (b) Articles 9 and 10 of the Charter specified that the applicant association would publish literature with religious content, which, according to the court, was contrary to the aims specified in section 2 of the Act; (c) Articles 11 and 27 of the Charter specified that the applicant association would be financed inter alia by economic activity (стопанска дејност), which was contrary to sections 30-33 of the Act; (d) there was no evidence that the founding members and the second applicant were Macedonian nationals; and (e) 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) 3-6 of the Act.
Referring to sections 7 and 8 of the Act, the court also found that:
“the registration of the voluntary association of physical persons under the name ‘Church of True Orthodox Christians of Macedonia’ ... would violate the freedom of religion ... of all physical persons-believers who exercise the 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 all what is regulated by their acts.”
The applicants complained that the reasons given by the first-instance court were unclear and contradictory. In this connection they argued inter alia that section 31 of the 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 Act; that the proceedings for registration lasted too long; and that the first-instance court had not explained how and why would the registration of the applicant association affect the religious beliefs and managing bodies and hierarchy of other registered religious communities.
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 activity, which implied that it would be profitable and consequently, contrary to section 33 (2) of the Act. Furthermore, the permission granted by the Ministry of Justice of 26 November 2008 (see above) concerned “the Church of True Orthodox Christians” and not “the Church of True Orthodox Christians of Macedonia”. Finally, the court established that there was no evidence in the case file regarding the nationality of the founding members and the second applicant.
B. Relevant domestic law
1. Constitution of 1991
Article 16 of the Constitution guarantees the freedom of personal conviction, conscience, thought and public expression of thought.
Article 19 § 1 guarantees the freedom of religious confession, as well as the right to profess religious beliefs freely and publicly, individually or with others.
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 the legal status of a church, religious communities and groups (Official Gazette. No.113/2007)
Under section 2 of the Act, a church, religious community or association is a voluntary association of physical persons who profess, through religious beliefs and doctrinal sources, the freedom of religion joined by religion and identity through preaching; prays; religious rituals; and other forms of expression.
Section 7(2) of the Act provides that the State bodies create conditions for the unhindered activities of a church, religious community or association.
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.
Section 10(3) of the Act provides that the Ministry of Justice grants permission for the use of the word “Macedonia”.
Section 12 of the 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 30 days from the date of the founding decision. Section 12(4) provides that the competent court will invite the applicant to complete the application for registration.
Under section 14, the competent court is required to register the church, religious community or association within 8 days from the date of submission of the application for registration.
Under section 31, churches, religious communities and associations can inter alia publish, import and export printed materials, in accordance with the law.
Section 32 provides that the churches, religious communities and associations gain incomes from their own assets, private philanthropy, donations and other sources of income.
Section 33(2) provides that rules concerning non-profitable organisations and associations of public interest apply to the financing and money expenditure of churches, religious communities and associations.
3. Rules of Procedure of the Constitutional Court (Official Gazette no.70/1992)
Section 51 of the Rules of Procedure of the Constitutional Court, insofar as relevant, provides as follows:
“Any citizen who considers that his or her right or freedom set out in Article 110 § 3 of the Constitution of the Republic of Macedonia has been violated by an individual act or action, may seek protection by the Constitutional Court within two months from the day he or she was served with the final individual act ...”
COMPLAINTS
The applicants complain that the refusal of the State to register the applicants associations was in violation of their rights under Articles 9 and 11 of the Convention. They further allege that the impossibility to acquire legal personality was in violation with Article 14, taken in conjunction with Article 9 of the Convention. The applicant association in application no. 52849/09 further complains under Article 1 of Protocol No. 12 alleging that its members were put in disadvantageous position in relation to members of registered religious groups. In this connection it submits that the State demonstrated clear preference towards the Church, which interests were considered as State interest.
QUESTIONS
1. Have the applicants associations exhausted all domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the constitutional appeal specified under Article 110 § 3 of the Constitution available to the applicants associations regarding their complaints under Articles 9, 11 and 14 (both applications) and Article 1 of Protocol No. 12 (application no. 52849/09) of the Convention? If so, would that remedy be effective in both cases, especially as regards the applicant association in the application no. 52849/09, given the outcome of the proceedings upon the constitutional appeal of O.M. (U.br.189/2009) (see “the Facts”)?
2. Does the refusal to register the applicants associations constitute an interference with the applicants’ freedom of religion, within the meaning of Article 9 § 1 of the Convention? If so, was that interference in compliance with Article 9 § 2?
3. Does the refusal to register the applicants associations constitute an interference with the applicants’ freedom of association, within the meaning of Article 11 § 1 of the Convention? If so, was that interference in compliance with Article 11 § 2 of the Convention?
4. Does the refusal to register the applicants associations amount to discrimination against the applicants in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Articles 9 and 11 (both applications), and contrary to Article 1 of Protocol No. 12 to the Convention (application no. 52849/09)?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
52849/09
28/09/2009
STAVROPIGIJALEN MANASTIR ‘SVETI JOVAN ZLATOUST’
35700/11
07/06/2011
CHURCH OF REAL ORTHODOX CHRISTIANS and
Kiril IVANOVSKI
13/12/1957
Prilep
Vanja ATANASOV
Full & Egal Universal Law Academy