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Application no. 3532/07
ORTHODOX OHRID ARCHIDIOCESE against the former Yugoslav Republic of Macedonia
lodged on 25 December 2006
STATEMENT OF FACTS
The applicant, “Orthodox Ohrid Archdiocese”, is a religious association that was not granted the status of a legal entity at national level. It is represented before the Court by Ms A. Stojković from “the Helsinski Committee of the Republic of Macedonia”.
1. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Procedure for registration of the applicant under the name “Orthodox Ohrid Archdiocese”
In December 2003 the applicant constituted its Holy Synod (as stated in the application form, a group of citizens held a constituent assembly). Mr Vraniškoski1 was appointed President of the Holy Synod.
On 24 January 2004 the applicant submitted an application for registration (пријава за регистрирање) before the Commission for religious communities and groups (“the Commission”, Комисија за односи со верските заедници и религиозните групи) under the name “Orthodox Ohrid Archdiocese”. As stated in the application, the application was lodged after the applicant had verified that no other religious community or group
1. Mr Vraniškoski was a former bishop in the Macedonian Orthodox Church. On 5 July 2002 the Church dismissed him from his office on the ground that, by his unilateral accession to the Serbian Orthodox Church, he had violated the oath by which he had bound himself to safeguard the Church’s unity and Constitution (see Vraniškoski v. the former Yugoslav Republic of Macedonia (dec.) 39168/03, 22 June 2010) had been recorded under the same name. It sought explicitly to be registered as a religious group (религиозна група). In support of the application, the applicant submitted inter alia the following documents: (a) a decision by the founding members; (b) a list of ninety-four members; and (c) Charter of the applicant. The application was signed by Mr Vraniškoski.
In the absence of any reply, on 15 March 2004 Mr Vraniškoski, on behalf of the applicant, sought that the Commission “advised how (the applicant)
... could be registered by the State authorities”. The Commission did not reply.
Having regard to that inactivity “the applicant held a meeting and adopted the required documents once again”. On 1 September 2004 it brought a decision establishing itself as a religious group (no copy of that decision was submitted to the Court). Under section 1 of the founding decision, as it transpires from the materials in the case-file, the applicant was defined as a voluntary, non-profit association of Christians that were not associated with any other religious community or group. Its aim was to acquire legal-entity status and to manage its property. Mr Vraniškoski was appointed as the responsible person to initiate registration proceedings before the competent authorities.
On 7 September 2004 the applicant submitted an application for registration (барање за регистрирање) in which it referred to its previous “letters” of 24 January and 15 March 2004 and its unsuccessful attempts to contact the Chairman of the Commission. A copy of the application was submitted to several foreign Embassies. It was signed by Mr Vraniškoski.
On 30 September 2004 the Commission found the application incomplete and requested that the applicant submit a copy of a decision regarding the authorised person to request registration of the applicant, as well as of the minutes of the constituent assembly. On 18 October 2004 the applicant submitted the requested documents.
On 3 November 2004 the Commission refused the applicant’s registration for the following reasons:
(a) the application for registration had not been submitted by an authorised person. The Commission established that it had been submitted by J.N. (the same person whose initials later appear as D.N.) and not by Mr Vraniškoski, who had been authorised to seek registration of the applicant;
(b) the applicant had sought registration outside the thirty-day time-limit specified in section 11 (1) of the Act on Religious Communities and
Religious Groups (“Act 1997”, see “Relevant international and domestic law and practice“ below), which had started to run in December 2003;
(c) the applicant emerged from an already existing and registered religious community, notably the Macedonian Orthodox Church (“the Church”), which position and role had been specified in the Constitution.
The fact that the applicant had sought registration under the name
“Orthodox Ohrid Archdiocese” had implied that its real intention had been to create a parallel orthodox religious group to the Church. The latter had used that name for over eight centuries. The Preamble of the Constitution of the Church specified that it had succeeded the Ohrid Archdiocese. That had been confirmed on 17 July 1967 when the Ohrid Archdiocese had declared its autocephaly, which had been continued by the Church. That was not in compliance with section 8 (2) of Act 1997 according to which only one religious community could be registered for the same religious denomination;
(d) relying on the Charter of the applicant, the Commission established that the applicant would act as an autonomous religious group within canonical union with Peć Patriarchy (the Serbian Orthodox Church). That the applicant would operate as part of a foreign orthodox church was, in the Commission’s view, in violation to section 12 of the Act 1997. The Commission further stated that a religious community could be found only by nationals of the respondent State and not by a foreign church or a State;
(e) On 6 August 2004 the Church asked the Industrial Property Bureau (“the Bureau”, Завод за заштита на индустриската сопственост) to register the name “Macedonian Orthodox Church-Ohrid Archdiocese” in its trademark register (TM 2004/574). On 22 October 2004 the Church had notified the Commission about that request. On 13 August 2004 the Church asked the Commission to protect several names, including the name “Ohrid Archdiocese ”, to which it had been entitled from historical, religious and moral aspects; and
(f) according to the Charter, the applicant could obtain and manage its property, funds and loans and that all legal persons that the applicant would set up could have bank accounts. In the Commission’s view, that was contrary to section 9 of the Act 1997 according to which a religious group was a voluntary, non-profit organisation of believers that were not associated with any registered religious group.
The Commission referred, in its decision, to several international documents and a Declaration that the Parliament of the respondent State adopted in 2004 regarding the autocephaly of the Church. It also addressed a decision of 28 October 1998 (U.br.223/1997) (see “Relevant international and domestic law and practice” below) in which the Constitutional Court found that section 8 (2) of Act 1997 had not created inequality in practicing freedom of religion, but had protected people from manipulations and same-faith believers from division into several religious groups. The court further concluded that while religion could be practiced freely, it could not violate the rights and freedoms of others.
The applicant complained against that decision arguing that:
(a) the application for registration had been submitted by Mr Vraniškoski. J.N. had only handed over it in the Commission’s archives;
(b) the applicant had been founded on 1 September 2004. In December 2003, the date to which the Commission referred in its decision, the applicant appointed the members of its Holy Synod;
(c) the applicant was a new religious community that had no connection with, let alone it stemmed from the Church, which was not recognised by any Orthodox Church;
(d) the fact that the Church had sought that the Bureau added “Ohrid Archdiocese ” to its name was irrelevant for the applicant’s registration since no such name existed in the Commission’s records;
(e) the applicant denied that it had been set up by a foreign church or a foreign State. That it would operate in canonical union with another church of same denomination did not imply that it had been founded contrary to section 9 (2) of the Act 1997;
On 11 January 2005 the Government Appeal Commission dismissed the appeal of the applicant finding no grounds to depart from the established facts and reasons given by the Commission.
The applicant instituted administrative-dispute proceedings before the Supreme Court resubmitting its earlier complaints. It added that its to-be name was neither identical nor similar with the name of any other religious community or group registered by the Commission.
On 9 November 2005 the Supreme Court dismissed the appeal. It found that the applicant had been denied registration on the basis of sections 8, 9, 11 and 12 of the Act 1997. It accepted the facts established by the Commission and held that the applicant’s to-be name had implied creation of a parallel religious community instead of a religious group as claimed, which name was substantially the same with the name of the Church. In this connection, it quoted section 1 (2) of the Charter of the applicant according to which “it is an autonomous church which operates and is in canonical union with Peć Patriarchy”. That was contrary to the fact that the Church had canonical jurisdiction in the territory of the respondent State. It held also that the rules of the Charter regarding the property of the applicant were in violation of section 16 of the Act. The court further endorsed the reasoning given by the administrative bodies regarding the remaining complaints. That decision was served on the applicant on 15 July 2006.
2. Procedure for registration under the name “Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy” (Грко-Православна Охридска Архиепископија на Пеќката Патријаршија)
On 20 September 2007 a new Act on the legal status of a church, religious community and religious group (“the Act 2007”) entered into force (see “Relevant international and domestic law and practice” below). It became operative on 1 May 2008.
On 3 and 6 April 2009 the applicant carried out an on-site inspection of the register of churches, religious groups and communities run, on the basis of the Act 2007, by Skopje Court of First Instance (“the registration court”) (“the court register”). According to an extract of the court register, the Church was recorded, on the basis of a decision dated 11 November 2008, as “Macedonian Orthodox Church-Ohrid Archdiocese”.
On 27 April 2009 Episcopes J., K. and D.N., all Macedonian nationals and members of the applicant’s Holy Synod, gathered in order to adopt decisions for establishing and registration of “Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy”. As stated in “the minutes of the constituent assembly” (записник од основачкото собрание), on proposal of “His Beatitude (Неговото Блаженство), the Archibishop of Ohrid and Metropolitan of Skopje Mr Jovan (Vraniškoski)”, Episcope J. was appointed President of the Holy Synod of the “Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy”. All members of the Holy Synod adopted the founding decision and other documents specified in Act 2007. The minutes of the constituent assembly was signed by all three Episcopes (their personal identity numbers and addresses were provided therein).
At the same date, a decision for establishing the applicant was adopted. As stated in its introductory part, “on the meeting dated 27 April 2009, the Holy Synod decided to submit a request before Skopje Court of First Instance for registration of “‘Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy’”. It was set up as a voluntary, non-profit organisation of Christians who were not associated with any other registered religious group. It was emphasised that it had nothing in common with the Church. It was “an Orthodox Church in full canonical and liturgical union with all recognised orthodox churches in the world. For this reason, we consider that we should be registered as a Church, but if the court considers otherwise, we would accept to be recorded as a religious community or religious group”. The decision further indicated the temporary seat of the applicant. Episcope D.N., the secretary of the Holy Synod, was authorised to submit the application for registration. He was also nominated to act on behalf of the applicant (застапува) in the relations with other legal entities until “Mr Jovan (Vraniškoski) would return from exile”. The decision was signed by Episcope J., as President of the Holy Synod, as well as by Episcopes M. and D.N.
On 28 April 2009 D.N. submitted an application for registration of the “Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy” as “one of the churches” in the respondent State. According to the application for registration, since the Act 2007 had not been clear enough, the registration court had the discretion to decide whether it would register it as a church. The applicant further expressed its willingness to submit any further documents, if need be, in order to avoid having the application refused. It was also stated that the refusal to register a religious group would be unjustified in a democratic society unless it was proven that the teaching of the group was destructive. That had not been the case with the ‘“Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy’ which is two thousand years old”. It further stated that “any refusal to register ‘Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy’ is a denial of the Republic of Macedonia to join the European Union ... It will not be pleasant, for the present time and history, if a judge appears as a persecutor of the Church. Everyone who does not respect human rights and freedoms regarding association of people on religious ground, especially if he or she is a judge
... does not differ much from famous persecutors of the Holy Church ... we wrote the above in order to warn that it will be unpleasant if the court does not register ‘Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy’ ...”.
On 10 July 2009 the registration court sought that the Church explains the meaning of the notion “Peć Patriarchy”. On 21 July 2009 the Church replied that ‘“Peć Patriarchy’ formed part of the name of Serbian Orthodox Church and aimed to express the historical continuity of Serbian Orthodox Church as canonical heir of Peć Patriarchy, as the name ‘Ohrid Archdiocese’ was part of the name of Macedonian Orthodox Church”. It further stated that the name “Ohrid Archdiocese” was incorporated in the name of the Church and was protected in the Bureau. Serbian Orthodox Church had no canonical or, yet, any other jurisdiction over the Church or in the territory of the respondent State.
On 28 July 2009 the registration court refused to register the applicant for the following reasons:
(a) it had been founded by the so-called Holy Synod, as a body, which was contrary to the Act 2007 (section 2, see “Relevant international and domestic law and practice” below) according to which a decision for establishing a religious organisation was to be taken by founding members at a constituent assembly. Such assembly had not been held in the applicant’s case;
(b) the application for registration concerned an entity which had not been provided for, as such, under the Act 2007. Its name did not specify whether it was a church, religious community or religious group. On the contrary, it implied that it was a divine organisation, which would operate as an autonomous Archdiocese within canonical union with Peć Patriarchy.
It did not state that it was a voluntary organisation of physical persons as required by section 2 of the Act 2007;
(c) the term “Greek” (Грко) was an English translation of “Orthodox Church”. Its use was not in conformity with the Act 2007 (section 10 (3)). “Orthodox Ohrid Archdiocese” partly covered the generic and historical name of the Church and it did not differ from the latter’s registered name. In this connection the court held that the legal status, name and official insignia of the Church were safeguarded by the Act 2007 and the Constitution. It then reiterated the findings of the Commission specified in the decision of 3 November 2004 (see above). That the applicant’s proposed name implied territorial jurisdiction of a foreign church was in contravention with the Act 2007 and other laws. It was so since the Church had canonical jurisdiction in the territory of the respondent State. It was only formally indicated that the applicant would operate as an autonomous church. If registration was granted, it would operate in the territory of the respondent State as part of the Serbian Orthodox Church, which had no canonical or any other jurisdiction over the Church or in the territory of the respondent State. That was in violation of Article 1 of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 18 of the UN Universal Declaration of Human Rights and Article 9 of the Convention;
(d) the founding decision had specified only the temporary seat of the applicant. It had not indicated any precise seat and address (точно одредено седиште и адреса), as required under section 13 § 1 (2) of the Act 2007; and
(e) “so-called Secretary of the so-called Holy Synod” of the applicant
(Episcope D.N.) was nominated to act on its behalf (застапува), but not to represent (претставува) the applicant (as required under section 12 § 2 (5) of the Act 2007).
The registration court concluded that the applicant’s registration would run counter the Act 2007 and the freedom of religion of all physical persons expressed through already registered religious groups. It would also violate the legitimate legal status of other voluntary associations of persons, already registered in accordance with the law, their bodies, hierarchy, jurisdiction, titles, religious activities and everything that had been specified by their decisions. The application for registration was unclear, confusing and contradictory regarding the facts described therein. Lastly, the court criticized the language used by the applicant in the application for registration since it had demonstrated a lack of respect regarding the laws and institutions of the respondent State, as well as concerning the public order, health, morals and freedom and rights of others.
The applicant appealed arguing (i) that the court had erred when seeking “an expert opinion” about the meaning of “Peć Patriarchy” from the Church, which was not neutral. In this connection it specified an institution that could provide objective interpretation; (ii) that the registration of the Church in November 2008 under the name “Macedonian Orthodox Church–Ohrid Archdiocese” had been forged. In this connection the applicant submitted extracts of several reports televised by local media in October 2008 according to which the Church, at its meeting held on 4 and 5 October 2008, had refused to amend its Constitution in part concerning the name; (iii) that the Church had applied to the Bureau for registration of the name “Macedonian Orthodox Church-Ohrid Archdiocese” as a trademark was irrelevant since the Industrial Property Act concerned trade of goods and services and not religious organisations. In this connection the applicant argued that the Bureau had confirmed that on 6 August 2004 the Church had requested registration of seventeen trademarks, including the trademark “Macedonian Orthodox Church-Ohrid Archdiocese”. However, the Church had never paid the registration fee for any of the trademarks for which registration had been sought. Consequently, they have never been registered as a trademark nor a trademark certificate had ever been issued; (iv) that the applicant had been set up by three founding members who had signed the minutes of the constituent assembly held on 27 April 2009. Consequently, the court had erroneously held that the founding decision had been taken by the applicant’s Holy Synod since that body, before the applicant would be registered, had no legal capacity to act; (v) no reasonable explanation had been given as to why the applicant’s proposed name had not implied that it had sought registration as a Church (religious group); (vi) the court’s interpretation that the expression “Greek” (Грко) had been an English translation of “Orthodox Church” had been wrong; (vii) the proposed name of the applicant had differed substantially from the name of the Church to which “Ohrid Archdiocese” had been unlawfully added. In support the applicant submitted that the court had allowed registration of two churches despite the fact that their names had been substantially the same (“Christian Adventist Church (church of Adventist of the Seventh Day) in the Republic of Macedonia” and “Christian Adventist Church in Macedonia”); (viii) the registration court had given unsubstantiated explanations of theological and historical nature favourable to the Church; (ix) the refusal to register the applicant had violated not only the freedom of religion, but also rights of the national minorities living in the respondent State. In this connection it stated that the applicant represented, as evident from its proposed name, the religious identity of Greek and Serbian Orthodox believers in the respondent State; and (xii) lastly, the applicant referred to the application for registration in which it had expressed its willingness to rectify any error had the registration court requested so. The applicant stated again that it would comply with any instruction.
On 4 February 2010 Skopje Court of Appeal dismissed the applicant’s appeal reiterating the reasoning given by the registration court.
3. Proceedings before the Constitutional Court
On 15 July 2007 D.N. lodged a constitutional appeal with the Constitutional Court seeking protection of the freedom of conviction and religion specified in Article 110 § 3 of the Constitution. He referred to the decisions by which competent administrative bodies and the Supreme Court had refused the applicant’s application for registration under the name “Orthodox Ohrid Archdiocese”. He also notified that registration proceedings had been instituted before the registration court for the registration of the applicant under the name “Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy”.
On 9 September 2009 (U.br.184/2009) the Constitutional Court rejected the appeal regarding the “freedom of conviction and prohibition of discrimination on the basis of religious affiliation” for the following reasons: (i) it had been submitted outside the two-month time-limit specified in the Rules of the court; (ii) it concerned decisions for refusal of the applicant’s application for registration in respect of which it had no jurisdiction to review their legality and constitutionality (it was not hierarchically superior regarding those bodies); (iii) individual decisions (for registration) to which D.N. referred to in the appeal concerned a religious group which was not a complainant before the court; (iv) the appeal did not concern the complainant’s individual rights and freedoms, but a group of same-faith believers associated with a religious group. Lastly, it stated that:
“...the registration of ... a religious community or group does not determine the religious beliefs and internal religious feelings of an individual, since the expression is an individual act and the registration procedure does not affect personal religious conviction and religious rituals and the court has not been presented with any evidence that they have been eventually violated”.
On an unspecified date, D.N. submitted a fresh constitutional appeal before the Constitutional Court. It concerned the courts’ decisions to refuse the applicant’s application for registration as “Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy” (see above). He claimed that the failure to register the applicant had affected his freedom of religion. In this connection he stated that acquiring legal-entity status by the applicant had directly affected his freedom of religion. Due to the failure to register the applicant “I’m prevented to practice my freedom of religion in association with other individuals on voluntary basis”. In the absence of legal-entity status the applicant was prevented from enjoying certain statutory rights: it could not construct religious temples; its members could not conduct religious ceremonies; it could not instruct religion nor could create religious schools; it could not manage its property and hold bank accounts.
On 15 December 2010 the Constitutional Court rejected the constitutional appeal of D.N. regarding “the freedom of conviction and prohibition of discrimination on the basis of religious affiliation”. It found that it lacked jurisdiction to decide D.N.’s freedoms and rights affected allegedly by individual final decisions adopted by competent authorities, since the applicant had failed to comply with the registration requirements. That was corroborated with the fact that the applicant had sought advice regarding its registration, which implied that it had accepted that there had been certain deficiencies that had prevented the applicant from having been registered. D.N. had not been denied a priori the right to register a religious community to which he belonged. The refusal had been due to non-compliance with the registration requirements specified by law (U.br.118/2010).
4. Other relevant proceedings
On 10 May 2011 a minister associated with the applicant was not allowed to carry out funeral ceremony of late L.I., former member of the applicant. Ms M.I., daughter of the late L.I., who was also associated with the applicant, lodged a criminal complaint against the manager of a public enterprise that run the graveyards, responsible police officer and private security guards, for violation of equality of citizens punishable under the Criminal Code.
By a decision dated 5 September 2011, Kavadarci public prosecutor rejected the criminal complaint finding no indications that the alleged offence had been committed. Referring to section 8 of the Act 2007, the public prosecutor noted that the applicant had not been registered in the Single Court Register.
1. Relevant domestic law and practice and international materials
1. Relevant domestic law and practice
(a) Constitution (as amended by Amendment VII)
Article 16 of the Constitution guarantees the freedom of personal conviction, conscience, thought and public expression of thought.
Article 19 guarantees the freedom of religious confession, as well as the right to profess religious beliefs freely and publicly, individually or with others. Subsections 3 and 4 provide that the Macedonian Orthodox Church, as well as the Islamic Religious Community in the respondent State, the Catholic Church, Evangelic Methodist Church, Jewish Community and other religious communities and groups are separate from the State and equal before the law. These and other religious communities and groups are free to establish schools and other social and charity institutions, in procedures determined by law.
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.
(b) Act on religious communities and religious groups of 1997 (Official Gazette no. 35/1997)
According to section 8 of the Act 1997, a religious community was a voluntary non-profit association of same-faith believers. Only one religious community could exist for one religious denomination.
Under section 9, a religious group was a voluntary non-profit association of same-faith believers that were not associated with any registered religious group. Citizens could freely and publicly establish religious groups.
Section 11 (1) provided that founders of a religious group were to appoint a responsible person to lodge an application for its registration within thirty days after the adoption of a decision by which the religious group in question had been founded.
According to section 12 of the Act 1997, the name of a religious group should substantially differ from names of already registered religious communities or groups. The name should suggest that it concerned a religious group, as well as the manner in which it would manifest a particular religion. The name should not include the words “Republic of Macedonia”, names of foreign States, State of public bodies.
(c) Act on legal status of a church, religious communities and groups (official Gazette. No.113/2007)
Under section 2 of the Act 2007, a church, religious community or group is a voluntary association of physical persons who profess their freedom of religion.
Section 5 provides that a church, religious communities and groups are free to choose their internal organisation, their management, hierarchy and competency.
Section 8 provides that the freedom to express one’s religion can be limited with law only if it is indispensable to the interests of public safety, public order, health or morals, as well as the protection of the rights and freedoms of others.
Under section 9 (1) and (3), 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 § 1 (5) provides that the application for registration is accompanied by a decision authorising the person responsible to represent the church, religious community or group.
Under section 13 § 1 (2), the founding decision specifies the seat and address of the church, religious community or group.
Under section 18 §§ 1, 2 and 3 of Act 2007, religious rituals are performed in religious temples, graveyards and other premises of a church, religious communities and groups. They can be performed also in public places. Acts of service, prayer and other religious ceremonies can perform a minister from a church, religious community or religious group or with their permission.
Under section 21 churches, religious communities and groups are allowed to organise religious teaching.
Section 22 provides that churches, religious communities and groups have the right to establish religious schools at all levels of education, except in elementary education, as well as dormitories and students houses for accommodation of persons that are being educated in these institutions.
Under section 30, churches, religious communities and groups may establish humanitarian, cultural, social, health, charity and other institutions in procedures and under conditions determined by law.
(d )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 ...”
(e) Decision of the Constitutional Court U.br.223/1997 dated 28 October 1998
The Constitutional Court, in the above decision, decided that section 8
(2) of the Act 1997 was in compliance with the Constitution and that it did not create inequality in practicing the freedom of religion. It held that the rule “one religious community for one religious denomination” protected citizens from being manipulated and same-faith believers from being divided into several religious communities. The latter would divide a church. It further underlined that same-faith believers who were not associated (on their own will) with any other registered religious community could join in a religious group and practice religion, alike religious communities.
(f) Declaration of 23 January 2004 adopted by the Parliament of the respondent State expressing support of the autocephaly of the Macedonian Orthodox Church
The Parliament expressed its support to the autocephaly and unity of the Macedonian Orthodox Church. The Church was encouraged to maintain its unity and recognition of its name and autocephaly by other orthodox churches. The Declaration further stated the Parliament’s commitment to maintain the freedom of religion and encourage mutual respect of all citizens irrespective of their religious, national or any other affiliation.
2. International law and relevant materials
(a) United Nations Universal Declaration of Human Rights, 10 December 1948
“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 teaching, practice, worship and observance.”
(b) United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN General Assembly resolution 36/55 of 25 November 1981)
“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
3. Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.”
(c) 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, 22 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:
“58. The Venice Commission considers that it is not clear whether this wording (referring to section 9 (3) of the Act 2007, see below) means that the same religious entity may not register more than once or whether the phrase “has not been already registered” would mean that the Single Register Court (which is the registering body) must assess the individuality of each church, religious community or religious group and exercise its discretion by registering only one “denomination” of this religious entity.
59. Religions can split: it has happened several times in the past and might happen in the future. A religion which is considered the same religion can split into different schisms, each part of the same religion should be entitled to register and to acquire legal personality, quite apart from other rights. If registering would not be possible, it would be serious a breach of the international requirements regarding freedom of religion.
60. Moreover this draft would leave to a public authority - i.e. the Court in charge of the Register - the discretionary power to assess and compare similarities or differences between religious entities and consequently enter into theological questions. This would be considered under international understanding as an unnecessary interference of state bodies into the freedom of religion or belief ...
73. Moreover it cannot be considered either that a name of a religious entity has to be protected by the State authorities in the same way as a name which would be protected under intellectual property law or trademark law and which would, for instance, prevent someone from using the same name and seek to protect consumers from confusion.
74. Registration of a religious entity cannot be assimilated to the registration of a trademark. All the more so since in the latter case novelty and originality must be proven, which in the case of orthodoxy would be hard to show. In addition to novelty and originality a distinctive element is required in order to protect the consumers. This distinctive element would exist because in the controversial issue currently at stake in the country there is a distinctive element whereby one Church refers to a State while another to another State. Hence assimilating the registration of the name of religious entity to the registration and protection of trademarks is not relevant.”
The applicant complains that the refusal of the State to register it was in violation of its rights under Articles 9 and 11 of the Convention. The applicant further alleges that the impossibility to acquire legal personality was due to its religion and in violation accordingly with Article 14 and Article 1 of Protocol No. 12 of the Convention. It submits that its members were put in disadvantageous position in relation to members of registered religious groups, which could protect individual and collective rights of their members. In this connection it states that the State demonstrated clear preference towards the Church, which interests were considered as State interest.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective 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 applicant regarding its complaints under Articles 9, 11 and 14 and Article 1 of Protocol No. 12 of the Convention? If so, would that remedy be effective in the circumstances of the case, in particular in view of the Constitutional Court’s decision of 15 December 2010 (U.br.118/2010)? The respondent Government are invited to provide copy of relevant case-law of the Constitutional Court.
2. Does the refusal to register the applicant constitute an interference with the applicant’s freedom of religion, within the meaning of Article 9 § 1 of the Convention? If so, was that interference in compliance with Article 9 § 2 In particular, were the reasons given “relevant and sufficient”?
3. Does the refusal to register the applicant constitute an interference with the applicant’s 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? In particular, were the reasons given by the domestic authorities “relevant and sufficient”?
4. Does the refusal to register the applicant amount to discrimination against the applicant in the enjoyment of its Convention rights, contrary to Article 14 of the Convention read in conjunction with Articles 9 and 11, and contrary to Article 1 of Protocol No. 12 to the Convention