Opinion no. 424/2007 on the draft law on the legal status of a church, a religious community and a religious group

Strasbourg, 22 March 2007

Opinion No. 424 / 2007

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION)

OPINION

ON THE DRAFT LAW
ON THE LEGAL STATUS OF A CHURCH, A RELIGIOUS COMMUNITY
AND A RELIGIOUS GROUP OF “THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA”

adopted by the Venice Commission at its 70th Plenary Session (Venice, 16-17 March 2007) on the basis of comments of Mrs Finola FLANAGAN (Member, Ireland)
Mr Hubert HAENEL (Substitute member, France) Mr Hans-Heinrich VOGEL (Member, Sweden)

1. Introduction

1. By letter dated 19 January 2007, the Minister of Justice, Mr Manesvki, asked the Venice Commission to examine the draft law on “the legal status of a church, religious community and a religious group” (CDL(2007)015).

2. Ms Finola Flanagan and Mr Hans-Heinrich Vogel, members of the Venice Commission, and Mr Hubert Haenel, substitute member of the Venice Commission, were appointed and submitted their comments in respect of the English translation of the draft law which was provided by the authorities.

3. The advisory Council of ODIHR Panel of experts on freedom of religion or Belief (hereafter “the OSCE/ODIHR Advisory Council”) had also been asked to assess the draft law and prepared separate comments (CDL(2007)016).

4. On 6 March 2007, a meeting took place at the Ministry of Justice in Skopje. It gathered the working group of the draft law, headed by the Minister of Justice and by Mr Mucuski, Director of the Commission for relations with religious communities, government officials, representatives of the five main religious communities, Mr Robbers, expert and professor University of Trier, Germany on behalf of OSCE/ODIHR, and a Venice Commission delegation consisting of Mr Hans-Heinrich Vogel and Ms Caroline Martin.

5. The Venice Commission’s delegation takes this opportunity to thank again the authorities for the organisation of the 6 March meeting which led to valuable, open, enlightening and fruitful discussions among all participants.

6. The following opinion was drawn up on the basis of the comments by Ms Flanagan and Messrs Haenel and Vogel and was adopted by the Venice Commission at its 70th plenary session (Venice, 16-17 March 2007).

1. Background information

1. TheDraftlaw

7. The draft law under consideration is the result of a long drafting process initiated by the authorities of “the former Yugoslav Republic of Macedonia”.

8. The present draft constitutes the third version since 2005. OSCE/ODIHR Advisory Council had been involved in this process and had already provided two sets of comments.

9. The draft law under consideration will, according to the Minister of Justice, be presented to Parliament by the end of April 2007; further discussions with the religious communities and ministerial bodies are to take place in the meantime.

1. Thesituationin“theformerYugoslavRepublicofMacedonia”

10. The situation in the country concerning religion and the legislation governing its organisation is complex and controversial. There are approximately 35 religious communities in the country, regulated by the existing law; 26 of them are registered. The different religious groups have learned over the centuries to live together in the same country; the Orthodox can be considered as the majority in the whole country, whilst specific regions or areas of the country are composed in majority of Muslims.

11. Historically, religious entities have always had an important role in the society, its education and well - being, even though they are separate from the State.

12. Religious issues have always been closely linked to political issues.

III. General remarks

13. The following opinion addresses the compatibility of the draft law on “The legal status of a church, religious community and religious group” in “the former Yugoslav Republic of Macedonia” with the European Convention on Human Rights as it concerns religious freedom. It also takes into account the main principles of the Guidelines for Review of Legislation Pertaining to Religion or Belief, prepared by the OSCE/ODIHR Advisory Panel of Experts on the Freedom of Religion or Belief in consultation with the Venice Commission (CDL- AD(2004)028).

14. When examining the draft, the experts bore in mind that Contracting States to the Convention benefit from a specifically large margin of appreciation with regard to Church and state relationships and with regard to the choice of their policies and regulations in this field. However, even if the margin of appreciation is large and even if various solutions have been found throughout the countries, the European guarantees must not be undermined because of this: the following remarks have hence to be interpreted within this framework.

15. The analysis of the draft law by the OSCE/ODIHR Advisory panel and by the Venice Commission agreed with each other and were complementary.

16. The draft law meets many of the highest international requirements in protecting the freedom of religion or beliefs and in providing a positive framework for its exercise and practice, e.g. Article 3 guarantees freedom of religion more or less in the terms of Article 9(1) ECHR.

17. However, a considerable number of issues remain problematic and do not comply with important international standards.

1. Substantive comments

1. Freedomofreligion

18. Article 9 ECHR and the relevant case law of the ECtHR constitute the paramount landmark in the field of freedom of religion .

19. Article 9 of the ECHR provides for the Freedom of thoughts, conscience and religion in the following terms:
20. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion of 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.
21. 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.”

20. Closely associated with freedom of thought, conscience and religion are the protections afforded by Article 10 ECHR to freedom of expression and Article 11 ECHR to freedom of assembly and association.

21. The general provisions of the draft law concerning freedom of religion (mainly Articles 3 - 8) would appear at first sight to seek to guarantee the freedom to manifest one’s religion free from constraints, other than those imposed by the Constitution and the reasons provided for in Article 9 § 2 ECHR.

22. Indeed, the Venice Commission welcomes the fact that according to the draft Article everyone has a right to freedom of belief, thought and conscience.

23. Nevertheless it should be observed that this freedom should not only be limited to citizens but accorded to all persons within the State.

24. The Venice Commission recommends therefore that this requirement be made certain, particularly in view of the English version of draft Article 5.1 with regard to the establishment of a religious entity, which should not be limited to “citizens” .

25. The Venice Commission welcomes the wording of draft Article 6.2, which would seem to require State bodies to “create conditions for the unhindered activities of a church, religious community, religious group”.

26. This would reflect the positive nature of the obligation on the part of the State to ensure the peaceful enjoyment of the rights guaranteed by Article 9.

27. However, draft Article 7 states that the freedom to express one’s religion can be “limited with law only if it is indispensable to the interests of national security, public safety, public order, health or morals, over the protection of the rights and freedoms of others”.

28. The Venice Commission reminds the drafters that it is important to note that “national security” is not a permissible ground for limiting the freedom to manifest one’s religion and should therefore be deleted.

29. Furthermore, the Venice Commission considers it excessive to say that a church etc. should not be permitted to “influence” people in relation to choice of religion or affiliation, (draft Article 8). There is a right to express one’s view and proclaim or describe one’s faith or religion and to share them with others. These rights are covered by the right to freedom to manifest religion or belief and also by the right to freedom of expression.

1. Legalstatusofreligiousentities

30. The draft law, by enumerating three types of religious entities, introduces a distinction which seems to the Venice Commission unclear and particularly unsuitable with regard to the international requirement of non-discrimination among religious entities, whether they are registered or not.

31. The draft law makes a distinction between a “Church”, a “religious community” and a “religious group”. These distinctions already exist in the Constitution. Moreover the clarification given at the meeting of 6 March 2007 would tend to explain that in fact only two distinctions are made: “church” and “community” would be considered as synonyms in order to embrace Christians and Muslims, and “religious groups” would concern smaller communities.

32. By contrast, the definition of a “religious group” is “a voluntary association of physical beings that have the same religious beliefs that do not coincide with the registered church and religious community”.

33. All three types of body would appear to be communities associated by reference to religious belief. However, it is not clear at all what the differences between the three bodies defined are. The definition of “church” and “religious community” is not sufficiently specific to allow a “religious group” to be readily distinguished from it. It is not clear why a “religious group” is defined as a “voluntary association” whereas the other two bodies are not. It is not at all clear if there is a legitimate aim pursued by these definitions.

34. Hence the Venice Commission would recommend avoiding these distinctions or clarifying further the purpose of these distinctions.

35. Furthermore, the Venice Commission reminds the drafters that, according to international standards, the guarantees of freedom of religion are not subordinate to any kind of specific system of registration or religious entities; they must benefit any religious entity without any conditions of affiliation or registration.

36. The Venice Commission considers that passing a law which refers only to religious entities which want to acquire legal personality and consequently benefit from the principles and rights enshrined in the law might be understood as aiming to prevent the religious entities which do not want to be registered, from freely exercising their faiths.

37. This is a matter of considerable importance that requires clarification, since limitations on the freedoms guaranteed by Articles 9, 10 and 11 ECHR must comply with one of the legitimate purposes set out in those Articles.

38. Hence, the Venice Commission strongly recommends specifying the status of religious entities which do not want to register, in a non-discriminatory way as required by international standards.

1. Theregistrationsystem

1. a) The standards

39. The draft law under consideration sets out with in Articles 9-17 a detailed system of registration of churches, communities and groups.

40. In this respect the Commission finds it useful at the outset to recall the Guidelines for Review of Legislation pertaining to Religion or Belief as well as in particular the principles developed by the ECtHR in respect of registration.

41. The need for a church to register in order to be able to operate represents an interference with the right of the applicant Church and the other applicants to freedom of religion, as guaranteed by Article 9 § 1 of the Convention.

42. Any interference with the freedom of religion must satisfy the requirements of Article 9.2 ECHR i.e. it must be ‘prescribed by law’, pursue a legitimate aim and be “necessary in a democratic society.”

43. The requirement that a restriction be “prescribed by law “is to prevent the possibility of arbitrary interference with the right. This is achieved by ensuring that those affected by the law know what the rules are. Laws must be expressed with sufficient precision to allow those seeking to exercise the right to regulate their conduct and know the consequences of their actions. Laws must indicate the scope of the discretion afforded to the authorities to regulate the exercise of the right and the circumstances in which discretion will be exercised so as to avoid the possibility of arbitrary decision-making.

44. Limitations must pursue a legitimate aim, and thus be “in the interest of public safety, for the protection of public order, health or morals, or for the protection of rights and freedoms of others.” The ‘legitimate aims’ in relation to which the State may limit exercise of qualified rights must be narrowly construed.

45. In deciding whether a restriction is “necessary in a democratic society”, the test of proportionality must be respected, namely: whether the restriction corresponds to a pressing social need; whether it is ‘proportionate to the legitimate aim pursued; and whether the reasons for it are “relevant and sufficient”.

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.

1. b) On the mandatory character of the registration of a religious entity

48. According to Article 9.1 ECHR, the guarantees of freedom of religion are not subordinate to any kind of specific system or registration of religious entities.

49. The Venice Commission considers that it is unfortunately not clear from the wording of the draft whether a religious entity (church, community, group) is obliged to register or not. Nor it is clear whether non-registration means that members of a particular religious entity may not practise their religion.

50. At the 6 March meeting, the delegation was told that according to the Constitution the members of any group - registered or not - can freely practise their religion or beliefs. This right is protected at the constitutional level and members of those groups which are not registered can practise their faith without any problem as long as they do not infringe public order or “the rights of another group”.

51. The Venice Commission considers that the draft law should clearly specify that members of non-registered entities may exercise and practice freely their beliefs.

52. The Commission recalls that when the lack of registration of a religious entity affects the possibility to operate, it amounts to an interference within the meaning of Article 9 § 2 ECHR.

1. c) Possibility to register

53. It would appear that Article 9 of the draft Law replaces Article 8 of the earlier draft law, which was commented on by OSCE/ODIHR Advisory Council in May 2006. This Article 8, which was rather controversial, read as follows: “For one confession only one church, religious community or religious group can be registered”.

54. The Advisory Council was of the opinion that the said provision was inconsistent with Article 9 ECHR and other international instruments in that it “could be understood as preventing the registration of split-offs from existing churches, religious communities or religious groups. It could also entail the prohibition of registration of competing churches, religious communities or religious groups”.

55. In this respect, it is worth mentioning that all religious communities represented at the 6 March meeting expressed their regret at seeing former Article 8 deleted.

56. Although the controversial former Article 8 of the draft law has been deleted the current draft, Article 9 in particular, is far from being satisfactory on several accounts and seems to lead to an identical aim to former Article 8, but by other means.

57. Indeed, draft Article 9.3 provides that the church etc. “will be entered ... if the church etc. has not been already registered, within the context of this Law.”

58. The Venice Commission considers that it is not clear whether this wording 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. In addition, the Commission considers that the mention, for instance, in draft Article 9.4 of “same identity” would leave to a public authority the assessment of similarities of two faiths, and this cannot be considered as a neutral or impartial position but more likely as an infringement of the freedom of religion.

61. A similar lack of clarity, of undue interference and hence matter of serious concern, applies to the wording of draft Article 9.4, which provides that “a church, religious community and religious group that does not have the same identity or that does not use the same name or a name similar to an already registered church, religious community or religious group will be entered in the competent register”.

62. At the meeting of 6 March, the delegation asked the drafters to explain the meaning of both these articles.

63. Whilst it was acknowledged and recalled that everybody has the right to express his or her beliefs, in relation to matters concerning registration it was considered that a church or a religious entity could not be allowed to confuse the believers by having an identical name to another church. The drafters consider that the State has the duty to protect the public from confusion and therefore should be permitted to refuse registration to any religious entity which would not sufficiently distinguish itself from already registered religious entities.

64. Indeed, whether more than one denomination or community of a church, religious community or religious group can be registered is a matter of significant public controversy in the country. In particular, the drafters consider that the registration of the so called “Orthodox Ohrid Archbishopy” would conflict with the already existing “Orthodox Church of Macedonia”.

65. In addition to this element, the attention of the delegation was drawn to the fact that this particular issue also entails both historical groundings and political aspects in the country.

66. Moreover, according to the discussions the relations between the State and the Church have been always very close. It would therefore constitute a danger for the State, its integrity, and the interest of its citizens to see a religious entity which might support foreign interests having a legal personality in the country.

1. d) The name of a religious entity

67. The draft law in their Articles 9.4 and 10.4 mentions the impossibility of registering or even using certain words.

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” and draft Article 10.4 reads: “The name and insignia of a church, religious community and a religious group can not contain official names and insignia of other states.”

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, as it was argued during the 6 March meeting, cannot be considered as a sufficient reason for interference with rights.

71. This provision seems to refer to a specific situation in the country, where a Church has a quite similar name to another one, and also contains the name of another state. It is an unreasonable restriction where such a name or insignia would be relevant or appropriate. In the view of the Commission this provision should be deleted.

72. In this regard, the Commission wants to underline the fact that a law on legislation pertaining to religion or belief should not aim to respond to a current fact or specific situation which might be regarded as problematic by State authorities or even a part of public opinion at a given moment where this would undermine rights.

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.

75. In the opinion of the Commission it does not appear that the restrictions proposed in the draft Law on the right to register are justifiable. Whilst illegal activity endangering public order may in certain circumstances justify interference with the freedom of religion, there must be evidence of such activity, but the draft Law does not provide for such evidence being a prerequisite of refusal of registration.
76. e) Formalities for application for registration

76. Articles 12 and 13 of the draft law enumerate the necessary procedures.

77. The requirements seem to be both far-reaching, unclear in their purposes and would need simplification. Moreover, here again the Venice Commission wonders about the lawfulness under international standards of some of those procedures. The religious entity is required present a “program of exertion”. Even though the delegation was told that this requirement was of a formal nature and that the court would not look into the components of this program, the Commission recommends its deletion of this mention. It is likely to be seen as an unlawful infringement for the freedom of religion, all the more so since the formal nature of this requirement or all procedures is not clearly specified in the draft law.

78. The same applies to the necessity to prove the nationality or the permanent residence of the founder of the religious entity. Moreover the Commission wonders why a founder should be designated or even exist in every religious entity.

79. The wording of draft Article 13 is equally controversial. It would be difficult to give a “description of the insignia and signs to be used by” a religious entity since over the centuries many of those signs have been created and might also be in the future. Likewise, describing the “manner of expression of religious application and performance of the cult” or the “area in which the church [etc.] ... shall perform their activities” is demanding and if this information is required so that the registration Court can assess the validity of the beliefs or activities of the church, the Commission can only reiterate that this is not permissible.

80. The delegation was told that these specific procedures were already current and were only formal. They were in the draft at the request of the current religious entities. In this regard, the Venice Commission would strongly invite religious communities to take into account the developments in the current international requirements.

81. These draft requirements could lead to prejudice in the registration process of a religious entity and even the fundamental rights to freedom of religion of its members.

82. The same applies to Article 15 of the draft law which specifies that all these requirements are to be mentioned in the ruling by the court by which a religious entity is registered. The need to mention the “area” in which a religious group will perform its activities, for instance, could infringe the freedom to practice one’s religion or belief freely.

83. The delegation was told that these requirements aimed mainly to inform the public, who have access to data. The Venice Commission considers that this aim could be achieved by other means and reminds the drafters that right to freedom of religion and beliefs entails the right to exercise one’s faith everywhere and not in restricted areas.

1. Religiousceremony,prayerandreligiousrite

84. The Venice Commissions understands and welcomes that the provisions of draft Article 18.1 have to be understood as allowing the performance of religious services both in public and private areas.

85. However the previous assessment by OSCE/ODIHR Advisory Panel in 2006, is still valid.

86. According to the draft it is permissible to prohibit religious services which “violate the public peace and order” wherever they occur and not only “in other public and private premises and places” not being those provided for in draft Article 18.1.

87. The restriction on the performance of “religious rites in a religious facility” to “a person of a registered church... or upon their authorisation” is in view of the Venice Commission excessive.

88. Moreover, the term “religious rites” requires definition in order to know the extent of this limitation.
89. Draft Article 18.6 introduces a criminal offence. It is, however, unclear what is involved in “false presentation as an official person and abuse of religious clothing and insignia”. This is prescribed as a criminal offence and its terms must be clear to allow people to regulate their conduct appropriately.

90. Regarding “planning permissions” as provided for in draft Article 19; It is not clear why it is necessary to have a specific provision governing “planning permission” of a religious facility. This should, in principle, be governed by the general law on such matters. The provision requiring the authorities to issue planning permission for construction of a religious facility “based on previously issued opinion of a registered church...” is problematic in that its effect might be to limit the activities of new churches or denominations by requiring them to be subject to other registered churches. It is not clear whether this restriction pursues a legitimate aim or is proportionate. The Venice Commission would recommend deleting this provision or at least making clear that the opinion of a registered entity is not binding.

1. Religious instruction

91. During the meeting in Skopje the delegation was told that the relevant provisions aimed principally to provide for two main issues: to allow any religious entity to organise its own religious education, and, secondly, the law would open the door for religious education in public institutions, for example public schools which would differ from the religious education provided for by religious entities.

92. This two–fold aim however does not appear clearly from the draft law, which should therefore be clarified.

93. The present draft allows in draft Article 21 a church etc. to “have the right to organise religious teaching”. The Article provides that such teachings “are to take place at the premises where religious rites and other forms of public manifestation of religion are performed, as well as at other public and private premises in places, provided that the conduct of religious teachings does not violate the public peace and order.”

94. In general, state regulation of education is permissible. However the law must not restrict the freedom to manifest religion other than for a legitimate aim. If it is the case that this part of the draft Law applies only to registered entities, bearing in mind the previous comments on the scheme of the law concerning registration, it would follow that such a limitation in the area of education would be impermissible. The Venice commission recommends clarifying this issue.

95. Finally, regarding the religious education that would be provided in public schools, the Venice Commission considers that the draft law should mention that this teaching should respect the diversity of religion and beliefs.

1. Conclusions

96. The draft law takes up the general principles with regard to the guarantee of freedom of religion or belief in real terms.

97. However, the detail of this draft law is frequently unclear as to its scope and purposes and requires further amendment in order to avoid any discrimination or any unlawful interference of the State in the rights of religious entities and their members.

98. In particular, attention should be paid to reviewing the status and rights of non registered religious entities, the registration process and related issues, freedom of religion and of religious practice.

99. The Venice Commission stresses that a new law pertaining to religion or belief should not only ratify an existing situation which was previously considered as satisfactory in the country.

100. A new law on freedom of religion must create an appropriate framework for the present and the future exercise of the relevant rights in compliance with the applicable international standards as interpreted by the European Court of Human Rights.

101. Compliance with international standards is essential for a country which, like “the former Yugoslav Republic of Macedonia”, has ratified the ECHR and other international instruments and makes international law part of the national law.

102. The Venice Commission understands the particular situations that prevail in the country in the religious field, but is fully convinced that a solution which caters for the particular needs and at the same time complies with the standards can be found.

103. The Venice Commission urges the authorities of “the former Yugoslav Republic of Macedonia” to amend the draft law and remains at their disposal for so doing.