CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 29 novembre 2018

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THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA   (Application no. 52849/09)                       JUDGMENT         STRASBOURG   29 November 2018       This judgment is final but it may be subject to editorial revision. In the case of Stavropegic Monastery of Saint John Chrysostom 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. 52849/09) 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 Stavropegic Monastery of Saint John Chrysostom, a religious association without legal-entity status at national level (“the applicant association”), on 28 September 2009. 2.     The applicant association was represented by Ms N.O. Dobreva, a lawyer practising in Sofia. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov, succeeded by Ms D. Djonova. 3.     On 25 August 2014 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     On 29 October 2008 O.M., M.I. and B.T., former nuns in the Macedonian Orthodox Church (“MOC”), founded the applicant association. The minutes of the constituent assembly ( записник од основачкото собрание ) included the following statement: “... nuns gathered at the assembly do not accept the teaching of the Macedonian Orthodox Church, (which) they consider wrong and unorthodox. (Consequently) they do not want to have any canonical communication with episcopes and priests of the Macedonian Orthodox Church. Not only is (that) church in dispute ( раскол ) with all other orthodox churches, it is not recognised by anyone. This is so because all other churches consider its teaching heretical and wrong. We ... do not want to waste our life in religious doubt ... to be led by immature and non-religious people ... we would be offended on religious grounds if we are associated with another religious community ...” 5.     On the same date, the founding members created the following official documents: (a) a founding decision; (b) decisions authorising O.M. to represent the applicant association and submit an application for its registration; and (c) the Charter ( Статут ) of the applicant association. 6.     The relevant parts of the founding decision read as follows: Article 1 “This decision serves (the purpose of) the registration of Stavropegic Monastery of Saint John Chrysostom in the register of churches, religious communities ( верски заедници ) and groups ( религиозни групи ) in the Republic of Macedonia, as a voluntary, non-profit 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 ...” 7.     The relevant parts of the Charter read as follows: Article 1 “The Stavropegic Monastery of Saint John Chrysostom is a voluntary association of individuals who exercise, through their religious beliefs and doctrinal sources, freedom of religion ... through preaching, prayer, religious rituals, and other forms of expression.” Article 2 “The Stavropegic Monastery of Saint John Chrysostom 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: Stavropegic Monastery of Saint John Chrysostom, with its registered office in v. Nizopole-Bitola.” 8.     On 5 November 2008 O.M. submitted an application for registration of the applicant association “as one of the religious communities” to the Skopje Court of First Instance (“the registration court”). The above ‑ mentioned documents were appended to the application. On 10   December 2008 the registration court requested that the applicant association submit evidence concerning the nationality of its founding members, a requirement with which the applicant association complied. 9.     On 18 February 2009 the registration court refused to register “the voluntary association of physical persons named in the application as Stavropegic Monastery of Saint John Chrysostom”. It found that the application for registration did not meet the requirements laid down in sections 1 and 2 of the 2007 Act on the legal status of a church, religious community and association (“the 2007 Act”, see paragraphs 14 and 15 below) in that (a) it referred to a form of voluntary association of physical persons which was not covered by the Act and (b) the registration of the applicant association “would violate the freedom of religion ‑ provided for in the Convention and the Constitution ‒ of other lawfully registered voluntary associations of physical persons”. As to the former, the court held that the 2007 Act provided for the registration of churches, religious communities and groups but not of other religious entities, in this case a “monastery” ( манастир ), as specified in Article 1 of the applicant association’s Charter. The court did not elaborate further on the second ground on which it based its decision. 10.     The applicant association complained about 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 non-registration was a very drastic measure (in this connection it argued that the court should have indicated any shortcomings that were to be rectified). The court had failed to explain whose religious beliefs would be affected by its registration. Assuming that it referred to the followers of the MOC, the court had not explained how its registration would violate their rights. The applicant association pointed out that in 2002 the registration court had refused to register it as a non-governmental organisation and had ruled that an association with such a name should seek registration under the legislation regulating religious communities and associations that was in force at the time. 11.     On 29 April 2009 the Skopje Court of Appeal dismissed the applicant association’s appeal and upheld the lower court’s decision, endorsing the reasons given therein. 12.     On an unspecified date, O.M. lodged an appeal with the Constitutional Court complaining of a violation of freedom of thought and discrimination on religious grounds owing to the refusal by the registration court to register the religious community with which she was associated. 13.     By a decision of 9 September 2009 the Constitutional Court rejected the constitutional appeal, finding that O.M. had not sought protection of her rights and freedoms but “had complained on behalf of the religious community with which she was associated”. It also held that the complainant “had sought protection of freedoms and rights only formally... without submitting any arguments, evidence or facts ...”. Lastly, the court stated that the complainant had requested that it review the application of the law by the registration court in the proceedings for the registration of the religious community, which, according to the Constitutional Court, was beyond its jurisdiction ( U.br.189/09 ). II.     RELEVANT DOMESTIC LAW AND PRACTICE 14.     Section 1(1) of the Act (Official Gazette no.113/2007) provides for the establishment and legal status of churches, religious communities and groups. 15.     Under section 2 of the Act a church, religious community or group is a voluntary association of physical persons who exercise their freedom of religion. 16.     Other statutory provisions and domestic practice relevant to the present case were described in the case of the “Orthodox Ohrid Archdiocese” (see Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy) v. the former Yugoslav Republic of Macedonia , no. 3532/07, §§ 42-46, 49-53, 56 and 58, 16 November 2017, the “ OOA case”). THE LAW I.     ALLEGED VIOLATION OF ARTICLES 9 AND 11 OF THE CONVENTION 17.     The applicant association complained that the refusal of the respondent State to register it as a religious community constituted a violation of its rights under Articles 9 and 11 of the Convention. For the reasons stated in the OOA 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 (see ibid ., § 61). 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.” A.     Admissibility 1.     The parties’ submissions 18.     The Government submitted that the applicant association had failed to exhaust the domestic remedies. In particular it had not lodged a constitutional appeal, which the Court recognised as an effective remedy. The fact that O.M. had availed herself of that remedy did not exempt the applicant association from the requirement to put the substance of its complaints before the Constitutional Court before coming to Strasbourg. In this connection they referred to the Court’s case-law on this matter ( Skender v. the former Yugoslav Republic of Macedonia (dec.), no. 62059/00, 10   March 2005) and the relevant case-law of the Constitutional Court (see paragraph 16 above). 19.     The applicant association argued that a constitutional appeal was not an effective remedy for its complaints. Under the applicable rules and the established practice of the Constitutional Court, only physical persons had standing to bring a constitutional appeal. Furthermore, the Constitutional Court had never embarked on a thorough review of the specific circumstances of a particular case, but had rather accepted the grounds provided by the lower courts. The reasons for which that court had rejected O.M.’s appeal had clearly demonstrated that it declined jurisdiction to decide the issues complained of. 20.     In any event the applicant association was to be considered as having exhausted all remedies, given the fact that focus of O.M.’s constitutional appeal was the authorities’ refusal to register the applicant association. The Constitutional Court had accepted that it had been submitted on behalf of the applicant association. However, it had not had any real and practical effect. 2.     The Court’s assessment 21.     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). 22.     The Court notes that in OOA case it examined a similar non ‑ exhaustion objection by the Government. In both cases a founding member of the applicant association (O.M. in the present case) had challenged before the Constitutional Court the domestic courts’ refusal to recognise it as a religious entity, raising ‒ in substance ‒ the same grievances of which the applicant association complained before the Court. The Constitutional Court rejected both the appeals for lack of jurisdiction. In the present case it accepted that O.M.’s appeal had been submitted on behalf of the applicant association. In the absence of any other convincing arguments, the Court finds no reasons to depart from its findings in the OOA case, namely that the applicant association had done everything that could reasonably be expected of it to exhaust the domestic remedies. Consequently, the Government’s non-exhaustion objection had to be rejected. 23.     The Court notes that the complaint under this head is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 24.     The applicant association submitted that the domestic courts had not provided cogent reasons for their decisions. There had been no “pressing social need” which the impugned interference served. The crucial argument on which the domestic court’s refusal to register the applicant association had rested was that the applicant association would violate the rights and freedoms of others, namely adherents of the MOC. Behind that argument lay the doctrine that no Orthodox church other than the MOC should be allowed to operate in the respondent State. That doctrine ran contrary to the respondent Government’s duty of neutrality and impartiality and the principle of religious pluralism. Furthermore, it had not been alleged that the applicant association had engaged or intended to engage in any unlawful activities or had pursued any illegal aims. Accordingly, the interference with the applicant association’s rights under this head was not “necessary in a democratic society”. 25.     The Government conceded that the refusal of the domestic courts to register the applicant association amounted to an interference with its rights under Article 11 of the Convention. However, the refusal had been lawful and had pursued a legitimate aim, namely that of the protection of the rights and freedoms of others. Furthermore, the reasons adduced by the courts had been relevant and sufficient. In this connection they submitted that the language used in the minutes of the constituent assembly (see paragraph 4 above) demonstrated that the applicant association was disrespectful of the MOC and offended the religious beliefs of its adherents. 2.     The Court’s assessment 26.     The relevant Convention principles have been summarised in the Court’s judgment in the OOA case (see, ibid., §§ 78, 93-96). 27.     The Court finds no grounds to disagree with the Government’s view that there has been an interference with the applicant association’s rights under Article 11, interpreted in the light of Article 9 of the Convention. Furthermore, and in the absence of any substantive counter ‑ arguments from the applicant association, the Court accepts that the interference in question was “prescribed by law” (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. 28.     As regards the first ground relied on by the domestic courts to justify the interference (see paragraph 9 above), the Court is not convinced that the applicant association had not sought registration under the forms specified by the 2007 Act (church, community or a group). On the facts of the case, both the applicant association’s founding decision and the Charter explicitly stated that the applicant association would operate as a religious community (see paragraphs 6 and 7 above). Furthermore, in its request of 5   November 2008 the applicant association clearly wished the registration court to register it as a religious community. The Court fails to see how the inclusion of the term “monastery” in the applicant association’s intended name placed the organisational form of the applicant association in conflict with the law (see, ibid., § 103). Lastly, the Court notes that no mention of this issue was made in the letter of 10 December 2005 in which the registration court asked the applicant association to complete the application (see paragraph 8 above). 29.     The other argument on which the impugned decisions were based concerned the domestic courts’ finding that registration of the applicant association would violate the freedom of religion of other lawfully registered religious entities. The Court notes that such a conclusion was of a general nature and was not supported by any specific fact that would justify it. In particular, the courts did not identify the entities which would be threatened if the applicant association were to be registered, let alone provide any further explanation. The Government indicated that it was the MOC and its followers, but they did not provide any reasonable explanation that could justify the use of measures which went as far as preventing the applicant association comprehensively and unconditionally from even commencing any activity (see, ibid., § 117 and the references cited therein). 30.     It cannot therefore be said that the reasons provided by the national authorities 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.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 31.     The applicant association also complained that the refusal of the national authorities to register it constituted a violation of Article 14 and Article 1 of Protocol No. 12 of the Convention. These Articles read as follows: 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.” Article 1 of Protocol No. 12 “1.     The enjoyment of any right set forth by law 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. 2.     No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” 32.     In the light of the above finding (see paragraph   30 above), the Court declares the applicant association’s remaining complaints under this head admissible and considers that it is not necessary to give a separate ruling on them (see, ibid., 122). III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 33.     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 34.     The applicant association claimed 20,000 euros (EUR) in respect of non-pecuniary damage for the distress, anxiety and injustice suffered as a result of the refusal of the authorities to register it over an extended period of time. 35.     The Government contested this claim as unsubstantiated and excessive. 36.     The Court accepts that the applicant association has suffered non ‑ pecuniary damage as a consequence of the violation found. Deciding on an equitable basis, it awards the applicant association EUR 3,000 euros, plus any tax that may be chargeable, in respect of non-pecuniary damage. This sum should be paid to the applicant association’s representative, Ms   N.O. Dobreva (see Presidential Party of Mordovia v. Russia, no.   65659/01, § 37, 5 October 2004). B.     Costs and expenses 37.     The applicant association also claimed EUR 1,700 for the costs and expenses incurred before the Court. This figure refers to legal fees for 17   hours of legal work, which the applicant association agreed, under a retainer, to be paid directly to its representative. 38.     The Government contested this claim as unsubstantiated, excessive and not actually incurred. 39.     According to the Court’s case-law, an applicant association 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). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court. This amount is to be paid into the bank account of the applicant association’s representative, plus any tax that may be chargeable to the applicant association. C.     Default interest 40.     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 application admissible;   2.     Holds that there has been a violation of Article 11 of the Convention, interpreted in the light of Article 9;   3.     Holds that there is no need to examine separately the complaints under Article 14 and Article 1 of Protocol No. 12 to the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant association, within three months, the following amounts: (i)     EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (ii)     EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant association; (iii)     both amounts are to be converted into the national currency of the applicant association’s representative at the rate applicable at the date of settlement and paid into her bank account; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     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 Campos   Aleš Pejchal   Registrar   President