SIJAKOVA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Georg Ress
The applicants, Mrs Margarita Šijakova, Mrs Nada Elenova, Mrs Vladanka Risteska, Mrs Slobodanka Dimeska and Mrs Lila Štosic, are Macedonian nationals who were born in 1922, 1944, 1951, 1947 and 1947 respectively. The second applicant lives in Kavadarci, whereas the others live in Skopje, both in the Former Yugoslav Republic of Macedonia. They are represented before the Court by Mrs Margarita Šijakova, one of the applicants, a retired lawyer from Skopje. The applicants’ children, after attaining 18 years of age, joined the monastic order of the Macedonian Orthodox Church. The applicants admit that they themselves are practising Orthodox Christians. They allege that some of their children left their homes and joined the monastic order without the applicants’ prior knowledge or consent. In 1998 the applicants lodged a complaint before the Constitutional Court (Уставен суд на Република Македонија), requesting it to assess the constitutionality of the internal rules of the Church (Устав на Македонската Православна Црква), in particular Rules 133, 171 and 173. In their submissions the applicants complained, inter alia, that they had been deprived of their rights as parents to receive proper care from their children in the event of illness or in old age because the religious canons allegedly forbade contacts between monks and their parents. Furthermore, they argued that the Church could not establish monasteries as another form of “life community” because the only such form recognised and protected by the Constitution was the “family”. They argued that the Church, in claiming ownership of monasteries, which were defined as life communities in its internal rules, was thereby asserting ownership of human beings, so that their children could be regarded as being held in slavery. They further alleged that their children had been deprived of many of their fundamental human rights and freedoms as a result of the monastic canons and the vows they had taken before entering the monasteries. On 17 May 2000 the Constitutional Court rejected the applicants’ complaint on the ground of lack of jurisdiction to review the constitutionality of the Church’s internal rules. In its decision, it referred to and summarised the most relevant provisions of the Church’s internal rules and quoted the impugned provisions. In particular, Rule 133 reads as follows: “The monastery is a holy place having a temple and other necessary facilities, i.e. [it is] a life community of persons belonging to the monastic order who have joined together in a spiritual community and have taken a holy vow to live in accordance with the monastic canons.” Rule 171 provides inter alia: “All the possessions of the Macedonian Orthodox Church, bishoprics, church communities and monasteries comprise the property of the Macedonian Orthodox Church.” Rule 173 § 1 reads as follows: “All churches, monasteries, ... - holy waters, cemeteries and places of Orthodox worship, and their movable and immovable assets which are under the canonical and spiritual jurisdiction of the Macedonian Orthodox Church are the property of the Macedonian Orthodox Church.” The Constitutional Court reiterated the constitutional guarantee of freedom of religion, and the right of every individual to express his or her faith and religious beliefs freely and publicly, either alone or in community with others. It stated that this freedom entailed the freedom to hold or not to hold religious beliefs and to practise or not to practise a religion. It further held that the manner in which an individual manifested his or her religious convictions or beliefs was a matter of private conscience, which ultimately determined the relationship between religious communities and the State. In that connection, the Constitutional Court observed that the Macedonian Orthodox Church and other religious communities and groups were separate from the State and were equal before the law, and none of them could have a distinct and privileged position or be controlled by the State. The Constitutional Court further held that the Church and other religious communities or groups could not be regarded as institutional and formal associations of their adherents and that they had not been established pursuant to the provisions of the Law on Citizens’ Associations and Foundations. It therefore concluded that their internal rules were not a matter for constitutional review, as was the case with political parties, other associations and foundations whose programmes and internal regulations and their compliance with the Constitution might be assessed by the court. On an unspecified date, most probably in 1999, the applicants lodged a criminal complaint (кривична пријава) with the Strumica Public Prosecutor’s Office (Основно јавно обвинителство Струмица), requesting it to institute criminal proceedings against the Bishop of Strumica, who had allegedly held their children in slavery, and had thus committed the criminal offence defined in Section 418 of the Criminal Code. Up to the time when the application was lodged the applicants had received no information about the outcome of the investigations by the competent authorities. Article 19 of the Constitution (Устав на Република Македонија) provides that the freedom of religious confession is guaranteed. The right to express one’s faith freely and publicly, individually or with others is guaranteed. The Macedonian Orthodox Church and other religious communities and groups are separate from the State and equal before the law. They are free to establish schools and other social and charitable institutions, by means of a procedure regulated by law. Article 40 § 3 of the Constitution provides that parents have the right and duty to provide for the nurture and education of their children. Children are responsible for the care of their old and infirm parents. Article 110, which defines the jurisdiction of the Constitutional Court provides, inter alia, that it safeguards the freedoms and rights of the individual and citizen relating to freedom of communication, conscience, thought and public expression of thought, political association and activities as well as the prohibition of discrimination among citizens on the grounds of sex, race, religion or national, social and political affiliation. This provision also specifies that the Constitutional Court decides on the constitutionality of the programmes and internal regulations of political parties and associations of citizens. Rule 51 of the Rules of Procedure of the Constitutional Court (Деловник на Уставниот суд) provides that a person who considers that any of his rights or freedoms set forth in Article 110 of the Constitution has been violated by an individual legal act or decision may seek redress before the Constitutional Court within 2 months from the day of adoption of the final individual decision or from the day when he first learns of the action taken, but no later than 5 years from the day of its occurrence. Section 418 of the Criminal Code (Кривичен законик) provides that whoever, in violation of international law, places another person in slavery or in a similar status or keeps him in such a status; buys or sells another person or hands him over to another person; mediates in the purchase, sale and handing over of such a person; or induces someone else to sell his freedom or the freedom of the person he provides for or takes care of shall be punished by from one to ten years’ imprisonment.