CASE OF BEKTASHI COMMUNITY AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 9 - (Art. 9) Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
6. The Bektashi Order has existed and practised its religion in the respondent State for many centuries. The applicant association’s headquarters were at the “Teke Sersem Ali-Harabati Baba” in Tetovo. Until the applicant association was refused registration in 2010 (see paragraphs 23-33 below), it practised its religion in full compliance with the relevant legislation applicable at the time. In the past, it was also known under the name “Islamic Bektashi Community”. 7. On 31 July 1997 the Religious Communities and Groups Act (“the 1997 Act”) entered into force. It repealed the Legal Status of Religious Communities Act 1977 (“the 1977 Act”) and provided that the Commission for Religious Communities and Groups (Комисија за односи со верските заедници и религиозните групи – “the Commission”) would be responsible for dealing with religious matters, which up until then had been the responsibility of the Ministry of the Interior (“the Ministry”). 8. On 25 August 1997 the Commission requested that the applicant association submit a copy of its application (копија од пријавата) to be listed in the register of the Ministry and the related certificate of registration (потврда за постојано пријавување) so that it could “transfer (into its register) the religious communities and groups of which the Ministry of the Interior had been notified (пријавени)” (section 35 of the 1997 Act, see paragraph 37 below). 9. On 4 September 1997 the applicant association (under the name “Islamic Bektashi Community” in Tetovo) contacted the Ministry, seeking a copy of all relevant documents related to its application submitted in 1993. According to the applicant association, on 16 September 1997 it forwarded to the Commission all the documents obtained from the Ministry save for the certificate, which had never been issued. 10. At the request of the applicant association, on 1 March 1999 the Ministry issued a certificate (потврда) attesting that on 17 February 1993 the applicant association (under the name “Islamic Bektashi Community” in Tetovo) had submitted an “application for registration” (барање за регистрација) and other relevant documents. On 5 April 1999 the applicant association forwarded the certificate to the Commission. No information was provided as to the follow-up procedure, if any, concerning the Commission’s request for the applicant association to be registered under section 35 of the 1997 Act. 11. On 23 June 2000 the Commission issued a certificate (“the 2000 certificate”), attesting that on 13 June 2000 the applicant association had filed “an application (пријава) in accordance with the 1997 Act”. The certificate further stated: “Since the statutory conditions are met, the Bektashi Community of the Republic of Macedonia is listed (пријавена).” 12. By a decision of 18 July 2000, the State Statistics Office specified the applicant association’s main activities (“the activities of religious organisations”), its headquarters (the “Arabati Baba” site); and attributed corresponding indexes and business codes. 13. In a letter of 13 June 2002 sent to a trial court regarding unrelated proceedings, the Commission confirmed that “the Bektashi Community of the Republic of Macedonia [had been] registered (регистрирана) ...” 14. In 2003 a local non-governmental organisation (“the Macedonian Centre for International Cooperation”) published the “Directory of Religious Communities in Macedonia”, which included the religious entities recorded in the Commission’s register. The applicant association was listed on the basis of the 2000 certificate. 15. On 20 February 2007 the Commission authorised the first applicant to carry out “religious ceremonies and rituals on authorised premises of the Bektashi Community of the Republic of Macedonia”. 16. On 28 September 2007 the Legal Status of Churches, Religious Communities and Religious Groups Act 2007 (“the 2007 Act”) entered into force. It came into operation on 1 May 2008 (section 36). It specified that the Skopje Court of First Instance (“the registration court”) would be competent to deal with religious matters (section 11). It also provided that the Commission would transfer all documents regarding the existing religious entities recorded in its register to the registration court. All religious organisations registered by the Commission up until 1998 could retain their existing legal personality and status. 17. On 10 June 2008 the applicant association, represented by a local lawyer, requested information from the Commission about its status. In reply the Commission stated that it had only been required to transfer to the registration court information regarding existing religious communities registered up until 1998. Since it had only been notified about the applicant association in 2000, the latter should have made an application for reregistration in the Single Court Register (“the court register”) in accordance with the 2007 Act. 18. On 4 June 2009 the applicant association requested, under section 35 of the 2007 Act, that the registration court recognise its continuing legal status and record it in the court register. 19. On 2 October 2009 the registration court dismissed the applicant association’s request. Referring to section 35(1) of the 1997 Act, it held that “[the Commission] had been obliged (должнa) to transfer to its register the religious communities and groups of which the Ministry had been notified up until the 1997 Act had entered into force. However, since the applicant association had not given notice to the Ministry, at the time, it had not been transferred to the Commission’s records, as provided for in that provision.” 20. It further established that in June 2000 the applicant association had given notice to the Commission, which the latter had acknowledged with the 2000 certificate. That practice had been in compliance with decision U.br.223/97 of December 1998 (see paragraph 42 below), in which the Constitutional Court had declared unconstitutional the statutory provisions which had provided for registration of new religious entities conferring on them legal status. 21. The court also established that the applicant association had never been recorded (запишан) and registered (регистрирана) by the Commission either before 1998, as required under section 35(2) of the 2007 Act, or up until the 2007 Act had entered into force. The applicant association had only given notice (пријавена) to the Commission in 2000. Consequently, the Commission had not been required, as specified in section 35(1) of the 2007 Act, to transfer the data “recorded in its register” to the registration court. That requirement concerned only registered religious organisations and not entities which were listed by the Commission. The court concluded that the applicant association had never obtained the legal status it sought to have recognised in the request. 22. On 18 February 2010 the Skopje Court of Appeal (“the Court of Appeal”) dismissed an appeal by the applicant association and upheld the established facts and reasoning given by the registration court. 23. On 22 November 2010 the applicant association, represented by local lawyers authorised to act on its behalf by the second applicant, filed an application for registration in the court register as “Bektashi Religious Community of the Republic of Macedonia”. It also enclosed several documents, including a description of the doctrinal sources. On 30 November 2010 the registration court requested further documents to complete the application. The applicant association submitted the requested documents. 24. On 20 December 2010 the court refused to register the applicant association on the following grounds: (a) the name “Bektashi” had already been used by another religious entity registered in the court register; (b) the doctrinal sources were the same as the doctrinal sources of another already registered religious entity; and (c) the applicant association had not submitted proof of ownership of the “Arabati Baba” site in Tetovo, indicated as its headquarters in the application for registration. 25. The applicant association appealed against this decision and asked the Court of Appeal to hold a public hearing. 26. At a hearing held in private on 14 April 2011, the court allowed the applicant association’s appeal and quashed the lower court’s decision as it had not specified which registered religious entity used the name “Bektashi” or which statutory provision forbade the use of identical doctrinal sources by multiple religious communities and groups. Furthermore, there was no statutory provision under which an application for registration could be refused owing to lack of proof of ownership of the headquarters of a religious community. 27. On 27 May 2011 the registration court again refused to register the applicant association as its intended name contained the term “Bektashi”, which had already been used by another religious entity, namely the “Ehlibeyt Bektashi Religious Group of Macedonia” registered in the court register on 10 September 2010. The court stated that “the existing Act [did] not allow for the registration of a new religious entity under a name that [had] already been recorded in the register for another registered religious entity”. Furthermore, its doctrinal sources were no different from the doctrinal sources of the Islamic Religious Community, which had existed for centuries and which had been registered in the court register on 14 November 2008. As to the doctrinal sources as described by the applicant association, the court stated as follows: “... [they consist of] the Islamic religion and the teaching of the Holy Koran, which is supplemented and interpreted by the knowledge and practices of prophet Mohamed and Imam Ali, the Holy Ehlibeyt (the prophet’s family) and the Holy Journey of Haji Bektash Veli ... it is about the sources of the Islamic religion, for which there is already a registered religious community ... whose teaching includes the Koran and the practices of Mohamed Aleyhisselam. According to Islamic teaching, Ali was his son-in-law and a member of the family (or ehlibeyt), the fourth elected caliph who ruled the Islamic state, and Haji Bektash Veli was the founder of the Bektashi Order of Islam and one of the prominent Islamic philosophers. In other words, the doctrinal sources of [the applicant association] are not at all different from the doctrinal sources of the ... Islamic Religious Community ... In the court’s opinion, the doctrinal sources are to be regarded as official insignia of a church, religious community or group within the meaning of section 10(1) of the 2007 Act. It would be a violation of [that provision] if they did not differ i.e. did not have specific characteristics, elements that were different from the doctrinal sources of the teachings of an already registered [religious entity].” 28. In such circumstances, the court held that the “substantive conditions” for registration of the applicant association in the court register had not been fulfilled. Accordingly, it refused its application for registration under section 16 of the 2007 Act (see paragraph 38 below). 29. The applicant association challenged the grounds on which the registration court had based the refusal of registration. It argued that there was no other religious entity registered under the same name. In this connection, it submitted that there were six registered religious entities that contained the term “Christian” in their name and two registered entities that used the term “Islamic”. The intention of the 2007 Act was not to ban the use of terms that had a generic and not exclusive meaning. Otherwise, it would mean that the law would only allow the registration of one religious entity containing the term Christian, Islamic, Bektashi, Jewish, Tarikat, Buddhist, Zen or Zoroastric. It also argued that it had sought registration as a religious community, as opposed to “Ehlibeyt Bektashi”, which was registered as a religious group. Its intended name was substantially different from the name of that entity; it had existed for decades and centuries, as was evident from the directory and correspondence with various State institutions. As regards the doctrinal sources, it argued that they could not be regarded as official insignia within the meaning of section 10(1) of the 2007 Act. Doctrinal sources could be identical for multiple religious entities (as the Bible was common for Orthodox Christians and Catholics, and the Koran was common for the Islamic Religious Community, the Bektashi Order and Shia or Sunni Muslims). They were of an ideological nature and were not constant, nor could they be interpreted in that way. Official insignia concerned symbols (crosses, crescents, graphic symbols), a flag or a totem that represented something. In this connection, it stated that the interpretation which the court had given regarding its doctrinal sources, namely that they were identical to the doctrinal sources of all Islamic teaching, was wrong. The mere fact that the court had interpreted its doctrinal sources implied that the State was not separated from religion. Furthermore, if that interpretation had been based on some material, it had not been communicated to the applicant association. Nor had it been given the opportunity to present its views at a public hearing. In this connection, it requested that the Court of Appeal hold a public hearing. Lastly, it complained that the refusal of registration was discriminatory. 30. At a hearing held in private on 17 November 2011, the court dismissed the appeal and upheld the lower court’s decision. It held that although the intended name of the applicant association was not entirely identical to the name of the “Ehlibeyt Bektashi Religious Group of Macedonia”, it contained the term “Bektashi”, which was “decisive and represented a synonym for the religious entity”. Consequently, the registration of the applicant association could create confusion among the believers. The Court of Appeal made no mention as to the lower court’s findings regarding the doctrinal sources of the applicant association. It accordingly held that section 16 of the 2007 Act had been correctly applied. 31. On 20 February 2012 the applicant association and the second applicant (and two other individuals) lodged a constitutional appeal with the Constitutional Court complaining that they had been discriminated against contrary to Article 110 § 3 of the Constitution. They summarised the factual background described above and reiterated the arguments raised in the appeal against the court’s decision of 27 May 2011 (see paragraph 29 above). They complained that the use of the term “Bektashi” could not be exclusive (like the use of “Christian” and “Islamic”). Furthermore, the registration of the “Ehlibeyt Bektashi Religious Group of Macedonia” implied that the domestic authorities had implicitly accepted that the doctrinal sources of that religious group were allegedly identical to the teaching of the Islamic Religious Community. They requested that the Constitutional Court hold a public hearing (јавна расправа) in accordance with section 55 of the Rules of Procedure of the Constitutional Court (see paragraph 41 below). 32. At a hearing held on 20 November 2012 in the absence of the parties, the Constitutional Court dismissed the constitutional appeal. The relevant parts of its decision (U.br.24/12) read as follows: “... in the present case, the court considers that it should examine whether the refusal to register the Bektashi Religious Community violated freedom of religion and whether there are elements of discrimination on religious grounds. As regards the first part of the question and having regard to section 9 of the Legal Status of Churches, Religious Communities and Religious Groups Act, it appears that registration in the Single Court Register is a requirement for a religious entity to obtain legal status, but it is not a precondition for religious ceremonies, rituals and prayers, which believers ... can hold irrespective of whether they are organised as a registered religious legal entity. In the present case, having regard to the arguments put forward in the application and the established facts, it appears that the applicants, who define themselves as members of the Bektashi Community, have freely practised their religion for many years. They participate in public life, communicate with State bodies, and participate in religious gatherings and conferences. This leads to the conclusion that, although they are not formally registered under the [2007 Act], they can practise their religion freely and hold religious ceremonies in accordance with the Islamic religion, without any pressure or persecution. Consequently, the applicants’ freedom of religion has not been violated. In order to reply whether there are elements of discrimination in the dismissal of the application for registration of the Bektashi Religious Community, the Constitutional Court assesses whether the courts which decided in the registration proceedings ... gave sufficient reasons and whether the refusal to register the Bektashi Religious Community was based on relevant and reasonable grounds, namely whether the refusal of registration pursued a legitimate aim and whether there was a measure of proportionality between the means used and the aim pursued ...” 33. The court then referred to the grounds on which the registration court had based its decision and stated as follows: “... the [registration] court refused to register the [applicant association] on two grounds: (1) the intended name of the [applicant association] contained the term ‘Bektashi’ which had been incorporated into the name of an already registered religious entity, the ‘Ehlibeyt Bektashi Religious Group of Macedonia’ ... and (2) its doctrinal sources were the same as the doctrinal sources of an already registered religious entity, the Islamic Religious Community. The refusal to register the [applicant association] was based on grounds specified by law ... which, in the court’s view, was correctly applied. The [dismissal decision was based on] section 10(1) of [the 2007 Act] ... The Constitutional Court endorses the findings of the first-instance court that the name and the doctrinal sources are official insignia of a religious entity and distinctive elements through which it is identified and recognised by the public ... This particularly concerns smaller religious entities, namely [those] that ... manifest their distinctiveness through these two elements. Hence, equating the complainant [the applicant association] with another already registered religious entity can mislead the public, that is, it can confuse believers, which is at the same time itself a violation of their religious beliefs. It is not in dispute that the right of a religious entity to be registered should be secured in the context of freedom of religion, but nor should it violate the religious rights and feelings of the members of already registered religious entities. ... Each religious entity, church, religious community or group has the right to be distinct and be recognised in public by its identity. The absence of such [distinctiveness] or competition leads to confusion and misunderstanding by the public.[Such is the case] if there are multiple similar entities which are in competition, indefinite parallelism and division. The aim of the statutory requirement for the name and official insignia of religious entities, including doctrinal sources, not to be identical (неидентичност на името и официјалните обележја) ... is to prevent confusion among believers, incorrect perceptions, and lawful indefinite division of same-faith believers in several religious communities or entities. In the court’s view, these aims are legitimate and necessary in order to protect the freedoms and rights of others, to secure religious tolerance and prevent religious conflicts, as part of ensuring public safety, which is the responsibility of the State. In view of the foregoing, the Constitutional Court considers that the refusal to register the Bektashi Religious Community did not violate [the applicants’] freedom of religion of the applicants, nor were they discriminated against on the basis of their religion.”