AS TO THE ADMISSIBILITY OF
Application no. 37973/05
by Jovan VRANISKOSKI
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 26 May 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 October 2005,
Having deliberated, decides as follows:
The applicant, Mr Jovan Vraniskoski, is a Macedonian national who was born in 1966 and lives in Bitola. He is represented before the Court by Mr V. Gorgiev, a lawyer practising in Bitola, and the Skopje Office of the Helsinki Committee.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
The applicant was a bishop in the Macedonian Orthodox Church (“the MOC”). On 5 July 2002 the Holy Synod of the MOC (Светиот Архиерејски Синод) dismissed him from this duty on the ground that he had violated the oath (Епископско исповедание/ заклетва) by which he had pledged to safeguard the MOC’s unity and Constitution by his unilateral accession to the Serbian Orthodox Church (“the SOC”). On a later date, the applicant was expelled from the MOC. He was also prevented from carrying out ceremonies and preaching in all churches and monasteries.
2. Criminal proceedings against the applicant
On 1 July 2004 the Bitola Court of First Instance (“the trial court”) convicted the applicant of inciting ethnic, racial and religious hatred and intolerance and sentenced him to eighteen months’ imprisonment. It established that the applicant had accepted, although being aware that it would instigate religious hatred and intolerance among believers in the MOC, to be appointed by the SOC as an exarch of the so-called Ohrid Archiepiscopate and to represent the latter as the only valid church in the respondent State. In that capacity, he had undertaken the following.
a) In November 2003, he released a religious calendar in which he had made, inter alia, the following defamatory statements in respect of the MOC:
“... the dissident high episcopacy of the so-called Macedonian Orthodox Church bears full responsibility for the lack of religious education of the people. The bishops of that dissident organisation, since the beginning of the schism in 1967 until the present, behave inadequately given the function which they were bound to by God. They persistently put their own interests before the interests of the church. They were and still remain the last bastion of communism ... The people ... allowed a few so-called archbishops, unrecognised by anyone, to decide about their church ... If people were aware of the [importance of the church], they would never allow some worldlings and heretics to decide on the destiny of the Church.
Unfortunately, the schism in the Orthodox Church, which began in 1967, meant that many religious surrogates were created on our territory.
The latest heresy disseminated by the high episcopacy of the dissident organisation, which calls itself the Macedonian Orthodox Church, is to accept the schism as a normal state of affairs which they defend by non-religious methods ...
The May Assembly of the episcopacy of the Serbian Orthodox Church ... allowed the dissident archbishops in the Republic of Macedonia to reunite ... with the Orthodox Church, on pain of being taken before the Ecclesiastical Court. Two new episcopes, J. and M., were appointed as adjuncts of [the applicant] ...
Being aware that if they targeted the pastor they would destroy the herd, the dissidents, who call themselves the Macedonian Orthodox Church, endeavour to discredit [the applicant], who is the only canonical episcope in the territory of the Republic of Macedonia ...
They are further aware that if the state authorities let Patriarch Pavle (the Patriarch of the Serbian Orthodox Church at that time) and other archbishops of other Orthodox Churches to enter the Republic of Macedonia, the people would soon realise that everything they said about [the applicant] was untrue and a political trick ...”
b) In November and December 2003, he attended the confirmation (хиротонија) of J. and M. into episcopes. Both were proposed by Patriarch Pavle with a view to creating the illusion of a parallel Holy Synod of the MOC. The ceremony took place in a church in Belgrade, Serbia.
c) On 11 January 2004 the applicant held a religious ceremony in an apartment owned by his parents which, according to him, served as a religious object. In doing so, the applicant stirred up considerable religious hatred and intolerance among believers in the MOC and provoked various associations of citizens and other organisations.
The trial court established that, as a historical fact, the Ohrid Archiepiscopate had existed on the territory of the respondent State as an ecclesiastical power until 1767, when it had been abolished by the Ottoman Empire. Since then, the Serbian Orthodox and, briefly, the Bulgarian Orthodox Church, had been in power. The Ohrid Archiepiscopate had further existed between 1958 and 1967, having autonomy under the SOC. The SOC “did not have an interest in the Republic of Macedonia having an independent [autocephalous] MOC, but rather an autonomous church, as was the Ohrid Archiepiscopate ... after the breakup of Yugoslavia and the independence of the Republic of Macedonia, the MOC was constituted, which increased the gap with the SOC” The court further found it undisputed that the MOC was not recognised by the SOC and that due to that dispute, the MOC was not recognised by any of the churches of the Orthodox Communion either.
The court established that the applicant, after being appointed exarch by the SOC, had started acting as a leader of the Ohrid Archiepiscopate as the true Orthodox Church in the respondent State, in parallel to the MOC. At his request, the SOC made J. and M. episcopes with a view to creating a Holy Synod of the Ohrid Archiepiscopate. He designated his parents’ apartment as the seat of the Ohrid Archiepiscopate, where he held religious ceremonies on many occasions. He denied the existence of the MOC, as well as the reputation and dignity of its leaders. His ideas in favour of the restoration of the Ohrid Archiepiscopate under the SOC’s jurisdiction were only supported by a small group of priests and citizens.
The court found that the applicant, in the religious calendar of 2004, had made untrue, disrespectful and defamatory statements about the MOC and its leaders. He had attempted to present himself as a martyr seeking salvation for the Macedonian people, whom he called ignorant and illiterate. The court described the calendar as “bad and vulgar in respect of the religious feelings of the Macedonian people”. It found that, in addition, the applicant had described the religious teaching of the MOC as “heretical”.
The court established that the applicant had released the calendar, although he denied it. The calendar was published by a monastery located in his parents’ weekend house, a fact which could not have been unknown to him. The calendar was fully devoted to him and his activities; it further contained pictures of him taken on different occasions. Its text reflected his ideas on denying the existence of the MOC, which he had continued to express during the trial. The court therefore concluded that the applicant had determined the text of the calendar, and printed and distributed it through his followers.
It further established that the applicant had not succeeded in persuading people to accept his teaching, but rather, had instigated hatred towards himself and his followers. The ensuing revolt and intolerance had derived from an infringement of the religious sensibilities of the people, who had requested the state authorities to intervene. He had even been threatened with assault. In this connection, the court referred to an incident of 18 January 2004 when a considerable number of people had gathered in front of the applicant’s home to protest about his activities.
The trial court rendered the decision after it had heard submissions from the applicant and several witnesses and examined other documentary evidence. It disregarded the applicant’s arguments that several Holy Synods could exist in the respondent State, stating that only the MOC and its Holy Synod existed under the Constitution.
The applicant appealed and complained, inter alia, that the proceedings in question concerned his freedom of religion, which was guaranteed under the Constitution. He was convicted for having expressed different religious opinions than those of the members of the MOC’s Holy Synod. Even though the applicant agreed with the contents of the calendar, he complained that no evidence had been presented that he had published it. He complained that the conduct as a result of which he had been found guilty could not be interpreted as incitement to religious hatred and intolerance, but only as an insult or defamation, which could only be prosecuted by means of a private action.
On 22 June 2005 the Bitola Court of Appeal held a hearing which was attended by the applicant, his lawyer and a representative of the public prosecutor’s office. The court upheld the applicant’s conviction under all three heads. It found no reason to depart from the trial court’s reasoning that the applicant had deliberately undertaken the actions he was convicted of and that he had instigated a schism in the MOC and religious hatred and intolerance among Macedonian churchgoers.
The court held that the applicant had abused the right to freedom of religion by creating a parallel Holy Synod, which was contrary to the Constitution, under which there was only one MOC on the territory of the respondent State. It concluded that the applicant had aimed to implement the ideas of a foreign state on the territory of the respondent State.
On 13 July 2005 the applicant lodged a request with the Supreme Court for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда, hereinafter “extraordinary review request”). He complained that he had been convicted on the basis of having acceded to another religious community and holding a religious ceremony in his home. As regards the calendar, he reiterated that, ultimately, he could only be held criminally responsible for insult and/ or defamation, which were not prosecutable except by means of a private action. He invoked, inter alia, Article 9 of the Convention and Article 19 of the Constitution.
On 13 September 2005 the Supreme Court ruled partly in favour of the applicant and upheld his conviction only in respect of the distribution of the religious calendar. It decided that the applicant’s conduct under b) and c) described in the trial court’s decision did not fall within the scope of section 319 (1) of the Criminal Code (see “Relevant domestic law” below). In this latter context, it found that the applicant’s presence at the confirmation ceremony in Belgrade and the religious ceremony in his home were to be regarded as falling within the right to freedom of thought and religion and were, as such, protected under Article 9 of the European Convention on Human Rights.
As to the religious calendar, it stated inter alia, that:
“... the way in which [the applicant] entered the public arena by way of the religious calendar of 2004, which was distributed in the homes of believers in Bitola and further afield, the formulations he used, his position, the aims he wished to achieve and the consequences of his activities, analysed in the context of the freedom of thought, conscience and religion, as well as the right of freedom of religion of others, is an act which was directed towards the violation of the legal order which guarantees these rights.
A criminal offence is committed when, irrespective of the manner it is undertaken, an action demonstrates that certain expressions were deliberately intended to serve as propaganda instigating ethnic, racial and religious hatred, division and intolerance ...”
The Supreme Court further stated that:
“The conduct of [the applicant], who was appointed exarch of the so-called Ohrid Archiepiscopate by the Patriarch of the Serbian Orthodox Church, with a view to creating a parallel Holy Synod in the Republic of Macedonia, went beyond the freedom of thought, conscience and religion. The facts of the case ... confirm that the public expression of thought, or as the convicted stated – his freedom of religion – by way of the religious calendar of 2004, which was addressed to orthodox believers in the Macedonian Orthodox Church, in the view of the Supreme Court, cannot be regarded as an expression of his personal intellectual stance nor it is an intellectual, theological and scientific opinion addressed to [those believers]. The calendar of 2004, by its contents and aim, was a direct violation of the freedom of others to have their own thought, conscience and religion, namely belief in the Macedonian Orthodox Church and its existence for centuries, in the canons of orthodox communion, in its ceremonies etc. The contents of the religious calendar directly incite and encourage religious intolerance and division among Macedonian believers in the Macedonian Orthodox Church.
The rights of others, namely to the freedom of religion, entail respect for believers as stipulated in Article 9 of the European Convention on Human Rights. That, according to the Supreme Court, was violated with the provocative depiction of events in the calendar. Defamatory statements such as “those who claim that the Macedonian Orthodox Church exists spread heresy” and “the Macedonian Orthodox Church is heretical”, are, at the least, a somewhat unusual form of communication between believers and churches.
[The applicant’s] expression ... acting always as an exarch appointed by the Serbian Orthodox Church, reaches high level of abuse and, as such, demonstrates a denial and violation of others’ freedom of thought and religion and cannot, accordingly, be tolerated in a free and democratic society. His activities are directed towards the believers in the Macedonian Orthodox Church in order to stir up religious hatred and intolerance.”
B. Relevant domestic law
1. Constitution of 1991
Article 16, as far as relevant, provides as follows:
“(1) The freedom of conviction, conscience, thought and public expression of thought is guaranteed ...”
Article 19, as far as relevant and modified with Amendment VII, provides as follows:
“(1) The freedom of religion is guaranteed.
(2) The right to express one’s religion, freely and publicly, individually or with others, is guaranteed.
(3) The Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelic Methodist Church, Jewish Community and other religious communities and groups are separate from the State and equal before the law ...”
Article 50, insofar as relevant, provides as follows:
“(1) Every citizen may seek protection of freedoms and rights set out in the Constitution before courts of general jurisdiction, as well as before the Constitutional Court of the Republic of Macedonia, in a procedure based on the principles of priority and urgency ...”
Article 110, as far as relevant, provides as follows:
“The Constitutional Court of the Republic of Macedonia:
(3) 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;
2. Criminal Code of 1996
Section 319 of the Criminal Code provides, inter alia, that any person incites national, racial or religious hatred, disagreement and intolerance by coercion, ill-treatment, or duress, who insults national, ethnic and religious symbols, or damages monuments and cemeteries, or in any other way incites national, racial or religious hatred, disagreement and intolerance shall be punished with one to five years’ imprisonment.
3. 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 ...”
The applicant complained under Article 6 of the Convention that the judges sitting in his case had lacked the requisite impartiality and that the principle of equality of arms had been violated. He further complained that his conviction had given rise to a violation of Articles 9 and 10 of the Convention. Lastly, he alleged that he was discriminated against in breach of Article 14 of the Convention and Article 1 of Protocol No. 12.
1. The applicant complained that his conviction had amounted to a violation of his rights to freedom to change and manifest his religion and to freedom of expression, under Articles 9 and 10 of the Convention, which read as follows:
“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.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Court notes that the applicant was convicted under section 319 of the Criminal Code of inciting national, racial and religious hatred and intolerance. At the first and second instance, his conviction was grounded on three particular heads of criminal conduct: i) for releasing the calendar of 2004, ii) attending the inauguration of two ministers proposed by Patriarch of the SOC in a church in Belgrade and iii) holding a religious ceremony in his parents’ home. On the applicant’s extraordinary review request, the Supreme Court excluded the last two heads from the scope of the criminal offence convicted of. The applicant was, accordingly, finally punished for having expressed certain views of religious contents in the calendar of 2004.
Under these circumstances, the Court starts on the assumption that the applicant’s complaints would have to be examined under Article 10 in the light of Article 9 of the Convention. However, this matter does not have to be resolved as this part of the application is inadmissible for the following reasons.
The Court reiterates that the purpose of the exhaustion rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see Aksoy v. Turkey, 18 December 1996, § 51, Reports of Judgments and Decisions 1996-VI).
Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 IV).
In the present case, the Court considers that the applicant did not exhaust domestic remedies in respect of his complaints under this head. In this connection, it observes that he did not bring a constitutional complaint before the Constitutional Court, which had, under Article 110 § 3 of the Constitution (see “Relevant domestic law” above), full jurisdiction to consider any allegations of a violation of 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 (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001, in which the applicant, as in the present case, was convicted, inter alia, of inciting national, racial and religious hatred and intolerance for having delivered a public speech). Such constitutional complaint could have been submitted, under Section 51 § 1 of the Rules of Procedure of the Constitutional Court (see “Relevant domestic law” above), within two months from the day the applicant was served with the Supreme Court’s decision of 13 September 2005.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court notes that the applicant did not seek exclusion of the judges before the domestic courts. He further did not present any evidence in support of his allegations that the judges were biased or that he was not afforded a reasonable opportunity to present his case under conditions that did not place him at any disadvantage vis-à-vis the prosecution.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
“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.”
The Court observes that the applicant failed to bring these complaints before the Constitutional Court, which has, under Article 110 § 3 of the Constitution (see “Relevant domestic law” above), full jurisdiction to deal with allegations of a violation of the very same rights and freedoms which the applicant now alleges before this Court that he was deprived of (see Kosteski v. the former Yugoslav Republic of Macedonia, no. 55170/00, 13 April 2006 and Sijakova and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 67914/01, 6 March 2003).
For these reasons, the Court unanimously
Declares the application inadmissible.
Westerdiek Peer Lorenzen