CASE OF “ORTHODOX OHRID ARCHDIOCESE (GREEK-ORTHODOX OHRID ARCHDIOCESE OF THE PEĆ PATRIARCHY)” v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no. 3532/07)
16 November 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of “Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy)” v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 17 October 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 3532/07) 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 “Orthodox Ohrid Archdiocese”, later renamed into “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy”, a religious association that was not allowed registration at national level, (“the applicant association”), on 25 December 2006.
2. The applicant association was represented by the Helsinki Committee for Human Rights in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov succeeded by Ms D. Djonova.
3. The applicant association alleged, in particular, that the refusal of the respondent State to register it violated its rights to freedom of religion and association and breached the principle of prohibition on discrimination.
4. On 22 February 2013 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
5. The Ohrid Archdiocese (Охридска Архиепископија), in its original form, existed until 1767, when it was abolished by the Turkish Sultan. As stated by the applicant association, after its abolition the territory over which the Ohrid Archdiocese had jurisdiction, which had included what is now the territory of the respondent State, fell under the jurisdiction of the Ecumenical Patriarchate of Constantinople, which in 1918 issued a canonical release of those territories to the benefit of the Serbian Orthodox Church (SOC). As stated by the Government, in 1943 it was decided that the Ohrid Archdiocese would be restored and continued by an autonomous Macedonian Orthodox Church (MOC). In 1959 the MOC seceded from the SOC, and in 1967 it declared autocephaly. The Head of the Holy Synod of MOC is designated as “Archbishop of Ohrid and Macedonia” (Архиепископ Охридски и Македонски).
6. In negotiations which have been continuing since then, on 17 May 2002 the two churches signed a draft agreement (known as “the Niš agreement”) which provided for ecclesiastical union between them. It further specified that the MOC would renounce its autocephaly and obtain widest autonomy within the SOC under the name “Ohrid Archdiocese”.
7. According to the Government, during the negotiations and the signing of the Niš agreement, there had been strong reaction by the public, which regarded the draft agreement as “a scandalous and indecent act of treason” and, owing to strong pressure by the public, on 25 May 2002 the Holy Synod of the MOC ultimately rejected this agreement. The applicant association disagreed that the rejection of the agreement had resulted solely from the reaction by the public and submitted that “the main pressure came directly from the Macedonian authorities who stood behind the protests”.
8. Mr J. Vraniškovski, a bishop and a member of the Holy Synod of the MOC at the time, was supportive of the Niš agreement. After the Holy Synod of the MOC had rejected that agreement, Mr Vraniškovski accepted a call by the SOC for reunification dated 20 June 2002; on 21 June 2002 he publicly announced that he was prepared for canonical union with the SOC. The Government submitted that that had provoked a public reaction and that there had been street protests in several cities in the respondent State.
9. On 5 July 2002 the Holy Synod of the MOC dismissed Mr Vraniškovski on the ground that, by his unilateral accession to the SOC, he had violated the oath by which he had bound himself to safeguard the Church’s unity and Constitution (see Vraniškoski v. the former Yugoslav Republic of Macedonia (dec.) 39168/03, 22 June 2010). On 23 September 2002 the SOC declared the dismissal of Mr Vraniškovski null and void and appointed him “exarch of the Peć Archbishop and the Patriarch of Serbia for all eparchies of the Ohrid Archdiocese”.
B. Procedure for registration of the applicant association under the name “Orthodox Ohrid Archdiocese”
1. Registration proceedings
10. On 25 December 2003 the applicant association constituted its own Holy Synod and appointed Mr Vraniškovski as its President. By a letter of 16 January 2004, received by the Commission for religious communities and groups (“the Commission”, Комисија за односи со верските заедници и религиозните групи) on 27 January 2004, Mr Vraniškovski requested an opinion as to whether the applicant association should be registered, given that “in all civilised States a church, which is older than the State is accepted without needing to be registered.” The letter, which remained unanswered, further stated:
“... the true Macedonian Orthodox Church is the Orthodox Ohrid Archdiocese. It is a legitimate church, recognised by all churches in the world, so all who want to be Orthodox are welcome, the doors are open. Those who are schismatic should join the schismatic Synod (MOC). The Orthodox Ohrid Archdiocese has nothing against the State registering schisms ... but it is against the State preventing its spiritual and leading operation in the Republic of Macedonia ...”
11. On 6 September 2004 Mr Vraniškovski submitted an application (барање за регистрирање) seeking that the applicant association be registered as a religious group (религиозна група). In support of the application, the applicant association submitted the following documents: (a) a founding decision of 1 September 2004 rendered by its Holy Synod. Under section 1 of that decision, the applicant association was defined “as a voluntary, non-profit association of Christians that were not associated with any other religious community or group”. Its aim was to acquire legal-entity status and to manage its property. The decision specified the temporary place of registration of the applicant association and authorised Mr Vraniškovski to submit an application for registration on behalf of the applicant association; (b) a list of its adherents; and (c) a Charter on the organisation and operation of the applicant (“the Charter”). The latter provided that the applicant “would be autonomous within the canonical jurisdiction of the Peć Patriarchy (the SOC)”; it specified that its temporary place of registration would be in Bitola, in the respondent State, “until it was possible to designate a permanent seat”; and that the applicant association and its structural units were legal entities and could obtain and manage property. It further provided that all legal persons that the applicant association might set up could have bank accounts.
12. On 30 September 2004 the Commission found the application to be incomplete, and requested that the applicant association submit the following further documents: a) a copy of a decision appointing the authorised person to seek registration of the applicant association and b) a copy of the minutes of the constituent assembly. On 18 October 2004 the applicant association submitted the requested documents.
13. On 3 November 2004 the Commission dismissed the application (се одбива барањето за пријавување) for the following reasons:
(a) the application was not submitted by an authorised person. The Commission held that it had been submitted by a certain J.N. (Bishop D.) and not by Mr Vraniškovski, who had been authorised to seek registration of the applicant association;
(b) the application for registration had been submitted outside the thirty-day time-limit specified in section 11 (1) of the Act on Religious Communities and Religious Groups (“the 1997 Act”, see paragraph 47 below), which had started to run on 25 December 2003, the date on which the applicant association’s Holy Synod had been set up (see paragraph 10 above);
(c) relying on the applicant association’s Charter, the Commission established that it would act as an autonomous religious group in canonical union with the Peć Patriarchy (SOC). That the applicant association would operate as part of a foreign orthodox church was, in the Commission’s view, in violation of section 12 of the 1997 Act. The Commission further stated that a religious community could be established only by nationals of the respondent State, and not by a foreign church or State;
(d) the applicant association had emerged from an already existing and registered religious community, notably the MOC, whose position and role had been specified in the Constitution. The fact that the applicant association had sought registration under the name “Orthodox Ohrid Archdiocese” had implied that its real intention was to create a parallel orthodox religious group to the MOC, which had been using that name (Orthodox Ohrid Archdiocese) “constitutionally, historically, actually and continuously” (уставно, историски, актуелно и во континуитет) for over eight centuries. That was not in compliance with section 8 (2) of the 1997 Act, under which only one religious community could be registered for one faith group. The Commission referred to a decision of the Constitutional Court which had found that provision compliant with the Constitution. It had ruled that the provision had protected people from being manipulated and same-faith believers from being divided into several religious groups (U.br.223/97 of 28 October 1998, see paragraph 54 below). The Commission also argued that the Preamble to the Constitution of the MOC specified that it was the canonical successor to the Ohrid Archdiocese. This was confirmed on 17 July 1967 when the Ohrid Archdiocese declared autocephaly, which was continued by the MOC. The Commission further held that on 6 August 2004 the MOC had asked the Industrial Property Bureau (“the Bureau”, Завод за заштита на индустриската сопственост) to register the name “Macedonian Orthodox Church-Ohrid Archdiocese” in its trademark register (TM 2004/574).
Moreover, on 13 August 2004 the MOC had asked the Commission to prevent registration of several names, including the name “Ohrid Archdiocese”, to which it was entitled for historical, religious and moral reasons; and
(e) the Commission held that property-related provisions of the applicant’s Charter were contrary to section 9 of the 1997 Act, according to which a religious group was a voluntary, non-profit association of believers.
14. In its decision of 3 November 2004, the Commission further referred to several international documents and a Declaration that the Parliament of the respondent State adopted in 2004 regarding the MOC (see paragraph 51 below).
15. The applicant association complained against this decision, arguing that:
(a) the application for registration had been submitted by Mr Vraniškovski. J.N. had only handed it over to the Commission’s archives;
(b) the applicant association had been founded formally on 1 September 2004. On 25 December 2003, the date to which the Commission referred in its decision, the applicant association had only appointed the members of its Holy Synod;
(c) the applicant association was a new religious community that had no connection with, let alone stemmed from, the MOC, which, in any event, had not been recognised by any Orthodox Church;
(d) the fact that the MOC had sought to have the Bureau add “Ohrid Archdiocese” to its name was irrelevant, since no such name existed in the Commission’s records;
(e) the applicant association had denied that it had been set up by a foreign church or a foreign State. That it would operate in canonical union with another church of same religion did not imply that it had been founded contrary to section 9 (2) of the 1997 Act;
16. On 11 January 2005 the Government Appeal Commission (Комисија за решавање во управна постапка во втор степен од областа на внатрешни работи, судството, државната управа, локалната самоуправа и работите од верски карактер) dismissed the appeal, finding no grounds to depart from the established facts and the reasons given by the Commission.
17. The applicant association challenged these decisions before the Supreme Court. In addition to the arguments already raised, it submitted that its name was neither identical with nor similar to the name of any other religious community or group registered by the Commission.
18. On 9 November 2005 the Supreme Court dismissed the applicant’s claim. It held that the applicant association’s name had implied creation of a parallel religious community, rather than a religious group as claimed, given that its name was substantially the same as the name of the MOC. The court referred to the applicant association’s Charter and found that its determination to operate as an autonomous church in canonical union with the Peć Patriarchy was contrary to the fact that the MOC had canonical jurisdiction in the territory of the respondent State. It also held that property-related rules were in violation of section 16 of the 1997 Act. The court accepted the remaining reasoning given by the administrative bodies. That decision was served on the applicant on 15 July 2006.
2. Proceedings before the Constitutional Court
19. On 15 July 2007 Bishop D. applied to the Constitutional Court, claiming that the refusal of the authorities to register the applicant association violated the freedom of belief and religion specified in Article 110 § 3 of the Constitution. While relying on the decisions of the authorities refusing the applicant association’s registration as “Orthodox Ohrid Archdiocese”, he also notified the court that a fresh application for registration had been submitted under the name “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” (see paragraphs 23-34 below). He stated, inter alia:
“... it is obvious that followers of our religious organisation have been deprived of the rights specified in Articles 16 and 19 of the Constitution for seven years ... the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy is a religious organisation which should protect the religious needs of, among others, Serbs and Greeks in the Republic of Macedonia. It is an autonomous church under jurisdiction of the Peć Patriarchy, notably the Serbian Orthodox Church ...”
20. On 9 September 2009 (U.br.184/09) the Constitutional Court rejected the appeal, which, as specified in the decision, concerned “freedom of belief and prohibition of discrimination on religious grounds”. Relying on, inter alia, Articles 9, 16 and 19 of the Constitution (see paragraphs 42-44 below), the court found:
“The complainant did not claim personal protection from discrimination ... but, he acts as a representative of a group of people with which he is associated ...”
21. It further stated:
“The Constitutional Court has no jurisdiction to decide on the rights and interests of citizens in specific cases before administrative and judicial bodies. Neither has it jurisdiction to decide as a hierarchically superior court and examine the lawfulness and constitutionality of decisions adopted by competent administrative bodies ... the complainant refers to the non-registration as an action, but such an action ... stems from an individual decision which this court is not competent to examine ... the registration of ... a religious community or a group does not determine the religious beliefs and internal religious belief of a person, since expression of beliefs is an individual act, the registration procedure does not affect personal religious belief and rituals, and the court has not been presented with any evidence that they have been violated at any point.”
22. The court also held that the appeal had been submitted outside the two-month time-limit specified in the Rules of the Constitutional Court (see paragraph 52 below), calculated since 9 November 2005, the date of the Supreme Court’s decision (see paragraph 18 above).
C. Procedure for registration of the applicant association under the name “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” (Грко-Православна Охридска Архиепископија на Пеќката Патријаршија)
1. Registration proceedings
23. On 20 September 2007 a new Act on the legal status of churches, religious communities and religious groups (“the 2007 Act”) was adopted. It entered into force on 1 May 2008.
24. On 3 and 6 April 2009 the applicant association inspected the register of churches, religious groups and communities (“the court register”) of the Skopje Court of First Instance, which became, by virtue of the 2007 Act, the registration court. From 11 November 2008 onwards the MOC was recorded in the court register as “Macedonian Orthodox Church-Ohrid Archdiocese”. The registration decision stated that in communication with third parties it would use the name “Macedonian Orthodox Church”.
25. According to “the minutes of the constituent assembly” (записник од основачкото собрание) “... at the proposal of His Beatitude (Неговото Блаженство), the Archbishop of Ohrid and Metropolitan of Skopje Mr Jovan (Vraniškovski), the Holy Synod of the Orthodox Ohrid Archdiocese composed of (Bishops J., M., and D., all Macedonian nationals) convened a meeting on 27 April 2009 in order to adopt decisions for setting up and registration of “the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy”. The minutes of the constituent assembly were signed by all three bishops (their personal identity numbers and addresses were provided therein).
26. On the same date a decision setting up the applicant association was adopted. As stated in its introductory part, “at a meeting dated 27 April 2009 the Holy Synod decided to submit a request to the Skopje Court of First Instance for registration of ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’”. It was set up “as a voluntary, non-profit organisation of Christians who are not associated with any other registered religious community, and, in particular, has no connection with (the MOC)”. It further stated:
“It is an Orthodox church in full canonical and liturgical union with all recognised Orthodox churches in the world. For this reason, we consider that we should be registered as a church, but if the court considers otherwise, we would accept registration as a religious community or religious group.”
27. The decision further indicated that the applicant association’s temporary place of registration would be in Bitola, in the respondent State. Bishop D. was authorised to submit the application for registration. He was also nominated to act on behalf of the applicant association (застапува) in relations with other legal entities until “... Mr Jovan (Vraniškovski) returned from exile”.
28. The applicant association’s Charter on the status, organisation and operation of the association (“the Charter”) provided that it was “an autonomous church under the canonical jurisdiction of the Peć Patriarchy” (section 2). The Holy Synod was “the highest managerial body” of the applicant (section 6). It was composed of the Archbishop and two eparchy bishops (section 9). The assembly of archbishops (архиепископско собрание) was “the supreme regulatory, administrative, supervisory and executive body concerning internal, financial and religious self-management” (section 12).
29. On 28 April 2009 Bishop D. submitted an application for registration of the “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” as “one of the churches” in the respondent State. The application expressly stated that the applicant association would agree to be registered as a religious community or group if the registration court found this more appropriate. The applicant association further expressed willingness to submit any documents, if need be, in order to avoid its application being refused. It was also stated that a refusal to register a religious group would be unjustified in a democratic society unless it was proven that the teaching of the group was destructive. That had not been the case with the ‘“Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy’ which is two thousand years old”. It further stated that:
“... any refusal to register ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’ is an obstacle to the Republic of Macedonia’s future membership of the European Union ... It will not be pleasant, at the present time and place in history, if a judge appears as a persecutor of a church. Any person who does not respect human rights and freedoms regarding association of people on religious grounds, especially if he or she is a judge ... does not differ much from famous persecutors of the Holy Church ... we wrote the above in order to warn that it will be unpleasant if the court does not register ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’ ...”
30. On 10 July 2009, without reference to the applicant, the registration court sought an explanation from the MOC as to the meaning of the notion of “Peć Patriarchy”. On 21 July 2009 the MOC replied (the reply was reproduced in the decision of the registration court of 28 July 2009, see paragraph 31 below) as follows:
‘“Peć Patriarchy’ forms part of the name of the Serbian Orthodox Church and expresses the historical continuity of the Serbian Orthodox Church as canonical heir of the Peć Patriarchy: in the same way the name ‘Ohrid Archdiocese’ is part of the name of the Macedonian Orthodox Church. The name ‘Ohrid Archdiocese’ is protected by the Macedonian Orthodox Church in the Industrial Property Bureau. The Serbian Orthodox Church, specifically the Peć Patriarchy, has no canonical or any other jurisdiction over the Macedonian Orthodox Church or in the territory of the Republic of Macedonia.”
31. On 28 July 2009 the registration court dismissed the applicant association’s request for registration in the court register (се одбива барањето за упис) for the following reasons:
(a) it was founded by the so-called Holy Synod, as a body, which was contrary to section 2 of the 2007 Act (see paragraph 49 below) according to which a decision to establish a religious entity was to be taken by the founding members at a constituent assembly. No such assembly had been held in the applicant’s case;
(b) the application for registration concerned an organisation which had not been provided for under the 2007 Act. Its name did not specify whether it was a church, religious community or religious group. On the contrary, it implied that it was a divine organisation, which would operate as an autonomous Archdiocese under the canonical jurisdiction of the Peć Patriarchy. “It did not state that it was a voluntary organisation of physical persons” as required under section 2 of the 2007 Act;
(c) the intended name of the applicant association included names or terms that were part of or indicated a relationship with the official names of States or religious communities or canonical territories already registered and under foreign jurisdiction. In this connection it held that the term “Greek” (Грко) was an English translation of “Orthodox Church”. Its use was not in conformity with the 2007 Act (section 10 (3)). The “Orthodox Ohrid Archdiocese” partly covered the generic and historical name of the MOC; it did not differ from the latter’s registered name. That name (Ohrid Archdiocese) has been used by the MOC “constitutionally, historically, actually and continuously” for over 800 years, and only the MOC had the “historical, religious, moral and substantive right” to use it. In this connection the court held that the legal status, name and official insignia of the MOC were safeguarded by the 2007 Act and the Constitution. That the applicant’s intended name implied that it was under the territorial jurisdiction of a foreign church was in contravention of the 2007 Act and other laws. It was so because the MOC had canonical jurisdiction in the territory of the respondent State. It was only formally indicated that the applicant association would operate as an autonomous church. If registration was granted “it would operate in the territory of the respondent State as part of a foreign orthodox church ... it would operate and be managed autonomously within the canonical jurisdiction of the Peć Patriarchy, notably (the SOC) ... which had no canonical or any other jurisdiction over (the MOC) or in the territory of (the respondent State).” That was in violation of Article 1 of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 18 of the UN Universal Declaration of Human Rights and Article 9 of the Convention;
(d) the founding decision had specified only the temporary place of registration of the applicant association, without specifying “a specific seat and address” (точно одредено седиште и адреса), as required under section 13 § 1 (2) of the 2007 Act; and
(e) Bishop D. was nominated to act on behalf (застапува) of the applicant association, but not to represent (претставува) it, as required under section 12 § 2 (5) of the 2007 Act.
32. The registration court concluded that the applicant association’s registration would run counter to the 2007 Act. It further stated that:
“(such a registration would violate) the freedom of religion ... of all physical persons, which they manifest through already registered religious communities. It would also violate the legitimate legal status of other voluntary associations of persons recorded in the court register ... their management bodies, hierarchy, competencies, titles, religious activities ...”
33. The applicant appealed, arguing (i) that the court had erred when seeking “an expert opinion” about the meaning of “Peć Patriarchy” from the MOC, which was not neutral; (ii) that the registration of the MOC in November 2008 under the name “Macedonian Orthodox Church-Ohrid Archdiocese” had been unlawful. In this connection, the applicant submitted extracts from several media reports published at the time, according to which the competent body of the MOC, at its meeting held on 4 and 5 October 2008, had refused to change the name in its Constitution; (iii) that the MOC had applied to the Bureau for registration of the name “Macedonian Orthodox Church-Ohrid Archdiocese” as a trademark was irrelevant, since the Industrial Property Act concerned goods and services and not religious organisations. In this connection, the applicant argued that, in any event, the Bureau had confirmed that on 6 August 2004 the MOC had requested registration of seventeen trademarks, including the trademark “Macedonian Orthodox Church-Ohrid Archdiocese”. However, the MOC had never paid the registration fee for any of the trademarks for which registration had been sought. Consequently, those names were never registered as trademarks, nor were trademark certificates ever issued; (iv) the applicant association was set up by three founding members who had signed the minutes of the constituent assembly held on 27 April 2009. Consequently, the court had been wrong to hold that the founding decision had been rendered by the applicant association’s Holy Synod, as that body had no legal capacity to act before the applicant association was registered; (v) no reasonable explanation had been given as to why the applicant association’s intended name did not imply that it concerned a religious organisation; (vi) the court’s interpretation that the expression “Greek” was an English translation of “Orthodox Church” was wrong; (vii) the intended name of the applicant association was different from the name of any registered religious organisation, including the name of the MOC to which “Ohrid Archdiocese” had been unlawfully added. In this connection the applicant stated “(it) differs from the MOC, with which we refuse to be associated.” It further submitted that the court had allowed registration of two churches despite the fact that their names were substantially the same, namely “Christian Adventist Church (church of the Adventists of the Seventh Day) in the Republic of Macedonia” and “Christian Adventist Church in Macedonia”. It concluded the discussion under this head by saying that “had the court had difficulty with the intended name, it could have raised that issue in written correspondence and we would have replied. This clearly suggests that the court would refuse to register [the applicant association] under any name”; (viii) the registration court had given unsubstantiated explanations of a theological and historical nature favourable to the MOC; (ix) the applicable legislation did not preclude a religious community from being in canonical union with other churches in the world; (x) the refusal to register the applicant association violated the freedom of religion of the orthodox Greeks and Serbs in the respondent State, as the intended name suggested that it represented those communities; and (xii) lastly, the applicant association reiterated that it was ready to rectify any error the registration court might ask it to.
34. On 4 February 2010 the Skopje Court of Appeal dismissed the applicant association’s appeal, reiterating the reasoning given by the registration court.
2. Proceedings before the Constitutional Court
35. On an unspecified date thereafter, D.N. (Bishop D.) submitted a constitutional appeal to the Constitutional Court, claiming that the authorities’ refusal to register the applicant as “the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” had affected his religious rights specified in Articles 16 and 19 of the Constitution and Article 9 of the Convention. In this connection, he claimed that the religious organisation with which he was affiliated had not been allowed registration for many years, and thus had been denied the opportunity to obtain legal-entity status. He stated “I’m prevented from exercising my freedom of religious observance in association with other people on a voluntary basis.” He further argued that without legal-entity status the applicant association was prevented from enjoying certain statutory rights: it could not construct religious temples; its members could not conduct religious ceremonies; it could not instruct religion or create religious schools; and it could not manage its property, nor could it hold bank accounts. Bishop D. invited the court to consider his appeal as submitted on behalf of all members of his religious organisation. Since the Constitutional Court had already rejected a similar appeal lodged on behalf of several people (U.br.182/09, see paragraph 55 below), he consented that his appeal be regarded as being submitted only in his name. He further stated:
“I agree, and after having consulted the other members of my religious community, I know that they also agree, that the Constitutional Court orders registration of the Greek Orthodox Ohrid Archdiocese of the Peć Patriarchy under conditions specified by law and we would adjust to any requirements set by the court. If a change in the name is needed, that should be indicated as a condition for our registration and once it is satisfied, (we) should be registered. If another condition should be fulfilled, that should be specified and we will try to accommodate it.”
36. On 15 December 2010 the Constitutional Court rejected the constitutional appeal of D.N. concerning “the freedom of belief and prohibition of discrimination on religious grounds” (U.br.118/10). Referring to the courts’ decisions rejecting the applicant association’s request for registration as “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” and relying on Articles 9, 16 and 19 of the Constitution and Article 9 of the Convention, the court stated:
“The court cannot examine the appeal on the merits since the complainant did not comply with the formal statutory requirements before a competent court (for registration of the applicant). The complainant is willing to comply with the statutory requirements for registration, but he has failed to do so in practice and (he) does not prove that the competent court was wrong in its judgment that those requirements had not been complied with ... in such circumstances, this court cannot rule on the request for the protection of human rights and freedoms in relation to specific final decisions of competent bodies. It is so since the person concerned (субјектот) did not take any action in the court proceedings to comply with the statutory requirements, which apply similarly to all citizens. This derives from his request that this court suggest to him what needs to be done for (the applicant association) to be registered, which implies knowledge that there were (certain) flaws which led to non-registration. The complainant was not a priori refused registration of his religious community by a final judicial decision. The refusal he received was for non-compliance with the statutory requirements.”
D. Other relevant information
37. An article published in the daily newspaper Dnevnik on 26 September 2002 quoted the then Chairman of the Commission (see paragraph 10 above), who stated that:
“not at any price will Bishop Jovan (Vraniskoski) be allowed to perform religious rituals or to have a seat in an exarchate.”
38. An article published in the daily newspaper Vest on 8 April 2004 quoted the following part of a joint statement by the then President of the respondent State and the Archbishop of the MOC:
“The MOC and the Macedonian State are and will remain together. Schismatics and renegades should be marginalised, isolated and rejected. The media attention they receive, irrespective of motives and intentions, affects both the MOC and Macedonian national and State interests.”
39. An article published in the daily newspaper Večer on 23 November 2006 reported on discussions held between the Prime Minister of the respondent State and the Archbishop of the MOC regarding certain provisions of the 2007 Act. Following that discussion, the majority of bishops in the MOC, as stated in the article, had requested that the MOC should not accept any compromise which would prevent it from protecting itself against a parallel church, led by Mr Vraniškovski, being created.
40. An article published in the daily newspaper Večer on 2 June 2009 reported on the alleged discontent of the applicant’s followers about its name as submitted in the second registration proceedings. In this connection the article quoted a letter by Mr Vraniškovski in which he allegedly stated:
“The (Holy) Synod was governed by the idea that the name of the religious community in respect of which we seek registration does not betray the essence of our Church. You know well that Greek-Orthodox does not mean Greek (by nationality) of Orthodox faith, but that name refers to all known Christian Orthodox Churches.”
41. The article continued, stating that Mr Vraniškovski had further asserted that the second part of the name was reasonable because the “Ohrid Orthodox Archdiocese” was a part of the Peć Patriarchy.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
1. Constitution of 1991, as modified by Amendment VII
42. Article 9 of the Constitution reads as follows:
“Citizens of the Republic of Macedonia are equal in their freedoms and rights, regardless of their sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status.
All citizens are equal before the Constitution and law.”
43. Article 16 of the Constitution, as far as relevant, reads as follows:
“Freedom of personal belief, conscience, and thought, and public expression of thought, are guaranteed.
Freedom of speech, public address, public information and the establishment of institutions for public information are all guaranteed ...”
44. Article 19 of the Constitution, in so far as relevant, reads as follows:
“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, as well as the Islamic religious community in Macedonia, the Catholic Church, the Evangelical Methodist Church, the Jewish community and other religious communities and groups are separate from the State and equal before the law.
The Macedonian Orthodox Church, as well as the Islamic religious community in Macedonia, the Catholic Church, the Evangelical Methodist Church, the Jewish community and other religious communities and groups are free to establish schools and other social and charitable institutions, by means of a procedure regulated by law.”
45. Article 20 of the Constitution, as far as relevant, reads as follows:
“Citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and beliefs.
Citizens may freely establish associations of citizens and political parties, join them, and resign from them ...”
46. Article 110 § 3 of the Constitution reads as follows:
“The Constitutional Court of the Republic of Macedonia ...
(3) safeguards the freedoms and rights of individuals and citizens concerning the freedom of belief, 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 or national, social or political affiliation ...”
2. Act on religious communities and religious groups of 1997 (Official Gazette no. 35/1997)
47. The relevant provisions of the 1997 Act read as follows:
“Religious communities and groups carry out their activity in accordance with the Constitution, laws and other regulations.”
“A religious community is a voluntary non-profit association of same-faith believers.
Only one religious community may exist for one religious denomination.”
“A religious group, according to this law, is a voluntary non-profit association of same-faith believers which is not associated with any registered religious community.
Citizens may freely and publicly establish religious groups in accordance with this law.”
“The founders of a religious group must designate a responsible person to submit before the competent body an application (пријава) within thirty days of the adoption of a decision to establish the group ...”
“The name of a religious group should be substantially different from the names of already registered religious communities or groups.
The name should imply that it is about a religious group and its creed.
The name of a religious community or group should not include the words ‘Republic of Macedonia’, names of foreign States, State or public bodies or institutions, or other insignia.
The seat of a religious community or group ... must be in the Republic of Macedonia.”
“Religious communities and groups can obtain voluntary contributions for religious and humanitarian purposes. Contributions can be collected on premises that are used for religious rituals, and outside these premises on approval by the competent body for internal affairs.
No one can be forced to make or prevented from making contributions for the purposes specified in sub-paragraph 1 above.
Religious communities and groups cannot compel their believers to make such contributions.”
48. Sections 7, 15, 20, 22, 24, 25 provided that religious organisations could set up social and humanitarian associations, publish literature, carry out religious rituals, obtain property and other income, set up religious schools, and instruct religion.
3. Act on legal status of churches, religious communities and groups (Official Gazette. No.113/2007)
49. The relevant provisions of the 2007 Act, which repeals 1997 Act (section 36), read as follows:
“A church, religious community or group is a voluntary association of physical persons who profess their freedom of religion ...”
“Churches, religious communities and groups are free to choose their internal organisation, their management, hierarchy and competency, to appoint responsible persons to act on their behalf (застапуваат), and to represent (претставуваат) them, and to adopt relevant decisions.”
“The State respects the identity of churches, religious communities, groups and other forms of religious associations with which it is in a relationship of mutual dialogue and continuing cooperation.”
“Freedom of expression in terms of religion or thought can be limited in accordance with law only if necessary in the interest of public safety, order, health or morals, as well as the protection of the rights and freedoms of others.”
“(1) Churches, religious communities and religious groups are registered in the Single Court Register ... and thus obtain legal-entity status ...
(3) A church, religious community or religious group may be entered in the register only if that church, religious community or religious group has not already been registered.”
“(1) The name and insignia of any new church, religious community and religious group should be different from the names and insignia of other already registered churches, religious communities or groups ...
(3) The term ‘Macedonia’ can be used upon written approval by the Ministry of Justice.”
“... (2) The following documents are to be enclosed with an application for registration (of a religious entity): the minutes of the constituent assembly; the founding decision; its Charter concerning its status, organisation and operation; a description of its doctrinal sources; a decision authorising a responsible person to act on behalf of and to represent the church, religious community or group; and a certificate of nationality concerning the founders and the person who represents the (religious entity).
(3) Churches, religious communities and groups are all required to appoint a person who will submit an application for registration within thirty days of the date of adoption of the founding decision.
(4) If all the documents listed in sub-paragraph (1) of this provision are not enclosed with the application, the competent court will invite the applicant to submit the requested documents within fifteen days, under threat of the application’s being rejected.”
“(1) The founding decision must specify the following: ... the seat and address of the church, religious community or group in the Republic of Macedonia; ...”
50. Sections 18, 21, 22 and 30 concern religious rituals and ceremonies, the right of churches, religious communities and groups to carry out religious teaching and establish religious schools and humanitarian, cultural, social, health, charitable and other institutions in procedures and under conditions specified by law.
4. Declaration of 23 January 2004 adopted by the Parliament of the respondent State in support of the MOC’s autocephaly (Official Gazette no.4/2004)
51. Expressing its regard to MOC’s position in the Constitution, its historical role for the Macedonian people and the role of religious communities in ensuring mutual understanding and tolerance between religious confessions, Parliament adopted a Declaration in which it re-stated its support for the autocephaly and unity of the Macedonian Orthodox Church. The Church was encouraged to maintain its unity and recognition of its name and autocephaly by other Orthodox churches. The Declaration further stated Parliament’s commitment to maintaining freedom of religion and encouraging mutual respect among all citizens, irrespective of their religious, national or any other affiliation.
5. Rules of the Constitutional Court
52. Section 51 of the Rules of the Constitutional Court provides as follows:
“Any citizen who considers that his or her right or freedom set out in Article 110 § 3 of the Constitution has been violated by a binding individual decision or an action shall have the right to make an application to the Constitutional Court within two months of the day he or she was served with the binding decision or the day he or she became aware of the action, but no longer than five years after the action.”
53. Section 56 of the Rules provides as follows:
“If the Constitutional Court finds a violation of freedoms or rights, it can quash the individual decision or ban the action which led to the violation, or (if it finds no violation) it can dismiss the application.”
B. Relevant practice of the Constitutional Court
54. On 24 December 1998 the Constitutional Court declared unconstitutional several provisions of the 1997 Act, including sections 13 and 14 of the 1997 Act. According to section 13, a religious group was to be registered by the Commission. Section 14 provided that religious communities and groups obtained legal-entity status following registration. The court held that those provisions violated freedom of religion and were in conflict with the principle of separation between the State and religion (U.br.223/97).
55. By a decision of 9 September 2009 the Constitutional Court rejected a constitutional appeal in which an individual complained of a violation of freedom of thought and the prohibition of discrimination on religious grounds, owing to a refusal by the registration court to register a religious community with which she had been associated. The court established that the complainant did not seek protection of her rights and freedoms, but that she had complained on behalf of a group of people associated with the religious community. It further held that the complainant “only formally ... sought protection of freedoms and rights without submitting any arguments, evidence or facts ...”. Lastly, the court stated that the complainant had requested that it assessed the application of the law by the registration court in the proceedings for registration of the religious community, which, according to the Constitutional Court, was beyond its jurisdiction (U.br.182/09).
56. By a decision of 20 November 2012 (U.br.24/12), i.e. after the decision in the present case, the Constitutional Court, relying on Article 9, 16 and 19 of the Constitution, dismissed (одбива) a constitutional appeal in which a religious community (not yet set up, во основање) and several physical persons complained of discrimination on religious grounds. The appeal concerned a refusal by the registration court to register the religious community because, inter alia, the intended name included a term used by an already registered religious community and had doctrinal sources which were identical with those of that community. The court found that the refusal was in compliance with the 2007 Act, since the name and doctrinal sources of a religious community were distinctive elements of a religious entity through which “it is identified and recognised by the public”. It further stated:
“This concerns in particular smaller religious entities, namely [entities] that ... manifest their distinctiveness through these two elements. Hence, equating the complainant (the religious community) with another already registered religious entity can mislead the public, namely 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 a group has the right to be distinct and to be recognised in public by its identity. The absence of such (distinctiveness) or the competition leads to confusion and misunderstanding by the public. (Such is the case) if there are more parallel entities which are in competition, indefinite parallelism and division.
The aim of the statutory requirement that the name and official insignia of religious entities, including doctrinal sources, not 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.”
57. The Government further submitted copies of more than ten decisions in which the Constitutional Court had dismissed on the merits constitutional appeals in which physical persons had complained of violation of their freedom of thought and public expression of thought and the principle of non-discrimination.
58. By a decision of 13 June 2012 the Constitutional Court rejected a constitutional appeal by a single-member limited liability company. Relying on section 51 of the Rules of the court (see paragraph 52 above), the court found that such an appeal could be lodged only by “a physical person, namely a citizen” (U.br.61/12).
III. RELEVANT INTERNATIONAL MATERIALS
Opinion on the Draft Law on the legal status of churches, religious communities and religious groups, European Commission for Democracy Through Law (Venice Commission) Opinion No. 424/2007, 22 March 2007
59. The relevant parts of the Opinion which concerned the draft Act 2007 read as follows:
“58. The Venice Commission considers that it is not clear whether this wording (referring to section 9 (3) of the Act 2007, see above) 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 a serious 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 ...
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.”
I. ALLEGED VIOLATIONS OF THE CONVENTION
60. The applicant complained that the refusal of the respondent State to register it had been in violation of its rights under Articles 9 and 11 of the Convention. It further alleged that the refusal had also been in violation of Article 14 and Article 1 of Protocol No. 12 to the Convention, in that its members had been put in a disadvantageous position in relation to members of registered religious groups, which could protect individual and collective rights of their members. The relevant Articles 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 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.”
“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.”
A. Scope of the case
61. The Court, being the master of the characterisation to be given in law to the facts of the case (see Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013 and Moretti and Benedetti v. Italy, no. 16318/07, § 27, 27 April 2010), considers that the applicant’s complaints should be analysed from the standpoint of Article 11 of the Convention read in the light of Article 9 (see Emin and Others v. Greece, no. 34144/05, § 18, 27 March 2008). This is because the central issue is the non-recognition by the respondent State of the applicant as a religious (legal) entity and its inability accordingly to act collectively in the religious sphere (see Moscow Branch of the Salvation Army v. Russia, no. 72881/01, §§ 74 and 75, ECHR 2006-XI, and Church of Scientology Moscow v. Russia, no. 18147/02, § 64, 5 April 2007).
The Government’s preliminary objection on exhaustion of domestic remedies
(a) The parties’ submissions
62. The Government, which confirmed that the same applicant association had applied for registration in both proceedings, submitted that the constitutional appeal specified in Article 110 § 3 of the Constitution had been an effective remedy regarding the rights and freedoms invoked by the applicant in the present case. In support of their arguments they referred to the relevant jurisprudence of the Constitutional Court (see paragraphs 56 and 57 above) and provided statistical information regarding cases submitted to the Constitutional Court under Article 110 § 3 of the Constitution. Between 1992 and 2012, of 214 constitutional appeals lodged with the Constitutional Court thirty-five were decided on the merits (in only one case, in 2010, the court found a violation of freedom of political activity) and 164 were rejected on formal grounds. Whether the court would decide a constitutional appeal on the merits depended on “(its) quality and the facts and evidence submitted in support”. They maintained that the application, in part concerning the refusal of the national authorities to register the applicant under the name “Orthodox Ohrid Archdiocese”, was to be declared inadmissible, because the constitutional appeal filed by Bishop D. on 15 July 2007 had been rejected as belated, having been lodged outside the two-month time-limit specified in the Rules of the Constitutional Court. It could not therefore be said that that court had declined jurisdiction to decide the alleged violations complained of.
63. The applicant association disagreed that the constitutional appeal was available, and was an effective remedy for its complaints. As to the availability of this remedy, it argued that according to the applicable legislation (see paragraphs 46 and 52 above), and the jurisprudence of the Constitutional Court (see paragraphs 57 and 58 above), it was only physical persons who had the requisite standing to bring a constitutional appeal. A decision whereby the Constitutional Court recognised the standing of a similar association (see paragraph 55 above) was irrelevant since the court had examined that case in abstracto. Furthermore, the grounds on which the Constitutional Court had rejected the appeals lodged by Bishop D., a member of the applicant association, clearly demonstrated that it declined jurisdiction to decide issues complained of. Lastly, the Constitutional Court protected members of associations of a political nature, unlike the applicant association.
64. In submitting that the constitutional appeal was not effective the applicant association referred to the statistical data provided by the Government (see paragraph 62 above) and the reasons given by the Constitutional Court for rejecting the appeals of (Bishop) D. and in other similar cases. In its view, this demonstrated that it had never embarked on a thorough review of the specific circumstances of a particular case, but rather that it had accepted the grounds provided by the lower courts.
65. In any event, given the constitutional appeals of (Bishop) D. and the reasons provided by the Constitutional Court in those proceedings, the applicant was to be considered as having exhausted all remedies.
(b) The Court’s assessment
66. 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). In particular, “the obligation to exhaust” requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (see, ibid., §§ 71 and 72).
67. Turning to the present case, it notes that the Constitutional Court’s jurisdiction in protecting human rights and freedoms is regulated by Article 110 § 3 of the Constitution and further specified in the Rules of the Constitutional Court (see paragraphs 46, 52 and 53 above). Article 110 § 3 of the Constitution provides for an exhaustive list of rights and freedoms on which the Constitutional Court is competent to decide. On that list, and relevant to the present case, are the freedoms of belief, conscience, thought and public expression of thought, as well as the prohibition of discrimination on the grounds of religion. Articles 9, 16 and 19 of the Constitution concerned these rights, and were relied upon by the Constitutional Court in the relevant decisions (see paragraphs 20 and 36 above).
68. In several previous cases against the respondent State, the Court accepted that the constitutional appeal was to be regarded an effective remedy with respect to these rights and freedoms (see Kosteski v. the former Yugoslav Republic of Macedonia, no. 55170/00, 13 April 2006; Šijakova and others v. the former Yugoslav Republic of Macedonia (dec.), no. 67914/01, 6 March 2003; and, in the context of Article 10 of the Convention, Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001, and Vraniškovski v. the former Yugoslav Republic of Macedonia (dec.), no. 37973/05, 26 May 2009).
69. However, the present case is to be distinguished from the above cases for the following reasons. First, the applicant is a non-registered religious association, unlike the above cases, which were submitted by physical persons. Secondly, besides freedom of religion and non-discrimination it also concerns an alleged violation of freedom of association under Article 11 of the Convention, which safeguards associative life against unjustified State interference (see Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 81, ECHR 2009).
70. The Court notes that, as argued by the applicant, the Constitutional Court was competent, by virtue of Article 110 § 3 of the Constitution, to protect the rights and freedoms enumerated in that Article in respect “of individuals and citizens”. The Rules of that court further specified that “any citizen” could seek protection from the Constitutional Court of the rights and freedoms set out in that Article. The relevant jurisprudence of the Constitutional Court demonstrates clearly that it had full jurisdiction to decide constitutional appeals submitted by physical persons (see paragraph 57 above). However, the domestic practice was somewhat uncertain when it comes to a constitutional appeal of an association or organisation through which individual members act collectively in a field of mutual interest. From the available material, it appears that the Constitutional Court initially declined jurisdiction to decide such appeals (see paragraphs 20, 36 and 55 above). This practice prevailed in 2009-2010 i.e. at the time when D.N., a founding member of the applicant association, lodged constitutional appeals which had relevance for the present case. It was only later, and only in one case, that the Constitutional Court accepted jurisdiction and decided on the merits an appeal submitted by a religious community which was not recognised, as in the present case, as having legal-entity status (see paragraph 56 above).
71. The Court further notes that Article 110 § 3 of the Constitution explicitly included freedom of association, in its political dimension only, on the list of rights and freedoms on which the Constitutional Court was competent to decide. The Court was not presented with any argument or an example of domestic jurisprudence that any other aspect of freedom of association, including the religious aspect, fell within the jurisdiction of the Constitutional Court (see, mutatis mutandis, Association of citizens Radko and Paunkovski v. the former Yugoslav Republic of Macedonia (dec.), no. 74651/01, 8 July 2008, in which the Court did not take a definitive stance whether Article 110 § 3 of the Constitution provided sufficient legal grounds for lodging a constitutional appeal regarding freedom of association). Indeed, Article 20 of the Constitution, which concerns freedom of association, was neither relied on by the complainants nor was it quoted by the Constitutional Court in any of the relevant decisions referred to by the parties (see paragraphs 20, 36, 55 and 56 above).
72. The Court, however, does not consider it necessary to decide whether the applicant would have had standing to lodge a constitutional appeal in respect of the grievances complained of, including freedom of association. It is so since the Government’s objection did not concern these aspects of the remedy, but rather that the first appeal by D.N., the founding member of the applicant association (see paragraph 62 above), had not been submitted in good time. In the absence of an explicit objection by the Government, the Court accepts that the constitutional appeals submitted by D.N. applied likewise to the applicant association, and concerned all grievances that it raised before the Court, including the alleged violation of the freedom of association.
73. The Court notes that D.N. was a founding member of the applicant association (see paragraphs 25 and 27 above). He challenged before the Constitutional Court both the decisions of the competent authorities refusing to recognise the applicant as a religious entity (see paragraphs 19 and 35 above). In the constitutional appeals he raised the grievances of which the applicant complained before the Court. The Constitutional Court rejected both appeals and provided extended reasons for its decisions. In its decision of 9 September 2009 the Constitutional Court explicitly stated that “it had no jurisdiction” to examine D.N.’s complaints regarding the authorities’ refusal to recognise the applicant association as a religious entity under the name “Orthodox Ohrid Archdiocese” (see paragraph 20 above). D.N.’s second constitutional appeal regarding the non-registration of the applicant association as “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” was rejected since “the refusal (to register the applicant) was due to non-compliance with the statutory requirements ...”. It concluded accordingly that “... (it) cannot rule on the request for the protection of human rights and freedoms in relation to specific final decisions of competent bodies” (see paragraph 36 above). In such circumstances, the fact that D.N.’s appeal of 15 July 2007 was belated is of no relevance.
74. In view of the foregoing, the Court considers that the applicant association did everything that could reasonably be expected of it to exhaust domestic remedies.
75. The Court notes that the Government did not raise any other objection regarding the admissibility of the application. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.
1. Existence of an interference, whether it was “prescribed by law”, and whether it pursued a legitimate aim
(a) The parties’ submissions
76. The Government accepted that the refusal of the authorities to register the applicant association amounted to an interference with its rights under this head. In doing so they relied on the 1997 and 2007 Acts, as applicable at the material time, and stated also that the refusal had pursued a legitimate aim, namely that of the protection of the rights and freedoms of others.
77. The applicant association did not submit any substantive arguments to the contrary.
(b) The Court’s assessment
78. It has been the Court’s settled case-law that a refusal by the domestic authorities to grant legal-entity status to an association, religious or otherwise, of individuals amounts to an interference with the exercise of the right to freedom of association (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 52, ECHR 2004-I, and Sidiropoulos and Others v. Greece, 10 July 1998, § 31, Reports of Judgments and Decisions 1998-IV). Such a refusal directly affects both the group itself and also its presidents, founders or individual members (see The United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, § 53, 19 January 2006; Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, no. 46626/99, § 27, 3 February 2005; and APEH Üldözötteinek Szövetsége and Others v. Hungary (dec.), no. 32367/96, 31 August 1999). Where the organisation of a religious community is in issue, as in the present case, a refusal to recognise it as a legal entity has also been found to constitute interference with the right to freedom of religion under Article 9 of the Convention, as exercised by both the community itself and its individual members (see Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, §§ 79 and 80, 31 July 2008, and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 105, ECHR 2001-XII).
79. The Court notes that the competent authorities of the respondent State refused to recognise the applicant association as a religious entity on two occasions.
80. The first refusal was based on the 1997 Act. Whereas that Act did not confer legal-entity status on religious organisations (given the decision of the Constitutional Court of 24 December 1998 (see paragraph 54 above), it nevertheless provided for a registration procedure in which prospective religious entities were required to apply to the Commission in order to obtain formal recognition.
81. The second refusal of the national authorities to register the applicant association was based on the 2007 Act. The result of the refusal was to prevent the applicant association from obtaining legal personality. The inability of the applicant association to obtain legal recognition and legal-entity status deprived it of the opportunity to enjoy effectively the panoply of rights reserved for recognised religious organisations (see paragraphs 48 and 50 above, Kimlya and Others, cited above, §§ 85 and 86).
82. Accordingly, the Court finds no grounds to disagree with the Government 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.
83. Furthermore, and in the absence of any substantive counterarguments from the applicant, the Court accepts that the interference in question was “prescribed by law”, as interpreted and applied by the national authorities, and that it pursued a “legitimate aim”, namely that of the protection of the rights and freedoms of others.
2. “Necessary in a democratic society”
(a) The parties’ submissions
(i) The applicant
84. The applicant submitted that the interference complained of should be seen in the context of all the events that preceded and followed its creation, including the negative public campaign, the statements of public officials, and the alleged persecution of Mr Vraniškovski, which revealed an agenda by the respondent State aimed at preventing it from exercising its religious rights. The applicant association rejected as unsubstantiated the alleged formal shortcomings to which the national authorities had referred in their decisions. It argued that they were trivial and could easily have been rectified had the association been given the opportunity to do so. However, the entire process had been deliberately abused by the State authorities in order to prevent the applicant association from obtaining registration. The arguments given by the authorities in this respect had been excessively formalistic and had clearly demonstrated their biased attitude towards the applicant association. The Government’s arguments that the name “Orthodox Ohrid Archdiocese” belonged to the MOC by association (see paragraph 90 below) demonstrated such an attitude, which was contrary to the principle of neutrality and impartiality with respect to different religions.
85. The argument that the applicant association had been founded by a foreign church was raised by the respondent Government in their submissions for the first time. It had not been an element considered during the registration proceedings. In any event, such an allegation was unsubstantiated, given the fact that all the founders of the applicant association were Macedonian nationals. Furthermore, the 1997 Act did not render illicit a religious community being founded by a foreign church.
86. According to the applicant association, the crucial argument on which the national authorities relied in their decisions was that it recognised the authority of the SOC, that it would operate in the territory of the respondent State, and would thus challenge the religious jurisdiction of the MOC. Behind that argument was the doctrine that no other Orthodox church 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.
87. The applicant association further submitted that no proof had ever been presented that it had violated, threatened, or planned to violate the rights and freedoms of others, namely the MOC and its adherents. The Government had not alleged that the applicant association had engaged or intended to engage in any unlawful activities or had pursued any illegal aims.
88. In conclusion, the authorities neither relied in their decisions on an acceptable assessment of the relevant facts nor did they provide “relevant and sufficient” reasons for their decisions. The Government had not relied on any “pressing social need” which the impugned interference served. Accordingly, the interference with the applicant association’s rights to freedom of association and religion was not “necessary in a democratic society”.
(ii) The Government
89. The Government submitted that the interference complained of had been proportionate to the aim sought to be achieved and that the reasons adduced by the authorities had been relevant and sufficient.
90. In this connection they reaffirmed the reasons given by the relevant authorities, in particular those stated in paragraph 13 (b), (c) and (f) above, and denied that the proceedings which had been pending at the time before the Industrial Property Bureau (see paragraph 13(e) above) had played any role in the decision not to register the applicant association. The relevant authorities had refused to register the applicant association under the name “Orthodox Ohrid Archdiocese” since “although (that name) did not at that time form part of the name of (the MOC), it represented an inextricable part of the genesis and current existence of (the MOC)”, and continued that by such behaviour “... one can recognise the applicant association’s intention to take over the position of the (MOC) ... (and) its historical identity.” The Government also maintained that the applicant association had been set up by a foreign church. In support of this, they reiterated the sequence of events described in paragraph 8 above.
91. As regards the second registration proceedings, the Government submitted that the registration court had been correct to conclude that the Holy Synod of the applicant association, as specified in its Charter (see paragraph 28 above), could not be regarded as a constituent assembly (see paragraph 31 (a) above); that the wording used in the founding decision (see paragraph 26 above) did not suggest that the applicant association would be a voluntary and non-profit association (see paragraph 31 (b) above); and that the applicant association should have specified whether it intended to operate as a church, religious community, or religious group. They further maintained that the terms “Greek” and “Peć Patriarchy” implied that there was some relationship with Greece and Serbia, although the applicant association had not submitted any evidence in this respect before the registration authorities. Similarly, there was no evidence that the applicant association had been allowed to operate within the Peć Patriarchy or that it represented, as claimed in the appeal against the decision of the registration court (see paragraph 33 above), religious believers of Greek and Serbian ethnic origin in the respondent State. The fact that the minutes of the constituent assembly had referred to the “Holy Synod of the Orthodox Ohrid Archdiocese” without any mention being made of the terms “Greek” and “Peć Patriarchy”, had led the registration court to conclude that the intended name of the applicant association was the same as the name of the Macedonian Orthodox Church-Ohrid Archdiocese. They also reaffirmed the findings of the registration court set out in paragraph 31(d) and (e). In such circumstances, the Constitutional Court had established correctly that the applicant association had not complied with the formal requirements for registration (see paragraph 36 above).
92. Lastly, they submitted that the dominant part of the population in the respondent State was Christian and associated with the MOC. The latter enjoyed a high reputation and was very popular among its adherents. The applicant association’s adherents considered the MOC “illegitimate and schismatic” and represented themselves as “the true Macedonian Orthodox Church, namely the only lawful Orthodox church.” By doing so, it had explicitly offended the followers of the MOC and manipulated the religious feelings of all, including their own adherents.
(b) The Court’s assessment
(i) General principles deriving from the Court’s case-law
93. The Court refers to its settled case-law to the effect that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention (see Moscow Branch of the Salvation Army v. Russia, cited above, § 57, and Metropolitan Church of Bessarabia and Others, cited above, § 114). Since religious communities traditionally exist in the form of organised structures, the right of believers to freedom of religion, which includes the right to practise one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000-XI).
94. In the context of Article 11 of the Convention, the way in which national legislation enshrines freedom of association and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association’s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions (see Moscow Branch of the Salvation Army v. Russia, cited above, § 59, and Sidiropoulos and Others, cited above, § 40).
95. States enjoy a wide margin of appreciation in the particularly delicate area of their relations with religious communities (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII). While it may be necessary for the State to take action to reconcile the interests of the various religions and religious groups that coexist in a democratic society, the State has a duty to remain neutral and impartial in exercising its regulatory power and in its relations with the various religions, denominations and groups within them. What is at stake here is the preservation of pluralism and the proper functioning of democracy, one of the principal characteristics of which is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome (see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, nos. 412/03 and 35677/04, § 119, 22 January 2009). The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 109, ECHR 2016). It is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may work together and pursue common objectives collectively (see Gorzelik and Others, cited above, § 92).
96. The State’s power to protect its institutions and citizens from associations that might jeopardise them must be used sparingly, as the exceptions to the rule of freedom of association are to be construed strictly, and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a “pressing social need”; thus, the notion of “necessary” does not have the flexibility of such expressions as “useful” or “desirable” (see Gorzelik and Others, cited above, §§ 94-95, with further references).
(ii) Application of these principles to the present case
97. The Court must now, in the light of the principles set out above, scrutinise the particular grounds relied on by the domestic authorities to justify the interference. In so doing, its task is not to substitute its own view for that of the relevant national authorities, but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued”, and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 108, 10 June 2010).
(iii) Alleged formal deficiencies
98. The Court notes that the domestic authorities in their decisions and the Government in their pleadings referred to several formal deficiencies in justification of the refusal to register the applicant association.
99. As regards the first registration proceedings, the authorities found that the application for registration had been submitted by an unauthorised person outside the statutory time-limit and that the property-related provisions of the applicant’s Charter had been contrary to the 1997 Act. They held that the application had been submitted by Bishop D., notwithstanding the fact that it had been signed by Mr Vraniškovski, the latter being authorised to do so under the founding decision (see paragraph 10 above). The Commission apparently took as decisive the fact that Bishop D. had handed the application over to the Commission’s archives (see paragraph 15(a) above).
100. In respect of non-compliance with the statutory time-limit, it is to be noted that notwithstanding that section 11(1) of the 1997 Act provided that the relevant time-limit was to be calculated from the date of the adoption of the founding decision, notably 1 September 2004 in the present case, the Commission took as the starting date for the calculation of the thirty-day time-limit the day when the applicant’s Holy Synod had been set up (see paragraphs 10, 13(b) and 47 above). Moreover, on the basis of evidence before it, it is not clear to the Court how the property-related provisions of the Charter (see paragraph 11 above) were contrary to sections 9 and 16 of the 1997 Act (see paragraphs 13(e) and 18 above). In any event, the Court notes that no mention of this latter issue was made in the letter of 30 September 2004 in which the Commission asked the applicant to complete the application.
101. After the 2007 Act had entered into force, the applicant association submitted a new request for registration before the registration court, as the competent body. The registration court dismissed the application, citing several formal deficiencies, namely that it had been set up by its own Holy Synod and not by the founding members gathered at a constituent assembly; that it had not specified whether it would operate as a church, community or a group (forms specified by the 2007 Act); that it had not described the association as a voluntary association of physical persons; that the founding decision had specified only the “temporary seat” of the applicant association, and that Bishop D., who had submitted the application, had been authorised only to act on behalf of the applicant association, but not to represent it (see paragraph 31 (a), (b), (d) and (e) above).
102. In the Court’s view, the above holdings of the national courts were focused on purely formalistic aspects, not on the substance of the application and, moreover, did not make clear what their exact import was for allowing the applicant’s registration. It must be noted that the 2007 Act defined a religious entity, organised in any of the allowed forms (a church, religious community or group), as a “voluntary association of physical persons” (section 2, see paragraph 48 above). On the facts of the case, it is clear that the founding members of the applicant (three physical persons), who were also members of its Holy Synod, the highest managerial body (section 6 of the Charter, see paragraph 27 above), gathered at the constituent assembly on 27 April 2009 in order to adopt relevant documents for the applicant association’s registration. At that meeting, they adopted the founding decision, which specified that the applicant association was “a voluntary association ... of Christians” (see paragraph 26 above). The registration court found such a practice to be contrary to the 2007 Act, notwithstanding that similar circumstances regarding the adoption of the founding decision of 1 September 2004 had not led the Commission in the first registration proceedings to refuse to register the applicant association (see paragraph 11 above). Furthermore, the 2007 Act did not require that the name of a religious entity seeking registration should indicate the specific form of its organisation.
103. The Court considers it important to note that in the registration procedure the applicant association expressed a preference to be registered as a church, but would accept registration as a religious community or group as the registration authorities saw fit (see paragraphs 26 and 29 above). Further, the Court cannot discern how the term “Archdiocese” included in the applicant association’s intended name placed the organisational form of the applicant association in conflict with the law. Lastly, it must be noted that the 2007 Act (section 1(2)) specified that religious entities, irrespective of their form of organisation, were equal before the law. To this extent, it also provided a single definition for all of them (see section 2 (1) of the 2007 Act, paragraph 49 above).
104. Similar considerations apply to the courts’ findings regarding the “temporary seat” of the applicant association and the person authorised to represent it. Section 13(1) of the 2007 Act required that a religious entity should specify “the seat and address ... in the respondent State”, which the applicant association did in the registration documents (see paragraph 27 above). This provision did not proscribe a religious entity to have a temporary seat. The court’s finding was inconsistent with the practice applied in the first registration proceedings by the Commission which did not point to the applicant association’s “temporary seat” as a formal deficiency precluding its registration (see paragraph 11 above). The registration court further did not explain how the lack of a separate decision on a person authorised to represent the applicant association made its registration impossible. It is to be noted that the application for registration was submitted by Bishop D., who was authorised to do so under the founding decision (see paragraph 27 above).
105. In view of the above, the Court is not satisfied that the reasons adduced regarding the formal deficiencies for registration were “relevant and sufficient”.
(iv) The applicant’s “foreign origin” and its intended name
106. In the first registration proceedings, the Commission held that the applicant association would operate as an autonomous religious entity in canonical union with a foreign church, namely the Peć Patriarchy (the SOC). It further implied that it had been set up by a foreign church or State (see paragraph 13(c) above), which made it ineligible for registration under section 12 of the 1997 Act. The Government in their pleadings also submitted that the applicant association had been set up by a foreign church (see paragraph 90 above). Similarly, in the second registration proceedings, the registration court held that the applicant association would operate within the canonical jurisdiction of the Peć Patriarchy (see paragraph 31 (c) above). As to the meaning of “the Peć Patriarchy” the registration court sought, of its own motion, advice from the MOC, which the applicant association had not been able to challenge during the proceedings (see, mutatis mutandis, Sidiropoulos and others, cited above, §§ 44 and 45). The Government added that the terms “Greek” and “Peć Patriarchy” included in the applicant association’s name suggested some connection of the applicant association with Greece and Serbia (see paragraph 91 above) (see, mutatis mutandis, Emin and Others v. Greece, no. 34144/05, § 8, 27 March 2008 and Bekir-Ousta and Others v. Greece, no. 35151/05, § 8, 11 October 2007, as to the origin of the founders of the associations).
107. The Court observes that it has not been presented with any evidence in support of the assertion that the applicant association had been set up by a foreign church or State. Despite the fact that Mr Vraniškovski, the applicant’s leader, was appointed exarch of the eparchy of the Ohrid Archdiocese by the SOC (see paragraph 9 above), the founders of the applicant, in both registration proceedings, were nationals of the respondent State. In any event, it does not appear that the relevant legislation precluded registration of a religious organisation founded by a foreign church or State. No provision of the 1997 and 2007 Acts contained such a prohibition.
108. Furthermore, the Court notes that in both proceedings the applicant specified in its Charter that it would operate as an autonomous religious entity under the canonical jurisdiction of the Peć Patriarchy, notably the SOC (see paragraphs 11 and 28 above). The applicant did not deny that it would be subordinate to the Peć Patriarchy (the SOC) (see paragraphs 15(e), 33 and 90 above). In any event, the Court observes that neither the 1997 Act nor the 2007 Act precluded registration of a religious organisation which would be subordinate to a canonical body located abroad (see, mutatis mutandis, Moscow Branch of the Salvation Army, cited above, § 83).
109. As to the applicant’s intended name, the Court observes that initially it sought registration as “Orthodox Ohrid Archdiocese”; at the time, section 13(1) of the 1997 Act provided that religious entities’ names should “be substantially different” from the names of already registered religious organisations (se paragraph 47 above); and the Commission’s refusal was based on that provision notwithstanding the fact that at the time “Ohrid Archdiocese” was not part of the official name of the MOC, as registered in the official records (see paragraph 24 above). This was also confirmed by the Government (see paragraph 90 above).
110. After the 2007 Act entered into force, the applicant submitted a fresh application for registration, now under the name “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” (see paragraph 29 above). Section 10(1) of that Act provided that a religious organisation’s name should “be different” from the name of any other registered religious organisation (see paragraph 48 above). The registration court held that the intended name of the applicant was partly identical with the name of the “Macedonian Orthodox Church-Ohrid Archdiocese” (see paragraph 31(c) above).
111. It is true that under the domestic law the relevant authorities were required to examine the application in the light of the statutory requirement precluding registration of a religious entity whose name did not (substantially) differ from the name of an already registered organisation. In the context of the freedom of association this is a relevant element since the name is among the most important elements identifying an association, be it religious or otherwise, and distinguishes it from other such organisations. In this respect, the Court accepts the approach underlying the Constitutional Court’s decision of 20 November 2012 (see U.br. 24/2012, paragraph 56 above) that identical names or names that are substantially the same can create confusion and misperception in the public. Indeed, as stated in that decision there may be a risk that “the absence of such (distinctiveness of a religious entity) or the competition leads to confusion and misunderstanding by the public ...” and “the aim of the statutory requirement that the name ... (is) not identical ... is to prevent confusion among believers, incorrect perceptions, and lawful indefinite division of same-faith believers ...” However, in the present case the name chosen for the applicant was sufficiently specific as to distinguish it from the Macedonian Orthodox Church-Ohrid Archdiocese (see point 74 of the Opinion of the Venice Commission, paragraph 59 above). Furthermore, there is nothing to suggest that the applicant association intended to identify itself with the MOC. On the contrary, during the impugned proceedings it had continuously and expressly refused to be confused or associated with the MOC (see paragraphs 15(c), 26 and 33 above). Lastly, it appears that the public had been sufficiently informed about the applicant association, its leadership and the positions they represented, and that these were perceived as conflicting with those of the MOC (see paragraphs 7 and 8 above).
112. Another aspect that the domestic authorities raised was the use of “Ohrid Archdiocese” in the applicant association’s intended name. The Commission held that the MOC had been using that name “constitutionally, historically, actually and continuously” (уставно, историски, актуелно и во континуитет) for over eight centuries. It also found that the Preamble to the Constitution of the MOC specified that MOC was the canonical successor to the Ohrid Archdiocese and referred to the events of 1967 (see paragraphs 5 and 13(d)). In addition to these reasons, in the second registration proceedings the registration court added that only the MOC had the “historical, religious, moral and substantive right” to use that name (see paragraph 31(c)). Following that line of reasoning, the Government maintained that the name “Ohrid Archdiocese” represented “an inextricable part of the genesis and current existence of the MOC” (see paragraph 90 above).
113. However, despite the MOC’s efforts to identify itself as the historical heir of the Ohrid Archdiocese, in its original form (the uncontested events between 1943 and 1967, the declaration contained in the Preamble to the Constitution of the MOC and the official title of the Head of the Holy Synod of the MOC (see paragraphs 5 and 13 (d) above)) as well as the apparent sensitivity of Macedonian society to issues related to the MOC (see paragraphs 7 and 8 above) and the fact that the dominant part of the population in the respondent State were associated with that church (see paragraph 82 above), there was no suggestion in the Commission’s decision that the use of the name “Ohrid Archdiocese” by the applicant association would violate the rights and freedoms, in particular the religious ones, of others. The registration court also did not explain the particular mischief of the use of “Ohrid Archdiocese” by the applicant association for “the freedom of religion ... of all physical persons which they manifest through already registered religious communities” (see paragraph 32 above).
114. Furthermore, the registration court did not ask the applicant association to reconsider the use of the reference “Ohrid Archdiocese” in its name. The Government did not provide any explanation for this failure on the part of the domestic authorities. Given the particular circumstances of the case (see paragraph 113 above) and in particular the applicant’s express readiness to engage with the authorities over its name, including an explicit invitation for a change of name to be specified as a condition of registration, and make changes in order to be registered (see paragraphs 33 and 35 above), a request by the authorities that the applicant association reconsider the use of the reference to “Ohrid Archidiocese” in its name does not appear unreasonable.
115. Lastly, the relevant authorities concluded that the applicant association had in reality intended to become a parallel religious entity to the MOC, which had canonical jurisdiction in the territory of the respondent State (see paragraphs 13 and 18 above). Similarly, the Government argued that the applicant association’s intention had been “to take over the position of the (MOC) (and) its historical identity” (see paragraph 90 above). If registered, the applicant association would have operated in the respondent State as an autonomous part of the SOC, the latter having no canonical or any other jurisdiction over the MOC or in the territory of the respondent State (see paragraph 30(c) above). It would also violate the legitimate legal status of other voluntary associations of persons recorded in the court register ... their management bodies, hierarchy, competencies, titles, religious activities ...” (see paragraph 32 above).
116. The Court observes that the Constitution of the respondent State enshrines the separation between Church and State. Notwithstanding that it lists several religious entities by their names, including the Macedonian Orthodox Church, it nevertheless provides that all religious organisations are equal before the law (see paragraph 44 above).
117. The State’s duty of neutrality and impartiality, as defined in the Court’s case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed. In democratic societies the State does not need to take measures to ensure that religious communities remain or are brought under a unified leadership. The national authorities must display particular vigilance to ensure that national public opinion is not protected at the expense of the assertion of minority views, no matter how unpopular they may be (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 165, ECHR 2013 (extracts); İzzettin Doğan and Others, cited above, §§ 68 and 108; Metropolitan Church of Bessarabia and Others, cited above, § 117 and Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others, cited above, § 148).
118. Whereas it is apparent that the autocephaly and unity of the Macedonian Orthodox Church is a matter of utmost importance for adherents and believers of that Church, and for society in general (see paragraph 51 above), this cannot justify, in a democratic society, the use of measures which, as in the present case, went so far as to prevent the applicant comprehensively and unconditionally from even commencing any activity (see, mutatis mutandis, Macedonian House of Civilization v. Greece, no. 1295/10, § 42, 9 July 2015; Emin and Others, cited above, § 30; and Bekir-Ousta and Others, cited above, § 44, and in contrast with Gorzelik and Others, cited above, § 105).
119. The Court’s case-law in this respect is clear: the role of the authorities in a situation of conflict between or within religious groups is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX).
120. Furthermore, it reiterates that there can be no justification for measures of a preventive nature to suppress freedom of assembly and expression, other than in cases of incitement to violence or rejection of democratic principles - however shocking and unacceptable certain views or words used may appear to the authorities, and however illegitimate the demands made may be (see Association of Citizens Radko and Paunkovski v. the former Yugoslav Republic of Macedonia, no. 74651/01, § 76, ECHR 2009 (extracts). The Court notes that at no stage in the registration proceedings and in the proceedings before it was it alleged that the applicant association advocated the use of violence or any anti-democratic means in pursuing its aims (see Tourkiki Enosi Xanthis and Others v. Greece, no. 26698/05, § 56, 27 March 2008).
121. In view of the foregoing, it cannot be said that the reasons provided by the national authorities, taken as a whole, were “relevant and sufficient” to justify the interference in this case. It further considers that the manner in which the domestic authorities refused the recognition of the applicant association as a religious organisation 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.
3. Alleged discrimination against the applicant association
122. The applicant association complained that the refusal of the national authorities to register it had also been in violation of Article 14 and Article 1 of Protocol No. 12 to the Convention.
123. Having regard to the facts of the case, the submissions of the parties and its above findings under paragraph 120, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
124. 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.”
125. Without specifying any amount, the applicant association claimed pecuniary damage sustained as a result of the refusal of the authorities to register it over an extended period of time. It also claimed 20,000 euros (EUR) in respect of non-pecuniary damage for distress, anxiety and injustice suffered as a result of that refusal. In this connection it also referred to the suffering of Mr Vraniškovski and other members of the association, which was due to the criminal proceedings conducted against them and the sentences imposed, as well as the inability to carry out religious rituals.
126. The Government contested these claims as unsubstantiated and excessive. They further argued that there was no causal link between any pecuniary damage and the alleged violations complained of.
127. The Court notes that the applicant association neither specified any amount with respect to the pecuniary damage claimed nor did it submit any evidence in support of that claim. It further does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicant association has suffered non-pecuniary damage as a consequence of the violation found. Deciding on an equitable basis, the Court awards the applicant EUR 4,500 euros, plus any tax that may be chargeable, in respect of non-pecuniary damage.
B. Costs and expenses
128. The applicant association also claimed reimbursement of the costs and expenses incurred before the domestic authorities. It did not, however, specify their amount or provide any supporting documents. It further claimed EUR 6,330 for costs and expenses incurred before the Court. This figure refers to legal fees for 200 hours of legal work and expenses related to printing and copying of 2,000 pages, as well as postal expenses. Under a retainer, the applicant association agreed that the claims under this head were to be paid directly to its representative.
129. The Government contested these claims as unsubstantiated, excessive and not actually incurred.
130. According to the Court’s case-law, an applicant 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 rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 5,000 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.
C. Default interest
131. 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 of the Convention and Article 1 of Protocol No. 12 to the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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’s claim for just satisfaction.
Done in English, and notified in writing on 16 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Abel Campos Linos-Alexandre