Decision U.no.24/2012

U.no.24/2012

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 70 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 20 November 2012, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. The application of the Bektashi religious community (in foundation), Arben Sulejmani from the village of Raven, Gostivar, Abdulmutalip Bekiri from the village of Zdunje, Gostivar, and Taxhudin Idrizi from Tetovo for the protection of freedoms and rights under Article 110 line 3 of the Constitution referring to the prohibition of discrimination of citizens on grounds of religious affiliation, which they believed had been done to them with the Resolution REG.RG.br.1/11 of 27 May 2011 by the Skopje II Basic Court – Skopje and the Resolution GZ.br.3967/11 of 17 November 2011 by the Skopje Court of Appeal IS REJECTED.

2. This decision shall be published in the “Official Gazette of the Republic of Macedonia”.

3. The Bektashi religious community (in foundation), Arben Sulejmani from the village of Raven, Gostivar, Abdulmutalip Bekiri from the village of Zdunje, Gostivar, and Taxhudin Idrizi from Tetovo, filed and application with the Constitutional Court of the Republic of Macedonia, through the lawyer’s company Godzo, Kicheec and Novakovski from Ohrid, for the protection of the freedoms and rights noted in item 1 of this Decision.

According to the allegations in the application, the applicants are citizens of the Republic of Macedonia whose religious affiliation is Bektashism which they have been practicing for a longer time within their community. As a religious subject, before the entry into force of the Law on the Legal Status of a Church, Religious Community or Religious Group (“Official Gazette of the Republic of Macedonia”, no.113/2007), they had had their own organisation, their bodies, had taken part in the legal turnover equally with other persons and had been registered in the registry of religious communities and religious groups pursuant to the regulations that had been valid at that time, had been invited as a religious subject to take part in conferences and gatherings and communicated with the highest representatives of the government in Macedonia.

The application includes a chronology of the attempts for registration of the religious community before the competent courts.

During 2010, for the purposes of harmonisation with the Law on the Legal Status of a Church, Religious Community or Religious Group they requested from the Skopje II Basic Court – Skopje to recognise the continuity of the Bektashi religious community of the Republic of Macedonia, for formal-legal satisfaction of the criteria for re-registration pursuant to the new Law. However, the courts (first the basic one, and then the Skopje Court of Appeal) rejected to do that with an explanation that this religious community had not been registered previously and could not request establishment of its continuity.

For these reasons the applicants decided to submit new documents for registration of their religious community under the name of Bektashi Religious Community of the Republic of Macedonia and filed an application for registration with the competent basic court in Skopje. At the same time, they requested from the Ministry of Justice a permit to use the term Macedonia in their name. Neither was the permit given to them nor their request was answered, owing to which later in the application to the court they changed the name into Bektashi Religious Community.

The Basic Court rejected their request with reasoning that the name was the same with a term contained in the name of a religious subject registered in the Uniform Court Registry, that the sources of learning were the same as with another registered religious subject and that no proof of ownership of the seat noted in the request had been submitted.

The Court of Appeal repealed the resolution with an instruction for the first instance court not to invent new conditions beyond those defined in the Law, in particular in view of the sources of the learning and the proof for ownership of the seat.

In the repeated handling the Skopje II Basic Court – Skopje passed its Resolution REG.RG.br.1/11 of 27 May 2011 (the first challenged act in the said application) rejecting the request for registration for a reason that the name contained the word “Bektashi” which was contained in the name of the registered religious subject Ehlibejti Bektashi Religious Group of Macedonia and that the sources of learning were not different from those of an already registered subject – the Islamic Religious Community.

Upon an appeal the Skopje Court of Appeal passed its Resolution GZ.br.3967/11 of 17 November 2011 (the second disputed act with the application) rejecting the request, whereby the first instance resolution became effective. In their application the applicants indicate that the Court of Appeal in its previous resolution gave instructions that same sources of learning could not be the obstacle for registration as that imposed a condition that was not envisaged in the Law, but in the repeated decision-making it did not affirm this stance, thereby giving legitimacy to the first instance resolution in that part.

In their application the applicants call upon the provisions of the Constitution and the Rules which refer to the competence of the Constitutional Court for the protection of freedoms and rights.

In the reasoning of the application the applicants cite the relevant provisions from the Law on the Legal Status of a Church, Religious Community and Religious Group (Articles 4, 10, 12, 13 and 14) emphasising that the Law did not prescribe what material conditions for registration of religious subjects were, thereby opening a door in the interpretation of the Law to treat the formal conditions as material and to go beyond the frameworks of the Law, which had been done in the concrete case.

In their application they indicate that with the Court’s rejection to register a religious subject which in its name contains the term “Bektashi” and through the imposition of a condition which the Law does not require for registration of a religious subject – non-identical sources of teaching -, they have been discriminated against. They corroborate the same with a comparative example. Namely, from the list of registered religious subjects in the Republic of Macedonia it arose that the term “Christian” was contained in the name of 6 churches, the term “Christian” was contained in 1 religious community, and the term “Christian” was contained in the name of 2 religious groups (or 9 religious subjects out of a total of 29 registered ones use the same term in their names, or almost 30% of the registered religious subjects use the same term). Furthermore, the name of 2 churches contains the term “Evangelical”, and out of a total of 7 registered religious communities, 2 contain the term “Islamic” in their names. Hence, the applicants draw a conclusion that it was not an obstacle for certain subjects to be registered, although their names contained terms from other religious subjects, which according to them was discrimination.

In connection with the condition for non-identicalness of the sources of teaching, the application notes that it is not disputed that there are several religions prevailing in the world, which have the Bible and the Evangels, the Koran, the Jewish Torah, etc. as their fundamental sources of learning. It was not disputed either that Christians (Orthodox, Catholic, Methodist, Evangelist, etc.) used the same source of learning, which was interpreted differently or the same in its whole or in parts. The same also applied to Islam, Bektashism, which practiced the same stream in religion (Islam), used the same sources of learning which were interpreted differently or identically in their whole or in parts, which made them different from the other subject.

The very fact that the first instance court and the Skopje Court of Appeal engaged themselves in examination of the identicalness of the sources of learning and compared the same with sources of learning of another religious subject is serious divergence from the fundamental values of the prohibition of discrimination, since when they had decided on the registration of the other religious subjects (in particular those which have the same terms such as Islamic, Christian, etc.) they had not engaged themselves in such examination as in the case with the applicants. On the other hand, argumentum a contrario, since the courts had already allowed registration of the Ehlibejti Bektashi Religious Group the applicants were asking whether that meant that they had agreed with the possible identicalness of the religious learning with the Islamic Religious Community. By engaging themselves in the examination of religious learnings and the sources of religion and drawing conclusions as to whether there was equality in the performance of religious service, prayer, rite, etc. and expression of religion and the conclusion they reached and used as an argument to reject the entry into the registry, contrary to the Law, the civil courts made an inadmissible interference in these sphere, contrary to Article 1 paragraph 2 of the Law.

The application notes that being a layman in the knowledge of religion, its history and in particular the interpretation, it is not exemplary for the court to summarise in one passage the religious learnings of one religion, stream in religion or belief and thereby to draw an equation mark with another, only to justify one decision and dismiss a legal situation.

The applicants suggest that the Constitutional Court of the Republic of Macedonia initiate an urgent procedure for the protection of the freedoms and rights of the citizen, schedule a public session at which the applicants and their proxies will be summoned, take a decision establishing that the final acts Reg.Rg.br.1/22 by the Skopje II Basic Court – Skopje of 27 May 2011 and the Resolution GZ.br.3967/11 of 17 November 2011 by the Skopje Court of Appeal have been discrimination to their detriment, and annul the said acts.

4. At its session, from the insight into the evidence submitted and gathered, the Court established the following facts:

In 2010 the applicants, as a voluntary community of natural persons noted as the Bektashi Religious Community in the Republic of Macedonia, through the same proxy, filed a request with the Skopje II Basic Court – Skopje for making an entry in the single court registry of churches, religious communities and religious groups.

With its Resolution REG.RG-21/10 of 20.12.2010 the Skopje II Basic Court – Skopje rejected the request for making an entry with reasoning that the material conditions for making an entry in the registry were not met, for a reason that the name contained the word “Bektashi” which term was contained in the name of a registered religious subject, and the existing Law did not allow registration of a new religious subject with a name which had already been entered in the registry for another registered religious subject and that the sources of learning were not at all different from the sources of learning of a religious subject already registered in the uniform court registry. In the Court’s opinion noted in the Resolution, the sources of learning are an official characteristic of the church, religious community and religious group and they should be different from he sources of learning of the churches already registered. The request was rejected also due to the fact that the voluntary community of natural persons had failed to provide a proof of ownership or another legal ground on the basis of which the Court could establish that the seat Arabati Baba Teqe was their property, and hence they could not request for making an entry with a seat at the said address in which the Complex Arabati Baba Teqe was located.

Displeased with such resolution, through the same proxies the applicants lodged an appeal with the Skopje Court of Appeal, which with its Resolution GZ.br.717/11 of 14 April 2011 sustained the appeal, repealed the resolution REG.RG.21/10 of 20 December 2010 and remitted the case to the first instance court for repeated decision-making. In the reasoning of its Resolution the Court of Appeal indicated:

“There is a ground for the indication in the appeal lodged that it is not clear what the court was guided by when it accepted that the material conditions were not met for making an entry of the Bektashi Religious Community in the Uniform Court Registry of Churches, Religious Communities and Religious Groups of the voluntary community of natural persons, as the name contained the word “Bektashi” which term was contained in the name of an already registered religious subject, without thereby the court noting which that religious subject was in order to establish whether an identical religious community was concerned.

On the other hand, the court failed to provide elaborated reasons as to the legal provision from which arose a restriction of the use of same sources of learning on more than one religious communities and religious groups, taking into consideration the constitutional right to freedom of confession and the conditions under which the freedom of expression of religion or conviction, envisaged in Article 8 of the Law on the Legal Status of a Church, Religious Community or Religious Group, may be restricted.

At the same time, the court required the applicant to provide a proof for ownership of the seat of the Bektashi Religious Community, and one of the reasons for the rejection of the entry is also the lack of proof for ownership. In the application it is indicated that the court did not bear in mind that this element was not one of the requirements envisaged in the Law for making an entry of the voluntary community of natural persons in the Uniform Court Registry of Churches, Religious Communities and Religious Groups”.

The first contested act – the Resolution of the Skopje II Basic Court-Skopje REG.RG.br.1/11 of 27 May 2011 – rejected the request for making an entry in the Uniform Court Registry of Churches, Religious Communities and Religious Groups, of the voluntary community of natural persons noted in the request as a Bektashi Religious Community.

The reason for the rejection of the registration was that the court found that the material conditions for registration of the voluntary community of natural persons were not met, that is that the name contained the word “Bektashi” and the same term was contained in the name of the registered religious subject Ehlibejti Bektashi Religious Group of Macedonia which had already been registered in the Uniform Court Registry of Churches, Religious Communities and Religious Groups, and the existing Law did not allow registration of a new religious subject with a name which had already been entered in the registry for another registered religious subject.

In the reasoning of its resolution the registry court invoked Article 13 paragraph 1 line 3 of the Law on the Legal Status of a Church, Religious Community and Religious Group which stipulated that the registration of a new church, religious community and religious group required a description of the learning, which according to the court meant that two or more religious subjects might not be registered on the same religious sources. In the description of its learning the Bektashi Religious Community noted the very sources of learning of the Islamic religion underlining that those were the sources of Islamic religion and the learning of the Holy Koran, the knowledge and the practices of Prophet Mohammed and Imam Ali, Holy Ehli-Bejt and the Holy Path of Hajji Bektash Veli. The court found that the sources of learning of the voluntary community of natural persons noted in the request as Bektashi Religious Community were not at all different from the sources of learning of an already registered religious subject – the Islamic Religious Community – which had already been entered in the registry in 2008. In the opinion of the court, the sources of learning were an official characteristic of a church, religious community and religious group in the sense of Article 10 paragraph 1 of the Law and they should be different from the sources of learning of already registered churches, religious communities and religious groups. If the same were not different, that is, did not contain specific characteristics, features that made them different from the sources of learning of already registered churches, religious communities and religious groups it would mean a violation of Article 10 paragraph 1 of the Law on the Legal Status of a Church, Religious Community and Religious Group.

Acting upon the appeal, on 17 November 2011 the Skopje Court of Appeal passed its Resolution GZ.br.3967/11 rejecting the appeal for lack of merits, and confirming the Resolution REG.RG.br.1/11 of the Skopje II Basic Court – Skopje. The Court of Appeal found that the appealed resolution was clear, comprehensible and contained sufficiently clear and elaborated reasons for the decisive facts. The Court indicated that although in the concrete case there was no complete identicalness of the name of the already formed religious group and the applicant from the religious community, the first instance court had come to a proper conclusion that those were same names, for a reason that in both cases there was identicalness of the essential word “Bektashi” which was actually an essence and a synonym of the religious subject, and the registration of two religious subjects which contain in their name the essential word “Bektashi” might create a confusion among the believers in the determination of the manner of expression of their religious feelings. Furthermore, the Skopje Court of Appeal found that the rejection of the registration had not violated the constitutional right of freedom of confession since neither that had disabled nor restricted the intimate feeling of belief and freedom of confession of the applicant. However, in order to institutionalise the same in a religious community it had to be within a legal framework envisaged in the Law on the Legal Status of a Church, Religious Community or Religious Group and since in this concrete case the material conditions had not been met the first instance court had properly applied the material law in rejecting the request for making an entry.

Given the allegations for discrimination contained in the application, which indicate that in the registration procedure the court had had a different treatment in the decision-making in comparison with the other registered religious communities and religious groups, the Constitutional Court ex officio obtained from the Skopje II Basic Court-Skopje the list of registered churches, religious communities and religious groups and the Resolution REG.RG-10/20 of 10 September 2010 with which the Ehlibejti Bektashi Religious Group of Macedonia had been registered in the Uniform Court Registry of Churches, Religious Communities and Religious Groups, with a seat in Kichevo.

From the insight into the said resolution it is concluded that in the establishment whether the material conditions for registration were met the Basic Court assessed the following circumstances, that is, facts: the citizenship status of the founders, the submitted acts for the status, organisation and activity of the subject, (the statute), the name for which the Court found to be different from the name and characteristics of the already registered subjects, the insignia which the Court found to not contain domestic or foreign national insignia and symbols.

In the reasoning of the said resolution the Court did not at all dwell on the analysis and appraisal of the sources of learning and did not compare the same with the sources of the learning of the Islamic religion. The Court did that in the now challenged resolution REG.RG.br.1/11, in which the identicalness of the sources of learning with the sources of the learning of the Islamic religion was noted as one of the reasons for the rejection of the registration. In this sense we note that during the time of the registration of the Ehlibejti Bektashi Religious Group of Macedonia (2010), the Islamic Religious Community of the Republic of Macedonia existed as a registered religious subject (registered with the Resolution REG.VZ.br.1/08 of 14 November 2008).

5. Pursuant to Article 110 line 3 of the Constitution, the Constitutional Court protects the freedoms and rights of the individual and citizen relating to the freedom of conviction, conscience, thought and public expression of thought, political association and activity, as well as to the prohibition of discrimination against citizens on grounds of sex, race, religion or national, social or political affiliation.

Under Article 51 of the Rules of the Constitutional Court of the Republic of Macedonia, each citizen who believes that an individual act or action has violated a right or freedom of his defined in Article 110 line 3 of the Constitution of the Republic of Macedonia may ask for the protection from the Constitutional Court within 2 months from the date the final or effective individual act was served to him, that is from the date he learned about the taking of an action with which the violation has been committed, but no later than 5 years from the date it was taken. Under Article 52 of the Rules, the application should contain the reasons for which protection is requested, the acts or actions with which the same have been violated, the facts and evidence on which the application is based, and other data required for the decision-making of the Constitutional Court.

Article 8, paragraph 1, line 1 of the Constitution of the Republic of Macedonia, defines that the fundamental freedoms and rights of the individual and citizen recognised in international law and defined in the Constitution are among the basic values of the constitutional order of the Republic of Macedonia.

Pursuant to Article 9 of the Constitution, the citizens of the Republic of Macedonia are equal in their freedoms and rights, regardless of 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.

Article 16 paragraph 1 of the Constitution guarantees the freedom of conviction, conscience, thought, and public expression of thought.

Article 19 paragraphs 1 and 2 guarantee the freedom of religious confession and the right to express one’s faith freely and publicly, individually or with others.

Internationally, freedom of religion and the right to equality and non-discrimination are guaranteed in almost all international instruments for the protection of human freedoms and rights.

Under Article 18 of the Universal Declaration everyone has the right to freedom of thought, conscience and religion and everyone has the 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 teaching, practice, worship and observance, and under Article 29 paragraph 2 of this Declaration, in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Under Article 18 paragraph 1 of the International Covenant on Civil and Political Rights, everyone has the right to freedom of thought, conscience and religion. This right includes the freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. Under paragraph 3 of this Article of the Covenant, the freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Article 26 of the Covenant stipulates that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Under Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 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. The freedom to manifest one’s religion or beliefs may 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.

Under Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the enjoyment of the rights and freedoms set forth in this 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 to the European Convention for the Protection of Human Rights and Fundamental Freedoms introduces general prohibition of discrimination in view of all rights and freedoms irrespective of whether they are guaranteed by the Convention or not. Pursuant to paragraph 1 of this Article of the Protocol, the enjoyment of any right set forth by law is 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. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

The Law on the Legal Status of a Church, Religious Community and Religious Group (“Official Gazette of the Republic of Macedonia”, no.113/2007) regulates the foundation and legal status of a church, religious community and religious group, the religious service, prayer and rite, the religious teaching and religious activities, the incomes of the church, religious community and religious group, and other issues. The church, religious community and religious group are separated from the state and equal before the law (Article 1).

Under Article 2 of the Law, a church, religious community and religious group, in the sense of this Law, is a voluntary community of natural persons who according to their religious belief and the sources of their learning exercise their freedom of religion united by their faith and identity that is expressed in equal performance of the religious service, prayer, rite and other expressions of the belief.

Article 3 of the Law defines that the right to freedom of belief, thought and conscience includes the freedom of everyone to manifest one’s own religion or belief, either alone or in community with others, in public or private.
Article 4 of the Law sets forth that religious discrimination is prohibited.

Pursuant to Article 6 of the Law, the state respects the identity of the churches, religious communities, religious groups and other forms of religious gathering and establishes a relationship of a continuous dialogue and cooperation with them.

Article 8 of the Law defines that the freedom of expression of religion or belief may be limited by law only if the interests of public safety, order, health, morals, or the protection of the rights and freedoms of others require that.

Under Article 9 of the Law, a church, religious community and religious group are entered into the Uniform Court Registry of Churches, Religious Communities and Religious Groups (hereinafter: the competent registry) whereby they gain the capacity of a legal entity. The body of state administration competent for the issues in connection with the relations between the state and the religious communities keeps a record of the registered church, religious community and religious group. A church, religious community and religious group is recorded in the competent registry if there is no prior registration of such a church, religious community and religious group.

Article 10 paragraph 1 of the Law defines that the name and official symbols of each new church, religious community and religious group should differ from the names and official symbols of the already registered churches, religious communities and religious groups.

Under Article 11 paragraph 1, the Skopje II Basic Court – Skopje is the competent court for the keeping of the Uniform Court Registry of Churches, Religious Communities and Religious Groups.

Pursuant to Article 12 of the Law, the entry into the competent registry is made on the basis of an application. The following is enclosed with the application referred to in paragraph 1 of this Article:
–     a record for a held constitutive assembly;
–     a foundation act;
–     an act regulating the status, organisation and activity;
–     a description of the sources of learning referred to in Article 2 paragraph 1 of this Law;
–     a decision on designation of a person authorised to represent the church, religious community and religious group; and
–      proof for citizenship for the founders and the person authorised to represent the church, religious community and religious group.

(3) The church, religious community and religious group are obliged to designate a responsible person who will file a request with the competent registry for making an entry within 30 days from the date the decision on its foundation was made.

(4) If all the documents required are not enclosed with the application referred to in paragraph (1) of this Article, the competent court shall invite the applicant to submit the documents required within 15 days from the date of notification, otherwise it shall dismiss the application.

Article 14 of the Law stipulates that if all the requirements defined in Articles 12 and 13 of this Law are met, the registry court is obliged to make an entry of the church, religious community and religious group in the competent registry within eight days from the date the application was filed.

Article 16 of the Law sets forth that if the material conditions of this Law for making an entry of a church, religious community and religious group are not satisfied the court shall reject the application. An appeal may be lodged with the second instance court against the resolution rejecting the application only by the applicant, within 15 days from the date the resolution was received.

From the said provisions of the Constitution of the Republic of Macedonia it arises that while freedom of religion enjoys a high level of protection in the Constitution – it is set forth into a separate provision of the Constitution (Article 19 and Amendment VII) – it is still an integral part of the general constitutional context of freedom of belief and conscience (Article 16 of the Constitution). Freedom of belief, including the freedom of religious belief are absolute freedoms which are not limited with some other freedoms or rights or other constitutional values. Freedom of confession necessarily contain in itself the principles that everyone has a freedom, without influence by anyone, to determine one’s own religious belief, to accept or not to accept certain religion or to accept other religion, or not to accept any religion, to worship or not to worship one’s own religion, to take part or not to take part in religious rites, etc. However, that circumstance in the Constitution of the Republic of Macedonia may not mean an absolute freedom at the level of its manifestation, given that although unwritten still applies the principle that freedoms and rights of the individual have their limit in the freedoms and rights of other people, but also in some values that enable the life of people in a social community. The constitutional concept of religious freedom in the constitutional-legal order of the Republic of Macedonia also encompasses the elements such as: right to equality irrespective of religious belief and affiliation, freedom to establish religious associations, and the principle of secularism, that is, separation of religious communities and groups from the state.

Taking as a starting point the said provisions of the Constitution and the provisions in the Law on the Legal Status of a Church, Religious Community and Religious Group, in particular the ones referring to the status of religious subjects, the Court considers that in this concrete case it should be established whether the rejection to register the Bektashi Religious Community has violated the freedom of religion of these believers and whether there are elements of discrimination on grounds of religion in the rejection of the registration.

With regard to the first part of the question, from the provisions in Article 9 of the Law on the Legal Status of a Church, Religious Community and Religious Group it arises that the registration into the uniform court registry of churches, religious communities and religious groups is the precondition for the religious subject to gain the capacity of a legal entity, but it is not a precondition for the performance of religious rites, worship and prayers which the believers may, based on the constitutionally declared freedom of confession, practice independent from whether they are organised in the form of a registered religious subject which has the capacity of a legal entity.
In this concrete case, from the allegations in the application and the established facts it arises that the applicants who define themselves to belong to Bektashism by their religion for many years back have been practicing freely this religious belief of theirs, taking part in public life, communicating with state bodies, taking part in religious gatherings and conferences, from which it may be concluded that although they are not formally registered pursuant to the Law, they may freely practice their religion and perform religious rites in line with the rules of the Islamic religion, without thereby being exposed to a pressure and persecution. Hence, the conclusion is that the applicants’ freedom of religious belief has not been violated.

With a view to answering the question whether the rejection of the request for registration of the Bektashi Religious Community contains elements of discrimination, the Constitutional Court assessed whether the courts that had decided in the procedure for registration of the religious community of the applicants (Skopje II Basic Court-Skopje and Skopje Court of Appeal) had provided sufficiently elaborated reasons from which it might be established that in this concrete case the rejection of the registration of the Bektashi Religious Community had been due to objective and reasonable reasons, that is, whether the rejection of the registration had been for the purposes of realising some legitimate aim and whether there was proportionality between the means used and the aim that was to be realised with this measure. This arises from the fact that the right to equality before the law and to equal legal protection without discrimination does not make all differences in treatment discriminatory, since the differentiation based on reasonable and objective criteria is not prohibited discrimination. Also, according to the case-law of the European Court for Human Rights, pursuant to Article 14 of the Convention there is discrimination when there is different treatment of persons in the same or similar situation and when such difference in treatment has no “objective and reasonable justification”. There is an “objective and reasonable justification” if the measure concerned has a legitimate goal and if there is a “reasonable link of proportionality between the means used and the goal to be achieved” (Belgian Linguistics Case, Judgment of 23 July 1968). The case-law of the UN Committee for Human Rights is on a similar line, which in a number of cases (initiated before it on the basis of Article 26 of the International Covenant for Civil and Political Rights) has established that the very distinction on any of the prohibited grounds under Article 26 of the International Covenant for Civil and Political Rights is not decisive, that is, that no sufficient justification for such distinction has been given. In its General Comment No.18, the Committee for Human Rights underlined that different treatment is allowed if: it is in the function of exercising a legitimate goal and if the criteria for differentiation are reasonable and objective.

In this concrete case, from the challenged resolution of the Skopje II Basic Court-Skopje REG.RG.br.1/11 of 27 May 2011 rejecting the request of the Bektashi Religious Community for an entry in the Uniform Court Registry of Churches, Religious Communities and Religious Groups it arises that essentially the Court rejected its registration due to two reasons: 1) the name of the religious community which contained the word “Bektashi” and which was the integral part of the name of a previously registered religious subject – the Ehlibejti Bektashi Religious Group (registered with the resolution of the same court REG.RG.br.19/10 of 10 September 2010); and 2) the identicalness of the sources of learning with the sources of learning of an already registered religious subject – the Islamic Religious Community (registered with the resolution of the same court REG.VZ.br.1/08 of 14 November 2008).

The rejection of the registration in this concrete case was for the reasons envisaged by law – the Law on the Legal Status of a Church, Religious Community and Religious Group – which law, in the opinion of the Constitutional Court, was properly applied to this concrete case. The ground for the rejection for the mentioned reasons is Article 10 paragraph 1 of the said Law, under which the name and official insignia of each new church, religious community and religious group should be different from the names and official insignia of already registered churches, religious communities and religious groups.

The Constitutional Court sustains the stance of the first instance court, according to which in addition to the name, the sources of learning are also official insignia of the religious subject for a reason that the sources of learning of a religion and the name of the religious subject are essential characteristics that are immanent to the religious subject and the religious subject is identified and recognised in the public through them.

This is even more conspicuous when less-in-number religious subjects are concerned, i.e. those which are closer and more specifically recognisable religious subjects that reflect their specifics with these two elements. Hence, the identification of the applicant for registration with another religious subject that has already been registered may mislead the public, that is, may confuse the believers, which is at the same time violation of their religious feelings. Therefore, it is undisputed that the right of certain religious subject to registration should be guaranteed as part of the exercise of religious rights, but on the other hand the same should not violate the religious rights and feelings of the members of already registered religious subjects.

The allegations in the application that the courts should have considered that the applicants requested to be registered as a religious community, unlike the religious subject with an alleged identical name which was registered as a religious group, according to the Court are not of relevance, given that the condition for non-identicalness of the sources of learning pursuant to Article 10 of the Law is given cumulatively, that is, the same applies to all religious subjects, irrespective of whether a church, religious community or religious group is in question.

Every religious subject, irrespective of whether it is a church, religious community or religious group should have the right to distinctiveness, recognition in public with its narrow specific identity, which if does not exist or has competition may create confusion in public, in case there are several such parallel subjects among which competitiveness, endless parallelism and fragmentation develop.

The aim of the legal requirement for non-identicalness of the name and the official insignia of religious subjects, which includes the sources of learning, and the legal determination in Article 9 of the said law under which the competent registry makes an entry of a church, religious community and religious group if no such church, religious community and religious group has been previously registered, is to prevent, that is, disable believers to be mislead in the sense of creating confusion, incorrect perception and legalised endless division among believers of the same religion into several religious communities or subjects. These are goals which, in the opinion of the Court, are quite legitimate since they are necessary to protect the freedoms and rights of the others and to ensure religious tolerance and prevent religious conflicts, as an element for the protection of public order which is the responsibility of the state.

Because of the abovementioned, the Constitutional Court found that the rejection of the registration of the Bektashi Religious Community has not violated the applicants’ freedom of religion and has not discriminated them on religious ground.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court took the present decision in the following composition: Mr Branko Naumoski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mrs Elena Gosheva, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mrs Vera Markova, Dr Gzime Starova, Mr Sali Murati and Mr Vladimir Stojanoski. (U.br.24/2012)

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