CASE OF BEKTASHI COMMUNITY AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

1. The case originated in three applications (nos. 48044/10, 75722/12 and 25176/13 ) 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 the Bektashi Community (“ the applicant association”), a religious association that was not recognised at national level, Mr E. Brahimaj (“the first applicant ”) and Mr A. Sulejmani (“the second applicant”) on 14 August 2010, 8 June 2012 and 25 January 2013 respectively. The first applicant is an Albanian national and lives in Tetovo in the former Yugoslav Republic of Macedonia. He is a religious practitioner and a member of the applicant association who holds the highest position in the hierarchy of the community. The second applicant is a Macedonian national and lives in Gostivar in the former Yugoslav Republic of Macedonia. He is a member and representative of the applicant association.
2. The applicants were represented by Mr A. Godžo and Mr D. Godžo, lawyers practising in Ohrid. The Macedonian Government (“the Government”) were initially represented by their Agent, Mr K. Bogdanov, later succeeded by Ms D. Djonova.
3. The Albanian Government did not make use of their right to intervene in the proceedings ( Article 36 § 1 of the Convention ).
4. The applicants complained, in particular, that the domestic courts had refused to allow the applicant association to retain its status as a religious organisation and allow its application for re- registration. They also complained that an oral hearing had not been held in the impugned proceedings.
5. On 25 August 2014 the above complaints were communicated to the respondent Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
6. The Bektashi Order has existed and practised its religion in the respondent State for many centuries. The applicant association ’ s headquarters were at the “Teke Sersem Ali-Harabati Baba” in Tetovo. Until the applicant association was refused registration in 2010 (see paragraphs 23-33 below), it practised its religion in full compliance with the relevant legislation applicable at the time. In the past, it was also known under the name “Islamic Bektashi Community”.
B. Procedure for registration of the applicant association under the Religious Communities and Groups Act 1997 (“the 1997 Act”)
7. On 31 July 1997 the Religious Communities and Groups Act (“the 1997 Act”) entered into force. It repealed the Legal Status of Religious Communities Act 1977 (“the 1977 Act”) and provided that the Commission for Religious Communities and Groups ( Комисија за односи со верските заедници и религиозните групи – “the Commission” ) would be responsible for dealing with religious matters, which up until then had been the responsibility of the Ministry of the Interior (“the Ministry”).
8. On 25 August 1997 the Commission requested that the applicant association submit a copy of its application ( копија од пријавата ) to be listed in the register of the Ministry and the related certificate of registration ( потврда за постојано пријавување ) so that it could “transfer (into its register) the religious communities and groups of which the Ministry of the Interior had been notified ( пријавени ) ” (section 35 of the 1997 Act, see paragraph 37 below).
9. On 4 September 1997 the applicant association (under the name “Islamic Bektashi Community” in Tetovo) contacted the Ministry, seeking a copy of all relevant documents related to its application submitted in 1993. According to the applicant association, on 16 September 1997 it forwarded to the Commission all the documents obtained from the Ministry save for the certificate, which had never been issued.
10. At the request of the applicant association, on 1 March 1999 the Ministry issued a certificate ( потврда ) attesting that on 17 February 1993 the applicant association (under the name “Islamic Bektashi Community” in Tetovo) had submitted an “ application for registration” ( барање за регистрација ) and other relevant documents. On 5 April 1999 the applicant association forwarded the certificate to the Commission. No information was provided as to the follow-up procedure, if any, concerning the Commission ’ s request for the applicant association to be registered under section 35 of the 1997 Act.
11. On 23 June 2000 the Commission issued a certificate (“the 2000 certificate”), attesting that on 13 June 2000 the applicant association had filed “an application ( пријава ) in accordance with the 1997 Act”. The certificate further stated:
“Since the statutory conditions are met, the Bektashi Community of the Republic of Macedonia is listed ( пријавена ).”
12. By a decision of 18 July 2000, the State Statistics Office specified the applicant association ’ s main activities ( “ the activities of religious organisations ”), its headquarters ( the “Arabati Baba” site ); and attributed corresponding indexes and business codes.
13. In a letter of 13 June 2002 sent to a trial court regarding unrelated proceedings, the Commission confirmed that “the Bektashi Community of the Republic of Macedonia [had been] registered ( регистрирана ) ... ”
14. In 2003 a local non-governmental organisation ( “ the Macedonian Centre for International Cooperation ” ) published the “ Directory of Religious Communities in Macedonia”, which included the religious entities recorded in the Commission ’ s register. The applicant association was listed on the basis of the 2000 certificate.
15. On 20 February 2007 the Commission authorised the first applicant to carry out “religious ceremonies and rituals on authorised premises of the Bektashi Community of the Republic of Macedonia”.
C. Proceedings for recognition and continuation of legal status as a religious community (“the recognition proceedings”)
16. On 28 September 2007 the Legal Status of Churches, Religious Communities and Religious Groups Act 2007 (“the 2007 Act ” ) entered into force. It came into operation on 1 May 2008 (section 36). It specified that the Skopje Court of First Instance (“ the registration court”) would be competent to deal with religious matters (section 11 ). It also provided that the Commission would transfer all documents regarding the existing religious entities recorded in its register to the registration court. All religious organisations registered by the Commission up until 1998 could retain their existing legal personality and status.
17. On 10 June 2008 the applicant association, represented by a local lawyer, requested information from the Commission about its status. In reply the Commission stated that it had only been required to transfer to the registration court information regarding existing religious communities registered up until 1998. Since it had only been notified about the applicant association in 2000, the latter should have made an application for re ‑ registration in the Single Court Register (“the court register”) in accordance with the 2007 Act.
18. On 4 June 2009 the applicant association requested, under section 35 of the 2007 Act, that the registration court recognise its continuing legal status and record it in the court register.
19. On 2 October 20 0 9 the registration court dismissed the applicant association ’ s request. Referring to section 35 (1) of the 1997 Act, it held that “[ the Commission ] had been obliged ( должнa ) to transfer to its register the religious communities and groups of which the Ministry had been notified up until the 1997 Act had entered into force. However, since the applicant association had not given notice to the Ministry, at the time, it had not been transferred to the Commission ’ s records, as provided for in that provision. ”
20. It further established that in June 2000 the applicant association had given notice to the Commission, which the latter had acknowledged with the 2000 certificate. That practice had been in compliance with decision U.br.223/97 of December 1998 ( see paragraph 42 below ), in which the Constitutional Court had declared unconstitutional the statutory provisions which had provided for registration of new religious entities conferring on them legal status.
21. The court also established that the applicant association had never been recorded ( запишан ) and registered ( регистрирана ) by the Commission either before 1998, as required under section 35(2) of the 2007 Act, or up until the 2007 Act had entered into force. The applicant association had only given notice ( пријавена ) to the Commission in 2000. Consequently, the Commission had not been required, as specified in section 35(1) of the 2007 Act, to transfer the data “recorded in its register” to the registration court. That requirement concerned only registered religious organisations and not entities which were listed by the Commission. The court concluded that the applicant association had never obtained the legal status it sought to have recognised in the request.
22. On 18 February 2010 the Skopje Court of Appeal (“the Court of Appeal”) dismissed an appeal by the applicant association and upheld the established facts and reasoning given by the registration court.
D. Proceedings for registration under the 2007 Act (“the registration proceedings”)
1. Proceedings before the registration authorities
23. On 22 November 2010 the applicant association, represented by local lawyers authorised to act on its behalf by the second applicant, filed an application for registration in the court register as “Bektashi Religious Community of the Republic of Macedonia”. It also enclosed several documents, including a description of the doctrinal sources. On 30 November 2010 the registration court requested further documents to complete the application. The applicant association submitted the requested documents.
24. On 20 December 2010 the court refused to register the applicant association on the following grounds: (a) the name “Bektashi” had already been used by another religious entity registered in the court register; (b) the doctrinal sources were the same as the doctrinal sources of another already registered religious entity; and (c) the applicant association had not submitted proof of ownership of the “Arabati Baba” site in Tetovo, indicated as its headquarters in the application for registration.
25. The applicant association appealed against this decision and asked the Court of Appeal to hold a public hearing.
26. At a hearing held in private on 14 April 2011, the court allowed the applicant association ’ s appeal and quashed the lower court ’ s decision as it had not specified which registered religious entity used the name “Bektashi” or which statutory provision forbade the use of identical doctrinal sources by multiple religious communities and groups. Furthermore, there was no statutory provision under which an application for registration could be refused owing to lack of proof of ownership of the headquarters of a religious community.
27. On 27 May 2011 the registration court again refused to register the applicant association as its intended name contained the term “Bektashi”, which had already been used by another religious entity, namely the “Ehlibeyt Bektashi Religious Group of Macedonia” registered in the court register on 10 September 2010. The court stated that “the existing Act [did] not allow for the registration of a new religious entity under a name that [had] already been recorded in the register for another registered religious entity”. Furthermore, its doctrinal sources were no different from the doctrinal sources of the Islamic Religious Community, which had existed for centuries and which had been registered in the court register on 14 November 2008. As to the doctrinal sources as described by the applicant association, the court stated as follows :
“ ... [ they consist of ] the Islamic religion and the teaching of the Holy Koran, which is supplemented and interpreted by the knowledge and practices of prophet Mohamed and Imam Ali, the Holy Ehlibeyt (the prophet ’ s family) and the Holy Journey of Haji Bektash Veli ... it is about the sources of the Islamic religion, for which there is already a registered religious community ... whose teaching includes the Koran and the practices of Mohamed Aleyhisselam. According to Islamic teaching, Ali was his son - in - law and a member of the family (or ehlibeyt ), the fourth elected caliph who ruled the Islamic state, and Haji Bektash Veli was the founder of the Bektashi Order of Islam and one of the prominent Islamic philosophers. In other words, the doctrinal sources of [the applicant association] are not at all different from the doctrinal sources of the ... Islamic Religious Community ...
In the court ’ s opinion, the doctrinal sources are to be regarded as official insignia of a church, religious community or group within the meaning of section 10(1) of the 2007 Act. It would be a violation of [that provision] if they did not differ i.e. did not have specific characteristics, elements that were different from the doctrinal sources of the teachings of an already registered [religious entity]. ”
28. In such circumstances, the court held that the “ substantive conditions ” for registration of the applicant association in the court register had not been fulfilled. Accordingly, it refused its application for registration under section 16 of the 2007 Act (see paragraph 38 below).
29. The applicant association challenged the grounds on which the registration court had based the refusal of registration. It argued that there was no other religious entity registered under the same name. In this connection, it submitted that there were six registered religious entities that contained the term “Christian” in their name and two registered entities that used the term “Islamic”. The intention of the 2007 Act was not to ban the use of terms that had a generic and not exclusive meaning. Otherwise, it would mean that the law would only allow the registration of one religious entity containing the term Christian, Islamic, Bektashi, Jewish, Tarikat, Buddhist, Zen or Zoroastric. It also argued that it had sought registration as a religious community, as opposed to “Ehlibeyt Bektashi”, which was registered as a religious group. Its intended name was substantially different from the name of that entity; it had existed for decades and centuries, as was evident from the directory and correspondence with various State institutions. As regards the doctrinal sources, it argued that they could not be regarded as official insignia within the meaning of section 10(1) of the 2007 Act. Doctrinal sources could be identical for multiple religious entities (as the Bible was common for Orthodox Christians and Catholics, and the Koran was common for the Islamic Religious Community, the Bektashi Order and Shia or Sunni Muslims ). They were of an ideological nature and were not constant, nor could they be interpreted in that way. Official insignia concerned symbols (crosses, crescents, graphic symbols ), a flag or a totem that represented something. In this connection, it stated that the interpretation which the court had given regarding its doctrinal sources, namely that they were identical to the doctrinal sources of all Islamic teaching, was wrong. The mere fact that the court had interpreted its doctrinal sources implied that the State was not separated from religion. Furthermore, if that interpretation had been based on some material, it had not been communicated to the applicant association. Nor had it been given the opportunity to present its views at a public hearing. In this connection, it requested that the Court of Appeal hold a public hearing. Lastly, it complained that the refusal of registration was discriminatory.
30. At a hearing held in private on 17 November 2011, the court dismissed the appeal and upheld the lower court ’ s decision. It held that although the intended name of the applicant association was not entirely identical to the name of the “Ehlibeyt Bektashi Religious Group of Macedonia”, it contained the term “Bektashi”, which was “ decisive and represented a synonym for the religious entity ”. Consequently, the registration of the applicant association could create confusion among the believers. The Court of Appeal made no mention as to the lower court ’ s findings regarding the doctrinal sources of the applicant association. It accordingly held that section 16 of the 2007 Act had been correctly applied.
2. Proceedings before the Constitutional Court
31. On 20 February 2012 the applicant association and the second applicant (and two other individuals) lodged a constitutional appeal with the Constitutional Court complaining that they had been discriminated against contrary to Article 110 § 3 of the Constitution. They summarised the factual background described above and reiterated the arguments raised in the appeal against the court ’ s decision of 27 May 2011 (see paragraph 29 above). They complained that the use of the term “Bektashi” could not be exclusive (like the use of “Christian” and “Islamic”). Furthermore, the registration of the “Ehlibeyt Bektashi Religious Group of Macedonia” implied that the domestic authorities had implicitly accepted that the doctrinal sources of that religious group were allegedly identical to the teaching of the Islamic Religious Community. They requested that the Constitutional Court hold a public hearing ( јавна расправа ) in accordance with section 55 of the Rules of Procedure of the Constitutional Court (see paragraph 41 below ).
32. At a hearing held on 20 November 2012 in the absence of the parties, the Constitutional Court dismissed the constitutional appeal. The relevant parts of its decision ( U.br.24/12 ) read as follows:
“ ... in the present case, the court considers that it should examine whether the refusal to register the Bektashi Religious Community violated freedom of religion and whether there are elements of discrimination on religious grounds.
As regards the first part of the question and having regard to section 9 of the Legal Status of Churches, Religious Communities and Religious Groups Act, it appears that registration in the Single Court Register is a requirement for a religious entity to obtain legal status, but it is not a precondition for religious ceremonies, rituals and prayers, which believers ... can hold irrespective of whether they are organised as a registered religious legal entity.
In the present case, having regard to the arguments put forward in the application and the established facts, it appears that the applicants, who define themselves as members of the Bektashi Community, have freely practised their religion for many years. They participate in public life, communicate with State bodies, and participate in religious gatherings and conferences. This leads to the conclusion that, although they are not formally registered under the [2007 Act], they can practise their religion freely and hold religious ceremonies in accordance with the Islamic religion, without any pressure or persecution. Consequently, the applicants ’ freedom of religion has not been violated.
In order to reply whether there are elements of discrimination in the dismissal of the application for registration of the Bektashi Religious Community, the Constitutional Court assesses whether the courts which decided in the registration proceedings ... gave sufficient reasons and whether the refusal to register the Bektashi Religious Community was based on relevant and reasonable grounds, namely whether the refusal of registration pursued a legitimate aim and whether there was a measure of proportionality between the means used and the aim pursued ... ”
33. The court then referred to the grounds on which the registration court had based its decision and stated as follows :
“ ... the [registration] court refused to register the [applicant association] on two grounds : ( 1) the intended name of the [applicant association] contained the term ‘ Bektashi ’ which had been incorporated into the name of an already registered religious entity, the ‘ Ehlibeyt Bektashi Religious Group of Macedonia ’ ... and ( 2) its doctrinal sources were the same as the doctrinal sources of an already registered religious entity, the Islamic Religious Community.
The refusal to register the [applicant association] was based on grounds specified by law ... which, in the court ’ s view, was correctly applied. The [dismissal decision was based on] section 10(1) of [the 2007 Act] ...
The Constitutional Court endorses the findings of the first-instance court that the name and the doctrinal sources are official insignia of a religious entity and distinctive elements through which it is identified and recognised by the public ...
This particularly concerns smaller religious entities, namely [ those ] that ... manifest their distinctiveness through these two elements. Hence, equating the complainant [ the applicant association ] with another already registered religious entity can mislead the public, that is, it can confuse believers, which is at the same time itself a violation of their religious beliefs. It is not in dispute that the right of a religious entity to be registered should be secured in the context of freedom of religion, but nor should it violate the religious rights and feelings of the members of already registered religious entities.
... Each religious entity, church, religious community or group has the right to be distinct and be recognised in public by its identity. The absence of such [ distinctiveness ] or competition leads to confusion and misunderstanding by the public. [ Such is the case ] if there are multiple similar entities which are in competition, indefinite parallelism and division.
The aim of the statutory requirement for the name and official insignia of religious entities, including doctrinal sources, not to be identical ( неидентичност на името и официјалните обележја ) ... is to prevent confusion among believers, incorrect perceptions, and lawful indefinite division of same-faith believers in several religious communities or entities. In the court ’ s view, these aims are legitimate and necessary in order to protect the freedoms and rights of others, to secure religious tolerance and prevent religious conflicts, as part of ensuring public safety, which is the responsibility of the State.
In view of the foregoing, the Constitutional Court considers that the refusal to register the Bektashi Religious Community did not violate [the applicants ’ ] freedom of religion of the applicants, nor were they discriminated against on the basis of their religion.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
34. Under Article 110 §§ 1 and 3 of the Constitution, the Constitutional Court decides on the conformity of laws with the Constitution and 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. Legal Status of Religious Communities Act 1977 (Official Gazette no. 39/77)
35. Under section 8(1) of the 1977 Act, founders of a religious community were required to give notice ( поднесе пријава ) to the Ministry within thirty days of the community being set up.
36. Under section 9 of the Act religious communities had legal status.
3. Religious Communities and Groups Act 1997 (Official Gazette no. 35/1997)
37. Section 35 of the 1997 Act provided that the Commission would transfer to its register, within a month of the Act entering into force, the religious communities and groups of which the Ministry had been notified ( пријавени ). Existing religious communities and groups were obliged to bring their activity into conformity with the 1997 Act within six months of it entering into force (31 July 1997).
38. The 1997 Act repealed the 1977 Act (section 36).
4. Legal Status of Churches, Religious Communities and Religious Groups Act (Official Gazette. no.113/2007)
39. The relevant provisions of the 2007 Act, which repealed the 1997 Act (section 36), read as follows:
“ (1) A church, religious community or religious group is a voluntary association of physical persons exercising their freedom of religion through their religious conviction and doctrinal sources ...”
“(1) Churches, religious communities and religious groups are registered in the Single Court Register ... and thus obtain legal 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 ( официјални обележја ) of any new church, religious community or religious group should be different from the names and insignia of other already registered churches, religious communities or religious groups ... ”
“(1) The Skopje Court of First Instance shall administer the Single Court Register regarding churches, religious communities and religious groups ... ”
“ (1) Registration in the register is carried out on the basis of an application.
(2) The following documents shall 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 represent the church, religious community or religious group; and a certificate of nationality concerning the founders and the person who represents the [ religious entity ].
(3) Churches, religious communities and religious groups are all required to appoint someone to submit an application for registration within thirty days of adoption of the founding decision.
(4) If all the documents listed in subsection (1) of this provision are not enclosed with the application, the court with jurisdiction shall invite the applicant to submit the requested documents within fifteen days or risk the application being rejected. ”
“(1) The founding decision shall specify the following ...”
“ If the conditions specified in sections 12 and 13 above are fulfilled, the registration court shall within eight days of submission of the application for registration record a church, religious community or group in the Single Court Register.”
“ (1) If the substantive conditions specified under this Act for registration of a church, religious community or group are not fulfilled, the court shall refuse the application for registration.
Transitional and final provisions
“(1) [The Commission ] shall submit to the [registration court], within sixty days of the 2007 Act coming into operation (1 May 2008), relevant information and documents regarding the existing churches, religious communities and religious groups recorded in its register ( запишани во нејзиниот регистар ).
(2) All churches, religious communities and religious groups registered ( регистрирани ) by [the Commission] up to and including 1998 may retain their existing legal personality and status and the relevant information shall be recorded in the Single Court Register within the time-limit specified in subsection 1 above.”
40. Sections 18, 21, 22 and 30 concern religious rituals and ceremonies and the right of churches, religious communities and religious groups to carry out religious teachings and establish religious schools and humanitarian, cultural, social, health, charitable and other institutions in accordance with the procedures and under the conditions specified by law.
5. Rules of Procedure of the Constitutional Court (Official Gazette no. 70/1992)
41. Under section 55(1) and (2) of the Rules of Procedure of the Constitutional Court, proceedings regarding the protection of human rights and freedoms are, as a rule, to be decided following a public hearing, to which the following are invited to attend: the parties to the proceedings, the Ombudsman, and other persons and representatives of institutions, if necessary.
B. Relevant practice of the Constitutional Court
42. On 24 December 1998 the Constitutional Court declared unconstitutional several provisions of the 1997 Act, including sections 13 and 14. Section 13 provided that religious groups had to be registered by the Commission. Section 14 provided that religious communities and groups obtained legal 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 ).
III. RELEVANT INTERNATIONAL MATERIALS
Opinion No. 424/2007 of the European Commission for Democracy Through Law (Venice Commission), 13 March 2007
43. The Opinion reflects the views of the Venice Commission regarding the draft Act 2007, as it stood at the time. The most relevant parts read as follows:
“46. Pluralism is ‘ indissociable from a democratic society within the meaning of the Convention. ’ Religious freedom involves freedom to manifest one ’ s religion in private and in community with others and this is especially relevant to the question of registration of churches, communities and groups. Whilst it may in certain circumstances be necessary to restrict freedom of manifestation of religion where several religions co-exist so as to ‘ ensure that everyone ’ s beliefs are respected, ’ the state must remain neutral and impartial and ‘ not ... remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. ’ Assessment of the legitimacy of religious beliefs or ‘ favouring a particular leader or organs of a divided religious community ’ would constitute an infringement of the freedom of religion.
47. When regulating in the religious field, a State has to remain neutral and impartial ...
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 ...
63. ... The drafters consider that the State has the duty to protect the public from confusion and therefore could refuse registration to any religious entity which would not sufficiently distinguish itself from already registered religious entities.
68. In draft Article 9.4 a religious entity cannot be registered if it has or uses ‘ the same or a name similar to an already registered church, religious community or religious ’ ...
69. Here again it is doubtful that these restrictions can be considered as lawful in the meaning of the strict requirement of Article 9.2 ECHR.
70. Protecting believers from confusion ... cannot be considered as sufficient. ”
44. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
II. ALLEGED VIOLATIONS OF THE CONVENTION
45. The applicants complained under Articles 9, 11 and 14 of the Convention about the refusal of the domestic courts to recognise the applicant association as a religious entity in both the recognition and registration proceedings. They also alleged a violation of Article 6 of the Convention as no oral hearing had been held in either set of proceedings. Articles 6, 9, 11 and 14, in so far as relevant, read as follows:
“ 1. In the determination of his civil rights and obligations ... everyone is entitled to a ... public hearing ... by [a] ... tribunal ...”
“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.”
46. The Court considers that the applicants ’ complaints under this head should be analysed from the standpoint of Article 11 of the Convention read in the light of Article 9, because the central issue is the refusal of the respondent State to recognise the applicant association as a religious (legal) entity and its inability accordingly to act collectively in the religious sphere (see “ Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy ” v. the former Yugoslav Republic of Macedonia, no. 3532/07, § 61, 16 November 2017, and the references cited therein ‑ “the OOA case” ).
47. It also notes that the applicants ’ grievances concern two separate decisions by which the national authorities refused to recognise the applicant association as a religious entity : the authorities ’ refusal to re-register the applicant association under the transitional provisions of the 2007 Act (the recognition proceedings), on the one hand, and their refusal to register it anew under the general rules (section 12) of the 2007 Act (the registration proceedings), on the other hand. The Court will examine both decisions together, given the fact that they are closely interrelated (the registration proceedings were a resulting consequence of the outcome of the recognition proceedings), except in so far as separate examination may be necessary.
(a) The victim status of the first and second applicants
48. Notwithstanding the absence of any objection by the Government as to the admissibility of the application regarding its compatibility ratione personae in so far as it concerns the first and second applicants, the Court considers necessary to address the issue of their standing under Article 34 of the Convention.
49. In this connection it observes that it may only receive applications from persons who claim themselves to be victims of a violation of the rights set forth in the Convention. The Court notes that the applicant association was the only party to both the recognition and registration proceedings (see paragraphs 17, 18, 23, 25 and 29 above). The national authorities, including the Constitutional Court, have accepted that it had the requisite standing. It was only in the proceedings upon the constitutional appeal that the second applicant complained in his own name. In the absence of any indication that the applicant association had no capacity to lodge the application with this Court, it considers that the individual applicants could not themselves claim to be victims of a violation resulting from the domestic authorities ’ refusal of re-registration, which affected only the applicant association as such (see Jehovah ’ s Witnesses of Moscow v. Russia, no. 302/02, § 168, 10 June 2010 and Church of Scientology Moscow and others v. Russia (dec.), no. 18147/02, 28 October 2004). Similar considerations apply to the registration proceedings. Having regard to the fact that, as noted in paragraph 46 above, the principal issue before the Court is the domestic authorities ’ refusal to recognise the applicant association as a religious (legal) entity and the alleged resulting violation of its rights under Article 9, 11 and 14 of the Convention, the interests of the individual applicants will, in any event, in the Court ’ s opinion, be sufficiently secured by a ruling on the case advanced by the applicant association.
50. It follows that the application, in so far as the first and second applicants are concerned, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
(b) Non- exhaustion of domestic remedies regarding the recognition proceedings
51. The Government argued that the application, as far as the recognition proceedings are concerned, should be declared inadmissible because the applicants had not lodged a constitutional appeal, which the Court had already accepted as an effective remedy that applicants, in principle, were required to exhaust. In this connection, they referred to the cases of Kosteski (no. 55170/00, 13 April 2006 ), Osmani and Others ( ( dec.), no. 50841/99, 11 October 2001 ), Vraniškoski ( ( dec.), no. 37973/05, 26 May 2009 ) and Šijakova and Others ( ( dec.), no. 67914/01, 6 March 2003), all against the former Yugoslav Republic of Macedonia. Any doubts by the applicants as to the effectiveness of that remedy did not release them from the obligation to exhaust that avenue of redress.
52. The applicants disagreed that a constitutional appeal had been available for their complaints under Articles 9 and 11. The outcome of the proceedings before the Constitutional Court in which they had challenged the domestic authorities ’ refusal to register the applicant association as a religious community under the 2007 Act (paragraphs 31-33 above) clearly demonstrated that that remedy, although available, would not have been effective for their grievances under Article 14 of the Convention.
(ii) The Court ’ s consideration
53. The relevant Convention principles have been summarised in the Court ’ s judgment in the case of 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. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement ( ibid ., §§ 71 and 77).
54. Turning to the present case, the Court notes that the gist of the applicant association ’ s complaints regarding the recognition proceedings was that the domestic courts had failed to recognise, after the 2007 Act had entered into force, its status as a religious entity that it had enjoyed under the previous legislation. Its main grievance was therefore that it had been unable to preserve that status so as to act collectively in the religious sphere. Accordingly, the Court will examine whether a constitutional appeal would have been an effective remedy that the applicant association should have used regarding the application of a legal provision, which prevented religious associations from maintaining that status unless they had been registered at least ten years before the 2007 Act entered into force (see paragraph 39 above).
55. In the OOA case, the Court expressed its concerns whether “any other (than the political) aspect of freedom of association, including the religious aspect, fell within the jurisdiction of the Constitutional Court” ( cited above, § 71). It also noted the Constitutional Court ’ s practice in 2009 to 2010, at the time when the recognition proceedings had been completed (see paragraphs 19 and 22 above), of declining jurisdiction to deal with appeals of an association or organisation through which individual members acted collectively in a field of mutual interest ( ibid ., § 70). Similarly, the Constitutional Court rejected constitutional appeals of individuals submitted in their name and on behalf of the non-registered religious associations with which they were associated. In so doing, it stated that it “ha [ d ] no jurisdiction to decide on the rights and interests of citizens in specific cases before administrative and judicial bodies ... ”; that “ [ it ] cannot rule on the request for the protection of human rights and freedoms in relation to specific final decisions of competent bodies”; and that “the [ assessment of ] the application of the law by the registration court ... was beyond its jurisdiction” (see ibid ., §§ 20, 21, 36 and 55). Lastly, and more importantly, the Court observes that all those cases concerned registration proceedings (similar to the proceedings described in paragraphs 23-33 above ) in which the competent authorities had refused to register a newly established religious association. The Government did not present any example of domestic case-law in support of their view that a constitutional appeal was an available and effective remedy in the present case. Consequently, the Government ’ s non-exhaustion objection must be rejected.
56. The Court notes that the Government did not raise any other objection regarding the admissibility of the complaints under this head. It observes that this part of 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.
(a) Articles 9 and 11 complaints
57. The applicants maintained that the domestic authorities had refused to recognise the applicant association as a religious entity in both sets of proceedings despite the fact that it had existed and operated for many years before the 2007 Act had entered into force. They argued that the interference with their rights under this head had not been in accordance with the law, had not pursued any legitimate aim and had not been necessary in a democratic society.
58. As regards the recognition proceedings, the Government confirmed that the applicant association had not been registered before 2000, but only listed by the Commission. That had been in compliance with the decision of the Constitutional Court that had set aside the requirement for religious entities to be registered (paragraph 42 above). They further stated that “ in view of the new provisions, [ the registration court had ] transferred to the court register only the registered and not the listed religious entities. That explain [ed] [the applicant association ’ s] obligation to apply for re- registration” Such was the practice concerning all non-registered religious entities of which the Commission had been only notified.
59. The Government accepted that in the registration proceedings, which had not involved an interpretation of the applicant association ’ s doctrinal sources, the refusal of the domestic authorities to register the applicant association had amounted to an interference with the applicants ’ freedom of association and religion. However, that interference had been in accordance with the law and had pursued a legitimate aim, namely that of the protection of the rights and freedoms of others. Furthermore, it had been proportionate to the aim sought to be achieved and the reasons adduced by the authorities had been relevant and sufficient.
(ii) The Court ’ s consideration
( α ) General principles deriving from the Court ’ s case-law
60. The relevant Convention principles have been summarised in the Court ’ s judgment in the case of Jehovah Witnesses of Moscow and Others v. Russia (no. 302/02, §§ 99-101, 10 June 2010) and more recently in the case of Magyar Keresztény Mennonita Egyház and Others v. Hungary (nos. 70945/11 and 8 others, §§ 75-80, ECHR 2014 (extracts) ).
( β ) Application of these principles to the present case
61. The Court observes that in 2007 the respondent State enacted the 2007 Act, which provided that registration matters would shift from the Commission to the registration court following enactment of a new procedure for the registration of religious entities conferring on them legal status. As to the already existing religious entities, the 2007 Act required the Commission to transfer to the court register the registration files of all recorded religious organisations within a specified time-limit (see paragraph 39 above). The existing religious entities that did not fulfil the criteria specified in section 35(2) of the 2007 Act were not to be recorded in the court register and were automatically stripped of their status as religious associations by operation of law. They were accordingly required to apply to the registration court for individual recognition and registration as religious entities under the 2007 Act (see paragraphs 17 and 58 above).
62. The Court notes that, prior to the enactment of the 2007 Act, the applicant association lawfully operated as a recognised religious entity. It considers that in the present circumstances, in which the re- registration of the applicant association on the basis of section 35 of the 2007 Act was refused by the registration court, with the result that it lost its legal status as a fully-fledged religious community and became unable to continue exercising the rights of a religious organisation, there has been an interference with the applicant association ’ s right to freedom of association taken in conjunction with its freedom of religion (see Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 71, ECHR 2006 ‑ XI, and Church of Scientology Moscow v. Russia, no. 18147/02, § 84, 5 April 2007 ). The autonomous existence of the applicant association, and hence the collective exercise of religion, was undeniably affected by the impugned measure (see Magyar Keresztény Mennonita Egyház and Others, cited above, §§ 55 and 83 ).
63. It must therefore determine whether the interference satisfied the requirements of paragraph 2 of Articles 9 and 11, that is, whether it was “prescribed by law” and pursued one or more legitimate aims and was “necessary in a democratic society” (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 106, ECHR 2001 ‑ XII ).
64. It can be seen from the judgments of the domestic courts that the applicant association was refused re-registration as a religious organisation by reference to section 35 of the 2007 Act (see paragraph 19 above). The Court is therefore prepared to accept that the interference in question was “prescribed by law”.
65. Accordingly, the ground for refusing re-registration of the applicant association was purely formal, notably that it had not been registered by the Commission as a religious entity prior to 1998, but only listed in 2000. The Government omitted to indicate any legitimate aim which this formal restriction may have pursued. Nor did the domestic authorities make any such mention in the recognition proceedings. Furthermore, the Government did not identify any “pressing social need” which the impugned interference served. In the Court ’ s view, exclusive reliance on such a formal ground, without reference being made to any reason related to the applicant association ’ s operation before the 2007 Act had entered into force, can hardly appear justified in respect of religious associations which are long established in the country and familiar to the competent authorities, as is the case with the applicant association (see paragraphs 10-15 and 32 above, Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 100, ECHR 2009, and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 98, 31 July 2008). In addition, those findings appear to have overlooked the fact that the applicant association had notified the Ministry of its existence in 1993 (see paragraph 10 above). As stated by the registration court, had that been the case, it would have obliged the Commission to register the applicant association under the 1997 Act (see paragraph 19 above).
66. In the light of the foregoing considerations, the Court finds that the interference with the applicant association ’ s rights to freedom of association and religion cannot be said to have been “necessary in a democratic society”. There has therefore been a violation of Article 11 of the Convention, read in the light of Article 9 on account of the domestic authorities ’ refusal to recognise the applicant association ’ s continuing status as a religious entity.
67. After the registration court refused to re-register the applicant association under section 35 of the 2007 Act, the applicant association launched new proceedings for its registration under the name “Bektashi Religious Community of the Republic of Macedonia”. By a decision of 27 May 2011, upheld on appeal on 17 November 2011, the registration courts refused to register the applicant association, holding that its intended name and doctrinal sources were identical to the name and doctrinal sources of other already registered religious entities (see paragraphs 27 and 30 above). The Constitutional Court confirmed the above findings (see paragraph 33 above).
68. The Court accepts that the impugned refusal of registration amounted to an interference with the applicant association ’ s rights under Article 11, interpreted in the light of Article 9 of the Convention. Indeed, the result of the refusal was that the applicant association was prevented from obtaining legal personality and deprived of the opportunity to enjoy effectively the panoply of rights reserved for recognised religious organisations (see paragraph 40 above and the OOA case, cited above, § 81).
69. Furthermore, the Court accepts that the interference in question was “prescribed by law”, namely the 2007 Act (see paragraphs 28, 30 and 33 above), and pursued a “legitimate aim” of protecting the rights and freedoms of others (see paragraph 33 above).
70. Accordingly, the central issue which remains to be determined is whether the interference complained of was “necessary in a democratic society”. The Court will assess in turn the grounds invoked by the domestic authorities in justification of the non-registration of the applicant association.
71. As to the intended name of the applicant association, the Court notes that it contained a reference to “Bektashi”, like the name of the already registered religious group “Ehlibeyt Bektashi Religious Group of Macedonia”. The Skopje Court of Appeal stated that the term “Bektashi” was “decisive and represented a synonym for the religious entity”. It accordingly held that the registration of the applicant association under the intended name would create confusion among the believers (see paragraph 30 above, mutatis mutandis, Bekir-Ousta and Others v. Greece, no. 35151/05, § 14, 11 October 2007; Emin and Others v. Greece, no. 34144/05, § 10, 27 March 2008; and Macedonian House of Civilization v. Greece, no. 1295/10, § 8, 9 July 2015 ). The Constitutional Court relied on a more detailed explanation (see paragraph 33 above), with which the Court, in principle, agrees (see the OOA case, § 111). However, similarly to the OOA case, the Court considers that the name chosen for the applicant association in the present case was sufficiently specific to distinguish it from the “Ehlibeyt Bektashi Religious Group of Macedonia”. Another distinguishing element in the intended name of the applicant association was the proposed form of its organisation (religious community) which was different from the form of association of the “Ehlibeyt Bektashi Religious Group of Macedonia”. Lastly, the Court notes that the domestic courts did not provide any substantive reasons to justify the potential risk of confusion among believers in the present case. In the Court ’ s opinion, mere reference to the name of the religious associations in question was not sufficient in this respect.
72. The other ground relied on by the domestic courts concerned the doctrinal sources of the applicant association, which they found to be identical to the doctrinal sources of the already registered “Islamic Religious Community”. That conclusion was made on the basis of an assessment by the domestic courts of the applicant association ’ s fundamental precepts and their comparison with the precepts of the “Islamic Religious Community” (see paragraph 32 above). No prior consultation with the applicants preceded that finding, notwithstanding that the registration court could have asked for an additional explanation (see paragraph 23 above). In the Court ’ s view, such an assessment and interpretation of the applicant association ’ s basic tenets of creed was incompatible with the State ’ s role as a neutral and impartial organiser of the exercise of various religions, faiths and beliefs, which excludes, save for very exceptional cases, any discretion on the part of the State to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see paragraph 43 above, also Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005 ‑ XI ). Furthermore, no explanation was given for the resulting finding of this fresh scrutiny carried out under the 2007 Act, having regard to the fact that both the applicant association and the “Islamic Religious Community” had been active and had already existed in the respondent State for many years (see paragraphs 6, 27 and 32 above) and there was no argument that their doctrinal sources in the meantime had changed or had led to confusion among believers.
73. In so far as it may be inferred from the Constitutional Court ’ s decision that the non-registration of the applicant association was necessary in order “ to prevent religious conflicts ” (see paragraph 33 above), the Court observes that no evidence was produced that the denomination seeking recognition presented any danger for a democratic society. In these circumstances, and having regard to the fact that the applicant association had lawfully existed and operated in the respondent State as an independent religious community for many years before the 2007 Act had entered into force, the Court considers that the reasons for refusing registration of the applicant association should have been particularly weighty and compelling. In the present case, no such reasons were put forward by the domestic authorities (see Moscow Branch of the Salvation Army, § 96, and Kimlya and Others, § 101, both cited above).
74. In the light of the foregoing, the Court considers that the interference with the applicant association ’ s right to freedom of association and religion was not justified. There has therefore been a violation of Article 11 of the Convention read in the light of Article 9.
(b) Alleged discrimination against the applicants
75. The applicants complained that the refusal of the national authorities to recognise the continuing status of the applicant association as a religious entity and allow re- registration under the 2007 Act had also been in violation of Article 14 of the Convention.
76. Having regard to the facts of the case, the submissions of the parties and its above findings under paragraphs 46, 66 and 74, 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 complaint (see the OOA case, cited above, § 123).
77. The applicants reiterated their complaint that no oral hearing had been held in either the recognition or registration proceedings. Resolution of the legal issues depended on a proper establishment and assessment of facts. In this connection, they submitted that “ [ the domestic courts ’ ] failure to consider all relevant facts, including written evidence and documents led to incorrect application of the law”. Their position in the proceedings would have been better had they been given the opportunity to present the factual and legal basis of their case at an oral hearing.
78. The Government submitted that the registration proceedings had involved exclusively legal issues. They had not involved any issues of fact which had been disputed between the parties. Accordingly, the issues decided by the courts had not required an oral hearing. The Government made no comment regarding the recognition proceedings.
79. The Court notes that, in principle, the civil-law limb of this provision applies to proceedings concerning the registration of associations by which they obtain legal personality. To this extent, Article 6 applies at least to the registration proceedings complained of (see Religionsgemeinschaft der Zeugen Jehovas and Others, cited above, §§ 107 and 108).
80. The Court reiterates at the outset that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. Accordingly, unless there are exceptional circumstances which justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance. A hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be made explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see Juričić v. Croatia, no. 58222/09, § 87, 26 July 2011). A hearing may not be necessary, for example, when the case raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties ’ written observations (see Meimanis v. Latvia, no. 70597/11, § 49, 21 July 2015, and Keskinen and Veljekset Keskinen Oy v. Finland, no. 34721/09, § § 31 and 33, 5 June 2012). In this connection, it is to be noted that Article 6 of the Convention does not guarantee the right to personal presence before a civil court, but rather a more general right to present one ’ s case effectively before the court (see Margaretić v. Croatia, no. 16115/13, § 127, 5 June 2014).
81. Turning to the present case and even assuming that Article 6 applies also to the recognition proceedings, the Court notes that in those proceedings the applicant association did not ask for an oral hearing to be held either before the registration court or before the Court of Appeal. It must therefore be considered that it unequivocally waived its right to a hearing in those proceedings.
82. As to the registration proceedings, the applicant association, which was represented by a lawyer of its own choosing, did not request that an oral hearing be held before the registration court despite the fact that that court examined the case on two occasions. In the Court ’ s view, the applicant association could have been expected to request an oral hearing before that court if it attached importance to it. In the ensuing proceedings, the applicant association ’ s requests for an oral hearing to be held both before the Court of Appeal and the Constitutional Court were to no avail (see paragraphs 25, 29 and 31 above). The Court will therefore need to examine whether there were exceptional circumstances which justified dispensing with such a hearing.
83. In this connection, the Court refers to the above findings that the impugned interference fell foul of the necessity test owing to the failure of the domestic courts to provide relevant and sufficient reasons for their decisions (see paragraphs 7 1 - 74 above). Here the Court accepts the Government ’ s argument that that failure concerned purely issues of law regarding facts which were not disputed between the parties (see paragraph 78 above). Furthermore, there is nothing to suggest that there was any need that would have required the applicant association to explain any personal experience in a hearing (see, conversely, Selmani and Others v. the former Yugoslav Republic of Macedonia, no. 67259/14, § 41, 9 February 2017). In the absence of more substantiated explanation by the applicant association (see paragraph 77 above), the Court is satisfied that the legal issues at stake did not require an oral hearing and that the written procedure, which was applied in the present case, provided the applicant association with an opportunity to put forward effectively its arguments.
84. The foregoing considerations are sufficient to enable the Court to conclude that it was not necessary to hold an oral hearing in the present case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
85. 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.”
86. The applicants claimed 5,000 euros (EUR) each in respect of non ‑ pecuniary damage for the alleged violations.
87. The Government contested this claim as excessive and unsubstantiated.
88. The Court accepts that the applicant association has suffered non ‑ pecuniary damage as a consequence of the violation of its right to freedom of association and freedom of religion. Deciding on an equitable basis and having regard to its case-law in similar cases, the Court awards the applicant association the global sum of EUR 5,000 euros, plus any tax that may be chargeable on this amount.
89. The applicants also claimed a total of EUR 4,280 (EUR 1,430 for each applicant) for the costs and expenses incurred in the proceedings before the Court. This figure represented their lawyers ’ fees for the legal research, preparation and submission of the applications, written pleadings and other correspondence with the Court. The applicants ’ representatives submitted an itemised list of costs for each action taken calculated on the basis on the tariff list of the Macedonian Bar and asked that the amount claimed be paid directly to their bank account.
90. The Government contested the sum claimed as excessive, unsubstantiated and not actually incurred. They argued that the tariff list of the Macedonian Bar had not been correctly applied. Lastly, the applicants had failed to submit any evidence attesting to the payment of the amount claimed.
91. 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). That is to say, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress (see Belchev v. Bulgaria, no. 39270/98, § 113, 8 April 2004, and Hajnal v. Serbia, no.36937/06, § 154, 19 June 2012). In the present case, having regard to the available material and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the legal representation of the applicant association in the proceedings before the Court. This amount is to be paid into the bank account of its representatives, plus any tax that may be chargeable to the applicant association.