CEDH · CASELAW;CLIN;ENG — 16 novembre 2017

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"the former Yugoslav Republic of Macedonia" - 3532/07 Judgment 16.11.2017 [Section I] Article 11 Article 11-1 Freedom of association Refusal to register association as a religious entity: violation Facts – The applicant association’s applications for registration as a religious group had been refused and their appeals dismissed. Before the European Court it alleged, inter alia , that the refusal of the respondent State to register it violated its rights to freedom of religion and association. Law – Article 11 interpreted in the light of Article   9: It was accepted that there had been an interference with the applicant association’s rights under Article   11, interpreted in the light of Article   9. The interference in question had been “prescribed by law” and pursued a “legitimate aim”, namely that of the protection of the rights and freedoms of others. The central issue was whether the non-recognition by the respondent State of the applicant association as a religious entity had been “necessary in a democratic society”. (a)     Alleged formal deficiencies – The domestic authorities had referred to several formal deficiencies in justification of the refusal to register the applicant association. Those included: that the application for registration had been submitted by an unauthorised person outside the statutory time-limit; that the property-related provisions of the applicant’s Charter had been contrary to the relevant legislation; that the applicant association had not specified whether it would operate as a church, community or a group and that it had not described itself as a voluntary association of physical persons. The decisions of the national courts had been focused on purely formalistic aspects, not on the substance of the application and, moreover, did not make clear what their exact import was for allowing the applicant’s registration. The reasons adduced regarding the formal deficiencies for registration were not “relevant and sufficient”. (b)     The applicant association’s “foreign origin” – The Court had not been presented with any evidence in support of the Government’s assertion that the applicant association had been set up by a foreign church or State. Despite the fact that the applicant’s leader had been appointed by the Serbian Orthodox Church, the founders were nationals of the respondent State. In any event, it did not appear that the relevant legislation precluded registration of a religious organisation founded by a foreign church or State. (c)     The applicant association’s intended name – The applicant initially sought registration as “Orthodox Ohrid Archdiocese” and later as “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy”. Under domestic law the relevant authorities were required to examine the application in the light of the statutory requirement precluding registration of a religious entity whose name did not (substantially) differ from the name of an already registered organisation. In the context of the freedom of association this was a relevant component since the name was among the most important elements identifying an association, be it religious or otherwise, and distinguished it from other such organisations. However, in the present case the name chosen for the applicant was sufficiently specific as to distinguish it from the Macedonian Orthodox Church-Ohrid Archdiocese. Furthermore, there was nothing to suggest that the applicant association intended to identify itself with the Macedonian Orthodox Church. On the contrary, during the impugned proceedings it had continuously and expressly refused to be confused or associated with it. Despite the domestic finding that only the Macedonian Orthodox Church had the “historical, religious, moral and substantive right” to use the name “Ohrid Archdiocese”, there was no suggestion that the use of that name by the applicant association would violate the rights and freedoms, in particular the religious ones, of others. (d)     The applicant association’s alleged intention to become a parallel religious entity to the Macedonian Orthodox Church – The State’s duty of neutrality and impartiality, as defined in the Court’s case-law, was incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed. While it was apparent that the autocephaly and unity of the Macedonian Orthodox Church was a matter of utmost importance for adherents and believers of that Church, and for society in general, that could not justify, in a democratic society, the use of measures which, as in the present case, went so far as to prevent the applicant association comprehensively and unconditionally from even commencing any activity. The role of the authorities in a situation of conflict between or within religious groups was not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerated each other. Furthermore, there could be no justification for measures of a preventive nature to suppress freedom of assembly and expression, other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used might appear to the authorities, and however illegitimate the demands made might be. At no stage in the registration proceedings or in the proceedings before the Court was it alleged that the applicant association advocated the use of violence or any anti-democratic means in pursuing its aims. (e)     Conclusion – In view of the foregoing, it could not be said that the reasons provided by the national authorities, taken as a whole, were “relevant and sufficient” to justify the interference and the manner in which the domestic authorities refused the recognition of the applicant association as a religious organisation could not be accepted as necessary in a democratic society. Conclusion : violation (unanimously). Article 41: EUR 4,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes