The ECHR found a violation of the requirements of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 11 of the Convention for the Protection of Human R Сведения: 2018-08-31 15:55:27

The ECHR judgment of 16 November 2017 on the case "Orthodox Ohrid Archdiocese" ("Orthodox Ohrid Archdiocese of the Pec Patriarchy") against Macedonia "( application No. 3532/07).

In 2007, the applicant association was assisted in the preparation of the application. Subsequently, the application was communicated to Macedonia.

In the case, the complaint of the association-applicant was successfully considered for refusal to register the association as a religious organization. The case involved a violation of the requirements of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


The applications of the applicant association for registration as a religious organization were rejected, as were her complaints of refusal. In the European Court, in particular, she argued that the refusal of the respondent Government to register her violated her rights to freedom of religion and association.


ISSUES OF LAW


Article 11 of the Convention in the light of article 9 of the Convention. It is acknowledged that there has been an interference with the right of the applicant association in accordance with article 11 of the Convention, interpreted in the light of article 9 of the Convention. This interference was "prescribed by law" and pursued a "legitimate aim", namely the protection of the rights and freedoms of others. The central question was whether the authorities of the respondent State did not recognize the applicant association as a religious organization "necessary in a democratic society".

(a) Expected formal weaknesses. The Macedonian public authorities referred to several formal deficiencies justifying the refusal of registration of the applicant association: the application for registration was filed by an unauthorized person outside the prescribed time limit, the property provisions of the association's statute were inconsistent with the current legislation, the applicant association did not indicate whether it intended to function as church, community or group, and it did not characterize itself as a voluntary association of individuals. In their decisions, the courts of Macedonia focused on purely formal aspects, and not on the merits of the application, and, in addition, they did not explain what was their significance for allowing the registration of the applicant association. The above motives regarding formal deficiencies for registration were not "relevant and sufficient".

(b) "Foreign origin" of the applicant association. The European Court did not provide evidence in support of the Government's submission that the applicant association had been established by a foreign church or State. Despite the fact that the head of the applicant association was appointed by the Serbian Orthodox Church, its founders were citizens of the respondent State. In any case, it seems that the relevant legislation did not prevent the registration of a religious organization established by a foreign organization or state.

(c) The alleged name of the applicant association. The applicant association initially requested registration as "Orthodox Ohrid Archbishopric", and then as "Greek Orthodox Okhrid Archbishopric of the Pec Patriarchate". According to the legislation of Macedonia, the competent authorities were required to consider her application in the light of the statutory requirement preventing the registration of a religious organization whose name (essentially) did not differ from the already registered organization. In the context of freedom of association with others, it was an attributable component, since its name was one of the most important elements identifying the association, whether religious or otherwise, and distinguished it from other similar organizations. However, in the present case, the name chosen for the applicant association was specific enough to distinguish it from the Ohrid Archdiocese of the Macedonian Orthodox Church. In addition, there was no reason to believe that the applicant association intended to identify itself with the Macedonian Orthodox Church. On the contrary, during the disputed proceedings she consistently and directly refused to mix or associate herself with her. Despite the conclusion at the domestic level that only the Macedonian Orthodox Church had a "historical, religious, moral and material right" to use the name "Ohrid Archdiocese", there was no reason to believe that the name of the applicant association would violate the rights and freedoms of others, in particular, religious.

(d) The alleged intention of the applicant association to become a parallel religious organization in relation to the Macedonian Orthodox Church. Established in the case-law of the European Court of Justice, the duty of the state to be neutral and impartial is incompatible with any power of the state to assess the legitimacy of religious beliefs or ways of expressing these beliefs. While it is obvious that the autocephaly and unity of the Macedonian Orthodox Church were extremely important to the adherents and followers of this church and society as a whole, this could not justify in a democratic society the application of measures that, like in the present case, have gone so far as to completely and, of course, to prevent the applicant association from starting any activity.

The role of state bodies in the situation of conflict between religious groups or within them was not to eliminate the cause of conflicts by eliminating pluralism, but to ensure the tolerant attitude of competing groups to each other. In addition, there can be no justification for preventive measures with a view to suppressing freedom of association and expression, except in cases of incitement to violence or renunciation of democratic principles, however shocking and unacceptable certain views or expressions may seem to the authorities and no matter how unlawful be requirements. At no stage in the proceedings to register or hear the case before the Court, it was alleged that the applicant association advocated the use of violence or any other anti-democratic means in pursuit of its objectives.

(e) Conclusion. In view of the foregoing, it can not be asserted that the motives cited by the respondent State authorities as a whole were "relevant and sufficient" to justify the interference and the way that the Macedonian authorities denied recognition of the applicant association as a religious organization can not be considered necessary in a democratic society.


DECISION


The violation of the requirements of Article 11 of the Convention (unanimously) was committed in the case.


COMPENSATION


In the application of Article 41 of the Convention. The Court awarded the applicant association 4 500 euros in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.

 

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