In Bektashi Community and Others v ‘the former Yugoslav Republic of Macedonia’  ECHR 325, the applicants, the Bektashi Community, a religious association, and two of its members, Mr E Brahimaj, an Albanian national, and Mr A Sulejmani, a Macedonian national, complained that, when new legislation entered into force in 2007, the domestic courts in the Republic (‘FYROM’) refused to allow the Bektashi Community to retain its status as a religious organisation and to accept its fresh application for registration.
The association operated as an officially-recognised religious organisation from 1993. When new legislation on the legal status of churches, religious communities and groups entered into force in 2007, the association requested that the registration court recognise its continuing legal status. Its request was refused on a formal ground: that it had not been registered prior to 1998 but had only been listed in 2000. It then made a fresh application for registration under the new legislation but in 2010 this request was also refused, mainly because the courts found that its name and doctrinal sources were identical to those of another already-registered religious organisation and that that could create confusion among believers.
Relying on Article 9 (thought, conscience, and religion), Article 11 (assembly and association) and Article 14 (discrimination), the applicants complained about the domestic courts’ decisions refusing to recognise the association as a religious organisation or to register it anew. They also argued a breach of Article 6 §1 (fair hearing) in that no oral hearing was held in either the recognition or registration proceedings.
The Court declared the complaint under Article 6 inadmissible on the grounds that it had not been necessary for the domestic authorities to hold an oral hearing in the present case. However, the Court held unanimously that there had been a violation of Article 11 of the Convention read in the light of Article 9.
As to the intended name of the applicant association, 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 had stated that the term “Bektashi” was “decisive and represented a synonym for the religious entity” and had held that the registration of the association under the intended name would create confusion among the believers. The ECtHR disagreed: the name it had chosen was sufficiently specific to distinguish it from the “Ehlibeyt Bektashi Religious Group of Macedonia”. In addtion, it was to be a religious community – which was different from the form of association of the “Ehlibeyt Bektashi Religious Group of Macedonia”. Nor had the domestic courts provided 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” .
The other ground relied on by the domestic courts was 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”. Tthe domestic courts had not had any prior consultation with the applicants before making that finding, notwithstanding that the registration court could have asked for an additional explanation. In the Court’s view, that assessment and interpretation 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” .
Furthermore, no explanation was given for the resulting finding of the fresh scrutiny carried out under the 2007 Act. Both the applicant association and the “Islamic Religious Community” had been active and had already existed in FYROM for many years and there was no argument that their doctrinal sources in the meantime had changed or had led to confusion among believers . Furthermore:
“In so far as it [might] be inferred from the Constitutional Court’s decision that the non-registration of the applicant association was necessary in order ‘to prevent religious conflicts’ … no evidence was produced that the denomination seeking recognition presented any danger for a democratic society” .
In the circumstances, the Court considered that the reasons for refusing registration of the applicant association should have been particularly weighty and compelling – which clearly they were not . The interference with the applicant association’s right to freedom of association and religion had not, therefore, been justified and there had been a violation of Article 11 ECHR read in the light of Article 9.