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Published online by Cambridge University Press: 15 May 2020
This article offers a short study of the conjugation of freedom of religion, freedom of association and the legal status of religions and churches. Human rights are elaborated as defined in international human rights law, accentuated by the jurisprudence of the European Court of Human Rights. A compliance case that came before the Constitutional Court of the Republic of Serbia provides a national jurisprudential example useful for the analysis of relations between human rights and the legal status of a church. Analysis of the law is both horizontal and vertical: a description of norms is intertwined with a discussion of principles of identity and equality. The article explores whether the principles of human rights and freedoms and the norms regulating the legal status of a church are consistent with each other; whether these principles are independent and how their mutual relationship influences the application and interpretation of the law; and whether the norms prescribed by international law or in national jurisprudence can be applied independently of canon law, or whether application of the law has to take into account specific religious jurisdictions and relations between churches which are rooted in their autonomous canon law.
1 For further details, see Edge, Peter, Religion and Law: An Introduction (Aldershot, 2006)Google Scholar.
2 Taylor, Paul M., Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge, 2005)CrossRefGoogle Scholar.
3 Rivers, Julian, The Law of Organised Religions: Between Establishment and Secularism (Oxford, 2010), 33CrossRefGoogle Scholar.
4 In the human rights instruments produced after the Second World War, these were combined into one article: thought, conscience and religion.
5 United Nations, Office of the High Commissioner for Human Rights, International Convention on the Prevention and Punishment of the Crime of Genocide, online at: <https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx>, accessed 21 August 2019.
6 International Convention on Elimination of all Forms of Racial Discrimination, online at: <https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx>, accessed 21 August 2019.
7 Universal Declaration on Human Rights, Articles 18, 20, online at: <https://www.un.org/en/universal-declaration-human-rights/>, accessed 21 August 2019.
8 International Covenant on Civil and Political Rights, Articles 18, 22, online at: <https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf>, accessed 21 August 2019.
9 European Convention on Protection of Human Rights and Fundamental Freedoms, Articles 9, 11, online at: <https://www.echr.coe.int/Documents/Convention_ENG.pdf>, accessed 21 August 2019.
10 Further to Resolution 1986/20, in 2000 the United Nations Commission on Human Rights appointed a ‘Special Rapporteur on Religious Intolerance’, whose title was later amended to ‘Special Rapporteur on Freedom of Religion or Belief’. The appointment of a Special Rapporteur was endorsed by UN ECOSOC Decision 2000/261 and UN General Assembly Resolution 55/97.
11 Council of Europe, European Commission for Democracy through Law (Venice Commission), Guidelines for Legislative Reviews of Laws affecting Religion or Belief, Venice, 18–19 June 2004, online at: <https://www.venice.coe.int/webforms/events/>, accessed 21 August 2019. The guidelines were revised by the Venice Commission in 2014.
12 The commitment, according to §16.3 of the Vienna Document of 1989, is to ‘grant upon their request to communities of believers, practising or prepared to practise their faith within the constitutional framework of their States, recognition of the status provided for them in their respective countries’.
13 OSCE, Córdoba Declaration, adopted on 9 June 2005, online at: <https://www.osce.org/cio/15548?download=true>, accessed 21 August 2019.
14 Council of Europe, Venice Commission, and OSCE Office for Democratic Institutions and Human Rights, Draft Joint Guidelines on the Legal Personality of Religious or Belief Communities, Opinion no. 673/2012, 21 May 2014, online at: <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)023-e>, accessed 21 August 2019.
15 United Nations Digital Library, General Comment no. 22, adopted by the UN Human Rights Committee in 1993. online at: <https://digitallibrary.un.org/record/832961>, accessed 21 August 2019.
16 UN General Assembly, A/RES/36/55, 25 November 1981. Article 6 of the UNHCR's Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, includes as freedoms of religion: the establishment and maintenance of a place where worship can be expressed, the establishment and celebration of holy days specific to the religion, and the organization of ceremonies on a regular basis, as well as the funding of a religious organization, the making of voluntary contributions and the management of funds: online at: <https://www.refworld.org/docid/3b00f02e40.html>, accessed 21 August 2019.
17 Peter Edge, Legal Responses to Religious Differences (The Hague, 2002), 39–40.
18 Sinani, Danijel, ‘Dawn by Law: Alternativni religijski koncepti i srpski Zakon o crkvama i verskim zajednicama’ [‘Dawn by Law: Alternative Religious Concepts and the Serbian Act on Churches and Religious Communities’], Antropologija 3/10 (2010), 121–32Google Scholar; Marinković, Tanasije, ‘Prilog za javnu raspravu o ustavnosti Zakona o crkvama i verskim zajednicama’ [‘Contribution to the Public Debate on the Constitutionality of the Act on Churches and Religious Communities’], Anali Pravnog fakulteta u Beogradu 1 (2011), 367–85Google Scholar.
19 Constitution of the Republic of Serbia, Article 43, online at the website of the Constitutional Court: <http://www.ustavni.sud.rs/page/view/139-100028/ustav-republike-srbije>, accessed 21 August 2019.
20 ‘Zakon o crkvama i religijskim zajednicama’ [‘Act on Churches and Religious Communities’], Službeni glasnik Republike Srbije [Official Gazette of the Republic of Serbia], no. 36/06 (2006), online at Legislation Online: <http://www.legislationline.org/documents/id/19516>, accessed 21 August 2019.
21 See further Nenad Đurđević, Ostvarivanje slobode veroispovesti i pravni položaj crkava i verskih zajednica u Republici Srbiji (The Exercise of Freedom of Religion and the Legal Status of Churches and Religious Communities in the Republic of Serbia) (Belgrade, 2009).
22 The modern Principality of Serbia came into being in 1804. The Kingdom of Serbia existed from 1882 to 1918 and the Kingdom of Yugoslavia from 1918 to 1941, when Yugoslavia was invaded and partitioned by Germany and other Axis powers.
23 Socialist Yugoslavia existed from 1945 until 1992.
24 Constitutional Court, Case IUz-455/2011, decision of 16 January 2013.
25 Whereas two to five founders are often sufficient for associations, for religious organizations ten or more are usually required in order to register. For example, Russia and Kazakhstan require ten members, Poland fifteen, Greece twenty, Hungary one hundred and the Czech Republic three hundred.
26 This general attitude has been stated in numerous cases, such as Kokkinakis v. Greece, §31; Buscarini and Others v. San Marino, §34.
27 Alevism, a medieval syncretistic form of Islam (Sinan Işık v. Turkey; Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi v. Turkey); Buddhism (Jakóbski v. Poland); the different Christian denominations (for example, Sviato-Mykhaïlivska Parafiya v. Ukraine; Savez crkava «Riječ života» and Others v. Croatia); Hinduism (Kovaļkovs v. Latvia); Islam (Hassan and Tchaouch v. Bulgaria; Leyla Şahin v. Turkey); Judaism (Cha'are Shalom Ve Tsedek v. France; Francesco Sessa v. Italy); Sikhism (Phull v. France; Jasvir Singh v. France); Taoism (X. v. the United Kingdom).
28 Aumism of Mandarom (Association des Chevaliers du Lotus d'Or v. France); the Bhagwan Shree Rajneesh movement, known as Osho (Leela Förderkreis e.V. and Others v. Germany); the Revd Sun Myung Moon's Unification Church (Nolan and K. v. Russia; Boychev and Others v. Bulgaria); Mormonism, or the Church of Jesus Christ of Latter-Day Saints (The Church of Jesus Christ of Latter-day Saints v. the United Kingdom); the Raëlian Movement (F. L. v. France); Neo-Paganism (Ásatrúarfélagið v. Iceland); the ‘Santo Daime’ religion, whose rituals include the use of a hallucinogenic substance known as ayahuasca (Fränklin-Beentjes and CEFLU-Luz da Floresta v. the Netherlands); Jehovah's Witnesses (Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria; Jehovah's Witnesses of Moscow and Others v. Russia).
29 Pacifism (Arrowsmith v. the United Kingdom); principled opposition to military service (Bayatyan v. Armenia); veganism and opposition to the use of products of animal origin or tested on animals (W. v. the United Kingdom); opposition to abortion (Knudsen v. Norway; Van Schijndel and Others v. the Netherlands).
30 Djukic, Dalibor, ‘Evropski sud za ljudska prava i autonomija crkava i verskih zajednica’ [‘The European Court of Human Rights and the Autonomy of Churches and Religious Communities’], Harmonius: Journal of Legal and Social Studies in South-East Europe 1 (2013), 30–43Google Scholar.
31 Metropolitan Church of Bessarabia and Others v. Moldova, §§115–16.
32 Ásatrúarfélagið v. Iceland, §27; Darby v. Sweden, §45
33 Metropolitan Church of Bessarabia and Others v. Moldova, §129.
34 Sviato-Mykhaïlivska Parafiya v. Ukraine, §122.
35 Cârmuirea Spirituală a Musulmanilor din Republica Moldova v. Moldova; Church of Scientology of Moscow. v. Russia; Lajda and Others v. the Czech Republic.
36 See further Timothy [Kallistos] Ware, The Orthodox Church, new edn (Harmondsworth, 1997), 5–8; Tim Grass, Modern Church History (London, 2008), 44–57.
37 In contrast, a number of Christian denominations include ‘Jesus’ in their name. The reason for this lies in the differences between religions and churches: names of religions can be used in various versions, while the name of a church tends to be unique and recognizable.
38 Republic of Serbia, Ministry of Religion, decision no. 080-00-45/2007-01, 18 June 2008.
39 The Supreme Court of Serbia delivered its judgment on 16 September 2009, ruling on procedural grounds that the complete appeal procedure must be gone through again: case no. U. 5625/2008.
40 The procedure was formulated according to the Act on Religious Communities and Religious Groups (Official Gazette, no. 35/1997), and later the Act on the Legal Status of Churches, Religious Communities and Religious Groups (Official Gazette, no. 113/2007); ECtHR, Orthodox Ohrid Archdiocese (Greek Orthodox Ohrid Archdiocese of the Pec Patriarchy [sic]) v. The Former Yugoslav Republic of Macedonia, Judgment, 9 April 2018, online at: <https://hudoc.echr.coe.int/eng?i=001-178890>, accessed 21 August 2019.
41 Dimšo Perić, Crkveno pravo [Church Law] (Belgrade, 2006), 23–5.
42 The basis is in the Constitution of the Republic of Macedonia (1991), Article 19 and Amendment VII, available on the website of the Constitutional Court of the Republic of Macedonia, online at: <http://ustavensud.mk/?page_id=5353&lang=en>, accessed 21 August 2019.
43 The name ‘Macedonian Orthodox Church’ was long used as a synonym for the Ohrid Archdiocese, which in canon law fell under the jurisdiction of the Serbian Orthodox Church; thus the MaOC was never autocephalous.
44 The ECtHR gave the following explanation of the Pec Patriarchy: ‘The Pec Patriarchy forms part of the name of the Serbian Orthodox Church and expresses the historical continuity of the Serbian Orthodox Church as canonical heir of the Pec Patriarchy’: Orthodox Ohrid Archdiocese v. The Former Yugoslav Republic of Macedonia, Judgment, §30.
45 Ibid., §121.
46 The ECtHR has elaborated on the neutrality of the state more than once, for example, Hasan and Chaush v. Bulgaria, Judgment, 26 October 2000; Metropolitan Church of Bessarabia and others v. Moldova, Judgment, 13 December 2001; Miroļubovs and Others v. Latvia, Judgment, 15 September 2009.