THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55170/00 
by Vasko KOSTESKI 
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 5 April 2005 as a Chamber composed of:

Mr B.M. Zupančič, President,

Mr L. Caflisch,

Mr C. Bîrsan,

Mrs M. Tsatsa-Nikolovska,

Mr V. Zagrebelsky,

Mrs A. Gyulumyan,

Mr David Thór Björgvinsson, judges,

and Mr M. Villiger, Deputy Section Registrar,

Having regard to the above application lodged on 10 December 1999,

Having regard to the partial decision of 3 May 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Vasko Kosteski, is a citizen of the former Yugoslav Republic of Macedonia, who was born in 1961 and lives in Bitola. He is represented before the Court by Mr T. Adjiev, lawyer practising in Bitola.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Proceedings regarding the applicant's absence from work on 29 January 1998

On 29 January 1998 the applicant did not appear at work at the Electricity Company of Macedonia, a public utility company, despite the instruction of his superior according to which no employee was allowed to take any days off for a week due to the heavy workload. The applicant justified his absence with the fact that he had celebrated a Muslim religious holiday which was a public holiday for the citizens of Muslim faith under the Constitution and the respective law.

On 3 February 1998 the disciplinary committee of the company found that the applicant had breached the disciplinary rules and been absent from work without authorisation. The committee decided not to dismiss the applicant from work but fined him with a 15% cut on his salary for three months.

On 12 February 1998 the applicant complained to the second instance committee, arguing that there had been a decision of the Ministry of Labour and Social Politics to the effect that 29 January 1998 had been a public holiday for citizens of Muslim faith. As a member of this religious community, he had informed his superior about his absence the day before.

On 27 February 1998 the second instance committee upheld the decision of 3 February 1998, on the ground that the applicant had breached the instruction of 26 January 1998 by which no employee was allowed to take days off because of the heavy workload.

On 1 April 1998 the applicant appealed to the Bitola Municipal Court, claiming that his rights set out in Articles 9 and 19 of the Constitution were breached. In particular, he had been fined only because he had celebrated the Muslim religious holiday and had not come to work on that day, in accordance with the decision of the Ministry of Labour and Social Politics according to which 29 January 1998 was a public holiday for the citizens of Muslim faith.

At the hearing before the Bitola Municipal Court the applicant stated that he expressed his religious beliefs individually without going to pray in mosques. He further stated that he had not come to work on the Christian public holidays, but neither had any other Muslim employee.

On 24 March 1999 the Bitola Municipal Court dismissed the applicant's appeal on the ground that he did not adduce any evidence to prove that he was really of Muslim faith.

On 6 May 1999 the applicant appealed to the Bitola Appellate Court. He argued that religious beliefs were an inner matter for every person and that the courts had no right to ask him for evidence to corroborate his statement regarding his religious confession.

On 14 June 1999 the Bitola Appellate Court dismissed the applicant's further appeal. It stated that it was true that religious beliefs were an inner matter for an individual person. However, in the instant case it was to be established whether the applicant's absence from work was justified. Therefore, it was important to establish the applicant's religious confession. The lower court was correct in dismissing the applicant's complaint as the applicant had not proven that he had been a Muslim since he had also celebrated the Christian religious holidays. The applicant could not assert a right to enjoy public holidays of two different religions.

2. Proceedings regarding the applicant's absence from work on 7 April 1998

On 14 April 1998 the applicant was again fined for not having appeared at work on 7 April 1998 at the time of the celebration of another Muslim religious holiday, Bayram. The fine corresponded to 15% of his monthly salary over a six-month period.

On 8 May 1998 the applicant's complaint was dismissed by the second instance committee.

The applicant complained to the Bitola Municipal Court that the Electricity Company had deprived him of his right to an additional paid public holiday for Muslim citizens although he had stated before the second instance committee that he was Muslim. However, he had not considered it necessary to change his name and surname accordingly and wished to worship on his own.

On 27 May 1999 the Bitola Municipal Court dismissed the applicant's appeal. The court stated that under the relevant law persons of Muslim faith enjoyed the right to paid religious holidays. However, the applicant had not given any evidence to corroborate his statement that he was a Muslim. He had never been absent from work at the time of the Muslim religious holidays before 29 January 1998. On the contrary, he had celebrated the Christian religious holidays, his parents were Christians and his way of life and diet showed that he was of Christian faith. From his employment contract and insurance it transpired that he had been registered as a Macedonian without any mention of being Muslim. The court held that the applicant was a self-proclaimed Muslim in order to justify his unjustified absence from work.

On 27 September 1999 the Bitola Appellate Court dismissed the applicant's appeal on the ground that while it was true that the religious beliefs were an inner matter, he had breached the disciplinary rules and had not come to work. He therefore had to justify his absence and it had been necessary to establish through evidence whether the applicant was truly of Muslim faith. There was however no evidence to this effect, as the applicant, an ethnic Macedonian, had been absent from work during the Christian religious holidays and had celebrated them. Therefore, his absence from work was unjustified.

3. The proceedings before the Constitutional Court

On 18 November 1999 the applicant complained to the Constitutional Court that through disciplinary sanctions and judicial decisions he had been discriminated against because of his religious beliefs. In particular, for unknown reasons the courts had not considered his statement that he was of Muslim faith to be credible and had asked him for further proof. He claimed that he should not be required to produce evidence of his religious beliefs.

On 12 July 2000 the Constitutional Court refused to examine the applicant's allegations in respect of the decisions of 3 February, 27 February, 14 April and 8 May 1998 of the public utility company, the decisions of 24 March and 27 May 1999 of the Bitola Municipal Court and the decision of 14 June 1999 of the Bitola Appellate Court for being lodged out of the two-month time limit provided for in the Rules of the Constitutional Court.

The Constitutional Court however examined the applicant's complaint in regard of the Bitola Appellate Court's decision of 27 September 1999. It noted that the applicant requested the exercise of rights relating to freedom of religion but that he did not produce any evidence concerning his beliefs and refused to do so. As concerned the initial question as to whether when exercising a right to a paid public holiday based on religion it was enough for a citizen subjectively to assert his faith, it held:

“Taking into consideration that the rule of law is fundamental to the constitutional order of the Republic of Macedonia under Article 8, paragraph 1(3) of the Constitution, under which it should be implied that objective legal norms take precedence over subjective will when requesting the exercise of legal rights, and given the viewpoint of the representatives of the Christian and Islamic religions ... (the dean at the Theological Faculty in Skopje and the head of the Islamic community in Macedonia) that there are objective criteria to determine whether a citizen holds Christian and Islamic religious beliefs ... the Court held that it was necessary to establish objective facts related to the exercise of a right and to obtain evidence of them in a situation where a right is requested.

In line with this, with a view to establishing objective facts to assess whether there was discrimination on religious grounds in this case, the court held a public hearing (on 27 April 2000) and three consultative discussions (on 16 and 25 May and 8 June 2000) and on the basis of their contents, in particular, on the basis of the applicant's statements, it was established that the contents of his religious belief (even their form) objectively did not correspond to those of the Muslim faith (and its form) on several grounds (for example: a lack of knowledge of the basic, most important tenets of the religion through its essence is expressed ... or of the way in which one 'joins' the Muslim faith, etc.)”

The court concluded that the applicant had not been discriminated against on the basis of his religious beliefs by the requirement to establish the objective facts and dismissed the complaint.

B.      Relevant domestic law

1.  1991 Constitution

Article 9, as far as relevant, provides as follows:

 
(1)  Citizens of the Republic of Macedonia are equal in their freedoms and rights, regardless of sex, race, the colour of skin, national and social origin, political and religious beliefs, property and social status. 
(2)  All citizens are equal before the Constitution and law.”

Article 19, as far as relevant, provides as follows:

“(1)  The freedom of religious confession is guaranteed. 
(2)  The right to express one's faith freely and publicly, individually or with others is guaranteed.”

Article 110, as far as relevant, provides as follows:

“The Constitutional Court of Macedonia:

...

3) safeguards the freedoms and rights of the individuals and citizens concerning the freedom of communication, conscience, thought and action, and the prohibition of discrimination among citizens on the grounds of sex, race, religion or, national, social or political affiliation;”

2. Rules of the Constitutional Court

Section 51 provides that a person who considers that he or she is a victim of a violation of one of the rights set out in Article 110 § 3 of the Constitution shall have the right to file an application with the Constitutional Court within two months from the day he was served with a binding decision or a judgment.

3. The Public Holidays Act

It provides, inter alia, that Christmas and Easter shall be public holidays for all the citizens of the former Yugoslav Republic of Macedonia regardless of their confession and that Ramazan Bajram and Kurban Bajram shall be public holidays for the citizens of Muslim faith.

COMPLAINTS

1.  The applicant complained that his right to respect for freedom of religion guaranteed by Article 9 of the Convention was breached as a consequence of the judicial decisions depriving him of his right to enjoy additional public holidays provided for the citizens of Muslim faith. He further alleges that the domestic courts should not have inquired deeper into his religious beliefs as they were his inner matter.

2.  The applicant complains under Article 14 taken together with Article 9 that he was discriminated against in comparison with other citizens of Muslim faith who need not prove their affiliation to that confession in order to enjoy the rights provided for by the Public Holidays Act.

THE LAW

The applicant complained that his right to respect for freedom of religion guaranteed by Article 9 of the Convention was breached as a consequence of judicial decisions depriving him of his right to enjoy additional public holidays provided for the citizens of Muslim faith and that he was discriminated against since other citizens had not been required to prove their faith to enjoy religious holidays.

Article 9, as far as relevant, provides as follows:

“1.  Everyone has the right to freedom of ... 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.”

Article 14 provides:

“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.”

A.      The parties' submissions

The Government submitted that the right to freedom of religion was protected in the Constitution and that Article 4 of the Law on Religious Communities and Groups inter alia prohibited a citizen from being deprived of his rights due to his membership or practice of a religion. They denied that the State had in this case deprived the applicant of his right to manifest his religion freely. In their view it was necessary for the courts in deciding whether or not his absence from work had been justified to determine whether or not he was a Muslim. Since however he was requesting the exercise of a right, it was not enough for him subjectively to assert the position. Since he failed to provide objective evidence, it was for the courts to draw conclusions from available evidence and they established that he had no knowledge of the Muslim faith, did not follow its diet and that he had previously been observing non-working Christian holidays. Contrary to the applicant's assertion, it was possible to prove adherence to the Islamic religion, as shown by the viewpoint of the head of the Islamic community in Macedonia. They referred to the public confession of certain dogmas (e.g. belief in the only God) and noted that the Muslim religion imposed a lifestyle whereby the believer publicly and regularly carried out acts such as the prayer five times a day, distributing charity, fasting during Ramadan and embarking on the pilgrimage to Mecca. They argued therefore that it was not contrary to Article 9 to require an individual, laying claim to certain rights, such as absence from work, to show that he is in fact an adherent of the religion claimed.

The Government submitted, as concerned Article 14, that the applicant was entitled to enjoy religious holidays without discrimination. However, while he claimed that his position should be regarded as analogous to the position of other Muslim believers, he overlooked the essential fact that he had not proved that he was in the same position as them. Given that the applicant's name had not indicated membership of the Muslim confession nor his way of life and that he had first declared himself to be a believer in proceedings to justify his absence from work, it was necessary for the domestic courts to establish whether he was in a comparable situation to other Muslim believers. While Muslim believers orally declared their faith and manifested it through their lifestyle and performance of religious duties, the applicant refused to show that he was in such a situation. The precondition for any finding of discrimination had therefore not been established.

The applicant submitted that the Government had failed to show why he should be required to prove that he belonged to a particular religion and suffer particular consequences if he failed. The requirement for unspecified evidence was an imposition on his inner conscience and made him feel of an inferior status as no others had been subject to additional conditions in order to join the Muslim religion. No other citizen had ever been required to prove their membership of a certain religion.

The applicant argued that the Government's criticisms of his conduct were unsubstantiated. He had not been unjustifiably absent since he had given notification in advance of his absence. He also had not celebrated Orthodox holidays; businesses however closed on such days and he could not work. As concerned his name, this had been given to him at birth and beliefs could legitimately vary afterwards. He had never been interviewed or seen eating by any officials from the relevant authorities and it was not substantiated that his diet or knowledge of Islam was lacking. In any event it was of limited relevance and it would have been immoral and uncivilized to put him to some kind of test in this way, in particular as no-one else had been required to prove their assertions of faith. He also argued that this would prevent uneducated people from joining a religion and allow the educated to join many.

The applicant submitted that national legislation together with the Constitution and the Convention gave him the right to freely choose his religion, to express it and change it, without having to prove it. The requirement that he had to prove his religious affiliation was contrary to Article 9 and he was treated differently from other citizens contrary to Article 14 as a result.

B.      The Court's assessment

The Court recalls that the remaining scope of the application concerns the decisions taken concerning the applicant's failure to work on 7 April 1998, his complaints concerning the earlier decisions having been rejected on 3 May 2001 for non-exhaustion of domestic remedies.

Having regard to the applicant's remaining complaints and the parties' submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court by a majority

Declares the remainder of the application admissible, without prejudging the merits of the case.

Mark Villiger Boštjan M. Zupančič Deputy Registrar President

KOSTESKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION


KOSTESKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION