AS TO THE ADMISSIBILITY OF
Application no. 67914/01
by Margarita ŠIJAKOVA and Others
against the Former Yugoslav Republic of Macedonia
The European Court of Human Rights (Third Section), sitting on 6 March 2003 as a Chamber composed of
Mr G. Ress, President,
Mr L. Caflisch,
Mr P. Kūris,
Mr R. Türmen,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mrs H.S. Greve, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 15 November 2000,
Having deliberated, decides as follows:
The applicants, Mrs Margarita Šijakova, Mrs Nada Elenova, Mrs Vladanka Risteska, Mrs Slobodanka Dimeska and Mrs Lila Štosic, are Macedonian nationals who were born in 1922, 1944, 1951, 1947 and 1947 respectively. The second applicant lives in Kavadarci, whereas the others live in Skopje, both in the Former Yugoslav Republic of Macedonia. They are represented before the Court by Mrs Margarita Šijakova, one of the applicants, a retired lawyer from Skopje.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants’ children, after attaining 18 years of age, joined the monastic order of the Macedonian Orthodox Church. The applicants admit that they themselves are practising Orthodox Christians. They allege that some of their children left their homes and joined the monastic order without the applicants’ prior knowledge or consent.
In 1998 the applicants lodged a complaint before the Constitutional Court (Уставен суд на Република Македонија), requesting it to assess the constitutionality of the internal rules of the Church (Устав на Македонската Православна Црква), in particular Rules 133, 171 and 173. In their submissions the applicants complained, inter alia, that they had been deprived of their rights as parents to receive proper care from their children in the event of illness or in old age because the religious canons allegedly forbade contacts between monks and their parents. Furthermore, they argued that the Church could not establish monasteries as another form of “life community” because the only such form recognised and protected by the Constitution was the “family”. They argued that the Church, in claiming ownership of monasteries, which were defined as life communities in its internal rules, was thereby asserting ownership of human beings, so that their children could be regarded as being held in slavery. They further alleged that their children had been deprived of many of their fundamental human rights and freedoms as a result of the monastic canons and the vows they had taken before entering the monasteries.
On 17 May 2000 the Constitutional Court rejected the applicants’ complaint on the ground of lack of jurisdiction to review the constitutionality of the Church’s internal rules. In its decision, it referred to and summarised the most relevant provisions of the Church’s internal rules and quoted the impugned provisions.
In particular, Rule 133 reads as follows:
“The monastery is a holy place having a temple and other necessary facilities, i.e. [it is] a life community of persons belonging to the monastic order who have joined together in a spiritual community and have taken a holy vow to live in accordance with the monastic canons.”
Rule 171 provides inter alia:
“All the possessions of the Macedonian Orthodox Church, bishoprics, church communities and monasteries comprise the property of the Macedonian Orthodox Church.”
Rule 173 § 1 reads as follows:
“All churches, monasteries, ... - holy waters, cemeteries and places of Orthodox worship, and their movable and immovable assets which are under the canonical and spiritual jurisdiction of the Macedonian Orthodox Church are the property of the Macedonian Orthodox Church.”
The Constitutional Court reiterated the constitutional guarantee of freedom of religion, and the right of every individual to express his or her faith and religious beliefs freely and publicly, either alone or in community with others. It stated that this freedom entailed the freedom to hold or not to hold religious beliefs and to practise or not to practise a religion. It further held that the manner in which an individual manifested his or her religious convictions or beliefs was a matter of private conscience, which ultimately determined the relationship between religious communities and the State. In that connection, the Constitutional Court observed that the Macedonian Orthodox Church and other religious communities and groups were separate from the State and were equal before the law, and none of them could have a distinct and privileged position or be controlled by the State.
The Constitutional Court further held that the Church and other religious communities or groups could not be regarded as institutional and formal associations of their adherents and that they had not been established pursuant to the provisions of the Law on Citizens’ Associations and Foundations. It therefore concluded that their internal rules were not a matter for constitutional review, as was the case with political parties, other associations and foundations whose programmes and internal regulations and their compliance with the Constitution might be assessed by the court.
On an unspecified date, most probably in 1999, the applicants lodged a criminal complaint (кривична пријава) with the Strumica Public Prosecutor’s Office (Основно јавно обвинителство Струмица), requesting it to institute criminal proceedings against the Bishop of Strumica, who had allegedly held their children in slavery, and had thus committed the criminal offence defined in Section 418 of the Criminal Code. Up to the time when the application was lodged the applicants had received no information about the outcome of the investigations by the competent authorities.
B. Relevant domestic law
Article 19 of the Constitution (Устав на Република Македонија) provides that the freedom of religious confession is guaranteed. The right to express one’s faith freely and publicly, individually or with others is guaranteed. The Macedonian Orthodox Church and other religious communities and groups are separate from the State and equal before the law. They are free to establish schools and other social and charitable institutions, by means of a procedure regulated by law.
Article 40 § 3 of the Constitution provides that parents have the right and duty to provide for the nurture and education of their children. Children are responsible for the care of their old and infirm parents.
Article 110, which defines the jurisdiction of the Constitutional Court provides, inter alia, that it safeguards the freedoms and rights of the individual and citizen relating to freedom of communication, conscience, thought and public expression of thought, political association and activities as well as the prohibition of discrimination among citizens on the grounds of sex, race, religion or national, social and political affiliation.
This provision also specifies that the Constitutional Court decides on the constitutionality of the programmes and internal regulations of political parties and associations of citizens.
Rule 51 of the Rules of Procedure of the Constitutional Court (Деловник на Уставниот суд) provides that a person who considers that any of his rights or freedoms set forth in Article 110 of the Constitution has been violated by an individual legal act or decision may seek redress before the Constitutional Court within 2 months from the day of adoption of the final individual decision or from the day when he first learns of the action taken, but no later than 5 years from the day of its occurrence.
Rule 57 stipulates that in its decision on the protection of rights and freedoms, the Constitutional Court must establish that there has been a violation and, depending on the circumstances of the case, must set aside the individual decision or prohibit the action causing the violation.
Section 418 of the Criminal Code (Кривичен законик) provides that whoever, in violation of international law, places another person in slavery or in a similar status or keeps him in such a status; buys or sells another person or hands him over to another person; mediates in the purchase, sale and handing over of such a person; or induces someone else to sell his freedom or the freedom of the person he provides for or takes care of shall be punished by from one to ten years’ imprisonment.
1. The applicants complain under Article 8 of the Convention that they are not able to have a normal family life with their children who joined the monastic order of the Macedonian Orthodox Church. They further allege that the Church acts in a manner that blatantly disrespects their private and family life, as it forbids contacts with their children in holy orders and teaches them to hate their parents and other close family members, and that their children have no responsibilities towards their parents even if they are old, sick and unable to take care of themselves.
2. The applicants allege a violation of their rights under Article 9 of the Convention, asserting that if they express an opposing thought or the slightest disagreement with their children in holy orders the latter would consider them heretics and possessed by the devil. The applicants also maintain that if they were to change their religious convictions and beliefs that could result in a complete termination of their relations with their children.
3. Under Article 10 of the Convention the applicants complain that they have been deprived of their freedom to hold and express opinions, to receive and impart information and to communicate freely with their children because the Church forbids relations between monks and their parents who hold opinions different from the official ones preached by the Church.
4. The applicants complain that they are victims of a violation of Article 12 of the Convention because they can not found a larger family and have grandchildren, as their children in holy orders have taken a vow of celibacy.
5. Invoking Article 14, the applicants claim to be discriminated against because of their political and other views which differ from the ones advocated by the Church and because they do not have monastic status like their children.
6. The applicants rely on Article 4 of the Convention, alleging that the monastic status of their children amounts to slavery. In that connection, they maintain that their children are deprived of many of their fundamental human rights and freedoms as a result of the monastic way of life, that they are fully dependent on their spiritual superior and are required to work on the property of the monasteries. They further allege that even if their children wanted to leave the monasteries and the monastic order, as the Church maintains they are free to do, they would be cursed and anathematised for the rest of their lives.
7. Lastly, the applicants allege violations of Articles 3, 5, 6, 7, 13 and 18 of the Convention.
1. The applicants allege a violation of the right to respect for their family life guaranteed under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his ... family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court recalls that the object of Article 8 is “essentially” that of protecting the individual against arbitrary interference by the public authorities. The Court notes that in the present case no such interference has taken place.
However, Article 8 does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective “respect” for family life (see, mutatis mutandis, Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 15, § 31; and Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49). Thus, where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited (see, among other authorities, Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90; and Keegan cited above, p. 19, §§ 49-50).
As to the present case, the Court observes that the applicants allege that their right to respect for their family life has been impaired by the fact that their children left their homes and joined the monastic order of the Macedonian Orthodox Church. They further maintain that some of their children have done so without their parents’ prior knowledge or consent.
The Court notes that the applicants’ children left their parents’ homes after they had attained the age of majority, being over 18 years old at the material time. At that age, under the national law, they had acquired full legal capacity to act independently and be held responsible and liable for any of their acts or omissions. A State must be able to ensure that the children expressed their free will.
The Court considers that the issue of maintaining contacts and communication between parents and children who are not minors, and the respect and affection they extend to each other, is a private matter, which concerns and depends on the individuals bound in a family relationship, the lack of which, and the reasons for and origins of such lack, do not call for a positive undertaking by the State and cannot be imputable to it.
Even assuming that Article 8 of the Convention may be understood to guarantee the right of the applicants to receive support and care from their children as they grow old and in the event of sickness and infirmity, the applicants’ complaint in this connection is premature.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicants maintain that their rights to freedom of thought and religion, and the freedom to hold and express opinions and to receive and impart information and ideas have been infringed, since they fear that exercise thereof might result in the complete termination of relations with their children in holy orders and since the Church allegedly forbids communication and relations between monks and their parents who hold different opinions from the ones it preaches. They further claim to be discriminated against because of their political and other views, which are opposed to those advocated by the Church. They rely on Articles 9, 10 and 14 of the Convention, which read as follows:
“1. Everyone has the right to freedom of thought, conscience and 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.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“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.”
At the outset the Court observes that, according to Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33). Thus the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, in particular, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France, judgment of 19 February 1998, Reports 1998-I, pp. 87-88, § 38).
In the present case, the Court observes that the applicants failed to raise, even in substance, the alleged violations of their rights and freedoms safeguarded under the above-mentioned articles of the Convention in their complaint to the Constitutional Court, although under the national law that court has full jurisdiction to deal with complaints filed by any individual who claims to be the victim of a violation of the very same rights and freedoms which the applicants now allege before this Court that they were deprived of.
It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. The applicants complain that they are prevented from founding a larger family and having grandchildren because their children in holy orders have taken a vow of celibacy. In that connection, they rely on Article 12 of the Convention, which provides as follows:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
The Court notes that the right to have grandchildren or the right to procreation is not covered by Article 12 or any other Article of the Convention.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
4. The applicants allege that the monastic status of their children amounts to slavery, contrary to Article 4 of the Convention, which as far as relevant provides as follows:
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour...”
The Court first observes that under Article 34 of the Convention it may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.
It further notes that the general rule concerning the notion of victim is that the person bringing the application must be “the person directly affected by the act or omission which is at issue, the existence of a violation being conceivable even in the absence of prejudice.” (see, for example, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 30, § 66). This general rule is, however, subject to variation in certain circumstances, such as a close relationship with an applicant in cases where the applicant may be said himself to have suffered injury as a result of the contested actions and where the direct victim is unable to bring a complaint himself (see, mutatis mutandis, X. v. Belgium, no. 7467/76, Commission decision of 13 December 1976, Decision and Reports 8, pp. 220, 221).
The Court has no information as to whether the applicants’ children have joined the monastic order after having been manipulated and whether they are actually detained in conditions of slavery or remain members of their own free will. Furthermore, it notes that the investigating authorities have neither completed their investigations yet nor decided that there is no case to answer. Consequently, it considers that the complaint under Article 4 is premature.
It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.
5. Finally, the applicants allege violations of Articles 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to a fair trial), 7 (no punishment without law), 13 (right to an effective remedy) and 18 (limitation on use of restrictions on rights) of the Convention.
The Court notes that these complaints are not at all substantiated. It follows that they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Georg Ress
ŠIJAKOVA AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
ŠIJAKOVA AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION