SECOND SECTION

PARTIAL 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 (Second Section) , sitting on 3 May 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A. Kovler , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 10 December 1999 and registered on 28 February 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Macedonian national, born in 1961 and living in Bitola (the Former Yugoslav Republic of Macedonia). 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 applicant , 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 in a public utility company despite the order of his superior under which no employee was allowed to take any days off for a week due to heavy workload. The applicant justified his absence with the fact that he had celebrated a Muslim religious holiday which is 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 the 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 order of 26 January 1998 under 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 had not gone to pray in mosques because he had not been a practising Muslim. 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 the religious beliefs had been an inner matter of 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 had been true that the religious beliefs had been an inner matter of a 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 right 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.

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 public utility company deprived him of his right to an additional paid public holiday for the 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 the 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 Macedonian without any mentioning of being a 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 of the applicant, he had breached the disciplinary rules and had not come to work. Therefore, it was important to establish whether the applicant was truly of Muslim faith. There was however no evidence to this effect, as the applicant 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 by way of 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.

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 held, inter alia, that:

“...the court held a hearing (on 27 April 2000) and three informative talks (on 16, 25 May and 8 June 2000) and on the basis, in particular, of the applicant’s statements, it was established on several grounds (for example: a lack of knowledge of the most important tenets of the religion, of the way how one becomes a follower of Muslim faith, etc.) that ...the applicant’s beliefs ...do not correspond to those of Muslim faith ...”

The Court found that the applicant had not been discriminated against on the basis of his religious beliefs 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 complains 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. 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 to 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 complains 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. He further alleges that the domestic courts should not have inquired deeper into his religious beliefs as they were his inner matter.

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...”

The Court observes that the proceedings in connection with the applicant’s appeal against the disciplinary committee’s decision of 3 February 1998 ended on 14 June 1999 by a decision of the Bitola Appellate Court. The applicant’s constitutional complaint in this respect of 18 November 1999 was declared inadmissible by the Constitutional Court on the ground that it had been lodged out of the two-month time limit set out in the Rules of the Constitutional Court.

The Court finds that the applicant did not exhaust all domestic remedies in this respect, as he lodged his complaint with the Constitutional Court too late.

It follows that this part of the applicant’s complaint must be declared inadmissible in accordance with Article 35 § 1 and rejected in accordance with Article 35 § 4.

As regards the remainder of the applicant’s complaint under Article 9 the Court considers that it cannot, on the basis of the case-file at this stage, determine its admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

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

The Court finds that the applicant’s constitutional complaint relating to the proceedings following his absence from work on 29 January 1998 was lodged out of the statutory time-limit and that, therefore, this part of the applicant’s complaint must be rejected in accordance with Article 35 § 4.

As regards the remainder of the applicant’s complaint the Court considers that it cannot, on the basis of the case-file at this stage, determine its admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Articles 9 and 14 of the Convention relating to the proceedings following his absence from work on 7 April 1998;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President