EHRM, 13-04-2006, nr. 55170/00

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 but fined him with a 15% cut in 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 had been 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 mosques.

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 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 the 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.

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 Macedonian without any mention 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, 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.

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:

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.

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

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

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

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.

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 Bayram and Kurban Bayram shall be public holidays for citizens of the Muslim faith.

The Court's case-law indicates that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one's religion not only in community with others, in public and within the circle of those whose faith one shares, but also alone and in private (see, amongst many authorities, Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A § 57). Article 9 lists a number of forms which manifestation of one's religion or belief may take, namely worship, teaching, practice and observance: it does not, however, protect every act motivated or inspired by a religion or belief (Kalaç v. Turkey, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, § 27). Thus, there was no interference with the right guaranteed by Article 9 where a military officer with fundamentalist beliefs was compulsorily retired for breach of discipline (Kalaç, cited above, §§28–31) or where a public service employee, member of the Seventh-day Adventist Church, was dismissed for breach of contract in absenting himself from work in order to keep the Sabbath (Konttninen v. Finland, no. 24949/94, Commission decision 3.12.96; see also Stedman v. the United Kingdom, no. 29107/95, Commission decision 9.4.1997, D.R. 89 p. 104, where the applicant was dismissed for refusing to work on Sundays).

The Court recalls first of all that the present case concerns the alleged violation arising from the applicant's absence from work on 7 April 1998, his complaints concerning the earlier incident having been rejected for non-exhaustion of domestic remedies. It considers that while it may be that this absence from work was motivated by the applicant's intention of celebrating a Muslim festival it is not persuaded that this was a manifestation of his beliefs in the sense protected by Article 9 of the Convention or that the penalty imposed on him for breach of contract in absenting himself without permission was an interference with those rights (see the cases cited at the end of the previous paragraph).

Insofar as the applicant has complained that there was an interference with the inner sphere of belief in that he was required to prove his faith, the Court recalls that the courts' decisions on the applicant's appeal against the disciplinary punishment imposed on him made findings effectively that the applicant had not substantiated the genuineness of his claim to be a Muslim and that his conduct on the contrary cast doubt on that claim in that there were no outward signs of his practising the Muslim faith or joining collective Muslim worship. While the notion of the State sitting in judgment on the state of a citizen's inner and personal beliefs is abhorrent and may smack unhappily of past infamous persecutions, the Court observes that this is a case where the applicant sought to enjoy a special right bestowed by Macedonian law which provided that Muslims could take holiday on particular days, including the Bayram festival in issue in the present case (see paragraph 29 above). In the context of employment, with contracts setting out specific obligations and rights between employer and employee, the Court does not find it unreasonable that an employer may regard absence without permission or apparent justification as a disciplinary matter. Where the employee then seeks to rely on a particular exemption, it is not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation when that claim concerns a privilege or entitlement not commonly available and, if that substantiation is not forthcoming, to reach a negative conclusion (see, mutatis mutandis, cases concerning conscientious objection where the authorities may legitimately require strong evidence of genuine religious objections to justify exemption from the civil duty of military service —e.g. N. v. Sweden, no. 10410/83, Commission decision of 11 October 1984, D.R. 40 p. 203, Raninen v. Finland, no. 20972/92, Commission decision of 7 March 1996). The applicant however was not prepared to produce any evidence that could substantiate his claims. To the extent therefore that the proceedings disclosed an interference with the applicant's freedom of religion, this was not disproportionate and may, in the circumstances of this case, be regarded as justified in terms of the second paragraph, namely, as prescribed by law and necessary in a democratic society for the protection of the rights of others.

The Court concludes that there has been no violation of Article 9 in the present case.

Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It may be applied in an autonomous manner as a breach of Article 14 does not presuppose a breach of those other provisions although, since it has no independent existence, it can only come into play where the alleged discrimination falls within the scope of the rights and freedoms safeguarded by the other substantive provisions (see, amongst many others, Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, § 43). Further, different treatment is discriminatory, for the purposes of Article 14, if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, pp. 32–33, § 24, and Camp and Bourimi, cited above, § 37).

In the present case, while there is no right as such under Article 9 to have leave from work for particular religious holidays, the Court notes that the courts' decisions on the applicant's appeal against the disciplinary punishment imposed on him made findings touching on the apparent genuineness of his beliefs. This, in the Court's view, is sufficient to bring the applicant's complaints within the scope of Article 9.

However, insofar as the applicant claims that he is the only person of the Muslim faith who has been required to prove his adherence to that religion, the Court considers that any resulting difference of treatment may be regarded as based on objective and reasonable justification. The applicant was making claim to a privilege or exemption to which he was not entitled unless he was a member of the faith concerned and in circumstances which arguably gave rise to doubts as his entitlement. As found above under Article 9, it was not unreasonable or disproportionate to require him to show some level of substantiation of his claim.

The Court concludes in the circumstances that there has been no violation of Article 14 of the Convention in conjunction with Article 9.