January 8th, 2020

CONSTITUTIONAL COURT OF MONTENEGRO
CG-81000 PODGORICA - Njegoševa 2

In order to achieve legal certainty, protect the achieved level of human rights and freedoms pursuant to the authorizations vested in Constitution of Montenegro, we file this motion to initiate constitutional proceedings to assess constitutionality of the law with the Constitution of Montenegro and ratified and published international treaties, and propose to the Court to render

DECISION

IT IS BEING ESTABLISHED that the articles 20,23,25,28,30,61,62. and 63. of the LAW ON FREEDOM OF RELIGION OR BELIEFS AND LEGAL STATUS OF RELIGIOUS COMMUNITIES („Official Gazette of Montenegro, No. 74/2019 of 30.12.2019.) are not conform with Constitution of Montenegro and ratified and published international treaties, i. e. that these were not conform with Constitution while in force

and

Ruling

The application of the contested Law toward the religious community SPC is being stayed for as long as the constitutionality assessment procedure of the aforesaid Law is pending/not concluded and/or until the treaty between the religious community SPC with the Government of Montenegro pursuant to Article 10. of the aforesaid Law is concluded the same way, as the Government already did it with Jewish, Roman-Catholic and Islamic religious community. Considering the certainty of arising irreparable consequences (losing legal person status, invasion in the right of property by way of nationalization without compensation, narrowing achieved level of human rights and rights to enjoy religious freedoms, discrimination and forceful assimilation), it is also simultaneously being ORDERED to all state authorities and organizations to stop individual enactments from execution or actions undertaken or the ones they planned to carry out toward the SPC on basis of the aforesaid Law.

Substantiation

Since Saint Sava in 1219 in Nicea got the title archbishop of "all Serbian and littoral countries", the Serbian Orthodox Church (SPC) had quietly/without disturbance owned and acquired buildings and land. Regarding the position of Serbs in Montenegro prior to December 1st, 1918, it is worth of mentioning that the Geography of Princedom of Montenegro from 1895 reads on page 2 as follows:

"All people leaving in our homeland are Serbs, mostly of Orthodox religion, and there are few of Roman-Catholic and Islamic religion".

and in Declaration of the King Nicholas (Nikola) before the First World War of July 25th, 1914, it stays noted:

„Montenegrins! You have not been able to wash off the blood from your brave hands, and your old King is forced to invite you to take arms, for the third time, in less than two years time, to lead you to the war for the third time - to the holy war for freedom of the Serb Nationality... Austria declared war to our dear Serbia, they declared it to us and to Serb Nationality all Slavs... the one who is hero shall follow the steps of two old Kings... Long live our dear Serb Identity!

"Montenegrins, the decisive moment has come... God and justice are on our side, we wanted peace and the war was imposed onto us. Accept it as always, in Serbian and heroic manner, and the blessing of your king shall follow you in all you exploits",...

By the way, King (earlier Prince) Nicholas Petrović considered that his dynasty and origins are Serbian, as stated in the aforesaid "Geography":

„Ruler of Montenegro is Prince Nicholas I, from the famous Serbian family Petrović-Njegoš... Apart from Montenegro, there are other Serbian countries in which our brother Serbs are living. Some of them are free, as we are, and some of them are under foreign occupation"

Above that, following to the aforesaid Geography, back in 1918 Montenegro has not possessed certain territories which are parts of today's Montenegro:

"We have seen that every county has its borders, separating it from other counties; the same way our homeland Montenegro has its own borders, separating it from other Serbian provinces. From the north its border follows river Tara, separating it from Herzegovina; on the north there is Old Serbia; on the south: Albania, the Adriatic Sea and Boka Kotorska and on the west Herzegovina, Boka Kotorska and the Adriatic Sea."

As Sandžak Army during heroic Mojkovac battle from January 6th to 7th 1916 protected the rearguard of the Serbian army toward Albania, and stopped 53th and 62nd Austro-Hungarian divisions, they celebrated the Christmas as the believers of the Serbian Orthodox Church, and regarded themselves to be Serbian people, i. e. fighting for liberation of the territories, where the "non-liberated Serbian brothers" lived.

….. * …..

However, from this day forth, after 800 years, the Montenegrin State retroactively establishes that buildings and land of the SPC, on today's territory of Montenegro, do not belong and had never belonged to the SPC, since SPC does not have "proofs on the right of ownership" over these buildings and land until December 1st, 1918 (Article 62. of the Law).

Apart from that, from this day forth, for as long as it does not register, the SPC cannot own, acquire and accomplish rights which, according to the legal order of Montenegro, belong exclusively to religious communities registered or listed as legal persons. (Article 28. of the Law).

In order the SPC or any other religious community to get registered and enrolled to Religious Communities' Register (Articles 20-23. of the Law) it has to have at least three adult believers, an authorized person to file Registration Application to the Ministry, as well as decision of competent authority of that religious community that it can be enrolled to the Religious Communities' Register.

A part of the religious community, with seat, say, in Serbia, acting in Montenegro, can acquire the legal person in Montenegro by registering itself in the Register or List (Art. 25 of the Law)

If the application of a religious community to enroll to the Register is refused, it can continue operating as non-registered religious community, however without status of legal person etc. (Art. 30. and 28. of the Law).

Considering that the Law (Art. 61) has not prescribed the transitional period to register religious communities (e. g. for the SPC), this means that State of Montenegro from today onward has the right to apply all legal sanctions against the SPC, whereas the religious communities enrolled and registered under "Law on Legal Position of Religious Communities" (Official Gazette SRCG, No 9/77), that stops being in force from today, are being left with 9 months period to submit application to register in the new List

….. * …..

The impression remains that the President, Prime Minister and other state authorities of Montenegro shall not abandon creation of a new identity of Montenegro and that they shall not revoke the Law on Religious Freedoms... as follows from their media statements, such as:

  1. Final words of the President of the Parliament on June 3rd, 2006, when adopting Declaration of Independence of Montenegro: Montenegrin citizens returned Montenegro back to free peoples and state.

  2. Statement of the Prime Minister on February 4th, 2018 in interview given to Radio-Television of "Kosovo" (RTK): Over 85 % of citizens were against the Government's Decision to recognize Kosovo. Still, we recognized Kosovo.

  3. Statement of the President June 8th, 2019 on electoral convention of the Democratic Socialists' Party (DPS) Nikšić: The Serbian Orthodox church is serving to protect infrastructure of great Serbia... our decisions are no mistakes, but thoroughly thought over and by these we correct hard historic injustices committed to Montenegro and generation of our ancestors ...we shall not allow contemporary Montenegro to live under dictate of one religious community representing relict of the past etc.

  4. Statement of the President on convention of the DPS of November 30th, 2019: we have a duty to restore autocephaly of Montenegrin Orthodox Church...

….. * …..

In such situation, should the SPC refuse to file application to register as newly formed religious community, there are several solutions, such as:

  1. Public pressure and protests until the Constitutional Court and other international institutions do not take stand on legality, legitimacy and fitness of the controversial Law provisions for the purpose.

  1. Public pressure and protests as long as the pressure of the state is not abolished to create a new church and narrow the operation of the existing one, centuries-lasting and traditional church, what would be in compliance with the article 14. of the Montenegrin Constitution, what was - if we understood it well - supported by the President on the electoral convention of DPS in Nikšić on June 8th, 2019, as he stated: We shall fight for the freedom of religion and for separation of the church from the state.

  1. Adoption of Constitutional Court ruling (Art. 150 of the Constitution) to stay the application of the contested Law provision toward the SPC pending constitutionality proceedings, and/or by which the Court would order the execution of individual enactments and actions carried out within the said Law to stop, with reasoning that e. g. its execution could cause irreparable harmful consequences, and such ruling would also be in conformity with the article 10. of the said Law, prescribing that the questions of common interest for Montenegro and the SPC can be resolved by the contract stipulated by and between the religious community SPC and Montenegrin government. It should be noted, that the Montenegrin government has already stipulated such contracts with the Jewish, Roman-Catholic and Islamic religious community, but not with the SPC, even that the latter made such request for years ago.

  1. Court ruling of the Constitutional Court of Montenegro(Art.145-152. of the Constitution of Montenegro), by which the Court would establish that the following contested provisions of the Law contravene the Constitution and international treaties:

    1. article 20. prescribing that at least three believers are needed to file application to register religious community, thus contravening the article 46. of the Constitution, prescribing that nobody is under obligation to declare its religious or other beliefs,

    2. article 23. binding all religious communities, which were not listed, to be registered as newly formed religious communities,

    3. article 25. prescribing that the SPC can acquire the status of the legal person by registering in the Register or on the List,

    4. article 28. prohibiting to the SPC, until it is registered, to acquire or accomplish rights belonging exclusively to the religious communities registered as legal persons,

    5. article 30. - although in violation of regulations - prescribing that the registration of a religious community in Register or List, such as the SPC, can be refused.

    6. article 61. discriminates by leaving a transitional 9 months period to religious communities registered by now to renew their registrations, whereas from today depriving the SPC - not registered by now - from the status of legal person and right to property, regardless of the fact if it possesses the proofs for that property as cited under Article 62.

    7. article 62. prescribes that the state of Montenegro can be registered on the property of the SPC, and that the SPC afterwards has to prove that it had a right of property until December 1st, 1918,

    8. article 63. prescribing nationalization of the church's property and registration of the State on that property shall be carried out without participation of the SPC in the proceedings, about which the religious community using buildings and land being subject matter thereof shall be notified, not mentioning that it is about the property of the SPC.

not being in conformity with the Constitution of Montenegro, especially:

  1. article 8 (prohibition of discrimination),

  2. article 14. (separation of the religious communities from the state),

  3. article 46. (freedom of religion)

  4. article 58. (right to property)

  5. article 79 item 1 (minority rights - guarantee of religious particularity),

  6. article 80 (prohibition of assimilation),

  7. article 147 (prohibition of retroactive effect)

  8. Amendment I (nullum crimen, nulla poena sine lege)

  9. as well as articles: 6 (inviolability and universality of human rights and freedom); 7 (prohibition to incite hatred); 9. (legal order – supremacy of the international law); 17. (equality before the law, respecting human rights); 19 i 20. (equal protection and legal remedy); 24. i 25 (conditions to limit human rights); 35. (presumption of innocence) etc.

as well as not in conformity with international treaties, article 18. of the International Pact on Civil and Political Rights as well as to the European Convention on Human Rights with Protocols, i. e.:

  1. article 9 i 11. (freedom of thought, conscience and religion),

  2. article 13. (right to an effective remedy),

  3. article 14. and Protocol 12 Art. 1 (prohibition of discrimination),

  4. article 15. (conditions to derogate),

  5. article 17. (prohibition of abuse of rights),

  6. article 1. of Additional Protocol (right to property).

European Court of Human right, similar as in case concerning Greece in similar situation, could establish that the State of Montenegro jeopardized uncontested property rights and interests of the religious community SPC, that it jeopardized freedom of religion etc. Such position of the European Court would base on numerous and uncontested actions of the most influential officials in Montenegro, depicting without any doubts the real intention for passing this Law on nationalization of the church's property, thus its narrowing or winding up its operations.