AS TO THE ADMISSIBILITY OF
Application no. 40825/98
by RELIGIONSGEMEINSCHAFT DER ZEUGEN JEHOVAS IN ÖSTERREICH, Franz AIGNER, Kurt BINDER, Karl KOPENZY and Johann RENOLDNER
The European Court of Human Rights (First Section), sitting on 5 July 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 27 February 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The first applicant is an Austrian religious community, the four other applicants are its leading representatives. They are Austrian nationals, born in 1927, 1935, 1927 and 1930, respectively, and live in Vienna. The applicants are represented before the Court by Mr R. Kohlhofer, a lawyer practising in Vienna. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of proceedings
(a) Period before the Decision of the Constitutional Court of 4 October 1995
On 25 September 1978 the second to fifth applicants and two other claimants requested the Federal Minister for Education and Arts (Bundesminister für Unterricht und Kunst) to recognise the first applicant as a religious society (Religionsgesellschaft) under the 1874 Recognition Act (Anerkennungsgesetz). Since the Minister did not react, the applicants subsequently filed a complaint (Beschwerde) with the Ombudsman's Office (Volksanwaltschaft) about the Minister's inactivity.
On 5 February 1981 the Ombudsman's Office issued a statement concerning this complaint. It considered that the Minister's inactivity for almost two years constituted an undesirable state of affairs in public administration (Missstand im Bereich der öffentlichen Verwaltung) even though the authority was not formally obliged under the applicable law to take a decision since recognition of a religious society had to be taken in the form of a decree (Verordnung). However, since an agreement had been reached in a meeting between the applicants and the Ministry on 3 December 1980, no further steps were required by the Ombudsman's Office. The content of this agreement was not disclosed by the applicants.
On 22 June 1987 the second to fifth applicants requested the Federal Minister for Education, Arts and Sports (Bundesminister für Unterricht, Kunst und Sport) to recognise the first applicant as a religious society.
The Minister did not grant the request and, after several reminders, informed the applicants that under the 1874 Recognition Act they had no right to obtain a formal decision (Bescheid) on their request.
On 25 October 1991 the applicants filed a direct application (Individualantrag) with the Constitutional Court (Verfassungsgerichtshof). They requested the court to repeal Section 2 (1) of the 1874 Recognition Act, as in their view, this provision violated the right to freedom of religion and to freedom of association. They also argued that they were directly affected by this provision without it being necessary that a formal decision by an administrative authority be taken (Article 140 § 1 in fine of the Federal Constitution, Bundes-Verfassungsgesetz).
On 14 January 1992 the Federal Government (Bundesregierung) submitted its observations to the Constitutional Court. On 27 April 1992 the Constitutional Court asked the Federal Government to submit supplementary observations which were filed on 2 June 1992. The Federal Government argued, inter alia, that the provisions at issue were in conformity with the Federal Constitution as it was possible for the applicants to found a religious association under the Association Act (Vereinsgesetz).
On 25 June 1992 the Constitutional Court rejected as inadmissible the applicants' complaint. Relying on Article 13 of the Convention, the Court considered that they were not directly affected by the impugned provisions as, in the light of its judgment of 1988 (VfSlg. 11.931/1988), they had a right to a decision by an administrative authority of their case. However, they had not exhausted the legal remedies available to them since they had failed to lodge an application under Article 132 of the Federal Constitution with the Administrative Court (Verwaltungsgerichtshof) against the Minister's failure to decide (Säumnisbeschwerde).
On 30 July 1992 the applicants lodged such an application with the Administrative Court. They requested the court to decide on their request for recognition of the first applicant as a religious society under the Recognition Act.
On 22 March 1993 the Administrative Court rejected as inadmissible the applicants' request. Referring to its previous case law on the matter, it found that under the 1874 Recognition Act a positive decision had to be taken by the competent Minister in the form of a decree (Verordnung) while under Article 132 of the Federal Constitution the Administrative Court was only competent to deliver individual decisions (Bescheide) and not decrees in the place of an administrative authority.
On 12 October 1993 the applicants again filed a direct application under Article 140 § 1 in fine of the Federal Constitution with the Constitutional Court requesting Sections 1 and 2 of the 1874 Recognition Act to be repealed. Relying on Article 13 of the Convention, they argued that they had no effective remedy against the authority which had arbitrarily refused a determination of their case.
On 10 March 1994 the Constitutional Court rejected as inadmissible the applicants' complaint. It found that it had already decided the matter in its decision of 25 June 1992. As an obiter dictum the court indicated, however, that the second to fifth applicants might request the Constitutional Court to examine a complaint under Article 144 of the Federal Constitution against the Minister's failure to decide on the request for recognition. Once the Constitutional Court refused this request, they could file a request with the Constitutional Court under Article 138 of the Federal Constitution for determination in the case where two courts (i.e. the Administrative Court and the Constitutional Court) deny having jurisdiction (negativer Kompetenzkonflikt).
On 9 May 1994 the second to fifth applicants lodged such a complaint which the Constitutional Court, on 21 June 1994, rejected as inadmissible for lack of jurisdiction. It held that there was no legal provision which would entitle the Constitutional Court to decide on applications about an authority's failure to decide.
On 16 November 1994 the applicants filed a request under Article 138 of the Federal Constitution with the Constitutional Court to determine the conflict of competence between the Administrative Court and the Constitutional Court.
On 23 June 1995 the Constitutional Court held an oral hearing. On 4 October 1995 the court quashed the Administrative Court's decision of 22 March 1993 and decided that the Administrative Court had jurisdiction to decide on the applicants' complaint of 30 July 1992. The Constitutional Court found that under the 1874 Recognition Act a religious body had a subjective right to recognition as a religious society provided that the conditions laid down in that Act were met. The rule of law required that such a right be an enforceable one, i.e. that refusal to grant recognition be subject to review by the Austrian courts and was not left to the sole discretion of the administrative authorities. In order to guarantee such a review it was necessary that a negative decision refusing recognition be taken in the form of a written decision (Bescheid). Under the Austrian legal order, only when taking such decisions were the competent authorities bound to deal with a request by a party, whereas no such obligation existed with regard to decrees (Verordnungen). A positive decision had to be taken in the form of a decree as it did not only have effect vis-à-vis the parties but also vis-à-vis the general public.
(b) Period after the Decision of the Constitutional Court of 4 October 1995
On 18 December 1995 the Administrative Court ordered the Federal Minister of Education and Cultural Affairs (Bundesminister für Unterricht und kulturelle Angelegenheiten, hereafter “the Minister”) to submit within two months the case-file and to communicate the reasons in favour and against recognition.
On 13 February 1996 the Federal Minister submitted observations to the Administrative Court in which it argued that according to the hitherto existing law a decision was not required and requested a three-month extension of the time-limit for submission of the case-file and detailed observations.
On 25 March 1996 the Administrative Court opened preliminary proceedings (Vorverfahren) and ordered the Minister to decide within three months on the applicants' request for recognition. The Federal Minister failed to do so.
On 28 April 1997 the Administrative Court issued a binding decision (Erkenntnis) according to which the Minister had the duty to decide on the request for recognition within eight weeks and set out the principles which the Minister had to take into account when taking this decision.
On 3 June 1997 the applicants submitted further observations and arguments in their favour to the Minister.
On 21 July 1997 the Minister dismissed the applicants' request. It found that Jehovah's Witnesses could not be recognised as a religious society under the 1874 Recognition Act because of their unclear internal organisation and their negative attitude towards the State and its institutions. Reference was further made to their refusal of military service and of any form of alternative service for conscientious objectors, to the rejection to participate in local community life and elections and to its refusal of certain types of medical treatment such as blood transfusions.
On 3 September 1997 the applicants lodged a complaint against the Minister's decision with the Constitutional Court.
On 11 September 1997 the Constitutional Court communicated the complaint to the Minister and requested him to submit, within eight weeks, the case-file and any observations he wished to make. The Minister did not react.
(c) Period after the entry into force of the Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften)
On 11 March 1998 the Constitutional Court quashed the Minister's decision of 21 July 1997 and referred the case back to the Minister. It noted that the Minister had neither filed submissions nor submitted the case-file in which case the decision had to be taken on the basis of the complainants' submissions. The court noted that they had, inter alia, argued that the Minister had taken his decision without a proper investigation, basing himself on documents of which the complainants had not been informed and on which they had not been given the opportunity to comment. Since the case-file was not available to the Constitutional Court, this allegation could not been refuted. The Constitutional Court therefore concluded that the Minister's decision was arbitrary and violated the principle of equality (Gleichheitsgrundsatz).
Meanwhile, on 10 January 1998, the Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as “the 1998 Religious Communities Act”) had entered into force. Thus, the Minister found that he had to deal with the applicants' request for recognition under the 1874 Recognition Act as a request under Section 11 § 2 of the 1998 Religious Communities Act. On 20 July 1998 the Minister decided that the first applicant had acquired legal personality as a registered religious community within the meaning of the Religious Communities Act as from 11 July 1998. This decision was served on the applicants on 29 July 1998.
2. Second set of proceedings
On 22 July 1998 the applicants filed another request with the Federal Minister for recognition of the first applicant as a religious society under the 1874 Recognition Act.
On 1 December 1998 the Federal Minister dismissed the request. It found that, pursuant to Section 11 § 1 of the 1998 Religious Communities Act, a religious community could only be recognised as religious society under the 1874 Recognition Act if it had existed before as a registered religious community for a minimum of ten years. The first applicant, however, did not meet this requirement at the time when the request for recognition was filed on 22 July 1998.
On 21 January 1999 the applicants lodged a complaint against this decision with the Constitutional Court.
On 14 March 2001 the Constitutional Court dismissed the complaint. It found that the ten-year waiting period for registered religious communities as a precondition for a successful application for recognition under the 1874 Recognition Act was in conformity with the Federal Constitution and referred to its previous decision of 3 March 2001 (VfSlg. 16.102/2001) on that issue. The decision was served on the applicants' lawyer on 29 March 2001.
Upon the applicants' request, the case was transferred to the Administrative Court in April 2001.
On 14 September 2004 the Administrative Court dismissed the applicants' complaint finding that it concerned in essence questions of the constitutionality and interpretation of Section 11 § 1 of the 1998 Religious Communities Act, which, in the light of the Constitutional Court's ruling of 14 March 2001, did not raise a problem from the angle of the Federal Constitution. The Federal Minister had therefore correctly applied that provision. The decision was served on the applicants' lawyer on 25 October 2004.
B. Relevant domestic law and practice
1. Constitutional Provisions
(a) Basic Law 1867 (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger)
Under Article 14 of the Basic Law, everybody is granted freedom of conscience and belief. The enjoyment of civil and political rights is independent from religious belief; however, the manifestation of religious belief may not derogate civic obligations.
Article 15 provides that recognised churches and religious communities have the right to manifest jointly their belief in public, to organise and administer independently their internal affairs, to remain in possession of acquired institutions, foundations and funds dedicated to cultural, educational and charitable purposes, however, they are, as all other societies, subordinated to the law.
Article 16 entitles the supporters of not recognised religious communities to domestic manifestation of their belief unless it is unlawful or contra bones mores.
(b) Treaty of St. Germain of 10 September 1919 between the Allied Powers and the Republic of Austria
Article 63 (1) states that Austria undertakes to assure full and complete protection of life and liberty to all inhabitants of Austria without distinction of birth, nationality, race or religion.
Article 63 (2) guarantees to all inhabitants of Austria the right to manifest publicly and privately their thought, religion and belief, unless it is incompatible with the protection of public order or morals.
2. Law Provisions
2.1. Recognition of Religious Societies
(a) Act of 20 May 1874 concerning the Legal Recognition of Religious Societies (Gesetz betreffend die gesetzliche Anerkennung von Religionsgesellschaften), RGBl (Reichsgesetzblatt, Official Gazette of the Austrian Empire) 1874/68
Section 1 provides that all religious beliefs which have not yet been recognised in the legal order may be recognised as religious society if they fulfil the conditions set out in the Act, namely that their teaching, services and internal order, as well as the name they choose do not contain anything unlawful or morally offensive and that the setting up and existence of at least one community of worship (Cultusgemeinde) satisfying the criteria of the law is ensured.
Section 2 provides that if the above conditions are met recognition is granted by the Minister for Religious Affairs (Cultusminister). Recognition has the effect that a religious society obtains legal personality under public-law (juristische Person öffentlichen Rechts) and enjoys all rights which are granted under the legal order to such societies. Sections 4 et seq. regulate the setting up of communities of worship, membership to them, delimitation of their territory, its organs and statutes. Sections 10 to 12 deal with the nomination of religious ministers (Seelsorger) of religious societies, the qualifications such a person must have and how such nomination must be communicated to the authorities. Section 15 provides that the public administration competent for religious matters have the duty to control whether religious societies respect the provisions of the act.
(b) Examples of recognised religious societies
(α) Recognition by international treaty
The legal personality of the Roman Catholic Church is, on the one hand, considered as historically recognised, and, on the other hand, explicitly recognised in an international treaty, the Concordat between the Holy See and the Republic of Austria, Federal Law Gazette II, No. 2/1934 (Konkordat zwischen dem Heiligen Stuhle und der Republik Österreich, BGBl. II Nr. 2/1934).
(ß) Recognition by a special law
1. Act on the External Legal Status of the Israelite Religious Society, Official Gazette of the Austrian Empire, No. 57/1890 (Gesetz über die äußeren Rechtsverhältnisse der Israelitischen Religionsgesellschaft, RGBl. 57/1890);
2. Act of 15 July 1912 on the Recognition of Believers of Islam [of Hanefitic Doctrine], Official Gazette of the Austrian Empire No. 159/1912 (Gesetz vom 15. Juli 1912, betreffend die Anerkennung der Anhänger des Islam [nach hanefitischen Ritus] als Religionsgesellschaft, RGBl. Nr. 159/1912);
3. Federal Act on the External Legal Status of the Evangelic Church, Federal Law Gazette No. 182/1961 (Bundesgesetz vom 6. Juli 1961 über die äußeren Rechtsverhältnisse der Evangelischen Kirche, BGBl. Nr. 182/1961);
4. Federal Act on the External Legal Status of the Greek Orthodox Church in Austria, Federal Law Gazette No. 229/1967 (Bundesgesetz über die äußeren Rechtsverhältnisse der Griechisch-Orientalischen Kirche in Österreich, BGBl. Nr. 182/1961).
5. Federal Act on the Oriental Orthodox Church in Austria, Federal Law Gazette No. 20/2003 (Bundesgesetz über äußere Rechtsverhältnisse der Orientalisch-Orthodoxen Kirchen in Österreich, BGBl. Nr. 20/2003).
(γ) Recognition by a decree (Verordnung) under the Recognition Act 1874
Between 1877 and 1982 the competent Ministers recognised further six religious societies.
2.2. Registration of Religious Communities
Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften), Federal Law Gazette - BGBl I 1998/19
Since the entry into force of the Religious Communities Act on 10 January 1998 not recognised religious associations may be granted legal personality upon application. A previous application for recognition under the Recognition Act is to be dealt with as an application under the Religious Communities Act pursuant to Section 11 § 2.
Section 11 § 1 of the Religious Communities Act establishes additional criteria for a successful application under the Recognition Act, such as the existence of the religious association for at least twenty years in Austria and for at least ten years as registered religious community; a minimum number of adherents of two out of thousand of the Austrian population (i.e. at the moment about 16,000 persons); the use of income and other assets for religious purposes, including charity activities; a positive attitude towards society and the State; no illegal interference as regards the relationship with recognised or other religious societies.
1. The applicants complained that the refusal of the Austrian authorities to grant legal personality to the first applicant by conferring the status of a religious society under the Recognition Act violated their right to freedom of religion. They submitted further that the legal personality conferred on the first applicant under the Religious Communities Act was limited and insufficient for the purposes of Article 9 of the Convention. In particular the first applicant did not enjoy a sufficient degree of autonomy and self-determination in its internal sphere since various provisions of that Act subjected the first applicant's doctrine and practice to the control and scrutiny by the competent Minister. Moreover, this legal personality conferred on the first applicant under that Act was inferior to the one enjoyed by religious societies recognised under the Recognition Act. In particular, the 1998 Religious Communities Act established criteria for granting of legal personality which were not objective and were discriminatory, such as a minimum of members (Section 11 § 1), i.e. 2 ‰ of the population of Austria (approximately 16,000 persons) which at present could only be fulfilled by one potential candidate for recognition, namely the first applicant. Also the criterion of a ten years' waiting period before a religious community could apply for recognition as religious society under the Recognition Act was arbitrary as no good reason for such a waiting period existed.
The applicants submitted further that under Austrian law there existed a difference in treatment between recognised religious societies and other religious communities. The applicants gave several examples for this difference in treatment such as:
(a) While pupils in public schools who attended religious education as a subject of their curriculum received marks in that subject, children who were brought up in a non-recognised religious belief and who attended religious instruction outside school could not receive marks on their religious instruction. Such difference in treatment could have an influence on the average of marks of pupils. Furthermore, only representatives of recognised religious societies could be represented (without right to vote) on the regional education boards (Section 8 of the Federal School Supervision Act, Bundes-Schulaufsichtsgesetz). Under the Private Schools Act (Privatschulgesetz) recognised religious societies had a privileged status as they were presumed to possess the necessary qualification to operate private school whereas other religious communities (or associations) had to prove that they were qualified.
(b) While ministers of recognised religious societies were exempt from military service (Section 18 § 3 of the Military Service Act, Wehrgesetz) and civilian service (Section 13 a of the Civilian Service Act, Zivildienstgesetz) ministers of the Jehovah's Witnesses were not. Ministers of recognised religious societies were also privileged in other respects, as they were exempt from the obligation to stand for appointment as guardians (Sections 192 and 195 of the Civil Code, ABGB), as a member of a jury of a Court of Assizes or lay judges of a criminal court (Section 3 (4) of the Act on Juries of Assizes and Lay Judges, Geschworenen- und Schöffengesetz 1990).
(c) Also in the field of taxation recognised religious societies enjoyed privileged treatment as only contributions to recognised religious societies were deductible from income tax (Section 18 § 1 (5) of the Income Tax Act, Einkommenssteuergesetz). Real Property owned by recognised religious societies and used for religious purposes was exempt from real estate tax (Section 2 of the Land Tax Act, Grundsteuergesetz).
The applicants relied on Articles 9 and 11 of the Convention alone, and in conjunction with Article 14 of the Convention.
2. The applicants next complained under Article 6 of the Convention about the length of the proceedings on their request for recognition of the first applicant as a religious society.
3. The applicants also complained under Article 13 that they had no effective remedy at their disposal to receive a decision on their request for recognition.
4. The applicants finally complained under Article 9 of the Convention that the Federal Minister for Environment, Youth and Family had published a brochure on sects in September 1999 in which the Jehovah's Witnesses were implicitly compared with dangerous sects and the public was warned to have any contacts with them.
1. The applicants initially complained that the refusal of the Austrian authorities to grant legal personality to the first applicant by conferring the status of a religious society recognised under the Recognition Act violated their right to freedom of religion. They complained further that the legal personality conferred on the first applicant under the Religious Communities Act was of an inferior status than that enjoyed by religious societies following recognition under the Recognition Act. As a consequence, the first applicant was a victim of discrimination as, under Austrian law, recognised religious societies enjoyed preferential treatment in several respects. The applicants relied on Articles 9 and 11 alone and in conjunction with Article 14 of the Convention.
Article 9 of the Convention provides 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.”
Article 11 of the Convention provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Article 14 of the Convention reads as follows:
“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.”
The Government contested that there was an interference with the applicants' right to freedom of religion. Since the entry into force of the 1919 Treaty of St. Germain all Austrian inhabitants were allowed to practice publicly and privately their thought, religion and belief, irrespective of whether the respective religious society, community or church was recognised, had legal status or not. The right to administer autonomously the internal organisation was guaranteed likewise. Referring to a judgment of the Constitutional Court (VfSlg. 10.915/1986), the Government contended that the refusal of recognition did not impede the applicants' practice of their right to freedom of religion within the meaning of Article 9 of the Convention. Against this background, they contested that the first applicant had no legal personality in Austria, was legally inexistent and that it could not acquire assets or take part in legal relations because these allegations concerned the first applicant's situation before it had obtained legal personality as a registered religious community on 11 July 1998. Even before the entry into force of the 1998 Religious Communities Act the first applicant had had the possibility to set up an association with a religious purpose under the Associations Act, as did the Federation of Evangelic Municipalities in Austria (Bund Evangelikaler Gemeinden in Österreich) on 21 March 1992, and the Scientology Church in Austria (Scientology Kirche Österreich) on 20 May 1984. However, the applicants did not appear to have made efforts in this respect.
The Government maintained that the status conferred to the first applicant as registered religious community under the 1998 Religious Communities Act complied with the requirements of Article 9; it only provided a legal status and did in no way restrict the exercise or enjoyment of the right to freedom of religion. In conclusion, there was no interference with the applicants' rights under Article 9 of the Convention.
There was also no discrimination of the applicants in respect of the first applicant's status of a registered recognised community, as the criteria introduced by Section 11 of the 1998 Religious Communities Act corresponded to the administrative authorities' practice for granting recognition under the 1874 Recognition Act already before the entry into force of the above 1998 Act. In respect of the ten years' waiting period for registered religious communities, the Government referred to the Constitutional Court's finding of 3 March 2001 (VfSlg. 12.102/2001) that it served the legitimate aim that the competent authority could verify during this period of time whether the religious community was ready to integrate into the existing legal order, in particular whether it performed unlawful activities as a consequence of which legal personality had to be withdrawn (Sections 9 § 2 and 5 § 1 of the Religious Communities Act). Such unlawful activities were, for instance, incitement to commit criminal offences, endangering the psychological development of minors, violating the psychological integrity of persons or to use of psycho-therapist methods for disseminating its religious belief.
As regards the requirement of a certain number of adherents, the Government maintained that this criterion was not only important for the religious community's existence but also for ensuring that duties were fulfilled, such as organising and monitoring the teaching of its religion in schools. The precondition of the use of income for religious purposes was also provided for under the 1874 Recognition Act (Sections 5 and 6) and, thus, not new. Since recognised religious societies obtained the status of a legal personality under public-law which entailed duties and obligations in the public interest, the requirement of a positive attitude towards society and the State - meaning acceptance of a pluralistic State and the basic principles of the rule of law, to which the disapproval of particular provisions for reasons of conscience was not opposed - did not appear discriminatory. Finally, the obligation not to interfere illegally with recognised or other religious societies was not discriminatory either.
The applicants submitted that the refusal to recognise the first applicant as religious society constituted an interference with the enjoyment of their right to freedom of religion. In particular, before July 1998, the first applicant could not have been established as a legal entity and, thus, could not have participated in legal relations, concluded contracts nor acquired assets. The first applicant had, thus far, no internal autonomy, could not hire the necessary religious ministers and was not entitled to perform its pastoral work for believers in hospitals or prisons. The second to fifth applicant as leading executives of the first applicant were also limited in exercising their right to freedom of religion. As regards further disadvantages concerning its members, the applicants repeated in essence the above complaints. Neither the Basic Law 1867 nor the 1998 Religious Communities Act provided explicitly for internal autonomy of a religious community. The Constitutional Court found (in its judgment of 3 March 2001, B1713/98) that registered religious communities, unlike recognised religious societies, did not enjoy the right to comprehensive organisation and administration of their internal affairs without state interference. Finally, the applicants contested that they would have had the possibility of forming an association under the Association Act. They referred to the Constitutional Court's finding of 1929 (VfSlg. 1265/1929), confirming the administrative authorities' practice not to allow religious societies to form an association, and thus refusing the request of the Jehovah's Witnesses (Ernste Bibelforscher) to set up an association. Thereafter the Jehovah's Witnesses had not tried again to form an association, but auxiliary associations (Hilfsvereine) with specialised religious aims were created. The two examples of associations presented by the Government were likewise just auxiliary associations. It was not until the enactment of the 2002 Associations Act that religious societies were allowed to set up an association.
The applicants submitted further that the status of a registered religious community was inferior to that of a religious society which constituted discrimination prohibited by the Convention. They contended that the first applicant was subject to state control in respect of its religious doctrine, its rules on membership and the administration of assets pursuant to Sections 3-5 and 11 of the 1998 Religious Communities Act. They repeated in essence their above complaints. In particular, the applicants disputed the necessity of the ten years' waiting period, as the recognition of the Coptic-Orthodox Church by a specific law in 2003 (see above under B.2.1.(b)(ß) Domestic practice) proved the contrary: The Coptic-Orthodox Church only existed in Austria since 1976 and was registered as a religious community in 1998. The applicants argued that most of the registered religious communities and even of the recognised religious societies did not fulfil the minimum number of adherents, which showed that this requirement was unnecessary for the compliance with public duties as contended by the Government. Since the first applicant, the fifth largest religious community in Austria and thus, even bigger than most recognised religious societies, also complied with the necessary number of adherents, it should have been recognised a long time ago. Further, the requirement of the use of income and other assets for religious purposes, including charity activities was discriminatory as it interfered in an unjustified way with its internal administration and organisation, in breach of both Article 9 of the Convention and Section 15 of the Basic Law 1867. The prerequisite of a positive attitude towards society and the State was discriminatory as it was not required in respect of any other natural or legal personality in Austria. Further, it did not meet the “prescribed by law” requirement under Article 9 § 2 of the Convention. The same applied to the criterion of non-interference with other religious societies.
The Court finds, in the light of the parties' submissions, that this complaint raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
2. The applicants complained under Article 6 of the Convention about the length of the proceedings on their request for recognition of the first applicant as a religious society.
Article 6, as far as relevant, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal...“
The Government contested that Article 6 was applicable to the case, arguing that the subject-matter of the proceedings was the applicants' request to obtain legal personality and the ensuing status of a public-law corporation under the 1874 Recognition Act. However, irrespective of the fact that the applicants had had the possibility to obtain legal status as an association, as well as that the first applicant was granted legal status under the 1998 Religious Communities Act as of 11 July 1998, the Government found it not discernable to what extent a decision in recognition proceedings determined “civil rights and obligations”, within the meaning of Article 6, since recognition also entailed the assumption of public tasks on the part of a religious community. Referring to the cases of Canea Catholic Church v. Greece (cited above, §§ 41-42) and Metropolitan Church of Bessarabia and Others v. Moldova (cited above, §§ 141-142), the Government submitted that the question of non-recognition or recognition under the 1874 Recognition Act did not influence the assets of the first applicant either.
Assuming applicability of Article 6, the duration of the proceedings was reasonable and due to the complexity of the case. The complexity could be inferred from the difficulties to implement a law dating back to 1874 and the process of finding a solution to the diverging legal opinions of the Constitutional Court on the one hand and the Administrative Court on the other on the question whether or not the first applicant had a right to obtain an individual decision in case the requirements for recognition under the 1874 Recognition Act were not met. It was only from 28 April 1997, when the Administrative Court departed from its previous case law and adopted the Constitutional Court's view that the first applicant had a right to obtain a decision, that this legal conflict was solved. The Government submitted as regards the conduct of the administrative authorities and courts that no delays occurred; the Administrative Court and the Constitutional Court took the decisions as quickly as possible.
The applicants contested this view. They maintained that Article 6 was applicable to the proceedings at issue as their determination was crucial for their civil rights and obligations; even if it involved also legal consequences under public law.
As regards the length of the proceedings, they contested that the Austrian authorities had not been responsible for the delay. In particular, in their observations of 19 December 2003, the applicants submitted that they had already requested recognition in September 1978. As the Ministry had failed to decide, the Ombudsman's Office, on the applicants' complaint, issued a notice on 5 February 1981 finding that the inactivity of the Ministry constituted an undesirable state of affairs in public administration (Missstand im Bereich der öffentlichen Verwaltung). The applicants pointed out that the Constitutional Court had already found in 1988 (VfSlg. 11.931/1988) that the Ministry was obliged to decide on a request for recognition. The lapse of time of nine years between their first request for recognition in 1978 and the one in 1987 had already been in breach of the reasonable time requirement under Article 6 of the Convention. In 1992 the Constitutional Court decided again that the applicants had a right to obtain a decision and even the applicants' complaint about the authority's failure to decide did not incite it to do so. Only in December 1995 the Administrative Court followed the Constitutional Court's view and requested the Ministry to decide and to submit the case-file, with which the Ministry failed to comply. It was not until the Administrative Court's decision of 28 April 1997 that the Ministry was obliged to take a decision on the recognition request. The Ministry's inactivity between 1992 and 1997, despite numerous requests to decide and, eventually, even by both highest courts, could not be considered as not having been imputable to the administrative authorities as the Government contended. The Administrative Court and the Constitutional Court had equally not decided speedily. Moreover, the proceedings were not complex; they only involved one issue, namely the granting of a legal remedy as provided for by Article 13 of the Convention. Also the determination of the requirements for recognition was not complicated and did not justify a delay with a decision from 1978 to 2008, which would be the first possible date for recognition after the entry into force of the 1998 Religious Communities Act. In conclusion, all delays were exclusively attributable to the Austrian authorities.
In the Court's opinion, the question whether Article 6 is applicable to the proceedings at issue must be further examined together with the merits of the complaint under Article 6 of the Convention. Thus, the Court finds necessary to join this question to the merits of the case.
The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.
3. The applicants complained under Article 13 of the Convention that they had no effective remedy at their disposal to receive a decision on their request for recognition.
Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government submitted that the applicants' right under Article 13 of the Convention was not violated. Though the present proceedings were of some complexity, they showed that the Federal Constitution provided for available remedies of legal protection, of which the applicants had made use.
The applicants argued that for more than 110 years both highest courts in Austria had been of the opinion that there was no remedy against the administrative authority's failure to decide on a recognition request. Only in 1988 the Constitutional Court had held for the first time that the right to recognition was legally enforceable, which the Administrative Court eventually acknowledged in 1997. By the entry into force of the 1998 Registered Religious Communities Act, the right to recognition was again suspended. Thus, throughout 130 years after the enactment of the 1874 Recognition Act there was no enforceable remedy available for recognition.
The Court finds, in the light of the parties' submissions, that also this complaint raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
4. Under Article 9 of the Convention the applicants finally complained that the Federal Minister for Environment, Youth and Family had published a brochure on sects in September 1999 in which the Jehovah's Witnesses were implicitly put on the same par as dangerous sects and the public was warned to have any contacts with them.
However, the Court observes that applicants have failed to substantiate their complaint as they have neither submitted a copy of the allegedly defamatory report nor shown that, apart from the alleged publication of the report itself, this measure had led to concrete adverse consequences for the first applicant (see French Christian Federation of Jehovah Witnesses v. France (dec.), no.53430/99,ECHR 2001-XI).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Decides to join to the merits the question as to the applicability of Article 6 of the Convention to the proceedings at issue;
Declares admissible, without prejudging the merits, the applicants' complaint about the refusal of recognition as a religious society, the complaint that the status of a religious community conferred on the first applicant was inferior to that of religious society which amounted to discrimination, the complaint about the length of the proceedings and the complaint that the applicants did not have an effective remedy at their disposal to receive a decision on their request for recognition;
Declares inadmissible the remainder of the application.
Santiago quesada Christos Rozakis
Deputy Registrar President
RELIGIONSGEM. DER ZEUGEN JEHOVAS IN ÖSTERREICH AND OTHERS,
v. AUSTRIA DECISION
RELIGIONSGEM. DER ZEUGEN JEHOVAS IN ÖSTERREICH AND OTHERS,
v. AUSTRIA DECISION