CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 34614/97                       by SCIENTOLOGY KIRCHE DEUTSCHLAND e.V.                       against Germany        The European Commission of Human Rights sitting in private on 7 April 1997, the following members being present:                Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 20 January 1997 by SCIENTOLOGY KIRCHE DEUTSCHLAND e.V. against Germany and registered on 28 January 1997 under file No. 34614/97 ;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a registered association (eingetragener Verein) under German law which has its seat in Munich (München). It is represented by its President, Mr. Helmuth Blöbaum, who retained Mr. Douwe Korff, a lawyer and lecturer of Cambridge (United Kingdom), to act as counsel.        The facts of the case as submitted by the applicant association may be summarised as follows.        The applicant association is part of Scientology, a world-wide organisation with its international headquarters in Los Angeles (United States of America). It has Scientology organisations in several cities in Germany.        The applicant association submits that for many years itself and its approximately 30,000 members, including children, parents, artists, businessmen and members of political parties, have been subjected by German government bodies and officials to a campaign of religious intolerance and human rights violations. In this context the applicant association refers in particular to the following events which took place during the period from April 1991 to May 1996:        Members of the Federal Parliament (Bundestag) in Bonn and of the Parliaments of the Länder discussed repeatedly the question of Scientology. They warned that Scientology was particularly dangerous and considered that it did not constitute a church but instead was much more like a commercial enterprise with political claims for the absolute truth without regard for the constitutionally guaranteed rights of the individual. The Federal Government and the Governments of the Länder were requested   to take action to counteract Scientology expansion, namely to withdraw the legal capacity from Scientology organisations, to initiate criminal investigations against Scientology, to determine if adherence to Scientology can be classified as druglike addiction, to increase the information about Scientology in schools, governmental offices and in public, to prevent the economic influence of Scientology in coordination with the Employers Association and the Chambers for Industry, Commerce and Trade and to work out a list of other measures designed for the reduction of Scientology activities.        The leading German political parties declared that membership in the applicant association was incompatible with the tenets of their parties. Members of the political parties were requested either to leave the parties or Scientology. All levels of society were called upon to dismiss Scientologists from their social positions and   from jobs, including in schools, and to boycott companies owned by Scientologists as well as Scientology artists.        The Federal Government and the Governments of the Länder adopted joint strategies with a view to reducing the influence of Scientology organisations. A national documentation and information centre and a permanent interministerial working group were established to ensure that coordinated actions against Scientology were discussed. Scientology was considered to be the biggest and most dangerous sect in Germany engaged in infiltrating the economy by its members joining unions and becoming employees of companies. It was proposed to investigate whether Scientology was a criminal organisation and how to counteract Scientology under health, healing practitioner and drug laws. The Permanent Conference of Ministers of the Interior of the Länder recommended a series of measures to oppose Scientology, including a recommendation that Government offices in the area of fiscal affairs place a declaratory clause in contracts with companies doing business with the Government to ensure that no business is done with Scientologists. The Prime Ministers of the Länder meeting in Berlin endorsed this recommendation and felt it necessary that the Federal Government, Governments of the Länder   and local authorities would warn of the practices of Scientology and use all legally possible ways to counter this worldwide operating organisation's objective of domination.        In a foreword of an information leaflet published in January 1996, the Federal Minister for Families, Pensioners, Women and Youth (Bundesministerin für Familie, Senioren, Frauen und Jugend) stated that many persons being affected by the dubious practices and activities of the Scientology organisation had asked for her help and advice. According to her, this organisation was not a religious or philosophical community, but a commercial organisation.        In various Länder measures were taken to reduce the influence of Scientology and to warn of its dangers.        The Government of the Land of Bavaria ordered schools to inform pupils of all ages and their parents about the goals, strategies and operating procedures of Scientology. Headmasters were required to report by September 1996 on the measures they have taken to implement this information programme.        In Hamburg the authorities decided inter alia not to let any public halls and not to sell any real estate property to Scientology and to examine to what extent it was legally admissible not to award construction orders to Scientology and firms connected with it. They also refused to put a music hall at the disposal of a music firm owned by Scientologists.        In Stuttgart a decree was issued prohibiting the public distribution of printed matters published by Scientology organisations.        Government officials and executives of well-known companies informed German business leaders on such topics as the use of "sect filters", ways of identifying and dismissing Scientologists and tactics to repair the economic damage when a company was blacklisted because it was suspected of employing members of such an association. A decree was issued by the Federal Minister of Labour preventing Scientologists from obtaining licences necessary to operate employment agencies.        Non-governmental organisations, such as the Circle of German Brokers (Ring Deutscher Makler), an association composed of over 4,000 real estate brokers, announced that it would require all members of the Circle to sign a declaration attesting that they did not follow the teachings of the founder of Scientology in order to be sure not to have any Scientologists among its members. Real estate brokers and tenants associations, supported by the working group "Scientology" of the Hamburg Ministry of the Interior, published a list of suspected Scientologists and their real estate concerns, exhorted the public to boycott all Scientology businesses, and urged banks to refuse to do business with Scientologists. Banks refused to grant loans to Scientologists and informed the press that they would not do business with members of Scientology organisations.   As a result of the negative publicity, a bank cancelled its bank card agreement with the Church of Scientology of Frankfurt.        Other commercial associations urged businessmen to include clauses in contracts requiring business partners to declare that they were not Scientologists.        Furthermore, as part of the Government's information programme, established Churches were called upon to act in cooperation when dealing with new religious movements.        In a civil action brought against the association "Scientology Kirche Hamburg e. V."   by one of its members, the   Federal Labour Court (Bundesarbeitsgericht), in a decision of 22 March 1995, considered that the case concerned a dispute between employee and employer and was within the competence of the labour courts. Having examined in detail the structure, aims and practices of Scientology, the Federal Labour Court concluded that the association was not a religious or philosophical community within the meaning of the Basic Law (Grundgesetz), but a commercial organisation.        More recently, in August 1996, the Bavarian Government announced that Scientologists would be banned from civil service. The Christian Democratic Union (Christlich Demokratische Union Deutschlands - CDU) and the Social Democratic Party (Sozialdemokratische Partei Deutschlands - SPD) in Lower-Saxony declared that they had agreed that Scientologists were not welcome in public service and that prospective Government employees and companies doing business with the State must declare that they were not associated with Scientology. The CDU Youth Organisation (Junge Union Deutschlands), CDU and SPD officials called for a boycott of two films in which Scientologists performed leading roles. In the Länder of Bavaria and Rhineland-Palatinate politicians demanded that Government funding for cultural and artistic events be prohibited if Scientologists would perform there.        As from 1 November 1996 the Government of Bavaria requires all persons seeking employment in the public sector to fill out a questionnaire regarding their association with Scientology and affirm that they disassociate themselves from Scientology. In other Länder similar measures were adopted. The Land of Berlin sent a form to all contractual partners and subordinate authorities requiring each company that does business with the Land of Berlin to declare in writing that they were not associated with Scientology. The Land of Hamburg required teachers to sign such forms.        The applicant association further refers to numerous incidents of boycotting Scientologists and dismissing members of Scientology from their functions, such as sportsmen, managers and businessmen. Children of Scientologists were expelled from nursery and private schools and from sports clubs.        The applicant association submits finally that in 1995 and 1996 the Scientology organisations in Hamburg and Munich received over ten bomb threats. Further anonymous threats of violence from Neo-Nazi groups were received by Scientology organisations in other German cities.   COMPLAINTS        The applicant association complains, both in its own capacity as a religious organisation and on behalf of its members, of being the victim of an unparalleled campaign of discrimination, vilification, exclusion and intimidation, carried out, condoned and encouraged by the German authorities. The campaign as such, it is said, discloses manifest, serious and continuing violations of the Convention.        Referring to the case of Donnelly and six others v. the United Kingdom (Nos. 5577-5583/72, Dec. 15.12.75, D.R. 4 p. 4), the applicant association submits that it and its members are the victims of an administrative practice against which there is no effective remedy. The administrative practice on the part of the respondent Government renders the remedies which are available in individual cases, but which are not susceptible of stopping the policy or practice, inadequate in the present case. The applicant association alleges that the administrative practice continues to this day and that it and its members are therefore the victims of an ongoing violation of the Convention. On both of these grounds the application cannot be rejected on the basis of Article 26 of the Convention.        The applicant association maintains that Scientology is not an unlawful organisation, is not operating against the law and is also not contrary to the constitutional order of the Federal Republic of Germany. Nevertheless Scientology is regarded as an enemy of the State. The applicant association further submits that the Church of Scientology is a bona fide religion, that it is not a commercial organisation and that its ethical standards fully uphold human dignity and respect for the law. The campaign of which it is a victim is in its submissions alarmingly similar to actions taken by the Nazis against Jewish people and minority religions in the 1930s, preceding the Holocaust, and to attacks made by German authorities in the 1950s and 1960s against communists or anyone deemed sympathetic to left-wing terrorists in the 1970s.        The applicant association alleges that the campaign in general as well as the information campaigns, the use of "Anti-Scientology Forms", the improper determination of the legitimacy of its beliefs, violate the non-derogatory, untouchable core of Article 9 para. 1 of the Convention. It refers in this context to the Otto-Preminger Institut v. Austria judgment given by the European Court of Human Rights on 20 September 1994 (Series A no. 295-A) and stresses that States have a positive obligation under Article 9 para. 1 of the Convention to secure the peaceful enjoyment of religious freedom from attacks by others. In the present case, however, the German State, rather than protecting the applicant association from attacks, endorses such attacks and joins them. Furthermore, the measures taken as part of the campaign are not "prescribed by law" and are, in any case, grossly disproportionate and unnecessary in a democratic society, in violation of para. 2 of this provision.        The applicant association further complains that the campaign has predictable and serious effects on the private life of Scientology members. These effects are grossly disproportionate and destructive for the private and family lives of the persons affected and violate Article 8 of the Convention.        Furthermore the measures taken against members of Scientology on the mere basis of their membership of that organisation, without consideration of their individual actions and in spite of the fact that Scientology is lawful, violate Article 10 of the Convention generally. The actions taken against artists, musicians and actors, on the sole basis of their affiliation with Scientology infringe the rights of the affected individuals to freedom of artistic expression, in violation of Articles 9 and 10 of the Convention.        The applicant association further alleges that the general measures taken against Scientology as well as specific measures aimed at preventing Scientology members from meeting freely violate Article 11 of the Convention.        The information campaigns in schools directly infringe the rights of Scientology parents to have their children educated in accordance with their beliefs, in violation of Article 2 of Protocol No. 1.        The systematic attempts to exclude Scientologists from all major political parties, which, according to the applicant association, have quasi-public status under German law, on the sole basis of their religious beliefs, is an attempt to exclude members of Scientology from the political life of the nation in violation of Article 3 of Protocol No. 1, as well as of Article 11 of the Convention. These attempts amount to an abuse by the political parties in question of the right to freedom of association, in violation of Article 17 of the Convention.        The applicant association also submits that there is no effective remedy against either the administrative policy of the respondent Government or the fundamental political assessment which lies at its roots. The applicant association alleges a violation of Article 13 of the Convention.        The applicant association finally submits that the above measures and violations affecting its enjoyment of all the above-mentioned rights and freedoms, amount to discrimination in the enjoyment of those rights and freedoms in violation of Article 14 of the Convention.     THE LAW   1.    The applicant association alleges that itself and its members as a group are the victims of an administrative practice of violations of Articles 8, 9, 10, 11 and 17 (Art. 8, 9, 10, 11, 17) of the Convention and of Articles 2 and 3 of Protocol No. 1 (P1-2, P1-3), separately and in conjunction with Articles 13 and 14 (P1-2+P1-3+13+14) of the Convention.        The Commission has first examined to what extent the conditions laid down in Article 25 para. 1 (Art. 25-1) of the Convention have been met in the present case.        Article 25 para. 1 (Art. 25-1) of the Convention provides:        "The Commission may receive petitions addressed to the Secretary      General of the Council of Europe 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 this Convention, provided that the      High Contracting Party against which the complaint has been      lodged has declared that it recognises the competence of the      Commission to receive such petitions. (...)"        The Commission recalls that, in order for applicants to be able to avail themselves of this provision, they must fulfil two conditions: they must fall into one of the categories of applicants referred to in Article 25 (Art. 25) and they must have a claim to be a victim of a violation of the Convention.        As regards the first condition, the Commission notes that the applicant association is an association of individuals as defined by German domestic law. As such it clearly falls into one of the categories of applicants mentioned in Article 25 (Art. 25) of the Convention, namely that of a non-governmental organisation.        As for the second condition, the Commission recalls that the concept of "victim" as used in Article 25 (Art. 25) of the Convention must be interpreted autonomously and independently of concepts of domestic law such as capacity to bring or to take part in legal proceedings.        An applicant cannot claim to be the victim of a breach of the rights or freedoms protected by the Convention unless there is a sufficiently direct connection between the applicant as such and the injury he maintains he suffered as a result of the alleged breach. In particular, according to the established case-law of the Commission, a corporate applicant cannot claim to be itself a victim of measures alleged to have interfered with the Convention rights of its individual members (cf. No. 9939/82, Dec. 4.7.83, D.R. 34 p. 213; No. 10733/84, Dec. 11.3.85, D.R. 41 p. 211; No. 18598/91, Dec. 18.5.94, D.R. 78 pp. 71, 72; No. 24581/94, Dec. 6.4.95, D.R. 81 pp. 123, 126).        In the present case it is clearly not the applicant association as such   which is the victim of the alleged violations of the rights guaranteed by Article 8 (Art. 8) of the Convention (respect for private life) and of Articles 2 and 3 of Protocol No. 1 (P1-2, P1-3) (parents' right to educate their children in conformity with their religious and philosophical convictions and right to free elections). Solely the members of the applicant association, as individuals, could claim to be victims of a violation of these rights, which by their nature are not susceptible of being exercised by an association.        The Commission notes that the applicant association claims also to represent its members as alleged victims of a violation of these and a number of other rights enshrined in the Convention. However, the applicant association has not identified these individuals and in any event has not shown that it has received specific instructions from each of them (cf No. 10983/84, Dec. 12.5.86, D.R.47 p. 225).        It follows that insofar as the application alleges violations of the rights of the applicant association's individual members, it is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    Insofar as the applicant association alleges to be itself the victim of a violation of Articles 9, 10, 11, 14 and 17 (Art. 9, 10, 11, 14, 17) of the Convention, the Commission notes that to a large extent it complains of the conduct of   members of parliament, political parties, commercial companies and other non- governmental organisations or private persons. However, according to Article 25 (Art. 25) of the Convention, the Commission can only deal with applications alleging a violation of Convention rights by a High Contracting Party to the Convention, i.e. a violation claimed to have been committed by State bodies. By contrast, it may not receive applications directed against private individuals or private enterprises or private law corporations. In this respect the Commission refers to its established case-law (No. 11002/84, Dec. 8.3.85, D.R. 41 p. 264; No. 11590/85, Dec. 18.7.86, D.R. 48 p. 258; No. 12327/86, Dec. 11.10.88, D.R. 58 p. 85).        The applicant association's complaints of violations of its Convention rights by the above non-governmental bodies or persons are therefore incompatible ratione personae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The Convention may nevertheless be invoked before the Commission where it is claimed that the State has failed in its duty to protect the Convention rights of an applicant against interferences by private persons or institutions, provided that a positive obligation of the State in this repect can be derived from the particular provision of the Convention at issue (cf. e.g. No. 8282/78, Dec. 14.7.80, D.R. 21 p. 109; No. 12242/86, Dec. 6.9.1989, D.R. 62 p. 151; Eur. Court HR, Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 21, para. 48; Otto-Preminger-Institut v. Austria judgment of 20 September 1994, Series A no. 295-A,   p. 18, para. 47). The Commission notes that in the present case the applicant association indeed raises a claim of the State having failed in accomplishing its positive obligations under the Convention, and in particular under Article 9 (Art. 9) thereof. Apart from that, it is not clear from the general submissions of the applicant association what specific acts might have constituted a direct interference by the German State authorities with the applicant association's rights.        However, in any event, the Commission is not required to decide whether or not the facts alleged by the applicant association disclose any appearance of a violation of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.        The Commission observes that domestic remedies have been exhausted if, before the highest authority, the applicant has raised, at least in substance, the complaint he makes before the Commission (cf. No. 17128/90, Dec. 10.7.91, D.R. 71 p. 275). The Commission recalls in this respect that Article 26 (Art. 26) of the Convention is intended to provide national authorities with the opportunity of remedying violations alleged by an applicant (Eur. Court HR, López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 52, para. 38).        The Commission notes that in the present case the rights invoked by the applicant association are also guaranteed by the German Basic Law (Grundgesetz). Insofar as the applicant association has or might have seized the competent courts, for instance by lodging an interim injunction (einstweilige Anordnung) and introducing main proceedings before the administrative courts with a view to prohibiting certain statements or publications concerning its activities, it could subsequently also have lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht) in accordance with the relevant provisions of the Basic Law and the Act on the Federal Constitutional Court (Gesetz über das Bundesverfassungsgericht). This remedy would have been available, for instance, in respect of the decision of the Federal Labour Court of 22 March 1995. However, the applicant association has not shown that it has ever resorted to such a remedy.        The Commission finds therefore that in the present case the domestic authorities were not afforded the opportunity to rectify the violations of the Convention alleged by the applicant association.        The applicant association submits that it was under no obligation to exhaust domestic remedies since any remedy would in the circumstances of the case be inadequate and ineffective, having regard to the alleged existence of an administrative practice of the German authorities.        It is true that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies as relate to the alleged breaches of the Convention and at the same time can provide effective and sufficient redress. An applicant does not need to exercise remedies which, although theoretically of a nature to constitute a remedy, do not in reality offer any chance of redressing the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78; Eur. Court HR, Akdivar and others v. Turkey judgment of 16 September 1996, to be published in Reports of Judgments and Decisions 1996, para. 66).        However, there is no indication   in the present case that the domestic remedies, which were at the disposal of the applicant association under German law, are not effective remedies in practice to remedy the situation complained of. In particular, the Commission finds nothing to support the applicant association's allegation that there exists an administrative practice in Germany which would make the judicial remedies ineffective.   Moreover, the existence of doubt as to the chances of success of a domestic remedy does not exempt an applicant from the obligation to exhaust it (cf., e.g., No. 13669/88, Dec. 7.3.90, D.R. 65 p. 245).        Therefore, an examination of the application by the Commission does not disclose the existence of any special circumstances which might have absolved the applicant association, according to the generally recognised rules of international law, from exhausting the domestic remedies at its disposal.        It follows that the applicant association has not complied with the condition as to the exhaustion of domestic remedies, and this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   4.    The applicant association finally complains under Article 13 (Art. 13) of the Convention that no effective remedy was at its disposal to assert its Convention rights before the national authorities of Germany.         Article 13 (Art. 13) reads as follows:        "Everyone whose rights and freedoms as set forth in this      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 Commission recalls that Article 13 (Art. 13) of the Convention guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Its effect is thus to require the provision of a domestic remedy allowing the competent "national authority" both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Eur. Court HR, Vilvarajah and others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 39, para. 122).        In the Commission's view, the remedies at the disposal of the applicant association under German law would have satisfied these requirements. The Commission adds that doubts as to the chance of success of an appeal which could remedy an alleged violation of the Convention are not sufficient to raise issues under Article 13 (Art. 13) of the Convention (see No. 10266/83, Dec. 9.7.84, D.R. 39 p. 219).        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        H.C. KRÜGER                               S. TRECHSEL       Secretary                                 President    to the Commission                       of the Commission