CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 mars 2006

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Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mrs   E. Steiner ,   Mr   K. Hajiyev ,   Mr   D. Spielmann ,   Mr   S.E. Jebens, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 28 September 2001, 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 FACTS The first applicant is an Austrian religious community, the four other applicants are its members. The second applicant is the chairman of the Vienna branch of the first applicant, the fifth applicant is its deputy chairperson and is a minister in Vienna. The third and fourth applicants are also members of the first applicant’s branch in Vienna. The second to fourth applicants are Austrian nationals, the fifth applicant is a German national. They are represented before the Court by Mr   M. Machold, a lawyer practising in Vienna. The respondent Government are represented by Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for 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 On 14 March 1995 the 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 ( Religionsgesellschaft ) under the 1874 Recognition Act ( Anerkennungsgesetz ). On 11 March 1996 the applicants filed an application with the Administrative Court ( Verwaltungsgerichtshof ) against the Minister’s failure to decide ( Säumnisbeschwerde ). On 26 January 1998 the Administrative Court rejected the application. It noted that, upon the entry into force of the Act on the Legal Status of Registered Religious Communities ( Bundesgesetz über die Rechtspersön-lichkeit von religiösen Bekenntnisgemeinschaften , hereafter referred to as “the 1998 Religious Communities Act” ) on 10 January 1998, the applicants’ request for recognition under the Recognition Act had to be dealt with as a request under Section 11 § 2 of the 1998 Religious Communities Act. Thus, the six-month time-limit for the Minister to decide had started again on 10   January 1998 and consequently there was no failure to decide on the part of the Minister. The decision was served on the applicants’ lawyer on 11   March 1998. 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. On 9 September 1998 the applicants lodged a complaint against this decision with the Constitutional Court ( Verfassungsgerichtshof ). On 17 December 1998 the Federal Minister submitted observations in reply which arrived at the Constitutional Court on 23 December 1998. 2.     Second set of proceedings Meanwhile, on 16 July 1998, the applicants filed another request with the Federal Minister that the first applicant be recognised as a religious society under the Recognition Act. On 1 December 1998 the Federal Minister dismissed the applicants’ request of 16 July 1998. It found that, pursuant to Section   11   §   1 of the Religious Communities Act, a religious community could only be recognised as a religious society under the Recognition Act if it had existed before as a registered religious community for a minimum of ten years. On 12 January 1999 the applicants lodged a complaint against this decision with the Constitutional Court. On 3 March 2001 the Constitutional Court dismissed the applicants’ complaints of 9 September 1998 and 12 January 1999. It found that the ten years’ waiting period for registered religious communities as a precondition for a successful application for recognition under the Recognition Act was in conformity with the Federal Constitution. In particular, 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, e.g. 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. This decision was served on the applicants’ lawyer on 4   April 2001. 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 non 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 does 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 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 ); 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 ); 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 ); 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 ). 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 Bekenntni-sgemeinschaften ), 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. COMPLAINTS 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. The legal personality conferred on the first applicant under the Religious Communities Act was inferior to the one enjoyed by religious societies recognised under the Recognition Act. In particular, the 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 could hardly be fulfilled by any potential candidate for recognition. 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 relied on Article 9 and 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. THE LAW 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 14 of the Convention. The Court considers that the applicants’ complaints fall further to be considered under Article 11 of the Convention, although the applicants did not explicitly rely on this Article (see Religionsgemeinschaft der Zeugen Jehovas in Österreich and Others v. Austria (dec.), no.   40825/98, 5   July   2005). 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 referred to their observations made in the case Religionsgemeinschaft der Zeugen Jehovah’s and others   v.   Austria (no.   40825/98, decision of 5 July 2005). 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 existed since 24 August 1945 as an association. 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 repeated their complaint as set out in the application and stressed that by the Austrian authorities’ refusal to confer the first applicant the status of a recognised religious society they had been discriminated in their right to freedom of religion. They gave various examples for the alleged discriminatory treatment between religious communities and religious societies. They referred, in particular, to the fact that religious societies had more internal autonomy as regards the administration of their assets and the conditions and dissolution of private employment contracts. While private schools of religious societies had a right to public subventions and religious education of religious societies in public schools was sponsored by public means, religious communities had no such rights. Also in the field of taxation recognised religious societies enjoyed privileged treatment as contributions were deductible from income tax and religious societies were exempted from various taxes. Furthermore, commitment to a religious society could be registered in birth and death certificates and certificates of marriage. While ministers of recognised religious societies were exempt from military service, ministers of religious communities were not. Finally, in contrast to religious communities, religious societies had a right to a certain time of broadcasting under the Austrian Broadcasting Act ( ORF Gesetz ) and were not subject to information and documentation collecting by public authorities concerning sects. The applicants finally disputed the necessity of the ten years’ waiting period and the condition of a minimum number of adherents for recognition of a religious society. They submitted that many registered religious communities and even recognised religious societies did not fulfil the minimum number of adherents. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has 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 first applicant had obtained the legal status as an association and was registered as such since 24 August 1945, 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 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. In particular, several similar cases were pending before the Constitutional Court from which the court selected the applicants’ complaints as “leading case” and reviewed the constitutionality of several provisions of the 1998 Religious Communities Act. In the light of the extremely complex questions of law and different constellations of cases pending at the same time, the duration of two years and one and a half months in respect of the applicants’ complaint of 12   January   1999 was not excessive. The applicants contested these arguments and submitted that Article   6 was applicable to the proceedings at issue as the applicants’ claim to recognition was based in the Recognition Act and concerned their civil rights and obligations. They further argued that the proceedings lasted unreasonably long and stressed that from 13 March 1994 until 1   December   1998 the Austrian authorities had not set any procedural act. Such inactivity during nearly five years was inexplicable. 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.     Lastly 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 they had been violated in their right to an effective remedy under Article 13 of the Convention and stressed that the Constitutional Court did not go into all of their arguments. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.   For these reasons, the Court unanimously   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 a 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.   Søren Nielsen   Christos Rozakis   Registrar   President