CEDH · CASELAW;CLIN;ENG — 31 juillet 2008

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Austria - 40825/98 Judgment 31.7.2008 [Section I] Article 9 Article 9-1 Manifest religion or belief Prolonged failure to grant legal personality to a religious group: violation   Article 14 Discrimination Inconsistent application of qualifying periods for eligibility to register as a religious society: violation   Facts : Under Austrian law religious bodies may obtain separate legal personality by registering either as a religious society under the Legal Recognition of Religious Societies Act 1874 or as a religious community under the Religious Communities Act 1998. Registration as a society, which enjoys more extensive rights than a community, is only possible if the organisation has existed for at least 20 years in Austria or has been registered as a religious community for at least 10 years. In 1978 and again in 1987 a group of Jehovah’s Witnesses, including the first four applicants, applied to register the applicant community as a religious society. The authorities did not effect the registration and the competent minister ultimately informed the applicants that under the 1874 Act they had no right to a formal decision. Following a complex series of proceedings and a Constitutional Court ruling in 1995 that the applicant community was entitled to a determination of its request for recognition as a religious society, the minister issued a decision refusing registration on grounds relating to the applicant community’s internal organisation and perceived attitude. That decision that was subsequently quashed by the Constitutional Court as being arbitrary and in violation of the principle of equality. Following the introduction of the 1998 Act the applicant community was able to obtain legal personality as a religious community, which afforded it legal standing before the Austrian courts and authorities and the right to acquire and manage assets in its own name, establish places of worship and disseminate its beliefs. It nevertheless renewed its request for recognition as a religious society, but this was refused on the ground that it had not been registered as a religious community for the requisite ten-year period. Law : Article 9 – The period between the submission of the request for recognition as a religious society and the granting of legal personality was substantial, some 20 years, during which the applicant community had had no legal personality in Austria. There had therefore been interference with the applicants’ right to freedom of religion. That interference had been “prescribed by law” and pursued the “legitimate aim” of protecting public order and public safety. The right of a religious community to an autonomous existence was indispensable for pluralism in a democratic society. Given the importance of that right, there was an obligation to keep the time such a community had to wait for legal personality reasonably short. The fact that the applicants could have created auxiliary associations with legal personality could not compensate for the authorities’ prolonged failure to grant legal personality. Since the Government had not provided “relevant” and “sufficient” reasons to justify that failure, the measure had gone beyond any “necessary” restriction on the applicants’ freedom of religion. Conclusion : violation of Article 9 (six votes to one). Article 14 in conjunction with Article 9 – Under Austrian law religious societies enjoyed privileged treatment in many areas, notably taxation. In view of those privileges, the authorities were under an obligation to remain neutral and to give all religious groups wishing to apply for a specific status a fair opportunity to do so, using established criteria in a non-discriminatory manner. The duty to remain neutral and impartial also raised delicate questions when imposing a qualifying period on a religious association which had legal personality before it could obtain a more consolidated status as a public-law body. While making a religious community wait for ten years before granting it the status of a religious society could be necessary in exceptional circumstances, such as in the case of newly established and unknown religious groups, it hardly appeared justified in respect of religious groups such as the Jehovah’s Witnesses that were well-established nationally and internationally and thus familiar to the authorities. It should have been possible to verify whether the requirements of the legislation were fulfilled within a considerably shorter period in respect of such a group. Citing the example of another religious group that had been recognised in 2003 despite having been established in Austria much more recently and only being registered as a religious community in 1998, the Court concluded that the respondent State had not considered it essential to apply the same ten-year qualifying period to all. Accordingly, the difference in treatment was not based on any “objective and reasonable justification”. Conclusion : violation (six votes to one). Article 41 – EUR 10,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes