CASE OF VEREIN DER FREUNDE DER CHRISTENGEMEINSCHAFT AND OTHERS v. AUSTRIA
No violation of Article 6 - Right to a fair trial;No violation of Article 13 - Right to an effective remedy
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The first applicant is a religious community established in Austria on 11 July 1998, and the four other applicants are members of it. The second applicant is the chair of the Vienna branch of the first applicant, and the fifth applicant is its deputy chair and is a minister in Vienna. The third and fourth applicants are also members of the first applicant’s Vienna branch. The second to fourth applicants are Austrian nationals, and the fifth applicant is a German national. The second to fifth applicants live in Vienna. 7. 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). 8. On 4 October 1995 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 and that a decision on this matter should be subject to review by the Austrian courts (see Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 21, 31 July 2008). 9. On 11 March 1996 the applicants filed an application with the Administrative Court (Verwaltungsgerichtshof) against the Minister’s failure to give a decision (Säumnisbeschwerde). 10. 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 Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as “the 1998 Religious Communities Act”) on 10 January 1998, the applicants’ request for recognition under the 1874 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 give a decision had started again on 10 January 1998 and consequently there had been no failure to give a decision on the part of the Minister. The Administrative Court’s decision was served on the applicants’ lawyer on 11 March 1998. 11. 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 1998 Religious Communities Act as from 11 July 1998. The first applicant, however, was not thereby granted legal personality as a religious society within the meaning of the 1874 Recognition Act. 12. On 9 September 1998 the applicants lodged a complaint against that decision with the Constitutional Court (Verfassungsgerichtshof), arguing that the refusal to confer legal personality to the first applicant under the 1874 Recognition Act was in breach of Article 9 of the Convention and Article 14 of the Basic Law. 13. On 17 December 1998 the Federal Minister submitted observations in reply, which arrived at the Constitutional Court on 23 December 1998. 14. Meanwhile, on 16 July 1998, the applicants had filed another request with the Federal Minister for the first applicant to be recognised as a religious society under the 1874 Recognition Act. 15. 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 1998 Religious Communities Act, a religious community could only be recognised as a religious society under the 1874 Recognition Act if it had already existed as a registered religious community for a minimum of ten years. 16. On 12 January 1999 the applicants lodged a complaint against that decision with the Constitutional Court. They submitted that the transitory provisions in the 1998 Religious Communities Act, which introduced new conditions for recognition as a religious society under the 1874 Recognition Act were unconstitutional as being in breach of Article 9 of the Convention and Article 14 of the Basic Law. 17. On 16 April 1999 the Federal Minister submitted observations in reply to the Constitutional Court. 18. On 3 March 2001 the Constitutional Court dismissed the applicants’ complaints of 9 September 1998 and 12 January 1999. It found that the ten-year waiting period for registered religious communities as a precondition for a successful application for recognition as a religious society under the 1874 Recognition Act was in conformity with the Federal Constitution. In particular, it served the legitimate aim of ensuring that the competent authority could verify during this period of time whether the religious community was ready to integrate into the existing legal order, for example, whether it performed unlawful activities as a consequence of which legal personality had to be withdrawn (section 9(2) and section 5(1) of the 1998 Religious Communities Act). Examples of such unlawful activities were incitement to commit criminal offences, endangering the psychological development of minors, violating the psychological integrity of persons or using psychotherapeutic methods to disseminate its religious beliefs. That decision was served on the applicants’ lawyer on 4 April 2001. 19. 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 from civic obligations. 20. Article 15 provides that recognised churches and religious communities have the right to manifest their faith collectively in public, to organise and administer their internal affairs independently, and to remain in possession of acquired institutions, foundations and funds dedicated to cultural, educational and charitable purposes; however, they are, like all other societies, subordinate to the law. 21. Article 16 entitles the supporters of non-recognised religious communities to domestic manifestation of their faith unless it is unlawful or contra bonos mores. 22. Article 63 § 1 states that Austria undertakes to ensure full and complete protection of life and liberty to all inhabitants of Austria without distinction on the basis of birth, nationality, race or religion. 23. Article 63 § 2 guarantees to all inhabitants of Austria the right to manifest publicly and privately their thought, religion and beliefs, unless these are incompatible with the protection of public order or morals. 24. Section 1 of the Act provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the Act, namely that their teaching, services and internal organisation, 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 statutory criteria is ensured. 25. 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 of them, delimitation of their territory, and their bodies and statutes. Sections 10 to 12 deal with the nomination of religious ministers (Seelsorger) of religious societies, the qualifications such persons must have and how their nomination must be communicated to the authorities. Section 15 provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the Act. 26. The legal personality of the Roman Catholic Church is, on the one hand, regarded 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). 27. The following are examples of special laws recognising religions societies: (a) 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); (b) Act of 15 July 1912 on the recognition of followers of Islam [according to the Hanafi rite] as a religious society, 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); (c) Federal Act on the External Legal Status of the Evangelical Church, Federal Law Gazette No. 182/1961 (Bundesgesetz vom 6. Juli 1961 über die äußeren Rechtsverhältnisse der Evangelischen Kirche, BGBl. Nr. 182/1961); (d) 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); (e) Federal Act on the External Legal Status of the Oriental Orthodox Churches in Austria, Federal Law Gazette No. 20/2003 (Bundesgesetz über äußere Rechtsverhältnisse der Orientalisch-Orthodoxen Kirchen in Österreich, BGBl. Nr. 20/2003). 28. Between 1877 and 1982 the competent ministers recognised a further six religious societies. 29. The Religious Communities Act entered into force on 10 January 1998. Pursuant to section 2(3) of the Act, the Federal Minister for Education and Culture has to rule in a formal written decision (Bescheid) on the acquisition of legal personality by the religious community. In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned (section 2(4)). The religious community has the right to call itself a “publicly registered religious community”. 30. Section 4 specifies the necessary contents of the statutes of the religious community. Among other things, they must specify the community’s name, which must be clearly distinguishable from the name of any existing religious community or society. They must further set out the main principles of the religious community’s faith, the aims and duties deriving from it, the rights and duties of the community’s adherents, including the conditions for terminating membership (it is further specified that no fee for leaving the religious community may be charged), how its bodies are appointed, who represents the religious community externally and how the community’s financial resources are raised. Lastly, the statutes must contain provisions on the liquidation of the religious community, ensuring that the assets acquired are not used for ends contrary to religious purposes. 31. Under section 5, the Federal Minister must refuse to grant legal personality to a religious community if, in view of its teachings or practice, this is 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 freedom of others; this is in particular the case if its activities involve incitement to commit criminal offences, obstruction of the psychological development of adolescents or undermining of people’s mental integrity, or if the statutes do not comply with section 4. 32. Under section 7, the religious community must inform the Federal Minister for Education and Cultural Affairs of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay. The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section 5. 33. Section 9 specifies the reasons for termination of a community’s legal personality. Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked. Reasons for revoking legal personality are set out in subsection (2): for example, if the reasons for granting legal personality no longer subsist or if for more than one year no bodies representing the religious community externally have been appointed. 34. The Act only regulates the granting of legal personality. Once legal personality has been granted to a religious community, it may pursue the activities referred to in its statutes. There are no specific laws in Austria regulating the acquisition of assets by religious societies or communities, the establishment of places of worship or assembly, or the publication of religious material. However, provisions which contain explicit references to religious societies are spread over various statutory instruments (see below). 35. Since the entry into force of the 1998 Religious Communities Act on 10 January 1998, non-recognised religious associations may be granted legal personality upon application. A previous application for recognition under the 1874 Recognition Act is to be dealt with as an application under the 1998 Religious Communities Act pursuant to section 11(2). 36. Section 11(1) of the 1998 Religious Communities Act establishes additional criteria for a successful application under the 1874 Recognition Act, such as the existence of the religious association for at least twenty years in Austria and for at least ten years as a registered religious community; a minimum number of two adherents per thousand members of the Austrian population (at the moment, this means 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; and no illegal interference as regards the community’s relationship with recognised or other religious societies. 37. In various Austrian laws specific reference is made to recognised religious societies. The following list, which is not exhaustive, sets out the main instances. Under section 8 of the Federal School Supervision Act (Bundes-Schulaufsichtsgesetz), representatives of recognised religious societies may sit (without the right to vote) on regional education boards. Under the Private Schools Act (Privatschulgesetz), recognised religious societies, like public territorial entities, are presumed to possess the necessary qualifications to operate private schools, whereas other persons have to prove that they are qualified. Under section 24(3) of the Military Service Act, ordained priests, persons involved in spiritual welfare or in religious teaching after graduation from theological studies, members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and, under section 13 of the Civilian Service Act, are also exempt from alternative civilian service. Under sections 192 and 195 of the Civil Code (ABGB), ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians, and under section 3(4) of the 1990 Act on Juries of Assizes and Lay Judges (Geschworenen- und Schöffengesetz) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court. Section 18(1)(5) of the Income Tax Act provides that contributions to recognised religious societies are deductible from income tax up to an amount of 100 euros per year. Section 2 of the Land Tax Act (Grundsteuergesetz) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real-estate tax. Under section 8(3)(a) of the 1955 Inheritance and Gift Act (Erbschafts- und Schenkungsteuergesetz), which was still in force at the relevant time, donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of 2.5%.