ALUJER FERNANDEZ and CABALLERO GARCIA v. SPAIN
Inadmissible
Georg Ress
The applicants are Spanish nationals who were born in 1948 and 1949 and live at Albalat dels Sorells (Valencia). They were represented before the Court by Mr Miguel Ramón Mancebo Monge, a lawyer practising in Valencia. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are Protestants and members of the Baptist Evangelical Church in Valencia, which is on the official register of religious institutions kept by the Ministry of Justice, and a member of the Federation of Evangelical Churches of Spain (FEREDE). In their income-tax returns for 1988, the applicants were given a choice between allocating part of their income tax to financial support for the Catholic Church or for other charitable purposes. Since it was not legally possible for them to allot part of their income tax to financial support for their own Church, the applicants used a remedy afforded by Law no. 62/1978 on Judicial Protection of the Fundamental Rights of the Person and lodged an administrative appeal with the Valencia High of Justice challenging the Law on the State Budget 1988 on the ground that it contravened Articles 14 (principle of equality) and 16 (right to freedom of conscience and religion) of the Constitution. In their appeal, they sought a declaration that the system implemented through the income-tax returns for 1988 was invalid, as it denied them a right enjoyed by Spaniards of the Catholic faith. The Valencia High Court of Justice dismissed that appeal in a judgment of 22 April 1990, notably on the following grounds: “Three: The issue to be resolved in the present appeal ultimately amounts to deciding whether or not the difference in tax treatment complained of is based on unjustified discrimination prohibited by the Constitution that invalidates the impugned acts... Four: As the Constitutional Court has said many times, a finding of discrimination contrary to the principle of equality will be made only if in normative cases that are identical in substance a difference in legal treatment has no objective or reasonable justification, since it lacks a rational basis... Five: In the present case, the Court finds no violation of the principle of equality as, in accordance with Article 133.3 of the Constitution, any fiscal privilege concerning State taxes must be provided for by statute. In the instant case, section 7(2) of Institutional Law no. 7/1980 of 5 July 1980 on Religious Freedom, which implements the said Article 16 of the Spanish Constitution, makes legal recognition of tax privileges laid down by general legislation in favour of non-profit making associations and other charitable bodies conditional on entry into agreements or conventions that must not only abide by the principle of equality but also, by virtue of sub-paragraph 1 of that Article, take religious beliefs existing in Spanish society into account. That provision complies with the content of Article 16.3 of the Constitution. However, in practice the situation of the Catholic Church, which has entered into a subsisting convention with the Spanish State and has the largest number of practising members and responsibility for a vast historical and cultural heritage, is different to that of the Baptist Evangelical Church, which has no convention or cooperation agreement with the Spanish State and does not satisfy the other condition. Naturally, under no circumstances should that be taken to mean that this Division entertains any doubts as to the constitutionality of any agreement implementing the right sought by the appellants and, while it is not for this Division to decide issues that are within the sole discretion of the legislature, it is obvious that it would be more consistent with the principle of religious freedom and equality for such a right to be made available... Six: As to the alleged violation of the right not to reveal one’s religious convictions, it is obvious that there has been no such violation in the instant case as no declaration was made in the impugned document. Furthermore, the fact that tax is allocated to the Catholic faith, which in any event will in principle only be the case with Catholics, does not infringe the right concerned either since, as with all fundamental rights, it is subject to limitations. In the instant case, the declaration predetermining expenditure is both justified and reasonable... Furthermore, opting to predetermine expenditure does not necessarily mean that the taxpayer adheres to that religion, as the possibility that he or she has so opted for other reasons such, for instance, ... as the exercise of an adequate social activity, cannot be excluded.” The applicants appealed against that judgment to the Supreme Court, which declared their appeal inadmissible in a decision of 26 March 1992. The applicants lodged an amparo appeal with the Constitutional Court, which on 20 June 1994 ordered the Supreme Court to declare the appeal admissible and to rule on the merits. On 20 October 1997 the Supreme Court examined the appeal and dismissed it on the merits, upholding the judgment appealed against. Relying on Articles 14, 16 and 24 of the Constitution, the applicants lodged an amparo appeal with the Constitutional Court, which in a decision of 13 May 1992, dismissed it for the following reasons: “There has been no violation in the instant case of the constitutional rights to equality before the law without discrimination based on religion (Article 14 of the Spanish Constitution), not to be required to reveal one’s religion or beliefs (Article 16.2 of the Constitution) and to the effective protection of the courts (Article 24.1 of the Constitution)... A decision by a taxpayer not to complete the section of the income-tax return for the fixed statutory percentage of tax that may be allocated to religious ends or other charitable interests in the absence of an alternative allowing an allocation in favour of the taxpayer’s own Church does not entail even an indirect violation of the constitutional guarantee of the right not to reveal one’s religion or beliefs (Article 16.2 of the Constitution). Furthermore, the court cannot find any discrimination based on religion violating the right to equality of treatment before the law (Article 14 of the Constitution), since a rational and objective basis exists for setting up a specific scheme of financial support for the Catholic Church through additional clause 5(4) of Law no. 33/97... and the principle that the State is non-denominational is supplemented by the mandate which Article 16. 3 of the Constitution gives the public authorities to establish “appropriate cooperation with the Catholic Church and the other denominations”, having regard to the religious beliefs of Spanish society. It is within that institutional framework that the cooperation agreements have been entered into. These include... an agreement on financial questions entered into with the Holy See by which the State undertakes to assist with the financial support of the Catholic Church. Thus, in the absence of any similar undertaking in favour of other denominations, the proposed basis for comparison is not adequate and the difference in treatment made by the legislature is neither arbitrary nor unjustified. Furthermore, Article 16.3 of the Constitution does not establish any directly enforceable fundamental right to compel the public authorities to set up a system enabling the alleged right to allocate a percentage of one’s income tax to the support of one’s own Church and the constitutional remedy of amparo is not the appropriate remedy for calling into question the constitutionality of the (alleged deficiencies) in the law. Lastly, the judgments appealed against provided a reasoned and legally founded answer to the issues raised by the applicants...” “Spanish nationals shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” “1. Freedom of ideology, religion and worship is guaranteed for private individuals and communities without any limitation on its expression other than as shall be necessary to maintain public order protected by law. 2. No one may be required to reveal their ideology, religion or beliefs. 3. No denomination shall be treated as the religion of the State. Public authorities shall take into account the religious beliefs of the Spanish society and shall accordingly seek to cooperate with the Catholic Church and the other denominations.” Under Institutional Law no. 7/1980 on Freedom of Religion, the State may enter into cooperation agreements – providing, inter alia, tax exemptions – with Churches. The arrangements will depend on the number of members the Church has, the extent to which it is established in Spanish society and the beliefs of the majority of Spaniards. “Pursuant to the provision set out in Article II of the Agreement on Financial Matters entered into by the Spanish State and the Holy See on 3 January 1979..., from 1988 onwards a percentage of the income tax paid by private individuals will be allocated to religious ends or other ends in the interest of society. 2. The said percentage shall be determined in each annual budget and shall apply to the tax levied on the basis of the annual returns made by taxpayers. ... 4. Taxpayers may indicate in their tax return their wish for a percentage of their income tax to be allocated to: (a) providing financial support for the Catholic Church; or (b) other ends set out in subparagraph 1 of this provision. Anyone who does not expressly state their preference shall be deemed to have opted for the ends referred to in subparagraph (b).” The Law of 10 November 1992, which was published in the State Official Gazette of 12 November 1992, governs the following matters: (i) the status of ministers of the evangelical church; (ii) legal protection for places of worship; (iii) recognition under the civil law of marriages celebrated according to Evangelical rite; (iv) religious assistance in public centres or institutions; (v) Evangelical religious teaching in schools; (vi) tax privileges applicable to certain assets and activities of Churches that are members of the FEREDE. Further, supplemental provision no. 2 of the Law provides that the agreement may be varied in whole or in part on the initiative of either party. Supplemental provision no. 3 establishes a joint committee comprising representatives of the State and of the FEREDE. According to information provided in February 2001 by the Director of Religious Affairs at the Ministry of Justice, a meeting of the joint committee (State-FEREDE) was held on 15 April 1999. During the course of the committee’s examination of the problem of financial cooperation with the State regarding certain activities of the Evangelical Churches, the State representative asked FEREDE for its view on the system of allocation of income tax. In reply to that question, the executive secretary of the FEREDE replied: “after various consultations, it was discovered that the opinion of the Churches within the Federation is divided, such that a final view has yet to be reached; it will be announced once it has been determined by negotiation”. Consequently, the 1992 agreement has not been amended and, to date, the FEREDE has not requested any amendment to it.