PERELMAN v. GERMANY
Inadmissible
Angelika Nußberger;Erik Møse;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
1. The applicants, Ms Bluma Zipa Perelman and Mr Alain Michel Perelman, are French nationals who were born in 1947 and live in Frankfurt/Main. They were represented before the Court by Mr S. Schödel, a lawyer practising in Bonn. 3. In November 2002 the applicants moved from France to Frankfurt/Main in Germany. They submitted a registration form dated 11 November 2002 to the local registration authority, to inform the latter of their new place of residence. The form required information about their religion, and for both applicants they indicated “Mosaic” (“Mosaisch”) in the relevant part of the form. 4. The applicants remained members of their liberally-oriented Jewish community in France. 5. By letter dated 12 May 2003 the Jewish community of Frankfurt/Main welcomed the applicants as new members. A copy of the community’s statutes was attached to the letter. According to the statutes, all persons of Jewish faith whose place of residence or usual abode was in Frankfurt/Main were members of the community, unless they had made a written objection to the community council within three months from their date of arrival. 6. By letter of 11 June 2003 the applicants opposed membership. They further requested restitutio in integrum (Wiedereinsetzung in den vorigen Stand), pointing out that they had received the community’s statutes only after the expiry of the period for filing an objection. 7. As the community did not accept their objection, the applicants, as a precautionary measure, resigned their membership with effect from the end of October 2003. This was accepted by the community. 8. As a public-law entity (Körperschaft öffentlichen Rechts) the Jewish community of Frankfurt/Main levies a church tax based on the individual income of their members, which is collected by the State tax authorities. For the period from November 2002 to October 2003 the Frankfurt/Main tax office levied a church tax on the applicants. They objected to paying the church tax in a separate set of proceedings which is not the subject of the application at issue. 9. On 9 June 2005 the applicants brought an action before the Frankfurt/Main Administrative Court to obtain a declaration that they had not been members of the community between November 2002 and October 2003. 10. On 20 September 2005 the Frankfurt/Main Administrative Court rejected the action as inadmissible, denying that such a judgment would have a legitimate interest. 11. The applicants appealed and, on 19 May 2009, the Hesse Administrative Court of Appeal dismissed their appeal. It held that the applicants’ action was admissible, but ill-founded because their membership was based on internal regulations of the religious community which had to be recognised by State authorities, in view of the principle of autonomy of religious organisations. 12. On 23 September 2010 the Federal Administrative Court quashed the judgment of the Administrative Court of Appeal and declared that, in the public sphere, the applicants’ membership could not have legal effect. It reasoned, in essence, that notwithstanding the autonomy of religious organisations’ religion was “Mosaic” could not be taken as a declaration of willingness to become members of the local Jewish community. 13. After the Frankfurt/Main Jewish community had lodged a constitutional complaint (no. 2 BvR 278/11), on 17 December 2014 the Federal Constitutional Court, sitting in a chamber of three judges, quashed the Federal Administrative Court’s judgment, finding a violation of the community’s fundamental right under Article 4 §§ 1 and 2, read in conjunction with Article 140 of the Basic Law and Article 137 § 3 of the Weimar Constitution of 11 August 1919 (Weimarer Reichsverfassung). The court held that the Federal Administrative Court had not correctly evaluated the scope and the significance of the guarantee of autonomy (Selbstbestimmungsrecht) afforded to religious communities by the aforementioned Articles of the Basic Law. Regulations governing membership had to be seen as affairs that religious communities are free to determine at their own discretion. The State’s duty to acknowledge the guarantee of autonomy of religious associations for the secular legal sphere found its limits in the negative religious freedom of potential members. The inclusion of members by religious communities had to be acknowledged where this was legitimised by positive declaration, albeit possibly by an implicit declaration. There were various ways to express willingness to be a member of a religious community. This did not necessarily have to be expressed to the religious community itself. From the information submitted by the applicants to the registration office in Frankfurt/Main it could be concluded, from the objective standpoint of the onlooker (objektivierter Empfängerhorizont), that the applicants had expressed their willingness to be members of the Jewish community of Frankfurt/Main. 14. On 21 September 2016 the Federal Administrative Court, to which the case had been remitted, dismissed the applicants’ appeal on points of law. It pointed out that, on procedural grounds, the judgment of the Federal Constitutional Court was binding. It nevertheless expressed doubts as to the compatibility of the finding with Article 9 of the Convention. It noted in particular that the Federal Constitutional Court had attached no importance to the fact that the applicants had not been asked for their religious affiliation but for their religion in the registration form at issue. Notwithstanding the Jewish community of Frankfurt/Main’s conception of itself as a uniform community, everyone who lived in the community’s district and declared his or her religious belief should be free to choose another Jewish community. Due to the binding effect of the judgment of the Federal Constitutional Court, the court considered itself prevented from founding its decision on these aspects. 15. On 23 November 2016 the applicants lodged a constitutional complaint with the Federal Constitutional Court which is still pending (no. 2 BvR 2595/16). Relying on Article 4 § 1 of the Basic Law and Article 9 of the Convention and referring to the Court’s case-law they complained in particular that their membership in the Jewish community of Frankfurt/Main was not based on their consent.