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Acquisition of Legal Personality and Registration

Religionsgemeinschaft der Zeugen Jehovas and Others v Austria, 31 July 2008 [ECtHR]

Case no 40825/98

65.  The Government maintained that there had been no interference with the applicants’ rights under Article 9 because the first applicant had eventually been granted legal personality and the members of the Jehovah’s Witnesses had not been hindered in practising their religion individually and could have set up an association having an organisational structure and legal personality.

66.  The Court is not persuaded by that argument. On the one hand the period which elapsed between the submission of the request for recognition and the granting of legal personality is substantial and it is therefore questionable whether it can be treated merely as a period of waiting while an administrative request was being processed. On the other hand, during this period the first applicant did not have legal personality, with all the consequences attached to this lack of status.

67.  The fact that no instances of interference with the community life of the Jehovah’s Witnesses have been reported during this period and that the first applicant’s lack of legal personality may be compensated in part by running auxiliary associations, as stated by the applicants, is not decisive. The Court reiterates in this connection that the existence of a violation is conceivable even in the absence of prejudice or damage; the question whether an applicant has actually been placed in an unfavourable position is not a matter for Article 34 of the Convention and the issue of damage becomes relevant only in the context of Article 41 (see, among many authorities, Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 27; Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66; and Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, § 38; see also The Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 64-65, ECHR 2006‑...; Church of Scientology Moscow v. Russia, no. 18147/02, § 72, 5 April 2007).

68.  The Court therefore considers that there has been an interference with the applicants’ right to freedom of religion, as guaranteed by Article 9 § 1 of the Convention. (...)

76.  Having regard to the circumstances of the case, the Court considers that the interference complained of pursued a legitimate aim under Article 9 § 2, namely protection of public order and public safety.

4.  Necessary in a democratic society

77.  The Court notes that from 1978, when the applicants submitted the request for recognition of the first applicant as a religious society, some 20 years elapsed until legal personality was eventually conferred on the first applicant.

78.  The Court finds that such a prolonged period raises concerns under Article 9 of the Convention. In this connection the Court reiterates that the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords (see Hasan and Chaush, cited above, § 62).

79.  Given the importance of this right, the Court considers that there is an obligation on all of the State’s authorities to keep the time during which an applicant waits for conferment of legal personality for the purposes of Article 9 of the Convention reasonably short. The Court appreciates that during the waiting period the first applicant’s lack of legal personality could to some extent have been compensated by the creation of auxiliary associations which had legal personality, and it does not appear that the public authorities interfered with any such associations. However, since the right to an autonomous existence is at the very heart of the guarantees in Article 9 these circumstances cannot make up for the prolonged failure to grant legal personality to the first applicant.

Since the Government have not relied on any “relevant” and “sufficient” reasons justifying this failure, the above measure went beyond what would have amounted to a “necessary” restriction on the applicants’ freedom of religion.

80.  It follows that there has been a violation of Article 9 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

100.  The applicants complained under Article 6 of the Convention about the length of the proceedings concerning their request for recognition of the first applicant as a religious society. (...)

1.  Applicability of Article 6 § 1 of the Convention

106.  The Court reiterates that the applicability of Article 6 depends on whether there was a dispute over (civil) "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law, and, if so, whether this "right" was of a "civil" character within the meaning of Article 6 § 1 (see Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, pp. 20-21, §§ 45-49).

107.  The Court further notes that, in principle, the civil-law limb of this provision applies to proceedings concerning the registration of associations by which they obtain legal personality (see for example, Apeh Üldözötteinek Szövetsége and Others v. Hungary, no. 32367/96, § 32-36, ECHR 2000-X).

108.  In the present case the proceedings concerning the applicants’ request for recognition of the first applicant as a religious society also concerned the first applicant’s legal status and, in so far as there existed a right to such a decision under domestic law, the proceedings complained of involved the determination of the applicants’ civil rights. To this extent Article 6 applies.

2.  Compliance with Article 6 § 1 of the Convention

109.  The Court notes at the outset that two different sets of proceedings need to be distinguished, namely the proceedings concerning the application for recognition submitted on 25 September 1978 and those concerning the application submitted on 22 July 1998.

(A)  PROCEEDINGS CONCERNING THE REQUEST FOR RECOGNITION OF 25 SEPTEMBER 1978

110.  As regards the length of the first set of proceedings, the Court must also determine from what moment such a right under Article 6 existed. While the Federal Minister for Education, Arts and Sports and the Administrative Court, relying on its own and the Constitutional Court’s decisions, found that no formal decision had to be taken when a request for recognition was refused, as there was no right to such a decision, the Constitutional Court, in its decision of 4 October 1995 in the context of special proceedings for determining a dispute between the highest courts, found that the Recognition Act had to be construed in such a way that a right to a decision on a request for recognition existed. It was from that moment that the domestic authorities were under an obligation to give a formal decision – positive or negative – on a request for recognition. It was also from that moment that the period to be taken into consideration under Article 6 § 1 started to run. The proceedings ended on 29 July 1998, when the decision of the Federal Minister granting the first applicant legal personality under the Religious Communities Act was served on the applicants. Thus, the proceedings lasted approximately two years and ten months.

111.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, for instance, Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999).

112.  In the Court’s view the proceedings were complex, as the domestic authorities decided on the applicants’ case on the basis of a change in the Constitutional Court’s case-law and new legislation enacted in the meantime. Moreover, the applicants’ case was dealt with twice by the competent Federal Minister as well as by the Administrative Court and the Constitutional Court. In these circumstances, the Court does not find that the duration of the above proceedings exceeded the reasonable-time requirement under Article 6 § 1.

113.  It follows that there has been no breach of the reasonable-time requirement as regards the proceedings concerning the first application for recognition.

(B)  PROCEEDINGS CONCERNING THE REQUEST FOR RECOGNITION OF 22 JULY 1998

114.  On 22 July 1998 the applicants submitted another request for recognition of the first applicant as a religious society. The relevant period under Article 6 § 1 started on 1 December 1998, when the Federal Minister dismissed the applicants’ request, as it was then that the “dispute” within the meaning of Article 6 arose. It ended on 25 October 2004 with the service of the Administrative Court’s decision. The proceedings thus lasted almost five years and eleven months.

115.   The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

116.  The Court observes that during the relevant period the applicants’ request was determined at three levels of jurisdiction. There were, however, two lengthy periods of inactivity. First, the case was pending for two years and almost two months before the Constitutional Court, which examined the constitutionality of various provisions of the Religious Communities Act and gave a reasoned decision on the merits of the applicants’ complaint. Secondly, more than three and a half years elapsed before the Administrative Court decided on the complaint. While the lapse of time before the Constitutional Court may be explained by the complexity of the issue, the inactivity of the Administrative Court remained unexplained by the Government.

117. In conclusion, the Court considers that the second set of proceedings did not comply with the reasonable-time requirement under Article 6 § 1. Accordingly, there has been a violation of Article 6 of the Convention.

 

118. 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. (...)

123. The Court observes that on the whole the applicants successfully used the remedies available under the Federal Constitution and eventually obtained redress at domestic level for their complaint. In particular, the Constitutional Court, in its decision of 4 October 1995, resolved the conflict of jurisdiction between the two highest courts and found that the applicants had a right to receive a decision on their request for recognition. After having been granted recognition as a religious community under the Act on the Legal Status of Registered Religious Communities on 20 July 1998, the applicants again applied to the Constitutional Court, challenging particular provisions of that act. It is true that the Constitutional Court dismissed this complaint on 14 March 2001, but the effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome (see, among other authorities, Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247‑C, p. 62, § 40). The applicants consequently had available to them a remedy satisfying the requirements of that provision and it follows that there has been no breach of Article 13 of the Convention.

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