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Capacities to be Enjoyed by Non-Governmental Organizations

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

Case no 40825/98

81.  The applicants also complain that the legal personality conferred on the first applicant under the Religious Communities Act was limited and insufficient for the purposes of Article 9 of the Convention.

82.  The Court observes that through its recognition as a religious community the first applicant had legal personality, which allowed it to acquire and manage assets in its own name, to have legal standing before the courts and authorities, to establish places of worship, to disseminate its beliefs and to produce and distribute religious material. In so far as the applicant argued that the status thus obtained put it at a disadvantage vis-à-vis religious societies, this matter will be examined below under Article 14 read in conjunction with Article 9 of the Convention. (...)

89.  The applicants submitted that the status of a religious community conferred upon the first applicant was inferior to the status held by religious societies, as religious communities were subject to more severe State control in respect of their religious doctrine, their rules on membership and the administration of their assets pursuant to sections 3-5 and 11 of the 1998 Religious Communities Act.

90.  The Court would point out at the outset that in proceedings originating in an application lodged under Article 34 of the Convention it has to confine itself, as far as possible, to the examination of the concrete case before it. Its task is not to review domestic law and practice in abstracto and to express a view as to the compatibility of the provisions of legislation with the Convention, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, p. 23, § 54; Findlay v. United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 279, § 67; and Fédération Chrétienne des Témoins de Jéhovah de France v. France (dec.), no. 53430/99, ECHR 2001-XI). Accordingly, by the term “victim”, Article 34 of the Convention means the person directly affected by the act or omission which is in issue. Article 34 of the Convention may not be used to found an action in the nature of an actio popularis. It may only exceptionally entitle individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see Open Door and Dublin Well Woman v. Ireland, judgment of 29 October 1992, Series A no. 246, p. 22, § 44; Norris v. Ireland, judgment of 26 October 1988, Series A no. 142, pp. 15-16, §§ 30-32; and S.L. v. Austria (dec.), no. 45330/99, 22 November 2001).

91.  The applicants further complained of the discriminatory nature of section 11 of the 1998 Religious Communities Act. This provision amended the Recognition Act in that it introduced further requirements for recognition as a religious society. In particular, it requires 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 association’s relationship with recognised or other religious societies.

92.  The Court observes that under Austrian law, religious societies enjoy privileged treatment in many areas. These areas include exemption from military service and civilian service, reduced tax liability or exemption from specific taxes, facilitation of the founding of schools, and membership of various boards (see “Relevant domestic law” above). Given the number of these privileges and their nature, in particular in the field of taxation, the advantage obtained by religious societies is substantial and this special treatment undoubtedly facilitates a religious society’s pursuance of its religious aims. In view of these substantive privileges accorded to religious societies, the obligation under Article 9 of the Convention incumbent on the State’s authorities to remain neutral in the exercise of their powers in this domain requires therefore that if a State sets up a framework for conferring legal personality on religious groups to which a specific status is linked, all religious groups which so wish must have a fair opportunity to apply for this status and the criteria established must be applied in a non-discriminatory manner.

93.  The Court notes that in the present case the Federal Minister for Education and Cultural Affairs, on 1 December 1998, dismissed the request for recognition of the first applicant as a religious society, relying on section 11(1) of the Religious Communities Act, on the ground that it had not existed as a registered religious community for a minimum of ten years. Since only this element of section 11 was applied, the Court does not find it necessary to examine the other parts of this provision that were challenged by the applicants.

94.  The Government argued that the ten-year waiting period for registered religious communities served a useful purpose as it allowed the competent authority to verify during this period of time whether the religious community was ready to integrate into the existing legal order, in particular 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 Religious Communities Act).

95.  The applicants disputed the necessity of the ten-year waiting period, as the recognition of the Coptic Orthodox Church by a specific law in 2003 (see paragraph 45(e) above) proved the contrary. The Coptic Orthodox Church had only existed in Austria since 1976 and had been registered as a religious community in 1998, whereas the first applicant, which had existed in Austria for a considerably longer period, was still a religious community.

96.  The Court reiterates that Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of that Article (see “Case relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), judgment of 23 July 1968, Series A no. 6, § 10, and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, § 39).

97.  The Court finds that the imposition of a waiting period before a religious association that has been granted legal personality can obtain a more consolidated status as a public-law body raises delicate questions, as the State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs (see Metropolitan Church of Bessarabia and Others, cited above, § 116). Such a waiting period therefore calls for particular scrutiny on the part of the Court.

98.  The Court could accept that such a period might be necessary in exceptional circumstances such as would be in the case of newly established and unknown religious groups. But it hardly appears justified in respect of religious groups with a long-standing existence internationally which are also long established in the country and therefore familiar to the competent authorities, as is the case with the Jehovah’s Witnesses. In respect of such a religious group, the authorities should be able to verify whether it fulfils the requirements of the relevant legislation within a considerably shorter period. Further, the example of another religious community cited by the applicants shows that the Austrian State did not consider the application on an equal basis of such a waiting period to be an essential instrument for pursuing its policy in that field.

99.  The Court therefore finds that the difference in treatment was not based on any “objective and reasonable justification”. Accordingly, there has been a violation of Article 14 of the Convention taken in conjunction with Article 9.

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