(Application no. 58911/00)
6 November 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Leela Förderkreis E.V. and Others v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Otto Mallmann, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 30 September 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
In their reply dated 23 August 1982 the Government mentioned the “Bhagwan-Shree-Rajneesh movement” in connection with questions concerning the membership structure of “so-called new youth sects”. Furthermore, in the preliminary remarks the term “so-called psycho-sects” was used, while throughout the main text the Government referred to “youth religions”.
In their reply of 10 October 1984 concerning the “economic activities of destructive youth religions and psycho-sects” the Government mainly used the terms “youth religion” and “psycho-sect”. The Government further stated that it appeared to be difficult to apply labour law regulations to associations the conduct of whose members was manipulated.
In its report to the Petititions Board of the Federal Diet of February 1980 the Federal Government pointed out in the introduction that the terms “youth religion” or “youth sect” encompassed a number of highly varied groups. The “group based around “Bhagwan (i.e. God) Shree Rajneesh” was presented as one of these groups, and was included as one of the “psycho-movements”.
In the speech he gave on 8 December 1984 at a conference on the topic “New youth religions – Protecting the freedom of the individual” the Federal Minister of Youth, Family and Health used the terms “youth religion”, “youth sect”, “sect”, “destructive religious cults”, “pseudo salvation teachings” and “pseudo-religion” with reference to the groups dealt with.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 2 § 2, first sentence
“Everyone has the right to life and to inviolability of his person”
Article 4 §§ 1 and 2
“The freedom of belief and conscience and the freedom to profess religious and philosophical beliefs are inviolable.
The undisturbed practice of worship is guaranteed.”
Article 6 § 1
“Marriage and family enjoy the special protection of the State.”
“The Federal Chancellor shall determine and be responsible for the general guidelines of policy. Within these limits each Federal Minister shall conduct the affairs of his department independently and of his own motion. The Federal Government shall resolve differences of opinion between Federal Ministers. The Federal Chancellor shall conduct the proceedings of the Federal Government in accordance with rules of procedure adopted by the Government and approved by the Federal President.”
I. AS REGARDS THE FOURTH AND FIFTH APPLICANT ASSOCIATIONS
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application;
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires...”
Accordingly, the application should be struck out of the Court's list of cases insofar as it relates to these two applicant associations.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
1. The Government's submissions
2. The remaining applicant associations' submissions
3. Assessment by the Court
113. The Court does not find it necessary to determine if the right to freedom of religion generally has to be considered as a “civil right” within the meaning of Article 6 § 1. Having regard to the particular circumstances of the case, in particular its relation to the applicant associations' good reputation, the Court considers that the dispute at issue concerned a “civil right” within the meaning of Article 6 § 1.
113. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The Government's submissions
2. The remaining applicant associations' submissions
3. Assessment by the Court
There has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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 freedoms of others.”
1. The remaining applicant associations' submissions
2. The Government's submissions
3. The third party's submissions
4. Assessment by the Court
a) Whether there was interference
b) Whether the interference was prescribed by law
c) Legitimate aim
d) "Necessary in a democratic society"
There has accordingly been no violation of Article 9 of the Convention.
IV. FURTHER ALLEGED VIOLATIONS OF THE CONVENTION
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the first, second and third applicant associations, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be chargeable to them, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 6 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Peer Lorenzen
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following partly dissenting opinions are annexed to this judgment:
(a) Partly dissenting opinion of Judge Lazarova Trajkovska;
(b) Partly dissenting opinion of Judge Kalaydjieva.
PARTLY DISSENTING OPINION OF
JUDGE LAZAROVA TRAJKOVSKA
Unfortunately, I cannot share the opinion of the majority of my Fifth Section colleagues, and it is regrettable that they could not accept my views on the scope of Article 9. I find a violation of the applicant's rights under Article 9 of the Convention.
I will start by referring to the Court's settled case-law to the effect that freedom of thought, conscience and religion, as enshrined in Article 9, is one of the foundations of a “democratic society” within the meaning of the Convention. Here I will mention the cases of Metropolitan Church of Bessarabia and others v. Moldova (no. 45701/99, § 113, ECHR 2001-XII) and Kokkinakis v. Greece (judgment of 25 May 1993, § 31, Series A no. 260-A). The Court has also said that in a democratic society in which several religions coexist within the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and to ensure that everyone's beliefs are respected (see Kokkinakis, cited above, § 33).
In the light of Article 9 of the Convention, religious pluralism is an important part of a democratic society. Freedom of thought, conscience and religion is also freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999 I). The Convention clearly stipulates that this right includes also the right to manifest religious belief, in worship, teaching, practice and observance.
However, in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial. It is this Court that established (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX) that the role of the authorities is to ensure that the competing groups tolerate each other. This is with the idea that only by neutral and impartial behaviour will a State preserve pluralism and the proper functioning of democracy.
In this particular case (Leela Förderkreis E.V. and Others v. Germany) the interference of the Government lay in not observing the requirement of neutrality in the exercise of their powers. It is clear that the applicant associations belong to a group of religious communities which have existed in Germany since the 1960s. Despite the fact that the applicant associations were not prohibited in all these years, the terms used by the German State agencies and in Government statements to describe the applicant associations' movement (“sect”, “youth religion”, “youth sect” and “psycho-sect”) had negative consequences for them. The adjectives “destructive” and “pseudo-religious” have also been used to describe them. This interference was not prescribed by law (Federal Constitution and Basic
Law) and the Government have not submitted any proof of the assumption that these religious communities were a danger to society. Instead, the Government's statements are a clear indirect interference contrary to the obligation of neutrality required by Article 4 of the Basic Law and cannot be justified as “prescribed by law” and “necessary in a democratic society”.
According to its settled case-law, the Court leaves the States Parties to the Convention a certain margin of appreciation in deciding whether and to what extent interference is necessary, but that goes hand in hand with European supervision of both the relevant legislation and the decisions applying it. In this case there were no indications that the teachings of Osho or the methods employed by the applicant associations were contrary to the rights and freedoms of others or that public safety and public order were in danger.
PARTLY DISSENTING OPINION OF
I regret being unable to join the majority's view that imparting opinions, guidance or warnings on any beliefs may be seen as “a power of preventive intervention on the State's part [...] consistent with the Contracting Parties' positive obligations under Article 1 of the Convention” (paragraph 99). The very notion of a State duty to “launch a large-scale campaign designed to ... stimulate a critical discussion” and “give official warnings“ of “the potential dangers” (paragraph 8) of certain religious groups sounds familiar to anyone who experienced such “protection” for decades.
I fail to see the active role of the State in a pluralistic society as a participant in the public discussion of beliefs. In the absence of data on any specific risks, this notion appears to be in contrast with the principle of State neutrality in religious matters established in Kokkinakis v. Greece. In the fifteen years following 1998 the Court consistently held the view that any interference in freedom of thought, conscience and religion must have “regard to what is at stake, namely the need to secure true religious pluralism, an inherent feature of the notion of a democratic society” (Kokkinakis, § 31), and that “the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other” (see, for example, Serif v. Greece, § 53, and Metropolitan Church of Bessarabia v. Moldova, § 115, amongst other authorities).
In the present case the majority pointed out that “the States are entitled to verify whether a movement or association carries on, ostensibly in pursuit of religious aims, activities which are harmful to the population or to public safety”. However, the Court has reiterated that the right to freedom of religion “excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate” (Manoussakis v. Greece, § 47). The Respondent Government failed to demonstrate that the “need to secure religious pluralism” had been taken into consideration at any time before or during the impugned information campaign. There are neither facts, nor even submissions, indicating that prior to distributing warnings and information using the impugned expressions the authorities attempted to verify whether the applicants' activities were “harmful to the population or to public safety”. In my opinion the observation that “by providing people with explanations it considered useful at the time... the German Government ... was aiming to settle a burning public issue and attempting to warn citizens against phenomena it viewed as disturbing” (paragraph 94) does not suffice to conclude that the interference was in pursuit of or proportional to any of the legitimate aims under Article 9 § 2 of the Convention.
By accepting the findings of the Federal Constitutional Court on the legal ground for the information imparted on the motion of the authorities, the majority seems to interpret the Basic Law of Germany as one not only permitting, but also requiring State intervention in a domain where the Convention prescribes a duty to neutrality in the name of preservation of pluralism. A State duty to impart information on subjects of public concern may be reasonably interpreted as relevant in the event of urgent and objective risks such as imminent calamities and the like, which beliefs as such may hardly be considered to constitute. Furthermore, formulating such a duty in general terms provides no clarity or foreseeability as regards “the field it is designed to cover and the number and status of those to whom it is addressed” (see, among many other authorities, Hasan and Chaush v. Bulgaria, § 84, with further references); nor does it “indicate with sufficient clarity the scope of the discretion conferred on the competent authorities and the manner of its exercise” (see also Rotaru v. Romania, § 55). In contrast with these standards of clarity and precision, where a broadly defined provision authorises or even requires interference in religious matters it may legitimise the exercise of far-reaching discretion.
Noting that “The ... [impugned] terms, even if they had a pejorative note, were used ... quite indiscriminately for any kind of non-mainstream religion”, the majority concluded that the interference “did not entail overstepping the bounds of what a democratic State may regard as the public interest” (paragraph 100). In my view this is sufficient to agree that the applicants endured treatment to which the mainstream religion was not subjected – a fact for which the respondent Government offered no justification.
I find a violation of the applicants' rights under Articles 9 and 14 of the Convention.