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SAVEZ CRKAVA (RIJEC ZIVOTA) AND OTHERS v. CROATIA - 7798/08 [2010] ECHR 1983 (9 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1983.html
Cite as:
30 BHRC 112,
(2012) 54 EHRR 36,
[2010] ECHR 1983,
54 EHRR 36,
[2011] Eq LR 205
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FIRST
SECTION
CASE OF SAVEZ CRKAVA “RIJEČ ZIVOTA” AND OTHERS
v. CROATIA
(Application
no. 7798/08)
JUDGMENT
STRASBOURG
9 December
2010
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 Savez crkava “Riječ
Zivota”
and Others v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 18 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 7798/08) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Savez crkava “Riječ
Zivota” (Union of Churches “The Word of Life”),
Crkva cjelovitog evanđelja (Church of the Full Gospel)
and Protestantska reformirana kršćanska crkva u Republici
Hrvatskoj (Protestant Reformed Christian Church in the
Republic of Croatia) (“the applicant
churches”), religious communities
incorporated under Croatian law, on 4 December 2007.
The
applicant churches were represented by Ms I. Bojić, an advocate
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š.
StaZnik.
The
applicant churches alleged, in particular, that the Government’s
refusal to conclude an appropriate agreement with them and the
resulting inability to provide certain religious services and obtain
State recognition of religious marriages conducted by them had
breached their right not to be discriminated against in the exercise
of their freedom of religion and the rights set forth by law.
On
29 January 2009 the President of the First Section decided to
communicate to the Government the complaints concerning freedom of
religion and the prohibition of discrimination on that account, the
general prohibition of discrimination, access to a court and the
alleged lack of an effective remedy.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants are churches of a Reformist denomination which are
registered as religious communities under Croatian law and which have
their seats in Zagreb (the first and second applicant churches) and
Tenja (the third applicant church).
The
first applicant church has been present in Croatia since 1993, the
second since 1989 and the third since the sixteenth century as part
of the Reformed Church and since 2001 as an independent church. The
applicant churches were entered in the register of religious
communities in Croatia on 18 December 2003 (the first applicant
church), 3 December 2003 (the second applicant church) and 14 October
2003 (the third applicant church), in accordance with the Religious
Communities Act.
On
21 June 2004 the applicant churches submitted a request to the
Government’s Commission for Relations with Religious
Communities (Komisija za odnose s vjerskim zajednicama –
“the Religious Communities Commission”) in order to
conclude an agreement with the Government of Croatia, as envisaged in
section 9(1) of the Religious Communities Act (see paragraph 18
below), which would regulate their relations with the State. They
explained that without such an agreement they were unable to provide
religious education in public schools and nurseries, to provide
pastoral care to their members in medical and social-welfare
institutions, as well to those in prisons and penitentiaries, or to
perform religious marriages with the effects of a civil marriage.
On
23 December 2004 the Government of Croatia adopted an instruction
(zaključak – “the Instruction”) setting
out the criteria which religious communities had to satisfy in order
to conclude such an agreement with it (see paragraph 19 below).
In
a letter of 12 January 2005 the Religious Communities Commission
informed the applicant churches that they did not satisfy, either
individually or jointly, the historical and numerical criteria set
out in the above Instruction, that is to say, that they had not been
present in the territory of Croatia since 6 April 1941 and that the
number of their adherents did not exceed 6,000 (see paragraph 19
above). Referring to section 21 of the 2003 Health Care Act (see
paragraph 21 below) and sections 14, 78(1) and 95 of the Enforcement
of Prison Sentences Act (see paragraphs 23-26 below), it also
remarked that members of religious communities which had not
concluded the relevant agreement with the Government of Croatia had a
right to receive pastoral care in medical and social-welfare
institutions as well as in prisons and penitentiaries.
On
10 February 2005 the applicant churches submitted another request to
conclude an appropriate agreement with the Government of Croatia,
this time addressing it to the Prime Minister directly.
In
a letter of 15 June 2005 the Religious Communities Commission replied
to the applicant churches’ request of 10 February 2005,
informing them again that they did not satisfy, either individually
or jointly, the criteria set forth in the Instruction of 23 December
2004, this time without specifying which particular criteria had not
been met. It again referred to section 21 of the 2003 Health Care Act
and sections 14, 78(1) and 95 of the Enforcement of Prison Sentences
Act, reiterating its opinion that the members of religious
communities which had not concluded appropriate agreements with the
Government of Croatia had a right to receive pastoral care in medical
and social-welfare institutions and in prisons and penitentiaries.
The
applicant churches then lodged a request for the protection of a
constitutionally guaranteed right (zahtjev za
zaštitu ustavom zajamčenog prava) with the
Administrative Court (Upravni sud Republike Hrvatske) against
the Religious Communities Commission’s refusal of 15 June 2005,
in accordance with section 66 of the Administrative Disputes Act (see
paragraph 28 below). They argued that the refusal, even though it had
been given in the form of a letter, constituted “an individual
legal act” (that is, a decision), within the meaning of section
66 of the Administrative Disputes Act, that had violated their
constitutional right to equality of all religious communities before
the law, as guaranteed by Article 41 of the Constitution (see
paragraph 16 below).
On
12 October 2006 the Administrative Court declared their action
inadmissible, holding that the Religious Communities Commission’s
refusal did not constitute “an individual act” for the
purposes of section 66 of the Administrative Disputes Act, and thus
was not susceptible to that court’s review.
The
applicant churches then lodged a constitutional complaint, relying
again, inter alia, on Article 41 of the Constitution and
alleging a violation of their constitutional right to equality of all
religious communities before the law. On 1 October 2006 the
Constitutional Court (Ustavni sud Republike Hrvatske)
dismissed the applicant churches’ constitutional complaint,
finding, inter alia, that Article 41 of the Constitution was
not applicable in the particular case.
Meanwhile,
on 30 September 2005 the applicant churches filed a petition with the
Constitutional Court for an abstract review of constitutionality and
legality, asking it to examine the conformity of the Instruction of
23 December 2004 with the Religious Communities Act and Article 41 of
the Constitution. On 5 June 2007 the Constitutional Court declared
the applicant churches’ petition inadmissible, finding that the
contested Instruction was not subordinate legislation susceptible to
a review of constitutionality and legality.
II. RELEVANT DOMESTIC LAW
A. The Constitution
1. Relevant provisions
The
relevant provisions of the Constitution of the Republic of Croatia
(Ustav Republike Hrvatske, Official Gazette nos. 56/1990,
135/1997, 8/1998 (consolidated text), 113/2000, 124/2000
(consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001
(corrigendum) and 76/2010) read as follows:
Article 14
“Everyone in the Republic of Croatia shall enjoy
rights and freedoms regardless of their race, colour, sex, language,
religion, political or other belief, national or social origin,
property, birth, education, social status or other characteristics.
All shall be equal before the law.”
Article 16
“Rights and freedoms may be restricted only by law
in order to protect the rights and freedoms of others, the legal
order, public morals or health.
Every restriction of the rights and freedoms should be
proportional to the nature of the necessity for the restriction in
each individual case.”
Article 40
“Freedom of conscience and religion and freedom to
profess faith or other belief publicly shall be guaranteed.”
Article 41
“All religious communities shall be equal before
the law and shall be separated from the State.
Religious communities shall be free to, in accordance
with the law, perform religious services publicly, open schools,
educational and other institutions, social-welfare and charitable
institutions and to administer them, and in their activities enjoy
the protection and assistance of the State.”
Article 140
“International agreements in force, which were
concluded and ratified in accordance with the Constitution and made
public, shall be part of the internal legal order of the Republic of
Croatia and shall have precedence in terms of their legal effects
over the [domestic] statutes. ...”
2. The Constitutional Court’s jurisprudence
In
its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette
no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette
no. 112/1995) the Constitutional Court held
that all rights guaranteed in the Convention and its Protocols were
also to be considered constitutional rights having legal force equal
to the provisions of the Constitution.
B. The Religious Communities Act
1. Relevant provisions
The
relevant provisions of the Act on the Legal Status of Religious
Communities (Zakon o pravnom poloZaju
vjerskih zajednica, Official Gazette no. 83/2002 –
“the Religious Communities Act”), which entered into
force on 24 July 2002, read as follows:
Section 1
“A church or a religious community of a different
name (hereafter ‘religious community’) within the meaning
of this Act is a group of natural persons who exercise freedom of
religion by the equal public performance of religious ceremonies and
by other manifestations of their faith (hereafter ‘adherents’)
and is entered in the register of religious communities in the
Republic of Croatia.”
Section 5
“(1) Religious communities operating as
legal persons on the day of the entry into force of this Act
(hereafter ‘existing religious communities’) shall be
entered in the register [of religious communities] upon their
submission of an application for registration.
(2) Congregations which on the day of the
entry into force of this Act do not operate as religious communities
or which are established after the entry into force of this Act
(hereafter ‘newly established religious communities’)
shall be entered in the register [of religious communities] upon
their submission of an application for registration. An application
for registration in the register [of religious communities] may be
submitted by those congregations which, before submission of such an
application, have operated for at least five years as associations
with legal personality.”
Section 9
“(1) Issues of common interest for the
Republic of Croatia and one or more religious communities may also be
regulated by an agreement made between the Government of the Republic
of Croatia and the religious community.
(2) With a view to implementing [legal]
instruments regulating relations between the State and religious
communities, as well as other issues of interest for the status and
operation of religious communities, the Government of the Republic of
Croatia shall establish a Commission for Relations with Religious
Communities.”
(d) Religious education and teaching of
religion in educational institutions
Section 13(1) and (2)
“(1) In nurseries, at the request of
parents or guardians, the curriculum of nursery education shall
include teaching of religion. Teaching of religion shall be organised
in accordance with the law and with an agreement between the
religious community and the Government of the Republic of Croatia.
(2) In elementary schools and high schools,
at the request of parents or guardians of pupils younger than 15
years and on the basis of a joint declaration by students of 15 years
of age or above and their parents or guardians, a religious education
course shall be organised as an optional course in accordance with
the prescribed curriculum and an agreement between the religious
community and the Government of the Republic of Croatia.”
(e) Pastoral care in medical and
social-welfare institutions
Section 14
“The right of a religious community to provide
pastoral care to its members in medical and social-welfare
institutions shall be guaranteed. The manner of exercising this right
shall be regulated by an agreement between the religious community
and the founder of those institutions.”
(f) Pastoral care in prisons and
penitentiaries
Section 15
“The right of a religious community to provide
pastoral care to its members in prisons and penitentiaries shall be
guaranteed. The manner of exercising this right shall be regulated by
an agreement between the religious community and the Government of
the Republic of Croatia.”
(g) Pastoral care in the armed forces and
the police
Section 16
“A religious community shall have the right to
provide pastoral care to its members serving in the armed forces and
the police, as well as to other persons permanently employed in the
armed forces and the police, and to members of their families under
the conditions and in the manner regulated by an agreement with the
Government of the Republic of Croatia.”
2. The Government of Croatia’s Instruction of 23
December 2004
The
Government of Croatia’s Instruction (zaključak) of
23 December 2004 setting out the criteria which religious
communities have to satisfy in order to conclude an agreement with it
(“the Instruction” – not published in the Official
Gazette) reads as follows:
I N S T R U C T I O N
“1. For the conclusion of an agreement
on issues of common interest for the Republic of Croatia and one or
more religious communities, made between the Government of the
Republic of Croatia and a religious community, it is necessary for
one or more religious communities wishing to conclude the agreement
to satisfy one of the following two conditions:
- they were active in the territory of the
Republic of Croatia on 6 April 1941 and have continued to operate in
continuity and legal succession, and the number of [their] adherents
exceeds six thousand, according to the last census,
- they are a historical religious community
of the European cultural circle (Catholic Church, Orthodox Church,
Evangelical Church in the Republic of Croatia, Reformed Christian
Church in Croatia, Islamic Community in Croatia, Jewish Community in
the Republic of Croatia).
2. A church or a religious community that
secedes or has seceded from a church or a religious community shall
be regarded as a new church or religious community, and its secession
or establishment shall be taken as the beginning of its activities.
3. The Commission for Relations with
Religious Communities shall be responsible for the implementation of
this instruction.”
C. The Family Act
The
relevant provisions of the Family Act (Obiteljski zakon,
Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007),
which entered into force on 22 July 2003, read as follows:
CELEBRATION OF MARRIAGE
Section 6
“Marriage shall be celebrated ... in a civil or a
religious form.”
Section 8
“Marriage in religious form with the effects of
civil marriage shall be performed by the minister of a religious
community with which the Republic of Croatia has regulated legal
issues in this respect.”
Section 23
“A marriage celebrated in religious form in
accordance with the provisions of section 8 ... of this Act shall
from the date of [its] celebration have all the effects of a civil
marriage as prescribed by this Act.”
D. The Health Care Act
Section
21 of the former 2003 Health Care Act (Zakon o
zdravstvenoj zaštiti, nos. 121/03, 48/05
(corrigendum), 85/06 and 117/08), which was in force between 6 August
2003 and 1 January 2009, provided that in the exercise of his or
her right to health care, during a stay in a medical institution,
every person had the right – in accordance with that Act and
other subordinate legislation on compulsory health insurance –
to a diet in accordance with his or her belief and the right to
perform acts of worship in the areas provided for that purpose. In
the case of death, everyone had the right to be treated in accordance
with religious and other customs expressing piety to the deceased.
Section
22 of the new 2008 Health Care Act (Zakon o
zdravstvenoj zaštiti, nos. 150/2008, 155/2009 and
71/2010), which entered into force on 1 January 2009, contains
provisions identical to those of section 21 of the former 2003 Health
Care Act (see the preceding paragraph).
E. The Enforcement of Prison Sentences Act
The
relevant provisions of the Enforcement of Prison Sentences Act (Zakon
o izvršavanju kazne zatvora,
nos. 128/99, 55/00, 59/00 (corrigendum), 129/00, 59/01, 67/01
(corrigendum), 11/02 (corrigendum), 190/03 (consolidated text),
76/07, 27/08 and 83/2009) provide as follows.
Section
14 provides that every prisoner has, under the conditions set forth
in the Act, inter alia, the right to profess his or her faith
and to consult an authorised cleric.
Section
78(1) provides that prisoners have the right to a diet in accordance
with their religious demands, providing that such diet is feasible in
the particular prison or penitentiary.
Section
95 provides that a prison or penitentiary where a large number of
prisoners of the same faith are serving their sentences must provide
their cleric, at least once a week, with an adequate place and time
for worship.
F. The Government of Croatia Act
The
relevant provisions of the Act on the Government of the Republic of
Croatia (Zakon o Vladi Republike
Hrvatske, Official Gazette nos. 101/1998, 15/2000,
117/2001, 199/2003 and 77/2009 – “the Government of
Croatia Act”), which entered into force on 5 August 1998, read
as follows:
Section 30
“The Government shall issue decisions (odluke),
rulings (rješenja) and instructions (zaključci)
on matters that cannot be regulated by decrees.
A decision shall be adopted to regulate particular
issues within the competence of the Government or to order measures,
give consent to or confirm acts of other authorities or legal
entities, and to decide on other matters which cannot be regulated by
subordinate legislation.
An instruction shall be adopted to define the
Government’s position on issues concerning the implementation
of an established policy, and to determine the tasks of State
administrative bodies.
A ruling shall be adopted to decide on appointments or
dismissals or other individual matters within the Government’s
purview.”
Section 31
“Decrees and rules of procedure shall be published
in the Official Gazette. They shall enter into force on the eighth
day from the date of their publication, unless the instruments in
question provide for some other date [as the date] of their entry
into force.
Decisions, rulings and instructions may be published in
the Official Gazette if the Government so decides
when adopting these instruments.”
G. The Administrative Disputes Act
The
Administrative Disputes Act (Zakon o upravnim sporovima,
Official Gazette of the Socialist Federal Republic of Yugoslavia
no. 4/1977, and Official Gazette of the Republic of Croatia nos.
53/1991, 9/1992 and 77/1992) in its relevant part provides as
follows:
Section 66
“A request for the protection of a
constitutionally guaranteed right or freedom ... if such a right or
freedom has been violated by a final individual act [that is,
decision], and no other judicial protection is secured, shall be
decided by the [Administrative Court], by applying mutatis
mutandis the provisions of this Act.”
Sections
67-76 provide for special proceedings for the protection of
constitutionally guaranteed rights and freedoms from unlawful factual
(physical) acts of public authorities, if no other judicial remedy is
available. Under the case-law of the domestic courts, the protection
against unlawful “acts” also includes omissions (for
example, the Administrative Court in its decision no. Us-2099/89 of
21 September 1989 and the Supreme Court in its decision no. GZ-9/1993
of 6 April 1993 held that failure of the administrative
authorities to carry out their own enforcement order constituted an
“unlawful act” within the meaning of section 67 of the
Administrative Disputes Act).
Section
67 provides that such proceedings are to be instituted by bringing an
“action against an unlawful act” (tuZba za zaštitu
od nezakonite radnje) in the competent municipal court. The
action must be brought against the public authority to which the
factual act (or omission) is imputable (the defendant).
Section
73 provides that the court decides on the merits of the case by a
judgment. If it finds in favour of the plaintiff, the court orders
the defendant to desist from the unlawful activity and, if necessary,
orders restitutio in integrum.
Section
74 provides that in proceedings following an “action against an
unlawful act” the court is to apply, mutatis mutandis,
the provisions of the Civil Procedure Act.
H. The Obligations Act
1. The relevant provisions
The
relevant part of the Obligations Act (Zakon o obveznim odnosima,
Official Gazette, nos. 35/2005 and 41/2008 – “the 2006
Obligations Act”), which entered into force on 1 January 2006
and abrogated the former 1978 Obligations Act (see the next
paragraph), reads as follows:
Rights of personality
Section 19
“(1) Every natural person or legal
entity is entitled to the protection of its rights of personality
(prava osobnosti) under the conditions provided by law.
(2) Rights of personality within the meaning
of this Act are the right to life, to physical and mental health,
reputation, honour, dignity, name, privacy of personal and family
life, liberty, etc.
(3) A legal entity shall have all the
above-mentioned rights of personality – apart from those
related to the biological character of a natural person – and,
in particular, the right to a reputation and good name, honour, name
or company name, business secrecy, entrepreneurial freedom, etc.”
Mandatory conclusion and mandatory contents of a
contract
Section 248(1)
“If a party is bound by law to enter into a
contract, the other interested party may request that the contract be
entered into without delay.”
Request to desist from a violation of rights of
personality
Section 1048
“Anyone may request a court or other competent
authority to order the cessation of an activity which violates his or
her rights of personality and the elimination of its consequences.”
The
text of section 157(1) of the former 1978 Obligations Act (Zakon o
obveznim odnosima, Official Gazette of the Socialist Federal
Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and
Official Gazette of the Republic of Croatia no. 53/1991 with
subsequent amendments – “the 1978 Obligations Act”)
was nearly identical to the text of section 1048 of the current 2006
Obligations Act, and read as follows:
Section 157(1)
“Anyone may request a court or other competent
authority to order the cessation of an activity which violates his or
her rights of personality.”
2. The position of legal scholars and the case-law
Among
Croatian legal scholars there is no consensus as to which rights,
apart from those enumerated in section 19 of the Obligations Act, are
to be considered rights of personality. It is, however, common ground
that the following rights of natural persons fall into that category:
the right to life, the right to physical and mental integrity
(health), the right to liberty, the right to reputation and honour,
the right to privacy of personal and family life, the right to
secrecy of letters and personal manuscripts, the right to personal
identity (in particular the rights to one’s image, voice and
name) and the moral rights of the author. It would appear that only
these rights have so far been interpreted as rights of personality by
the Croatian courts in the application of section 157 of the former
1978 Obligations Act and section 19 of the current 2006
Obligations Act. The issue whether other rights guaranteed by the
Constitution may, at this point, be qualified as rights of
personality remains largely disputed.
I. The Anti-Discrimination Act
The
relevant part of the Anti-Discrimination Act (Zakon
o suzbijanju diskriminacije, Official Gazette, no.
85/2008), which entered into force on 1 January 2009, reads as
follows:
Section 16
Common provisions
“Anyone who considers that his or her right has
been violated because of discrimination may seek the protection of
that right in the proceedings in which that right is being decided as
the main issue, or may also seek protection in special proceedings
referred to in section 17 of this Act.”
Section 17
Special actions for protection against discrimination
“(1) A person claiming to be a victim
of discrimination under the provisions of this Act shall be
authorised to bring an action and seek:
1. a declaration that the defendant has
violated the plaintiff’s right to equal treatment or that the
activities the defendant has undertaken or failed to undertake may
directly result in the violation of the right to equal treatment
(action for declaration of discrimination);
2. the cessation of activities which violate
or may violate the plaintiff’s right to equal treatment, or to
undertake activities which eliminate discrimination or its
consequences (action to desist from or eliminate discrimination);
3. compensation for pecuniary and
non-pecuniary damage caused by the violation of the rights protected
by this Act (action for damages);
4. publication in the media of the judgment
declaring the violation of the right to equal treatment, at the
defendant’s expense.
(2) Unless this Act provides otherwise, the
court shall decide on claims referred to in paragraph 1 of this
section by applying the provisions of the Civil Procedure Act.
(3) Claims referred to in paragraph 1 of this
section may be brought together with claims for the protection of
other rights to be determined in civil proceedings if all those
claims are interrelated and if the same court has jurisdiction based
on subject matter in respect of them, regardless of whether such
claims fall to be examined in regular or special civil proceedings,
except in cases of disturbance of possessions. In that case,
regulations relevant to the type of dispute in question shall apply,
unless otherwise provided by this Act.
(4) ...”
III. OTHER RELEVANT MATERIALS
A. Report on the Implementation of the Constitutional
Act on the Rights of National Minorities
The
relevant part of the Report on the Implementation of the
Constitutional Act on the Rights of National Minorities and the
Expenditure of Means Allocated in the State Budget of the Republic of
Croatia for 2009 for the Needs of National Minorities (Izvješće
o provođenju Ustavnog zakona o pravima nacionalnih manjina i o
utrošku sredstava osiguranih u drZavnom proračunu
Republike Hrvatske za 2009. godinu za potrebe nacionalnih manjina),
which the Government of the Republic of Croatia submitted to the
Croatian Parliament on 1 July 2010, reads as follows:
4. The right to manifest religion and
establish religious communities
“To date, the Republic of Croatia has concluded
four international agreements [concordats] with the Holy See ...
...
The Government of the Republic of Croatia also concluded
six agreements on issues of common interest with churches and
religious communities, and in this way has regulated relations with
another 15 churches and religious communities.
...
Churches which have regulated relations with the State
of Croatia:
1. receive regular annual financial support,
2. can teach religion courses in schools, and
teach religion in nurseries,
3. can celebrate marriage in religious form
with the effects of a civil marriage.
...
All other religious communities have the right to
provide pastoral care in medical and social-welfare institutions,
prisons and penitentiaries, as well as in the armed forces.”
B. Agreements concluded between the Government of
Croatia and religious communities
The
Government of Croatia has to date concluded agreements on issues of
common interest, as envisaged in section 9(1) of the Religious
Communities Act, with the following religious communities:
- the
Serbian Orthodox Church, on 20 December 2002 (Official Gazette, no.
196/2003);
- the
Islamic Community in Croatia, on 20 December 2002 (Official Gazette,
no. 196/2003);
- the
Evangelical Church in the Republic of Croatia and the Reformed
Christian Church in Croatia, on 4 July 2003 (Official Gazette,
no. 196/2003);
- the
Evangelical (Pentecostal) Church in the Republic of Croatia (together
with the associated Church of God in the Republic of Croatia and the
Alliance of Pentecostal Churches of Christ in the Republic of
Croatia), the Christian Adventist Church in the Republic of Croatia
(together with the associated Seventh-day Adventists Reform Movement)
and the Alliance of Baptist Churches in the Republic of Croatia
(together with the associated Church of Christ), on 4 July 2003
(Official Gazette, no. 196/2003);
- the
Bulgarian Orthodox Church, the Croatian Old Catholic Church and the
Macedonian Orthodox Church, on 29 October 2003 (Official Gazette, no.
196/2003), amended on 23 September 2004 (Official Gazette,
no. 141/2004); and
- the
Jewish (Religious) Community Beth Israel in Croatia, on 24 October
2008.
Relations
with the Catholic Church are regulated by four concordats concluded
with the Holy See:
- the
Agreement between the Holy See and the Republic of Croatia on Legal
Issues (Official Gazette – International Agreements, no.
3/1997);
- the
Agreement between the Holy See and the Republic of Croatia on
Pastoral Care of Catholic Believers [who are] Members of the Armed
Forces and the Police (Official Gazette – International
Agreements, no. 2/1997),
- the
Agreement between the Holy See and the Republic of Croatia on
Cooperation in the Field of Education and Culture (Official Gazette –
International Agreements, no. 2/1997),
- the
Agreement between the Holy See and the Republic of Croatia on
Economic Issues (Official Gazette – International Agreements,
no. 18/1998).
C. The 2001 census
According
to the last census of 2001 the Bulgarian Orthodox Church has eight
members, the Croatian Old Catholic Church 303 and the Macedonian
Orthodox Church 211.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN
CONJUNCTION WITH ARTICLE 9
The
applicant churches complained that they had been discriminated
against because, unlike other religious communities with which the
Government of Croatia had concluded agreements on issues of common
interest, as referred to in section 9(1) of the Religious Communities
Act, they were not: (a) allowed to provide religious education in
public schools and nurseries, (b) allowed to provide pastoral care to
their members in medical and social-welfare institutions, prisons and
penitentiaries, or (c) entitled to have religious marriages they
performed recognised by the State as equal, in terms of their legal
effects, to civil marriages. In particular, they argued that certain
religious communities such as the Bulgarian Orthodox Church, the
Croatian Old Catholic Church and the Macedonian Orthodox Church,
which did not satisfy the criteria set forth in the Government’s
Instruction of 23 December 2004, had nevertheless concluded
agreements with the State and were thus allowed to provide the above
religious services and were entitled to the official recognition of
religious marriages performed by them. They relied on Article 14 of
the Convention, taken together with Article 9. Those Articles read as
follows:
Article 14
“1. The enjoyment of any right set
forth by law 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.
2. No one shall be discriminated against by
any public authority on any ground such as those mentioned in
paragraph 1.”
Article 9
“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.”
The
Government contested these arguments. They argued that domestic
remedies had not been exhausted, that the Articles relied on were not
applicable to certain complaints, and that, in any event, all the
applicant churches’ complaints were manifestly ill-founded.
A. Admissibility
1. Non-exhaustion of domestic remedies
(a) The arguments of the parties
The
Government first argued that the applicant churches had failed to
exhaust domestic remedies. They submitted, in particular, that the
applicant churches could have brought a civil action for mandatory
conclusion of a contract under section 248 of the Obligations Act, an
action for the protection of rights of personality under section 1048
of the same Act (see paragraph 33 above), or an action under the
Anti-Discrimination Act (see paragraph 36 above).
The
applicant churches admitted that they had not exhausted all existing
domestic remedies but wondered how many different legal actions,
according to the Government, they should have undertaken in order to
comply with Article 35 § 1 of the Convention. In turn, they
submitted that they had exhausted all remedies which had been
available to them at the given time and which had had realistic
prospects of success. In particular, they had initiated the relevant
proceedings in Croatia long before the 2006 Obligations Act and the
Anti-Discrimination Act had entered into force. In any event, it
would have been unreasonable to expect them to resort to remedies the
effects of which had never been proved by even a single example in
the case-law (there was no evidence on the application of the
Anti-Discrimination Act in practice), and whose effectiveness, even
theoretically speaking, was difficult to envisage. For example, since
the Religious Communities Act did not provide for an obligation for
the Government of Croatia to enter into agreements with religious
communities, the applicant churches submitted that therefore they
could not have relied on section 248 of the Obligations Act. Lastly,
the applicant churches submitted that using the remedies suggested by
the Government would have required them to institute another set of
proceedings, from the very beginning, in order to protect their
rights, and to wait patiently for a few more years in order to “test”
yet another remedy.
(b) The Court’s assessment
As
regards the action for mandatory conclusion of a contract under
section 248 of the Obligations Act, it is sufficient for the Court to
note that this provision applies only to situations where one party
is bound by law to enter into a contract (see paragraph 33 above),
whereas section 9(1) of the Religious Communities Act provides only
that issues of common interest may be regulated by an agreement (see
paragraph 18 above) and thus does not bind the State to enter into
such an agreement.
As
regards the action for the protection of rights of personality, the
Court notes that under Croatian law it is not clear whether the
freedom from discrimination or freedom of religion could be qualified
as such a right (see paragraph 35 above), and that, in any event,
section 1048 of the Obligations Act provides only for the possibility
of a court ordering the cessation of an activity infringing rights of
personality (see paragraph 33 above). In these circumstances, the
Court considers that it was incumbent on the respondent Government to
provide examples of cases in which section 1048 of the 2006
Obligations Act or section 157 of the former 1978 Obligations Act had
been applied by the courts in order to protect individuals from
discrimination or interferences with their freedom of religion and/or
of cases in which those provisions had been interpreted to extend to
protection against omissions. However, the Government failed to do
so.
Lastly,
as regards the action under the Anti-Discrimination Act, the Court
notes that the applicant churches lodged their application with the
Court on 4 December 2007, whereas the Anti-Discrimination Act
entered into force on 1 January 2009 (see paragraph 36 above). In
this connection the Court reiterates that the issue whether domestic
remedies have been exhausted is normally determined by reference to
the date when the application was lodged with the Court (see Baumann
v. France, no. 33592/96, § 47, ECHR 2001 V). While
it is true that this rule is subject to exceptions which may be
justified by the specific circumstances of each case (see, for
example, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001 IX;
and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002 VIII),
the Court considers, having due regard to the subsidiary character of
the Convention machinery, that in the present case there are no
special circumstances to justify making an exception to that rule.
In
the light of the foregoing, and given that the Government did not
rely on any other possible remedies (see paragraphs 119-123 below),
it follows that their objection of failure to exhaust domestic
remedies must be dismissed.
2. Applicability
(a) The arguments of the parties
(i) The Government
The
Government averred that Article 9 could not be interpreted to mean
that the State must allow religious education in public schools and
nurseries or recognise religious marriages.
In
particular, the Government argued that while teaching was one of the
forms of manifestation of religion referred to in Article 9 § 1
of the Convention, neither the wording of that Article nor the
Court’s case-law indicated that the State was obliged to allow
religious education in public schools or nurseries.
The
Government further argued that while celebration of a religious
marriage was also one of the forms of manifestation of religion as it
amounted to “observance” within the meaning of Article 9
§ 1 of the Convention, the recognition of such marriages as
equal to civil marriages in terms of their effects was not among the
rights guaranteed by that Article. In other words, a religion was
manifested through celebration of a religious marriage, and not
through the official recognition of such a marriage.
In
conclusion, the Government submitted that the right to religious
education in public schools and nurseries and the right to obtain
State recognition of religious marriages went beyond the scope of
Article 9 of the Convention.
As
to the applicability of Article 14 of the Convention, the Government
noted that under the Court’s case-law that provision had effect
solely in relation to other rights safeguarded by the Convention and
thus had no independent existence. That being so, and given their
view that the right to provide religious education in public schools
and nurseries and the right to have religious marriages recognised by
the State was beyond the scope of Article 9 of the Convention, the
Government concluded that Article 14 was equally inapplicable to that
part of the application.
(ii) The applicant
The
applicant churches contested in particular the Government’s
contention that Article 14 of the Convention was inapplicable because
the right to provide religious education in public schools and
nurseries and the right to the official recognition of religious
marriages were outside the scope of Article 9 of the Convention. They
averred that in a situation in which certain religious communities
had been granted such rights, there was clearly a positive obligation
to grant the same rights to other religious communities in a
comparable situation.
(b) The Court’s assessment
The
Court reiterates that Article 14 of the Convention has no independent
existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. Although the application of Article 14 does not
presuppose a breach of those provisions – and to this extent it
is autonomous – there can be no room for its application unless
the facts at issue fall within the ambit of one or more of the latter
(see, for example, Van Buitenen v. the Netherlands,
no. 11775/85,
Commission decision of 2 March 1987, and Cha’are
Shalom Ve Tsedek v. France [GC], no. 27417/95, § 86,
ECHR 2000 VII).
The
Court further reiterates that the Convention, including its Article 9
§ 1, cannot be interpreted so as to impose an obligation on
States to have the effects of religious marriages recognised as equal
to those of civil marriages (see X. v. Germany, no. 6167/73,
Commission decision of 18 December 1974, Decisions and Reports
(DR) 1, pp. 64-65; Khan v. the United Kingdom, no. 11579/85,
Commission decision of 7 July 1986, DR 48, pp. 253 and 255;
Spetz and Others v. Sweden, no. 20402/92, Commission decision
of 12 October 1994; and Şerife Yiğit v. Turkey [GC],
no. 3976/05, § 102, 2 November 2010).
Likewise,
the right to manifest religion in teaching guaranteed by Article 9 §
1 of the Convention does not, in the Court’s view, go so far as
to entail an obligation on States to allow religious education in
public schools or nurseries.
Nevertheless,
the Court considers that celebration of a religious marriage, which
amounts to observance of a religious rite, and teaching of a religion
both represent manifestations of religion within the meaning of
Article 9 § 1 of the Convention. It also notes that Croatia
allows certain religious communities to provide religious education
in public schools and nurseries and recognises religious marriages
performed by them. The Court reiterates in this connection that the
prohibition of discrimination enshrined in Article 14 of the
Convention applies also to those additional rights, falling within
the wider ambit of any Convention Article, for which the State has
voluntarily decided to provide (see E.B. v. France [GC],
no. 43546/02, § 48, ECHR 2008 ...). Consequently, the
State, which has gone beyond its obligations under Article 9 of the
Convention in creating such rights cannot, in the application of
those rights, take discriminatory measures within the meaning of
Article 14 (see, mutatis mutandis, E.B. v. France,
cited above, § 49). It follows that, although Croatia is not
obliged under Article 9 of the Convention to allow religious
education in public schools and nurseries or to recognise religious
marriages, the facts of the instant case nevertheless fall within the
wider ambit of that Article (see, for example and mutatis
mutandis, Thlimmenos v. Greece [GC], no. 34369/97, §§
40-43, ECHR 2000 IV; Löffelmann v. Austria, no.
42967/98, §§ 46-48, 12 March 2009; and Gütl
v. Austria, no. 49686/99, §§
31-33, 12 March 2009). Accordingly, Article 14 of the Convention,
read in conjunction with Article 9, is applicable to the present
case.
It
follows that the Government’s objection to the applicability of
Article 14 of the Convention must also be dismissed.
3. Whether the complaints are manifestly ill-founded
(a) The arguments of the parties
As
regards the applicant churches’ complaint concerning pastoral
care in medical and social-welfare institutions, prisons and
penitentiaries, the Government submitted that the Religious
Communities Act undoubtedly guaranteed the right to provide such care
to all religious communities. The fact that certain religious
communities had not concluded an appropriate agreement with the
Government of Croatia did not mean that they were in any way
prevented from exercising that right. This was so because the right
at issue was not created by such agreements but was directly
guaranteed by law.
The
Government further submitted that, in addition to the Religious
Communities Act, the right to pastoral care was also recognised under
certain special legislation, in particular by the Health Care Act and
the Enforcement of Prison Sentences Act (see paragraphs 21-26 above).
In
any case, the Government observed, the applicant churches had not
claimed that any of their members had ever been denied the right to
pastoral care in the institutions in question.
Lastly,
the Government emphasised that the Religious Communities Commission
had on several occasions clearly informed the applicant churches that
they were entitled to provide pastoral care in medical and
social-welfare institutions, and also in prisons and penitentiaries,
regardless of the fact that they had not concluded an agreement with
the Government of Croatia (see paragraphs 7 and 11 above).
In
the light of the above, the Government concluded that the applicant
churches had the right to pastoral care in medical and social-welfare
institutions, as well as in prisons and penitentiaries, and that
therefore their complaints on that account were manifestly
ill-founded.
The
applicant churches did not comment on this issue.
(b) The Court’s assessment
The
Court notes that sections 14 and 15 of the Religious Communities Act
guarantee to all religious communities the right to provide pastoral
care to their members in medical and social-welfare institutions,
prisons and penitentiaries (see paragraph 18 above). While it is true
that those sections also provide that this right is to be exercised
in a manner regulated by the relevant agreements, the Government
explained that members of religious communities which had not
concluded such agreements also had a right to receive pastoral care
in the institutions in question. This interpretation is corroborated
by the Report on Implementation of the Constitutional Act on the
Rights of National Minorities of 1 July 2010 (see paragraph 37
above), and the letters of 12 January and 15 June 2005 from the
Religious Communities Commission to the applicant churches (see
paragraphs 7 and 11 above).
The
Court is also mindful of the Government’s argument (see
paragraph 62 above), which remained uncontested, that the applicant
churches had not claimed, by citing concrete examples, that the right
to provide pastoral care had ever been denied to them.
In
these circumstances, and having regard to the relevant provisions of
the Health Care Act and the Enforcement of Prison Sentences Act (see
paragraphs 21-26 above), which constitute leges speciales in
relation to the Religious Communities Act, it cannot but be concluded
that the applicant churches have the right to provide pastoral care
to their members in medical and social-welfare institutions, prisons
and penitentiaries, and that this right has not been hindered in any
way.
It
follows that the applicant churches’ complaints, in so far as
they concern pastoral care in medical and social-welfare
institutions, prisons and penitentiaries, are inadmissible under
Article 35 § 3 as manifestly ill-founded and must
therefore be rejected pursuant to Article 35 § 4
of the Convention.
On
the other hand, to the extent that the applicant churches’
complaints concern religious education in public schools and
nurseries and official recognition of religious marriages, they are
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. Furthermore, these complaints are not inadmissible
on any other grounds. They must therefore be declared admissible.
B. Merits
1. The arguments of the parties
(a) The Government
The
Government argued that the difference in treatment between the
applicant churches and the religious communities with which the
Government of Croatia had entered into agreements on issues of common
interest had an objective and reasonable justification.
The
Government explained that forty-two religious communities had been
registered in Croatia and that, in practice, it was not feasible to
allow each of them to provide religious education in public schools
and nurseries or to have religious marriages they performed
officially recognised. For this reason, the State had to enjoy a
margin of appreciation as regards the conditions to be fulfilled by
religious communities in order to be granted those privileges.
In
this connection the Government relied on the Conclusions of the
Seminar on Church-State Relations in the Light of the Exercise of the
Right to Freedom of Religion, organised in Strasbourg on 10 and 11
December 2001 by Mr Alvaro Gil-Robles, the former Council of Europe
Commissioner for Human Rights. In those conclusions the participants
acknowledged that certain religious communities could be granted a
special status. This did not constitute discrimination provided that
cooperation between those religious communities and the State was
based on objective and reasonable criteria such as their historical
or cultural relevance, representativeness or usefulness to society as
a whole or to a large or specific sector of the population. The
Government further cited the example of Austria, where the right to
provide religious education in public schools and nurseries was
granted only to thirteen religious communities which had been granted
the special status of religious societies.
The
Government further maintained that, contrary to the applicant
churches’ arguments, the religious communities which had
concluded agreements with the Government of Croatia, and thus had
been allowed to provide religious education in public schools and
nurseries and conduct religious marriages with the effects of a civil
marriage, satisfied either the specific historical and numerical
criteria or the cultural criterion set forth in the Instruction of
23 December 2004, that is, they had either been active in the
territory of Croatia on 6 April 1941 and had at least 6,000
adherents, or they belonged to the European cultural circle (see
paragraph 19 above). This meant that those religious communities in
their long-standing presence in the territory of Croatia had made a
contribution to religious and cultural diversity and gained a certain
level of trust and recognition in society.
In
particular, the Government submitted that the Serbian Orthodox
Church, the Bulgarian Orthodox Church, the Croatian Old Catholic
Church, the Macedonian Orthodox Church, the Islamic Community in
Croatia, the Evangelical Church in the Republic of Croatia, the
Reformed Christian Church in Croatia and the Jewish Community Beth
Israel in Croatia each satisfied the cultural criterion as they were
all “historical religious communities of the European cultural
circle”. It was true that the remaining religious communities
with which an agreement on issues of common interest had been
concluded, that is, the Evangelical (Pentecostal) Church in the
Republic of Croatia, the Christian Adventist Church in the Republic
of Croatia and the Alliance of Baptist Churches in the Republic of
Croatia and the associated churches (see paragraph 38 above), each
had fewer than 6,000 adherents. However, the Government pointed out
that those religious communities had entered into the agreement
jointly, a possibility provided for by section 9 of the Religious
Communities Act (see paragraph 18 above). In that way, the total
number of their adherents had reached 6,316, thus exceeding the
threshold of 6,000. More importantly, apart from that numerical
criterion, those small religious communities satisfied the historical
criterion, that is to say, they had been active in Croatia before
6 April 1941.
On
the contrary, the applicant churches were relatively “young”
religious communities, which had been active in Croatia since 1993
(the first applicant church), 1989 (the second) and 2001 (the third).
Unlike the religious communities with which the Government of Croatia
had entered into relevant agreements, the applicant churches had not
even been mentioned in the 2001 census. As regards the third
applicant church, the Government pointed out that it was a completely
new religious community, and could not be considered to have been
active since the sixteenth century in the territory of Croatia as
part of the Reformed Church. This was so because the Instruction of
23 December 2004 clearly specified that a church or religious
community that seceded or had seceded from a church or a religious
community was to be regarded as a new church or religious community,
and its secession or establishment was to be taken as the beginning
of its activities (see paragraph 19 above).
In
the light of the above considerations, the Government concluded that
there had been no violation of Article 14 taken in conjunction with
Article 9.
(b) The applicant churches
The
applicant churches submitted that treating them differently from the
religious communities which had concluded appropriate agreements with
the Government had had neither reasonable nor objective
justification. They first contested the Government’s argument
that it was not feasible to allow every religious community to
provide religious education in public schools and nurseries and to
have marriages they celebrated recognised by the State (see paragraph
72 above).
As
regards the right to provide religious education in public schools
and nurseries, the applicant churches referred to the Agreement
between the Government of Croatia and the Bulgarian Orthodox Church,
the Croatian Old Catholic Church and the Macedonian Orthodox Church
of 29 October 2003, from which it followed that the State allowed
religious education classes to be held even outside schools provided
that they conformed to the same pedagogical standards as the classes
held in schools. Therefore, having regard to the possibility of
holding such classes on the premises of religious communities, the
Government could not argue that it was not feasible to organise
religious education in public schools and nurseries for all religious
communities. Given that the core of their complaint was the fact that
their members could not have their grades from religious education
classes registered in their diplomas, the applicant churches
explained that they would have accepted an arrangement whereby
religious education classes could be organised outside school
premises. It followed that it would take very little effort for the
religious education being provided on the applicant churches’
premises to have the same effect as religious education provided on
the premises of the religious communities with which the appropriate
agreements had been concluded.
As
regards the State recognition of marriages celebrated in religious
form, the applicant churches submitted that the Government had failed
to clarify why it was impracticable to recognise all religious
marriages, irrespective of the religious community within which they
had been celebrated. Such an argument was absurd because recognising
all marriages performed by a church minister of any religious
community would only decrease the workload of the competent State
authorities (registrars).
As
to the Government’s argument that there was a consensus among
the Contracting States that certain religious communities could have
a special status and that such treatment was not discriminatory if
cooperation between certain religious communities and the State was
based on objective and reasonable criteria, such as historical and
cultural significance, membership or benefits to society (see
paragraph 73 above), the applicant churches argued that they all had
historical and cultural significance, and were beneficial to society.
In particular, the applicant churches had been making a significant
contribution to society through work with drug addicts and
alcoholics, marriage and family counselling, financial aid to the
socially disadvantaged, and by promoting moral standards, encouraging
non-smoking and alcohol-free lifestyles and prompting individuals to
work and earn a living.
The
applicant churches further disagreed with the Government’s
argument (see paragraphs 74-75 above) that all religious communities
with which the appropriate agreements had been concluded complied
with the criteria set forth in the Instruction of 23 December 2004.
In the applicant churches’ submission, it was a well-known fact
that, for example, the Macedonian Orthodox Church had separated from
the Serbian Orthodox Church in 1958, which did not mean that it had
stopped being Orthodox. Likewise, the separation of the Old Catholic
Church from the Roman Catholic Church had not called into question
its Catholicism. Despite the fact that those churches had been
created through separation or schism they had, in the view of the
Religious Communities Commission, apparently retained their character
as “historical religious communities of the European cultural
circle” for the purposes of the Instruction of 23 December 2004
(see paragraph 19 above), and the Government of Croatia had therefore
concluded agreements with them on issues of common interest. However,
when the third applicant church (the Protestant Reformed Christian
Church in the Republic of Croatia), which had separated from the
Reformed Christian Church in 2001 (a religious community specifically
listed in the Instruction as “a historical religious community
of the European cultural circle” – see paragraph 19
above), had sought the conclusion of such an agreement, its request
had been denied.
As
to the Government’s argument that they had not been listed in
the 2001 census (see paragraph 76 above), the applicant churches
submitted that certain religious communities with which the relevant
agreement had been concluded, such as the Reformed Christian Church
in Croatia and the Evangelical (Pentecostal) Church in the Republic
of Croatia, had not been listed in that census either. Moreover,
contrary to the Government’s argument, certain religious
communities which had concluded such an agreement, for example the
Evangelical (Pentecostal) Church in the Republic of Croatia, the
Church of God and the Alliance of Pentecostal Churches of Christ in
the Republic of Croatia, had not existed in Croatia before 6 April
1941 and thus did not fulfil the historical criterion (see paragraph
19 above) set forth in the Instruction of 23 December 2004.
In
conclusion, the applicant churches contended that they had been
discriminated against in the exercise of their freedom of religion,
contrary to Article 14 of the Convention, and invited the Court to
find a violation of that provision.
2. The Court’s assessment
The
Court reiterates that discrimination means treating differently,
without an objective and reasonable justification, persons in
relevantly similar situations. However, the Contracting States enjoy
a certain margin of appreciation in assessing whether and to what
extent differences in otherwise similar situations justify a
different treatment (see, for example, Oršuš
and Others v. Croatia [GC],
no. 15766/03, §149, ECHR 2010 ...). In particular,
the conclusion of agreements between the State and a particular
religious community establishing a special regime in favour of the
latter does not, in principle, contravene the requirements of
Articles 9 and 14 of the Convention, provided that there is an
objective and reasonable justification for the difference in
treatment and that similar agreements may be entered into by other
religious communities wishing to do so (see Alujer Fernández
and Caballero García v. Spain (dec.), no. 53072/99, ECHR
2001 VI).
The Court notes that it was not disputed between the parties that the
applicant churches were treated differently from those religious
communities which had concluded agreements on issues of common
interest with the Government of Croatia, under section 9(1) of the
Religious Communities Act. The Court sees no reason to hold
otherwise. Accordingly, the only question for the Court to determine
is whether the difference in treatment had “objective and
reasonable justification”, that is, whether it pursued a
“legitimate aim” and whether there was a “reasonable
relationship of proportionality” between the means employed and
the aim sought to be realised (see, for example, Oršuš
and Others,
cited above, § 156).
The
Court notes that in the case of Religionsgemeinschaft der Zeugen
Jehovas and Others v. Austria (no. 40825/98, 31 July 2008) it had
an opportunity to examine criteria (in particular, the ten-year
waiting period) which a religious community (Religionsgemeinschaft)
that already had legal personality had to satisfy in order to obtain
a status – specifically, the status of a religious society
(Religionsgesellschaft) – entitling it to various
privileges (such as, inter alia, the right to provide
religious education in public schools), not available to other
religious communities which did not have that status. It held:
“92. ...Given the number of these
privileges and their nature, ... 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.”
The
Court also found that the imposition of such criteria raised delicate
questions, as the State had 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. Therefore, such criteria called for particular scrutiny on
the part of the Court (see Religionsgemeinschaft der Zeugen
Jehovas, cited above, § 97).
The
Court observes that the applicant churches in the present case found
themselves in a situation comparable to that of the first applicant
in the Religionsgemeinschaft der Zeugen Jehovas case. They are
also religious communities which already have a legal personality but
were unable to obtain a similar privileged status that would entitle
them to provide religious education in public schools and nurseries
and to have religious marriages they perform recognised by the State.
In
that case the Court found that the ten-year waiting period had been
applied to the first applicant but not to the Coptic Orthodox Church,
which had been registered as a religious community in 1998 but
obtained the status of a religious society in 2003. The Court
therefore held that the waiting period had not been applied on an
equal basis, which led it to find a violation of Article 14 of the
Convention read in conjunction with Article 9 (see
Religionsgemeinschaft der Zeugen Jehovas, cited above, §§
95 and 98).
In
the present case, the Religious Communities Commission refused to
conclude an agreement on issues of common interest with the applicant
churches because it found that they did not satisfy the cumulative
historical and numerical criteria set forth in the Instruction of
23 December 2004 (see paragraphs 7, 11 and 19 above). The
Government of Croatia nevertheless entered into such an agreement
with the Bulgarian Orthodox Church, the Croatian Old Catholic Church
and the Macedonian Orthodox Church (see paragraph 38 above), which
jointly had 522 adherents according to the 2001 census (see paragraph
40 above) and thus did not meet the numerical criterion. The
Government explained that this was so because the Religious
Communities Commission established that those churches had satisfied
the alternative criterion of being “historical religious
communities of the European cultural circle” (see paragraphs 19
and 75 above). However, the Government provided no explanation as to
why the applicant churches, which are of a Reformist denomination,
were not qualified as “historical religious communities of the
European cultural circle” by the Religious Communities
Commission. Therefore, it has to be concluded, as also submitted by
the applicant churches (see paragraph 82 above), that the criteria
set forth in the Government’s Instruction of 23 December 2004
were not applied on an equal basis to all religious communities.
The
foregoing considerations are sufficient to enable the Court to
conclude that the difference in treatment between the applicant
churches and those religious communities which had concluded
agreements on issues of common interest with the Government of
Croatia and were therefore entitled to provide religious education in
public schools and nurseries and to have religious marriages they
performed recognised by the State did not have any “objective
and reasonable justification”.
There
has accordingly been a violation of Article 14 of the Convention
taken in conjunction with Article 9.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION TAKEN
ALONE
The
applicant churches also complained that the fact that they had not
been allowed to provide religious education in public schools and
nurseries, to provide pastoral care to their members in hospitals,
social-welfare institutions, prisons and penitentiaries, or to have
religious marriages they celebrated recognised by the State as equal
to civil marriages, amounted to a violation of Article 9 of the
Convention.
The
Court considers that it follows from its above findings (see
paragraphs 56-57 and 66-69 above), that these complaints are
inadmissible under Article 35 § 3 as manifestly ill-founded and
must therefore be rejected pursuant to Article 35 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12 TO
THE CONVENTION
Under
Article 1 of Protocol No. 12 to the Convention, the applicant
churches raised the same complaints as under Article 14 (see
paragraph 41 above). Article 1 of Protocol No. 12 reads as follows:
“1. The enjoyment of any right set
forth by law 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.
2. No one shall be discriminated against by
any public authority on any ground such as those mentioned in
paragraph 1.”
The
Government contested these arguments. They argued that the applicant
churches had failed to exhaust domestic remedies, that Article 1 of
Protocol No. 12 was inapplicable to certain complaints, and that, in
any event, all the applicant churches’ complaints were
manifestly ill-founded.
A. Admissibility
1. Non-exhaustion of domestic remedies
The
Government and the applicant both relied on the arguments summarised
in paragraphs 43-44 above.
The
Court refers to its findings under Article 14 of the Convention (see
paragraphs 45-48 above), which apply with equal force to the
complaints made in the context of Article 1 of Protocol No. 12 to the
Convention.
It
follows that the Government’s objection of failure to exhaust
domestic remedies must be dismissed.
2. Applicability
(a) The arguments of the parties
The
Government noted that Article 1 of Protocol No. 12 to the Convention
prohibited discrimination in relation to “any right set forth
by law”. While its scope was therefore broader than that of
Article 14, it was not unlimited. The Government submitted that for
Article 1 of Protocol No. 12 to be applicable it was first
necessary to establish whether the right in question was actually
“set forth by law”. That being so, the Government pointed
out that the Religious Communities Act and the Family Act provided
for a possibility rather than an obligation to conclude an agreement
between the Government of Croatia and one or more religious
communities on issues of common interest in order to regulate, inter
alia, religious education in public schools and nurseries and
recognise the civil effects of religious marriages. Accordingly, the
applicant churches could not claim that they had “any right set
forth by law” in this regard.
The
applicant churches averred that the right to provide religious
education in public schools and nurseries was guaranteed by the
Religious Communities Act, just as the right to conduct religious
marriages with the effects of civil marriage was guaranteed by the
Family Act. Hence, those rights were “set forth by law”
within the meaning of Article 1 of Protocol No. 12 to the
Convention, which was therefore applicable.
(b) The Court’s assessment
The
Court notes that whereas Article 14 of the Convention prohibits
discrimination in the enjoyment of “the rights and freedoms set
forth in [the] Convention”, Article 1 of Protocol No. 12
introduces a general prohibition of discrimination.
It
is important to note that Article 1 of Protocol No. 12 extends the
scope of protection not only to “any right set forth by law”,
as the text of paragraph 1 might suggest, but beyond that. This
follows in particular from paragraph 2, which further provides that
no one may be discriminated against by a public authority. According
to the Explanatory Report on Article 1 of Protocol No. 12, the scope
of protection of that Article concerns four categories of cases, in
particular where a person is discriminated against:
“i. in the enjoyment of any right
specifically granted to an individual under national law;
ii. in the enjoyment of a right which may be
inferred from a clear obligation of a public authority under national
law, that is, where a public authority is under an obligation under
national law to behave in a particular manner;
iii. by a public authority in the exercise of
discretionary power (for example, granting certain subsidies);
iv. by any other act or omission by a public
authority (for example, the behaviour of law enforcement officers
when controlling a riot).”
The
Explanatory Report further clarifies that:
“... it was considered unnecessary to specify
which of these four elements are covered by the first paragraph of
Article 1 and which by the second. The two paragraphs are
complementary and their combined effect is that all four elements are
covered by Article 1. It should also be borne in mind that the
distinctions between the respective categories i-iv are not clear-cut
and that domestic legal systems may have different approaches as to
which case comes under which category.”
Therefore,
in order to determine whether Article 1 of Protocol No. 12
to the Convention is applicable, the Court needs to establish whether
the applicant churches’ complaints fall within one of the four
categories mentioned in the Explanatory Report.
In
this connection the Court reiterates that sections 14 and 15 of the
Religious Communities Act guarantee “the right” to (all)
religious communities to provide pastoral care in medical and
social-welfare institutions, prisons and penitentiaries. As already
noted above, those sections further provide that this right is to be
exercised in a manner regulated by an agreement between a religious
community and the founder of a medical or social-welfare institution
or, as regards prisons and penitentiaries, with the Government (see
paragraph 18 above). It follows that the conclusion of such an
agreement is not a necessary condition for the right to be created.
Rather, the agreement only regulates the manner in which the right is
to be exercised. The Court therefore finds that this complaint does
concern a “right specifically granted under national law”
and, consequently, that Article 1 of Protocol No. 12 to the
Convention is applicable to it.
In
contrast to those provisions, there is nothing in the text of
section 13 of the Religious Communities Act or the text of
sections 6, 8 and 23 of the Family Act conferring on religious
communities the authority to provide religious education in schools
and nurseries or to have religious marriages celebrated by them
officially recognised, as a matter of right. The religious
communities which are entitled to do so were granted those privileges
exclusively on the basis of agreements on issues of common interest
concluded with the Government of Croatia. As already noted above (see
paragraph 45), section 9(1) of the Religious Communities Act does not
bind the State to enter into such agreements, therefore leaving their
conclusion at the discretion of the State. Thus, it cannot be argued
that the applicant churches’ complaints that they were not
granted the same privileges also concern a “right specifically
granted to them under national law”. However, the Court
considers that those complaints nevertheless fall under the third
category specified in the Explanatory Report as they concern alleged
discrimination “by a public authority in the exercise of
discretionary power” and that, consequently, Article 1 of
Protocol No. 12 to the Convention is applicable to them.
It
follows that the Government’s objection to the applicability of
Article 1 of Protocol No. 12 to the Convention must also be
dismissed.
3. Whether the complaints are manifestly ill-founded
The
Government repeated their above arguments (see paragraphs 60-64)
that the applicant churches had not in any way been prevented from
exercising their right to provide pastoral care in medical and
social-welfare institutions, prisons and penitentiaries, whereas the
applicant churches remained silent on the issue (see paragraph 65
above).
The
Court refers to its above findings under Article 14 of the Convention
(see paragraphs 66-68 above), which apply with equal force to the
same complaints made in the context of Article 1 of Protocol No. 12
to the Convention.
It
follows that the applicant churches’ complaints, in so far as
they concern pastoral care in medical and social-welfare
institutions, prisons and penitentiaries, are inadmissible under
Article 35 § 3 as manifestly ill founded and must therefore
be rejected pursuant to Article 35 § 4 of the Convention.
On
the other hand, to the extent that the applicant churches’
complaints concern religious education in public schools and
nurseries and official recognition of religious marriages, they are
not manifestly ill founded within the meaning of Article 35 §
3 of the Convention. Furthermore, these complaints are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
1. The arguments of the parties
The
Government and the applicant both relied on the arguments summarised
in paragraphs 71-84 above.
2. The Court’s assessment
The
Court has already found that the difference in treatment between the
applicant churches and those religious communities which had
concluded agreements on issues of common interest with the Government
of Croatia and were therefore entitled to provide religious education
in public schools and nurseries and to have religious marriages they
performed recognised by the State amounted to discrimination in
breach of Article 14 taken together with Article 9 of the Convention
(see paragraphs 92-93 above).
Having
regard to that finding, the Court considers that it is not necessary
to examine separately whether, in this case, there has also been a
violation of Article 1 of Protocol No. 12 to the Convention (see
Sejdić and Finci v. Bosnia and Herzegovina
[GC], nos. 27996/06 and 34836/06, §
51, ECHR 2009-...).
IV. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE
13 OF THE CONVENTION
The
applicant churches further complained that they had not had access to
a court or an effective remedy as they had not been able either to
challenge the Government’s Instruction of 23 December 2004
before the Constitutional Court, or to challenge the refusal of the
Religious Communities Commission to grant their request to conclude
an appropriate agreement before the Administrative Court. They relied
on Article 6 § 1 and Article 13 of the Convention, the relevant
parts of which read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
1. The arguments of the parties
By
referring again to the remedies the applicant churches had failed to
exhaust for the purposes of Article 35 § 1 of the Convention
(see paragraph 43 above), the Government argued that these complaints
were manifestly ill-founded. The fact that the applicant churches had
resorted to inappropriate remedies in order to protect their rights
did not mean that they had not been granted access to a court or that
they had not had an effective remedy.
The
applicant churches did not specifically address this issue. However,
it follows from their arguments adduced in reply to the Government’s
objection concerning exhaustion of domestic remedies (see paragraph
44 above) that they contested the Government’s submissions and
maintained their view that they had been denied the right of access
to a court and had not had an effective remedy for the protection of
their rights.
2. The Court’s assessment
The
Court first notes that sections 67-76 of the Administrative Disputes
Act (see paragraphs 29-32 above) provide for an “action against
an unlawful act”, a judicial remedy open to anyone who
considers that his or her rights or freedoms guaranteed by the
Constitution have been violated by a public authority and that no
other judicial remedy is available. Together with the remedy
available under section 66 of the same Act (to which the applicant
churches resorted – see paragraphs 12 and 28 above), they
represent remedies of last resort, to be used in the absence of any
other judicial protection, against decisions (the remedy under
section 66 of the Administrative Disputes Act) or other (factual)
acts or omissions (“action against an unlawful act”) of
public authorities capable of violating constitutionally guaranteed
rights or freedoms. The rationale behind those remedies is that
constitutional rights and freedoms are so precious that they cannot
be left unprotected by the courts.
The
Court further notes that it has already found the “action
against an unlawful act” to be an effective remedy in Croatia
in respect of other rights guaranteed by the Convention (see
Hackbarth v. Croatia (dec.), no. 27897/02, 3 November
2005). It has reached the same conclusion also in respect of similar
remedies in other States Parties (see X. v. Austria,
no. 2742/66, Commission decision of 30 May 1967, Collection 23,
p. 99).
Given that the right of equality of all religious
communities before the law is guaranteed by Article 41 of the
Croatian Constitution (see paragraph 16 above), and having regard to
the rationale behind the “action against an unlawful act”
as described above (see paragraph 119), the Court considers that it
cannot be argued that such an action would have lacked prospects of
success. It reiterates in this connection that the “effectiveness”
of a “remedy” within the meaning of Article 13 does not
depend on the certainty of a favourable outcome for an applicant
(see, for example, Kudła v. Poland [GC], no. 30210/96, §
157, ECHR 2000 XI; and Amann v. Switzerland [GC],
no. 27798/95, § 88, ECHR 2000 II) and that the mere fact
that an action has very limited prospects of success is not
equivalent to depriving the plaintiff of the right of access to a
court (see X v. the United Kingdom, no. 7443/76, Commission
decision of 10 December 1976, DR 8, pp. 216, 217). Consequently,
it cannot be said that the applicant churches lacked access to a
court or an effective remedy. The fact that the domestic courts have
not yet had a chance to deal with Article 41 of the Constitution in
the context of an “action against an unlawful act” does
not make any difference. Had the applicants brought such an action,
the only possible ground for the domestic courts to declare their
action inadmissible would be a finding that another judicial avenue
of redress was available to them. However, such a finding would only
reinforce the Court’s view that the applicant churches had
access to a court and had an effective remedy at their disposal.
The finding that the applicant churches had access to
a court and an effective remedy for the purposes of Article 6 §
1 and Article 13 of the Convention in the form of an “action
against an unlawful act”, does not call into question the
Court’s above finding that the Government’s objection of
failure to exhaust domestic remedies must be dismissed (see paragraph
48 above). This is so because under Rule 55 of the Rules of Court and
the Court’s case-law (see, for example, Mooren v. Germany
[GC], no. 11364/03, §§
57-59, ECHR 2009 ...), a plea of inadmissibility on account of
non-exhaustion of domestic remedies is subject to the rule of
estoppel, that is to say that such a plea “must, in so far as
its character and the circumstances permit, be raised by the
respondent Contracting Party in its written or oral observations on
the admissibility of the application”. Since the Government
never argued that the applicant churches should have brought an
“action against an unlawful act” under sections 67-76 of
the Administrative Disputes Act, the Court could not have taken that
remedy into account when examining the Government’s objection
concerning non exhaustion of domestic remedies. However, the
Court is not prevented from doing so when examining whether the
applicant churches’ complaints under Articles 6 § 1 and
Article 13 of the Convention are manifestly ill-founded or not, which
is an issue going to the merits of the case that, even at the stage
of the admissibility, must be determined without regard to the
attitude of the respondent State (see, for example and mutatis
mutandis, Morel v. France, (dec.), no. 54559/00,
ECHR 2003 IX; Acquaviva v. France, 21 November 1995,
§ 45, Series A no. 333 A; H. v. France, 24 October
1989, § 47, Series A no. 162 A; and Panikian v.
Bulgaria, no.29583/96, Commission decision of 10 July 1997, DR
90, pp. 109 and 114).
It
follows that these complaints are inadmissible under Article 35 § 3
as manifestly ill-founded and must therefore be rejected pursuant to
Article 35 § 4 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant churches complained that their inability to provide
religious education in public schools and nurseries, as well as to
celebrate marriages with the same effects as civil marriages, had
violated their rights under Article 12 of the Convention and Article
2 of Protocol No. 1, taken alone and in conjunction with
Article 14 of the Convention. Article 12 of the Convention reads as
follows:
“Men and women of marriageable age have the right
to marry and to found a family, according to the national laws
governing the exercise of this right.”
Article
2 of Protocol No. 1 to the Convention reads as follows:
“No person shall be denied the right to education.
In the exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with
their own religious and philosophical convictions.”
The
Court reiterates that solely the members of a religious community, as
individuals, can claim to be victims of a violation of the right to
marry or the right to education, rights which by their nature are not
susceptible of being exercised by a religious community itself.
Therefore, the applicant churches as religious communities cannot
themselves allege a violation of either of these rights (see Ingrid
Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden,
no. 11533/85, Commission decision of 6 March 1987, DR 51, p. 125, and
Scientology Kirche Deutschland e.V. v. Germany, no. 34614/97,
Commission decision of 7 April 1997).
It
follows that these complaints are incompatible ratione personae
with the provisions of the Convention within the meaning of
Article 35 § 3 and must be rejected pursuant to
Article 35 § 4.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant churches claimed 30,000 euros (EUR) in respect of
non-pecuniary damage.
The
Government contested that claim.
The
Court finds that the applicant churches must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards them
each EUR 9,000 under that head, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
The
applicant churches also claimed 33,137 Croatian kunas (HRK) for the
costs and expenses incurred before the Court.
The
Government contested this claim.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 4,570 for the
proceedings before the Court, plus any tax that may be chargeable to
the applicant churches on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 14 taken
in conjunction with Article 9 of the Convention and Article 1 of
Protocol No. 12 thereto, in so far as they concern religious
education in public schools and nurseries and State recognition of
religious marriages, admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
14 taken in conjunction with Article 9 of the Convention;
Holds that there is no need to examine the
complaint under Article 1 of Protocol No. 12 to the Convention;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Croatian kunas at the rate applicable at the date of settlement:
(i) to
each applicant church, EUR 9,000 (nine thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) to
the applicant churches jointly, EUR 4,570 (four thousand five hundred
and seventy euros), plus any tax that may be chargeable to the
applicant churches, 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;
Dismisses the remainder of the applicant
churches’ claim for just satisfaction.
Done in English, and notified in writing on 9 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
