FOURTH SECTION
DECISION
Application no. 20921/21
Nikolaus ALM
against Austria
The European Court of Human Rights (Fourth Section), sitting on 22 November 2022 as a Committee composed of:
Armen Harutyunyan, President,
Anja Seibert-Fohr,
Ana Maria Guerra Martins, judges,
and Veronika Kotek, Acting Deputy Section Registrar,
Having regard to:
the application (no. 20921/21) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 April 2021 by an Austrian national, Mr Nikolaus Alm, who was born in 1975 and lives in Vienna (“the applicant”) and was represented by Mr W. Renzl, a lawyer practising in Vienna;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns a complaint under Article 9 of the Convention by the applicant, a follower of the “Church of the Flying Spaghetti Monster” or so-called “Pastafarian”, about the Austrian authorities’ refusal to issue him an identity card and passport with a photograph showing him wearing a crown made of pasta (“pasta crown”).
2. The applicant requested the issuance of an identity card and passport with the aforementioned photograph on 16 November and 20 December 2018, respectively. On 12 February 2019 the Passport Service Office of the City of Vienna rejected both requests for non-compliance with the identity photograph requirements set out in the Regulation for the Implementation of the Passport Act (Passgesetz-Durchführungsverordnung; “Passport Regulation”). Pursuant to section 4(4) of the Passport Regulation, no head coverings shall be worn in the photograph, except on medical or religious grounds. The applicant claimed that the pasta crown represented his religious bond to the “Flying Spaghetti Monster” (for a description of the teachings of the “Church”, see De Wilde v. the Netherlands (dec.), no. 9476/19, §§ 20‑33, 9 November 2021) and thus entitled him to the exception on religious grounds. The Passport Service Office held that the exception only applied where the head covering indicated a verifiable and serious religious affiliation or belief. The “Church of the Flying Spaghetti Monster”, on the contrary, was satirical, with its scriptures making ironic references to other religions rather than professing independent beliefs. Moreover, these scriptures did not oblige followers to wear religious clothing in their daily life. The applicant, who appeared before the authority without a pasta crown and did not claim to wear one at all times, had not demonstrated that he wore the head covering for religious reasons.
3. On 20 March 2019 the applicant appealed to the Vienna Administrative Court (Verwaltungsgericht), alleging that the Passport Service Office had misapplied the Passport Regulation and should not have examined the manner in which the applicant practises his religion. He also submitted that the Austrian authorities had already issued him a driver’s licence on which he appeared with a colander (a perforated bowl of a type generally used as a kitchen utensil, see De Wilde, cited above, § 3) on his head.
4. On 18 September 2019 the applicant appeared before the Passport Service Office to request a new passport due to a need to travel abroad. This time, however, he provided a photograph without a pasta crown. At the same time, he withdrew his complaint in relation to his previous request for a passport. The Vienna Administrative Court subsequently discontinued the appeals proceedings in relation to the passport due to the withdrawal of the complaint.
5. On 18 February 2020 the Vienna Administrative Court dismissed the applicant’s appeal in relation to the identity card for failure to demonstrate that wearing a pasta crown was a religious duty or common practice, or that he wore it regularly on grounds of his religious conviction or in observance of a religious doctrine. In addition, due to the applicant’s public promotion of laicism, the court was not convinced of his claim that he was a devout member of a religious community. Moreover, the issuance of an Austrian identity card with a photograph showing a pasta crown would subject Austria to ridicule.
6. On 2 April 2020 the applicant appealed to the Constitutional Court (Verfassungsgerichtshof), claiming that the Vienna Administrative Court had impermissibly found a contradiction between laicism and religiousness and that an identity photograph with a “Pastafarian” head covering would be ridiculed. On 9 June 2020 the Constitutional Court declined to deal with the complaint for lack of constitutional questions and transferred it to the Supreme Administrative Court (Verwaltungsgerichtshof). In a decision of 5 October 2020 the latter declared the appeal inadmissible for lack of a legal question of fundamental importance.
7. The applicant complained under Article 9 of the Convention about the refusal to issue his identity documents with a pasta crown as a head covering, alleging that it infringed his right to observe freely his religion and to choose freely what to wear, and when, as religious clothing. He also claimed that the courts had made impermissible judgments, such as by considering the head covering likely to be ridiculed or the applicant unable to hold religious beliefs on account of his promotion of laicism.
THE COURT’S ASSESSMENT
8. At the outset the Court notes that at the heart of the dispute lies the applicant’s contention that the “Church of the Flying Spaghetti Monster” or “Pastafarianism” is a “religion” or “belief” within the meaning of Article 9 of the Convention and that it should therefore benefit from pertinent Convention guarantees.
9. The general principles relevant to this question have been summarised in De Wilde (cited above, §§ 50‑51) where the Court has held that, although the concept of “religion or belief” in the sense of being protected by Article 9 must be interpreted broadly, that does not mean that all opinions or convictions are to be regarded as such (see Pretty v. the United Kingdom, no. 2346/02, § 82, ECHR 2002‑III). The Court held that the right to freedom of thought, conscience and religion denotes only those views that attain a certain level of cogency, seriousness, cohesion and importance. However, provided this condition is satisfied – and when it has thus been established that Article 9 applies – the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see S.A.S. v. France [GC], no. 43835/11, § 55, ECHR 2014, and Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 81, ECHR 2013, with further references). In particular in view of the very aims for which the Pastafarian movement had been founded, the Court did not consider Pastafarianism to be a “religion or belief” within the meaning of Article 9 of the Convention. Consequently, the Court held that Article 9 could apply neither to the “Church of the Flying Spaghetti Monster” nor to those who claimed to profess its doctrines (ibid., §§ 52‑55).
10. As regards the present case, the Court sees no reason to hold otherwise. It also notes that by holding that Pastafarianism was intended to be a satirical movement rather than a religion and that the applicant had not demonstrated that he wore the head covering for religious reasons, the Passport Service Office and the Vienna Administrative Court duly applied the above‑mentioned standards requiring a certain level of cogency, seriousness, cohesion and importance. In addition, the Passport Service Office clarified that the issuance to the applicant of a driver’s licence depicting him with a colander on his head did not amount to a recognition of the religious nature of that head covering as – unlike for identity cards and passports – the photograph regulations for driver’s licences did not include a prohibition on head coverings or exceptions on religious grounds. The Court, for its part, sees no reason to deviate from these conclusions which do not appear in any way arbitrary or illogical (compare De Wilde, cited above, § 53). Accordingly, the complaint under Article 9 of the Convention concerning the refusal to issue an identity card with a photograph showing a Pastafarian head covering is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a).
The Court notes that it does not have to decide on the refusal to issue a passport on the grounds that the applicant has, by withdrawing his complaint before the Passport Service Office and by not appealing against the Vienna Administrative Court’s decision to discontinue the proceedings in relation to the passport (see paragraph 4 above), not exhausted all domestic remedies as set out in Article 35 § 1 of the Convention.
11. It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 December 2022.
Veronika Kotek Armen Harutyunyan
Acting Deputy Registrar President