AS TO THE ADMISSIBILITY OF
Application No. 34614/97
by SCIENTOLOGY KIRCHE DEUTSCHLAND e.V.
against Germany
The European Commission of Human Rights sitting in private on
7 April 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 January 1997
by SCIENTOLOGY KIRCHE DEUTSCHLAND e.V. against Germany and registered
on 28 January 1997 under file No. 34614/97 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a registered association (eingetragener Verein)
under German law which has its seat in Munich (München). It is
represented by its President, Mr. Helmuth Blöbaum, who retained Mr.
Douwe Korff, a lawyer and lecturer of Cambridge (United Kingdom), to
act as counsel.
The facts of the case as submitted by the applicant association
may be summarised as follows.
The applicant association is part of Scientology, a world-wide
organisation with its international headquarters in Los Angeles (United
States of America). It has Scientology organisations in several cities
in Germany.
The applicant association submits that for many years itself and
its approximately 30,000 members, including children, parents, artists,
businessmen and members of political parties, have been subjected by
German government bodies and officials to a campaign of religious
intolerance and human rights violations. In this context the applicant
association refers in particular to the following events which took
place during the period from April 1991 to May 1996:
Members of the Federal Parliament (Bundestag) in Bonn and of the
Parliaments of the Länder discussed repeatedly the question of
Scientology. They warned that Scientology was particularly dangerous
and considered that it did not constitute a church but instead was much
more like a commercial enterprise with political claims for the
absolute truth without regard for the constitutionally guaranteed
rights of the individual. The Federal Government and the Governments
of the Länder were requested to take action to counteract Scientology
expansion, namely to withdraw the legal capacity from Scientology
organisations, to initiate criminal investigations against Scientology,
to determine if adherence to Scientology can be classified as druglike
addiction, to increase the information about Scientology in schools,
governmental offices and in public, to prevent the economic influence
of Scientology in coordination with the Employers Association and the
Chambers for Industry, Commerce and Trade and to work out a list of
other measures designed for the reduction of Scientology activities.
The leading German political parties declared that membership in
the applicant association was incompatible with the tenets of their
parties. Members of the political parties were requested either to
leave the parties or Scientology. All levels of society were called
upon to dismiss Scientologists from their social positions and from
jobs, including in schools, and to boycott companies owned by
Scientologists as well as Scientology artists.
The Federal Government and the Governments of the Länder adopted
joint strategies with a view to reducing the influence of Scientology
organisations. A national documentation and information centre and a
permanent interministerial working group were established to ensure
that coordinated actions against Scientology were discussed.
Scientology was considered to be the biggest and most dangerous sect
in Germany engaged in infiltrating the economy by its members joining
unions and becoming employees of companies. It was proposed to
investigate whether Scientology was a criminal organisation and how to
counteract Scientology under health, healing practitioner and drug
laws. The Permanent Conference of Ministers of the Interior of the
Länder recommended a series of measures to oppose Scientology,
including a recommendation that Government offices in the area of
fiscal affairs place a declaratory clause in contracts with companies
doing business with the Government to ensure that no business is done
with Scientologists. The Prime Ministers of the Länder meeting in
Berlin endorsed this recommendation and felt it necessary that the
Federal Government, Governments of the Länder and local authorities
would warn of the practices of Scientology and use all legally possible
ways to counter this worldwide operating organisation's objective of
domination.
In a foreword of an information leaflet published in January
1996, the Federal Minister for Families, Pensioners, Women and Youth
(Bundesministerin für Familie, Senioren, Frauen und Jugend) stated that
many persons being affected by the dubious practices and activities of
the Scientology organisation had asked for her help and advice.
According to her, this organisation was not a religious or
philosophical community, but a commercial organisation.
In various Länder measures were taken to reduce the influence of
Scientology and to warn of its dangers.
The Government of the Land of Bavaria ordered schools to inform
pupils of all ages and their parents about the goals, strategies and
operating procedures of Scientology. Headmasters were required to
report by September 1996 on the measures they have taken to implement
this information programme.
In Hamburg the authorities decided inter alia not to let any
public halls and not to sell any real estate property to Scientology
and to examine to what extent it was legally admissible not to award
construction orders to Scientology and firms connected with it. They
also refused to put a music hall at the disposal of a music firm owned
by Scientologists.
In Stuttgart a decree was issued prohibiting the public
distribution of printed matters published by Scientology organisations.
Government officials and executives of well-known companies
informed German business leaders on such topics as the use of "sect
filters", ways of identifying and dismissing Scientologists and tactics
to repair the economic damage when a company was blacklisted because
it was suspected of employing members of such an association. A decree
was issued by the Federal Minister of Labour preventing Scientologists
from obtaining licences necessary to operate employment agencies.
Non-governmental organisations, such as the Circle of German
Brokers (Ring Deutscher Makler), an association composed of over
4,000 real estate brokers, announced that it would require all members
of the Circle to sign a declaration attesting that they did not follow
the teachings of the founder of Scientology in order to be sure not to
have any Scientologists among its members. Real estate brokers and
tenants associations, supported by the working group "Scientology" of
the Hamburg Ministry of the Interior, published a list of suspected
Scientologists and their real estate concerns, exhorted the public to
boycott all Scientology businesses, and urged banks to refuse to do
business with Scientologists. Banks refused to grant loans to
Scientologists and informed the press that they would not do business
with members of Scientology organisations. As a result of the negative
publicity, a bank cancelled its bank card agreement with the Church of
Scientology of Frankfurt.
Other commercial associations urged businessmen to include
clauses in contracts requiring business partners to declare that they
were not Scientologists.
Furthermore, as part of the Government's information programme,
established Churches were called upon to act in cooperation when
dealing with new religious movements.
In a civil action brought against the association "Scientology
Kirche Hamburg e. V." by one of its members, the Federal Labour Court
(Bundesarbeitsgericht), in a decision of 22 March 1995, considered that
the case concerned a dispute between employee and employer and was
within the competence of the labour courts. Having examined in detail
the structure, aims and practices of Scientology, the Federal Labour
Court concluded that the association was not a religious or
philosophical community within the meaning of the Basic Law
(Grundgesetz), but a commercial organisation.
More recently, in August 1996, the Bavarian Government announced
that Scientologists would be banned from civil service. The Christian
Democratic Union (Christlich Demokratische Union Deutschlands - CDU)
and the Social Democratic Party (Sozialdemokratische Partei
Deutschlands - SPD) in Lower-Saxony declared that they had agreed that
Scientologists were not welcome in public service and that prospective
Government employees and companies doing business with the State must
declare that they were not associated with Scientology. The CDU Youth
Organisation (Junge Union Deutschlands), CDU and SPD officials called
for a boycott of two films in which Scientologists performed leading
roles. In the Länder of Bavaria and Rhineland-Palatinate politicians
demanded that Government funding for cultural and artistic events be
prohibited if Scientologists would perform there.
As from 1 November 1996 the Government of Bavaria requires all
persons seeking employment in the public sector to fill out a
questionnaire regarding their association with Scientology and affirm
that they disassociate themselves from Scientology. In other Länder
similar measures were adopted. The Land of Berlin sent a form to all
contractual partners and subordinate authorities requiring each company
that does business with the Land of Berlin to declare in writing that
they were not associated with Scientology. The Land of Hamburg required
teachers to sign such forms.
The applicant association further refers to numerous incidents
of boycotting Scientologists and dismissing members of Scientology from
their functions, such as sportsmen, managers and businessmen. Children
of Scientologists were expelled from nursery and private schools and
from sports clubs.
The applicant association submits finally that in 1995 and 1996
the Scientology organisations in Hamburg and Munich received over ten
bomb threats. Further anonymous threats of violence from Neo-Nazi
groups were received by Scientology organisations in other German
cities.
COMPLAINTS
The applicant association complains, both in its own capacity as
a religious organisation and on behalf of its members, of being the
victim of an unparalleled campaign of discrimination, vilification,
exclusion and intimidation, carried out, condoned and encouraged by the
German authorities. The campaign as such, it is said, discloses
manifest, serious and continuing violations of the Convention.
Referring to the case of Donnelly and six others v. the
United Kingdom (Nos. 5577-5583/72, Dec. 15.12.75, D.R. 4 p. 4), the
applicant association submits that it and its members are the victims
of an administrative practice against which there is no effective
remedy. The administrative practice on the part of the respondent
Government renders the remedies which are available in individual
cases, but which are not susceptible of stopping the policy or
practice, inadequate in the present case. The applicant association
alleges that the administrative practice continues to this day and that
it and its members are therefore the victims of an ongoing violation
of the Convention. On both of these grounds the application cannot be
rejected on the basis of Article 26 of the Convention.
The applicant association maintains that Scientology is not an
unlawful organisation, is not operating against the law and is also not
contrary to the constitutional order of the Federal Republic of
Germany. Nevertheless Scientology is regarded as an enemy of the State.
The applicant association further submits that the Church of
Scientology is a bona fide religion, that it is not a commercial
organisation and that its ethical standards fully uphold human dignity
and respect for the law. The campaign of which it is a victim is in its
submissions alarmingly similar to actions taken by the Nazis against
Jewish people and minority religions in the 1930s, preceding the
Holocaust, and to attacks made by German authorities in the 1950s and
1960s against communists or anyone deemed sympathetic to left-wing
terrorists in the 1970s.
The applicant association alleges that the campaign in general
as well as the information campaigns, the use of "Anti-Scientology
Forms", the improper determination of the legitimacy of its beliefs,
violate the non-derogatory, untouchable core of Article 9 para. 1 of
the Convention. It refers in this context to the Otto-Preminger
Institut v. Austria judgment given by the European Court of Human
Rights on 20 September 1994 (Series A no. 295-A) and stresses that
States have a positive obligation under Article 9 para. 1 of the
Convention to secure the peaceful enjoyment of religious freedom from
attacks by others. In the present case, however, the German State,
rather than protecting the applicant association from attacks, endorses
such attacks and joins them. Furthermore, the measures taken as part
of the campaign are not "prescribed by law" and are, in any case,
grossly disproportionate and unnecessary in a democratic society, in
violation of para. 2 of this provision.
The applicant association further complains that the campaign has
predictable and serious effects on the private life of Scientology
members. These effects are grossly disproportionate and destructive for
the private and family lives of the persons affected and violate
Article 8 of the Convention.
Furthermore the measures taken against members of Scientology on
the mere basis of their membership of that organisation, without
consideration of their individual actions and in spite of the fact that
Scientology is lawful, violate Article 10 of the Convention generally.
The actions taken against artists, musicians and actors, on the sole
basis of their affiliation with Scientology infringe the rights of the
affected individuals to freedom of artistic expression, in violation
of Articles 9 and 10 of the Convention.
The applicant association further alleges that the general
measures taken against Scientology as well as specific measures aimed
at preventing Scientology members from meeting freely violate
Article 11 of the Convention.
The information campaigns in schools directly infringe the rights
of Scientology parents to have their children educated in accordance
with their beliefs, in violation of Article 2 of Protocol No. 1.
The systematic attempts to exclude Scientologists from all major
political parties, which, according to the applicant association, have
quasi-public status under German law, on the sole basis of their
religious beliefs, is an attempt to exclude members of Scientology from
the political life of the nation in violation of Article 3 of Protocol
No. 1, as well as of Article 11 of the Convention. These attempts
amount to an abuse by the political parties in question of the right
to freedom of association, in violation of Article 17 of the
Convention.
The applicant association also submits that there is no effective
remedy against either the administrative policy of the respondent
Government or the fundamental political assessment which lies at its
roots. The applicant association alleges a violation of Article 13 of
the Convention.
The applicant association finally submits that the above measures
and violations affecting its enjoyment of all the above-mentioned
rights and freedoms, amount to discrimination in the enjoyment of those
rights and freedoms in violation of Article 14 of the Convention.
THE LAW
1. The applicant association alleges that itself and its members as
a group are the victims of an administrative practice of violations of
Articles 8, 9, 10, 11 and 17 (Art. 8, 9, 10, 11, 17) of the Convention
and of Articles 2 and 3 of Protocol No. 1 (P1-2, P1-3), separately and
in conjunction with Articles 13 and 14 (P1-2+P1-3+13+14) of the
Convention.
The Commission has first examined to what extent the conditions
laid down in Article 25 para. 1 (Art. 25-1) of the Convention have been
met in the present case.
Article 25 para. 1 (Art. 25-1) of the Convention provides:
"The Commission may receive petitions addressed to the Secretary
General of the Council of Europe from any person, non-
governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties
of the rights set forth in this Convention, provided that the
High Contracting Party against which the complaint has been
lodged has declared that it recognises the competence of the
Commission to receive such petitions. (...)"
The Commission recalls that, in order for applicants to be able
to avail themselves of this provision, they must fulfil two conditions:
they must fall into one of the categories of applicants referred to in
Article 25 (Art. 25) and they must have a claim to be a victim of a
violation of the Convention.
As regards the first condition, the Commission notes that the
applicant association is an association of individuals as defined by
German domestic law. As such it clearly falls into one of the
categories of applicants mentioned in Article 25 (Art. 25) of the
Convention, namely that of a non-governmental organisation.
As for the second condition, the Commission recalls that the
concept of "victim" as used in Article 25 (Art. 25) of the Convention
must be interpreted autonomously and independently of concepts of
domestic law such as capacity to bring or to take part in legal
proceedings.
An applicant cannot claim to be the victim of a breach of the
rights or freedoms protected by the Convention unless there is a
sufficiently direct connection between the applicant as such and the
injury he maintains he suffered as a result of the alleged breach. In
particular, according to the established case-law of the Commission,
a corporate applicant cannot claim to be itself a victim of measures
alleged to have interfered with the Convention rights of its individual
members (cf. No. 9939/82, Dec. 4.7.83, D.R. 34 p. 213; No. 10733/84,
Dec. 11.3.85, D.R. 41 p. 211; No. 18598/91, Dec. 18.5.94, D.R. 78 pp.
71, 72; No. 24581/94, Dec. 6.4.95, D.R. 81 pp. 123, 126).
In the present case it is clearly not the applicant association
as such which is the victim of the alleged violations of the rights
guaranteed by Article 8 (Art. 8) of the Convention (respect for private
life) and of Articles 2 and 3 of Protocol No. 1 (P1-2, P1-3) (parents'
right to educate their children in conformity with their religious and
philosophical convictions and right to free elections). Solely the
members of the applicant association, as individuals, could claim to
be victims of a violation of these rights, which by their nature are
not susceptible of being exercised by an association.
The Commission notes that the applicant association claims also
to represent its members as alleged victims of a violation of these and
a number of other rights enshrined in the Convention. However, the
applicant association has not identified these individuals and in any
event has not shown that it has received specific instructions from
each of them (cf No. 10983/84, Dec. 12.5.86, D.R.47 p. 225).
It follows that insofar as the application alleges violations of
the rights of the applicant association's individual members, it is
incompatible ratione personae with the provisions of the Convention,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant association alleges to be itself the
victim of a violation of Articles 9, 10, 11, 14 and 17
(Art. 9, 10, 11, 14, 17) of the Convention, the Commission notes that
to a large extent it complains of the conduct of members of
parliament, political parties, commercial companies and other non-
governmental organisations or private persons. However, according to
Article 25 (Art. 25) of the Convention, the Commission can only deal
with applications alleging a violation of Convention rights by a High
Contracting Party to the Convention, i.e. a violation claimed to have
been committed by State bodies. By contrast, it may not receive
applications directed against private individuals or private
enterprises or private law corporations. In this respect the Commission
refers to its established case-law (No. 11002/84, Dec. 8.3.85, D.R. 41
p. 264; No. 11590/85, Dec. 18.7.86, D.R. 48 p. 258; No. 12327/86, Dec.
11.10.88, D.R. 58 p. 85).
The applicant association's complaints of violations of its
Convention rights by the above non-governmental bodies or persons are
therefore incompatible ratione personae with the provisions of the
Convention and must be rejected under Article 27 para. 2
(Art. 27-2) of the Convention.
3. The Convention may nevertheless be invoked before the Commission
where it is claimed that the State has failed in its duty to protect
the Convention rights of an applicant against interferences by private
persons or institutions, provided that a positive obligation of the
State in this repect can be derived from the particular provision of
the Convention at issue (cf. e.g. No. 8282/78, Dec. 14.7.80, D.R. 21
p. 109; No. 12242/86, Dec. 6.9.1989, D.R. 62 p. 151; Eur. Court HR,
Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p.
21, para. 48; Otto-Preminger-Institut v. Austria judgment of 20
September 1994, Series A no. 295-A, p. 18, para. 47). The Commission
notes that in the present case the applicant association indeed raises
a claim of the State having failed in accomplishing its positive
obligations under the Convention, and in particular under Article 9
(Art. 9) thereof. Apart from that, it is not clear from the general
submissions of the applicant association what specific acts might have
constituted a direct interference by the German State authorities with
the applicant association's rights.
However, in any event, the Commission is not required to decide
whether or not the facts alleged by the applicant association disclose
any appearance of a violation of the Convention as, under Article 26
(Art. 26) of the Convention, it may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken.
The Commission observes that domestic remedies have been
exhausted if, before the highest authority, the applicant has raised,
at least in substance, the complaint he makes before the Commission
(cf. No. 17128/90, Dec. 10.7.91, D.R. 71 p. 275). The Commission
recalls in this respect that Article 26 (Art. 26) of the Convention is
intended to provide national authorities with the opportunity of
remedying violations alleged by an applicant (Eur. Court HR, López
Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 52,
para. 38).
The Commission notes that in the present case the rights invoked
by the applicant association are also guaranteed by the German Basic
Law (Grundgesetz). Insofar as the applicant association has or might
have seized the competent courts, for instance by lodging an interim
injunction (einstweilige Anordnung) and introducing main proceedings
before the administrative courts with a view to prohibiting certain
statements or publications concerning its activities, it could
subsequently also have lodged a constitutional appeal with the Federal
Constitutional Court (Bundesverfassungsgericht) in accordance with the
relevant provisions of the Basic Law and the Act on the Federal
Constitutional Court (Gesetz über das Bundesverfassungsgericht). This
remedy would have been available, for instance, in respect of the
decision of the Federal Labour Court of 22 March 1995. However, the
applicant association has not shown that it has ever resorted to such
a remedy.
The Commission finds therefore that in the present case the
domestic authorities were not afforded the opportunity to rectify the
violations of the Convention alleged by the applicant association.
The applicant association submits that it was under no obligation
to exhaust domestic remedies since any remedy would in the
circumstances of the case be inadequate and ineffective, having regard
to the alleged existence of an administrative practice of the German
authorities.
It is true that Article 26 (Art. 26) of the Convention only
requires the exhaustion of such remedies as relate to the alleged
breaches of the Convention and at the same time can provide effective
and sufficient redress. An applicant does not need to exercise remedies
which, although theoretically of a nature to constitute a remedy, do
not in reality offer any chance of redressing the alleged breach (cf.
No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78; Eur. Court HR, Akdivar and
others v. Turkey judgment of 16 September 1996, to be published in
Reports of Judgments and Decisions 1996, para. 66).
However, there is no indication in the present case that the
domestic remedies, which were at the disposal of the applicant
association under German law, are not effective remedies in practice
to remedy the situation complained of. In particular, the Commission
finds nothing to support the applicant association's allegation that
there exists an administrative practice in Germany which would make the
judicial remedies ineffective. Moreover, the existence of doubt as to
the chances of success of a domestic remedy does not exempt an
applicant from the obligation to exhaust it (cf., e.g., No. 13669/88,
Dec. 7.3.90, D.R. 65 p. 245).
Therefore, an examination of the application by the Commission
does not disclose the existence of any special circumstances which
might have absolved the applicant association, according to the
generally recognised rules of international law, from exhausting the
domestic remedies at its disposal.
It follows that the applicant association has not complied with
the condition as to the exhaustion of domestic remedies, and this part
of the application must therefore be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
4. The applicant association finally complains under Article 13
(Art. 13) of the Convention that no effective remedy was at its
disposal to assert its Convention rights before the national
authorities of Germany.
Article 13 (Art. 13) reads as follows:
"Everyone whose rights and freedoms as set forth in this
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."
The Commission recalls that Article 13 (Art. 13) of the
Convention guarantees the availability of a remedy at national level
to enforce the substance of the Convention rights and freedoms in
whatever form they may happen to be secured in the domestic legal
order. Its effect is thus to require the provision of a domestic remedy
allowing the competent "national authority" both to deal with the
substance of the relevant Convention complaint and to grant appropriate
relief (see Eur. Court HR, Vilvarajah and others v. the United Kingdom
judgment of 30 October 1991, Series A no. 215, p. 39, para. 122).
In the Commission's view, the remedies at the disposal of the
applicant association under German law would have satisfied these
requirements. The Commission adds that doubts as to the chance of
success of an appeal which could remedy an alleged violation of the
Convention are not sufficient to raise issues under Article 13
(Art. 13) of the Convention (see No. 10266/83, Dec. 9.7.84, D.R. 39 p.
219).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy