AS TO THE ADMISSIBILITY OF
Application No. 13712/88
by Serbisch-Griechisch-Orientalische
Kirchengemeinde zum Heiligen Sava in Wien
against Austria
The European Commission of Human Rights sitting in private
on 2 April 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mr. L. LOUCAIDES
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 3 March 1988
by Serbisch-Griechisch-Orientalische Kirchengemeinde zum Heiligen
Sava in Wien against Austria and registered on 29 March 1988 under
file No. 13712/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, the Serbian Orthodox Church in Vienna, is
represented by Rechtsanwalt Dr. Robert Krepp of Vienna. It complains
that its power to act in the sphere of State law was suspended by an
administrative decision of the competent Ministry and that a curator
was appointed who, with the approval of the competent courts, took
certain decisions concerning the administration of the church's
property which interfered with the internal matters of the church.
The facts are submitted as follows.
The Serbian Orthodox Church in Vienna was established in
1893. Its statutes of 1906 as amended in 1951/52 were recognised by the
competent Ministry in 1957. The church's legal status is now governed
by the Orthodox Churches Act (Orthodoxengesetz BGBl. 229/1967).
In 1969 a new diocese for Western Europe was created by the
Serbian Orthodox mother church in Belgrade. The Vienna church
accepted integration in this new diocese but a dispute subsequently
arose over the elaboration of revised statutes. A compromise was
approved by the Patriarchate in 1974 subject to conditions which the
organs of the Vienna church rejected. The revised statutes were
therefore never formally adopted nor brought to the notice of the
Ministry. A group, which apparently accepted the demands of the
Belgrade Patriarchate, split off and established its own church.
In view of the above dispute the Federal Ministry for
Education and Art (Bundesministerium für Unterricht und Kunst) refused
to take note of the church's elections in 1976 and 1982. It
considered that there was an unresolvable conflict between State law
and ecclesiastical law: the elections had been based on the former
statutes, the only ones recognised by the State, which, however, no
longer corresponded to the situation in ecclesiastical law, based on
the 1969-1974 statutes as approved by the Patriarchate.
The Ministry eventually decided on 21 December 1984 to suspend
the church's power to act in the sphere of State law (Handlungsfähigkeit
in äusseren Angelegenheiten) under Section 12 of the Orthodox Churches
Act, which permits such a suspension if the statutes do not correspond
to Section 8 of the Act or if the church fails to appoint organs to
represent it. Certain representatives of the church, Mr. V. (the
President of the general committee elected in 1982) and Mrs. S. (the
Secretary of the general committee elected in 1982), lodged a complaint
on behalf of the church which the Administrative Court (Verwaltungs-
gerichtshof) declared inadmissible on 15 September 1986.
The Ministry also applied to the District Court of Vienna City
(Bezirksgericht Innere Stadt Wien) to appoint a curator for the
church. On 30 October 1985 the District Court appointed a practising
lawyer as curator. On 5 June 1986 it further ordered that the curator
should take over the administration of the church's building and
recall the mandate of Mr. J. who so far had administered it. The
appeals of the church, represented by Mr. V. and Mrs. S., against
these two decisions were rejected.
On 25 August 1986 the Regional Civil Court (Landesgericht für
Zivilrechtssachen) of Vienna confirmed the appointment of the curator,
limiting his powers to the sphere of State law. In the Court's view
the property administration was in this sphere and the appointment of
the curator following the Ministry's decision to suspend the church's
power to act in law, which was binding on the courts, was therefore
lawful. On 6 November 1986 the Supreme Court (Oberster Gerichtshof)
held that the Regional Court's interpretation of the legal conditions
for the appointment of a curator was not manifestly wrong. It left
open whether the persons claiming to represent the church were
entitled to appeal.
As regards the transfer of the property administration to
the curator the Supreme Court, on an appeal by Mr. J., held on
12 February 1987 that the District Court had wrongly made orders in
non-contentious proceedings (transmission of documents and transfer of
bank account) addressed not to the church or its curator, but directly
to Mr. J. as a third person. The termination of Mr. J.'s function as
property administrator was the curator's task who, in case of dispute,
was required to institute contentious court proceedings. In the light
of this decision the Regional Court on 24 March 1987 declared the
church's appeal against the relevant parts of the District Court's
decision of 5 June 1986 inadmissible. Insofar as the District Court
had ordered the curator to terminate Mr. J.'s property administration,
the Regional Court rejected the church's appeal finding no indication
that the property administration by the curator interfered with the
church's religious freedom.
On 4 June 1987, the Supreme Court rejected the church's
further appeal against this decision. It held that the property
administration was not a matter of the church's internal affairs which
it could continue to carry out through its elected organs. Such
administration could require acts in the sphere of State law which the
church could not perform if, as in the present case, its power to act
in that sphere had been suspended under Section 12 of the Orthodox
Churches Act. The Supreme Court found that this provision respected
the freedom of religion and the equality before the law and therefore
it declined to institute norm control proceedings before the
Constitutional Court (Verfassungsgerichtshof), as suggested by the
church. It accepted that the property administration for a State
recognised church was subordinate to the promotion of the internal
aims of the church, which the curator had to take into consideration,
and that disputes over individual acts of the curator's property
administration had to be determined in each case. The Supreme Court
again left open whether the persons claiming to represent the church
were entitled to appeal.
Subsequently the curator concluded two tenancy contracts in
respect of the church's property, including the chapel, the church
offices and the residence of the priest, letting them to
representatives of the dissenting group which had split off from the
church. The contracts were approved by the District Court on 30
October 1987 and 28 January 1988 respectively. The District Court also
authorised the curator to sue the occupants of the premises, including
the former property administrator Mr. J., in order to secure their
eviction. The church appealed against both decisions, claiming that
they interfered with its internal affairs and its religious freedom.
The District Court's decision of 30 October 1987 was confirmed
by the Regional Court on 1 June 1988. It was subsequently quashed by the
Supreme Court on 26 January 1989 on the ground that it could not be
excluded that the lease might interfere with the church's internal
affairs, in particular as it was unusual to let the premises to a
tenant for functions which were the church's own tasks in exercise of
its freedom of religion. The Supreme Court therefore referred the case
back to the District Court with the direction to further investigate
the appropriateness of the lease and its compatibility with the
church's statutory functions. For the same reasons the Regional Court
on 11 October 1989 also allowed the church's appeal against the District
Court's decision of 28 January 1988 granting consent to the second
lease. Furthermore it referred this second case back to the District
Court while refusing to revoke the curator's mandate as requested by
the applicant church. The further proceedings concerning the approval
of both leases are still pending before the District Court.
Despite these remedies, the tenancy contracts concluded by the
curator had become operative. The former tenants were apparently
evicted and the new tenants took possession of the premises. On
8 November 1987 the dissident church held a religious ceremony in the
church's building under supervision of the police which, outside the
building, controlled the persons wishing to participate and prevented
the entry of members of the applicant church.
In the meantime, the applicant church, through its above
representatives, sought a revocation of the Ministry's decision of
21 December 1984. In its application of 18 May 1987 it argued that
the conditions for suspending the church's power to act in law had
never been fulfilled. As the Ministry did not take a decision within
the statutory time-limit of 6 months (Section 73 of the Code of General
Administrative Procedure - Allgemeines Verwaltungsverfahrensgesetz) the
church applied to the Administrative Court under Article 132 of the
Federal Constitution to determine its above application
(Säumnisbeschwerde). On 26 September 1988 the Administrative Court
rejected the application as being inadmissible on the ground of res
iudicata, the church seeking a reconsideration of the Ministry's final
decision of 21 December 1984.
On 10 January 1989 the church again applied for a revocation
of that decision, this time on the ground that the situation had
essentially changed because of the actions of the curator and in view
of the election of new organs by the church on 6 January 1987. The
Ministry rejected this application by a decision of 10 November 1989.
It found no change as alleged in the situation but even a
deterioration in that a further group within the church had held
elections on 6 April 1986 and also claimed to represent the church.
Thus three groups now disputed each other's power to represent the
church and disagreed on the statutes. The reasons for a suspension of
the church's power to act in the sphere of State law and for the
appointment of a curator, as provided for in Section 12 para. 2 of the
Orthodox Churches Act, therefore continued to exist.
The applicant church, represented through the above persons,
intends to complain of this decision to the Administrative Court and
the Constitutional Court.
COMPLAINTS
The applicant church claims that the suspension of its power
to act in the sphere of State law, the appointment of a curator called
upon to administer its property, including the chapel and church
offices, and the particular manner in which the curator, with the
consent of the competent courts, performed his functions, interfered
with its right to freedom of religion, as guaranteed by Article 9 of
the Convention, in a manner incompatible with para. 2 of this
provision.
It submits that the above measures did not pursue any
legitimate purpose recognised in Article 9 para. 2 and that they were
in any event disproportionate. Authority to suspend a church's power
to act in law is only provided for in the Orthodox Churches Act, but
not in the legislation concerning other religious communities in
Austria. Furthermore, it is generally recognised that the property
administration of other religious communities belongs to their
internal sphere whereas this is not recognised as regards the
applicant church. Finally, despite its successful remedies against
the approval of the tenancy contracts by the curator these contracts
are provisionally operative ("schwebend wirksam") and prevent it from
actually using its premises.
THE LAW
1. The applicant church, a non-governmental organisation within
the meaning of Article 25 (Art. 25) of the Convention, alleges a
violation of Article 9 (Art. 9) of the Convention which reads as
follows:
"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 right to freedom of religion may be invoked not only by
individuals, but also by a church or other religious community (cf.
No. 7805/77, Church of Scientology v. Sweden, Dec. 5.5.79, D.R. 16 p.
68; No. 8118/77, Omkarananda v. Switzerland, Dec. 19.3.81, D.R. 25 p.
105). The applicant church therefore may claim to be a victim of a
violation of its rights under Article 9 (Art. 9) by the measures
complained of.
As a legal person the applicant church would normally be
required to be represented by its duly authorised statutory organs.
In the present case, the applicant church's power to act in law has
been suspended but in the various proceedings at issue the Austrian
courts have accepted submissions of the persons who now address the
Commission on behalf of the applicant church. In these special
circumstances the Commission accepts their procedural capacity to
bring an application on behalf of the church.
2. The applicant church first complains that the suspension of
its power to act in law, the appointment of a curator for it and
the transfer of its property administration to him amounted to
an unjustified interference with its freedom of religion as guaranteed
by Article 9 (Art. 9) of the Convention. By its related submission
that the possibility of suspension and appointment of a curator exists
only under the Orthodox Churches Act, but not under the legislation
applicable to other churches or religious communities in Austria
whose property administration is regarded as an internal matter, the
applicant church also complains of discrimination contrary to
Article 14 (Art. 14) of the Convention.
The Commission notes that the above measures were by their
terms limited to the sphere of State law and purported not to affect
the internal matters of the church with regard, in particular, to the
exercise of its freedom of religion. However, the Commission may
leave open to which extent the applicant church's rights under
Articles 9 (Art. 9) and 14 (Art. 14) of the Convention might
nevertheless have been affected as in any event it has not exhausted
the domestic remedies with regard to its above complaints, as required
by Article 26 (Art. 26) of the Convention : It failed to lodge a
complaint with the Constitutional Court against the Ministry's
initial decision of 21 December 1984 and its complaint with the
Administrative Court was rejected on 15 September 1986 for failure to
comply with formal requirements of Austrian law.
The church's application for a reconsideration of the
above decision of the Ministry cannot be regarded as an effective
remedy within the meaning of Article 26 (Art. 26) of the Convention, in
particular as this remedy was declared inadmissible by the
Administrative Court on 26 September 1988 (cf. No. 7729/76, Agee v.
the United Kingdom, Dec. 17.12.76, D.R. 7 p. 164; No. 14038/88,
Soering v. the United Kingdom, Dec. 10.11.88). Furthermore, the
church has not yet exhausted the remedies against the Ministry's new
decision of 10 November 1989.
It is true that the applicant church has used the available
remedies against the appointment of a curator and against the
transfer of the property administration to him. However, the
civil courts found themselves bound by the Ministry's above decision.
They observed that they were not competent to review this decision,
which could only be challenged before the Administrative and
Constitutional Courts, and that the appointment of a curator was only
a necessary consequence of this decision. Moreover, in its decision
of 4 June 1987 the Supreme Court clarified that the curator's tasks
concerning the property administration were limited to the sphere of
State law and that they were subordinate to the promotion of the
internal aims of the church.
The Commission considers that in these particular
circumstances the appointment of a curator for the church and the
transfer of the property administration to him were necessary
consequences of the Ministry's decision of 21 December 1984. They
could have been effectively prevented only by the remedies against the
underlying administrative decision of the Ministry. As the applicant
church did not exhaust all domestic remedies against that decision its
above complaints must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
3. The applicant church also complains that the manner in which
the curator exercised his functions, in particular by concluding
tenancy contracts with representatives of a dissenting group of the
church, interfered with its rights under Article 9 (Art. 9) of the
Convention. The Commission notes that, after the Supreme Court by
its decision of 26 January 1989, and the Regional Court by its
decision of 11 October 1989, quashed the consent given to the
tenancy contracts in question by the District Court, the proceedings
are now again pending before this Court. It follows that the
domestic remedies have not been exhausted in this respect either, as
required by Article 26 of the Convention. This part of the
application must accordingly also be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
4. Insofar as the applicant church has finally referred to the
consequences of the conclusion of the above tenancy contracts by the
curator, in particular the fact that it has been unable to use its own
premises, and that access of its members to a religious ceremony was
prevented by the police, the applicant has not shown that it availed
itself of any remedies. This part of the application, too, must
therefore be rejected for non-exhaustion of domestic remedies.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy