AS TO THE ADMISSIBILITY OF
Application No. 20402/92
by Bror SPETZ and others
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 July 1992 by
Bror SPETZ and Others against Sweden and registered on 31 July 1992
under file No. 20402/92;
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
a. The particular circumstances of the case
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are 1) a Swedish nonconformist congregation in
Stockholm, Södermalms Fria Församling (the Congregation), 2) four
pastors of the Congregation, Bror Spetz, Bertil Swärd, Carl-Gustaf
Severin and Klas Lindberg, born in 1926, 1943, 1953 and 1954
respectively, and 3) a couple, Andreas and Monika Mannerström, and
their daughter, Miriam, born in 1968 and 1966 and on 5 May 1992
respectively. All individual applicants are Swedish citizens. Before
the Commission the applicants are represented by Mrs. Siv Westerberg,
a lawyer practising in Gothenburg, Sweden.
The Congregation was founded some 60 years ago. It considers
itself to be, and to have always been, an independent congregation
within the Pentecostal Movement (Pingströrelsen). It has four pastors,
the above-mentioned applicants, and about 1900 members.
By Government decision of 12 September 1952, the Pentecostal
Movement was granted a right to celebrate marriages (vigselrätt). Since
the Pentecostal Movement consists of several independent congregations
which do not have a common administration, a special Marriage Board
(vigselnämnd) was set up within the Movement to authorise celebrants
(vigselförrättare). According to the decision, only officials of
Pentecostal congregations with specified qualifications were to be
authorised. The decision further recalled that, according to a 1951
Royal Decree, authorised officials must, before conducting any marriage
ceremonies, obtain a certificate showing their competence from the
County Administrative Board (länsstyrelsen).
After having been authorised by the Marriage Board, the applicant
pastors received their certificates on 7 July 1955 (Spetz),
14 December 1976 (Swärd), 25 June 1979 (Severin) and 16 June 1987
(Lindberg).
By decision of 8 December 1988, the Marriage Board revoked as
from 1 July 1989 the right of the Congregation to celebrate marriages
and thereby also the applicant pastors' authorisations to conduct
marriage ceremonies. The pastors were requested to return their
certificates of competence to the Marriage Board. According to the
Board's opinion, the Congregation and its pastors had shown, in word
and deed, by actively supporting breakaway factions, that they did not
consider themselves to be part of the Pentecostal Movement.
In a reply to the Marriage Board, the Congregation stated that
it did not consider the Board competent to revoke the Congregation's
right to celebrate marriages or the pastors' authorisations, and that
the pastors did not intend to return their certificates.
The Marriage Board then requested the County Administrative Board
to revoke the certificates. By decision of 19 April 1989, the County
Administrative Board refused the request. It stated that neither the
1951 Royal Decree nor the 1952 Government decision mentioned any
grounds on which a celebrant's authorisation to conduct marriage
ceremonies could be revoked, that the revocation of such an
authorisation was to be regarded as an exercise of public authority,
which should have a basis in law, and that the revocation of
certificates had not been requested because the pastors no longer had
the qualifications necessary according to said Government decision, but
because the Congregation and its pastors could not be considered as
members of the Pentecostal Movement. The County Administrative Board
concluded that there was no basis in law to revoke the certificates as
requested. The Marriage Board appealed to the Government.
By way of a note on his certificate, the Marriage Board had
indicated that Bertil Swärd's authorisation was revoked as of 1 July
1989. As he was due to conduct a marriage ceremony, he asked the County
Administrative Board to explain whether he was still competent to do
so. On 8 June 1989, the County Administrative Board replied that he had
the right to conduct ceremonies until the revocation matter had been
finally settled by the Government. Before the matter had thus been
settled the four pastors of the Congregation had conducted 21
ceremonies, one of them on 9 September 1989 between the applicants
Andreas and Monika Mannerström.
By decision of 31 January 1991, the Government found that the
pastors' right to conduct marriage ceremonies had been revoked by the
decision of the Marriage Board and that this decision was final. The
Government stated that by the decision of 1952 a power to exercise
public authority had been conferred on the Marriage Board. The
Government further noted that the Marriage Board's competence to
authorise celebrants was limited to officials of the Pentecostal
Movement, that, as a consequence, the Board had to make sure that a
prospective celebrant was a member of a Pentecostal congregation, and
that, as a further consequence, an official of a congregation that no
longer belonged to the Movement could not invoke an authorisation by
the Marriage Board. Recalling that, in accordance with Section 2 of the
1951 Royal Decree, the Marriage Board had to notify the County
Administrative Board about the expiration of an authorisation, the
Government further noted that the Marriage Board had to examine,
whenever there were reasons for it, whether the conditions for an
authorisation were still met, and, if that was not the case, take the
appropriate decision.
In two letters to the Congregation the Ministry of Justice
explained that, as a consequence of the Government's decision,
marriages conducted by the four pastors since 1 July 1989 were invalid.
The Ministry, however, noted that, according to Chapter 4, Section 2,
subsection 3 of the Code on Marriages (Äktenskapsbalken), the
Government may, under special circumstances, declare valid otherwise
invalid marriages. The Minister of Justice expressed her deep concern
that the negative effects for the couples in question be eliminated and
promised that applications for such declarations would be examined
favourably. Only the man or the woman concerned or, in case one of them
has died, the heirs of the deceased may apply for a declaration. An
application by the Congregation for a declaration that the 21 marriage
ceremonies conducted were valid was, accordingly, rejected by the
Government on 8 May 1991. Only four of the 21 couples in question have
applied to the Government for a declaration. Andreas and Monika
Mannerström have not applied. The four applications have been granted,
and the marriages have been declared valid as from the date of the
ceremonies. The Congregation and the pastor Bror Spetz applied to
the Supreme Administrative Court (regeringsrätten) for a review of the
Government's decision under the Act on Judicial Review of Certain
Administrative Decisions (Lagen om rättsprövning av vissa
förvaltningsbeslut, 1988:205 - "the 1988 Act"). They alleged that the
Marriage Board had been given only a limited right to exercise public
authority which did not include the competence to revoke authorisations
to conduct marriage ceremonies, and that, in any case, there must lie
an appeal from the Marriage Board's decision as it is equivalent to a
decision to expel members from a congregation, a decision from which
an appeal lies according to the Freedom of Religion Act
(Religionsfrihetslag, 1951:680). Since, as a consequence of the
Government's decision, the marriages conducted since 1 July 1989 were
invalid, they further submitted that the Government were not empowered
to declare a marriage invalid and that the decision, especially with
regard to its retroactive character, violated the provisions of the
Code on Marriages concerning the requirements of a valid marriage.
Finally, they claimed that the Government had not examined the merits
of the appeal against the County Administrative Board's decision.
On 18 February 1992 the Supreme Administrative Court refused to
examine the application. The Court stated that, as the application did
not concern any matter referred to in Chapter 8, Sections 2 or 3 of the
Instrument of Government (Regeringsformen), the Court was not competent
to examine it under the 1988 Act.
The Congregation later requested the Government to declare their
decision of 31 January 1991 not to have a retroactive effect, thereby
making the 21 marriage ceremonies valid. The Congregation further
requested to be granted a right to celebrate marriages. By decision of
15 April 1992, the Government stated that the previous decision did not
contain an examination of the merits of the case, but only a
confirmation that the Marriage Board's decision was final, and that,
accordingly, the Government were not empowered to examine the
Congregation's first request. The Government further noted, as a piece
of information, that the certificates of competence issued by the
County Administrative Board were of no independent importance as to the
pastors' right to conduct marriage ceremonies, a matter which was not
to be examined by the County Administrative Board, but by the Marriage
Board. Finally, by decision of 23 April 1992, the Government rejected
the Congregation's request to be granted a right to celebrate
marriages.
b. Relevant domestic law
The provisions on how marriages are contracted are included in
Chapter 4 of the Code on Marriages. Section 3 reads in relevant parts
as follows:
(translation)
"Competent to conduct marriage ceremonies is
1. a clergyman of the Church of Sweden,
2. a priest or other official of another church, if the
Goverment have granted the church a right to celebrate marriages
and the County Administrative Board has issued a certificate of
competence for that priest or official,
..."
Further provisions concerning marriage ceremonies are to be found
in the 1951 Royal Decree with Certain Provisions on Celebrants of Other
Churches than the Church of Sweden (Kunglig kungörelse med vissa
bestämmelser ang. vigselförrättare inom annat trossamfund än svenska
kyrkan, 1951:703). Sections 1 and 2 of the Decree read, in so far as
relevant, as follows:
(translation)
Section 1:
"If the Government have authorised that marriages may be
celebrated within a certain church by its priests or otherwise
by officials of that church, such priest or official may not
exercise his competence to conduct marriage ceremonies before the
County Administrative Board of the county in which the church is
located, on application by the church, has issued a certificate
on his competence to conduct marriage ceremonies within the
church."
Section 2:
"If a celebrant, referred to in Section 1, dies, or if his
competence to conduct marriage ceremonies otherwise expires, the
church is obliged to notify the County Administrative Board
thereof without delay."
The 1951 Decree was replaced by new legislation in 1987, but its
Section 2 is still applicable to rights to celebrate marriages granted
before 1988.
COMPLAINTS
1. The applicants Andreas and Monika Mannerström claim that their
right to marry and to found a family and their right to peaceful
enjoyment of their possessions have been violated. Together with their
daughter Miriam they also claim that their right to respect for their
family life has been violated. They assert that, as a consequence of
the Government's decision of 31 January 1991, the parents are not
considered to be married and their daughter is thus considered to be
born out of wedlock. Consequently, the parents do not have any right
to each other's property, they do not inherit from one another and they
cannot conclude a marital settlement. Furthermore, the father does not
have legal custody of his daughter. The applicants therefore claim that
they have been denied the legal security of a marriage and invoke
Articles 8 and 12 of the Convention and Article 1 of Protocol No. 1.
2. All applicants claim that they have been denied their rights to
freedom of conscience and religion and to freedom of expression in
violation of Articles 9 and 10 of the Convention. They submit that the
Marriage Board's decision of 8 December 1988 to revoke the right of the
Congregation to celebrate marriages and, as a consequence, the
applicant pastors' authorisations to conduct marriage ceremonies is a
means of punishment directed at the applicants' Christian faith and the
work that has been carried out within the Congregation. The pastors
have thus, because of their position on certain questions of faith,
been prohibited from exercising part of their profession.
3. All applicants further complain that their right to a hearing by
a tribunal has been denied in violation of Articles 6 and 13 of the
Convention. They maintain that the Government have conferred on the
Marriage Board a power to exercise public authority without providing
for legal remedies against the Board's decisions. Andreas, Monika and
Miriam Mannerström claim that they have a right to a court hearing as
regards the alleged violation of their right to family life. The
applicant pastors claim that their right to practise their profession,
which they consider to be a civil right, has been violated and that,
in the determination of this right, they are entitled to a court
hearing.
THE LAW
1. The applicants Andreas, Monika and Miriam Mannerström claim that
their rights to respect for their family life, to marry, to found a
family and to the peaceful enjoyment of their possessions under
Articles 8 and 12 (Art. 8, 12) of the Convention and Article 1 of
Protocol No. 1 (P1-1) have been violated, since, as a consequence of
the Government's decision of 31 January 1991, the marriage between
Andreas and Monika Mannerström is not considered to be valid. The
invoked provisions read in relevant parts as follows:
Article 8 (Art. 8):
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
..."
Article 12 (Art. 12):
"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 1 of Protocol No. 1 (P1-1):
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
..."
The Commission notes that Andreas, Monika and Miriam Mannerström
have not been parties to any proceedings and that the Government's
decision of 31 January 1991, which has brought about the alleged
violations of their Convention rights, has been taken more than six
months before the introduction of the present application. The question
therefore arises whether these applicants have complied with the
conditions under Article 26 (Art. 26) of the Convention as to the
exhaustion of domestic remedies and the observance of the six months
period. The Commission also notes that Miriam Mannerström was not born
at the time of the different decisions of the present case. Thus, the
further question arises whether she can claim to be a victim within the
meaning of Article 25 para. 1 (Art. 25-1) of the Convention. However,
the Commission does not have to resolve these issues, as this part of
the application is in any event manifestly ill-founded for the
following reasons. The Commission recalls that the alleged
violations now in question all derive from the fact that, following the
Government's decision of 31 January 1991, the marriage between Andreas
and Monika Mannerström, like other marriages conducted within the
Congregation since 1 July 1989, is not considered to be valid.
The Commission notes that the Government, in accordance with the
relevant provisions of the Code on Marriages, have invited the couples
concerned to apply for declarations that their marriages are valid and
expressed that such applications will be examined favourably. The four
applications lodged have all been granted, and those four marriages
have been declared valid as from the date of the marriage ceremonies.
The Commission, recalling that the right to marry under Article
12 (Art. 12) of the Convention is subject to the national laws
governing the exercise of this right, finds that Andreas and Monika
Mannerström, by applying to the Government, could have had their
marriage declared valid. The Commission, therefore, considers that the
present circumstances do not disclose any appearance of a violation of
their right to marry. The alleged violations of their and Miriam
Mannerström's rights under Article 8 (Art. 8) of the Convention and
Article 1 of Protocol No. 1 (P1-1) are all consequences of the invalid
marriage. Consequently, the Commission further considers that the case
does not disclose any appearance of a violation of these provisions
either.
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.
2. All applicants claim that their rights to freedom of conscience
and religion and to freedom of expression under Articles 9 and 10
(Art. 9, 10) of the Convention have been violated by the Marriage
Board's decision of 8 December 1988.
Article 9 (Art. 9) 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."
Article 10 (Art. 10) reads as follows:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television or
cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
The Commission recalls that the Congregation and Bror Spetz have
applied to the Supreme Administrative Court for a review of the
Government's decision of 31 January 1991. The Court has, however, found
that it lacks competence to deal with the application under the 1988
Act. The question, therefore, arises whether the application to the
Supreme Administrative Court has constituted an effective remedy and,
as the present application has been introduced on 11 July 1992, whether
the Congregation and the applicant pastors have complied with the six
months period laid down in Article 26 (Art. 26) of the Convention. The
Commission need, however, not resolve these issues, as this complaint
is in any event manifestly ill-founded for the reasons given below.
The Commission recalls its constant case-law according to which
Article 9 (Art. 9) does not oblige the States to ensure that churches
within their jurisdiction grant religious freedom to their members and
servants (cf., e.g., No. 7374/76, Dec. 8.3.76, D.R. 5 p. 157, and
No. 12356/86, Dec. 8.9.88, D.R. 57 p. 172). A church is free to enforce
uniformity in religious matters, and it is not obliged to accept a
pastor as its servant or to allow him to carry out certain duties. The
pastor's right to freedom of thought, conscience and religion vis-à-vis
the church is guaranteed by his right to leave the church.
In the present case, the Marriage Board, an organ of the
Pentecostal Movement, has revoked rights previously bestowed upon the
Congregation and its pastors on the ground that, in the Board's
opinion, they have left the Movement.
As regards Andreas, Monika and Miriam Mannerström, they have not
specified in what way their rights under Articles 9 and 10 (Art. 9, 10)
have been violated other than the fact that Andreas and Monika
Mannerström's marriage, conducted by one of the Congregation's pastors,
is not considered to be valid. It is true that after the Marriage
Board's decision they could not validly be married by the said pastors.
However, marriage is not considered simply as a form of expression of
conscience and religion, but is governed by the specific provisions of
Article 12 (Art. 12) which refers to the national laws governing the
exercise of the right to marry (cf. No. 6167/73, Dec. 18.12.74,
D.R. 1 p. 64, and No. 11579/85, Dec. 7.7.86, D.R. 48 p. 253). The
Commission, therefore, considers that Andreas, Monika and Miriam
Mannerström's rights to freedom of conscience and religion and to
freedom of expression have not been affected by any decisions taken in
the present case.
As regards the other applicants, the Commission finds that the
Pentecostal Movement, in the examination of the present complaint, is
to be considered as a church. The respondent State have been under no
obligation to ensure that the Movement accepts the Congregation or its
pastors as its members or grants them any rights deriving from the 1952
Government decision to grant the Movement a right to celebrate
marriages. In deciding to revoke the rights previously bestowed upon
the Congregation and the pastors, the Marriage Board has acted as an
organ of the Movement. As there is no showing that the Congregation or
the pastors have been prevented from manifesting their religion or
beliefs or from leaving the Movement, neither the Board's decision nor
any other acts or decisions by the Movement or State authorities have
interfered with the exercise of the Congregation's and the pastors'
rights under Article 9 (Art. 9).
As regards the Congregation's and its pastors' complaint that
there has been a breach of their right to freedom of expression as
guaranteed by Article 10 (Art. 10), the Commission considers that the
same reasoning applies mutatis mutandis to the applicants' complaint
under this Article as to the complaint under Article 9 (Art. 9) (cf.
No. 12356/86, referred to above). Accordingly, there has been no
interference with the applicants' rights as guaranteed by Article 10
(Art. 10).
It follows that the applicants' complaints under Articles 9 and
10 (Art. 9, 10) of the Convention are manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. All applicants claim that they are entitled to a hearing by a
tribunal regarding their complaints against the decision by the
Marriage Board. They invoke Articles 6 and 13 (Art. 6, 13) of the
Convention.
Article 6 (Art. 6) reads in relevant parts as follows:
"1. In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by [a] ... tribunal
..."
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 dispute in the present case concerns the Marriage Board's
revocation of the Congregation's right to celebrate marriages and the
pastors' rights to conduct marriage ceremonies. In determining whether
Article 6 para. 1 (Art. 6-1) has been violated, the Commission must
first consider whether the dispute involves a determination of the
applicants' civil rights within the meaning of this provision.
The applicability of Article 6 para. 1 (art. 6-1) depends on
whether there was a dispute over a "right" which can be said, at least
on arguable grounds, to be recognised under domestic law, and, if so,
whether this "right" was of a "civil" character within the meaning of
Article 6 para. 1 (Art. 6-1). In particular, the dispute must be
genuine and serious, it may relate not only to the actual existence of
a right but also to its scope and the manner of its exercise (cf. Eur.
Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A
no. 163, p. 19, paras. 66-67). As regards the question whether the
dispute relates to a civil right, a tenuous connection or remote
consequences do not suffice for the application of Article 6 para. 1
(Art. 6-1). Civil rights must be the object -or one of the objects -
of the dispute; the result of the proceedings must be directly decisive
for such a right (cf. Eur. Court H.R., Le Compte, Van Leuven and De
Meyere judgment of 23 June 1981, Series A no. 43, p. 21, para. 47).
The Commission recalls that Andreas, Monika and Miriam
Mannerström have not been parties to any proceedings regarding the
dispute in question, which concerned the rights of the Congregation and
its pastors. They were only indirectly affected in the way that the
marriage between Andreas and Monika Mannerström, as a consequence of
the outcome of the dispute, was considered to be invalid. In these
circumstances, the Commission finds that the decisions taken have not
been directly decisive for Andreas, Monika and Miriam Mannerström's
civil rights within the meaning of Article 6 para. 1 (Art. 6-1).
The applicant pastors maintain that the Marriage Board's decision
has violated their right to practise their profession and that it has
thus determined their civil rights. The Congregation does not state any
separate ground for finding that the Board's decision has involved a
determination of civil rights.
The Commission recalls that disputes concerning the right to
practise a profession or to obtain a licence or an authorisation
necessary for such practice have been found to involve a determination
of civil rights within the meaning of Article 6 para. 1 (Art. 6-1)
(cf., e.g., Eur. Court H.R., König judgment of 28 June 1978, Series A
no. 27, pp. 31-32, paras. 91-95, and Pudas judgment of 27 October 1987,
Series A no. 125-A, p. 16, paras. 37-38).
In the present case, however, the revocation of the
authorisations to conduct marriage ceremonies has not prevented the
pastors from practising their profession, but has merely made it
impossible for them to exercise one function of that profession.
Moreover, the revocation has not affected the possibilities for the
pastors to earn their livelihood.
Furthermore, the Commission recalls that it has previously held
that disputes on issues of faith and religious practice do not involve
the determination of civil rights (cf. No. 7374/76, referred to above).
For these reasons, the Commission considers that the Marriage
Board's decision has not involved any determination of the
Congregation's or the pastors' civil rights within the meaning of
Article 6 para. 1 (Art. 6-1).
It follows that the complaints submitted under Article 6
(Art. 6) of the Convention are incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
As to the complaint by all the applicants under Article 13
(Art. 13) of the Convention, the Commission recalls that this provision
has been interpreted by the European Court of Human Rights as requiring
a remedy in domestic law only in respect of grievances which can be
regarded as "arguable" in terms of the Convention (cf., e.g., Eur.
Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,
p. 23, para. 52).
Having regard to its above conclusions in respect of the
Convention complaints submitted, the Commission considers that the
applicants do not have any "arguable claims" of a violation of the
provisions invoked for these complaints. In these circumstances, the
Commission finds no appearance of a violation of Article 13 (Art. 13).
It follows that this complaint 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.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
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