AS TO THE ADMISSIBILITY OF
Application No. 29745/96
by UNIVERSELLES LEBEN e.V.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, 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 6 November 1995
by UNIVERSELLES LEBEN e.V. against Germany and registered on
8 January 1996 under file No. 29745/96;
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 with seat in Würzburg.
It perceives itself as a religious community gathering persons in a
new, true Christian faith conveyed by a new prophet sent by God. In
the proceedings before the Commission, it is represented by
Mr. H. Dohle and Mr. U. Kogler, its President and Vice-President,
respectively, who retained Mr. C. Sailer and Mr. G.-J. Hetzel, lawyers
practising at Marktheidenfeld-Altfeld, to act as counsel.
On 20 December 1993 the Cologne Administrative Court
(Verwaltungsgericht) granted the applicant association's request for
an interim injunction (einstweilige Anordnung) prohibiting the German
Government from including a reference to the applicant association in
a publication on "So-called youth sects and psycho-groups in the
Federal Republic of Germany" ("Sogenannte Jugendsekten und Psycho-
Gruppen in der Bundesrepublik Deutschland") until a decision in the
main proceedings to be brought by the association in due course.
The Administrative Court considered that, for the purposes of the
interim injunction proceedings, the association had to be treated as
a religious community. The incriminated publication would, if the
applicant association were to be mentioned, affect its right to freedom
of religion, taking into account that the intended publication
contained general "warnings" about the sects concerned. While the
Government were, in the exercise of their general tasks in informing
the public, entitled to warn publicly about dangers arising from the
activities of religious or philosophical communities, there were no
compelling reasons to warn about the applicant association. In
particular, the Government were not entitled to endorse and publish
criticism raised by an official of the Protestant Church in Bavaria,
competent in sect matters. The previous German court decisions,
confirming that this official had been entitled to raise the said
criticism, had only been taken with due regard to his freedom of
religion.
In January 1994 the applicant association filed the main
administrative court proceedings with the Cologne Administrative Court.
On 25 August 1995 the North-Rhine Westphalia Administrative Court
of Appeal (Oberverwaltungsgericht), upon the Government's appeal
(Beschwerde), dismissed the applicant association's request.
The Administrative Court of Appeal, assuming that the applicant
association was in a position to act on behalf of the religious
community in question, found that, after the summary examination in the
context of the interim injunction proceedings, there was nothing to
conclude that the intended publication was unlawful, rather there were
important reasons to conclude that the Government were entitled to
publish the information in question. In this respect, the
Administrative Court of Appeal had regard to the case-law of the
Federal Constitutional Court (Bundesverfassungsgericht). It found that
the documents produced by the applicant association itself, in
particular on the replacement of medical treatment by religious belief,
showed a degree of dangerousness for the general public justifying a
reference to the applicant association in the envisaged publication
including a warning about its activities.
On 13 September 1995 the Federal Constitutional Court refused to
entertain the applicant association's constitutional complaint
(Verfassungsbeschwerde).
The main proceedings are still pending.
COMPLAINTS
The applicant association complains under Article 9 about the
publication envisaged by the German Government. As regards Article 26,
it considers that it cannot be expected to await the outcome of lengthy
court proceedings.
THE LAW
The applicant association complains about the German Government's
intention to publish a general information on "So-called youth sects
and psycho-groups in the Federal Republic of Germany" with a reference
to the applicant association and its activities, as well as a warning
about its tendencies. It invokes Article 9 (Art. 9) of the Convention.
Article 9 (Art. 9) provides 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 in 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 Commission considers that, as the applicant association was
admitted as party to the administrative court proceedings regarding the
above complaint, it is also to be regarded as competent to bring the
present application under Article 25 (Art. 25) of the Convention.
The Commission observes that, in accordance with 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. The Commission notes that the
applicant association requested an interim injunction against the
envisaged publication and exhausted the remedies in these proceedings,
whereas the main proceedings on the merits of its request for a
prohibitory injunction are still pending. In the applicant
association's view, it cannot be expected to await the outcome of
lengthy court proceedings. The question arises whether the applicant
association, in referring to the probable length of the administrative
court proceedings, has justified a special circumstance absolving it
from the obligation to exhaust this remedy. However, the Commission
need not resolve this matter as the application is anyway inadmissible
for the following reasons.
The Commission recalls that freedom of thought, conscience and
religion, which is safeguarded under Article 9 (Art. 9) of the
Convention, is one of the foundations of a "democratic society" within
the meaning of the Convention. It is, in its religious dimension, one
of the most vital elements that go to make up the identity of believers
and their conception of life (cf. Eur. Court HR, Kokkinakis v. Greece
judgment of 25 May 1993, Series A no. 260-A, p. 17, para. 31; Otto-
Preminger-Institut v. Austria judgment of 20 September 1994, Series A
no. 295-A, p. 17, para. 47).
However, those who choose to exercise the freedom to manifest
their religion, irrespective of whether they do so as members of a
religious majority or a minority, cannot reasonably expect to be exempt
from all criticism. They must tolerate and accept the denial by others
of their religious beliefs and even the propagation by others of
doctrines hostile to their faith (cf. Eur. Court HR, Otto-Preminger-
Institut judgment, loc. cit., p. 18, para. 47; No. 8282/78,
Dec. 14.7.80, D.R. 21, p. 109). A State may even legitimately consider
it necessary to take measures aimed at repressing certain forms of
conduct, including the imparting of information and ideas, judged
incompatible with the respect for the freedom of thought, conscience
and religion of others (Eur. Court HR, Kokkinakis judgment, loc. cit.,
p. 21, para. 48; Otto-Preminger-Institut judgment, loc. cit.).
The Commission further considers that a State, in fulfilling the
functions assumed by it in the information of the public on matters of
general concern, is entitled to convey, in an objective, but critical
manner, information on religious communities and sects, if such
information does not pursue aims of agitation or indoctrination
endangering the freedom of religion (cf., mutatis mutandis, Eur. Court
HR, Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of
7 December 1976, p. 26, para. 53).
In the present case, the Commission considers that the reference
to the applicant association in the intended publication does not have
any direct repercussions on the religious freedom of the association
or its members. Indeed, their freedom to manifest their religion was
not subjected to any discretionary restrictions on the part of the
German State (cf. Eur. Court HR, Manoussakis and others v. Greece
judgment of 26 September 1996, para. 47, to be published in Reports
1996). In this context, the Commission, having regard to the findings
of the German administrative courts in the interim injunction
proceedings, also notes that the impugned publication reflects, so far
as the applicant association is concerned, criticism lawfully raised
against it. Furthermore, the Administrative Court of Appeal, in a
summary examination, held that the documents produced by the applicant
association itself justified a public warning as to its activities.
While limited to a summary examination in the context of the interim
injunction proceedings, the Administrative Court of Appeal explained
that there were good reasons to justify the impugned publication on the
applicant association.
In the circumstances of the present case, the Commission finds
that the measure in question, if implemented by the German Government,
does not amount to an interference with the applicant association's
rights to freedom of religion under Article 9 (Art. 9).
It follows that 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.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy