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