Lexploria

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

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UNIVERSELLES LEBEN e.V. v. GERMANY

UNIVERSELLES LEBEN e.V. v. GERMANY

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