AS TO THE ADMISSIBILITY OF

                      Application No. 20966/92

                      by SERBISCH-GRIECHISCH-ORIENTALISCHE

                      KIRCHENGEMEINDE ZUM HEILIGEN SAVA IN

                      WIEN

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

           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 24 September 1992

by by SERBISCH-GRIECHISCH-ORIENTALISCHE KIRCHENGEMEINDE ZUM HEILIGEN

SAVA IN WIEN against Austria and registered on 19 November 1992 under

file No. 19 November 1992;

      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 facts of the case, as submitted by the applicant, may be

summarised as follows.

I.    The applicant is the Serbian Orthodox Church in Vienna, which was

established in 1893.  Its statutes of 1906-1908, as amended in 1951-

1957, were recognised by the competent Minister in 1957.  The Church's

legal status is now governed by the Orthodox Churches Act (Orthodoxen-

gesetz BGBl. 229/1967).  The applicant church is represented by

Mr. T. V., its president elected in 1982, and Mr. R. Krepp, a lawyer

practising in Vienna.

II.   In its previous application No. 13712/88, the applicant church,

represented by Mr. Krepp, complained that on 21 December 1984 the

Minister for Education and Culture (Bundesminister für Unterricht und

Kunst) had decided to suspend its power to act in the sphere of secular

law (Handlungsfähigkeit in äußeren Angelegenheiten) under Section 12

of the Orthodox Churches Act, which permits such a suspension if the

statutes do not longer correspond to Section 8 of the Act or if the

church fails to appoint organs to represent it.  In his decision, the

Minister had considered that, following the establishment of a new

diocese for Western Europe in 1969 by the Serbian Orthodox mother

church in Belgrade, there was no agreement between the Vienna church

and Belgrade Patriarchate regarding the revised statutes which were not

recognised under the Orthodox Churches Act.

      The applicant church further complained that in 1985/86 the

Austrian civil courts appointed a curator regarding the activities of

the applicant church in the sphere of secular law, and that this

curator had concluded, with two priests nominated by the Belgrade

Patriarch and the Bishop, two tenancy contracts lasting for the time

of his mandate in respect of its property, including the chapel,

offices and the priest's residence.

      The applicant church also complained that on 10 November 1989,

the competent Minister had refused to revoke its decision of

21 December 1984, finding no changes in the relevant situation.

      The applicant church invoked Article 9 of the Convention, and

also alleged discrimination.

      On 2 April 1990 the Commission declared the above application

inadmissible.  As regards the decision of 21 December 1984, as well as

the closely related civil courts' decisions to appoint a curator, the

Commission found that the applicant church had failed to exhaust, as

required by Article 26 of the Convention, the domestic remedies

available under Austrian law.  In this respect, the Commission found

that the applicant church had failed to lodge a complaint with the

Austrian Constitutional Court (Verfassungsgerichtshof) against the said

decision of 21 December 1984, and that its complaint with the Austrian

Administrative Court (Verwaltungsgerichtshof) had been rejected for

failure to comply with formal procedural requirements.  Its application

for a revocation of the said decision could not be regarded as

effective remedy.  The remainder of the application was also rejected

under Article 26 in conjunction with Article 27 para. 3, in particular

as proceedings concerning the conduct of the curator were still pending

before the civil courts.

III.  In its present application, the applicant church refers to the

above matters and presents the following developments since the

Commission's decision in April 1990.

      Following successful appeal proceedings before the Austrian

Supreme Court (Oberster Gerichtshof), proceedings regarding the

approval of above-mentioned tenancy contracts were resumed before the

Vienna District Court (Bezirksgericht).

      On 27 December 1990 the District Court again approved these

contracts.  The District Court found that the applicant church itself

had not elected priests and the pastoral care was provided for by the

two tenants Mr. B. T. and Mr. K. K., priests nominated by the Bishop.

The tenancy contracts, therefore were necessary for providing the

material conditions for pastoral care.

      On 31 May 1991 the Vienna Regional Court (Landesgericht)

dismissed the appeal of the applicant church, represented by Mr. T. V.,

against the District Court's decision of 27 December 1990.

      On 20 December 1991 the Supreme Court, upon a further appeal by

the applicant church, represented by Mr. T. V., quashed the Regional

Court's decision of 31 May 1991 insofar as it concerned the approval

tenancy contract for the Church, the Chapel and the office of the

church.  The Supreme Court, referring to its earlier decision, found

that even in an extraordinary situation of schism like in the present

case, the administration of the property had to respect, as far as

possible, the inner sphere of the church.  Practical considerations,

i.e. that it would be easier to administrate the church's property by

means of tenancy contract could not overrule this principle.  Thus,

premises of the building which were intended directly or indirectly for

religious worship could not be rented out, rather, the curator had to

entrust them directly to a minister (Seelsorger).  As regards the other

parts of the building rented out by the curator, the Supreme Court

found that these rooms were not designed for religious worship and that

the tenant was a priest, who had been nominated by the Bishop and was

therefore not only bound by the tenancy contract but also responsible

vis-à-vis the religious authorities.  The fact that thereby one of the

rivalling groups within the church obtained a stronger position had to

be accepted in order not to render impossible, in this exceptional

situation, the statutory aim of the church to offer pastoral care. The

decision was served on the applicant church on 25 March 1992.

      Following this decision, the church, the chapel and the office

of the church were not rented out, but the curator handed over the keys

concerned to the two priests nominated by the Bishop.  Several

apartments in the house, including those for the priests and the

kindergarten of the church, are rented to the priests.

      On 26 February 1990 the Constitutional Court declined to deal

with the case and referred it to the Administrative Court.

      Furthermore, on 29 June 1992 the Administrative Court dismissed

a complaint lodged by the applicant church, represented by Mr. T. V.,

against the Minister's decision of 10 November 1989. The Administrative

Court found that the decision of the Minister to suspend the church's

power to act in the sphere of secular law of 21 December 1984 was

binding as long as the reasons for which it had been issued existed.

The Minister had correctly assumed that since 21 December 1984 the

factual circumstances had not changed as still no consensus between the

Vienna church and the Belgrade Patriarchate on new statutes had been

reached.

COMPLAINTS

1.    The applicant church complains that the Administrative Court's

decision of 29 June 1992 violated its right to freedom of religion

under Article 9 of the Convention.  It considers that there existed no

longer sufficient reasons for maintaining the suspension of its power

to act in the sphere of secular law.  The applicant church, referring

to Article 14 of the Convention, also submits that it was discriminated

against other churches as the possibility to suspend a church's power

to act in the sphere of secular law is only provided for in the

Orthodox Churches Act.

2.    The applicant church also complains under Article 9 of the

Convention that the manner in which the appointed curator administered

its property, in particular by concluding tenancy contracts, violated

its right to freedom of religion which also includes the use of the

church's property by its elected organs.  It further invokes Article 1

of Protocol No. 1 in this respect.

THE LAW

1.    The applicant church, a non-governmental organisation within the

meaning of Article 25 para. 1 (Art. 25-1) of the Convention, lodges

complaints under Articles 9 and 14 (Art. 9, 14) of the Convention, as

well as under Article 1 of Protocol No. 1 (P1-1).

      The Commission recalls that the freedom of religion as guaranteed

by Article 9 (Art. 9) of the Convention may be invoked not only by

individuals, but also by a church or other religious community (see

No. 7805/77, Dec. 5.5.79, D.R. 16 p. 68; No. 8118/77, 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) of the

Convention by the measures complained of, and of discrimination in this

respect.  It may also claim to be the victim of a violation of the

rights under Article 1 of Protocol No. 1 (P1-1).

      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.  However, in the various proceedings at issue the Austrian

courts have accepted the submissions of the persons who now address the

Commission on behalf of the applicant church.  In these circumstances

the Commission accepts their procedural capacity to bring an

application on behalf of the church (see also the Commission's decision

of the previous application No. 13712/88, Dec. 2.4.90).

2.    The Commission has next examined whether, pursuant to Article 27

para. 1 (b) (Art. 27-1-b) of the Convention, it is barred from dealing

with the complaints raised by the applicant church on the ground that

they are "substantially the same as a matter which has already been

examined by the Commission" and that its submissions "contain no

relevant new information".

      The Commission notes that the decisions of the Federal Minister

for Education and Culture of 21 December 1984 and of 10 November 1989

were already the subject of Application No. 13712/88, declared

inadmissible on 2 April 1990 for failure to exhaust domestic remedies.

In its decision the Commission found that the applicant church had

failed to lodge a complaint with the Austrian Constitutional Court

against the Minister's decision of 21 December 1984, and that the

applicant church's complaint with the Austrian Administrative Court had

been rejected for failure to comply with formal procedural

requirements.

      The Commission finds that the Administrative Court's decision of

June 1992, confirming the Minister's refusal to revoke his decision of

1984, is no new relevant information regarding the issues underlying

the applicant's complaint about the continued suspension of its power

to act in the sphere of secular law.

      This part of the application is accordingly inadmissible under

Article 27 para. 1 (b) (Art. 27-1-b).

3.    The applicant church complains further about the manner in which

the appointed curator administered its property, in particular that he

had concluded tenancy contracts regarding various parts of the church

building which were approved by the Austrian courts.  It invokes

Article 9 (Art. 9) of the Convention and Article 1 of Protocol No. 1

(P1-1).

      The applicant's previous complaint regarding these issues was

rejected for non-exhaustion of domestic remedies within the meaning of

Article 26 (Art. 26) of the Convention as the court proceedings on the

approval of the tenancy contracts were still pending.  Following

successful appeal proceedings, the court proceedings regarding the

approval of the said contracts were resumed, and terminated with the

Supreme Court's decision of 20 December 1991.  The Commission therefore

finds that in this respect new relevant facts have been submitted.

      The applicant church relies in particular on 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 of 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 of

      others."

      The Commission notes that the Supreme Court, in its decision of

20 December 1991, quashed the court's approval of the tenancy contracts

insofar they concerned the Church, the Chapel and the office of the

church, and that no further objects necessary for the religious

practice or worship were affected.  Thus it appears open to doubt

whether there has been an interference with the applicant church's

freedom of religion (see also The Holy Monasteries v. Greece, Comm.

Report 14.1.93, para. 93).

      However, even assuming such an interference, the matters

complained of were, in any event, justified under Article 9 para. 2

(Art. 9-2) of the Convention.

      As regards the lawfulness of the interference complained of, the

Commission observes that the possibility to appoint a curator is

provided for in the Orthodox Churches Act and, having regard to the

Supreme Court's decision of 4 June 1987, the administration of the

church's property falls within the competence of the curator including

the power to conclude tenancy contracts subject to the approval by the

courts.  There is no indication that the relevant legislation was

insufficiently clear or not accessible.  The measure complained of was,

therefore, "prescribed by law" within the meaning of Article 9 para. 2

(Art. 9-2).

      The Commission further considers that the measures complained of

had a legitimate aim under Article 9 para. 2 (Art. 9-2) of the

Convention, namely the protection of the rights of others, namely the

members of the applicant church and persons entering into legal

relationships with the applicant church, in view of the suspension of

the applicant church's power to act in the field of secular law and

thus to administer its property.

      The Commission finally recalls that the adjective "necessary"

implies the existence of a "pressing social need".  Contracting States

have a certain margin of appreciation in assessing whether such a need

exists, but it goes hand in hand with a European supervision embracing

both the law and the decisions applying it, even those given by

independent courts (see mutatis mutandis Eur. Court H.R., Sunday Times

judgment of 26 November 1991, Series A no. 217, p. 29, para. 50).

      The Commission notes that the Supreme Court, in its decision of

20 December 1991 partially quashed the court's approval of tenancy

contracts concerning the Church, Chapel and office of the church, as

the renting out of these premises would interfere with the applicant

church's freedom of religion.  The Commission notes further that the

tenancy contracts concluded by the curator, were only concluded for the

time of the mandate of the curator, i.e. as long as the schismatic

situation of the church lasted.  Moreover, according to the

Administrative Court's decision of 29 June 1992 the disputes regarding

the applicant church had not yet been resolved.

      In these circumstances, the Commission, taking into account the

margin of appreciation left to the Contracting States, finds that the

interference complained of can reasonably regarded as necessary in a

democratic society for the protection of the rights of others.

      Consequently, there is no appearance of a violation of the

applicant church's right to freedom of religion guaranteed by Article 9

(Art. 9) of the Convention.

      It follows that this part of the application is manifestly

ill-founded within the meaning of article 27 para. 2 of the Convention.

4.    As regards the above-mentioned tenancy contracts, the applicant

church also invokes Article 1 of Protocol No. 1 (P1-1), claiming that

the elected organs of the applicant church had no possibility to use

the premises of the building owned by the church.

      Article 1 of Protocol No. 1 (P1-1) reads as follows:

      "(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.

      (2) The preceding provisions shall not, however, in any way

      impair the right of a State to enforce such laws as it

      deems necessary to control the use of property in

      accordance with the general interest or to secure the

      payment of taxes or penalties."

      The Commission, having regard to the principles established in

the case-law on Article 1 of Protocol No. 1 (P1-1) (cf. Eur. Court

H.R., James and Others judgment of 21 February 1986, Series A no. 98,

p. 30 para. 37; Tre Traktörer AB judgment of 7 July 1989, Series A

no. 159, pp. 22-23, para. 54), finds that the applicant church's

complaints on matters regarding the administration of its property by

a curator following the suspension of its power to act in the sphere

of secular law constituted a control of the use of its property.

      Accordingly, the second paragraph of Article 1 (Art. 1-2) applies

in this instance.  Having regard to the above findings with respect to

the complaint under Article 9 (Art. 9) of the Convention, the

Commission also considers that the measures complained of, namely the

conclusion of tenancy contracts by the curator and their subsequent

approval by the Austrian courts, were lawful and necessary to control

the use of the property owned by the applicant church in accordance

with the general interest.

      It follows that there is no appearance of a violation of the

applicant's rights under Article 1 of Protocol No. 1 (P1-1).

      This part of the application, therefore, is likewise 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 First Chamber         President of the First Chamber

      (M.F. BUQUICCHIO)                           (A. WEITZEL)