AS TO THE ADMISSIBILITY OF

                      Application No. 13712/88

                      by Serbisch-Griechisch-Orientalische

                         Kirchengemeinde zum Heiligen Sava in Wien

                      against Austria

        The European Commission of Human Rights sitting in private

on 2 April 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mr.  L. LOUCAIDES

             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 3 March 1988

by Serbisch-Griechisch-Orientalische Kirchengemeinde zum Heiligen

Sava in Wien against Austria and registered on 29 March 1988 under

file No. 13712/88;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant, the Serbian Orthodox Church in Vienna, is

represented by Rechtsanwalt Dr.  Robert Krepp of Vienna.  It complains

that its power to act in the sphere of State law was suspended by an

administrative decision of the competent Ministry and that a curator

was appointed who, with the approval of the competent courts, took

certain decisions concerning the administration of the church's

property which interfered with the internal matters of the church.

        The facts are submitted as follows.

        The Serbian Orthodox Church in Vienna was established in

1893.  Its statutes of 1906 as amended in 1951/52 were recognised by the

competent Ministry in 1957.  The church's legal status is now governed

by the Orthodox Churches Act (Orthodoxengesetz BGBl. 229/1967).

        In 1969 a new diocese for Western Europe was created by the

Serbian Orthodox mother church in Belgrade.  The Vienna church

accepted integration in this new diocese but a dispute subsequently

arose over the elaboration of revised statutes.  A compromise was

approved by the Patriarchate in 1974 subject to conditions which the

organs of the Vienna church rejected.  The revised statutes were

therefore never formally adopted nor brought to the notice of the

Ministry.  A group, which apparently accepted the demands of the

Belgrade Patriarchate, split off and established its own church.

        In view of the above dispute the Federal Ministry for

Education and Art (Bundesministerium für Unterricht und Kunst) refused

to take note of the church's elections in 1976 and 1982.  It

considered that there was an unresolvable conflict between State law

and ecclesiastical law: the elections had been based on the former

statutes, the only ones recognised by the State, which, however, no

longer corresponded to the situation in ecclesiastical law, based on

the 1969-1974 statutes as approved by the Patriarchate.

        The Ministry eventually decided on 21 December 1984 to suspend

the church's power to act in the sphere of State law (Handlungsfähigkeit

in äusseren Angelegenheiten) under Section 12 of the Orthodox Churches

Act, which permits such a suspension if the statutes do not correspond

to Section 8 of the Act or if the church fails to appoint organs to

represent it.  Certain representatives of the church, Mr.  V. (the

President of the general committee elected in 1982) and Mrs.  S. (the

Secretary of the general committee elected in 1982), lodged a complaint

on behalf of the church which the Administrative Court (Verwaltungs-

gerichtshof) declared inadmissible on 15 September 1986.

        The Ministry also applied to the District Court of Vienna City

(Bezirksgericht Innere Stadt Wien) to appoint a curator for the

church.  On 30 October 1985 the District Court appointed a practising

lawyer as curator.  On 5 June 1986 it further ordered that the curator

should take over the administration of the church's building and

recall the mandate of Mr.  J. who so far had administered it.  The

appeals of the church, represented by Mr.  V. and Mrs.  S., against

these two decisions were rejected.

        On 25 August 1986 the Regional Civil Court (Landesgericht für

Zivilrechtssachen) of Vienna confirmed the appointment of the curator,

limiting his powers to the sphere of State law.  In the Court's view

the property administration was in this sphere and the appointment of

the curator following the Ministry's decision to suspend the church's

power to act in law, which was binding on the courts, was therefore

lawful.  On 6 November 1986 the Supreme Court (Oberster Gerichtshof)

held that the Regional Court's interpretation of the legal conditions

for the appointment of a curator was not manifestly wrong.  It left

open whether the persons claiming to represent the church were

entitled to appeal.

        As regards the transfer of the property administration to

the curator the Supreme Court, on an appeal by Mr.  J., held on

12 February 1987 that the District Court had wrongly made orders in

non-contentious proceedings (transmission of documents and transfer of

bank account) addressed not to the church or its curator, but directly

to Mr.  J. as a third person.  The termination of Mr.  J.'s function as

property administrator was the curator's task who, in case of dispute,

was required to institute contentious court proceedings.  In the light

of this decision the Regional Court on 24 March 1987 declared the

church's appeal against the relevant parts of the District Court's

decision of 5 June 1986 inadmissible.  Insofar as the District Court

had ordered the curator to terminate Mr.  J.'s property administration,

the Regional Court rejected the church's appeal finding no indication

that the property administration by the curator interfered with the

church's religious freedom.

        On 4 June 1987, the Supreme Court rejected the church's

further appeal against this decision.  It held that the property

administration was not a matter of the church's internal affairs which

it could continue to carry out through its elected organs.  Such

administration could require acts in the sphere of State law which the

church could not perform if, as in the present case, its power to act

in that sphere had been suspended under Section 12 of the Orthodox

Churches Act.  The Supreme Court found that this provision respected

the freedom of religion and the equality before the law and therefore

it declined to institute norm control proceedings before the

Constitutional Court (Verfassungsgerichtshof), as suggested by the

church.  It accepted  that the property administration for a State

recognised church was subordinate to the promotion of the internal

aims of the church, which the curator had to take into consideration,

and that disputes over individual acts of the curator's property

administration had to be determined in each case.  The Supreme Court

again left open whether the persons claiming to represent the church

were entitled to appeal.

        Subsequently the curator concluded two tenancy contracts in

respect of the church's property, including the chapel, the church

offices and the residence of the priest, letting them to

representatives of the dissenting group which had split off from the

church.  The contracts were approved by the District Court on 30

October 1987 and 28 January 1988 respectively.  The District Court also

authorised the curator to sue the occupants of the premises, including

the former property administrator Mr.  J., in order to secure their

eviction.  The church appealed against both decisions, claiming that

they interfered with its internal affairs and its religious freedom.

        The District Court's decision of 30 October 1987 was confirmed

by the Regional Court on 1 June 1988.  It was subsequently quashed by the

Supreme Court on 26 January 1989 on the ground that it could not be

excluded that the lease might interfere with the church's internal

affairs, in particular as it was unusual to let the premises to a

tenant for functions which were the church's own tasks in exercise of

its freedom of religion.  The Supreme Court therefore referred the case

back to the District Court with the direction to further investigate

the appropriateness of the lease and its compatibility with the

church's statutory functions.  For the same reasons the Regional Court

on 11 October 1989 also allowed the church's appeal against the District

Court's decision of 28 January 1988 granting consent to the second

lease.  Furthermore it referred this second case back to the District

Court while refusing to revoke the curator's mandate as requested by

the applicant church.  The further proceedings concerning the approval

of both leases are still pending before the District Court.

        Despite these remedies, the tenancy contracts concluded by the

curator had become operative.  The former tenants were apparently

evicted and the new tenants took possession of the premises.  On

8 November 1987 the dissident church held a religious ceremony in the

church's building under supervision of the police which, outside the

building, controlled the persons wishing to participate and prevented

the entry of members of the applicant church.

        In the meantime, the applicant church, through its above

representatives, sought a revocation of the Ministry's decision of

21 December 1984.  In its application of 18 May 1987 it argued that

the conditions for suspending the church's power to act in law had

never been fulfilled.  As the Ministry did not take a decision within

the statutory time-limit of 6 months (Section 73 of the Code of General

Administrative Procedure - Allgemeines Verwaltungsverfahrensgesetz) the

church applied to the Administrative Court under Article 132 of the

Federal Constitution to determine its above application

(Säumnisbeschwerde).  On 26 September 1988 the Administrative Court

rejected the application as being inadmissible on the ground of res

iudicata, the church seeking a reconsideration of the Ministry's final

decision of 21 December 1984.

        On 10 January 1989 the church again applied for a revocation

of that decision, this time on the ground that the situation had

essentially changed because of the actions of the curator and in view

of the election of new organs by the church on 6 January 1987.  The

Ministry rejected this application by a decision of 10 November 1989.

It found no change as alleged in the situation but even a

deterioration in that a further group within the church had held

elections on 6 April 1986 and also claimed to represent the church.

Thus three groups now disputed each other's power to represent the

church and disagreed on the statutes.  The reasons for a suspension of

the church's power to act in the sphere of State law and for the

appointment of a curator, as provided for in Section 12 para. 2 of the

Orthodox Churches Act, therefore continued to exist.

        The applicant church, represented through the above persons,

intends to complain of this decision to the Administrative Court and

the Constitutional Court.

COMPLAINTS

        The applicant church claims that the suspension of its power

to act in the sphere of State law, the appointment of a curator called

upon to administer its property, including the chapel and church

offices, and the particular manner in which the curator, with the

consent of the competent courts, performed his functions, interfered

with its right to freedom of religion, as guaranteed by Article 9 of

the Convention, in a manner incompatible with para. 2 of this

provision.

        It submits that the above measures did not pursue any

legitimate purpose recognised in Article 9 para. 2 and that they were

in any event disproportionate.  Authority to suspend a church's power

to act in law is only provided for in the Orthodox Churches Act, but

not in the legislation concerning other religious communities in

Austria.  Furthermore, it is generally recognised that the property

administration of other religious communities belongs to their

internal sphere whereas this is not recognised as regards the

applicant church.  Finally, despite its successful remedies against

the approval of the tenancy contracts by the curator these contracts

are provisionally operative ("schwebend wirksam") and prevent it from

actually using its premises.

THE LAW

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

the meaning of Article 25 (Art. 25) of the Convention, alleges a

violation of 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

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."

        The right to freedom of religion may be invoked not only by

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

No. 7805/77, Church of Scientology v.  Sweden, Dec. 5.5.79, D.R. 16 p.

68; No. 8118/77, Omkarananda v.  Switzerland, 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) by the measures

complained of.

        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 but in the various proceedings at issue the Austrian

courts have accepted submissions of the persons who now address the

Commission on behalf of the applicant church.  In these special

circumstances the Commission accepts their procedural capacity to

bring an application on behalf of the church.

2.      The applicant church first complains that the suspension of

its power to act in law, the appointment of a curator for it and

the transfer of its property administration to him amounted to

an unjustified interference with its freedom of religion as guaranteed

by Article 9 (Art. 9) of the Convention.  By its related submission

that the possibility of suspension and appointment of a curator exists

only under the Orthodox Churches Act, but not under the legislation

applicable to other churches or religious communities in Austria

whose property  administration is regarded as an internal matter, the

applicant church also complains of discrimination contrary to

Article 14 (Art. 14) of the Convention.

        The Commission notes that the above measures were by their

terms limited to the sphere of State law and purported not to affect

the internal matters of the church with regard, in particular, to the

exercise of its freedom of religion.  However, the Commission may

leave open to which extent the applicant church's rights under

Articles 9 (Art. 9) and 14 (Art. 14) of the Convention might

nevertheless have been affected as in any event it has not exhausted

the domestic remedies with regard to its above complaints, as required

by Article 26 (Art. 26) of the Convention : It failed to lodge a

complaint with the Constitutional Court against the Ministry's

initial decision of 21 December 1984 and its complaint with the

Administrative Court was rejected on 15 September 1986 for failure to

comply with formal requirements of Austrian law.

        The church's application for a reconsideration of the

above decision of the Ministry cannot be regarded as an effective

remedy within the meaning of Article 26 (Art. 26) of the Convention, in

particular as this remedy was declared inadmissible by the

Administrative Court on 26 September 1988 (cf.  No. 7729/76, Agee v.

the United Kingdom, Dec. 17.12.76, D.R. 7 p. 164; No. 14038/88,

Soering v. the United Kingdom, Dec. 10.11.88).  Furthermore, the

church has not yet exhausted the remedies against the Ministry's new

decision of 10 November 1989.

        It is true that the applicant church has used the available

remedies against the appointment of a curator and against the

transfer of the property administration to him.  However, the

civil courts found themselves bound by the Ministry's above decision.

They observed that they were not competent to review this decision,

which could only be challenged before the Administrative and

Constitutional Courts, and that the appointment of a curator was only

a necessary consequence of this decision.  Moreover, in its decision

of 4 June 1987 the Supreme Court clarified that the curator's tasks

concerning the property administration were limited to the sphere of

State law and that they were subordinate to the promotion of the

internal aims of the church.

        The Commission considers that in these particular

circumstances the appointment of a curator for the church and the

transfer of the property administration to him were necessary

consequences of the Ministry's decision of 21 December 1984.  They

could have been effectively prevented only by the remedies against the

underlying administrative decision of the Ministry.  As the applicant

church did not exhaust all domestic remedies against that decision its

above complaints must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

3.      The applicant church also complains that the manner in which

the curator exercised his functions, in particular by concluding

tenancy contracts with representatives of a dissenting group of the

church, interfered with its rights under Article 9 (Art. 9) of the

Convention.   The Commission notes that, after the Supreme Court by

its decision of 26 January 1989, and the Regional Court by its

decision of 11 October 1989, quashed the consent given to the

tenancy contracts in question by the District Court, the proceedings

are now again pending before this Court.  It follows that the

domestic remedies have not  been exhausted in this respect either, as

required by Article 26 of the Convention.  This part of the

application must accordingly also be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

4.      Insofar as the applicant church has finally referred to the

consequences of the conclusion of the above tenancy contracts by the

curator, in particular the fact that it has been unable to use its own

premises, and that access of its members to a religious ceremony was

prevented by the police, the applicant has not shown that it availed

itself of any remedies.  This part of the application, too, must

therefore be rejected for non-exhaustion of domestic remedies.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)