PARTLY DISSENTING OPINION OF JUDGE STEINER

I voted against the finding of a violation of Article 9 of the Convention, read alone and in conjunction with Article 14, for the following reasons.

The applicants initially complained under Article 9 of the Convention about the non-recognition of the first applicant as a religious society and later under Article 14 in conjunction with Article 9 that the status conferred on it, that of a registered religious community, was inferior to the status of a religious society.

In my view the essential element for the examination of these complaints is that the first applicant was registered as a religious community on 20 July 1998. After that moment the applicants can clearly no longer maintain that the first applicant was refused legal personality and can therefore no longer claim to be victims of a violation of Article 9. It is true that the granting of legal personality took a considerable amount of time and it would have been preferable if this had happened earlier ; however , this aspect of the application has, to my mind, been considered sufficiently in the context of the applicants ’ complaint under Article 6 of the Convention .

As regards the period before that date, I again consider that the applicants cannot claim to be the victims of a breach of Article 9 of the Convention.

N either the first applicant nor the four other individual applicants were at any stage of the proceedings prevented from manifesting their belief in worship, teaching, practice and observance and they did not complain of any measures of interference with the first applicant ’ s internal organisation by S tate authorities, such as dissolution of the first applicant, removal of its ministers or other leading personalities or deprivation of property owned by it or premises used for religious offices or ceremonies. Rather, they argued that the first applicant, instead of existing as a legal body having legal personality, preferably that of a religious society, did not have and could not have had legal personality of its own but, on the contrary, had to resort to the subterfuge of availing itself of the legal personality put at its disposal by so-called “auxiliary associations”. If I were persuaded that this had been the only avenue open to the applicants I might have gone along with the majority in finding a breach of Article 9 but I do not find the arguments raised by the applicants in this connection persuasive. In my view there was a reasonable possibility that the first applicant could have directly acquired legal personality as an association ( Verein ) under Austrian law and that such status would have been by no means inferior to the status of a religious community that was actually conferred on it.

The applicants ’ contention that the first applicant did not have the possibility of using the legal form of an association for obtaining legal personality is based on a Constitutional Court decision of 1929. However, we can see from the facts that in this field the Constitutional Court is quite ready to change even long-standing case-law and the Government also

referred to two religious groups which actually established themselves in the form of an association before the Act on the Legal Status of Registered Religious Communities had entered into force. Lastly, the provision in section 2(4) of this Act, whereby the competent Minister, in the same decision by which he or she registers a religious community, has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned (see paragraph 47 of the judgment), would not have any meaning if an association could not be created with a view to pursuing religious aims, as seems to be the contention of the applicants. Having regard to the contents of the Act as described in detail in the judgment (see paragraphs 47-54), which essentially lays down rules for establishing, monitoring and dissolving a religious community and whose sole purpose is to confer legal personality on it, I cannot see how these rules are substantially different from the ones existing under Austrian law for establishing an association. Thus, given that the applicants had a reasonable possibility of obtaining legal personality for the first applicant even before its registration as a religious community and that even in the absence of this step no interference by the public authorities with the applicants ’ exercise of freedom of religion has been alleged, I cannot find that they can claim to be victims of a violation of Article 9 of the Convention.

As regards the applicants ’ complaint that the legal personality eventually conferred on the first applicant was of an inferior status to that enjoyed by religious societies , this complaint, in my view, relates r ather to various issues which are linked to the participation of the first applicant in public life, in the economic field or other issues of public and social concern such as the obligations of its ministers in the field of national defence, or the organisation and manag ement of public and private schools.

Although I appreciate that all these matters are of interest and concern to the applicant community and the individual applicants , I do not share the view of the majority that all these privileges (see paragraph 55 of the judgment) are essential for the exercise of its freedom of religion and form one consolidated body of rules. On the basis of that approach, it was only natural that the majority should state that an obligation to ensure that all religious groups had an opportunity to obtain this status was to be derived from Article 9 of the Convention, and consequently examined whether the conditions for applying for the status of a religious society were fair and equal.

I would have preferred a different approach. My starting point is rather that the right to freedom of religion – in particular, as in the present case, read in the light of Article 11 of the Convention – is that it essentially confers a right to legal personality which enables a religious group to create an internal sphere, shielding it against undue interference by the State or others, and a right to create, within that sphere, its own institutions which it considers appropriate for pursuing its aims and, at an external level, to

interact with others in order to obtain and protect the means it requires to pursue its goals. In the present case I consider that, through the granting of legal personality as a religious community to the first applicant, these criteria are met. As regards the various privileges granted to religious societies, which are spread out over different provisions of law and relate to very different fields of interest, I cannot see them as forming one consolidated body of rules which are to be seen as a “status”. Rather, I would have preferred the Court to examine on a case-by-case basis in concreto whether the examples cited by the applicants in order to demonstrate the difference in treatment between the first applicant and a recognised religious society – which do not contain any accounts of decisions actually taken by the Austrian authorities – constitute discrimination . For example, whether or not the first applicant is entitled to specific treatment under the provisions of tax law is a matter to be examined on the basis of a concrete decision taken by the competent Austrian tax authorities and after the available domestic remedies have been exhausted as required by Article 35 of the Convention (see Klass and Others v. Germany , judgment of 6 September 1978, Series A no. 28, pp. 17-18, § 33).

To my mind such a way of proceeding would be more con sistent with the Court ’ s competence, as defined by the Convention , in particular the principle of individual application enshrined in the Convention and the resulting refusal to accept an actio popularis ( see Open Door and Dublin Well Woman v. Ireland , judgment of 29 October 1992, Series A no. 246, p. 22, § 44; Norris v. Ireland , judgment of 26 October 1988, Series A no. 142, pp. 15-16, §§ 30-32; and S.L. v. Austria (dec.), no. 45330/99, 22 November 2001) or to examine legislation in abstracto ( see Eriksson v. Sweden , judgment of 22 June 1989, Series A no. 156, p. 23, § 54; Findlay v. United Kingdom , judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 279, § 67; and Fédération Chrétienne des Témoins de Jéhovah de France v. France (dec.), no. 53430/99, ECHR 2001-XI ).

Accordingly , I cannot find that there has been a breach of Article 9 of the Convention, read alone and in conjunction with Article 14 of the Convention.