DISSENTING OPINION OF JUDGE SPANO

JOINED BY JUDGE RAIMONDI

I.

1. Having peeled away the layers of perceived factual complexity in this case, the main elements that remain are, in essence, the following .

2. During the communist era, religious entities in Hungary were deprived of their property in accordance with communist political doctrine regarding the practice of religion. After the fall of communism in 1989, the State decided to provide subsidies in return for previously confiscated Church properties and to enter into extensive collaboration with certain well ‑ established Churches . Also, flexible registration requirements were adopted under the 1990 Hungarian Church Act, applicable to newly established Churches . Churches registered under that Act were provided with material benefits from the State budget in the form of direct revenue from taxation and other indirect budgetary means.

3. The flexible registration framework and State- Church collaboration scheme under the 1990 Church Act had the consequence of creating a vast system of associative religious activity. By 2011, 406 religious entities had been registered in Hungary, the majority of them being partly financed, directly or indirectly, by the State.

4. To respond to this situation, the 2011 Church Act was adopted , which in effect brought the previous system to an end, reclassifying all registered religious entities as either incorporated Churches or organisations performing religious activities ; the former still received material benefits from the State budget, whilst the latter were no longer recipients of such benefits. The religious entities, which were required to apply for enhanced status as incorporated Churches for the purposes of receiving material benefits from the State, did not however lose their legal personality, nor were they under any threat of being dissolved as such unless they showed no interest in continuing their activities under the new legislation.

5. As I will explain more fully below, I am unable to agree with the Court that there has been interference with the applicants ’ rights for the purposes of Article s 9 and 11 of the Convention, as found by the majority. Today ’ s judgment enlarges the scope of Article 9, taken alone and in conjunction with Article 11, as regards associative religious activity, to an extent that conforms neither to the text or purpose of these provisions nor to their development in the case-law of this Court. I therefore respectfully dissent.

II.

6. Article 9 § 1 of the Convention provides, expressly, that the right to freedom of religion includes “freedom to change [one ’ s] religion or belief and freedom, either alone or in community with others and in public or private, to manifest [one ’ s] religion or belief, in worship, teaching, practice and observance”. As is clear from this text, the freedom to manifest one ’ s religion or belief forms the core of the right under Article 9. The concept of manifestation is elaborated upon further in the text, which states that it includes the freedom to worship , teach , practice or observe one ’ s religion or belief. To be considered a manifestation in this sense, the act must thus be closely connected to the belief. Any State measure that impedes, directly or indirectly, the ability of an individual, whether alone or in community with others, to manifest his or her religion or belief in the ways espoused in Article 9 § 1 will constitute interference with that freedom and must be justified under paragraph 2 of the same Article. Conversely, if an individual can, without undue hardship or inconvenience, manifest his or her religion or belief in spite of the measure alleged to constitute interference, no Article 9 issue arises in principle.

7. Since religious communities traditionally exist in the form of organised structures, Article 9 of the Convention has been interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. The autonomous existence of religious communities is thus considered indispensable for pluralism in a democratic society and an issue at the very heart of the protection which Article 9 affords (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000-XI, and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria , no. 40825/98, § 61, 31 July 2008).

8. The Court has consistently held that a refusal by the domestic authorities to grant legal-entity status to an association of individuals amounts to interference with the applicants ’ exercise of their right to freedom of association (see Gorzelik and Others v. Poland [GC], no. 44158/98 , § 52 et passim, ECHR 2004 -I ; Sidiropoulos and Others v. Greece , 10 July 1998 , § 31 et passim, Reports of Judgments and Decisions 1998 ‑ IV; and Religionsgemeinschaft der Zeugen Jehovas and Others, cited above, § 62). Where the organisation of the religious community was in issue, a refusal to recognise it has also been found to constitute interference with the applicants ’ right to freedom of religion under Article 9 of the Convention (see Metropolitan Church of Bessarabia and Others v. Moldova , no . 45701/99 , § 105, ECHR 2001-XII).

9. In addition to the guarantees of associative religious freedom under Article 9, interpreted in the light of Article 11 of the Convention, the right to freedom of religion excludes, in principle, any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate (see Hasan and Chaush , cited above, § 78). The State thus has a duty under Article 14 of the Convention to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs (see Metropolitan Church of Bessarabia and Others , cited above, § 116; Religionsgemeinschaft der Zeugen Jehovas and Others , cited above, § 97; and Savez crkava “Riječ života” and Others v. Croatia , no. 7798/08 , § 88, 9 December 2010). The obligation under Article 9, incumbent on the State ’ s authorities, to remain neutral in the exercise of their powers in the religious domain, and the requirement under Article 14 not to discriminate on grounds of religion, require that if a State sets up a system for granting material benefits to religious groups, for example through the taxation system, all religious groups which so wish must have a fair opportunity to apply for this status and the criteria established must be applied in a non ‑ discriminatory manner on objective and reasonable grounds (see, mutatis mutandis , Religionsgemeinschaft der Zeugen Jehovas and Others , cited above, § 92, and Ásatrúarfélagið v. Iceland (dec.), no. 22897/08, § 34, 18 September 2012).

III.

10. In paragraph 81 of the present judgment, the majority observes that the applicant communities had lawfully existed and operated in Hungary as Churches registered by the competent court in conformity with the 1990 Church Act. The 2011 Church Act “ changed the status of all previously registered Churches , except those recognised Churches listed in the Appendix to the 2011 Church Act, into associations. If intending to continue as Churches , religious communities were required to apply to Parliament for individual recognition as such ”.

11. The majority then refers, in paragraph 82, to two previous cases of the Court ( Moscow Branch of the Salvation Army v. Russia , no. 72881/01, § 67, ECHR 2006-XI, and Church of Scientology Moscow v. Russia , no. 18147/02, § 78, 5 April 2007) where the “refusal of registration” disclosed interference with a religious organisation ’ s right to freedom of association and also with its right to freedom of religion. On this basis, the Court concludes in paragraph 83 that the “measure in issue ... effectively amounted to the deregistration of the applicants as Churches and constituted interference with their rights enshrined in Article s 9 and 11”.

IV.

12. In the light of the text, the object and purpose of Article 9, interpreted in conjunction with Article 11, and the consistent case-law of this Court, I disagree that the applicants have successfully demonstrated, in the general and abstract way concluded by the majority, that the measure adopted by the Hungarian legislature in the form of the 2011 Church Act interfered, directly or indirectly, with their freedom to manifest their religion or beliefs in the sense referred to above (see paragraph 6 above). Neither the 2011 Church Act nor its amendments had, in general, any impact on the legal personality status of the applicants. They were eventually not deregistered as such, only reclassified for the purposes of receiving State benefits or being eligible for cooperative agreements with the State, and they were not under threat of being dissolved through State action , with the exception of those Churches not declaring their intent to continue with their activities. Thus, the two previous cases of the Court which the majority cites in paragraph 82 of the judgment (see paragraph 11 above) do not have a bearing on the resolution of whether any interference occurred in this case.

13. In reality, as the Court states unequivocally in paragraph 112, there is in fact “no indication that the applicants [were] prevented from practising their religion as legal entities, that is, as associations, a status which secures their formal autonomy vis-à-vis the State” as a result of the adoption of the 2011 Church Act or its amendments. In the light of this Court ’ s case-law on associative religious freedom under Article s 9 and 11, that should have been the end of the matter. Whether “adherents of a religious community feel like second-class citizens, for religious reasons, on account of the State ’ s less favourable stance towards their community” (see paragraph 109), is immaterial for the purposes of Article s 9 and 11, if they are unimpeded in manifesting their religious beliefs, in form and substance, within legally recognised associations. It should be pointed out that the Court, citing a prior opinion by the European Commission, has consistently held that a “State Church system cannot in itself be considered to violate Article 9 of the Convention” (see Darby v. Sweden , 23 October 1990, opinion of the Commission, § 45, Series A no. 187, and Ásatrúarfélagið, cited above, § 27).

14. It is important to highlight that the Court has never held before today that the decision of the State to withhold previously afforded material benefits from religious entities which are duly registered and afforded legal personality status constitutes, as such, interference with the freedom to manifest a religion or a belief under Article 9, interpreted in the light of Article 11. As is clear from the case-law of the Court, cited above in paragraph 9, an arguable issue under the Convention only arises in this regard if an applicant can demonstrate on the facts that in the exercise of its regulatory powers the State has withheld material benefits from a religious entity whilst providing benefits to others, and that this difference in treatment is not justified on objective and reasonable grounds. By its nature, an assessment of this kind under Article 14 of the Convention necessitates an individual examination of whether discrimination occurred. Therefore, the Court should have examined the applicants ’ complaint on the basis of Article 14 taken in conjunction with Articles 9 and 11 of the Convention. But the majority declined to examine this part of the complaint separately, a decision from which I dissented. Thus, I do not express my views on the Article 14 issue in this opinion.

15. In conclusion, this Court must be ever mindful that the scope of the rights and freedoms guaranteed by the Convention is not without limits. As rules of law, their scope must be defined within the text of the relevant provision, as interpreted reasonably in the light of their object and purpose. The unrestrained expansion of the substantive reach of the Convention runs the risk of undermining the legitimacy of this system of European supervision of human rights.

[1] . Names translated by the Registry.

[2] . As of 1 August 2013, the Act is applicable to ecclesiastical legal persons only.