PARTLY DISSENTING OPINION OF JUDGE LAZAROVA TRAJKOVSKA

Unfortunately, I cannot share the opinion of the majority of my Fifth Section colleagues, and it is regrettable that they could not accept my views on the scope of Article 9. I find a violation of the applicant ’ s rights under Article 9 of the Convention.

I will start by referring to the Court ’ s settled case-law to the effect that freedom of thought, conscience and religion, as enshrined in Article 9, is one of the foundations of a “democratic society” within the meaning of the Convention. Here I will mention the cases of Metropolitan Church of Bessarabia and others v. Moldova (no. 45701/99, § 113, ECHR 2001-XII) and Kokkinakis v. Greece (judgment of 25 May 1993, § 31, Series A no. 260-A). The Court has also said that in a democratic society in which several religions coexist within the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and to ensure that everyone ’ s beliefs are respected (see Kokkinakis , cited above, § 33).

In the light of Article 9 of the Convention, religious pluralism is an important part of a democratic society. Freedom of thought, conscience and religion is also freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece , and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999 ‑ I). The Convention clearly stipulates that this right includes also the right to manifest religious belief, in worship, teaching, practice and observance.

However, in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial. It is this Court that established (see Serif v. Greece , no. 38178/97, § 53, ECHR 1999-IX) that the role of the authorities is to ensure that the competing groups tolerate each other. This is with the idea that only by neutral and impartial behaviour will a State preserve pluralism and the proper functioning of democracy.

In this particular case ( Leela F ö rderkreis E.V. and Others v. Germany ) the interference of the Government lay in not observing the requirement of neutrality in the exercise of their powers. It is clear that the applicant associations belong to a group of religious communities which have existed in Germany since the 1960s. Despite the fact that the applicant associations were not prohibited in all these years, the terms used by the German State agencies and in Government statements to describe the applicant associations ’ movement (“sect”, “youth religion”, “youth sect” and “psycho-sect”) had negative consequences for them. The adjectives “destructive” and “pseudo-religious” have also been used to describe them. This interference was not prescribed by law (Federal Constitution and Basic

Law) and the Government have not submitted any proof of the assumption that these religious communities were a danger to society. Instead, the Government ’ s statements are a clear indirect interference contrary to the obligation of neutrality required by Article 4 of the Basic Law and cannot be justified as “prescribed by law” and “necessary in a democratic society”.

According to its settled case-law, the Court leaves the States Parties to the Convention a certain margin of appreciation in deciding whether and to what extent interference is necessary, but that goes hand in hand with European supervision of both the relevant legislation and the decisions applying it. In this case there were no indications that the teachings of Osho or the methods employed by the applicant associations were contrary to the rights and freedoms of others or that public safety and public order were in danger.

PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA

I regret being unable to join t he majority ’ s view that imparting opinions, guidance or warnings on any beliefs may be seen as “a power of preventive intervention on the State ’ s part [ ... ] consistent with the Contracting Parties ’ positive obligations under Article 1 of the Convention ” (paragraph 99). The very notion of a State duty to “launch a large-scale campaign designed to ... stimulate a critical discussion” and “give official warnings“ of “the potential dangers” ( paragraph 8) of certain religious groups sounds familiar to anyone who experienced such “protection” for decades.

I fail to see the active role of the State in a pluralistic society as a participant in the public discussion of beliefs. In the absence of data on any specific risks, this notion appears to be in contrast with the principle of State neutrality in religious matters established in Kokkinakis v. Greece . In the fifteen years following 1998 the Court consistently held the view that any interference in freedom of thought, conscience and religion must have “ regard to what is at stake, namely the need to secure true religious pluralism, an inherent feature of the notion of a democratic society” ( Kokkinakis , § 31 ), and that “the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other” (see, for example, Serif v. Greece , § 53 , and Metropolitan Church of Bessarabia v. Moldova , § 115, amongst other authorities).

In the present case the majority pointed out that “ the States are entitled to verify whether a movement or association carries on, o s t ensibly in pursuit of religious aims, activities which are harmful to the population or to public safety ” . However, the Court has reiterated that the right to freedom of religion “ excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate” ( Manoussakis v. Greece , § 47) . The Respondent Government failed to demonstrate that the “need to secure religious pluralism” had been taken into consideration at any time before or during the impugned information campaign. There are neither facts, nor even submissions, indicating that prior to distributing warnings and information using the impugned expressions the authorities attempted to verify whether the applicants ’ activities were “harmful to the population or to public safety” . In my opinion the observation that “by providing people with explanations it considered useful at the time ... the German Government ... was aiming to settle a burning public issue and attempting to warn citizens against phenomena it viewed as disturbing” ( paragraph 94) does not suffice to conclude that the interference was in pursuit of or proportional to any of the legitimate aims under Article 9 § 2 of the Convention.

By accepting the findings of the Federal Constitutional Court on the legal ground for the information imparted on the motion of the authorities, the majority seems to interpret the Basic Law of Germany as one not only permitting, but also requiring State intervention in a domain where the Convention prescribes a duty to neutrality in the name of preservation of pluralism. A State duty to impart information on subjects of public concern may be reasonably interpreted as relevant in the event of urgent and objective risks such as imminent calamities and the like, which beliefs as such may hardly be considered to constitute. Furthermore, formulating such a duty in general terms provides no clarity or foreseeability as regards “the field it is designed to cover and the number and status of those to whom it is addressed” (see, among many other authorities, Hasan and C hau s h v. Bulgaria , § 84, with further references); nor does it “ indicate with sufficient clarity the scope of the discretion conferred on the competent authorities and the manner of its exercise” (see also Rotaru v. Romania , § 55). In contrast with these standards of clarity and precision, where a broadly defined provision authorises or even requires interference in religious matters it may legitimise the exercise of far-reaching discretion.

Noting that “ T he ... [impugned] terms, even if they had a pejorative note , were used ... quite indiscriminately for any kind of non-mainstream religion” , the majority concluded that the interference “did not entail overstepping the bounds of what a democratic State may regard as the public interest” (paragraph 100). In my view this is sufficient to agree that the applicants endured treatment to which the mainstream religion was not subjected – a fact for which the respondent Government offered no justification.

I find a violation of the applicants ’ rights under Articles 9 and 14 of the Convention.