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)