Föderation der Aleviten Gemeinden in Österreich v. Austria: the ECtHR’s silent expansion of the associational dimension of the freedom to manifest religion

by Thibaut Lesseliers

In the case of Föderation der Aleviten Gemeinden in Österreich, the European Court of Human Rights (‘ECtHR’, ‘the Court’) ruled on the Article 9 (freedom of religion) and Article 6 § 1 (reasonable time aspect of right to fair trial) complaints brought by an Alevi cultural association following the refusal of the Austrian authorities to grant it official recognition as a religious community. The Court ended up finding a violation of Article 9, but not of Article 6 § 1 ECHR. Judge Vehabović dissented.

The case is interesting because it confirms a trend in the Court’s case law towards an expansive interpretation of the associational dimension of the freedom to manifest religion. Interpreting Article 9 in light of Articles 11 and 6 ECHR, the Court has in previous cases recognised a ‘right to autonomous existence’ for religious communities as going to the heart of the protection offered by the freedom of religion. The right of religious communities to access legal personality has since long been recognised as an important aspect of this right and has consequently consistently received strong protection from the Court. The present case corroborates a trend in the Court’s case law towards assimilating the protection offered to the related issue of accessing privileged legal status to a similar level. The Court namely increasingly steps away from its traditional approach of treating this issue as an Article 9 j. 14 ECHR question paired with a broad margin of appreciation and inches towards recognising access for religious associations to privileged legal status as a positive obligation under Article 9 paired with a relatively restricted margin of appreciation for States.

Factual background

Alevism is a religious tradition (although it can also be defined in cultural, social or ethnic terms) originating in Türkiye. It has historical roots in Muslim traditions but is also characterised by heterodox elements that borrow from a variety of different belief systems (making it ‘syncretic’). Its categorisation as a sect within Islam or entirely outside of it is a matter of controversy between Alevi communities in Türkiye and internationally (see here). The Föderation der Aleviten Gemeinden in Österreich (‘FAGO’, ‘the applicant’) is an umbrella association of several Alevi cultural associations in Austria. It sought registration as a recognised religious community under the Religious Communities Act (‘RCA’). Such recognition comes with certain legal privileges, notably certain minor taxation benefits, permission to provide pastoral care in prisons and hospitals and the possibility of acquiring ‘religious society’ status after ten years of registration. Religious societies in turn are accorded more substantial tax breaks, and receive the status of ‘public law corporation’, which allows them to engage in certain public law activities, such as the provision of government-funded religious instruction in schools. One set of requirements on which the RCA makes registration dependent, relates to the statutes of the religious association under consideration. These requirements concern inter alia the inclusion of a presentation of the community’s religious doctrine, which must be distinct from the doctrine of already registered communities and the indication of criteria regulating the start and termination of membership. Deciding on a request for registration falls on the Federal Minister of Education and Cultural Matters (‘Minister’).

Starting in 2009, FAGO went through numerous rounds of requests for registration as a religious community (under changing names, which we will make abstraction of in our discussion). These consistently got rejected by the Minister, mainly on the grounds that the religious doctrines set out in the submitted statutes were not sufficiently distinguishable from those set out in the statutes of the ‘Islamische Alevitische Glaubensgemeinschaft in Österreich’(‘ALEVI’), an already recognised religious community. Apparently they were virtually identical, with the sole difference being the positioning of Alevism vis-a-vis Islam. ALEVI described its faith as Islamic, while FAGO defined Alevism as ‘an independent and syncretic faith with particular links to Islam’. After a long and complex procedural saga, in which FAGO repeatedly changed its statutes in an attempt to better comply with the RCA requirements, the case made it to the Vienna Regional Administrative Court. During the proceedings before this court, FAGO submitted two iterations of reviewed statutes, a 2015 version and a 2019 version drawn up during the proceedings. The 2019 version included a table that set out religious differences with ALEVI in greater detail than before. The Vienna Court upheld the Minister’s decision on the grounds that in the 2015 statutes, with the exception of the positioning of Alevism vis-a-vis Islam, the indicated doctrines appeared to be copied and pasted from those in ALEVI’s. In light of the repeated revisions of the statutes, the Vienna Court moreover questioned the sincerity of the doctrinal differences highlighted in the revised 2019 statutes. It had the impression that FAGO saw them merely as a means to achieve the goal of registration and it was unclear whether FAGO’s members were actually in favour of them. The Vienna Court also found the concept of membership in the statutes (‘any person professing Alevism and having his or her principal place of residence in Austria’) too vague, in that it would for example also qualify members of ALEVI as a member. Domestic appeals against this judgment were rejected.

In 2019, FAGO proceeded to file complaints under Articles 9 and 6 § 1 ECHR before the ECtHR. In 2020 it however also submitted a new request for registration, with yet another revised statute. In 2022 the Minister accepted the request, clarifying that the doctrine was now distinguishable from ALEVI’s and that there was no evidence that this doctrine did not exist in practice.

Judgment

Examining the Article 9 complaint first, the Court found a violation on essentially procedural grounds. It clarified that refusing to register FAGO as a religious community constituted an interference with the association’s freedom of religion. The fact that FAGO already enjoyed legal personality as an association and that its members were allowed to freely practice their religion did not matter because ‘if a State sets up a framework for conferring a special status on religious groups entailing specific privileges [here: recognition as a religious community], all religious groups which so wish must have a fair opportunity to apply for this, and the criteria established must be applied in a non-discriminatory manner’. It found no issues with the RCA provisions as such and hence found the interference to have been properly ‘prescribed by law’.

The Court focused the remainder of its Article 9 analysis on the necessity in a democratic society of the refusal to register. Here it held that ‘requiring a religious association applying for registration to distinguish itself from preexisting associations is in principle legitimate in view of the need not to create confusion in the eyes of the public. This may include the requirement that the statutes of a religious association clearly define its beliefs and rituals, so that the public can differentiate between the various denominations and in order to avoid confrontation between different religious communities’. The Court went on to scrutinise the reasoning of the Vienna Administrative Court, finding it insufficiently based on the legitimate consideration of preventing the rights of others against confusion. The Court repeatedly declared itself unable to understand the Vienna Administrative Court’s insistence on an alleged lack of credible commitment on the part of FAGO to the doctrinal differences from ALEVI which it had ultimately highlighted in its 2019 statutes. The ECtHR did not find the Vienna Court’s reasoning on this matter compelling on its own terms, referring to its refusal to hear witnesses brought forward by FAGO to corroborate its religious views and to it not taking into account the special circumstances of the case which had compelled FAGO to enact the repeated amendments (i.e. the need to differentiate itself from ALEVI, to whose statutes they apparently only got access late in the proceedings). Moreover, it condemned the Vienna Court for appearing to pass judgment on the applicant association for pursuing the aim of registration and for attempting to bring its statutes into compliance with the RCA. The ECtHR concluded that ‘[t]he Vienna Administrative Court’s reasoning with regard to the requirement of a distinct religious doctrine could not sufficiently justify its findings’. After also dismissing the Vienna Court’s reasoning on insufficiently clear membership criteria in FAGO’s statutes, for reasons of the Minister being estopped from invoking this argument at a very late stage in the domestic proceedings only, the Court concluded that ‘the manner in which the domestic authorities refused to register the applicant association as a religious community cannot be accepted as necessary in a democratic society’ and found a violation of Article 9 ECHR.

The Article 6 § 1 claim was dismissed by the Court for the reason that registration as a religious community (unlike procedures for accessing legal personality as such or cases involving property claims or non-pecuniary claims) did not constitute a civil right. The case hence fell outside of the scope of Article 6 § 1.

Commentary

This case needs to be appreciated in light of the Court’s case law on the right to autonomous existence of religious communities. Often overlooked in analyses of freedom of religion under Article 9 ECHR, this right actually has been one of the most robustly protected aspects of the otherwise porous freedom to manifest religion. Initially developed in Hassan and Chaush v. Bulgaria and Metropolitan Church of Bessarabia v. Moldova, this right, the primary holder of which is the religious association itself, is derived from reading Article 9 in light of Articles 11 and 6 ECHR. At its foundation is the idea that religions typically exist in the form of organisations and that protection under Article 9 would be illusory if these organisations themselves are not ensured an autonomous sphere of existence, free from State interference. The autonomous existence of religious communities thus understood has been specified by the Court to go to the very heart of Article 9 protection. The correlated State duty to this right has been indicated as one of neutrality and impartiality when acting in the sphere of religious organisation. The strongest protection flowing from this right to autonomous existence has traditionally pertained to religious communities’ access to legal personality. Being essential for the normal functioning of a religious community (renting places of worship, gaining legal standing to stand up for one’s interests before courts etc.), the Court interpreted the requirements of State neutrality in restricting such access very strictly. Only objectively justified criteria (relating to e.g. the democratic nature of the association’s goals or strictly formal questions such as setting out membership criteria) can be imposed as prerequisites for legal status. The Court moreover tends to accord the narrowest margin of appreciation in this regard and will very quickly find a violation of Article 9 if access to legal personality is denied (see here).

Relatedly, the Court has also appreciated schemes granting privileged status to certain religious organisations (such as Austria’s religious communities scheme in the case under discussion or, more generally, all schemes granting financial benefits or other entitlements over and above mere legal recognition) under the right to autonomous existence of religious communities. However, the State’s duty of neutrality has traditionally been interpreted more leniently in this sphere. In such cases, the Court clarified that Article 9 does not in itself grant religious associations a right to assistance from States or to any privileged treatment. The State’s duty of neutrality here hence only extends to one of non-discrimination (analysed under Article 9 j. 14 ECHR), where if a State does decide to set up a scheme of privileged status, 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 (see Religionsgemeinschaft der Zeugen Jehovas v. Austria). Because of the complex nature of state-church relationships, States were traditionally held to have a wide margin of appreciation in appreciating the need for differential treatment. Access to privileged status has hence traditionally been a less protected aspect of the autonomous existence of religious communities (see here).

In Magyar Keresztény Mennonita Egyhaz v. Hungary and Izzittin Dogan v. Turkey (GC), the Court has however started to increasingly assimilate access to legal personality and access to privileged status in its interpretation of religious communities’ right to autonomous existence. In Magyar Keresztény Mennonita, the Court found a violation of Article 9 taken by itself when privileged status was withdrawn from a number of religious organisations in Hungary. More far-reaching, in Izzittin Dogan a stand-alone violation of Article 9 was found when the Alevi community in Türkiye was denied the same privileged status allotted to the Sunni Muslim community in Türkiye. In both these cases, multiple dissenting opinions remonstrated that this approach amounted to interpreting the right to autonomous existence as including a de facto positive obligation on the part of States to grant privileged status to religious communities. This would go beyond what could reasonably be read into the right to manifest one’s religion under Article 9 ECHR, which entails only negative obligations for the State. Moreover, despite adopting this de facto positive obligation approach, by bringing it under the de iure negative test developed for cases regarding access to legal personality, the Court applied a narrow margin of appreciation to its analysis. What results is a very stringent duty of neutrality for States in the entire sphere of official recognition (including access to legal personality and granting privileged status) of religious communities, with negative and positive dimensions.

That the present case can be read as a continuation of this line of case law, is underscored by the dissenting opinion of Judge Vehabović to the judgment. He restates the objections of his dissenting opinion to the Izzettin Dogan judgment. He stresses that ‘Article 9 does not confer any right to a specific legal status’ and ‘that a wide margin is usually afforded to States when it comes to general measures of economic or social strategy’. Otherwise put: there is no positive obligation under Article 9 to grant religious communities a privileged status and if there were, the margin accorded to States in implementing it should be wide. Although somewhat obscured by the Court’s very procedure-based reasoning, we indeed find that rather than adopting the traditional Article 14 non-discrimination approach, the Court opts to analyse the case from the perspective of Article 9 taken by itself. While formally reiterating the Article 9 j. 14 test (that if a privileged status is introduced, ‘all religious groups which so wish must have a fair opportunity to apply for this, and the criteria established must be applied in a non-discriminatory manner’), the focus of inquiry is in fact not on non-discrimination but only on procedural fairness and on the objective justifiability of the established criteria. The sheer fact that privileged status is denied is namely construed as the interference, while no regard is had to the differential treatment of FAGO vis-à-vis ALEVI. Because this status concerns only a privilege and does not bear on the functioning of FAGO as a religious association, the underlying State obligation can moreover only be construed as a positive one.

The Court’s scrutiny is moreover rather strict. Not only does it pick apart the flaws in the proceedings before the Vienna Court, it also takes up the justifiability of the criterion applied by the Austrian authorities as a prerequisite for FAGO to access the privileged status of a religious community. While somewhat hiding behind the phrasing of being ‘unable to understand’ the emphasis of the Austrian authorities on the need for the actually held religious beliefs of FAGO and ALEVI to be distinct, the Court in effect makes clear that it does not consider such a requirement to be justified. A requirement of establishing distinguishable religious doctrines in the statutes submitted in the process of applying for privileged status is apparently only justified if it is construed in a formalistic manner. Such a requirement can in other words only be justified from the rather narrow concern of protecting the public against confusing the new religious community with already established ones. This removes other considerations (like striving for organisational efficiency or discouraging schism and conflict within religious denominations over strictly organisational matters) from play which a State might well have for thinking it apt to restrict its privileged treatment to one organisation for every set of communities organised around what are de facto the same religious doctrines and practices. It is therefore clear that the Court does not shy away from restricting both the procedural and substantive leeway States have in deciding under what circumstances it is apt to grant or deny privileged status to religious communities, i.e. that the Court accords a de facto narrow margin of appreciation.

With this case, the Court hence reaffirms a trend in its case law towards granting extensive protection to the associational aspect of freedom of religion interpreted as the right to autonomous existence of religious communities. Without formally changing its doctrines, it is inching closer to recognising access to privileged status for religious associations as a strongly protected right under Article 9, with a correlate  positive obligation on the part of States to grant privileged status to religious communities if such status exists in the legal system. Not granting such status is increasingly construed as an interference, justifiable only by reference to fair application proceedings and objectively justified access criteria, not by reference to the treatment of other religious associations. The margin accorded to States in deciding on the desirability of granting privileged status is moreover becoming narrow rather than wide. While arguably laudable for its increased focus on the impartiality of States in their behaviour towards different religious communities (but see contra the dissenting opinions in Magyar Keresztény Mennonita and Izzettin Dogan), the Court would do well to better reflect such rather significant changes in the interpretation of Article 9 more clearly in its stated doctrine. It is remarkable that almost ten years after the strong remonstrations by the dissenters in Izzettin Dogan and Magyar Keresztény Mennonita, this shift in doctrine is still left unexplicated.