SAGER A OSTATNÍ proti Rakousku

FOURTH SECTION

DECISION

Application no. 61827/19
Philip SAGER and Others
against Austria

The European Court of Human Rights (Fourth Section), sitting on 22 November 2022 as a Committee composed of:

Armen Harutyunyan, President,
Anja Seibert-Fohr,
Ana Maria Guerra Martins, judges,
and Veronika Kotek, Acting Deputy Section Registrar,

Having regard to:

the application (no. 61827/19) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 November 2019 by the applicants listed in the appended table (“the applicants”), who were represented by Mr W. Renzl, a lawyer practising in Vienna;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns complaints under Articles 9, 11 and 14 of the Convention about the refusal of the Austrian authorities to register the “Church of the Flying Spaghetti Monster” as a religious community (religiöse Bekenntnisgemeinschaft) pursuant to the Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften; “Religious Communities Act”). The applicants are followers of the “Church of the Flying Spaghetti Monster”, so-called “Pastafarians” and representatives of the Austrian branch of the “Church”.

2. Under Austrian law, religious groups that do not already enjoy the public law status of a legally-recognised church or religious society (gesetzlich anerkannte Kirche oder Religionsgesellschaft) may apply for registration as a religious community under the Religious Communities Act (for a detailed description of the relevant domestic law, see Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, §§ 37‑55, 31 July 2008). For registration under the Religious Communities Act, sections 3 and 4 of the Act require proof of the content and practice of the religion, of a religious doctrine and the religious rights and duties of followers, as well as of at least 300 followers resident in Austria who are not affiliated with any other religious society or community.

3. On 11 June 2014 the Office for Religious Affairs (Kultusamt) of the Federal Chancellery rejected the applicants’ request to have the “Church of the Flying Spaghetti Monster” (for a description of this “Church”, its scriptures and other relevant information, see De Wilde v. the Netherlands (dec.), no. 9476/19, §§ 20‑33, 9 November 2021) recognised as a religious community. It held, in particular, that the “Church” lacked a religious doctrine and, judging from the supporting documents provided by the applicants, perceived itself as an ironical or critical movement with educational, scientific and political aims, rather than a religion. The applicants appealed and argued that they had provided sufficient proof of religious content and practice by way of its bylaws and the “Pastafarian Pastechism”, a document outlining the religious doctrine, scriptures and practice.

4. On 12 January 2015 the Federal Administrative Court (Bundesverwaltungsgericht) annulled the decision of the Office for Religious Affairs. It concluded, on the one hand, that the applicants’ request for registration was deficient as it did not, as required by the Religious Communities Act, show rites, regular religious services, dissemination of religious duties or the participation in its religious life of at least 300 followers residing in Austria. On the other hand, it held that the decision of the Office for Religious Affairs demonstrated grave defects in the determination of facts not permitting a conclusive decision on the matter.

5. On 5 June 2015 the Office for Religious Affairs issued a new decision after having posed additional questions to the applicants. The authority concluded that the “Church of the Flying Spaghetti Monster” did not fulfil the requirements of the Religious Communities Act, as it did not hold regular religious services or disseminate religious duties to followers and had not proved the existence of 300 active followers resident in Austria. Solely a list of 444 names had been provided, but no signed declarations by these individuals to prove their membership of the “Church” and their non‑affiliation with any other religious society or community.

6. The applicants again appealed and argued that the Religious Communities Act did not include a requirement of religious services. On 22 March 2018 the Federal Administrative Court, after hearing the applicants and their witnesses, dismissed the appeal. It concluded that although the “Church” possessed transcendental aspects, symbols and rudimentary teachings, it lacked organisational rules for ceremonial, religious and liturgic acts and the active participation of at least 300 followers resident in Austria, such as in religious services or the dissemination of religious duties.

7. On 5 July 2015 the applicants appealed to the Constitutional Court (Verfassungsgerichtshof) arguing that to limit the scope of the Religious Communities Act to “religious” communities was unconstitutional as it discriminated against non-confessional ideologies (Weltanschauungen). On 10 October 2017 the Constitutional Court declined to deal with the appeal for lack of constitutional questions and of prospects of success and transferred it to the Supreme Administrative Court (Verwaltungsgerichtshof). On 30 April 2019 the latter dismissed the appeal for lack of legal questions of fundamental importance as the decision of the Federal Administrative Court was also based on viable alternative reasoning (tragfähige Alternativbegründung), namely the failure to show the necessary number of followers.

8. While the proceedings to be registered as a religious community were still pending, on 26 March 2015 the applicants registered the “Pastafarian Association for the Promotion of Thoughts of the Flying Spaghetti Monster in Austria” (Pastafarischer Verein zur Förderung der Gedanken an das Fliegende Spaghettimonster in Österreich) as a regular association under the Associations Act (Vereinsgesetz). According to the applicants, the association was registered as an alternative pending the conclusion of the lengthy process for registration as a religious community.

9. The applicants complained under Article 9, alone and in conjunction with Articles 11 and 14 of the Convention, about the refusal to register the “Church of the Flying Spaghetti Monster” as a religious community. They submitted that the grounds for refusal of that status, such as the lack of religious rites or religious services, were not in accordance with the law nor with the right to freedom of thought, conscience and religion enshrined in the Convention. Additionally, they relied on Article 11, alone and in conjunction with Article 14 of the Convention, alleging that they were prevented from freely associating as a religious community and enjoying the benefits of that status, which is unjustifiably granted only to “religious” communities and not to non-religious ideologies.

THE COURT’S ASSESSMENT

10. At the outset the Court notes that at the heart of the dispute lies the applicants’ contention that the “Church of the Flying Spaghetti Monster” or “Pastafarianism” is a “religion” or “belief” within the meaning of Article 9 of the Convention and that it should therefore benefit from pertinent Convention guarantees. The Court will thus first address the claim raised by the applicants under Article 9 of the Convention.

11. The general principles relevant to this question have been summarised in De Wilde (cited above, §§ 50‑51) where the Court has held that, although the concept of “religion or belief” in the sense of being protected by Article 9 must be interpreted broadly, that does not mean that all opinions or convictions are to be regarded as such (see Pretty v. the United Kingdom, no. 2346/02, § 82, ECHR 2002‑III). The Court held that the right to freedom of thought, conscience and religion denotes only those views that attain a certain level of cogency, seriousness, cohesion and importance. However, provided this condition is satisfied – and when it has thus been established that Article 9 applies – the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see S.A.S. v. France [GC], no. 43835/11, § 55, ECHR 2014 and Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 81, ECHR 2013, with further references). In particular, in view of the very aims for which the Pastafarian movement had been founded, the Court did not consider Pastafarianism to be a “religion” or “belief” within the meaning of Article 9 of the Convention. Consequently, the Court held that Article 9 could apply neither to the “Church of the Flying Spaghetti Monster” nor to those who claimed to profess its doctrines (ibid., §§ 52‑55).

12. As regards the present case, the Court sees no reason to hold otherwise. It also notes that by holding that Pastafarianism perceived itself as an ironical and critical movement with educational, scientific and political aims, and lacked religious rites, duties and an active following in Austria, the Office for Religious Affairs and the Federal Administrative Court duly applied the above‑mentioned standards requiring a certain level of cogency, seriousness, cohesion and importance. The Court, for its part, sees no reason to deviate from the conclusions reached by the Office for Religious Affairs in its decision of 5 June 2015 or by the Federal Administrative Court in its decision of 22 March 2018, both of which appear carefully measured and not in any way arbitrary or illogical (compare De Wilde, cited above, § 53). Accordingly, the complaints under Article 9 of the Convention concerning the refusal to register the “Church of the Flying Spaghetti Monster” as a religious community are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

13. In so far as the complaint under Article 14 is invoked in conjunction with Article 9 of the Convention, the Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. Article 14 has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby (see Molla Sali v. Greece [GC], no. 20452/14, § 123, 19 December 2018). As already held above (see paragraph 12), the applicants’ complaint does not fall within the scope of Article 9 of the Convention. Consequently, no question can arise under Article 14 taken together with that provision (compare De Wilde, cited above, §§ 57‑59). This complaint is therefore also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

14. In their complaint under Article 11, alone and in conjunction with Articles 9 and 14 of the Convention, respectively, the applicants claim to have been prevented from freely associating as a religious community and to have been discriminated against as a non-confessional ideology (Weltanschauung) because the benefits of that status are only granted to “religious” communities. In this context, the Court reiterates that there is no right under Article 11 of the Convention for associations to have a specific legal status (see Magyar Keresztény Mennonita Egyház and Others v. Hungary, nos. 70945/11 and 8 others, § 91, ECHR 2014 (extracts)). The applicants did in fact successfully establish an association under Austrian law in 2015 (see paragraph 8 above). It is true that, where a State has created a status for religious communities entailing specific privileges, it must ensure that religious groups have a fair opportunity to apply for this status and that the criteria established are applied in a non-discriminatory manner (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 164, 26 April 2016). However, as Pastafarianism does not qualify as a religion within the meaning of the Court’s case‑law (see paragraph 11 above), no right to the status of religious community can be derived from Article 11 of the Convention. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

15. Turning to the complaint under Article 14 taken in conjunction with Article 11 of the Convention, the Court refers to its case-law on the lack of an independent existence of Article 14 of the Convention (see Molla Sali, cited above, § 123). In view of the above findings that the applicants’ complaint does not raise an issue under Article 11 of the Convention (see paragraph 14 above), the Court finds that no question can arise under Article 14 taken together with that provision. Consequently, this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 December 2022.

Veronika Kotek Armen Harutyunyan
Acting Deputy Registrar President

APPENDIX

List of applicants:

Application no. 61827/19