CEDH · CASELAW;CLIN;ENG — 9 décembre 2010

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Croatia - 7798/08 Judgment 9.12.2010 [Section I] Article 14 Discrimination Inability of Reformist churches to provide religious education in schools and to conclude officially recognised religious marriages: violation   Article 1 of Protocol No. 12 Inability of Reformist churches to provide religious education in schools and to conclude officially recognised religious marriages: Article 1 of Protocol No. 12 applicable   Facts – The applicants were churches of a Reformist denomination registered as religious communities under Croatian law. They sought to conclude an agreement with the Government regulating their relations with the State, claiming that without such an agreement they were unable, inter alia , to provide religious education in public schools and nurseries, to have religious marriages celebrated by them recognised by the State, or to provide pastoral care in health and social-welfare institutions and prisons. The authorities informed the applicants that they did not fulfil the cumulatively prescribed criteria for the conclusion of such an agreement as set out in a Government instruction, in particular that they had not been present on Croatian territory since 1941 and did not have the required 6,000 adherents. Law – Article 14 in conjunction with Article   9: Even though the Convention did not impose on States an obligation to have the effects of religious marriages recognised as equal to those of civil marriages, or to allow religious education in public schools and nurseries, Croatia allowed certain religious communities to provide religious education in public schools and recognised religious marriages performed by such communities. Once the State had gone beyond its obligations and created additional rights falling within the wider ambit of any Convention right, it could not, in the application of such rights, take discriminatory measures within the meaning of Article   14. In the applicants’ case, the authorities had refused to conclude an agreement because the applicant churches failed to satisfy the cumulative historical and numerical criteria set forth in the Government’s instruction. However, the Government had entered into such an agreement with other religious communities which did not fulfil the numerical criterion either. This was because the competent commission had established that those churches satisfied the alternative criterion of being “historical religious communities of the European cultural circle”. The Government had provided no explanation as to why the applicant churches did not qualify under that criterion. Consequently, the Court concluded that the criteria set forth in the Government’s instruction had not been applied on an equal basis for all religious communities. Conclusion : violation (unanimously). Article 1 of Protocol No. 12: Under domestic law the State enjoyed discretion in deciding whether or not to conclude an agreement with a religious community enabling it to provide religious education and to have religious marriages celebrated before it officially recognised. The applicant churches’ complaint in this respect therefore did not concern “rights specifically granted to them under national law”. Nevertheless, the Court considered that this complaint fell within the third category specified by the Explanatory Report on Protocol No.   12 as they concerned alleged discrimination “by a public authority in the exercise of discretionary power”. Given the finding of a violation of Article   14 taken in conjunction with Article   9, it found it unnecessary to examine separately the complaint under Protocol No.   12. Conclusion : Protocol No. 12 applicable, but no separate examination necessary (unanimously). Article 41: EUR 9,000 to each applicant in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes