In its decision in the case of Hizb Ut-Tahrir and Others v. Germany (application no. 31098/08) the European Court of Human Rights has by a majority declared the application inadmissible. The decision is final. The case concerned the prohibition in Germany of the activities of an Islamic association, which advocates the overthrow of non-Islamic governments and the establishment of an Islamic Caliphate. The Court held in particular that under Article 17 (prohibition of abuse of rights) of the European Convention on Human Rights, it was impossible to derive from the Convention a right to engage in an activity aimed at destroying any of the rights and freedoms set forth in the Convention. The association could therefore not rely on Article 11 (freedom of assembly and association) to complain about the ban on its activities.
The first applicant, Hizb Ut-Tahrir (“the association”), whose name means “Liberation Party”, describes itself as a “global Islamic political party and/or religious society”. Established in Jerusalem in 1953, it has followers in a number of Middle Eastern States and among Muslims in Western Europe. Active in Germany since the 1960s, it has around 200 followers there. The second applicant, Shaker Hussein Assem, is an Austrian national who lives in Germany and was the association’s representative before the Court. The remaining 15 applicants are members or supporters of the association, most of whom reside in Germany.
In January 2003, the German Federal Ministry of the Interior issued a decision prohibiting the association’s activities in Germany, relying on the Law on Associations. It also ordered the association’s assets to be confiscated. The Ministry considered that Hizb Ut-Tahrir was a foreign private association operating on an international scale and that there existed no sub-organisation in Germany. According to the Ministry, the association’s activities were directed against the principle of international understanding and it advocated the use of violence as a means to achieve its political goals. Basing its decision on a number of publications attributed to the association, in particular articles published in a magazine, leaflets and information published on the association’s website, the Ministry concluded that the association denied the State of Israel the right to exist and called for its destruction as well as for the killing of Jews. The association advocated an “active Jihad”, targeting Islamic States and their governments, calling for their overthrow. In the Ministry’s view, the association was moreover not a political party, as it did not intend to stand for elections in Germany, and, as it pursued political rather than religious objectives, it was not to be considered a religious or philosophical community.
The applicants lodged an application against the prohibition order with the Federal Administrative Court. The Court separated the association’s application from the remainder of the case and declared it admissible. At the same time, it indicated to the remaining applicants that, under its established case-law, actions by individual members of a prohibited organisation were to be declared inadmissible. In view of that indication, the remaining applicants withdrew their applications. On 25 January 2006, the Federal Administrative Court rejected the association’s application as unfounded. In its judgment, it considered that, even assuming that the association could be regarded as a religious community, it remained subject to prohibition under Article 9 § 2 of the German Basic Law, as its activities were directed against the principle of international understanding. A multitude of public statements attributable to the organisation called for the elimination of the State of Israel through violence and for people to be killed. The association lodged a constitutional complaint against the decision, alleging in particular a violation of its right to assemble freely as a religious community. On 27 December 2007, the Federal Constitutional Court refused to admit the complaint for adjudication, holding that the association was not qualified to file a complaint as it did not have a registered address in Germany.
Complaints, procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 25 June 2008. All 17 applicants complained about the ban imposed on the association’s activities and about the confiscation of its assets. They relied on Articles 6 (right to a fair trial), 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 11 (freedom of assembly and association), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the European Convention on Human Rights and on Article 1 of Protocol No. 1 (protection of property) to the Convention.
The decision was given by a Chamber of seven, composed as follows:
Dean Spielmann (Luxembourg), President,
Mark Villiger (Liechtenstein),
Karel Jungwiert (the Czech Republic),
Boštjan M. Zupančič (Slovenia),
Ann Power-Forde (Ireland),
Angelika Nußberger (Germany),
André Potocki (France), Judges,
and also Claudia Westerdiek, Section Registrar.
Decision of the Court
As regards the complaints by the second to 17th applicants, the Court observed that they had withdrawn their applications before the Federal Administrative Court and had not lodged a constitutional complaint. The Court did not consider that they had been prevented from pursuing the proceedings before the German courts. In particular, the indication given to them by the Federal Administrative Court to the effect that their applications were inadmissible had only concerned the proceedings before that Court and had not prevented them from lodging a constitutional complaint. The Court recalled that a complaint to the German Federal Constitutional Court was an effective remedy capable of providing redress for a violation of Convention rights. It followed that the complaints lodged by those 16 applicants had to be rejected for non-exhaustion of domestic remedies.
As regards the association’s complaint that the ban on its activities breached its rights under Article 11, the Court referred to its case-law under Article 17 of the Convention (prohibition of abuse of rights). It had found, in particular, that the purpose of Article 17 was to make it impossible for groups or individuals to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention.
The Court observed that the German Federal Administrative Court had carefully analysed a substantial number of written public statements made by the association and its representative in the proceedings before the Court. It had found that the association called for the violent destruction of the State of Israel and for the banishment and killing of its inhabitants. In particular, its representative, Mr Assem, had repeatedly justified suicide attacks in which civilians were killed in Israel, and neither he nor the association had distanced themselves from that position during the proceedings before the Court. In view of those statements, the Court considered that the association attempted to deflect the right to freedom of assembly and association under Article 11 from its real purpose by employing that right for ends which were clearly contrary to the values of the Convention, notably the commitment to the peaceful settlement of international conflicts and to the sanctity of human life.
Consequently, the Court found that, by reason of Article 17, the association could not benefit from the protection afforded by Article 11. It followed that the complaint under that article was incompatible with the provisions of the Convention and therefore inadmissible.
The Court also declared the association’s complaints under the remaining articles inadmissible, as they were incompatible with the provisions of the Convention. It noted in particular that the association had not established that it had raised the complaint concerning the confiscation of its assets (Article 1 of Protocol No. 1) before the German courts. Furthermore, the dispute over the association’s right to continue its activities concerned a political, not a civil right. Therefore, Article 6 (right to a fair trial) was not applicable. Finally, since the association could not rely on Article 11 with respect to the prohibition order, it could not claim a violation of Article 13 (right to an effective remedy) or 14 (prohibition of discrimination) in that respect.
Press release ECHR 260 (2012) 19/06/2012