EGMR: Complaint about membership in a religious community without consent is premature

In its decision in the case of Perelman v. Germany (application no. 32745/17) the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final. The case concerned the complaint by a French couple that, on moving to Germany and declaring to the authorities that their religion was “Mosaic”, they were considered members of the Frankfurt Jewish community without their consent. The applicant couple, Mr and Mrs Perelman, were subsequently charged a church tax, despite the fact that they were unwilling to join a community whose orthodoxy contrasted with their own liberal beliefs. They relied on Article 9 (freedom of thought, conscience and religion) and Article 11 (freedom of assembly and association) of the European Convention on Human Rights. The Court found the couple’s complaint inadmissible for failure to exhaust domestic remedies because they still have an appeal pending before the Federal Constitutional Court.

Principal facts

The applicants, Bluma and Alain Perelman, are French nationals who were born in 1947 and live in Frankfurt a.M. (Germany).

When the couple moved to Frankfurt in 2002, they registered their residence with the local authorities. The registration form included a field about their religion and both indicated “Mosaic”. A few months later they received a letter from the Frankfurt Jewish community welcoming them as new members. They opposed membership. As the community did not accept their objection, the couple, as a precautionary measure, resigned their membership with effect from the end of October 2003.

In the meantime, however, the Frankfurt tax office had levied a church tax on the couple’s income for the period from November 2002 to October 2003. They thus brought an action to obtain a declaration that they had not been members of the Jewish community during that time. In a first judgment the Federal Administrative Court declared that, in the public sphere, the applicants’ membership could not have legal effect. Following a constitutional complaint brought by the Jewish community the Federal Constitutional Court quashed the judgment and remitted the case to the Federal Administrative Court which, in a second judgment, dismissed the applicants’ claim. It did however express serious doubts as to the compatibility of the Federal Constitutional Court’s finding with European Convention case-law on freedom of religion (Article 9).

In November 2016 the couple filed a constitutional complaint with the Federal Constitutional Court, referring to the relevant domestic law and Convention case-law; it is still pending.

Complaints, procedure and composition of the Court 

The application was lodged with the European Court of Human Rights on 28 April 2017.

Relying on Article 9 (freedom of thought, conscience and religion) and Article 11 (freedom of assembly and association) of the European Convention, Mr and Ms Perelman complained that the domestic courts’ acknowledgement of their membership of the Frankfurt Jewish community had not been based on their consent.

The decision was given by a Chamber of seven, composed as follows:

  • Erik Møse (Norway), President,
  • Angelika Nußberger (Germany),
  • Nona Tsotsoria (Georgia),
  • Yonko Grozev (Bulgaria),
  • Síofra O’Leary (Ireland),
  • Gabriele Kucsko-Stadlmayer (Austria),
  • Lәtif Hüseynov (Azerbaijan), Judges,
  • and also Milan Blaško, Deputy Section Registrar.

Decision of the Court

The Court considered it unnecessary to decide whether the facts alleged had disclosed any appearance of a violation of the European convention, because the matter could only be dealt with after all domestic remedies had been exhausted. It noted that Mr and Ms Perelman still had a constitutional complaint pending with the Federal Constitutional Court and that such a complaint was an effective and accessible legal remedy. In that situation, it could not rule out that the Federal Constitutional Court would accept the couple’s constitutional complaint for adjudication and re-examine the case. Nor could it consider that a constitutional complaint would be bound to fail solely because the Federal Constitutional Court had already ruled on the same case in a previous constitutional complaint.

The Court therefore concluded that the application had been premature and rejected it as inadmissible.

Press release ECHR 236 (2017) 06/07/2017

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