2008

• July - August 2008 : Recent Case Law

In recent months two issues of case law have dominated Austrian religious law:

The Supreme Court ruled on wearing a niqab before a court (OGH 27th August 2008, 13 Os 83/08 t). The Accused had appeared before the court with her face veiled, which the Court considered a disrespectful act justifying her exclusion from the courtroom. According to the Court, the Accused failed to show that her behaviour represented anything but a politico-ideological demonstration, which has no place in a court. The Court found in the Penal Code authorisation to intervene in accordance with paragraph 2 of article 9 of the European Convention on Human Rights (ECHR). The European Court of Human Rights ruled on a petition by Jehovah’s Witnesses (31st July 2008, 40825/98) concerning the refusal of the Austrian public authorities to grant them the status of a "religious society" in public law. The Court considers that there was a violation, on the one hand, of Article 6, paragraph 1 of the ECHR (because the proceedings had lasted too long), and on the other hand, of Article 9 (the right to religious freedom).

Reading between the lines, the Court indicated that Austrian legislators will have to adapt their conditions for recognising religious societies under public law by abolishing requirements that are too strict and by taking into account the history and the social integration of applicants. These elements were not considered in this case, because in 2008 the community of Jehovah’s Witnesses had already fulfilled the two requirements for recognition as a religious society: existence as a registered religious community for at least ten years and a roll of at least 16,000 members (2% of the Austrian population).