Spanish Constitutional Court rules
Registration of Religions is a Right,
Not a Privilege

This approach contrasts sharply with attempts in certain countries such as Germany to deny fundamental rights to religious institutions and their parishioners and to initiate intrusive “security investigations”, based solely upon “conjecture” regarding the religion’s purposes and “suspicion” regarding future activities without any concrete evidence of wrongdoing.

Fourth, the Court determined that, in accordance with international human rights pronouncements, any definition of “religion” must be expansive and inclusive enough to incorporate: 1) theistic and non-theistic, and 2) new and minority religions within its ambit. Moreover, official discrimination directed at new or minority faiths constitutes a violation of core religious rights.

The Court arrived at these findings by relying upon international human rights authorities, including arguably the most important pronouncement by the United Nations on freedom of religion, Human Rights Committee General Comment No. 22 on Article 18 of the International Covenant on Civil and Political Rights, which guarantees the right to freedom of conscience and belief. The Court quoted with approval the paragraph of this General Comment in which the Human Rights Committee lays out a very clear prohibition regarding discrimination against any religion, including new religions.

“Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms belief and religion are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community.”

The Court also relied upon key authority regarding religious discrimination from the European Court of Human Rights in reaching its decision. European Human Rights Convention jurisprudence makes it clear that, in light of the right to freedom of thought, conscience and religion, any different treatment based on religion is inherently repugnant and suspect. That is the very reason why the European Court of Human Rights decided in Hoffman v. Austria, 17 EHRR 293 (1994), that any disparate treatment “based essentially on a difference in religion alone is not acceptable” under Article 14.

The Hoffman case dealt with minority religious discrimination directed at Jehovah’s Witnesses. It has been directly applied by the highest court of one European State to strike down religious discrimination against a Scientologist. On 23 August 1996, in the case In Re Fabio Rasp, the Austrian Supreme Court followed the European Court’s dictate in Hoffman to reach the conclusion that any attempt to treat Scientology differently from other religions “is contrary to the European Convention on Human Rights and is therefore in violation of the law.”

The Spanish Constitutional Court relied upon the Hoffman dictate in determining that any restriction upon religious freedom (which, it found, refusal to register an organization as a religious institution represents) must be:

based upon clear and concrete evidence justifying such action,

required by law,

in pursuit of a legitimate aim (such as the protection of health or morals),

applied only for the purposes for which it is prescribed,

directly related and proportionate to the specific need on which it is predicated.

The Court also noted that these limitations on official restraints on religious freedom are required to be “in absolute harmony with Article 9 of the European Convention on Human Rights”. As the refusal to register the UC did not meet these strict and narrow limitations on the right to religious freedom, it was unjustified and improper.

Conclusion

The Spanish Constitutional Court’s 15th February 2001 decision is an extremely important and precedential pronouncement on minority religious freedom. Its findings that registration as a religious organization is an essential element of religious freedom, that all beliefs are protected by the “core right” to freedom of thought, conscience and religion, that states may not narrowly define religion to justify discrimination against non-traditional religions or belief systems, and that official actions to restrict the right to freedom of religion must be strictly scrutinized and justified by concrete and compelling reasons are extremely significant and should have substantial impact in the struggle for minority religious tolerance in Europe.