This section provides a selection of comments and quotations from academics on the issue of recognition, the 1998 Registered Religious Communities Act and the more recent case law.
The Issue of Recognition
University Professor Dr Peter Leisching
Expert opinion paper
“Das Recht der Zeugen Jehovas auf Anerkennung als Religionsgesellschaft in Österreich”, 1990
“As explained above, there exists both a legal right for the applicant to be granted recognition, as well as an obligation upon the Office of Religious Affairs to grant it.”
University Professor Dr Erika Weinzierl
Zeugen Jehovas – Vergessene Opfer des Nationalsozialismus?, 1999
“Jehovah’s Witnesses are a Christian religious society, which is not yet officially recognised as such in Austria. […]
Jehovah’s Witnesses passed their acid test during the Second World War. They refused to pledge allegiance to Hitler, fight in the army and work in arms manufacture. Many of Jehovah’s Witnesses who were drafted into the army were executed for conscientious objection. Numerous Bible Students [as Jehovah’s Witnesses were then known] were taken to Nazi concentration camps, where a significant number starved to death or succumbed to disease. […]
Since that time, Jehovah’s Witnesses have been making intensive efforts to document their history, so hopefully it will soon be better researched and known. It is also to be hoped that the Jehovah’s Witnesses will finally receive the state recognition as a religious society to which they have long been entitled.”
The 1998 Registered Religious Communities Act
University Professor Dr Heinz Mayer
Expert legal opinion
“Zur Regierungsvorlage für ein Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften”, 1997
With the planned law, “the possibility of attaining recognition under the 1874 Recognition Act will be made considerably more difficult. When it enters into force, an additional prerequisite for recognition will be introduced, stipulating that a religious group must have already existed for at least twenty years, at least ten of which as a registered religious community. This ‘ensures’ that no recognition can be granted in the first ten years after this law comes into effect. This law therefore functions as a strict ‘recognition prevention act’ for this time period; the legislature is evidently aiming to create a legal basis for the, so far, unlawful practice of preventing recognition. […]
A summary of the draft shows the willingness to disregard essential constitutional principles without restraint and to prevent the recognition of religious societies under all circumstances for at least ten years. The unprecedented provision of Section 2 paragraph 3 easily allows for almost any other delay. The fact that ‘true religious pluralism [is] an inherent feature […] of a democratic society’ (Manoussakis and Others v. Greece, no. 18748/91, § 44 ECHR, 1996-IV) has gone unnoticed by those who composed the draft.
No consideration was given to the fact that most of the currently existing and recognised churches and religious societies would not be recognised according to the present draft. The draft thus makes state-church law regress to a state that we thought belonged to the distant past.”
University Professor Dr Christian Brünner
Foreword to Potz/Kohlhofer, Die „Anerkennung“ von Religionsgemeinschaften, Vienna 2002
“Against the cited background, I consider the 1998 Registered Religious Communities Act to be unconstitutional. There are several reasons to support this hypothesis.
The 1998 Registered Religious Communities Act violates the fundamental right to freedom of religion. […]
Section 11(1)(2) of the 1998 Registered Religious Communities Act, which sets the minimum number of members in order to obtain recognition at two per cent of the Austrian population (meaning around 16,000 persons), clearly conflicts with the principle of equality. If we compare this minimum number of members with the number of members in religious societies that have been legally recognised up to now and project this onto potential applicants, the intention of this provision is strikingly evident: legal recognition must be largely prevented in the future.”
University Professor Dr Herbert Kalb
“Die Anerkennung von Kirchen und Religionsgemeinschaften in Österreich”, in Potz/Kohlhofer, Die „Anerkennung“ von Religionsgemeinschaften, Vienna 2002
“The now required number of at least two per cent of the Austrian population would be about 16,000 according to the last census in 1991. Apart from Jehovah’s Witnesses, no faith community in Austria has this number of members. As a result, recognition of religious communities is no longer possible. Although recognition was enforceable, the legislature made the enforceability absurd. The circle of beati possidentes [those blessed with possession] is preserved amongst the recognised churches and religious societies, any expansion is rendered impossible.”
Recent Case Law
Dr Brigitte Schinkele
“Religiöse Bekenntnisgemeinschaften und verfassungsrechtlicher Vertrauensschutz”, JBl. 2002, 498 ff.
“The Federal Constitutional Court has no constitutional objections to [Section 11 paragraph 2 of the 1998 Registered Religious Communities Act] or to the tightening of requirements for recognition. The Court merely spoke of a ‘potential worsening’ that would be offset by ‘legal advantages’. An assessment which, in view of the real and serious impairment of the legal position of earlier applicants, not only causes dismay but must also be perceived as a mockery – and not just by those affected. […]
It is (will be) the task of the legislature and the highest court to develop a concept in conformity with the Constitution, according to which everything that emerges directly from fundamental rights cannot be reserved for religious communities with public-law status, which also implies a redefinition of the essence of public-law status. This is the necessary consequence of the comprehensive, fundamental right to freedom of religion and belief, which is a basic constitutional status. It is extremely regrettable that the development towards an Austrian law on religion that conforms to fundamental rights has suffered a serious setback due to the most recent decision of the Federal Constitutional Court.”
University Professor Dr Herbert Kalb
“Die Anerkennung von Kirchen und Religionsgemeinschaften in Österreich”, in Potz/Kohlhofer, Die „Anerkennung“ von Religionsgemeinschaften, Vienna 2002
“The Federal Constitutional Court sees the advantage in the fact that after ten years of probation as a registered religious community, defined by the Federal Constitutional Court as an ‘observation’ period, it is no longer necessary to examine whether a religious society exists at all in the event of a possible request for recognition.
With these comments, reminiscent of sophistry, the ‘right to recognition’ or rather the ‘right to prevent recognition’ is legally secured for the time being – the Strasbourg authorities must initiate changes.”
Dr Lukas Wallner
Die staatliche Anerkennung von Religionsgemeinschaften, Frankfurt/Main 2007
“Overall, the Federal Constitutional Court, by virtue of these decisions, has completely nullified the advances it made in previous proceedings in the field of recognition law by deeming Section 11 of the 1998 Registered Religious Communities Act, which practically represents the legislature’s response to this case law, as being constitutional in the areas examined – a major setback for recognition law and thus also for religious freedom in Austria.”