FOGLI DI LAVORO per il Diritto internazionale 3 ... - Giurisprudenza

FOGLI DI LAVORO per il Diritto internazionale 3/2008
powers. It is clear that the applicant associations belong to a
group of religious communities which have existed in Germany
since the 1960s. Despite the fact that the applicant associations
were not prohibited in all these years, the terms used by the
German State agencies and in Government statements to
describe the applicant associations' movement (“sect”, “youth
religion”, “youth sect” and “psycho-sect”) had negative
consequences for them. The adjectives “destructive” and
“pseudo-religious” have also been used to describe them. This
interference was not prescribed by law (Federal Constitution and
Basic Law) and the Government have not submitted any proof
of the assumption that these religious communities were a
danger to society. Instead, the Government's statements are a
clear indirect interference contrary to the obligation of neutrality
required by Article 4 of the Basic Law and cannot be justified as
“prescribed by law” and “necessary in a democratic society”.
According to its settled case-law, the Court leaves the States
Parties to the Convention a certain margin of appreciation in
deciding whether and to what extent interference is necessary,
but that goes hand in hand with European supervision of both
the relevant legislation and the decisions applying it. In this case
there were no indications that the teachings of Osho or the
methods employed by the applicant associations were contrary
to the rights and freedoms of others or that public safety and
public order were in danger.
PARTLY DISSENTING OPINION OF JUDGE
KALAYDJIEVA
I regret being unable to join the majority's view that
imparting opinions, guidance or warnings on any beliefs may be
seen as “a power of preventive intervention on the State's part
[...] consistent with the Contracting Parties' positive obligations
under Article 1 of the Convention” (paragraph 99). The very
notion of a State duty to “launch a large-scale campaign
designed to ... stimulate a critical discussion” and “give official
warnings“ of “the potential dangers” (paragraph 8) of certain
religious groups sounds familiar to anyone who experienced
such “protection” for decades.
I fail to see the active role of the State in a pluralistic society
as a participant in the public discussion of beliefs. In the absence
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