Interdisciplinary Journal of Ecclesiastical Law
CASE OF ANCIENT BALTIC RELIGIOUS ASSOCIATION ROMUVA v. LITHUANIA
(Application no. 48329/19)
Art 14 (+ Art 9) • Discrimination • Denial of State recognition to a pagan religious association meeting eligibility criteria, on grounds incompatible with the State’s duty of neutrality and impartiality • Domestic law lacking safeguards against arbitrariness in decision making performed by a political body (the Parliament) • Involvement of a Catholic authority in parliamentary procedure
8 June 2021
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Ancient Baltic religious association Romuva v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Jon Fridrik Kjølbro, President,
Saadet Yüksel, judges,
and Stanley Naismith, Section Registrar,
Having regard to:
the application (no. 48329/19) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Ancient Baltic religious association “Romuva” (Senovės baltų religinė bendrija „Romuva“), a religious association registered in Lithuania (“the applicant association”), on 29 August 2019;
the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning Articles 9, 13 and 14 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 18 May 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the refusal by the Seimas (the Lithuanian Parliament) to grant to the applicant association the status of a State‑recognised religious association (valstybės pripažinta religinė bendrija).
2. The applicant association is a religious association (religinė bendrija) established under Lithuanian law with its seat in Vilnius. It was represented before the Court by Mr E. Valčiukas, a lawyer practising in Vilnius.
3. The Government were represented by their Agent, Ms K. Bubnytė‑Širmenė.
4. The Lithuanian law distinguishes between three types of religious associations: traditional religious associations, non-traditional religious associations recognised by the State, and other religious associations.
5. Any religious association may be registered and obtain legal personality, provided that it meets certain minimum criteria (see paragraphs 56and 57below). While all registered religious associations have the right to conduct religious services and engage in educational and charitable activities (see paragraphs 53and 61below), traditional and State‑recognised religious associations are entitled to certain additional privileges, such as the right to provide religious education in schools, the right to perform religious marriages that have the effect of civil marriages, and the right to be granted airtime by the national broadcaster for the purpose of broadcasting their religious services (see paragraphs 62-66below).
6. Nine religious associations are recognised by law as traditional (see paragraph 58below).
7. Non-traditional religious associations may ask to be recognised by the State, provided that they meet the requirements laid down by law (see paragraph 59below). The Ministry of Justice assesses whether an association meets those requirements and delivers its conclusion to the Seimas, which then makes the decision by adopting a resolution (see paragraph 60below).
8. In July 2001 the Seimas granted State recognition to the Evangelical Baptist Union of Lithuania. The resolution was adopted without much debate among members of the Seimas.
9. In 2001 the United Methodist Church of Lithuania asked the Seimas to grant it State recognition. The Ministry of Justice concluded that it met the requirements provided by law for it to be granted such recognition. However, at the time of the submission of the parties’ latest observations to the Court (on 2 February 2021), the Seimas had not yet voted on the matter.
10. In July 2008 the Seimas granted State recognition to the Seventh-day Adventist Church. Following the first Seimas debate on the draft resolution, the draft was not approved after several members of the Seimas expressed their concern that it was not clear what the main principles of that association’s faith were and how it differed from the Catholic Church. The resolution was returned for redrafting. It was presented for further debate and a vote several months later. During the brief debate, several members of the Seimas noted that the religious association had “received positive views from the Catholic hierarchy” and that the Archbishop of Kaunas in an official letter had expressed no opposition to it being granted State recognition. The resolution was adopted.
11. In November 2016 the Seimas adopted a resolution granting State recognition to the Union of Pentecostal Churches of Lithuania. That resolution was adopted without any debate.
12. In March 2017 the Seimas granted State recognition to the New Apostolic Church of Lithuania. The member of the Seimas who presented the relevant draft resolution stated that the religious association met all the requirements provided by law for it to be granted State recognition, and that it furthermore had a good relationship with the Catholic Church, recognised the Christian Bible and enjoyed respectful relations with representatives of other religions. It was also mentioned that the religious association had around 3,000 adherents. The resolution was adopted without much debate.
13. In 2018 another religious association, the Jehovah’s Witnesses, requested the Seimas to grant it State recognition. At the time of the submission of the parties’ latest observations to the Court (on 2 February 2021), the relevant authorities had not yet adopted any conclusions as to whether that association met the requirements provided by law, and the matter had not been discussed by the Seimas.
14. The applicant association was registered as a religious association in 2002. It comprises several religious communities (religinės bendruomenės) following the old Baltic pagan faith, one of which was officially registered in Lithuania in 1992.
15. The statute of the applicant association provides:
“1.1. The Ancient Baltic religious association “Romuva” (hereinafter “Romuva”) is a union of communities following the Baltic faith (Romuva communities), which seek to fulfil the aims of the original Baltic religion, and it carries out the tasks and functions provided in this statute ...
2.1. Romuva continues the traditions of the original Baltic faith (hereinafter “the Baltic faith”), it seeks peace and harmony with God and the Gods and with ancestors, nature and human beings, elevates the sanctity of nature as the most evident manifestation of divinity, and promotes the traditional moral Baltic lifestyle [and the finding of] one’s own way towards divinity, which has been created over many centuries.
2.2. The Baltic faith respects traditional and other State-recognised religions.
2.3. The source of Romuva’s faith is the uninterrupted Baltic spiritual tradition ...”
16. In 2017 the applicant association proposed to a group of members of the Seimas that they introduce a draft resolution granting it State recognition.
17. The Ministry of Justice examined whether the applicant association fulfilled the criteria provided by law in order to be granted State recognition (see paragraph 59below). It noted that State recognition was granted not to a faith as such but to a particular religious association; indeed, there were pagan communities in Lithuania which did not associate themselves with the applicant association. The latter association comprised three officially registered religious communities and nineteen unregistered religious groups. One of these religious communities had been registered in 1992, and that date had to be considered the start of the applicant association’s activity in Lithuania.
18. The Ministry observed that pagan and neo-pagan religious movements could be found in many European and North American countries; among their common features were a belief in the sanctity of nature, polytheism, interest in pre-Christian beliefs, and providing opposition (oponavimas) to the dominant religion of Christianity. The direct origins of the applicant association could be traced to an ethnographic movement established during the Soviet occupation, although it had not been able to openly function as a religious movement until the restoration of Lithuania’s independence. Referring to the applicant association’s statute and various academic writings, the Ministry observed that the applicant association sought to revive “the original Baltic faith”, finding elements of that faith in folk art and customs, as well as in available historical sources. Its beliefs were not strictly defined; the basic tenet of its religious ethic was the principle of harmony. Religious services were conducted at home, in nature, or in specially designated holy places. During those services, believers addressed their ancestors and various gods of the pre-Christian Lithuanian pantheon and made symbolic sacrifices.
19. The Ministry noted that the applicant association was the largest non-traditional religious group in Lithuania – in the national census of 2011, more than 5,000 people had indicated that they professed a “Baltic faith”, and between 2001 and 2011 that number had grown four times in size. It was the sixth largest religious movement in Lithuania, and it had more adherents than some of the traditional religious associations. According to surveys, it was viewed positively by society. Therefore, the Ministry concluded that the applicant association met the criteria for being granted State recognition: it had been functioning in Lithuania for more than twenty-five years, its teachings did not violate the law or public morals, and it had sufficient public support.
20. In April 2018 twenty-four members of the Seimas presented a draft resolution proposing that the applicant association be granted the status of a State-recognised religious association. The draft was examined by the Law Department of the Seimas Registry, the Seimas Committees of Culture, of Human Rights, and of National Security and Defence, and the Government. They all supported the draft.
21. On 25 June 2019 the Seimas held the first debate on the draft resolution to grant State recognition to the applicant association. Several members of the Seimas spoke in support of the draft and noted that various institutions had found that the applicant association met the criteria to be granted State recognition (see paragraphs 17-20above). Some emphasised the connection between the beliefs professed by the applicant association and the history and traditions of Lithuania. Some also affirmed the importance of freedom of religion and pluralism of beliefs in a democratic society.
22. Of those members of the Seimas who spoke against the draft, several raised doubts as to whether the applicant association had been operating long enough and whether it had sufficient public support, as understood in the case-law of the Constitutional Court (see paragraph 69below). An argument was made that it was too early to grant it State recognition, but that that question could be discussed again in the future, after more time had passed. It was also pointed out that the applicant association was already able to function as a religious association and to carry out its religious services, and that the question of State recognition did not concern its freedom of religion but the granting of additional privileges.
23. Other statements made against the draft resolution included the following:
(a) “... This association can hardly be considered a religious association, it would be a strange question to ask if they believe in [the God of Thunder] and his powers, how they imagine, or do not imagine, the afterlife, [and] what spirits they believe in ... If we are to deem that national and other heritage falls within the concept of religion, we will create unlimited possibilities to hollow out the concept of religion as such ...
Let us each ask ourselves: what is ethnicity and ethnic tradition? We all respect the same traditions, celebrate them, etc. Does this mean that we are all pagans or [members of Romuva]? No, the majority of us are Catholic ... At the moment [Romuva] appears more like an organisation for the preservation of national heritage, traditions and rites ... it is young and still developing; this question should be postponed and reconsidered at a later time.”
(b) “... Talking about religion, religious communities, and recognition of new religious communities is obviously rather subjective and not easy. I am Catholic and I do not intend to change my faith, and I do not advise you to either ... I will try to rely on documents ...
How and on what basis has it been established that Romuva forms part of Lithuania’s historical, spiritual and social heritage? Numbers show otherwise. What is it that indicates that Romuva enjoys particular support from the public? According to the national census of 2001, 79% of the Lithuanian population identified as Roman Catholic, and in 2011, 77.2% identified as Roman Catholic. It is true, as stated by the Ministry of Justice, that the number of adherents of Romuva has grown the fastest. In 2001, 1,270 Lithuanian nationals belonged to its religious communities – that is to say only 0.04% [of the total population]. In 2011, there were 5,118 – but that is still only 0.17%. Thus, according to quantitative criteria, we cannot say that Romuva is supported by society, because that is only a small part of society ...”
(c) ... I find it unacceptable that the old Lithuanian religion – paganism – is presented as in opposition to Christianity. For me, the greatest authority on this subject is A.V. Patackas ... one of the most prominent researchers of the old religions ... He stated very clearly that a Lithuanian’s relationship with Christianity is special because a person who believes in one god can easily understand and accept Christian ideals and fall in love with Christ. Patackas was convinced that the old Lithuanian religion had been linked to the concept of one god, and he saw polytheism as a certain departure from the old religion ...
Here is a quotation from G. Beresnevičius [a scholar in religious studies] ... to which I do not have much to add: ‘It is cheap to say that the new pagans are deranged or crazy. Not everything is so simple. Although there are more charlatans among them than among Catholics, not all of them are like that. From an objective point of view, for instance, [Romuva] is a religious association with all the attributes of a religion. But is it really paganism, the old religion? The answer is clear – no. That religion cannot be revived, just as we cannot restore the mentality and the social relations of those times ... The ethnographic traditions, customs and celebrations of the village were transferred from generation to generation, but that was not the old religion. It was a naturally formed rural lifestyle ... From at least the time of the Jesuit missions it was strongly linked to Christianity. Now, having removed the Catholic elements from rural ethnography, we claim to have found pure paganism, which is completely untrue.’ ...”
24. Eighty-three members of the Seimas, out of 141, were present. In a preliminary vote, which concerned the question of approving the text of the draft resolution, forty-six voted in favour, nineteen voted against, and eighteen abstained. The text was approved and the vote on whether to adopt the resolution was scheduled for 27 June 2019.
25. On 26 June 2019 the president of the Lithuanian Bishops’ Conference, which is the territorial authority of the Roman Catholic Church in Lithuania, sent a letter by email to a certain member of the Seimas, who was the chair of the parliamentary group For the Family. At that time, the group comprised eighty-one members of the Seimas drawn from several political parties. The member who received the letter forwarded it to the other members of that group.
26. The Bishops’ Conference stated that it had written the letter in response to repeated requests from members of For the Family parliamentary group to inform them about the teaching and position of the Catholic Church.
27. It argued that the very concept of an “ancient Baltic religious association” was misleading and had no scientific basis, because there had never been a universal and uniform “old Baltic faith” and Prussians, Lithuanians and Latvians had followed different divinities, rites and customs. The allegedly surviving fragments of that faith were nothing more than “superstitions and peasants’ customs, with a shade of magic”, and their importance to Lithuanian identity was exaggerated.
28. Furthermore, it submitted that the views of the applicant association did not constitute a comprehensive and finite set of beliefs, and that the only source of its teaching was a single book written by one of its founders, which was manifestly insufficient. Lastly, the Bishops’ Conference argued that public support for a religious movement should not be determined solely by the results of surveys but that it required wider study. The fact that during the national census some Lithuanians had identified themselves as being of a “Baltic faith” indicated only that they identified with certain religious aspects of neopaganism, but not necessarily with the views espoused by one of the many different pagan communities.
29. On 27 June 2019 the Seimas held a debate and a vote on the draft resolution. Many of the statements made for and against the draft concerned similar issues to those that had been raised during the first debate (see paragraphs 21and 22above). In addition, one member, who spoke in favour of the draft, pointed out that the Seimas had previously granted State recognition to a religious association that had had fewer adherents than the applicant association (see paragraph 12above). A few others criticised the views presented in the letter from the Bishops’ Conference (see paragraphs 25-28above). Some members of the parliamentary group For the Family (see paragraph 25above) spoke in favour of the draft and others spoke against it.
30. Statements made against the draft resolution included the following:
(a) “... A letter has been received from the Bishops’ Conference ... I will emphasise some of the arguments ... It is obvious that there has never been the uniform and universal Baltic religion that we are talking about here. Nor is there unity between the currently existing organisations. And, what is most important, if we legalise this cultural association as a religious one, then sooner or later we will hollow out the concept of a religious association, and any cultural association will be able to declare itself a religion, whereas a religion will be considered simply as a cultural association ...”
(b) “... It is the responsibility of the Seimas whether we will continue the policy of the Soviet regime, when ethno-culture and Christian traditions – which had co-existed in harmony until 1940 – were separated and set in opposition to each other. Sadly, today we may create such opposition again. I do not believe that anyone has an exclusive claim to the Lithuanian language or that any religious tradition may privatise ethno-culture. The opposition between Lithuanian-ness (lietuvybė) and Christianity, between ethno-culture and Christianity, which we want to adopt today, is indeed the continuation of the Soviet project. I am not saying that Romuva is a project of the Soviet times, but [I am saying that] that opposition, unfortunately, does come from the Soviet times, and thus I propose that the vote be postponed. Maybe the time will come when we can grant State recognition to this association, but definitely not today.”
(c) “... Let us not forget that the Russian KGB has, since Soviet times, been taking consistent action to strengthen paganism in Lithuania. Read the writings of [the Russian analyst] A. Dugin. He clearly states that Christianity is one of the foundations that need to be destroyed in Lithuania, and that that was also the cornerstone of the partisan movement. Those who submitted this draft are simply following instructions from the Kremlin, whether they want it or not. You are implementing what Dugin wrote about in his books in very large print.
Also, let us think about our relations with Poland ... Imagine how you would have looked the Pope in the eye a year ago if you had tried to adopt this draft back then; you would have probably felt ashamed ... The entire Christian world will laugh at us because we will be unique in this respect ...”
31. Eighty-six members of the Seimas, out of 141, were present. Forty voted for the draft, thirty-one voted against it, and fifteen abstained. The draft resolution was not adopted (see paragraph 67below).
32. In July 2019 the applicant association complained to the Seimas Commission on Ethics and Procedures that the statements made by one member of the Seimas, Ž.P., during the debate (see paragraph 30(c) above) had been false and defamatory. The applicant association submitted that it did not seek to destroy Christianity or threaten the rights of the Lithuanian Catholic Church, and that it had not been supported by the KGB during the Soviet occupation.
33. In September 2019 the Commission concluded that Ž.P. had knowingly spread false and defamatory claims. It observed that persons professing the old Baltic faith had been persecuted by the Soviet authorities, so his claims alleging links between the applicant association and the policies of the Kremlin had been false. The Commission also noted that, in Lithuania, implying the existence of any such links was likely to provoke hostility against the applicant association. Ž.P. was ordered to retract the offending statements.
34. Ž.P. lodged an appeal against the Commission’s conclusion. In July 2020 the Vilnius Regional Administrative Court upheld the Commission’s findings, but it ruled that there was no legal basis for ordering a member of the Seimas to retract statements made during a parliamentary debate. At the time of the submission of the parties’ latest observations to the Court (on 2 February 2021), the case was pending before the Supreme Administrative Court.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
35. Article 30 of the Constitution states that anyone whose constitutional rights or freedoms have been violated has the right to apply to a court and that compensation in respect of pecuniary and non‑pecuniary damage inflicted upon a person must be established by law.
36. Article 105 § 1 provides, inter alia, that the Constitutional Court has the power to examine whether legal instruments adopted by the Seimas comply with the Constitution.
37. Article 106 § 1 states, inter alia, that courts have the right to ask the Constitutional Court to examine whether the legal instruments listed in Article 105 § 1 comply with the Constitution (see paragraph 36above). Under Article 110, when the court has grounds to believe that a legal instrument which has to be applied in the case at hand is in conflict with the Constitution, it must adjourn the examination of the case and refer the matter to the Constitutional Court.
38. Article 106 § 4, as amended on 21 March 2019, states that every person has the right to ask the Constitutional Court to examine the compliance with the Constitution of the legal instruments listed in Article 105 § 1 (see paragraph 36above) if a decision adopted on the basis of those legal instruments has violated his or her constitutional rights or freedoms and if all legal remedies have been exhausted. The procedure for implementing this right must be established by the Law on the Constitutional Court (see paragraph 39below).
39. The Law on the Constitutional Court was amended on 16 July 2019 and the amendment entered into force on 1 September 2019. Following that amendment, Article 65 § 2 provides that any person has the right to lodge an application with the Constitutional Court asking it to examine whether, inter alia, a legal instrument adopted by the Seimas complies with the Constitution or with the domestic laws, provided that the following conditions are met: (1) a decision adopted on the basis of that legal instrument has violated that person’s rights or freedoms; (2) all legal remedies have been exhausted and a final court decision, which is not subject to any further appeal, has been adopted; (3) the application is lodged with the Constitutional Court within four months of the final court decision.
40. Article 18 § 2 of the Law on Administrative Proceedings states that the administrative courts do not have the competence to examine, inter alia, acts of the President, the Seimas, members of the Seimas, the Prime Minister or the Government.
41. Article 4 § 2 provides that when there are grounds to believe that a law or another legal instrument that is to be applied in respect of a particular case is contrary to the Constitution, the court shall adjourn the case and refer the matter to the Constitutional Court. The case shall be resumed after the Constitutional Court delivers a decision.
42. At the material time, the definition of “public administration” was provided in Article 2 § 1 of the Law on Public Administration. It was defined as the activity of subjects of public administration aimed at the execution of laws and other legal instruments: adopting administrative decisions, overseeing the execution of laws and administrative decisions, providing administrative services in accordance with the law, the administration of the provision of public services, and the internal administration of the subject of public administration.
43. The Constitutional Court has stated in numerous rulings that anyone who believes that his or her rights or freedoms have been violated must be able to apply to a court (including when the alleged violation has been committed by State institutions or officials), and that the right of access to a court may not be restricted or denied (rulings of 2 July 2002, 4 March 2003, 17 August 2004 and 16 January 2006).
44. The Constitutional Court has also held in many rulings that anyone who has sustained pecuniary or non-pecuniary damage as a result of unlawful actions must be able to claim compensation for that damage, even if it was inflicted by State institutions or officials (rulings of 30 June 2000, 19 August 2006 and 8 March 2018).
45. In a ruling of 13 May 2010 the Constitutional Court held that the Law on Administrative Proceedings, under which the administrative courts could not examine, inter alia, acts of the President or the Government (see paragraph 40above), did not preclude the administrative courts from examining such acts of those institutions that concerned the exercise of the functions of public administration or which may have caused damage to individuals:
“The particularities of the constitutional status of the Seimas, the President, the Government and courts, related to ... the separation of powers, determine, inter alia, that those institutions may not take over one another’s constitutional powers. Accordingly, when individuals ask courts to examine legal instruments adopted by the Seimas, the President or the Government, or other actions undertaken by these institutions, the courts may not take over the constitutional powers of [the latter institutions] – that is to say they may not adopt certain decisions in their stead or oblige them to adopt legal instruments related to the exercising of State governance.
Therefore, the provision of the Law on Administrative Proceedings ... [that courts may not examine] ‘activities of the President or the Government’ means activities through which [those institutions exercise] the functions of State governance. They may not be equated with activities that fall within the notion of ‘public administration’ ...
In this regard, the provision of the Law on Administrative Proceedings ... which provides that ‘the administrative courts do not have the competence to examine the activities of the President ... [or] the Government’ ... must be interpreted as meaning that the administrative courts may not examine those activities of the President or the Government that concern the exercise of the functions of State governance.
It must also be noted that activities undertaken by the President or the Government may violate individuals’ rights or freedoms, or cause damage ... [T]he administrative courts may examine cases concerning actions of the President or the Government (or their failure to act) that may have violated the rights or freedoms of individuals, including the question of compensation for any damage caused ...”
46. In several decisions on the admissibility of individual constitutional complaints the Constitutional Court held that individuals had the right to lodge such complaints only in respect of those legal instruments, indicated in Articles 105 and 106 of the Constitution (see paragraphs 36-38above), that had constituted the basis for a decision violating their rights. Where no such decision had been adopted, the individual could not apply to the Constitutional Court (decisions of 18 February 2020, 12 March 2020, 25 March 2020 and 13 May 2020).
47. In a decision of 11 February 2013 in case no. A-492-704-13 an extended panel of the Supreme Administrative Court held:
“The Supreme Administrative Court in its case-law has emphasised the importance of the universality and accessibility of judicial defence ... However, the right of access to an administrative court must be implemented in accordance with the procedure established by law; therefore, not just any person, and not with any kind of claim whatsoever, may apply to a court and demand that it examine a case ... The subject matter of an administrative case may only be a claim which is aimed at resolving an administrative dispute and which, if allowed, would ensure the protection of the violated rights or interests. Furthermore, a person has the right to apply to a court only if the examination of his or her claim falls within the competence of the courts. Not all matters are examined by the courts, but only those that fall within their strictly defined competence.”
48. In a decision of 20 May 2015 in case no. eAS-413-602/2015 the Supreme Administrative Court, citing the case-law of the Constitutional Court (see paragraph 45above), held that the administrative courts could examine acts of the Seimas which concerned functions of public administration or which may have caused damage to individuals.
49. In a decision of 20 May 2015 in case no. AS-850-662/2015 the Supreme Administrative Court held that the administrative courts could refer matters to the Constitutional Court only in respect of individual cases that they were examining. Therefore, if the administrative court could not examine a case, because that case did not fall within its competence, it could not refer such a case to the Constitutional Court either.
50. On several occasions the Supreme Administrative Court held that the administrative courts could examine complaints against decisions adopted by the Seimas, either because those decisions concerned the function of public administration or because they had caused pecuniary or non‑pecuniary damage to an individual. Examples of such cases include the following: the dismissal of State officials, a refusal to appoint individuals to official positions, a refusal to issue individuals with security clearance, and the revocation of such clearance (decision of 27 January 2012 in case no. AS442-21/2012, decision of 20 December 2012 in case no. A‑858‑2894/2012, decision of 8 January 2014 in case no. A 520 2401 13, and decision of 11 August 2016 in case no. eA‑2107‑502/2016).
51. By contrast, the Supreme Administrative Court found that the administrative courts could not examine complaints against decisions adopted by various parliamentary committees and commissions, dismissing petitions lodged by individuals; it held that those bodies were parts of the structure of the Seimas and their purpose was to assist the Seimas in fulfilling its functions relating to the governance of the State (decision of 28 January 2015 in case no. AS-168-556/2015 concerning the Committee on Human Rights, decision of 16 September 2015 in case no. AS‑1159‑492/2015 concerning the Commission on Ethics and Procedures, and decision of 3 May 2018 in case no. eAS-309-415/2018 concerning the Petitions Commission). The Supreme Administrative Court also held that the administrative courts could not examine a complaint concerning the lifting of the immunity of a member of the Seimas, because by adopting that decision the Seimas had exercised its right, stemming from the Constitution, to influence the constitutional status of a member of the Seimas; therefore, it did not constitute an act of public administration (decision of 20 May 2015 in case no. AS-850-662/2015).
52. Article 26 of the Constitution states, inter alia, that freedom of thought, conscience and religion may not be restricted, that no one may be compelled to choose or profess any religion or belief, and that the freedom to profess and spread a religion or belief may be limited only by law and only when it is necessary in order to guarantee the security of society or public order, people’s health or morals, or other basic rights or freedoms.
53. Article 43 provides, inter alia, that the State recognises the churches and religious organisations that are traditional in Lithuania, and that other churches and religious organisations may be recognised if they have support in society and if their teaching and practices do not contravene the law or public morals. Churches and religious organisations are free to spread their teaching, perform their ceremonies, and maintain houses of prayer, charity establishments, and schools for the training of ministers. They may conduct their affairs freely, in accordance with their canons and statutes. There is no State religion in Lithuania.
54. Article 38 § 4 provides, inter alia, that the State recognises the church registration of marriages.
55. Article 29 states that all persons are equal before the law, courts, and other State institutions and officials. Human rights may not be restricted and no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.
56. Article 4 § 1 of the Law on Religious Communities and Associations defines a religious community as a group of people pursuing the aims of their commonly-held religion. Article 4 § 2 defines a church or a religious association as a union of at least two religious communities that profess the same religion.
57. Under Article 11, a religious community may be registered (thereby obtaining legal personality) if it has at least fifteen members, and a religious association may be registered if it comprises at least two religious communities. In order to be registered, a religious community or association must provide to the Ministry of Justice its statute or articles of association, indicating, inter alia, its name, the basic tenets of its religious teaching, and its activities and purposes. Article 12 provides that the Ministry of Justice may refuse to register a religious community or association if it fails to provide all the required information, if its activities violate human rights and freedoms or public morals, or if another religious community or association with the same name has already been registered.
58. Under Article 5, the State recognises nine traditional religious communities and associations, which form part of Lithuania’s historical, spiritual and social heritage: Roman Catholic, Greek Catholic, Evangelical Lutheran, Evangelical Reformed, Russian Orthodox, Old Believer, Judaist, Sunni Muslim, and Karaite.
59. Article 6 § 1 states that other (non-traditional) religious associations may be recognised as forming part of Lithuania’s historical, spiritual and social heritage if they have support in society, and their teaching and practices do not contravene the law or public morals. The granting of State recognition to a religious association means that the State supports its spiritual, cultural and social heritage.
60. Article 6 §§ 2 and 3 provides that State recognition is granted by the Seimas. A religious association may request to be granted State recognition twenty-five years after its initial registration (nuo pirminio įregistravimo) in Lithuania. If the request is denied, a new request may be lodged after ten years. The Seimas decides whether to grant State recognition after receiving the Ministry of Justice’s conclusion on the matter.
61. Article 7 § 3 states that all religious communities and associations that have legal personality may receive aid from the State for their cultural, educational and charitable activities, in accordance with the law.
62. In line with Article 9 § 2, at the request of students or their parents, traditional and other State-recognised religious associations may provide religious education in public schools.
63. Article 3.24 of the Civil Code provides that a religious marriage performed by traditional and other State-recognised religious associations has the effect of a civil marriage.
64. Article 5 § 8 of the Law on the National Radio and Television states that the national broadcaster must provide traditional and other State‑recognised religious associations with an agreed amount of airtime in which to broadcast their religious services, in accordance with bilateral agreements.
65. Under Article 6 § 6 of the Law on State Social Insurance, ministers and monks of traditional and State-recognised religious associations are eligible to receive an old-age pension at the expense of the State, provided that they are not entitled to such a pension on other grounds and that their income does not exceed a certain level set by law.
66. Article 8 § 2 (10) of the Law on the Land Tax provides that land that belongs to traditional and other State-recognised religious associations is not subject to land tax.
67. Article 113 § 1 of the Statute of the Seimas provides that resolutions and other legislative acts of the Seimas are adopted by a simple majority of the votes cast, except where the Constitution or the Statute provides otherwise.
68. In its ruling of 13 June 2000 the Constitutional Court held:
“One of the fundamental individual freedoms is entrenched in Article 26 § 1 of the Constitution: freedom of thought, conscience and religion shall not be restricted. This freedom guarantees the possibility for people holding various views to live in an open, just and harmonious civil society. Not only is this freedom a self-contained value of democracy but also an important guarantee that the other constitutional human rights and freedoms will be implemented in a fully-fledged manner.
Freedom of thought, conscience and religion is also inseparable from the principles established in the Constitution: equality of persons, a prohibition on the granting of privileges, non-discrimination (Article 29 §§ 1 and 2), ... the secularity of State and municipal establishments of teaching and education (Article 40 § 1), the recognition by the State of traditional Lithuanian churches and religious organisations and other churches and religious organisations, provided that they conform to the criteria set out in the Constitution (Article 43 § 1), ... [and] the absence of a State religion (Article 43 § 7) ...
Freedom of [thought, conscience and religion] establishes ideological, cultural and political pluralism. No views or ideology may be declared mandatory and thrust on an individual – that is to say a person who freely forms and expresses his or her own views and who is a member of an open, democratic, and civil society. This is an innate human freedom. The State must be neutral in matters of conviction, it does not have any right to establish a mandatory system of views.
A systemic analysis of ... [the provisions of the Constitution] leads to the conclusion that the Constitution enshrines the principle of the separation of church and State. This principle forms the basis of the secularism of the Lithuanian State, its institutions and their activities. It also, together with [other provisions of the Constitution], determines the neutrality of the State in matters of worldview and religion (lemia valstybės pasaulėžiūrinį ir religinį neutralumą).
It must be noted that differentiating between the status of various churches and religious organisations is permitted only in accordance with the criteria provided in the Constitution ...”
69. In its decision of 6 December 2007, which provided an official interpretation of the ruling of 13 June 2000 (see paragraph 68above), the Constitutional Court held:
“[T]he provision ‘the State shall recognise ... other churches and religious organisations ..., provided that they have support in society and their teaching and practices do not contravene the law or public morals’ set out in Article 43 § 1 of the Constitution means that some churches and religious organisations that are not traditional in Lithuania may be distinguished from other non-traditional churches and religious organisations by the granting of a special status – State recognition. In view of the fact that [doing so] determines the status of that church or religious organisation within the State, as well as the fact that that special status may only be granted to those churches or religious organisations that have support in society, it must be concluded that the granting of this status is within the prerogative of the legislature.
The requirement [that other churches and religious organisations] ‘have support in society’ set out in Article 43 § 1 of the Constitution means that such support for the church or religious organisation in question must be strong and long-lasting; therefore, it may not be limited to a small group of people or a small part of society, or to only several decades of activities, or to one or a few generations. The said support ... should be such that it leaves no room for doubt. When deciding whether a certain church or religious organisation may be granted State recognition, it should be ascertained that there is support in society for that church or religious organisation ...
Therefore, under Article 43 § 1 of the Constitution ... churches and religious organisations that are not traditional may be granted State recognition by the will and decision of the Seimas. It must be emphasised that such recognition – unlike acknowledgment that a church or a religious organisation is traditional – can be revoked if a church or religious organisation that has been recognised by the State loses its support in society or if its teaching or services start to conflict with the law or public morals ...”
70. On 11 December 2019 the Constitutional Court accepted for examination a request lodged by a group of members of the Seimas for it to examine whether Article 6 § 2 of the Law on Religious Communities and Associations complied with Article 43 § 1 of the Constitution, in so far as it provided that religious associations could ask to be granted State recognition twenty-five years after their initial registration (see paragraphs 53and 59above). At the time of the lodging of the parties’ latest observations with the Court (on 2 February 2021), the Constitutional Court had not yet adopted a decision.
71. The relevant provisions of the 1966 International Covenant on Civil and Political Rights (ICCPR) read:
“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
72. On 27 September 1993 the UN Human Rights Committee adopted General Comment No. 22 concerning Article 18 of the ICCPR, the relevant parts of which read:
2. 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 reasons, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community.
9. The fact that a religion is recognized as a State religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents of other religions or non-believers ...
10. If a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of the ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under article 18 or any other rights recognized under the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it ...”
73. On 22 December 2011 the UN Special Rapporteur on freedom of religion or belief presented his annual report to the UN General Assembly, the relevant parts of which read (references omitted):
61. Should States provide for specific status positions on behalf of religious or belief communities, they should ensure that these provisions are conceptualized and implemented in a non-discriminatory manner ...
62. Unfortunately, the Special Rapporteur has received a lot of information on existing discriminatory practices and policies of States when it comes to providing specific status positions and concomitant privileges to some denominations, while withholding the same position from others. In many cases, the criteria applied remain vaguely defined or are even not defined at all. In a number of other cases, general reference is made to the cultural heritage of the country in which some religious denominations are said to have played predominant roles ... Reference to the predominant historical role of one particular religion can easily become a pretext for a discriminatory treatment of the adherents to other religions or beliefs ...
73. From the above considerations, the Special Rapporteur would like to make the following recommendations:
(i) When offering a privileged legal status position for certain religious or belief communities or other groups, such a specific status should be accorded in strict conformity with the principle of non-discrimination and should fully respect the right to freedom of religion or belief of all human beings; ...”
74. At its 59th Plenary Session, held on 18 and 19 June 2004, the European Commission for Democracy through Law (the Venice Commission) adopted the Guidelines for Legislative Reviews of Laws affecting Religion or Belief, the relevant parts of which read as follows (references omitted):
2. The definition of ‘religion’. Legislation often includes the understandable attempt to define ‘religion’ or related terms (‘sects’, ‘cults’, ‘traditional religion’, etc.). There is no generally accepted definition for such terms in international law, and many states have had difficulty defining these terms. It has been argued that such terms cannot be defined in a legal sense because of the inherent ambiguity of the concept of religion. A common definitional mistake is to require that a belief in God be necessary for something to be considered a religion. The most obvious counterexamples are classical Buddhism, which is not theistic, and Hinduism (which is polytheistic) ... To the extent that legislation includes definitions, the text should be reviewed carefully to ensure that they are not discriminatory or that they prejudice some religions or fundamental beliefs at the expense of others ...”
75. The applicant association complained about the Seimas’ refusal to grant it State recognition. It relied on Article 9 of the Convention taken alone and in conjunction with Article 14.
76. The Court considers that the complaint raised by the applicant association does not concern the denial of its legal personality or any restrictions on its ability to operate and to practise its religion (contrast Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 105, ECHR 2001‑XII). Therefore, being the master of the classification to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), the Court finds that this complaint falls to be examined under Article 14 of the Convention read in conjunction with Article 9. These provisions read as follows:
Article 9 of the Convention
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
77. The Government submitted that the applicant association had failed to exhaust the available domestic remedies. They stated that, under the relevant domestic law, anyone who believed that his or her rights had been violated had the right to complain to a court (see paragraphs 43and 44above).
78. Firstly, the applicant association could have lodged a complaint with the administrative courts, claiming compensation under Article 6.271 of the Civil Code for the damage caused by unlawful actions on the part of the State authorities. The administrative courts had the competence to examine such claims lodged against the Seimas (see paragraph 48above). Furthermore, the administrative courts could examine those acts of the Seimas that had been adopted in the course of exercising the function of public administration (see paragraph 48above) – in the Government’s view, the granting of State recognition to religious associations fell within that category.
79. Although the administrative courts could not themselves declare unlawful a legal instrument that had been adopted by the Seimas, they could refer the matter to the Constitutional Court (see paragraph 41above). The Government provided several examples of cases involving the dismissal of State officials or a refusal to appoint individuals to official positions, where administrative courts had requested the Constitutional Court to assess the lawfulness of decisions taken by the Seimas or the Government; some of those decisions were eventually declared unlawful by the Constitutional Court.
80. Lastly, had the applicant association complained to the administrative courts and been dissatisfied with their decisions, it would have been able to lodge an individual complaint with the Constitutional Court (see paragraph 39above). If the latter court had found the decision of the Seimas to be unlawful, that decision would have been ruled invalid and the applicant association would have been able to lodge a new application to be granted State recognition, without having to wait for ten years.
81. The applicant association argued that no effective domestic remedies had been available to it. It submitted that, in accordance with the Constitution, members of the Seimas exercised their mandate freely, and the courts could not oblige the Seimas to vote in a certain way or to adopt a specific decision. The applicant association contended that the case-law examples provided by the Government, which concerned the dismissal of or refusal to appoint State officials (see paragraph 79above), differed significantly from the present case.
82. It furthermore submitted that, at the date of its lodging the application with the Court (29 August 2019), it had not had direct access to the Constitutional Court, and that complaining to the latter court had thus not constituted an effective remedy. In any event, the applicant association considered that the Constitutional Court could not have provided it with adequate redress in respect of the violation of its rights.
83. The general principles concerning the requirement to exhaust effective domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014, and the cases cited therein).
84. At the outset, the Court observes that the Law on Religious Communities and Associations, which establishes the procedure for the granting of State recognition to religious associations, does not explicitly provide for any possibility to appeal against a decision of the Seimas denying such recognition; it only provides the right to lodge a new request ten years after the issuance of that decision (see paragraph 60above). The Government nonetheless submitted that the applicant association’s right to appeal against the impugned decision stemmed from the general right of access to a court, which was firmly established in the case-law of the Constitutional Court.
85. The Court will firstly address the Government’s submission that the applicant association could have lodged a complaint with the administrative courts. The Government argued that those courts could have examined the applicant association’s complaint because the impugned decision of the Seimas had been an act of public administration. Moreover, irrespective of whether the impugned decision of the Seimas had been an act of public administration or an act of State governance, the applicant association could have claimed compensation for pecuniary or non-pecuniary damage allegedly caused by that decision (see paragraphs 78and 79above).
86. With regard to the possibility of lodging a claim for damages, the Court reiterates that, in order to be effective, a remedy must be capable of remedying directly the impugned state of affairs (ibid., § 74). In the present case, the applicant association complained that its rights had been violated by the refusal of the Seimas to grant it State recognition. The Court considers that a remedy of a purely compensatory nature could not have provided adequate redress in respect of that complaint, in the absence of a possibility to have the impugned decision annulled or declared unlawful in a ruling which would be binding on the Seimas (see, mutatis mutandis, Petkov and Others v. Bulgaria, nos. 77568/01 and 2 others, § 79, 11 June 2009; Z.J. v. Lithuania, no. 60092/12, § 80, 29 April 2014; and Nazari v. Denmark (dec.), no. 64372/11, § 34, 6 September 2016). Therefore, lodging such a claim could not be considered to constitute an effective remedy within the meaning of Article 35 § 1 of the Convention.
87. Accordingly, it remains to be assessed whether proceedings before the administrative courts could have led to an examination of the lawfulness, and possibly the annulment, of the impugned decision of the Seimas.
88. In this connection, the Court notes that the Supreme Administrative Court has explicitly stated that, in line with the principle of the separation of powers, not all matters may be examined by the administrative courts, but only those which fall within the strictly defined competence thereof (see paragraph 47above). The latter court has also held that complaints against decisions adopted by the Seimas that relate to the exercising of State governance may not be examined by the administrative courts, nor may these courts refer such cases to the Constitutional Court (see paragraphs 49and 51above).
89. The Court reiterates that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy was an effective one and that it was available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018, and the cases cited therein).
90. In their observations on admissibility, the Government stated that the granting of State recognition to religious associations constituted the exercise of the function of public administration (see paragraph 78above). However, they did not elaborate on this point in any further detail (see the definition of public administration under the domestic law in paragraph 42above), or provide any case-law examples concerning cases that may be considered comparable to the present one (see, mutatis mutandis, Horvat v. Croatia, no. 51585/99, §§ 44-45, ECHR 2001‑VIII; Doran v. Ireland, no. 50389/99, § 68, ECHR 2003‑X (extracts); and Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 46, 9 December 2010). In the Court’s view, cases concerning the dismissal of or a refusal to appoint State officials (see paragraphs 50and 79above) differ too significantly from the present case to be considered relevant.
91. Furthermore, when addressing the merits of the case, the Government themselves appeared to acknowledge that the Seimas played an important role when granting recognition to religious associations on behalf of the State and thereby establishing a particular relationship between them and the State (see paragraphs 105and 106below). In addition, the Constitutional Court has held that the differences in the status of religious associations stemmed from the Constitution and that the granting of State recognition was the prerogative of the Seimas (see paragraphs 68and 69above). In such circumstances, the Court considers that it has not been established with a sufficient degree of certainty that the impugned decision of the Seimas fell within the category of acts of public administration and that it could therefore have been examined by the administrative courts.
92. In the light of the foregoing, the Court finds that the Government have not demonstrated that lodging a complaint against the Seimas with the administrative courts constituted a remedy that was available to the applicant association in both theory and practice, as required under Article 35 § 1 of the Convention.
93. The Court will next address the Government’s submission that the applicant association could have lodged an individual complaint with the Constitutional Court. The applicant association submitted that that remedy had only become available on 1 September 2019, whereas its application with the Court had been lodged on 29 August 2019.
94. In this connection, the Court reiterates that the requirement for an applicant to exhaust domestic remedies is normally determined with reference to the date on which the relevant application was lodged with the Court, although this rule is subject to exceptions that may be justified by the particular circumstances of the case, notably following the creation of new remedies (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts), and O’Neill and Lauchlan v. the United Kingdom, nos. 41516/10 and 75702/13, § 70, 28 June 2016).
95. In the present case, the Court observes that the amendment to the Law on the Constitutional Court, which established the exact procedure for the lodging of individual constitutional complaints, was adopted less than a month after the Seimas refused the applicant association’s request for State recognition (see paragraphs 31and 39above). That amendment provided that it would enter into force on 1 September 2019 and that individual constitutional complaints could be lodged within four months of the delivery of the final decision in respect of a particular case. Given the circumstances, the Court considers that the mere fact that the applicant association lodged its application with this Court a few days before the individual constitutional complaint became available could not, in and of itself, absolve it from the obligation to exhaust that remedy, as long as it was effective.
96. It remains to be examined whether an individual constitutional complaint could be considered to constitute an effective remedy in respect of the present case. The Court observes that, under the domestic law, the Constitutional Court may examine an individual complaint only after all remedies have been exhausted and a final court decision adopted (see paragraph 39above). The Government submitted that the applicant association ought to have complained to the administrative courts and, following the delivery of the final decision in the administrative case, it would have been able to lodge a constitutional complaint. However, the Court has already found that it has not been demonstrated that proceedings before the administrative courts constituted an effective remedy in the circumstances of the present case (see paragraphs 85-92above); therefore, the applicant association could not have been expected to initiate such proceedings (see, mutatis mutandis, Ismayilov v. Azerbaijan, no. 4439/04, §§ 39-40, 17 January 2008). It observes that the Law on the Constitutional Court does not provide for any possibility to lodge an individual complaint in cases that do not fall within the remit of other courts and in respect of which no other remedies are available, and the Government have not provided any case-law examples that might show otherwise (see paragraph 46above; compare and contrast Mendrei v. Hungary (dec.), no. 54927/15, § 33, 19 June 2018).
97. In such circumstances, the Court is unable to find that lodging an individual constitutional complaint could be considered an effective remedy in the present case, within the meaning of Article 35 § 1 of the Convention.
98. In the light of the foregoing, the Court rejects the Government’s objection of non-exhaustion of domestic remedies.
99. The Court furthermore notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
100. The applicant association submitted that the refusal to grant it State recognition had restricted its ability to freely pursue its religious activities; in particular, religious marriages officiated by its ministers did not have the effect of civil marriages and had to be repeated before the civil authorities; furthermore, it was not granted airtime by the national broadcaster for the purpose of broadcasting its religious services, which would have rendered them more accessible to the population (see paragraphs 63and 64above).
101. The applicant association submitted that it met all the criteria provided by law for being granted State recognition, and that that had been confirmed by the Ministry of Justice and the other State authorities that had examined its activities (see paragraphs 17-20above). However, when adopting the impugned decision, the members of the Seimas had not relied on the conclusions of the relevant authorities, but had based their decision on their own religious convictions and political interests: they had invoked the applicant association’s alleged threat to Christianity, quoted the arguments presented by the Lithuanian Bishops’ Conference in its letter to the members of the Seimas, and made baseless allegations about the applicant association having links to the Kremlin (see paragraphs 23and 30above). Moreover, the impugned decision might also have been influenced by the wish of some members of the Seimas to exact political revenge against one of the leaders of the governing coalition at the time, who was seen as favourable to the applicant association’s faith.
102. The applicant association furthermore submitted that it had been the first non-Christian religious association to have sought State recognition, and argued that it had been treated differently from other religious associations that had been in the same situation. For instance, the New Apostolic Church of Lithuania, which had been granted State recognition in 2017, had had only 422 adherents, and the Union of Pentecostal Churches of Lithuania, which had been granted State recognition in 2016, had had 1,852 adherents; nonetheless, in both of those instances the Seimas had granted them recognition without much debate (see paragraphs 11and 12above). The applicant association argued that the difference in treatment had not been justified and that it had been discriminatory.
103. Lastly, it contended that the requirement for a religious association that had been refused State recognition to wait for ten years before applying for such recognition again was disproportionate and could not be considered necessary in a democratic society.
104. The Government stated that, in their view, the application was inadmissible and that they would therefore refrain from addressing the merits of the case. However, they wished to “point out several aspects which might be of importance when deciding the case”.
105. The Government submitted that the granting of State recognition to a religious association established a particular relationship between the State and the said association, by providing the latter with certain privileges (see paragraphs 62-66above). However, even without obtaining such recognition, a religious association was able to profess its faith and to perform its religious services (see paragraphs 53and 61above).
106. The relevant domestic law provided that it was for the Ministry of Justice to examine whether a religious association met the formal criteria provided in that law. However, its conclusion was not binding on the Seimas, which had the exclusive prerogative to make the final decision in respect of such a case. Since the formal criteria, as laid down in Article 6 of the Law on Religious Communities and Associations (see paragraph 59above), were relatively easy to fulfil, it was the role of the Seimas to conduct a substantive assessment, thereby ensuring that the State did not grant privileges to religious movements that did not deserve them. In particular, it was essential that a religious association should be able to demonstrate the “substance of [its] religious teaching”; in that connection, the Government pointed to the existence of various movements parodying or mocking religion, such as Pastafarianism (the Church of the Flying Spaghetti Monster), Jediism, and Dudeism. They submitted that, since the granting of State recognition included certain additional pecuniary rights, the State was faced with the difficult task of striking a proper balance between the freedom of religion and the public interest.
107. The Government also stated that “in most Catholic countries of Europe, such as Spain, Poland, [and] Croatia ... no pagan movements enjoy[ed] [any] sort of privileged status” in their relationship with the State.
108. Furthermore, the Government contended that it could be disputed whether the applicant association actually fulfilled the requirements of Article 6 of the Law on Religious Communities and Associations. It had been registered as a legal entity in 2002 (see paragraph 14above), and thus the period of twenty-five years from its initial registration had not yet lapsed. Moreover, censuses that determined the number of people who adhered to the “Baltic faith” (see paragraph 19above) could not be taken as demonstrating support for the applicant association specifically, since there were other religious communities which also claimed to profess that same faith but were not members of the applicant association.
109. The Government also pointed out that various religious scholars had raised doubts as to whether there had ever existed a uniform “Baltic faith” and that the different Baltic tribes had had different sets of beliefs and rites.
110. With regard to the allegedly discriminatory effect of the letter sent by the Lithuanian Bishops’ Conference (see paragraphs 25-28above), the Government submitted that it had been sent to only one member of the Seimas, and that there was no evidence that it had been distributed beyond the parliamentary group For the Family. Even so, some members of that group had spoken in favour of granting State recognition to the applicant association (see paragraph 29above). Furthermore, even before the said letter had been sent, some members of the Seimas had raised issues similar to the ones addressed therein (see paragraphs 22and 23above). Thus, it could not be said that the decision of the Seimas had been “predetermined” by the position of the Bishops’ Conference.
111. The Government also suggested that the outcome of the vote might have been influenced by the wish of some members of the Seimas to exact “personal revenge” against the leader of the governing coalition at the time (see the applicant association’s arguments in this respect in paragraph 101above), and that it had therefore had nothing to do with the aforementioned letter.
112. The Court has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. Article 14 has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see Molla Sali, cited above, § 123, and the cases cited therein).
113. In order to determine whether Article 14 of the Convention is applicable, the Court must examine whether the facts of the present case fall within the ambit of Article 9.
114. The Government did not explicitly question the applicability of any provisions of the Convention to the present case. However, some of the arguments made in their submissions, as well as those presented during the above-mentioned parliamentary debates, appeared to imply that the freedom of religion or belief was not at stake: firstly, it was alleged that the applicant association was not a religious but rather a cultural association (see paragraphs 23(a), 30(a) and 109above); secondly, it was argued that the refusal to grant State recognition had not affected the applicant association’s ability to freely conduct its religious activities (see paragraphs 22and 105above). The Court will address these arguments in turn.
115. The Court reiterates that the Convention is designed to guarantee not rights that are theoretical or illusory but rights that are practical and effective. It has previously held that the right enshrined in Article 9 of the Convention would be highly theoretical and illusory if the degree of discretion granted to States allowed them to interpret the notion of religious denomination so restrictively as to deprive a non-traditional and minority form of a religion of legal protection (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 114, 26 April 2016, and the cases cited therein; see also the views of the UN Human Rights Committee and the Venice Commission in paragraphs 72and 74above).
116. It also reiterates that it is not for the Court to decide in abstracto whether or not a body of beliefs and related practices may be considered to constitute a “religion” within the meaning of Article 9 of the Convention, or to express an opinion on sensitive theological debates. In previous cases, when determining whether an applicant organisation could be described as “religious”, the Court, being mindful of the subsidiary nature of its role, relied primarily on the assessment of the domestic authorities in that respect (see Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, §§ 79-81, ECHR 2009, and İzzettin Doğan and Others, cited above, §§ 69-70).
117. In the present case, the Court firstly notes that neither the Government nor the domestic authorities disputed the existence in Lithuania of multiple communities which claimed to profess the old Baltic faith (see paragraphs 17and 108above). Some of those communities were officially registered in 1992 (see paragraph 14above). It also transpires from the documents in the Court’s possession that that faith was included in national censuses as one of the available options for individuals to describe their religious beliefs (see paragraph 19above). Furthermore, in 2002 the applicant association was registered as a religious association, after the domestic authorities had examined its statute and the basic tenets of its faith (see paragraphs 14and 57above and, mutatis mutandis, Church of Scientology Moscow v. Russia, no. 18147/02, § 64, 5 April 2007, and Mockutė v. Lithuania, no. 66490/09, § 121, 27 February 2018). Thus, the Court can only conclude that, until the debates of the Seimas which resulted in the impugned decision, the domestic authorities did not raise any doubts that the applicant association was indeed a religious association.
118. Moreover, in the Court’s view, a debate among religious scholars concerning the historical foundations, or lack thereof, for the applicant association’s beliefs (see paragraphs 23(c), 30(a) and 109above) does not suffice to deny the religious nature of those beliefs (see, mutatis mutandis, İzzettin Doğan and Others, cited above, § 134).
119. Accordingly, the Court does not consider that there are grounds to question the religious nature of the applicant association.
120. The Court observes that, in the present case, the refusal to grant State recognition did not affect the applicant association’s legal personality or its ability to operate and to practise its religion (see paragraph 76above). The status of a State-recognised religious association would have entitled it to a number of additional privileges, namely, the right for its ministers to perform religious marriages that would have had the effect of civil marriages, the right to provide religious education in schools, the right to be given airtime for the purpose of broadcasting its religious services, an exemption from the payment of land tax, and the right for its ministers to receive social insurance benefits at the expense of the State (see paragraphs 62-66above).
121. The Court has previously held that Article 9 of the Convention does not go so far as to entail an obligation on States to have the effects of religious marriages recognised as equal to those of civil marriages or to allow religious education in public schools; however, it has acknowledged that the celebration of a religious marriage and the teaching of a religion both represent manifestations of religion within the meaning of Article 9 and therefore fall within the ambit of that provision (see Savez crkava “Riječ života” and Others, cited above, §§ 56-58, and the cases cited therein).
122. Furthermore, the Court has accepted as falling within the ambit of Article 9 of the Convention the granting of various privileges to religious societies that are intended to ensure their proper functioning, such as exemption from the payment of electricity bills in respect of places of worship (see Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi v. Turkey, no. 32093/10, § 41, 2 December 2014), exemption from legal provisions governing the employment of aliens in religious societies (see Jehovas Zeugen in Österreich v. Austria, no. 27540/05, §§ 30-31, 25 September 2012), and measures relating to the taxation of individual donations (see Association Les Témoins de Jéhovah v. France, no. 8916/05, § 53, 30 June 2011). It considers that the same reasoning is applicable to the privileges that the applicant association stood to gain from State recognition in the present case (see paragraph 120above).
123. Accordingly, the Court is satisfied that the facts of the present case fall within the ambit of Article 9 of the Convention. As a result, Article 14 of the Convention is applicable.
124. The relevant general principles concerning compliance with Article 14 of the Convention have been summarised in İzzettin Doğan and Others (cited above, §§ 156-60, and the cases cited therein) and Molla Sali (cited above, §§ 133-37, and the cases cited therein).
125. The Court also reiterates that, as guaranteed by Article 9 of the Convention, the right to freedom of thought, conscience and religion denotes only those views that attain a certain level of cogency, seriousness, cohesion and importance. However, provided that this condition is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see İzzettin Doğan and Others, cited above, § 68, and the cases cited therein).
126. Furthermore, the Contracting States must be left a margin of appreciation in choosing the forms of cooperation with the various religious communities, and freedom of religion does not require them to create a particular legal framework in order to grant religious communities a special status entailing specific privileges. Nevertheless, a State that has created such a status must not only comply with its duty of neutrality and impartiality but must also ensure that religious groups have a fair opportunity to apply for this status and that the criteria established are applied in a non-discriminatory manner (ibid., §§ 112 and 164, and the cases cited therein).
127. The applicant association is a non-traditional religious association that sought the status of a State-recognised religious association. Under the domestic law, a religious association may apply for that status if it has been registered for at least twenty-five years, if it has sufficient public support, and if its teachings do not contravene the law or public morals (see paragraph 59above).
128. The Government in their observations disputed whether the applicant association met the requirements regarding the period of registration and public support (see paragraph 108above). However, the Court emphasises that the Ministry of Justice, which is the domestic institution tasked with carrying out that assessment, concluded that the applicant association met all the requirements laid down by law (see paragraphs 17-19above). The Court is of the view that in the present case there are no good reasons for it to substitute its own assessment for that of the competent domestic authority. In particular, it is not its role to question whether the Ministry of Justice correctly interpreted the domestic law when determining which date should be considered as the date of the applicant association’s initial registration (see paragraph 17above). Nor is it the role of the Court to decide what would demonstrate sufficient public support within the meaning of the domestic law. It observes that, on a few other occasions, the Seimas granted State recognition to religious associations which had fewer adherents than the applicant association, which indicates that the public support enjoyed by them was considered to be sufficient (see paragraphs 12, 19and 102above). Accordingly, the Court sees no grounds to question the conclusion reached by the Ministry of Justice to the effect that the applicant association met the requirements laid down by law for being granted State recognition.
129. The Court furthermore notes that the domestic law does not provide for any other requirements that a religious association must meet in order to be granted State recognition. Therefore, it is satisfied that the applicant association was in an analogous or relevantly similar situation to that of other non-traditional religious associations that sought State recognition and in respect of which the Ministry of Justice adopted a positive conclusion.
130. Several of the aforementioned religious associations were granted State recognition by the Seimas (see paragraphs 8and 10-12above), in contrast to the applicant association. Thus, the Court concludes that the applicant association was treated differently from other religious associations that were in an analogous or relevantly similar situation (see, mutatis mutandis, Savez crkava “Riječ života” and Others, cited above, § 86).
131. The Court reiterates that not every difference in treatment will amount to a violation of Article 14 of the Convention. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Molla Sali, cited above, § 134). The applicant association in its submissions before the Court appeared to imply that the different treatment had been based on its religious beliefs – it submitted that it had been the first non-Christian religious association to have sought State recognition and that associations belonging to Christian denominations had been treated more favourably by the Seimas (see paragraph 102above). The Court observes that the impugned decision of the Seimas was taken in the form of a parliamentary vote and did not include any reasons for rejecting the applicant association’s request (see paragraph 31above). However, the statements made by various members of the Seimas during the debates, as well as the Government’s submissions before the Court, indicate that the decision not to grant State recognition to the applicant association was at least in a large part motivated by arguments relating to the substance of its religious beliefs (see paragraphs 23, 30, 106, 107and 109above). Therefore, in the circumstances of the present case, the Court is prepared to conclude that the difference in treatment of the applicant association was based on its religion, which is one of the grounds explicitly enumerated in Article 14 of the Convention.
132. For the purposes of Article 14 of the Convention, a difference in treatment is discriminatory if it “has no objective and reasonable justification, that is to say if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (ibid., § 135).
133. The Court observes that neither the Law on Religious Communities and Associations nor any other legal instruments or case-law presented to it by the parties explicitly indicate the grounds on which the Seimas may refuse to grant State recognition to a religious association in respect of which the Ministry of Justice has adopted a favourable conclusion. Nor is it specified in the law whether the Seimas may challenge the Ministry’s conclusion on whether a religious association fulfils the criteria for State recognition. In the Court’s view, not only may this lead to arbitrariness in decision-making, but it also restricts the ability of religious associations to find out with sufficient certainty what criteria may be taken into account when deciding on their status and to demonstrate that they meet those criteria (see, mutatis mutandis, Metodiev and Others v. Bulgaria, no. 58088/08, § 44, 15 June 2017, and Svyato‑Mykhaylivska Parafiya v. Ukraine, no. 77703/01, §§ 128 and 130, 14 June 2007).
134. Furthermore, decisions on whether to grant State recognition to religious associations are taken by the Seimas, which is a political body. The Court has previously found that the political nature of parliamentary proceedings entails the risk that the granting or refusal to grant a particular status to a religious organisation may be related to political events and situations (see Magyar Keresztény Mennonita Egyház and Others v. Hungary, nos. 70945/11 and 8 others, § 102, ECHR 2014 (extracts)). Indeed, in the present case both the applicant association and the Government suggested that the impugned decision may have constituted a “personal revenge” on the part of some members of the Seimas against a specific politician (see paragraphs 101and 111above), which points to the possibility of precisely that risk.
135. Be that as it may, the Court reiterates that its task is not to assess the domestic law in abstracto, but to determine whether the manner in which it was applied to, or affected, the applicant gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, and the cases cited therein). Accordingly, what the Court will examine in the present case is whether the refusal of the Seimas to grant State recognition to the applicant association was based on a reasonable and objective justification. In view of the fact that the impugned decision of the Seimas did not include any reasons (see paragraphs 31and 131above), the Court will assess the arguments presented by members of the Seimas during the parliamentary debates.
136. The Court also emphasises that its task is not to determine whether the applicant association should or should not have been granted State recognition, but whether it was given a fair opportunity to apply for that status and whether the criteria established in the law were applied in a non-discriminatory manner (see İzzettin Doğan and Others, cited above, § 164, and the cases cited therein).
137. One of the arguments presented during the parliamentary debates was the alleged existence of links between the applicant association’s activities and the policies of the KGB or the Kremlin (see paragraph 30(b) and (c) above). However, the Court notes that that allegation was not supported by any relevant domestic authorities. The proposal to grant State recognition to the applicant association was examined by, among others, the Seimas Committee on National Security and Defence, which did not present any objections (see paragraph 20above); that conclusion was not addressed or refuted by the members of the Seimas who made the aforementioned allegations. Furthermore, in the proceedings instituted by the applicant association, those allegations were held to be unfounded by the Seimas Commission on Ethics and Procedures and the first-instance administrative court, albeit in decisions that had not yet become final at the time when the latest submissions were made to the Court (see paragraphs 33and 34above).
138. The Court also notes that the Government in their submissions did not argue that the applicant association may have posed any risk to national security (compare Metropolitan Church of Bessarabia and Others, cited above, § 125). Nor has the Court been made aware, since the registration of the applicant association as a legal entity, of any domestic proceedings concerning any alleged danger that it might pose (see, mutatis mutandis, Magyar Keresztény Mennonita Egyház and Others, cited above, § 104). Given these circumstances, the Court is unable to accept that it has been demonstrated that the refusal to grant State recognition to the applicant association was justified on national security grounds.
139. Another argument presented during the debates before the Seimas concerned doubts as to whether the applicant association’s activities were indeed religious, rather than cultural or ethnographical, and whether the existence of a “Baltic faith” had been sufficiently established (see paragraphs 23and 30above). In this respect, the Government submitted that, since the granting of State recognition accorded various privileges to a religious association, including certain pecuniary rights, it was necessary for the Seimas to ensure that associations that sought such recognition merited those privileges. In particular, the Seimas needed to verify whether the religious association had demonstrated “the substance of [its] religious teaching” (see paragraph 106above).
140. In this connection, the Court observes that neither the Seimas nor the Government argued that the applicant association’s beliefs did not attain the requisite level of cogency, seriousness, cohesion and importance (see İzzettin Doğan and Others, cited above, § 68), or that the applicant association could be compared to any of the parody religions referred to by the Government (see paragraph 106above). What was in question was the “religious” nature of those beliefs. However, the Court has already found that the applicant association had been registered as a religious association and that its religious nature had not been challenged by any relevant authorities until the impugned debates (see paragraph 117above). It cannot but conclude that the assessment that was carried out by the Seimas essentially questioned the legitimacy of the applicant association’s beliefs and the ways in which those beliefs were expressed, which, as the Court has repeatedly emphasised, is incompatible with the State’s duty of neutrality and impartiality (ibid.).
141. A third category of arguments presented during the debates before the Seimas concerned the applicant association’s actual or perceived relationship with Christianity. Several members of the Seimas referred to the majority of Lithuanians being Catholic, the historical importance of Christianity in Lithuania, and the impact which the granting of State recognition to a pagan religious association could have on Lithuania’s relations with “the Christian world” (see paragraphs 23and 30above). The Court also notes that on several occasions when granting State recognition to other non-traditional religious associations, the Seimas pointed to their good relationship with the Catholic Church (see paragraphs 10and 12above).
142. Furthermore, the Court does not wish to speculate regarding the effect which the letter from the Lithuanian Bishops’ Conference (see paragraphs 25-28above) may have had on the final decision of the Seimas. Nonetheless, the fact remains that that letter was circulated among more than a half of the members of the Seimas, it was explicitly referred to during the second debate, and its contents were discussed (see paragraph 30(a) above). Nor does it escape the Court’s attention that a letter from a Catholic authority had also been delivered to the Seimas and been quoted before the Seimas during the process of recognition being granted to another non‑traditional religious association; the favourable position expressed in the letter was presented as an argument for granting State recognition to that association (see paragraph 10above).
143. The Court has repeatedly emphasised that maintaining true religious pluralism is vital to the survival of a democratic society (see, among many other authorities, Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011, and the cases cited therein). The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. This State role is conducive to public order, religious harmony and tolerance in a democratic society, and can hardly be perceived as being likely to diminish the role of a faith or a Church with which the population of a specific country has historically and culturally been associated (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 132, 3 May 2007). Moreover, the UN Human Rights Committee and the UN Special Rapporteur on freedom of religion or belief have likewise emphasised that the existence of a majority or a historically predominant religion cannot justify discrimination against minority religious groups (see paragraphs 72and 73above).
144. Furthermore, where the exercise of the right to freedom of religion or of one of its aspects is subject under domestic law to a system of prior authorisation, involvement in the procedure for granting authorisation of a recognised ecclesiastical authority cannot be reconciled with the State’s duty of neutrality and impartiality (see Metropolitan Church of Bessarabia and Others, cited above, §§ 117 and 123).
145. Accordingly, the Court is unable to accept that the existence of a religion to which the majority of the population adheres, or any alleged tension between the applicant association and the majority religion, or the opposition of an authority of that religion, could constitute objective and reasonable justification for refusing State recognition to the applicant association. In this connection, it notes that, in line with the case-law of the Lithuanian Constitutional Court, the principle of the separation of church and State forms the basis of the secularism of the Lithuanian State, its institutions and their activities; no views or ideology may be declared mandatory and thrust on an individual, the State must be neutral in matters of conviction and it does not have any right to establish a mandatory system of views (see paragraph 68above).
146. Lastly, with regard to the Government’s contention that in most Catholic countries of Europe no pagan movements enjoy any sort of privileged status in their relationship with the State (see paragraph 107above), the Court observes that it has never held in its case-law that the scope of the States’ margin of appreciation (see paragraph 126above) could be broader or narrower, depending on the nature of the religious beliefs (see Mockutė, cited above, § 129). Therefore, the difference in the treatment of the applicant association compared to that of other religious associations in a similar situation could not be justified by the nature of its faith.
147. In the light of the foregoing considerations, the Court concludes that, when refusing to grant State recognition to the applicant association, the State authorities did not provide a reasonable and objective justification for treating the applicant association differently from other religious associations that had been in a relevantly similar situation, and the members of the Seimas who voted against the granting of State recognition did not remain neutral and impartial in exercising their regulatory powers.
148. Having reached that conclusion, the Court considers that in the present case it is not necessary to examine whether the fact that a new application for State recognition may only be lodged in ten years’ time also violated the applicant association’s rights under the Convention.
149. The Court holds that there has been a violation of Article 14 of the Convention read in conjunction with Article 9.
150. The applicant association complained that it had not had an effective remedy with respect to its complaint concerning the refusal to grant it State recognition. It relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
151. The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
152. The parties’ submissions concerning the existence of effective domestic remedies have been presented in paragraphs 77-82above.
153. The Court has already held that the applicant association did not have an effective domestic remedy with respect to the impugned decision of the Seimas (see paragraphs 84-98above). The Government did not indicate any other remedies that might have satisfied the criteria under Article 13 of the Convention (see, mutatis mutandis, Metropolitan Church of Bessarabia and Others, cited above, § 140). Accordingly, the Court finds that there has been a violation of that provision.
154. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
155. The applicant association did not submit any claims for just satisfaction or costs and expenses. Accordingly, the Court does not make any award.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 8 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Jon Fridrik Kjølbro
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