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  • 9 March 2011 : Crucifixes in schools in Lower Austria

While the Grand Chamber of the European Court of Human Rights was issuing its decision in the case Lautsi v. Italy, the Austrian Constitutional Court decided that the Lower Austrian law on nursery schools violates neither freedom of religion, nor the principle of equality, nor the right of parents to provide religious education for their children. This law envisages that a crucifix be affixed in nursery schools when the majority of pupils are Christian.
The Court argued that the law cannot be interpreted as allowing children to be steered in a particular religious direction. Given that Austria is characterised by the principle of separation between the state and religions, the crucifix may also not be considered as a symbol of a state church. And even if one may wish to view this as interfering with negative freedom of religion, it is in no way excessive, because the crucifix is not a tool of indoctrination or conversion (VfGH 9.3. 2011, G 287/09).

  • July - August 2008 : Recent Case Law

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

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

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

D 11 January 2017   

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