IGLESIA BAUTISTA EL SALVADOR AND ORTEGA MORATILLA v. SPAIN

APPLICATION/RKQUKTE К 17522/90

Iglesia Bdulisla "El Salvador" and José Aquilino ORTEGA MORATILLA

v/SPAIN

Iglesia Bautista «El Salvador» et José Aquilino ORTEGA MORATILLA

c/ESPAGNE

DECISION of 11 January 1992 on the admissibility of the application

DF'CISION du 11 janvier 1992 sur la recevabilité de id requête

Article 9, paragraph 1 of the Convention This pwvision does not authorise the

light to lepne to abide by legislation (tax law), the operation of which is provided for

by the Conieniion. and which applies neutrally and geneiulh in terms of freedom of

Lonsi teni e

The right to freedom of religion does not guaiantee churches oi their adherents a

different tux status from that of other taxpayer In particular, и does not include a

right for places of worship to be exempted from all taxes

Article 14 of the Convention in conjunction with Article 9 of the Convention It

IS not discriminatory to grant the Catholic Church tax exemptions prowded for in a

Concordat heiiieen the respondent State and the Holy See which invohes reciprocal

obligations, but lo refuse the same tax treatment to another church which has not

concluded a similar agreement with the Stale

Article 9, paragraphe I, de la Convention Cette disposition n'autorise pas a se

soustraire a une législation générale neutre sur le plan de la conscience et, qui plus

est prévue par la Con\ention (loi fiscale)

256(TRANSLATION)

IHKPACTS

The first applicant is an evangelical Proteslant church which has been listed in

the register of religious associations since 1969 The second applicant is a Spanish

natjonal born in 1929 and resident in Valencia He is a Protestant minister The two

applicants are represented by Mr Miguel Ramon Manceto Monge, A lawyer practising

in Valencia

The facts of the case, as submitted by the applicants, may be summarised as

follows

On 21 June 1985 the applicants requested exemption from property tax in respect

of their place of worship in Valencia, arguing in particular that the Catholic Church

enjoyed such exemption The tax office refused this request on the ground that the

exemption enjoyed by the Catholic Church was provided for in the Concordat between

Spam and the Holy See signed in 1979, whereas there was no legal basis for granting

the applicants such exemption The applicants then applied to die administrative courts

On 2Я February 1990 the Valencia Audiencid Territorial found against (hem Their

subsequent 'de amparo' appeal was dismissed on 3 May 1990 by the Constitutional

Court, which noted, m particular, that under the Freedom of Religion Act (Institutional

Act No 7/19Я0) the St-ite could conclude со operation agreements providing for tax

exemptions inter alia with churches, according to the number of their adherents, the

strength of their roots in Spanish society, and the behefs of the majority of Spanish

citizens As no agreement of that kind had been concluded with the first applicant, it

had no right to claim the tax exemptions in question

THE LAW

1The applicants complain m the first place that levying property lax in respect of

the premises they use for worship infringes their right to freedom of religion set forth

in Article 9 of the Convention, which reads as follows

1 Everyone has the right to freedom of thought, conscience and religion . this

nght includes freedom to change his religion or belief and freedom, either alone

or Ш community with others and m public or in 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 onlv to such

limitations as are prescribed by law and are necessary in a democratic society

Ш the interests of public safety, for the protection of public order, health or

morals, or for the protection ot the rights and freedoms of others

260The Commission notes that under the terms of this provision the right to freedom

of religion includes the right to manifest one's religion, in public or in private, in

worship or observance. The possibility of piossessing premises open to adherents and

used for the above purposes is clearly one of the means of exercising this right

However, die Commission fails to see how a right to exemption of places of worship

from all forms of taxation can be derived from Article 9 of the Convention. Il

considers that the right to freedom of religion by no means implies that churches or

their adherents must be granted a different tax status from that of other taxpayers. The

possibility referred to by the applicants of the premises used for worship being seized

by court order is in this case merely hypothetical, and the applicants cannot claim to

be actual victims of such a measure within the meaning of Article 25 of the

Convention.

It follows that in this respect the application is manifestly ill-founded and must

be rejected pursuant to Article 27 para. 3 of the Convention

2The applicants further allege that, as the Catholic Church in Spain enjoys

exemption from property tax in respect of places of worship, the refusal of their request

to be treated in the same way for tax purposes infringes Article 14 of the Convention

in conjunction with Article 9.

Article 14 of the Convention reads as follows :

"The enjoyment of the rights and freedoms set forth in this 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."

However, ihe Commission recalls that this provision does not prohibit all

differences in treatment in the exercise of the rights and freedoms recognised, equality

of treatment being violated only where the difference in treatment has no objective and

reasonable justification (cf Eur Court H R .Belgian Linguistic judgment of 9 February

1967, Series A no 5, para 38)

The Commission notes that the Freedom of Religion Act (Institutional Act

No. 7/1980) authonses agreements between the State and the various churches or

religious associations according to the number of their adherents and the beliefs of the

majonty of Spanish citizens. It observes that the tax exemptions enjoyed by the

Catholic Church in Spain are provided for by the agreements concluded on 3 January

1979 between Spain and the Holy See, which place reciprocal obligations on the two

parties. For example, the Catholic Church has undertaken to place its historical, artistic

and documentary heritage at the service of the Spanish people (Agreement on education

and cultural affairs. Article XV). On the other hand, its places of worship enjoy tax

exemption (Agreement on economic affairs. Article IV)

261However, the applicant church has not concluded such a concordat with the

Spanish State, and it does not appear from the file that it has sought to do so

Consequently, it does not have the same obligations to fulfil vis-à-vis the State.

It follows that this complaint must be rejected as being manifestly ill founded

within the meaning of Article 27 para. 2 of the Convenuon

• 3. Lastly, the applicants allege that the sums they are required to pay in property

tax indirectly contribute to the funding of the Catholic Church on account of the

allowances the latter receives from the State

In this connection the Commission recalls that the obligation to pay taxes is a

general one which has no specific conscientious implications in itself Its neutrality ш

that respect is also illustrated by the fact that no taxpayer can influence or determine

the puфose for which his or her contributions are applied, once they are collected.

Furthermore, the power of taxation is expressly recognised by the Convention system

and IS ascnbed to tiie State by Article 1 of Protocol No 1 (cf No 10358/83, Dec

15 12 83, D R 37 pp. 142, 147). The Commission further notes that the applicants

have by no means established or even alleged that property tax is a tax used for a

particular purpose

It follows that Article 9 does not confer on them any right to refuse, on that

account, to submit to the tax legislation in force

Consequently, the remainder of the application is also manifestiy ill tounded.

within the meaning of Article 27 para 2 of the Convention

For these reasons, by a majority, the Commission

DECLARES THE APPLICATION INADMISSIBLE

262