Editor: last update 14 April 1997.

Article 9, paragraph 1, of the Convention: a Church, as such, is capable of exercising the rights in Article 9 (New jurisprudence).
The freedom to manifest a religious belief in practice does not confer protection on statements of purported religious belief which are nonetheless of a commercial nature. Distinction between advertisements which are merely "informational" and those of a commercial character.

Article 10, paragraph 2 of the Convention: Protection of the right of others includes the protection of consumers. The "necessity" of a restriction measure is assesed in the light of the nature of the right guaranteed, the degree of interference, the proportionality between the interference and the aim pursued, the nature of the public interest and the degree to which it requires protection in the circumstances of the case.

The test of the "necessity" must be less strict when applied to restraints imposed on commercial "ideas".

Article 26 of the Convention: As a general rule, a petition for re-opening of the case is not taken into account for the purposes of the six months' rule. However this general rule does not apply, if the petition, although aimed at the re-opening of the case, in reality presents the characteristics of a plea of nullity (Chapter 58, Article 1, sub-para. 4 of the Swedish Code of Judicial Procedure - Rättegångsbalken).

Summary of the facts

The application was introduced by the "Church of Scientology" in Sweden and by X., one of the ministers.

In 1973, the applicant church placed an advertisement in its periodical which is circulated amongst its members which read as follows:

"Scientology technology of today demands that you have your own E-meter. The E-meter (Hebbard [ed.: Hubbard] Electrometer) is an electronic instrument for measuring the mental state of an individual and changes of the state. There exists no way to clear without an E-meter. Price : 850 CR. For international members 20% discount : 780 CR."

Having received various complaints, the Consumer Ombudsman (Konsumentenombudsmannen), basing himself on the 1970 Marketing Impoper Practices Act (lagen om otillbörlig marknadsföring) introduced an action before the Market Court (Marknadsomstolen) requesting an injunction against the applicants prohibiting the use of certain passages in the advertisement for the E-meter. After having heard expert witnesses, the Court granted the injunction. A petition for the re-opening of the case (Resning) was rejected by the Supreme Court.

The law

1. The Church of Scientology and Pastor X. claim that the injunction by the Market Court on 19 February 1976 relating to their advertisements of the Hubbard Electrometer (E-meter) violates their freedom of religion and expression in a discriminatory way contrary to Articles 9, 10 and 14 of the Convention.

2. However, before the Commission can consider thee complaints two preliminary matters should be clarified. The forst matter concerns the question of who can properly be considered as the applicant in the present case.

Under Article 25 (1) of the Convention the Commission may receive petitions from any persons, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention. Pastor X. is such a person.

In respect of the Church, the Commission has previously applied the rule according to which a corporation being a legal and not a natural person is incapable of having or exercising the rights mentioned in Article 9 (1) of the Convention (see Application No. 3798/68, Collection of Decisions 29, p. 70). The Commission has considered that the Church itself is protected in its rights mentioned in Article 9 through the rights granted to its members (see Application No. 7374/76, Decisions and Reports 5, p. 157).

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