European Interreligious Forum For Religious Freedom

The Right To Religious Freedom In The European Human Rights Protection System And Some Good Practices to be Followed by States


Written the Friday, October 18th 2013 à 23:09
Alessandro Amicarelli




Speech given the 16 October 2013 in Brussels at the Seminar "Freedom of opinion, religion and belief — Persecution of, and discrimination against, minority-groups" Organized by EIFRF with the partnership of
• The Gerard Noodt Foundation for FoRB
• UNITED SIKHS
• Pro Europa Christiana
• Soteria International
• CAPLC Europe
• FOREF Europe
• EMISCO


The Right To Religious Freedom In The European Human Rights Protection System And Some Good Practices to be Followed by States
By Alessandro Amicarelli PhD

Alessandro Amicarelli is a lawyer in private practice and belongs to the BAR of Italy and the Law Society of England. He specializes in human rights having a PhD from the Sapienza University of Rome. His specific field of interest is that of minorities and religious minorities rights. Between 2005 and 2012 has lectured in human rights at the University of Urbino. Being also a graduate in Middle East Studies he follows with particular interest the developments of the Muslim communities in the East as well as in Europe.
 

Abstract
The number of complaints filed before the European Court of Human Rights concerning religious freedom has dramatically increased since the first judgment issued in 1993. In this presentation we will have a look at the basics of the right to religious freedom as well as at the most recent cases dealt with by the European Court and at some good practices that should be implemented by states in respect of minority religions rights and informed on the principles of equality and non-discrimination too. 
 
PAR. 1 Religious Freedom in the European Convention on Human Rights
 
The right to religious freedom is protected in conjunction with the right to freedom of thought and conscience by article 9 of the European Convention on Human Rights.
 
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. 
 
Paragraph one enunciates the content of the right to freedom of religion and its extension. Paragraph two sets out the possible limitations to such right(s) and the criteria that must be fulfilled for these limitations to be acceptable. 
 
This article protects the inner creeds and personal beliefs of people.
 
Such beliefs and creeds relate to so-called forum internum, meaning the internal representation that everyone has of the most important things they believe in. Such sphere is inviolable and no limitation is allowed to States. Another aspect of religious freedom is so-called forum externum. This is a multifaceted concept and relates to the manifestation of inner convictions, it concerns the right to manifest people’s creeds, religions, beliefs and so on.
 
Not only beliefs strictly related to mainstream religions are protected by art. 9 ECHR.
 
The former European Commission on Human Rights stated that “pacifism as a philosophy […] falls within the ambit of the right to freedom of thought and conscience. This attitude of pacifism may be seen as a belief (“conviction”) protected by art. 9(1)”. (Arrowsmith v. UK 1978).
 
Such a wide approach does not imply that all beliefs fall under the protection accorded by the Convention: e.g. the Court has stated that discriminatory and offensive beliefs “which are incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination” cannot benefit of the protection acknowledged by the ECHR (Norwood vs. UK 2004). 
 
Furthermore to be protected by art. 9 of  ECHR such beliefs have to consist in “views that attain a certain level of cogency, seriousness, cohesion and importance” (Campbell & Cosans vs. UK 1982). Beliefs are more than opinions or ideas protected by art. 10 ECHR (Arrowsmith vs. UK, 1978).
 
As a general rule, States are allowed to “interfere” with people’s rights placing limitations and restrictions to one or more rights, included the right to religious freedom, when this becomes necessary or opportune.
 
It is the European Court that evaluates if the restriction was justifiable on the basis of the European Convention by following a test aimed at analysing if the limitation was prescribed by law, had a legitimate aim and was necessary in a democratic society.
 
PAR. 2 Some recent cases before the European Court of Human Rights
 
Since 1993 when the European Court issued a first judgment about religious freedom on case Kokkinakis v. Greece the number of applications before the Court has dramatically increased. 
 
Some cases ended up before the Court and reached a conclusion in 2013.
 
1. Eviction from property and registration of religious groups: Juma Mosque Congregation and Others v. Azerbaijan (8 Jan 2013). In this case applicants claimed to keep occupying a Mosque that they had been using for some twelve years and complained that they had been discriminated against by the authorities that had failed to be fair in the application of a new piece of legislation about registration of religious communities. The Court declared the case inadmissible as manifestly ill-founded as, inter alia, the applicants had failed to make use of the internal judicial remedies to seek redress at a national level.   
 
2. Right to wear religious symbols and to refuse some duties on the basis of religious beliefs: Eweida and Chaplin v. UK and Ladele and MacFarlane v. UK (15 Jan 2013). 
Ms Eweida, a British Airways employee, had been fired for wearing a cross at workplace. Unlike France where almost all religious symbols are prohibited in public places, instead the United Kingdom is very much permissive in this respect and prohibiting employees from wearing religious symbols, in the absence of any specific legislation like in this very case, would constitute an illegitimate interference with people’s rights. The Court concluded for the violation of the Convention.
 
Mrs Chaplin had been fired for wearing a cross in a public hospital but the Court declared that there had been no violation of the Convention, the reason being that the prohibition to wear such necklaces was to avoid the risk of infections in case of contact with patients’ wounds and also for the likely situation that it could be grabbed by a patient and potentially hurt Mrs Chaplin. 
 
In cases Ladele and McFarlane the applicants had been fired for refusing to provide services to homosexuals. Ms Ladele, a marriage registrar, refused to conduct same-sex partnership ceremonies because as a practising Christian that would be in discordance with her religious beliefs. The European Court found no violation of the Convention in the State’s behaviour to terminate her employment as all people deserve same treatment and because the employer had pursued a non-discrimination policy to protect service-users and their right not to be discriminated against, which is protected through the European Convention. The same decision was taken in the case of Mr McFarlane, a psychologist working with couples on sexual issues, who had refused to work with homosexual couples on the ground of his Christian beliefs. 
 
3. Taxation of income of religious groups: Eglise Evangelique Missionnaire & Eric Salaûn v. France, Association des Chevaliers du Lotus d’Or v. France, Association Cultuelle du Temple Pyramide v. France (31 Jan 2013). France had adopted a piece of legislation about taxation of incomes of religious groups with a rough rate of 60% that was only implemented for non-mainstream religions. The Court found a clear violation of art. 9 ECHR confirming a previous judgment, i.e. Jehovah’s witnesses association of France v. France (5 Jul 2012).
 
4. Assisted suicide: Gross v. Switzerland (14 May 2013). The applicant, in the absence of any specific clinical condition, wanted to end her life with a lethal dose that had to be prescribed by a doctor. The doctors feared that if they had prescribed such a lethal dose might have incurred in criminal proceedings. The Court found a violation of art. 8 concerning the protection of private life because, although the legislation enforced in Switzerland did allow doctors to prescribe medical doses to end life, the guidelines to be followed were not sufficiently clear.
 
5. Disclosure of medical files: Avilkina and Others v. Russia (6 Jun 2013). During an investigation concerning the lawfulness of the activities carried out by the religious organization of Jehovah’s witnesses in Russia it was ordered to disclose medical files of some applicants who had refused blood transfusions while they were hospitalised. The Court found a violation of art. 8 (right to respect of private life) as the information in the medical files was not relevant to the case.  
 
6. Trade union rights of religious groups: Sindicatul “Păstorul cel Bun” v. Romania (GC 9 Jul 2013). The authorities refused to register a trade union for Orthodox priests. A first judgment of a chamber of the Court found a violation of the Convention because the national authority had not justified the refusal by simply arguing that on the basis of the Church’s statute the trade union needed to be previously authorised by the archbishop. The Grand Chamber instead focussed on the principle of non interference with the life of religious communities in respect of their internal organization; since in this case the Statute did require a permission from the archbishop and since the trade union had not obtained it, the national agency correctly did refuse to register the union. (see also Hasan and Chaush v. Bulgaria – state interference aimed at replacing the mufti that had been appointed from his community; the Court stated that such interference was unacceptable as states are not allowed to intervene in the internal affairs of the life of religious communities).
 
PAR. 3 Some Good practices that states should implement when dealing with minority religions issues 
 
For reasons of time only I cannot focus on other important aspects concerning the lives of people belonging to religious groups, such as the right to use certain clothes, e.g. the Islamic headscarf or others too. That’s a very important issue as in my view never should it be allowed to a national authority to prevent people from wearing certain clothes regardless they are religiously relevant or not, but of course more importantly if they also have a religious meaning to people wearing them.
France has tried to ban all forms of veils and now very sadly also England would try to do the same. If that was insane in France, typically not much inclined to respect religious freedom, that would be even more insane in a country like England that instead has a very long-standing tradition of religious tolerance and freedom too. 
Furthermore it would be even less acceptable in England where it is possible to walk completely naked along street.
 
Then I will now focus on three main aspects concerning the life of religious minorities generally speaking:  
 
1. Registration of religious groups and acknowledgement of religious status
 
2. Taxation of religious groups’ incomes
 
3. State/Confession Agreements
 
The above mentioned aspects, registration, taxation and agreements with States are of a vital importance for all religious groups as on them depends their own existence and on them depends also the possibility for them to carry out some relevant activities in a given country.
 
Registration of groups and acknowledgment of religious status
 
Some states do require religious groups to register with certain national agencies that are charged of dealing with religious issues; most times these agencies have the duty to monitor the activities carried out by religious groups in the country. 
 
It often happens that the requirement of registration only applies to small groups of non mainstream tradition in that country, e.g. the Church of Scientology, the Jehovah’s witnesses, some Christian groups to name just a few.
 
The requirement of registration usually has so many sub-requirements that it becomes literally impossible for the groups to fulfil of all them and so they have no way to be registered at all; some of the specific requirements concern for instance the group has operated  in that country for a certain number of years; and/or a certain number of adepts or members is associated to the group and often the authorities have argued about the content of the religious tenets of that particular denomination, as in Russia with the Church of Scientology.
 
This last point is aberrant to say the least in a democracy. A state cannot intervene to discuss about and to ponder on the religious beliefs of any group!  
 
Going straight to the point, the European Court of  Human Rights has intervened more than once issuing judgements in cases concerning the registration and re-registration (another aberration) and the acknowledgment of religious status to minority groups.
 
An important case within this track concerned in fact the Church of Scientology. This case regarded the granting of legal status to the Church of Scientology in Russia. The authorities did not acknowledge such a right to the applicant Church on the basis of a series of excuses such as the number of followers in the country and the length of time the Church had existed and operated in the national territory. 
 
The European Court found a clear violation of the church’s rights and defined the criteria set up in the legislation for the registration of religious groups as subterfuges aimed at preventing minority groups from existing and operating any longer in that country. 
 
Very linked to the registration of religious groups issue is the acknowledgement to them of a religious entity status.
In this regard the European Court of Human Rights has intervened in a case concerning the Jehovah’s witnesses in Austria.
In case Religiongeneinschaft v. Austria the Court stated that, while it is acceptable that the government’s investigations to acknowledge the legal status of religious entity to a new group, might last up to 10 years, as occurred in this case, if the group is unknown by authorities and experts, instead such a behaviour is completely unacceptable in respect of the Jehovah’s witnesses as they operate at international level since decades and are well-known by the authorities and among the scholars of religious studies too. 
 
Good practice:
 
State should treat all groups equally regardless they belong to a mainstream tradition or not.
 
States should not use subterfuges and excuses to deny the religious status to religious  groups or to allow them the registration or re-registration with the national agencies.
 
States should operate quickly and without any prejudices when it comes to the point to allow the religious status to a group; the authorities can actually consult scholars and experts of religious studies renowned for their independence and consequently should allow the status in a reasonable length of time; a longer scrutiny may be acceptable when the request for the religious status acknowledgement comes from a group that is not generally well-known among scholars and experts at national and/or international level. 
 
Taxation
 
Here again some states do require religious groups to pay taxes for the income they receive; either they are from religious or commercial activities.
 
Some states only require payment for income from commercial activities, acknowledging an exemption for the income from donations.
 
One state, namely France, required the payment of income from donations and other religious activities, only from minority religions and that piece of legislation did not apply to mainstream religions; a similar situation is registered in Italy where the Roman Catholic Church enjoys a full tax exemption. 
 
About this point the European Court has made it clear that the taxation field has to be imprinted to the principle of equality and non discrimination.
 
If a legislation about the taxation of the income of religious group is implemented it has to be applied fairly and equally to all groups, no exception being acceptable.
 
Of course no special legislation is acceptable to punish a given group, either the Jehovah’s witnesses or anyone else!
 
As already seen above the European Court in case Association of Jehovah’s witnesses of France v. France stated that a piece of legislation about taxation of income of a religious group cannot be implemented only in respect of a group and be instead completely ignored in which regards other mainstream groups.
 
The Court found a violation of the Convention and repeated the same statement in 2013 in other similar cases, all of them originated in France from minority religions.
 
Good practice:
 
When states decide to adopt a piece of legislation about the taxation of the income of religious group such legislation should be implemented in the same way to traditional mainstream religions and to minority religions too, no exception being acceptable in a democracy.
 
State/Denomination Agreements
 
Some states adopt some pieces of legislation about religions generally speaking aimed at regulation the relations between the state and the religious groups and/or aimed at regulating some specific issues such as the right to visit people hospitalised or being incarcerated or even aimed at regulating the religious education or the right to be exempted from the military service and other matters too; other states instead adopt some pieces of legislations only about minority religions often labelled as cults; other states, apart from any specific legislations, also implement a system of agreements between the state and the religious groups. 
 
These agreements are aimed at regulating all the possible issues between the state and the single religious group, stating duties and rights and privileges. 
 
A system of so called concordates, a special form of inter-state agreement, is implemented between the State and the Holy See, as representative of the Roman Catholic Church.
As in the case of the registration and religious status acknowledgment, states try to make it difficult to some groups to obtain the agreement with the state.
 
As seen for the other aspects, the European Court has stated very clearly also about this in a Croatian case that excuses and subterfuges cannot be adopted by States to refuse an agreement to a religious group. In brief when a group meets and fulfil the requirements stated by law, provided they had not discriminatory ends, it has to be acknowledged the religious status or the agreement in the same way like other groups.
 
Specifically in case Savez Crkava Rijec Zivota and others vs. Croatia, concerning some Reformed Christian Churches that claimed they had been treated unequally, the matter regarded the denial from the state to grant these Christian denominations an agreement with the state.
 
In Croatia a system of Agreements between State and Religions is enforced and these churches that had been legally registered as churches in 2003, applied for being granted an Agreement on the basis of the relevant legislation in 2004. 
 
The national authorities refused such an Agreement twice on the basis of the fact that these groups could not meet two basic requirements to enjoy such a right to an Agreement, namely they had not been existent in the country as at 6 April 1941 and the number of their followers was below 6,000 people. 
 
On the basis of such a denial they claimed they could not teach their precepts in the public schools unlike other religions did, they could not visit people in jails and hospitals, could not consider their weddings as legally recognized and so on. 
 
Other religious groups such as the Old-Catholics, the Macedonian Orthodox and the Bulgarian Orthodox churches had been granted an agreement even though they did not meet the requirements listed by the national authorities. 
 
Namely they had less than 6,000 followers and had not been present in the territory as at 6 April 1941. 
 
The government justified the concession of the Agreements to those religious minorities arguing on the fact that they met an alternative criterion, specifically they could be considered as “historical religious groups” within the European cultural environment. 
 
The European Court found these statements as unjustifiable excuses and declared a violation of the Convention because every religions must be treated equally and that the governments cannot use subterfuges to justify different treatments or omissions or denial of rights to some groups considered less important than others. 
 
PAR. 4 Some personal conclusions and observations about the future
 
What can we say at this point? What can we expect for the right to religious freedom in Europe? What should be the States’ behaviour in respect of religious minorities – often superficially labelled as cults – in their territories? 
 
Alongside the statements of the European Court in its binding judgements, several times also the Council of Europe’s Parliamentary Assembly invited the national authorities to observe and to apply the rules and laws that apply to the mainstream groups also to minority groups and their members ensuring fairness and equal treatment (Recommendations no. 1412/92, 1178/99 and 1/11). 
 
Nonetheless in the European human rights protection system, States are granted a certain ‘margin of appreciation’ and art. 9.2 of the European Convention on Human Rights allows some restrictions and limitations to religious freedom too.
 
In respect of so-called cults the Assembly stated that the national authorities cannot use two different weights with these groups and their members; special rules and special pieces of legislation about or against some groups cannot be adopted by States. The ordinary civil and criminal law provisions should be applied when the authorities have to deal with cases concerning religious minorities.
 
As above in the case of tax exemption law, its fair application would see such exemption be applied in the same way to the different groups, or to none of them.
 
We can just conclude auspicating that in the future the States bound by the European Convention on Human Rights apply its contents to all religious groups in the same way, regardless they are mainstream or non-mainstream religions.
 
This in no way would imply to disregard the relevance of the history of a certain religion in a given country. States can reserve a slightly different treatment to a religious group when the majority of the population share certain values; this has occurred for instance in case Lautsi v. Italy where the European Court has stated that the presence of a crucifix in a public school does not constitute a discrimination against non believers and even people belonging to other beliefs provided the school does not impose the teachings of that denomination to all of the students against their will.
 
Now I would like to read a sentence from a judgment, actually an order, of a US Court issued in 1970. In my view this statement summarises both the different approaches to the religious phenomenon in the European countries and in the US, and also emphasises the importance and relevance of the principle of non-interference of states with the internal affairs of religious groups.
 
In case Universal Life Church Inc. vs. United States of America the Court said:
“ (...) Neither this court, nor any branch of this Government, will consider the merits or fallacies of a religion. Nor will the Court compare the beliefs, dogmas, and practices of a newly established religion. Nor will the Court praise or condemn a religion, however excellent or fanatical or preposterous it may seem. Were the Court to do so, it would impinge on the guarantees of the First Amendment”.
(USA, District Court for the Eastern District of California – Universal Life Church vs. United States of America – civil no. S-1964 – order 27 February 1970).
It seems that the European Court shares same views of this US Court, we can just auspicate that the European States follow these views too.
 
Thanks for your attention!
 


Alessandro Amicarelli


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