Abstract
The international protection of the freedom of religion and belief advanced significandy during the second half of the twentieth century.1 Religious liberty has traveled a long way since it was solemnly recognized by the Universal Declaration of Human Rights in 1948.2Together with the United Nations’ initiatives3 and impelled by the 1948 Universal Declaration, other important steps have been taken by regional international organizations.
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References
A good exposition of the history of the international efforts to guarantee the protection of religious freedom can be found in Bahiyyih G. Tahzib, Freedom of Religion or Belief: Ensuring Effective International Legal Protection (Boston: Martinus Nijhoff, 1996), 63–247, and Malcolm D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 6–171. For a summary description of the concept of religious freedom present in international documents, see Jean Duffar, “La libert¨¦ religieuse dans les textes internationaux,” La libertad religiosa: Memoria del IX Congreso Internacional de Der echo Canônico (Mexico: Universidad Nacional Autônoma de M¨¦xico, 1996), 471–97. See also C. Evans, Freedom of Religion Under the European Convention on Human Rights (Oxford: Oxford University Press, 2001); Leonard M. Hammer, The International Human Right to Freedom of Conscience (Burlington: Ashgate, 2001).
Universal Declaration of Human Rights, GA Res. 217A, UN Doc. A/810 (1948).
After the Universal Declaration, there have been two main milestones in the history of UN efforts to promote the respect of religious liberty around the world. The first is the 1966 International Covenant on Civil and Political Rights (opened for signature 19 December 1966), 999 UNTS 171, 6 ILM 368 (especially article 18). The second is the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, GA Res. 36–55, UN GAOR, 36th Sess. Agenda Item 75, Supp. No. 51, UN Doc. A/36/55.
for Security and Cooperation in Europe (OSCE), in particular the Concluding Document of the Vienna Meeting: Conference on Security and Cooperation in Europe, 28 ILM 531 (especially principles 16, 17) (1989). For a more detailed analysis of these documents, see Javier Martinez-Torrôn, “La protecciôn internacional de la libertad religiosa,” Tratado de Derecho Eclesidstico (Pamplona: Ediciones Universidad de Navarra, 1994), 141–239, as well as the bibliography there cited. For the purposes of this essay, we have reduced the bibliographical references to a minimum. Further references can be found in the books cited in note 1.
In this essay, we will use the term “religious freedom” or “freedom of religion or belief’ with essentiall
In this essay, we will use the term “religious freedom” or “freedom of religion or belief’ with essentially the same meaning as ”freedom of thought, conscience, and religion“ (the latter is the expression utilized by the European Convention). The reason is that, in our opinion, the reference to thought, conscience, and religion does not intend to separate three different rights but merely to note diverse profiles of the same fundamental right. On the other hand, as religion seems to be¡ªhistorically as well as conceptually¡ªthe center around which this right has been construed, the wording ”religious freedom“ may be considered sufficiently expressive. For a more extensive explanation of this idea, see Martinez-Torrôn, ”La protecciôn internacional,“ 186–93.
The Statute of the Council of Europe was signed in London on 5 May 1949 by the representatives of Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, the United Kingdom, and Sweden.
After the massive incorporation of post-socialist countries, there are currentiy forty-three member states of the Council of Europe. Armenia and Azerbaijan were accepted as of 25 January 2001 and are the most recent additions. They had not ratified their membership at the time this volume went to press, but are expected to do so. In addition, there are some “observers” to the Committee of Ministers¡ªamong which is the Holy See¡ªand to the Parliamentary Assembly. Information about the Council of Europe, its organization, activities, documentation, etc., can be obtained at.
“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.
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“ (European Convention, art. 9).
“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” (ibid., art. 14).
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions” (Protocol [No. 1] to the European Convention, 20 Mar. 1952, art. 2, 213 UNTS 262).
the Assembly. The Parliamentary Assembly elects the Council of Europe’s secretary general and the judges of the European Court of Human Rights. The texts adopted by the Assembly provide guidelines for the Committee of Ministers, national governments, parliaments, and political parties. The Assembly has also initiated many European conventions, which form the basis of a truly European system of legislation. The Committee of Ministers is the active body of the Council of Europe. It is composed of the foreign ministers of member states, who meet at least twice a year to review political issues and matters of European cooperation and to give the necessary political impetus to the Council’s activities. However, the ministers’ deputies are, in practice, the governments’ permanent representatives to the Council of Europe; they meet once a week and have the same decision-making powers as the ministers and supervise the Council’s activities. Most decisions require a two-thirds majority of votes cast, but a simple majority is sufficient for procedural questions. The Committee of Ministers’ decisions are sent to governments in the form of recommendations or are embodied in European conventions and agreements, which are legally binding on states that ratify them. The Committee also adopts declarations and resolutions on current political issues. Over 170 conventions have been drawn up. They are concerned mainly with human rights but cover other areas that affirm and strengthen the Council of Europe’s democratic, social, and cultural cohesion. The Committee of Ministers also ensures that conventions and agreements between member states are implemented (for instance, the Committee supervises the execution by member states of the judgments of the European Court of Human Rights).
Recommendations contain proposals addressed to the Committee of Ministers, the implementation of which is within the competence of governments. Resolutions embody decisions by the Assembly on questions that it is empowered to put into effect or expressions of view for which it alone is responsible.
The most relevant documents in this regard are the Parliamentary Assembly Resolution 337 (1967), and the Committee of Ministers Recommendation R (87)8 (1987).
Parliamentary Assembly Recommendation 1202 (1993) on religious tolerance in a democratic society, and Parliamentary Assembly Recommendation 1396 (1999) on religion and democracy. In a similar direction, but with a wider scope, we could also cite Committee of Ministers Recommendation R (97)21 (1997) to member states, on the media and the promotion of a culture of tolerance.
Parliamentary Assembly Recommendation 1086 (1988) on the situation of the church and freedom of religion in Eastern Europe.
See Viktor Yelensky, “The Role of Religion in Eastern Europe: From Communism to Democracy,” in the official publication of the Parliamentary Assembly, Religion and Democracy, doc. 8270 (1999): 39–50. Among Spanish works, see Maria J. Roca, “La legislaciôn sobre libertad religiosa en el Este de Europa: Especial referenda a Ucrania,” Anuario de Derecho Eclesidstico del Estado 13 (1997): 189–221.
Parliamentary Assembly Recommendation 1178 (1992) on sects and new religious movements.
Ibid. The Parliamentary Assembly’s conclusion was based in part on recognition that normal criminal laws are sufficient to address serious problems.
Ibid.
Parliamentary Assembly Recommendation 1412 (1999) on “Illegal activities of sects.”
Ibid.
Ibid.
Protocol No. 11 to the European Convention, 11 May 1994, 33 ILM 960. The full text of Protocol No. 11, and the rest of the basic texts of the Convention, can be obtained in the website of the European Court. All the decisions of the Court are now available and searchable at the same website.
Indeed, the first case decided in light of article 9 was Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 25 May 1993). Until then the Court had decided only one case in which a question of religion or conscience was involved, and the decision was dealt with under article 2 of the First Protocol. See Kjeldsen, BuskMadsen and Pedersen v. Denmark, 1 EHRR 711 (1979–80) (ECtHR 23, 7 December 1976). A succinct analysis of the case law of the European Court and Commission of Human Rights can be found in Francesco Margiotta Broglio, “Religione e Stato in alcuni sistemi constituzionali atipici: II caso della Convenzione Europea del 1950,” La libertad religiosa y de conciencia ante lajusticia constitutional: Actas del VIII Congre so Internacional de Derecho Eclesidstico del Estado> ed. Javier Martinez-Torrôn (Granada: Comares, 1998), 299–310. See also Javier Martinez-Torrôn, “The European Court of Human Rights and Religion,” Law and Religion, Current Legal Issues 2001, ed. Richard O’Dair and Andrew D. Lewis, vol. 4 (Oxford: Oxford University Press, 2001), 185–204; Nikolaus Blum, Die Gedanken-, Gewissens- und Religionsfreiheit nach Art. 9 der Europdischen Menschenrechtskonvention (Berlin: Duncker u. H., 1990).
As far as the European Convention is concerned, the European Commission affirmed, in 1979, that it is “artificial” to differentiate between the religious freedom of a church and that of its followers. A religious confession actually acts on behalf of its members when it presents an application and is consequentiy fully legitimated to claim a violation of article 9. Cf. Church of Scientology and Another v. Sweden, 16 Decisions and Reports 70 (ECC 511, App. No. 7805/77, 5 May 1979) (regarding an application filed by the Church of Scientology against Sweden). The Court accepted explicidy this principle in the decisions The Jewish Liturgical Association Cha’are Shalom Ve Tsedek v. France, 27 June 2000, para. 72; and Metropolitan Church of Bessarabia v. Moldova, 13 December 2001, para. 101.
Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 25 May 1993). The same conclusion can be obtained from the report of the Commission in the case of Holy Monasteries v. Greece, 20 EHRR 1 (1995) (ECtHR 301, 9 December 1994), which ended with a friendly settiement (Rep. Com. 13092/87 and 13984/88, 14 January 1993; the decision of the Court, accepting the fairness of the agreement, was delivered on 1 September 1997, Reports of Judgments and Decisions 1997-V).
Darby v. Sweden, Rep. Com. 11581/85 (EComHR, 9 May 1989), para. 45. It has even been accepted that in a system with a state church like Sweden the government can dismiss a minister for intentionally neglecting the civil duties attached to his religious office (Dec. Adm. 11045/84, 42 Decisions and Reports 247).
El Salvador Baptist Church v. Spain, Dec. Adm. 17522/90 (arguing that the church suffered discriminatory treatment because its places of worship were not exempted from the real property taxes in Spain, as Catholic premises were).
See Darby v. Sweden (concerning the payment of local taxes aimed at financially supporting the Swedish Lutheran Church).
Dec. Adm. 10616/83, 40 Decisions and Reports 284 ff. (concerning the ecclesiastical tax in a Swiss town aimed at financially supporting the churches that are legally recognized; the tax had to be paid by the people who figure as members of the respective church in the civil registry).
Dec. Adm. 9781/82, 37 Decisions and Reports 42 ff. (The Catholic Church in Austria took a Catholic married couple to the civil courts to claim the payment of the ecclesiastical tax that Catholics must pay in every Austrian diocese).
Dec. Adm. 4733/71, 14 Y.B. EConHR 664, 674 ff. (EComHR) and Angelini v. Sweden, Dec. Adm. 10491/83, 51 Decisions and Reports 41 ff. (concerning religious education in Swedish public schools).
Otto-Preminger-Institut v. Austria, 19 EHRR 34 (1995) (ECtHR295-A, 20 September 1994); Wingrove v. United Kingdom, 24 EHRR 1 (1997) (ECtHR 1996-V, 25 November 1996). The former related to a satiric movie entitled “Council in Heaven,” in which God was presented as a senile man prostrated before the devil and Jesus Christ as a mentally retarded person; an erotic relationship between the devil and the Virgin was also insinuated. The latter referred to a video of eighteen minutes duration containing a peculiar interpretation of St. Teresa of Avila’s ecstasy, in a pornographic setting with homosexual connotations.
Pellegrini v. Italy, 20 July 2001. The relevant part of article 6 ECHR reads: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” For a critical commentary of the decision, written by a judge of the Vatican State Court of Appeals, see J. Llobell, “El derecho a un proceso equitativo. Notas a propôsito de una sentencia de la Corte Europea de los Derechos Humanos sobre la homologaciôn civil de una sentencia canônica de nulidad de matrimonio dictada en el marco del proceso documental canônico,” Revista General de Derecho Canônico y Derecho Eclesidstico del Est ado, no. 1 (2003).
More precisely, what article 14 prohibits is discrimination with regard to “the rights and freedoms set forth in this Convention,” but not with regard to other provisions of national laws. This latter aspect, which certainly enlarges the scope of the equality principle, is the object of Protocol No. 12 to the European Convention; its article 1 (General prohibition of discrimination) provides: “(1) The enjoyment of any right set forth by law 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. (2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” Protocol No. 12 was open for signature on 4 November 2000, but is not in force yet (ten ratifications are necessary for its entry into force; twenty-six countries have signed the new Protocol but only one¡ªGeorgia¡ªhas ratified it at the moment).
Hoffmann v. Austria, 17 EHRR 293 (1994) (ECtHR 255-C, 23 June 1993). This case was decided under articles 14 and 8 of the Convention (right to respect for private and family life). A housewife had converted to Jehovah’s Witnesses and taken the children with her when the divorce proceedings were still pending. The European Court reversed the decisions of Austrian national courts, which had granted the children’s custody to the father. In our opinion, although the principles stated by the European Court are right, the decision was wrong because the wife had unilaterally broken the marital agreement, according to which children had to be educated in the common religion of spouses (they were both Roman Catholics at the time). It is very significant that the decision was adopted by five votes to four. See the dissenting opinion of Judge Mifsud Bonnici. In another case related to custody of children after their parents’ divorce (Ignaccolo-Zenide v. Rumania, App. No. 31679/96 [ECtHR, 25 January 2001]), the father alleged¡ªat a certain moment of the procedures before Rumanian courts¡ªthat the mother belonged to a sect “not recognized in Rumania” (cf. para. 45); this assertion, however, seems to have had an effect on the decisions of neither the national courts nor the European Court.
Tsavachidis v. Greece, App. No. 28802/95 (ECtHR, 21 January 1999). The case related to the surveillance of Jehovah’s Witnesses by the National Intelligence Service. It ended with a friendly settlement in which the Greek government agreed to pay a sum of money for the costs and submitted a formal statement declaring that “the Jehovah’s Witnesses are not, and will not in the future be, subject to any surveillance on account of their religious beliefs.” By then the European Commission had already elaborated its report on the merits of the case and expressed the opinion that there had been a violation of article 8 (thirteen votes to four) and that there had been no violation of article 9 (nine votes to eight).
Riera Blume and Others v. Spain, App. No. 37680/97 (ECtHR, 14 October 1999). This case referred to some members of the so-called “Centro Esot¨¦rico de Investigaciones.” The applicants’ homes were searched following a judicial order, and the applicants were subsequently confined in a hotel against their will for “deprogramming”; the confinement did not follow any judicial order and was carried out by a private association of “anti-sects” with some participation of the Catalan police. The Court avoided pronouncing any opinion under article 9 and decided in favor of the applicants under article 5(1) (right to liberty and security).
Canea Catholic Church v. Greece, 27 EHRR 329 (1999) (ECtHR 1997-VIII, 16 December 1997). The case related to the Roman Catholic Church of the Virgin Mary in Canea, built in the thirteenth century, which is the cathedral of the Roman Catholic diocese of Crete. Two people living next to the church had demolished one of the surrounding walls and opened a window looking onto the church in the wall of their own building. The Greek courts denied legal standing to the church, as it had not complied with the formal requirements generally stated by the civil code to acquire legal personality. This denial contradicted abundant administrative and judicial practice in Greece in relation to the Roman Catholic Church. Furthermore, it constituted discrimination in light of contrasting treatment accorded to the Greek Orthodox Church and to the Jewish communities, which were granted legal personality and standing to sue without having to follow the civil formalities common to all associations. It is worth noting that the case was decided in light of article 6 (right to a fair trial), taken alone and together with article 14; as a violation of article 6 had been found, the Court declined to decide on the alleged violation of article 9.
See Metropolitan Church of Bessarabia v. Moldova, 13 December 2001, especially nn. 105, 118 and 129. The case related to the creation, in 1992, of a new autonomous local Orthodox church that claimed to be the successor, in the canonical order, of the old Metropolitan Church of Bessarabia, which existed until 1944. The new church counts approximately one million members among Moldavian people, with 160 ecclesiastics, 117 communities in Moldavian territory, and some communities in other Eastern European countries. The Moldavian government had repeatedly refused to recognize the church.
The Jewish Liturgical Association Cha’are Shalom Ve Tsedek v. France, App. No. 27417/95 (ECtHR, 27 June 2000).
Significandy, in this case the Court was sitting as a Grand Chamber.
France, only the Joint Rabbinical Committee (Commission Rabbinique Intercommunautaire) has received the administrative approval necessary to grant permits regarding ritual slaughter according to the Torah and the Talmud. That committee is part of the Jewish Consistorial Association of Paris, an institution representing most Jewish communities in France and most of the main denominations within Judaism, with the exceptions of the liberals and the ultraorthodox. The applicant Jewish liturgical association, which is of ultraorthodox orientation, considered that the persons appointed by the Joint Rabbinical Committee were too lax in applying the ritual slaughter rules established by the Jewish law, and consequendy the purity of food was not sufficiently certified. For that reason, the applicant association had asked¡ªunsuccessfully¡ªfor a separate authorization to permit for its own slaughterers.
In addition, the dissenting opinion argued that the French State could not take into account either the different number of followers, or the doctrinal discrepancies in the religious requisites of “pure” food, nor the inability of both associations to reach an agreement. On the contrary, the state was obliged to provide an analogous legal treatment as a means to guarantee pluralism, which is an indispensable condition to the exercise of freedom. Moreover, in the dissenting judges’ view, the European Court did not attach enough importance to two facts: first, administrative French praxis had been very different with regard to the Muslims, with respect to whom there was a remarkable diversity of representative bodies approved by the French administration to grant permits for ritual slaughter; and second, it was inaccurate to invoke reasons of public health in this case, because the hygienic conditions required by the applicant association were stricter than the ones usually existing in the slaughterhouses of the Consistorial Association.
Thlimmenos v. Greece, App. No. 34369/97 (ECtHR, 6 April 2000), para. 44.
The applicant in the Thlimmenos case was a Jehovah’s Witness who had been convicted of insubordination in 1983 for refusing to perform unarmed military service, at a time of general mobilization, on account of his religious beliefs. He was sentenced to four years imprisonment, and was released on parole after two years. In 1988, he passed a public examination to become a chartered accountant, a liberal profession which, until 1993, could be exercised only by those who became members of the Greek Institute of Chartered Accountants. In spite of his successful examination¡ªhe came second among sixty candidates¡ªthe Executive Board of the Institute refused to appoint him because, according to the law, a person who did not qualify for the civil service could not be appointed a chartered accountant, and conviction of felony constituted a disqualification for the civil service. The European Court considered that the Greek State had violated article 14 of the Convention in conjunction with article 9. It was true that the authorities were bound to apply the law in force and deny the applicant’s appointment, but the legislation itself had failed to make the appropriate distinctions: there existed no objective and reasonable justification for not treating the applicant differendy from other persons convicted of a felony, and his exclusion from the profession of chartered accountants did not pursue a legitimate aim.
Naturally, this right implies the right to freely attend religious ceremonies in those places. Unjustified restriction of free access to places of worship constitutes a violation of article 9 of the Convention, for it prevents people from manifesting their religion “either alone or in community with others.” See Cyprus v. Turkey, App. No. 25781/94 (ECtHR, 10 May 2001), paras. 241^7. In this case, which has many and complex political implications, the Court found a violation of the right to religious freedom of the Greek- Cypriot community of Northern Cyprus by the Turkish government (within the context of a much more extensive violation of human rights in that part of Cyprus).
Manoussakis v. Greece, 23 EHRR 387 (1997) (ECtHR 1996-IV, 26 September 1996); Pentidis and Others v. Greece, App. No. 23238/94 (ECtHR 1997-III, 9 June 1997). In Manoussakis, the applicants had asked for government permission to set up a place of worship, and they began to utilize the place, as the permit had not been granted within a period of time that they considered to be excessive. Criminal proceedings were initiated against them in the Greek courts. The European Court held that there had been a violation of article 9 after evaluating three key facts: the Greek authorities had excessive discretion to estimate the need to open a place of worship; there was not a concrete term during which to decide on the permit, allowing the proceedings to be extended indefinitely; and the Greek Orthodox Church intervened in the decision-making process. The Pentidis case ended with a friendly settlement; after the condemnatory judgment received in Manoussakis, the Greek government granted the administrative authorization required by the Jehovah’s Witnesses.
Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 25 May 1993). For a detailed comment on this decision, see Javier Martinez-Torrôn, “Libertad de proselitismo en Europa: A propôsito de una reciente sentencia del Tribunal europeo de derechos humanos,” Quaderni di diritto e politica ecclesiastica, no. 1 (1994): 59–71; Jeremy Gunn, “Adjudicating Rights of Conscience Under the European Convention on Human Rights,” Religious Human Rights in Global Perspective, ed. Johan D. van der Vyver and John Witte (Boston: Martinus Nijhoff, 1996), 305–30. On the problems involved in determining a concept of proselytism in international law, see Natan Lerner, “Proselytism, Change of Religion, and International Human Rights,” Emory International Law Review 12 (1998): 477–561; Tad Stahnke, “Proselytism and the Freedom to Change Religion in International Human Rights Law,” BTU Law Review, no. 1 (1999): 251.
Larissis and Others v. Greece, 27 EHRR 329 (1999) (ECtHR 1998–1, 24 February 1998). Larissis involved three officers of the Greek Air Forces who belonged to the Pentecostal Church.
Serif v. Greece, App. No. 34369/97 (ECtHR, 14 December 1999).
See also, among other cases, Freedom and Democracy Party (ÔZDEP) v. Turkey, App. No. 23885/94 (ECtHR, 8 December 1999), para. 37.
Serif v. Greece, para. 52.
It must be noted that the law had been changed a few days before the election took place and once it had been organized. The Greek government justified the state’s intervention on account of the administrative and judicial functions that Muftis exercise. The case also involved some interesting issues concerning some international treaties signed by Greece in the 1910s and 1920s, but the Court decided not to express any opinion on the subject.
Hasan and Chaush v. Bulgaria, App. No. 30985/96 (ECtHR, 26 October 2000).
Ibid., para. 78.
Ibid., paras. 84–88. Once the Court reached that conclusion, it deemed unnecessary to continue the three-prong test of article 9(2); i.e., to judge whether the state’s interference pursued a “legitimate aim” and was “necessary in a democratic society.”
Metropolitan Church of Bessarabia v. Moldova, 13 December 2001. See note 40 and accompanying text.
Agga v. Greece, 17 October 2002.
See United Communist Party of Turkey v. Turkey, App. No. 19392/92 (ECtHR 1998–1, 30 January 1998), especially paras. 42–43; Socialist Party v. Turkey, App. No. 21237/93 (ECtHR 1998-III, 25 May 1998), para. 41; Freedom and Democracy Party (ÔZDEP) v. Turkey, para. 37. The three cases were decided in favor of the applicants under article 11 of the Convention (freedom of association). See also Sidiropoulos and Others v. Greece, App. No. 26695/95 (ECtHR 1998-IV, 10 July 1998), para. 40. Sidiropoulos involved the refusal to register a cultural and political association aimed at promoting Macedonian autochthonous values.
Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 25 May 1993), para. 31. See also Serif v. Greece, App. No. 34369/97 (ECtHR, 14 December 1999), para. 49.
Refah Partisi (The Welfare Party) v. Turkey, 31 July 2001.
The other three are cited supra, in note 60.
In short, the three dissenting judges considered that the Welfare Party could not be held responsible for the activities of some of its members and that the party’s dissolution was not supported by enough evidence proving the existence of a “pressing social need.”
In fact, some state restrictions on the use of the Islamic veil by women in public places¡ªuniversities and schools¡ªhad been previously sustained as legitimate by the European Commission and the European Court. See decisions on the admissibility of Karaduman v. Turkey, App. No. 16278/90 (EComHR, 74 Decisions and Reports 93, 3 May 1993); Bulut v. Turkey, App. No. 18783/91 (EComHR, 3 May 1993); and Dahlab v. Switzerland, App. No. 42393/98 (ECtHR, 15 February 2001).
Refah Partisi (The Welfare Party) v. Turkey, para. 72. The dissenting opinion to the decision does not discuss this statement of the Court. This is not the first time that the Court has alluded to the difficulties of making some parts of the Islamic religious message compatible with the Western concept of democracy. In Dahlab, the Court declared that to wear the Islamic veil “seems to be imposed to women by a koranic prescription which ... is difficult to reconcile with the principle of equality of sexes. To wear the Islamic veil is also difficult to reconcile with the message of tolerance, of respect for others, and above all of equality and non-discrimination that every teacher must transmit to the students in a democracy.” (Authors’ translation: the text of the decision is available only in French in the web pages of the Court.)
the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber“; a panel of five judges will decide upon that request. Refah Partisi was, of course, one of those ”exceptional cases“ raising ”a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance“ (European Convention, art. 43[2]).
European Convention, art. 9(1).
It does not seem accurate to interpret the term practice as the mere practice of rites, considering that the ritual dimension of religious freedom is alluded to in other words used in article 9, in particular the terms worship and observance.
The General Comment on article 18 was adopted by the Committee on 20 July 1993. For an analysis of the text, see Tahzib, Freedom of Religion or Belief 307–75.
On this subject, see also M. Evans, Religious Liberty, 293–314.
C. v. United Kingdom, 37 Decisions and Reports 147 (EComHR, Dec. Adm. 10358/83), in which the Commission utilizes the expression "forum internum." The same doctrine is reiterated in Dec. Adm. 10678/83, 39 Decisions and Reports 268 and Dec. Adm. 14049/88. See also Darby v. Sweden, Rep. Com. 11581/85 (EComHR, 9 May 1989), para. 44. The Court, following the Commission’s approach, has subsequendy alluded to this double side of religious freedom and has emphasized that the limits stated in article 9(2) are applicable only to the freedom to manifest one’s religion or belief but not to the freedom to choose one’s religion or belief. See Kokkinakis v. Greece, paras. 31, 33.
Kjeldsen, Busk Madsen and Pedersen v. Denmark, 1 EHRR 711 (1979–80) (ECtHR 23, 7 December 1976). This case related to the implementation of a new system of sex education in public schools intended to prevent undesired pregnancies among teenagers. Some parents alleged conscientious objection to this teaching, as they considered that sex education was within the exclusive domain of parents. The Danish government refused to exempt those parents’ children from sex education classes. Kjeldsen was the first case decided by the Court in which religious beliefs were concerned and the only one until Kokkinakis in 1993. The decision focused on the interpretation of article 2 of the First Protocol (right to education and right of parents concerning their children’s education).Buscarini and Others v. San Marino, App. No. 24645/94 (ECtHR, 18 February 1999). More specifically, the Court affirmed that it was incompatible with the European Convention to deprive two elected members of Parliament of their office if they did not take their oath on the Gospels; it would be “tantamount to requiring two elected representatives of the people to swear allegiance to a particular religion” (ibid., para. 39). The law requiring newly elected members of Parliament (General Grand Council) to swear on the Gospels was changed shortiy after the facts alleged in the application took place. A statute of 1993, following the practice of many European countries, introduced a choice between the traditional oath and one in which the reference to the Gospels was replaced by the words “on my honor.” It is interesting to compare the Court’s decision in Buscarini with a former decision of the Commission (Dec. Adm. 11321/85, 6 October 1986). An elected member of a regional Parliament in Spain had refused to swear allegiance to the Constitution and had been consequently deprived of his parliamentary rights (there was no religious reference in that oath, as the Spanish law, since 1979, permits the choice between swearing on God or on one’s own honor). The Commission justified the possible interference in the applicant’s freedom of conscience by resorting to paragraph 2d of article 9: Spanish authorities could legitimately require an oath that was essentially a symbolic expression of respect for the constitutional order; its meaning was nothing else but to agree that any intent to modify the constitutional order should be done through lawful means.
This doctrine has been repeatedly stated by the Commission and assumed by the Court- With regard to the Commission’s decisions, see Arrowsmith v. United Kingdom, 19 Decisions and Reports 19–20 (EComHR, Rep. Com. 7050/75 [1981], 12 June 1979) (concerning a British pacifist sentenced to a term of imprisonment for having distributed illegal leaflets among English soldiers in Northern Ireland); C. v. United Kingdom (conscientious objection to paying taxes in the percentage of the state budget aimed at military costs); Dec. Adm. 10678/83, 39 Decisions and Reports 268 (conscientious objection to contributing to the public system of pensions); Dec. Adm. 11579/85, 48 Decisions and Reports 255 (conflict between the laws governing religious and civil marriages); Dec. Adm. 14049/88 (conscientious objection to paying taxes in the percentage of the state budget aimed at financing legal abortions in France). With regard to the Court’s decisions, see Kalaç v. Turkey, 27 EHRR 552 (1999) (ECtHR 1997-IV, Report of Decisions and Judgments 1199, 1 July 1997), para. 27; Hasan and Chaush v. Bulgaria, App. No. 30985/ 96 (ECtHR, 26 October 2000), para. 60.
For further details on this approach of the Strasbourg jurisdiction, see Javier Martinez-Torron, “La giurisprudenza degli organi di Strasburgo sulla libert¨¤ religiosa,” Rivista internazionale di diritti deWuomo (Milano: Universit¨¤ Cattolica del Sacro Cuore, 1993), 335–79.
Kalaç v. Turkey, para. 28. The case involved the compulsory retirement of an officer of the Turkish army, decreed by the Supreme Military Council, for his membership of an Islamic fundamentalist movement supporting ideas contrary to the constitutional principle of secularism. The European Court held that the applicant had not been punished because of his religious beliefs or practices¡ªon the contrary, he was permitted to observe the normal religious duties of Islam¡ªbut rather because his “conduct breached military discipline and infringed the principle of secularism.” Therefore, the Court concluded, “the applicant’s compulsory retirement did not amount to an interference with the right guaranteed by article 9 since it was not prompted by the way the applicant manifested his religion” (ibid., paras. 30–31).
See note 49 and accompanying text.
See note 74 and accompanying text.
Buscarini v. San Marino, paras. 34, 39.
Dahlab v. Switzerland, decision on the admissibility of App. No. 42393/98 (ECtHR, 15 February 2001).
In our opinion, the Court show ed too much respect for the state’s margin of appreciation in the Dahlab case. First, the “religious peace” of the school does not seem to have suffered any serious threat, for the applicant wore the Islamic foulard during approximately five years until she was prohibited from doing so by the (female) general director of primary schools of Geneva’s canton; in all those years there appears not to have been any problem caused at the school by the applicant’s veil nor a single complaint of the students or of the students’ parents. Second, we do not fully understand why the principle of laïcit¨¦ (neutrality, secularism) should require, in a country enjoying religious peace as Switzerland, that no religious personal symbols are visible in the teachers’ clothes, instead of permitting that students can see in their own school an evidence of the religious pluralism existing in Swiss society. As long as teachers respect the students’ belief and do not attempt to proselytize them, the evidence of religious pluralism seems to be more consistent with a neutral attitude of the state and, on the other hand, more educative for students than the fictional absence of religion on the part of school personnel.
The phenomenon of conscientious objection goes far beyond the most well-known type, i.e., conscientious objection to military service. An extensive analysis of conscientious objections in international and comparative law, with numerous bibliographical and case law references, can be found in Rafael Navarro- Valls and Martinez-Torrôn, Las objeciones de conciencia en el derecho espanol y comparado (Madrid: McGraw-Hill, 1997); there is also an Italian version: Le obiezioni di coscienza: Profili di diritto comparato (Torino: Giappichelli, 1995). The case law of the United States is especially rich in dealing with these situations. An interesting and comprehensive study of it, elaborated by a Spanish scholar, with abundant bibliographical references, is found in Rafael Palomino, Las objeciones de conciencia: Conflictos entre conciencia y ley en el derecho norteamericano (Madrid: Montecorvo, 1994).
See note 69 and accompanying text. For a more detailed analysis of the Kjeldsen decision, see Navarro- Valls and Martinez-Torrôn, Las objeciones de conciencia en el derecho espanol y comparado, 199–203.
See note 10.
Efstratiou v. Greece, para. 32; Valsamis v. Greece, para. 31.
Efstratiou v. Greece, para. 37; Valsamis v. Greece, para. 36.
Hasan and Chaush v. Bulgaria, App. No. 30985/96 (ECtHR, 26 October 2000), para. 79.
See Valsamis v. Greece, paras. 31, 37; Efstratiou v. Greece, paras. 32, 38.
See for example United States v. Ballard, 322 US 78 (1944).
Metropolitan Church of Bessarabia v. Moldova, 13 December 2001, para. 123.
With regard to freedom of expression and freedom of association, see United Communist Party of Turkey v. Turkey, App. No. 19392/92 (ECtHR 1998–1, 30 January 1998), paras. 42–43; Socialist Party v. Turkey, App. No. 21237/93 (ECtHR 1998-III, 25 May 1998), para. 41; and Freedom and Democracy Party (ÔZDEP) v. Turkey, App. No. 23885/94 (ECtHR, 8 December 1999), para. 37. With respect to freedom of thought, conscience, and religion see Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 25 May 1993), para. 31; and Serif v. Greece, App. No. 34369/97 (ECtHR, 14 December 1999), para. 49.
-82 and accompanying text). The Court’s approach in the Welfare Party case was different; in this decision, the majority of judges understood that the public behavior of some members of the Refah Partisi could lead to a serious future danger for the fundamental values of democracy in Turkey; their evaluation of the facts may not be accurate, as the dissenting judges argued, but the Court actually weighted the evidence provided by both parties of the process (see notes 62–67 and accompanying text). We should note that the value of the Welfare Party case as precedent is much higher than Dahlab, for the latter is a decision declaring the application inadmissible as “manifestly ill-founded.”
See Part IH.B of this chapter.
Naturally, there are exceptions, especially when the party or parties in power are determined to change some of the ethical patterns of society through legislation¡ªthey often succeed after a few years. The laws decriminalizing abortion in the Western world constitute a good example of this.
This is the reason why Muslims and Jehovah’s Witnesses, for instance, experience frequent problems in European countries.
Parliamentary Assembly Recommendation 1396 (1999) on religion and democracy, para. 3. See note 14 and accompanying text.
See Part III of this chapter.
See Part IV.B of this chapter.
As we have seen, this was one of the central questions in the two decisions on the case of Refah Partisi (The Welfare Party) v. Turkey, 31 July 2001 and 13 February 2003. See notes 62–67 and accompanying text.
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Martínez-Torrón, J., Navarro-Valls, R. (2004). The Protection of Religious Freedom in the System of the Council of Europe. In: Lindholm, T., Durham, W.C., Tahzib-Lie, B.G., Sewell, E.A., Larsen, L. (eds) Facilitating Freedom of Religion or Belief: A Deskbook. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5616-7_10
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