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European
Court Final
Judgments on Religious Freedom Issues 1976-2001 1976 Kjeldson,
Buck Madsen & Pederson v. Denmark
-- Sex education at school Application
No. 5095/71 The
European Court of Human Rights held by six votes to one that there was
no breach
of Article 2 of Protocol No. 1 or of Article 14 of the Convention
taken together
with Article 2. Further,
it held
unanimously that Articles 8 and 9 had not been violated taken together
with
Article 2 of Protocol No. 1. The
Kjeldson, Buck Madsen, and Pedersen parents all objected to the
compulsory sex
education taught to their children at public schools throughout
Denmark. After failing to obtain
exemptions for
their children, they considered enrollment in private school and
requested the
government reimburse them for their expenses.
All
the applicants maintained that integrated, and hence compulsory, sex
education,
as introduced into State schools by the 1970 Act, was contrary to the
beliefs
they hold as Christian parents and constituted a violation of Article
2 of
Protocol No. 1. In
interpreting Article 2 of Protocol No. 1, the Court remarked that the
Article
constituted a whole that was dominated by its first sentence. .By binding themselves not to
"deny the
right to education", the Contracting States guaranteed to anyone
within their
jurisdiction "a right of access to educational institutions existing
at a given
time" and "the possibility of drawing", by "official recognition of
the studies
which he has completed ...profit from the education received." Upon
examining
the legislation in dispute, the Court found the school.s program made
no attempt
at indoctrination, or at advocating a specific kind of sexual
behaviour. It also remarked that the
legislation
did not affect the right of parents to enlighten and advise their
children, to
exercise with regard to their children natural parental functions as
educators,
or to guide their children on a path in line with the parents' own
religious or
philosophical convictions.
The
Court finally pointed out that the parents had the alternative of
sending their
children to private education or educating them at home. Therefore, the Court did not
find the
legislation requiring compulsory sex education in public schools to
offend
Article 2 of Protocol No. 1. 1978 Arrowsmith
v. United Kingdom
. Religious pacifism Application
No.7050/75 The
European Court of Human Rights unanimously held that there had been no
violation
of Articles 5 and 9 of the Convention, and by a vote of 11 to 1 that
there had
been no infringement upon the applicant.s Article 10 right to freedom
of
expression. In
1934, Great Britain enacted the Disaffection Act, in which section 1
criminalized one who .endeavors to seduce any member of Her Majesty.s
forces
from his duty and section 2 criminalizes the possession of .any
documents of
such a nature that the dissemination of copies thereof among members
of Her
Majesty's forces. with the intent of successfully causing one to
disaffect. Pat
Arrowsmith distributed leaflets to troops stationed at an army camp
urging them
to desert or to refuse to obey orders if they were posted to Northern
Ireland.
Consequently, she was arrested and convicted for violating the
Disaffection Act.
She claimed her conviction violated Article 9 of the Convention,
maintaining
that the dissemination of the leaflet was a moral imperative flowing
from her
life-long commitment to the pacifist cause. She described her actions
as being
.necessarily incidental to her freedom of thought and conscience and
to her
freedom to manifest her belief, in teaching, practice and
observance.. The
Commission agreed that Arrowsmith.s pacifism fell within the ambit of
the right
to freedom of thought and conscience, however it concluded that not
every act
motivated by a religious belief is covered by Article 9 (1). The Commission held that since
the
leaflets she distributed did not manifest her pacifist belief, Article
9 § 1 had
not been infringed.
1990 Darby
v. Sweden
. Church tax Application
No. 11581/85 The
European Court of Human Rights unanimously held that there had been a
violation
of Article 14 of the Convention taken together with Article 1 of
Protocol No. 1,
but that it was not necessary to examine the case under Article 9 of
the
Convention taken either alone or together with the said Article 14.
The
Lutheran Church of Sweden is the established religion in Sweden. Under the transitional
provisions of the
1974 Constitution (regeringsformen), its parishes have a status
similar to that
of municipalities - including the right of taxation. In 1951, Sweden
enacted the
Dissenters Tax Act, which, along with the Freedom of Religion Act, was
aimed at
securing better respect for freedom of religion. The Dissenters Tax Act
provided for a
reduction in the Church tax for residents of Sweden who were not
members of the
Church. Peter
Darby, a Finish citizen, lived and worked in Sweden during the week
and lived
with his family in Finland on the weekends. Although he was not a member
of the
Swedish Church, he had to pay the full tax because as a non-resident
he was not
eligible for the reduction.
The
European Court of Human Rights found that to distinguish between
residents and
non-residents in awarding the reduction in the Church tax constituted
a
violation of Article 14 of the Convention in connection with Protocol
No.
1. These provisions
secured
enjoyment of rights and freedoms without discrimination on any ground,
including
religion. The Court found that the tax was discriminatory because
there was no
legitimate aim in distinguishing in treatment between residents and
non-residents in providing for a tax reduction. It did not find it
necessary to
examine whether there had also been an Article 9
violation. 1993 Kokkinakis
v. Greece
. Freedom of religious expression Application
No. 14307/88
The
European Court of Human Rights held by six votes to three that there
had been a
breach of Article 9, by eight votes to one that there had been no
breach of
Article 7, and unanimously decided that it was unnecessary to examine
the case
under Article 10 or under Article 14 taken together with Article
9. At
the end of the 1930.s, Dictator Metaxas enacted what became known as
the Laws of
Necessity, no. 1363/1938 and 1672/1939, but the parliament did not
vote on them
because Metaxas had suspended its activities. These laws criminalized
proselytism,
which was defined as, .any direct or indirect attempt to intrude on
the
religious beliefs of a person of a different religious persuasion
(eterodoxos),
with the aim of undermining those beliefs, either by any kind of
inducement or
promise of an inducement or moral support or material assistance, or
by
fraudulent means or by taking advantage of his inexperience, trust,
need, low
intellect or naïvety..
Minos
Kokkinakis, a Jehovah.s Witness, was arrested and convicted for
violating this
law more than 60 times from 1936 onward. Even after democracy in
Greece was
restored in 1975, Article 13 of Greece.s Constitution of 1975
expressly
prohibited proselytism and Greek authorities arrested 4,400 Jehovah.s Witnesses from 1975 to 1992, and of 1,233
whose cases
went to trial, 208 were convicted. The
European Court of Human Rights found that Kokkinakis. conviction
violated
Article 9 of the European Convention of Human Rights. Article 9, section 2 provides
for
freedom to manifest one's religion or beliefs, 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.. The Commission commented that
the right
to try to convince one.s neighbor of one.s religion was included in
principle in
Article 9. Without such teaching, the provision in Article 9 for
freedom to
change one.s religion would in effect become a .dead letter..
Therefore, the
Greek government was ordered to pay Kokkinakis 400,00 drachmas ($1,300
US) in
non-pecuniary damages and 2,789,500 drachmas ($9,300 US) in legal
costs and
expenses.
Although
finding a violation of Article 9 as applied to the conviction of Mr.
Kokkinakis,
the Court declined to find the proselytism law unconstitutional on its
face. Concurring Judge
Pettiti
criticised the criterion that the Greek law imposed for finding
convictions as
unverifiable...respectable or not respectable. and .misplaced.
cannot guarantee
legal certainty. Proselytism is linked to freedom of religion; a
believer must
be able to communicate his faith and his beliefs in the religious
sphere as in
the philosophical sphere.
Freedom
of religion and conscience certainly entails accepting proselytism,
even where
it is .not respectable... Dissenting
Judge Valticos of Greece disagreed that proselytism should be included
under
freedom of religion. He
remarked
that, .in the case of this sect, therefore, what is involved is indeed
a
systematic attempt at conversion, and consequently an attack on the
religious
beliefs of others. That
has nothing
to do with Article 9, which is designed solely to protect the religion
of
individuals and not their right to attack that of
others.. Hoffman
v. Austria
. Child custody and cults
Application
No. 00012875/87 The
European Court of Human Rights held by five votes to four that there
has been a
violation of Article 8 in conjunction with Article 14, unanimously
that it is
unnecessary to rule on the allegation of a violation of Article 8
taken alone,
that no separate issue arises under Article 9, either taken alone or
in
conjunction with Article 14, and that it was not necessary to rule on
the
allegation of a violation of Article 2 of Protocol No.
1. Mr.
S. And Mrs. Hoffman were married as Roman Catholics, and both of their
two
children were baptized Roman Catholics.
During their marriage, Mrs. Hoffman converted to the Jehovah.s
Witness
faith. Shortly
thereafter, Mrs.
Hoffman initiated divorce proceedings against her husband. Both applied for custody of
their two
children. Mr S. submitted
that if
the children were left in the applicant's care, there was a risk that
they would
be brought up in a way that would do them harm on account of Mrs.
Hoffman.s
religious beliefs. Among
his
charges were that Jehovah.s Witnesses were hostile to society, by
discouraging
.all intercourse with non-members, all expressions of patriotism, and
religious
tolerance..
The
Supreme Court of Austria, overturning the lower court.s decision to
award her
full custody, refused Mrs. Hoffman her parental rights after divorce
on account
of her membership as a Jehovah.s Witness.
The European Court of Human Rights found that the decision
constituted an
interference with the mother.s right to respect for her family
life. The Court allowed that courts
may take
such factors as rejection of public holidays, refusal of blood
transfusions, and
position of a social minority into account when awarding custody. However since the Supreme
Court of
Austria had introduced the Federal Act on the Religious Education of
Children in
making its custody decision, this constituted a difference in
treatment on the
ground of religion.
Differences in
treatment based on religion are only tolerated when there is a
reasonable
relationship between the means employed and the legitimate aim
pursued. While the Court agreed that
the aim the
Supreme Court pursued was legitimate, that of the protection of the
health and
rights of the children, a distinction based solely on a difference in
religion
was not acceptable because there was no reasonable relationship or
proportionality between the means employed and the aim pursued. The Court found a violation of
Article 8
taken in conjunction with Article 14 by a vote of 5 to 4. The Court unanimously found no
separate
issue arising under Article 9 and that there was no need to consider
the
complaint.
Four
Judges filed separate dissenting opinions.
Judge Matscher argued that the only criterion upon which the
court should
have based the decision was on the welfare of the child. He considered that taking into
consideration the certain consequences which belonging to the
Jehovah.s Witness
religion might entail for the well-being of the children to be .wholly
legitimate.. Judge
Valticos (from
Greece) also felt the Supreme Court.s consideration of Mrs. Hoffman.s
religious
beliefs resulted from a legitimate concern to protect the future of
the
children, who he feared would become the objects of their mothers
proselytizing
goal. He raised the issue that the right of parents to proselytize
their
children should not be included within the parents. rights to freedom
of
religion.
1994 Otto-Preminger
Institut v. Austria -- Freedom of expression and
religious
hate speech
Application
No. 13470/87
The
European Court of Human Rights held by a vote of six to three that
there had not
been a violation of Article 10 of the Convention. The
applicant institute attempted to show a film that offended the
Catholic religion
and the religious feelings in the region of Tyrol, where a large
majority of
Catholics reside. The
authorities
banned the screening of the film and confiscated the film. The
applicant argued that the authorities action violated its Article 10
guarantee
of freedom of expression.
This case
represented a conflict between freedom of expression and the
government.s
efforts to protect the religious beliefs of others. The
Court remarked that while those who exercise their freedom to manifest
their
religion .cannot reasonably expect to be exempt of all criticism,. the
manner in
which religious beliefs are opposed is a matter which may engage the
responsibility of the State.
It
explained that the state.s action is justified most when it is
exercising its
responsibility to ensure the peaceful enjoyment of the right
guaranteed under
Article 9 to the holders of the religious beliefs under attack. It remarked, .Indeed, in
extreme cases
the effect of particular methods of opposing or denying religious
beliefs can be
such as to inhibit those who hold such beliefs from exercising their
freedom to
hold and express them.. In
the Court.s assessment, Austrian Courts had not overstepped their
margin of
appreciation. The
authorities had
been entitled to act to prevent what might be perceived as
.unwarranted and
offensive attacks on the religious beliefs of the overwhelming
majority of
religious believers in Tyrol..
Therefore, under these circumstances, the authorities did not
violate
Article 10. The
joint dissenting opinion of three judges argued that the need for
repressive
action amounting to complete prevention of the exercise of freedom of
expression
should only be accepted .if the behaviour concerned reaches so high a
level of
abuse, and comes so close to a denial of the freedom of religion of
others, as
to forfeit for itself the right to be tolerated by society.. Because the film was to be
shown to a
limited audience who would have been forewarned of the critical
contents of the
film, the dissent concluded that the applicant association had
acted responsibly
in such a way as to limit, as far as it could
reasonably have
been expected to, the possible harmful effects of showing
the film.
1996 Wingrove
v. United Kingdom
. Freedom of expression and religious hate speech Application
No. 17419/90 The
European Court of Human Rights held by seven votes to two that there
had been no
violation of Article 10. Mr.
Wingrove filmed a video portraying the crucified Christ in acts of a
sexual
nature with a nun. The
British
Authorities refused to grant a distribution certificate because it
determined
the video violated British blasphemy laws.
Mr.
Wingrove argued that the refusal of a classification certificate for
his video
work .Visions of Ecstasy. was in breach of his freedom of
expression. The Court had to decide the
extent to
which the interference with freedom of expression may be justified to
protect
the religious beliefs of others.
The
Court first noted that, while blasphemy laws are in force in European
countries,
the application of these laws was .exceedingly rare. and that strong
arguments
advancing the abolishment of them existed.
However, it refused to conclude whether the imposition of
blasphemy laws
was unnecessary in a democratic society because the legal and social
systems in
the countries composing the European Union did not contain .sufficient
common
ground.. Instead, the
Court
examined whether there existed a balance of proportionality between
the manner
in which the anti-religious sentiment was expressed and the state.s
repressive
measures.
The
Court viewed the interference with the free expression of Mr. Wingrove
resulting
from the law of blasphemy was in furtherance of .the protection of the
rights of
others . . .It is also fully consonant with the aim of the protections
afforded
by Article 9 to religious freedom.. While the state.s action resulted
in a
complete ban on the film's distribution, this was an .understandable
consequence
of the opinion of the competent authorities that the distribution of
the video
would infringe the criminal law and of
the refusal of the applicant to amend or cut out the
objectionable sequences.. Therefore, the authorities did
not
overstep their margin of appreciation and did not violate Article
10. The
dissenting opinions maintained that the prior restraint on Mr.
Wingrove.s
expression was not .necessary in a democratic society. and further
criticized
the distinctions made by the majority when applying the doctrine of
the state.s
margin of appreciation.
It remarked
that it was difficult to ascertain what principles determine the scope
of that
margin of appreciation, which is wide in some cases and limited in
others. Manoussakis
& Others v. Greece -- Freedom of
worship
Application
No.
18748/91
The
European Court of Human Rights held unanimously that there had been a
violation
of Article 9. Greek
law no. 1363/1938 subjected the use of .any building open to the
public for the
purpose of divine worship. to prior authorization of both
ecclesiastical
authorities, i.e. the Greek Orthodox Church, and the Ministry of
Education and
Religious Affairs.
Mr.
Manoussakis rented a private room for use by members of the Jehovah.s
Witness
faith. He lodged an
application in
1983 with the Minister of Education and Religious Affairs requesting
authorization to use the room as a place of worship. When the application process
was
delayed, the Witnesses began to use the room for worship without the
proper
authorization. The
Witnesses were
prosecuted under Law no. 1368/1983 in 1986. The
European Court of Human Rights found that the obligation to seek
authorization
to establish a place of worship, contradicted Articles 11 and 13 of
the Greek
Constitution and Articles 9 and 11 of the European Convention. It remarked that the extensive
case-law
in Greece seemed to show a .clear tendency on the part of the
administrative and
ecclesiastical authorities to use these provisions to restrict the
activities of
faiths outside the Orthodox Church..
Therefore, it subjected the law to strict scrutiny. Although the government
pursued a
legitimate aim, that of the protection of public order, application of
the law
directly affected the applicants. freedom of religion
disproportionately to the
legitimate aim pursued.
Consequently, the Court found that the law was not .necessary
in a
democratic society. and awarded Manoussakis the equivalent of $13,400
for costs
and expenses. Valsamis
v. Greece -- Compulsory participation of
Jehovah.s
Witness youths in military commemoration
Application
No. 21787/93 The
European Court of Human Rights held by seven votes to two that there
had not
been a breach of Article 2 of Protocol No. 1 and had not been a breach
of
Article 9 of the Convention, unanimously that there had not been a
breach of
Article 3, and that there has been a breach of Article 13 of the
Convention
taken together with Article 2 of Protocol No. 1 and Article 9 of the
Convention,
but not taken together with Article 3 of the
Convention. Ms.
Valsamis, a Jehovah.s Witness youth, was suspended from school for
refusing to
participate in a school parade celebrating a military event. She based her refusal on her
religious
convictions.
Ms.
Valsamis asserted that Article 9 guaranteed her the right to the
negative
freedom not to manifest, by gestures of support, any convictions or
opinions
contrary to her own.
Moreover, she
disputed both the necessity and the proportionality of the school.s
interference, that the suspension was too serious, causing her to be
stigmatized
and marginalized from her classmates. The
Court held that the suspension for refusing to participate in a parade
did not
amount to an interference with her right to freedom of
religion. Ms.
Valsamis and her parents also complained of a breach of Article 13 of
the
Convention, which provides: "Everyone whose rights and freedoms as set
forth in
this Convention are violated shall have an effective remedy before a
national
authority notwithstanding that the violation has been committed by
persons
acting in an official capacity." She and her parents asserted that
they had no
effective remedy available to them for submitting their complaints and
having
the disciplinary penalty set aside. The
Court reiterated that Article 13 .secures to anyone claiming on
arguable grounds
to be the victim of a violation of his rights and freedoms as
protected in the
Convention an effective remedy before a national authority in order
both to have
his claim decided and, if appropriate, to obtain redress.. The Court thus found that the
applicants
did not have an effective remedy before a national authority in order
to raise
the complaints they later submitted at Strasbourg. There consequently had been a
breach of
Article 13 of the Convention taken together with Article 2 of Protocol
No. 1 and
Article 9 of the Convention. Efstratiou
v. Greece
. Compulsory
participation of Jehovah.s Witness youths in military
commemoration
Application
No. 24095/94 The
European Court of Human Rights held by seven votes to two that there
had neither
been a breach of Article 2 of Protocol No. 1 nor Article 9 of the
Convention. Ms.
Efstratiou, a Jehovah.s Witness youth, also refused to participate in
a school
parade commemorating a military event, basing her refusals on
religious
beliefs. She explained to
the
school authorities that pacifism was a fundamental tenet of her
religion and
forbid any conduct or practice associated with war or violence, even
indirectly.
The teachers' committee at her school punished her for her failure to
attend
with two days' suspension from school.
Ms.
Efstratiou.s parents alleged that Article 2 of Protocol No. 1 had been
violated,
which provides for the right of the parents to ensure their child.s
education
conforms with their own religious and philosophical convictions. Ms. Efstratiou also claimed
that her
suspension violated Article 9 of the Convention. The
Court expressed its surprise .that pupils can be required on pain of
suspension
from school - even if only for two days - to parade outside the school
precincts
on a holiday.. That being
so, it
discerned nothing that could offend the applicants' pacifist
convictions to an
extent prohibited by the second sentence of Article 2 of Protocol No.
1. The
Court, as in the Penditis case, noted at the outset that Ms.
Efstratiou
was exempted from religious education and the Orthodox Mass, as she
had
requested on the grounds of her own religious beliefs. It decided, therefore, that
the
suspension did not amount to an interference with her right to freedom
of
religion either. Two
dissenting
judges would have found a violation of Article 9. 1997 Tsirlis
v. Greece
. Conscientious Objection
Application
No. 19234/91
The
European Court of Human Rights held unanimously that there had been a
violation
of Article 5 para. 1 of the Convention, Article 5 para. 5 and that it
was not
necessary to examine whether there had been a violation of Article 9,
either
taken alone or in conjunction with Article 14 of the Convention. Section
6 of Greece.s Law no. 1763/1988 ("the 1988 Law"), grants a right of
military
service exemption to all ministers of "known religions". While the Supreme
Administrative Court
had held that Jehovah.s Witnesses were a "known
religion"
(judgments nos. 2105 and 2106/1975, 4635/1977, 2484/1980, 4620/1985
and 790 and
3533/1986), administrative boards repeatedly refused their ministers
exemption
under the 1988 Law on the grounds that Jehovah.s Witnesses were not a
known
religion. However, in its
judgment
no. 3601/1990, the Supreme Administrative Court expressly upheld the
right of Jehovah.s Witness. ministers of religion to be
exempted from
military service. Prior
to 1990, Mr. Tsirlis and Mr. Kouloumpas both applied to their
respective
Recruitment Offices for exemption from military service as religious
ministers. Both their
offices
denied the exemption on the grounds that Jehovah.s Witnesses were not
a known
religion and ordered them to report for duty. While they reported,
both refused
to join their units and to wear military uniforms. They objected because they
felt they
should have been exempted as ministers of a known religion. They were
found
guilty of insubordination and imprisoned awaiting appeal. Following
a finding of the Supreme Administrative Court that Tsirlis and
Kouloumpas should
have been awarded an exemption as members of a known religion, the
Military
Court of Appeals overturned their convictions for
insubordination. However, it also found in each
case no
obligation to pay compensatory damages for the period they were
detained,
because the detention was due to their .own gross negligence..
The
European Court of Human Rights found that the detention of Tsirlis and
Kouloumpas was unlawful, violating Article 5, paragraph 1 of the
European
Convention. The Court
held the
detention was arbitrary, with no basis in domestic law, in light of
the fact
that Greece.s 1988 Law had provided all ministers of known religions
the right
to be exempted from military service. It further held that the refusal
to
compensate Tsirlis and Kouloumpas for the unlawful detention violated
Article 5,
paragaph 5 and hence awarded Tsirlis $30,000 and Kouloumpas $27,600
for damages
and costs. Georgiadis
v. Greece
. Conscientious Objection
Application
No. 21522/93
The
European Court of Human Rights held unanimously that there had been a
violation
of Article 6 para. 1 of the Convention and that it was not necessary
to examine
the applicant's complaint under Article 13 of the
Convention. Mr.
Anastasios Georgiadis applied for an exemption from military service
as a
minister of a known religion, Jehovah.s Witnesses, pursuant to
Greece.s
aforementioned 1988 law.
He was
denied the exemption and ordered to report for military service. Like Tsirlis and Kouloumpas,
he reported
but refused to be inducted and was found guilty of insubordination by
a military
tribunal. While the
Military Court
of Appeals overturned the conviction, it found that Georgiadis was not
entitled
to compensation because his detention was due to his own .gross
negligence.. The court
issued its
ruling before Georgiadis had been given the opportunity to submit its
arguments. The
European Court of Human Rights found that the Military Court of
Appeals. action
violated Article 6, paragraph 1 of the European Convention. Article 6, paragraph 1
entitles
individuals to a fair and public hearing in determination of their
civil
rights. The Court held
that a
procedure whereby civil rights were determined without ever hearing
the parties'
submissions could not be considered to be compatible with Article 6
para. 1. It
further found the military tribunal violated Article 6 para. 1 by
providing an
inadequate reason for its decision by mere reference to gross
negligence, a
concept which involved an assessment of questions of fact. Georgiadis was therefore
awarded $2,500
for costs and expenses. Kalaç
v. Turkey
. Freedom of religious expression for the
military Application
No. 20704/92 The
European Court of Human Rights unanimously held that there had been no
breach of
Article 9 of the Convention. Mr.
Faruk Kalaç, a Turkish citizen born in 1939, pursued a
career as
judge advocate in the air force.
In
1990 he was serving, with the rank
of group captain, as the high command's director of legal affairs. In
1990, the
Supreme Military Council ordered his compulsory retirement, making the
specific
criticism that Mr. Kalaç.s .conduct and attitude revealed that he had
adopted
unlawful fundamentalist opinions.. Relying
on Article 9 of the Convention, Mr. Kalaç submitted that he had been
removed
from his post as judge advocate on account of his
religious convictions.
In response the government produced documents showing that he had
given a group,
which the Government considered dangerous, legal assistance, had taken
part in
training sessions and had intervened on a number of occasions in the
appointment
of servicemen who were members of the so-called
.sect.. The
Court emphasized that Article 9 does not protect every act motivated
or inspired
by a religion or belief and that in exercising his freedom to manifest
his
religion, an individual may need to take his specific situation into
account. It concluded
that the
Supreme Military Council's order was not based on Captain Kalaç's
religious
opinions and beliefs or the way he had performed his religious duties,
but on
his conduct and attitude, that .breached military discipline and
infringed the
principle of secularism.. Accordingly, it concluded that Captain
Kalaç.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. The
Canea Catholic Church v. Greece
. Denial of access to the courts of the Catholic Church
Application
No. 143/1996/762/96 http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=7&Action=Html&X=606141237&Notice=0&Noticemode=&RelatedMode=0 The European Court of Human Rights
decided
unanimously that there had been a violation of Article 6 § 1 of the
Convention. In 1988, the Canea Catholic Church
brought an
action against the owner of adjoining property for demolishing a wall
surrounding part of the church.
Although the district court ruled in favor of the church, the
appellate
court held that the church did not have the legal personality required
by Greek
legislation for participating in legal proceedings. The church had been
established in
Greece since the formation of the Greek State in 1830. The Church claimed that the
removal of
its right to participate in legal proceedings had been based
exclusively on the
criterion of religion.
The European
Court of Human Rights found that Greece violated Article 6 §1 of the
Convention
by failing to secure access to its courts.
The Court considered that it was unnecessary to decide the
church.s
argument that Greece violated its Article 9 rights, taken together
with Article
14. 1998 Larissis
and Others v. Greece -- Freedom of religious
expression for
the military
Application
No. 23372/94 The
European Court of Human Rights held by eight votes to one that there
had been no
violation of Articles 7 and 9 of the Convention with regard
to the
measures taken against the first, second and third applicants for the
proselytising of airmen Antoniadis and Kokkalis; held seven votes
to two
that there had been a violation of Article 9 with regard to the
measures
taken against the second and third applicants for the proselytising of
the
civilians. The
applicants, three officers of the Greek Air Force and followers of the
Pentecostal Church, were charged with offences of proselytism under
section 4 of
Law no. 1363/1938, which criminalizes any attempt to intrude .on the
religious
beliefs of a person of a different religious persuasion, with the aim
of
undermining those beliefs, either by any kind of inducement or moral
support or
material assistance, or by fraudulent means or by taking advantage of
the other
person.s inexperience, trust, need, low intellect or naivety.. The three officers spoke to
airmen
serving under them concerning the teachings of the Pentecostal Church,
as well
as to civilians.
The
applicants argued that the Greek law against proselytism was not
clearly
defined, and, as applied to them, constituted an unjustified
interference with
their right to exercise their religious freedom. The European Court of Human
Rights ruled
eight votes to one that Greece had not violated Article 9 of the
Convention by
punishing the applicants for proselytizing the airmen. The Court also ruled seven
votes to two
that Greece had violated Article 9 of the Convention by punishing the
applicants
for proselytizing civilians.
The
Court acknowledged that punishing the applicants for proselytism
interfered with
the exercise of their rights to freedom to manifest their
religion. However, the law was
adequately
prescribed, pursued the legitimate aim of protecting the rights and
freedoms of
others, and, with regard to the attempt to convert airmen, was
necessary in a
democratic society. The
Court
emphasized that religious freedom did not include the right to engage
in
.improper proselytism,. such as the offering of material or social
advantage or
the application of improper pressure with a view to gaining new
members for a
Church. Because of the
influence of
military hierarchical structures, the Court felt Greece was justified
in
protecting subordinate members from abuses of power. However, the
Court also
held that it was not necessary in a democratic society to afford
special
protection to the civilians, who were not subject to the same
pressures and
constraints as the subordinates in the army, at the expense of the
applicants.
rights to manifest their religion. 1999 Buscarini
and Others v. San Marino
. Refusal to take religious oath Application
No. 24645/94 The
European Court of Human Rights decided unanimously that San Marino had
violated
Article 9 of the Convention.
Mr.
Buscarini, Mr Della Balda, and Mr Manzaroli won election to the Grand
General
Council of San Marino.
The required
oath of office to be taken by members of the Republic.s Parliament
includes a
reference to the .Holy Gospels.. They objected to the reference,
citing Article
4 of the Declaration of Rights of 1974, which secured the right to
freedom of
religion, as well as Article 9 of the Convention. The Council, however, required
them to
take the oath, including the reference to the Gospels, on pain of
losing their
seats. They complied
under
duress.
Mr.
Buscarini, Mr Della Balda, and Mr Manzaroli complained of an
infringement of
their right to freedom of religion and conscience. Mr Buscarini and Mr
Della
Balda submitted that the obligation which the General Grand Council
imposed on
them on 26 July 1993 demonstrated that in the Republic of San Marino
at the
material time the exercise of a fundamental political right, such as
holding
parliamentary office, was subject to publicly professing a particular
faith, in
breach of Article 9. The
Court reiterated that enshrined in Article 9 was the principle that
freedom of
religion is one of the foundations of a .democratic society. within
the meaning
of the Convention. .It is, in its religious dimension, one of the most
vital
elements that go to make up the identity of believers and their
conception of
life, but it is also a precious asset for atheists, agnostics,
sceptics and the
unconcerned. The pluralism in dissociable from a democratic society,
which has
been dearly won over the centuries, depends on it.. Applying Article 9
to the
case at hand, the Court found that requiring Mr Buscarini and Mr Della
Balda to
take an oath on the Gospels constituted a limitation within the
meaning of the
second paragraph of Article 9, since it required them to swear
allegiance to a
particular religion on pain of forfeiting their parliamentary seats.
The
compulsory oath violated Article 9 because it was not necessary in a
democratic
society. It explained
that .it
would be contradictory to make the exercise of a mandate intended to
represent
different views of society within Parliament subject to a prior
declaration of
commitment to a particular set of beliefs.. It did not consider whether
the aim of
the government in implementing the oath, that of the need to .preserve
public
order, in the form of social cohesion and the citizens. trust in their
traditional institutions,. was legitimate. Serif
v. Greece
. State interference in internal affairs of the Muslim
community
Application
No. 38178/97 The
European Court of Human Rights held unanimously that there had been a
violation
of Article 9 of the Convention.
Mr.
Serif, a theological school graduate, was convicted for having usurped
the
functions of a minister of a .known religion. and for having publicly
worn the
dress of such a minister without having the right to do so under
Articles 175
and 176 of the Greek Criminal Code. Mr.
Serif maintained that the office of the mufti .represented the free
manifestation of the Muslim religion., and that the Muslim community
had the
right under the Treaty of Peace of Athens of 1913 to elect its muftis.
Therefore, he claimed his conviction violated Articles 9 and 14 of the
Convention. He further argued that his conviction amounted to an
interference
with his right to be free to exercise his religion together with all
those who
turned to him for spiritual guidance. The
Court noted that the actions for which Mr. Serif was convicted
included issuing
a message about the religious significance of a feast, delivering a
speech at a
religious gathering, and appearing in public wearing the dress of a
religious
leader. In these circumstances, the Court considered that the
applicant.s
conviction amounted to an interference with his right under Article 9
§ 1 of the
Convention, .in community with others and in public . to manifest his
religion .
in worship [and] teaching.. The Government argued that the
interference served a
legitimate purpose. By protecting the authority of the lawful mufti,
the
domestic courts sought to preserve order in the particular religious
community
and in society at large. They also sought to protect the international
relations
of the country, an area over which States exercise unlimited
discretion.
While
the Court accepted that the interference in question pursued a
legitimate aim
under Article 9 § 2 of the Convention, namely .to protect public
order,. it
noted that the conviction was not .necessary in a democratic
society.. It remarked that any
restriction on
freedom of religion must correspond to a .pressing social need. and be
.proportionate to the legitimate aim pursued.. The Court did not view that
punishing a
person for merely acting as the religious leader of a group that
willingly
followed him .compatible with the demands of religious pluralism in a
democratic
society.. Moreover, it
felt that it
was not necessary in democratic societies for the State to take
measures to
ensure that religious communities remain or are brought under a
unified
leadership. Therefore,
the Court
found a violation of Article 9 of the Convention. 2000 Case
of Hasan and Chaush v. Bulgaria
. State interference in internal affairs of the Muslim
community Application
No. 30985/96 The
European Court of Human Rights unanimously held that Bulgaria violated
Article 9
of the Convention.
Mr.
Fikri Sali Hasan became the Chief Mufti of Bulgarian Muslims in 1992.
Mr. Ismail
Ahmed Chaush was formerly a teacher at the Islamic Institute in Sofia.
The
Directorate of Religious Denominations in Bulgaria registered the new
leadership
of Mr. Hasan as Chief Mufti in 1992.
However, his predecessor, Mr. Nedim Grendzhev claimed that he
was still
the Chief Mufti, which led to continuous contention as to the true
leadership of
the Muslims in Bulgaria. In 1995, the Directorate issued decisions
awarding the
leadership of the Muslim community to Mr. Grendzhev. The new
leadership brought
private security guards to the premises of the Chief Mufti.s Office in
Sofia,
forcibly evicted the staff working there, and occupied the building.
The
applicants submitted that the police, who arrived after the surprise
action,
immediately stepped in to protect the new occupants of the
building. The
applicants complained that the replacement of the leadership of the
Muslim
religious community in Bulgaria in 1995 and the ensuing events up to
October
1997 had given rise to a violation of their rights under Article 9 of
the
Convention by interfering with their right to govern their own affairs
and
choose their leadership. The
Court recalled that religious communities traditionally and
universally exist in
the form of organized structures and that the personality of the
religious
ministers was undoubtedly of importance to every member of the
community. It
noted that participation in the life of the religious community is
considered
part of manifesting one.s religion, protected by Article 9 of the
Convention. Therefore, where the organization of the religious
community is at
issue, the Court interprets Article 9 in conjunction with Article 11
of the
Convention, which safeguards associative life against unjustified
State
interference. Seen in this perspective, the Court remarked that .the
believer.s
right to freedom of religion encompasses the expectation that the
community will
be allowed to function peacefully free from arbitrary State
intervention..
Consequently, state action favoring one leader of a divided religious
community
or undertaken with the purpose of forcing the community to come
together under a
single leadership against its own wishes would likewise constitute an
interference with freedom of religion. It recalled that Serif v.
Greece
had demonstrated that in democratic societies the State does not need
to take
measures to ensure that religious communities are brought under a
unified
leadership. Therefore it found an interference with the internal
organization of
the Muslim religious community and with the applicants. right to
freedom of
religion as protected by Article 9 of the Convention. There was a
violation of
Article 9 because the interference was not .prescribed by law. in that
it was
arbitrary and was based on legal provisions which allowed an
unfettered
discretion to the executive and did not meet the required standards of
clarity
and foreseeability. Cha.are
Shalom Ve Tsedek v. France --
Orthodox Jews
and ritual slaughter Application
No. 27417/95
The
European Court of Human Rights held by a vote of 12 to 5 that there
had been no
violation of Article 9.
Cha.are
Shalom ve Tsudek is a Jewish liturgical association, which adheres to
the
religious belief that meat is not kosher unless it is .glatt,. a
special
qualification requiring the slaughtered animal to be free of any kind
of
impurity, particularly in its lungs.
The association asked the Minister of Interior to submit a
proposal to
the Minister of Agriculture to recommend that this group be given the
official
approval it needed in order to perform the ritual slaughter. The Council of State only
exempts
approved religious bodies from the obligation to stun animals before
slaughter. The Council of
State
refused to consider the applicant organization a religious
body. The
organization complained that the refusal of its application for
approval
restricted its ability to manifest its religion through
observance. Further, it argued that it was
the
victim of discrimination because the approval it sought was only
granted to the
Paris Central Consistory, the group representing the majority of Jews
in France,
whose performance of ritual slaughter was not as strict as the
applicants.
methods.
The
Court said there would only be interference with the freedom to
manifest one.s
religion if the illegality of performing the stricter ritual slaughter
made it
impossible for .ultra-orthodox. Jews to eat meat from animals
slaughtered in
accordance with the religious prescriptions they considered
applicable. However, since the group could
obtain
the meat from Belgium, and also some butchers in Paris, their right to
manifest
their religion had not been hindered. Thilimmenos
v. Greece
.Conscientious Objection and discrimination
Application No. 34369/97
The
European Court of Human Rights unanimously held that Greece had
violated Article
14 in connection with Article 9, as well as violated Article 6 §
1. In
1983, Mr. Thilimmenos, a Jehovah.s Witness, was convicted for
insubordination
for refusing to enlist in the army for religious reasons. In 1989, the executive board
of the
Greek chartered accountants. body refused to appoint him as a
chartered
accountant because he had a criminal record, even though he passed the
relevant
qualifying exam.
Mr.
Thilimmenos argued that refusing him appointment to a post of
chartered
accountant was directly linked to the manifestation of his religious
beliefs and
fell within the ambit of Article 9 of the Convention. He pointed
out in
this connection that he had not been appointed because he had refused
to serve
in the armed forces; by refusing to do so, he had manifested his
religious
beliefs as a Jehovah.s Witness. The applicant further argued that it
could not
serve any useful purpose to exclude someone from the profession of
chartered
accountants for having refused to serve in the armed forces on
religious
grounds. The
Court held that the state had a legitimate interest to exclude some
offenders
from the profession of a chartered accountant. It further remarked that a
conviction
for refusing on religious grounds to wear a military uniform could not
imply
dishonesty, or other quality that would likely undermine the
individual.s
ability to exercise the profession of accountant. The court felt it was
disproportionate
to impose further sanctions than the prison sentence the offender had
already
served for refusing to join the army.
Since he was not unfit, there was no legitimate aim for
refusing him the
appointment. The Court
held the
state should have introduced appropriate exceptions to the rule
barring persons
convicted of a felony from the profession in order to guarantee the
rights under
Article 14 in connection with Article 9.
The Court did not consider it necessary to examine whether
there was a
violation of Article 9 taken by itself. 2001 Metropolitan
Church of Bessarabia and Others v. Moldova
. Denial of registration of Metropolitan Church of Bessarabia by the
State
Application
No. 45701/99 The
European Court of Human Rights held unanimously that there had been a
violation
of Articles 9 and 13 of the Convention and that it was not necessary
to examine
the case also from the standpoint of Article 14 taken together with
Article 9 of
the Convention. The
Moldovan authorities refused to recognize the Metropolitan Church of
Bessarabia,
which had split from the recognized Metropolitan Church of
Moldova. The Supreme Court of Justice
held that
any state intervention into the conflict would make matters worse and
upheld the
authorities. decision not to recognize the applicant.s church. As a result of not being
recognized, the
applicants could not be active inside Moldovan territory, nor obtain a
legal
personality. The
applicants
maintained that this constituted a violation of their rights to
freedom to
manifest their religion, and also that they were a victim of
discrimination
based on religion since they were not entitled to judicial
protection. The
Court held that the government.s refusal to recognize the church
interfered with
the right of that church and other applicants. freedom of
religion. While the interference pursued
a
legitimate aim, that of protecting public order and public safety, the
Court
held that in taking the view that the church was not a new
denomination and in
making its recognition depend on the will of a recognized
ecclesiastical
authority, it had treated this church differently than others for no
reasonable
justification. The
consequences of
refusing to recognize the religion were disproportionate to the
legitimate aim
and so it was not necessary in a democratic society. The authorities of Moldova
therefore
violated Article 9 by refusing to recognize the
Church.
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