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Protectingthe right to freedom

of thought, conscienceand religion

under the European Conventionon Human Rights

Jim Murdoch

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Jim Murdoch

Protecting the rightto freedom of thought, conscience and religion

under the European Conventionon Human Rights

Council of Europe human rights handbooks

Council of EuropeCouncil of EuropeCouncil of EuropeCouncil of EuropeStrasbourg, 2012Strasbourg, 2012Strasbourg, 2012Strasbourg, 2012

hb9.book Page 1 Monday, January 23, 2012 3:48 PM

Jim Murdoch is Professor of Public Law at the University ofGlasgow, and was formerly Head of the School of Law. Hisresearch interests are in domestic and European human rightslaw. He is a regular participant in Council of Europe seminarprogramme visits to central and east European states and hasdeveloped a particular interest in non-judicial human rightsenforcement mechanisms.

Directorate General of Human Rights and Rule of LawCouncil of EuropeF-67075 Strasbourg Cedexwww.coe.int/justice

© Council of Europe, 2012Cover illustration © rolffimages – Fotolia.com

1st printing, February 2012Printed at the Council of Europe

The opinions expressed in this publication are those of theauthor and do not engage the responsibility of the Council ofEurope. They should not be regarded as placing upon thelegal instruments mentioned in it any official interpretationcapable of binding the governments of member states, theCouncil of Europe’s statutory organs or any organ set up byvirtue of the European Convention on Human Rights.


3

ion 3. Does the limitation on manifestation of

n or belief have a legitimate aim? . . . . . . . . . . . . . . . . . . . . 35

ion 4. Is the limitation on “manifestation” of

n or belief “prescribed by law”? . . . . . . . . . . . . . . . . . . . . . . 37

ion 5. Is the limitation on “manifestation” of

n or belief “necessary in a democratic society”?. . . . . . . . 39

ity and proportionality; and the nature of

cratic society”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

n of appreciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

aspects of freedom of thought, conscience and

sing under Article 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

ces with “manifestation” of individual belief: l to undertake compulsory military service . . . . . . . . . . . 44

ces with “manifestation” of individual belief: ytism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

ces with “manifestation” of individual belief: ons for wearing of religious symbols . . . . . . . . . . . . . . . . . 49

ces with individual belief: the requirement to pay h tax” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

l “manifestation” of belief: prisoners and religious . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

irement of state neutrality: registration of religious etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55


Article 9 of the European Convention on Human Rights . . . . . . 5

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Freedom of thought, conscience and religion:

international and regional standards . . . . . . . . . . . . . . . . . . . . . . . . 9

Interpreting Article 9 of the Convention: general

considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Applying Article 9: the checklist of key questions . . . . . . . . . . . . . . 13

Question 1: Does the complaint fall within the scope of

Article 9?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

What is meant by “thought, conscience and religion”? . . . . . . . . 16

The forum internum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Manifestations of religion or belief . . . . . . . . . . . . . . . . . . . . . . . . . 21

The collective aspect of Article 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

The collective aspect of Article 9 and recognition of

“victim” status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Limits to the scope of Article 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Question 2: Has there been any interference with

Article 9 rights? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Positive obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Employment and freedom of thought, conscience and

religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Permitting due recognition of religious practices . . . . . . . . . . . . . 33

Quest

religio

Quest

religio

Quest

religio

Necess

“demo

Margi

Specific

belief ari

Interferenrefusa

Interferenprosel

Interferensancti

Interferen“churc

Individuabelief

The requfaiths,

Contents

sues: Article 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 73

ecisions of ecclesiastical bodies: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

e basis of religion or belief . . . . . . . . . . . . . . . 74

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86


COUNCIL OF EUROPE HUMAN RIGHTS HANDBOOKS

4

The requirement of state neutrality: controls upon places of worship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

The requirement of state neutrality: interfering in internal disputes between adherents of a religious community . . . . . . 62

Related guarantees under the Convention having an

impact upon the free exercise of conscience or belief . . . . . . . . 66

Religious convictions and education: Article 2 of Protocol No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Freedom of expression and thought, conscience and belief: Article 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Medical treatment is

State recognition of dArticle 6 . . . . . . . .

Discrimination on th

Article 14 . . . . . . .

Protocol No. 12. .

Conclusion . . . . . . . .

Index of cases . . . . .

5

Article 9 of the European Convention on Human Rights

Freedom of thought, conscience and religion1. Everyone has the right to freedom of thought, conscienceand religion; this right includes freedom to change his religionor belief and freedom, either alone or in community withothers 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 besubject only to such limitations as are prescribed by law and arenecessary in a democratic society in the interests of publicsafety, for the protection of public order, health or morals, orfor the protection of the rights and freedoms of others.


Preface

nd to discussion of the question as to what weightaw requires to be given to the Convention. Whetherean Convention on Human Rights is considered asw or merely has persuasive force in domestic law ismportance, but whether or not the treaty overridesw, it is still possible to state with some certainty theerations a domestic judge or public official must bear relevant cases in decision-making at national level.

risprudence may not be particularly voluminous in the case-law generated by other provisions of the

n, but the case-law in this area it is often of some. Much is of comparatively recent origin,2 and whileects of freedom of thought, conscience and belief

be considered by the Court as it has not yet had they to provide an authoritative interpretation for all

the subject, a number of important decisions and help clarify the application, nature and importance

ns of Article 9 have been found in 35 judgments between 1959 and 2010concerned Greece, 5 Russia, 4 Bulgaria, 3 in respect of Latvia, Moldovaand Ukraine, and 1 in respect of Austria, Georgia, Poland, San Marino,tzerland): European Court Annual Report 2010 (2011), pp 157-158. Theh judgment establishing a violation of Article 9 – Kokkinakis v. Greece,d below at p. 36 ff – was delivered in 1993.


6

PrefaceThis handbook examines the scope and content of freedom ofthought, conscience and religion as guaranteed in particular byArticle 9 of the European Convention on Human Rights and asinterpreted by the case-law of the European Court of HumanRights (“the Strasbourg Court”) and by the former EuropeanCommission on Human Rights (“the Commission”).1

The primary responsibility for applying Convention guaranteeslies at the national level. The aim is thus to provide a conciseguide to assist judges, relevant state officials and practisinglawyers who need an understanding of European Conventionon Human Rights case-law in applying the treaty in domesticlaw and administrative practice. The standards and expecta-tions found in the European Convention on Human Rights mayapply across Europe, but the subsidiary nature of the scheme ofprotection categorically requires the domestic decision-maker– and above all, the domestic judge – to give effect to theserights in national law and practice. This work, of course, canonly be an introductory text and not a definitive treatise. Nor

can it extedomestic lthe Europsuperior laclearly of inational lakey considin mind in

Article 9 jucontrast toConventiocomplexitycertain aspremain to opportunitaspects ofjudgments

1. In the interests of readability, the text generally refers only to the title of cases,with full references of judgments cited appearing in the index of cases, page 86.All the Court’s judgments, and a significant selection of decisions and reports,are published in the HUDOC database, accessible at http://hudoc.echr.coe.int/.

2. Violatio(9 have Turkey, and Swifirst sucdiscusse

PROTECTING THE RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

7

ed doctrine of precedent” is employed by thef Human Rights (“the Strasbourg Court”) tonational courts and decision-makers on theuman rights protection.3 This “doctrine of

essary in the interests of legal certainty ande law. Yet it is “moderated” by the need toonvention continues to reflect changes in

ns and values. The Convention is thus at”.4 Examination of the case-law also allows anhe fundamental values which underpin thisese underlying assumptions are often dis-

Strasbourg Court’s decisions and judgmentsy has been taken to elaborate the principles followed by domestic courts and policy- thus an important predictive aspect to the’s case-law, for while in particular instances a readily available precedent for domesticnderlying rationale and principle shouldre.

First, this handbook is primarily concernedthe European Convention on Human Rights.concerning conscience and belief may arisetreaty, and brief reference to certain relatedave some particular impact upon freedom of

f Human Rights, Annual Report 2005, p. 27.ple of the application of “living instrument”, see Bayatyan v.

scussed below at p. 46 ff.


of the guarantee. The provision confers protection for an indi-vidual’s core belief system and for the right to manifest suchbeliefs either individually or with others, and both in private aswell as in the public sphere. The case-law clarifies that stateauthorities may not only be required to desist from takingaction which would interfere with thought, conscience and reli-gion, but also in certain circumstances to take positive meas-ures to nurture and to protect this freedom. The range of issuesthat may arise under Article 9 is wide: for example, should thedisplay of religious symbols be prohibited in state premises?when may the criminal law prohibit attempts at proselytism? isthere a responsibility to recognise exemptions to the duty toundertake military service? can oaths of allegiance be requiredof public officials or democratically-elected representatives? oris it permissible to prohibit the building of minarets, or thewearing of headscarves? Such questions can – and do – ariseon a not infrequent basis in political debate. They may also beposed in legal proceedings in domestic legal systems where theresolution of such challenges by the domestic courts requires aclear awareness of expectations arising under human rightsnorms.

Discussion of certain key cases found in the jurisprudencehelps clarify that the text of the Convention is but a starting-point for an understanding of the guarantee. An awareness ofrelevant jurisprudence is vital. For lawyers from a continentallegal tradition, this may need some further explanation. As oneformer President of the European Court of Human Rights has

put it, a “moderatEuropean Court ogive guidance to development of hprecedent” is necequality before thensure that the Csociety’s aspiratio“living instrumenappreciation of tjurisprudence. Thcernible from theas the opportunitwhich should bemakers. There isStrasbourg Courtthere may not beguidance, the uinstruct and inspi

Two final points.with Article 9 of However, issues elsewhere in the guarantees that h

3. European Court o4. For a recent exam

Armenia [GC], di

Preface

on in respect of any particular provision ofthe extent that any law then in force in itsnformity with the provision.

s a basic introduction to the leading cases inkes the study of Article 9 (and related guar-inating one is not only the factual back-ases but the principles of interpretationolidated over time by the Court. The partic-y of the cases provides an insight into the

opean cultural, religious, historical and cul-ertheless, the Court has sought to impresst a unifying set of values which will helpor and be at ease with the challenges posedecular but also increasingly multi-faith soci- is to respect and to value pluralism and tol- freedom of conscience cannot be taken for



8

thought, conscience and religion has been considered neces-sary. In particular, and as will become apparent from discus-sion, Article 9 is closely related both textually and in respect ofthe values underpinning its interpretation to Article 10’s guar-antee of freedom of expression and to the right of associationunder Article 11.5 Additional provisions provide support, suchas Article 2 of Protocol No. 1, which requires that parents’ phil-osophical and religious beliefs are accorded respect in the pro-vision of education to their children. Secondly, in discussing theextent of a state’s responsibilities under the European Conven-tion on Human Rights, it will be necessary to consider whetherthese responsibilities are in any way modified at national level.In particular, Article 57 permits any state, when signing theConvention or when depositing its instrument of ratification,

to make a reservatithe Convention to territory is not in co

What then follows ithis area. What maantees) such a fascground of many cdeveloped and consular context of manrich tapestry of Eurtural diversity. Nevupon the ContinenEurope to prepare fby an increasingly sety. The clarion-callerance. The right togranted.

5. Cf Young, James and Webster v. the United Kingdom, §57: “the protection of per-sonal opinion afforded by Articles 9 and 10 in the shape of freedom of thought,conscience and religion and of freedom of expression is also one of the purposesof freedom of association as guaranteed by Article 11”.

9

gion: international and

, either individually or in community with others and in

ic or private, to manifest his religion or belief in wor-

, observance, practice and teaching.

No one shall be subject to coercion which would impair

reedom to have or to adopt a religion or belief of his

ce.

Freedom to manifest one’s religion or beliefs may be

ect only to such limitations as are prescribed by law and

necessary to protect public safety, order, health, or

als or the fundamental rights and freedoms of others.

The States Parties to the present Covenant undertake

ave respect for the liberty of parents and, when applica-

legal guardians to ensure the religious and moral educa-

of their children in conformity with their own

ictions.

rantees are found in other instruments at a regionalr example, Article 12 of the American Convention onRights provides that freedom of conscience and reli-udes the


Freedom of thought, conscience and reliregional standards

Guarantees of religious liberty and respect for conscience andbelief are inevitably found in the constitutional orders of liberaldemocratic societies and in international and regional humanrights instruments. To some extent, these reflect the concernsat the time of those charged with drafting these instruments.Examples abound, each with perhaps subtly different empha-ses. In particular, Article 18 of the Universal Declaration onHuman Rights of 1948 provides that

Everyone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his reli-

gion or belief, and freedom, either alone or in community

with others and in public or private, to manifest his religion

or belief in teaching, practice, worship and observance.

A fuller formulation (which includes a reference to education,but excludes explicit recognition of the right to change religiousbelief ) is found in Article 18 of the International Covenant onCivil and Political Rights of 1966:

1. Everyone shall have the right to freedom of thought,

conscience and religion. This right shall include freedom to

have or to adopt a religion or belief of his choice, and free-

dom

publ

ship

2.

his f

choi

3.

subj

are

mor

4.

to h

ble,

tion

conv

Such gualevel. FoHuman gion incl

ligion: international and regional standards

he protection of the rights and freedoms of

of Protocol No. 1 to the European Conven-hts in the context of the right to education

ll be denied the right to education. In the

functions which it assumes in relation to

to teaching, the State shall respect the right

nsure such education and teaching in con-

eir own religious and philosophical convic-

t, conscience and belief is thus viewed pri-dual right, albeit an individual right oftention with others. Of course, a community’sication may well be associated to a signifi- particular religious affiliation. National,

ational legal instruments reflect this. Whilees are expressly founded upon the principleïcité), thus requiring a separation betweend its representatives on the one hand and

ons on the other, many domestic Constitu-cognise a particular denomination as the

ch of the State.6 Such a situation is not

shed Churches exist as a matter of constitutional provision; in the United Kingdom, both the Church of Scotland andnd are so recognised (although the nature of the establish-erent in each instance).



Freedom of thought, conscience and re10

freedom to maintain or to change one’s religion or beliefs,

and freedom to profess or disseminate one’s religion or

beliefs, either individually or together with others, in public

or in private,

while Article 8 of the African Charter on Human and Peoples’Rights specifies that

Freedom of conscience, the profession and free practice of

religion shall be guaranteed,

and further that

No one may, subject to law and order, be submitted to

measures restricting the exercise of these freedoms.

In the European Convention on Human Rights, the key guaran-tees providing protection for freedom of thought, conscienceand religion or belief are found in two provisions.

First, Article 9 provides that:

1. Everyone has the right to freedom of thought, con-

science and religion; this right includes freedom to change

his religion or belief and freedom, either alone or in com-

munity with others and in public or private, to manifest his

religion or belief, in worship, teaching, practice and observ-

ance.

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 t

others.

Secondly, Article 2 tion on Human Rigprovides that:

No person sha

exercise of any

education and

of parents to e

formity with th

tions.

Freedom of thoughmarily as an indiviexercised in associasense of self-identifcant extent with aregional and internsome European statof secularism (or lastate institutions anreligious organisatitions specifically re“established” Chur

6. For example, Establiin Nordic countriesthe Church of Englament is radically diff


11

and to preserve the essential elements of their

ely their religion, language, traditions and cul-

.9

onvention echoes the underlying assumptionsed further below – that pluralism and toler-arks of a democratic society in Europe. Othere initiatives seek to promote these values. Inopean Commission against Racism and Intol-eeks to combat racism, xenophobia, anti-tolerance by combating discrimination andnds of race, colour, language, religion, nation-or ethnic origin.10 A Europe of much diversityalls for special concern for the protection of freedom of thought, conscience and religion.

ntion, Article 5 (1). which entered into force in 1998, See also,e Parties undertake to recognise that every person belongingrity has the right to manifest his or her religion or belief andus institutions, organisations and associations.”

may make policy recommendations on general themes andples of good practice to states while also seeking to promote

rstanding and respect in civil society. It may also issue state- of contemporary concern. See e.g. statements on the banningn of minarets in Switzerland: doc CRI (2009) 32, para 33.


incompatible with freedom of religion, providing that adequateprovision is made for individual belief and for the accommoda-tion of other faiths.7 At a European level, this awareness of thelink between group identity and religious belief is found in anemphasis upon the protection of the rights of members ofminorities. In particular, the Preamble to the Framework Con-vention for the Protection of National Minorities specificallyacknowledges that

a pluralist and genuinely democratic society should not only

respect the ethnic, cultural, linguistic and religious identity

of each person belonging to a national minority, but also

create appropriate conditions enabling them to express,

preserve and develop this identity.

In other words, cultural diversity should be seen as a matter ofenrichment rather than division.8 In consequence, ContractingStates

undertake to promote the conditions necessary for persons

belonging to national minorities to maintain and develop

their culture,

identity, nam

tural heritage

The Framework C– as will be discusance are the hallmCouncil of Europparticular, the Eurerance (ECRI) ssemitism and inprejudice on grouality and national and many faiths cthe exercise of the

7. See further pp. 55 ff below.8. ETS No. 157 (1995). As at 31 October 2011, the treaty has been ratified by all

Council of Europe states with the exception of Andorra, Belgium, France,Greece, Iceland, Luxembourg, Monaco, and Turkey.

9. Framework Convee.g., Article 8: “Thto a national minoto establish religio

10. The Commissiondisseminates examintercultural undements on mattersof the constructio

Article 9 of the Convention: general considerations

eneral considerations

lving a wide and diverse range of issues, and theecisions and judgments have afforded opportunities the central importance played by religious and phil-elief in European society and to stress the key values and tolerance.

as a close proximity both textually and in the valueses with neighbouring guarantees in the treaty.uarantees not only freedom of thought, consciencen, but also the active manifestation of such. There isr link, in terms both of textual formulation and sub-ntent, with the freedoms of expression and of assem-ssociation in terms of Articles 10 and 11. Indeed,ications alleging a violation of an individual’s right to in the life of a democratic society may also contain ato Article 9, although the Strasbourg Court has innces been able to conclude that the issues raised bytion can be better resolved by reference to one orese other two guarantees, that is, by considering the one concerning freedom of expression and

11 or as falling within the scope of Article 11’s guaran-

ple, Feldek v. Slovakia; Van den Dungen v. the Netherlands.


Interpreting12

Interpreting Article 9 of the Convention: g

Introduction

In recent years, applications alleging a violation of Article 9 ofthe European Convention of Human Rights have increasedboth in number and also in their complexity. Indeed, until com-paratively recently, the case-law of the Strasbourg Court and ofthe former Commission under Article 9 was rather limited.Jurisprudence tended to cluster around discrete issues such asfreedom of religion in prisons, or conflicts between respect forbelief and contractual duties in employment. Further, therewere comparatively few cases in which the collective manifesta-tion of belief was in issue. This situation was probably indica-tive of the high level of respect generally accorded to freedomof thought, conscience and religion in most member states ofthe Council of Europe at that time, for religious and philo-sophical tolerance and respect for diversity were long-established values, or at least aspirations actively pursued. Inconsequence, it was difficult for commentators on Article 9 todiscern any underlying principles and values that determinedthe interpretation of this guarantee. In more recent years, how-ever, the Strasbourg Court has been called upon to address thescope and content of Article 9 in an increasing number of key

cases invoresultant dto reiterateosophical bof pluralism

Article 9 hit embracArticle 9 gand religiothus a cleastantive cobly and amany applparticipatereference many instaan applicaother of thmatter asArticle 10,

11. For exam


13

ief may be deemed justified. The first para- by the text of the Universal Declaration onhe second paragraph largely replicates the balancing individual rights against relevanterations found elsewhere in the European

uman Rights, and most obviously in Articlesis approach is also found in Article 18 of theenant on Civil and Political Rights, as noted

of the textual formulation is that five key to be addressed:

cope of the particular guarantee?n any interference with the right guaranteed?rference have a legitimate aim?ence “in accordance with the law”?ence “necessary in a democratic society”?rst (in light of the first paragraph) it must beer Article 9 is applicable, and if so, whether

interference with the guarantee; secondly (ind paragraph) the justification of the interfer-o determine whether there has been a viola-sion. (Remember that an application to thet must also be declared admissible, for to use the enforcement machinery providedConvention on Human Rights must satisfy aissibility hurdles, including exhaustion ofes. The discussion of admissibility require-


Applying Article 9: the checklist of key questions

tee of freedom of association.12 Article 9 at the same time alsoembraces some of the values associated with Article 8’s require-ment of respect for private life. It also has a close link with theright of parents to have their philosophical and religious con-victions respected in the provision of their children’s educationin terms of Article 2 of Protocol No. 1. Both of these guaranteesare important in helping to protect and nurture the develop-ment of individual identity. Here again, though, it may be moreappropriate to consider an issue raised by an applicant underArticle 9 in terms of one of these other provisions.13 Addition-ally, aspects of the exercise of belief and conscience can alsoarise under other guarantees such as Article 6 when theseconcern the right of access to a court for the determination of areligious community’s civil rights,14 or where property rightsare at stake, Article 1 of Protocol No. 1.15 In consequence, caremust be taken in ensuring whether Article 9 is the lex specialisin the resolution of a particular case.


The guarantee is not absolute. The first paragraph of Article 9proclaims freedom of thought, conscience and religion, but thesecond recognises that restrictions upon the manifestation of

conscience or belgraph is inspiredHuman Rights; tformula used forcompeting considConvention on H8, 10 and 11. (ThInternational Covabove.)

The consequencequestions require

� What is the s� Has there bee� Does the inte� Is the interfer� Is the interferIn other words, fiascertained wheththere has been anlight of the seconence is assessed ttion of the proviStrasbourg Coursomeone wishingby the European number of admdomestic remedi

12. For example, Refah Partisi (the Welfare Party) and others v. Turkey [GC]. 13. For example, Hoffman v. Austria, discussed at p. 79.14. For example, Canea Catholic Church v. Greece.15. Holy Monasteries v. Greece.

9 of the Convention: general considerations

ternal aspect may involve the practice ofthe private or the public sphere.

n individuals of action or practice contrarysuch as a requirement to take a religiousa religious ceremony18 will thus give rise toe 9; conversely, a restriction placed uponr behaviour mandated by belief, such as awearing of religious clothing in public19 orade others to follow a particular faith20 willcope of the guarantee. Burdens placed uponrs to exercise collective freedom of worship

on the establishment of places of worship,21

ster religious groups,22 or limitations onent preventing members of a communityorship23 will likewise do so. State authori-

n from unduly interfering in the activities ofd failure to do so may give rise to issues

f the guarantee is thus private and personaldual and collective manifestation. However,

v. San Marino, §§34-41, at §34.e, §§21-37 (no interference with Article 9 rights), discussed

thers v. Turkey, §§44-52., §§31-33.hers v. Greece, §§36-53

], §§242–246.



Interpreting Article14

ments is largely outwith the scope of this handbook, althoughbrief consideration is given below as to when and to whatextent associations such as churches or religious associationscan be considered as “victims” for the purposes of bringing anapplication.)16

These five questions need to be addressed by reference to exist-ing Article 9 case-law. Discussion of the general application ofthese tests will also provide an understanding of the interplaybetween the provision and other Convention guarantees as wellas an appreciation of key aspects of the Strasbourg Court’sapproach to interpretation. Thereafter, more specific (that is,thematic) aspects of the protection accorded by the guaranteeare considered (including such issues as prisoners’ rights, regis-tration of religious bodies and of places of worship, and dresscodes). While the case-law and discussion centres largely uponreligious belief, it is vital to recall that the same principles applyin respect of other philosophical beliefs not based upon reli-gious faith.

Question 1: Does the complaint fall within the scope of Article 9?

The scope of Article 9 is potentially wide. The provision coversnot only private or personal belief, but also collective manifes-tation of that opinion or belief, either individually or withothers. Article 9 thus has both an internal and an external

aspect; and the exbelief within either

The imposition upoto personal belief, oath17 or to attend issues under Articlindividual action oprohibition on the on seeking to persualso fall within the sthe rights of membesuch as restrictionsthe refusal to regifreedom of movemfrom gathering to wties must also refraireligious groups, anunder Article 9.24

The primary focus obelief and its indivi

16. See p. 24 below.

17. Buscarini and others18. Cf Valsamis v. Greec

at p. 27 below.19. Ahmet Arslan and o20. Kokkinakis v. Greece21. Manoussakis and ot22. See pp. 55 ff below.23. Cyprus v. Turkey [GC24. See pp. 62 ff below.


15

a religious organisation’s material resources.31

te goes beyond its core obligations undertes additional rights falling within the wider

of religion or conscience, such rights are thencle 14 in conjunction with Article 9 againstplication of domestic law.32 This point is dis-low.33

forded by Article 9 is essentially a matter forto ensure within their jurisdictions, andlimited assistance can be derived from theen an individual is under threat of expulsiony where it is claimed there is a real risk thatn would be denied if returned or expelled.34

d, while immigration control is normally awith the scope of the Convention guarantees,

v. Greece, §§86-87 (matters considered under Article 1 of Pro-the complaint did not concern “objects intended for the cele-orship”).

eč Žlvota” and others v. Croatia, §§55-59 and 85-93 (unequalria for rights to have religious marriages recognised as equal toiages and to allow religious education in public schools: viola-in conjunction with Article 9, for while these rights could note ECHR, discriminatory measures were inappropriate).

ted Kingdom (dec.) (Pakistani Christians facing deportation toe Court would not rule out the possibility that exceptionallyngaged in expulsion cases, it was difficult to envisage such cir- in any event would not engage Article 3 responsibility). See others v. Bulgaria (deportation on account of having taughtithout proper authorisation: in view of finding that deporta-

tute a violation of Article 8, no need to consider Article 9).



the term “practice” in the text of Article 9 does not cover everyact motivated or influenced by a religion or belief.25 Disposal ofhuman remains in accordance with religious wishes does notprobably involve freedom of thought, conscience or religion butrather may give rise to respect for private and family life underArticle 8.26 Nor is there any obligation upon a state to accom-modate a demand from a taxpayer that it should allocate hispayments to particular purposes,27 or that the use of a particu-lar language should be permitted in exercising freedom ofthought.28 The scope of the provision also does not extend tosuch issues as the non-availability of divorce,29 allegations ofdiscriminatory treatment in the application of tax regulations,30

or deprivation of However, if a staArticle 9 and creaambit of freedomprotected by Artidiscriminatory apcussed further, be

The protection afEuropean states accordingly very provision itself whto another countrfreedom of religioOn the other hanmatter falling out

25. Cserjés v. Hungary (dec.).26. X v. Germany (1981) (but matter can fall within the scope of Article 8). Cf

Sabanchiyeva and others v. Russia (dec.) (refusal to return bodies of alleged ter-rorists killed by law-enforcement personnel: admissible under Articles 3, 8 and9, taken alone and in conjunction with Articles 13 and 14).

27. C. v. the United Kingdom (a Quaker opposed the use of any tax paid by him formilitary purposes; the Commission noted that Article 9 could not always guar-antee the right to behave in the public sphere (e.g. refusing to pay tax) in a man-ner dictated by belief ); and Alujer Fernández and Caballero García v. Spain(dec.) (the impossibility for members of a church to earmark part of theirincome tax for the support of their church as was possible for members of theRoman Catholic Church did not give rise to a violation of Article 9 taken withArticle 14: the state had a certain margin of appreciation in such a matter onwhich there was no common European practice).

28. Inhabitants of Leeuw-St Pierre v. Belgium.29. Johnston and others v. Ireland, §§62-63 (issues considered under Articles 8, 12

and 14).30. Darby v. Sweden, §§28-35 (application disposed of under Article 1 of Protocol

No. 1 taken with Article 14; the Court considered that the establishment of aparticular church in a state did not give rise to any Article 9 issue if membershipis voluntary (§35)).

31. Holy Monasteries tocol No. 1 since bration of divine w

32. Savez Crkava “Rijallocation of critethose of civil marrtion of Article 14 be derived from th

33. At p. 75.34. Z and T v. the Uni

Pakistan: while thArticle 9 may be ecumstances whichtoo Al-Nashif andIslamic religion wtion would consti


al of human remains after death40 do notthin the meaning of the provision. On them,41 atheism42 and veganism43 are value-ompassed by Article 9. A political ideology will also qualify.44 However, it is important

rences with the voicing of thoughts or theience will often be treated as giving rise toin the scope of Article 10’s guarantee ofssion or the right of association under

rudence focuses upon religious beliefs. Atr, it is important to note that non-belief ass belief will also be protected by Article 9:

n Article 9, freedom of thought, conscience

ne of the foundations of a “democratic soci-

meaning of the Convention. It is, in its reli-

n, one of the most vital elements that go to

entity of believers and their conception of

lso a precious asset for atheists, agnostics,

e unconcerned. The pluralism indissociable

ingdom.se, Law, §6. (but matter can fall within the scope of Article 8).

nited Kingdom.

ngdom.cik v. Turkey.t v. Germany.




the refusal to allow a resident alien to enter a country onaccount of his religious beliefs may give rise to issues underArticle 9 in particular cases.35

What is meant by “thought, conscience and religion”?

Use of the terms “thought, conscience and religion” (and “reli-gion or beliefs” in paragraph 2) suggests a potentially widescope for Article 9, but the case-law indicates a somewhat nar-rower approach is adopted in practice. For example, a “con-sciousness” of belonging to a minority group (and inconsequence, the aim of seeking to protect a group’s culturalidentity)36 does not give rise to an Article 9 issue. Nor is “belief”the same as “opinion”, for to fall within the scope of Article 9,personal beliefs must satisfy two tests: first, the belief must“attain a certain level of cogency, seriousness, cohesion andimportance”; and secondly, the belief itself must be one whichmay be considered as compatible with respect for human dig-nity. In other words, the belief must relate to a “weighty andsubstantial aspect of human life and behaviour” and also besuch as to be deemed worthy of protection in European demo-cratic society.37 Beliefs in assisted suicide38 or language pref-

erences39 or disposinvolve “beliefs” wiother hand, pacifissystems clearly encsuch as communismto note that interfeexpression of conscissues arising withfreedom of expreArticle 11.45

Much of the jurispthe outset, howevewell as non-religiou

As enshrined i

and religion is o

ety” within the

gious dimensio

make up the id

life, but it is a

sceptics and th

35. Nolan and K v. Russia, §§61-75 (exclusion of resident alien on account of activi-ties as a member of the Unification Church: violation). See also Perry v. Latvia,§§51-66, discussed below at p. 39; and El Majjaoui and Stichting Touba Moskeev. the Netherlands (striking out) [GC], §§27-35 (refusal of work permit for posi-tion of imam struck out after a subsequent application for permit had been suc-cessful).

36. Sidiropoulos and others v. Greece, §41.37. Campbell and Cosans v. the United Kingdom, §36.

38. Pretty v. the United K39. Belgian Linguistic ca40. X v. Germany (1981)41. Arrowsmith v. the U42. Angelini v. Sweden.43. C.W. v. the United Ki44. Hazar, Hazar and A45. See for example Vog


17

body (as in this case such as Scientology), the

itive to the subsidiary nature of its role” may

he position taken by the domestic authorities.

y centre initially registered as a non-religious

issolved specifically on account of the reli-

activities. The use of this ground for the sup-

ntre was sufficient to allow the Court to deem

engaged.48 Certainly, what may be considered

gions are readily accepted as belief systems

e scope of the protection,49 and similarly

rity variants of such faiths.50 Older faiths such

qualify51 as do religious movements of more

h as Jehovah’s Witnesses,52 the Moon Sect,53

ent54 and the Divine Light Zentrum.55 How-

e Wicca movement involves a “religion”

en left open in one early case, and thus where

as regards this matter, an applicant may be

lish that a particular “religion” indeed does

v. Russia, §§79-81. and 8 others v. the United Kingdom (dec.).m Ve Tsedek v. France [GC].ited Kingdom.ce. (1981).e.V. and others v. Germany.d the Divine Light Zentrum v. Switzerland.ngdom (dec.) (1977).



from a democratic society, which has been dearly won over

the centuries, depends on it.

While religious freedom is primarily a matter of individual

conscience, it also implies, inter alia, freedom to “manifest

[one’s] religion”. Bearing witness in words and deeds is

bound up with the existence of religious convictions.

According to Article 9, freedom to manifest one’s religion is

not only exercisable in community with others, “in public”

and within the circle of those whose faith one shares, but

can also be asserted “alone” and “in private”; furthermore, it

includes in principle the right to try to convince one’s

neighbour, for example through “teaching”, failing which,

moreover, “freedom to change [one’s] religion or belief”,

enshrined in Article 9, would be likely to remain a dead

letter.46

It has not been found necessary to give a definite interpretationto what is meant by “religion”. Indeed, the Court has specificallyrecognised that

it is clearly not the Court’s task to decide in abstracto

whether or not a body of beliefs and related practices may

be considered a “religion”.47

In Kimlya and others v. Russia, for example, the question aroseas to whether the Church of Scientology could be recognised asa “religion”. Where there is no European consensus on the reli-

gious nature of a

Court “being sens

simply rely upon t

Here, a Scientolog

entity had been d

gious nature of its

pression of the ce

that Article 9 was

“mainstream” reli

falling within th

covered are mino

as Druidism also

recent origin suc

the Osho movem

ever, whether th

appears to have be

there is a doubt

expected to estab

exist.56

46. Kokkinakis v. Greece, §31.47. Kimlya and others v. Russia, §79.

48. Kimlya and others49. See, e.g., ISKCON50. E.g. Cha’are Shalo51. Chappell v. the Un52. Kokkinakis v. Gree53. X v. Austria (dec.)54. Leela Förderkreis 55. Omkarananda an56. X v. the United Ki


stance found in the jurisprudence concernsvation of liberty of individuals in order toramme” beliefs acquired when members ofrg Court deciding that a finding of a viola-ant that it was unnecessary to consider any

al to disclose his beliefs could thus under-the guarantee, for “no one can be compelledhts or adherence to a religion or belief.”62

ent that individuals wishing to make a rather than take an oath in court proceed-religious convictions is incompatible with

returns seeking disclosure of religious beliefly give rise to the question as to what legiti-

s would be served by having such data.64 Ae religious faith disclosed in identity docu-ible with an individual’s right not to be

f the European Convention on Human Rights permits anyn time of war or other public emergency threatening the lifee measures derogating from its obligations under the Con-nt strictly required by the exigencies of the situation”, pro-sures are not inconsistent with its other obligations under

ers v. Spain, §§31-35.mittee, General Comment 22, Article 18, CCPR/C/21/

t para. 3 (in respect of Article 18 of the ICCPR).s v. Greece, §§76-78; see similarly Alexandridis v. Greece,

Warbrick, Law of the European Convention on Human), at p. 429.




The forum internum

At its most basic, Article 9 seeks to prevent state indoctrinationof individuals by permitting the holding, development, andrefinement and ultimately change of personal thought, con-science and religion. All of this involves what is often referredto as the forum internum.57 For example,

an intention to vote for a specific party is essentially a

thought confined to the forum internum of a voter and its

existence cannot be proved or disproved until and unless it

has manifested itself through the act of voting.58

A reading of the text of Article 9 points to the rights to hold andto change ideas as being absolute rights, for paragraph (2) pro-vides that only the “freedom to manifest one’s religion orbeliefs” may be limited by domestic law in particular circum-stances. The clear implication from the text is thus thatfreedom of thought, conscience and religion not involving amanifestation of belief cannot be subject to state interference.Certainly, it must be possible for an individual to leave a reli-gious faith or community.59 In any event, it may be difficult toenvisage circumstances – even in the event of a war or nationalemergency60 – in which a state would seek to obstruct the veryessence of the rights to hold and to change personal convic-tions. However, such a situation is not entirely inconceivable,

although the sole inthe unlawful depriattempt to “de-proga sect, the Strasboution of Article 5 meArticle 9 issue.61

Forcing an individumine this aspect of to reveal his thougThus the requiremsolemn declarationings disclose their Article 9.63 Census or affiliation certainmate state purposerequirement to havments is incompat

57. E.g. Van den Dungen v. the Netherlands.58. Georgian Labour Party v. Georgia, §120.59. See Darby v. Sweden, noted above at p. 15.

60. Further, Article 15 oContracting State, “iof the nation” to takvention “to the extevided that such meainternational law.

61. Riera Blume and oth62. Human Rights Com

Rev. 1/Add (1993), a63. Dimitras and other

§§33-41.64. Harris, O’Boyle and

Rights (2nd ed., 2009


19

rmer Yugoslav Republic of Macedonia”, then penalised for failing to attend his place ofof a religious holiday. The Strasbourg Courts:

applicant has complained that there was an

ith the inner sphere of belief in that he was

prove his faith, the Court recalls that the

ourts’ decisions on the applicant’s appeal

sciplinary punishment imposed on him made

tively that the applicant had not substantiated

ess of his claim to be a Muslim and that his

he contrary cast doubt on that claim in that

o outward signs of his practising the Muslim

ing collective Muslim worship. While the

State sitting in judgment on the state of a citi-

d personal beliefs is abhorrent and may smack

f past infamous persecutions, the Court

this is a case where the applicant sought to

l right bestowed by [domestic] law which pro-

slims could take holiday on particular days. …

t of employment, with contracts setting out

gations and rights between employer and

Court does not find it unreasonable that an

y regard absence without permission or appar-

ion as a disciplinary matter. Where the

n seeks to rely on a particular exemption, it is

e or in fundamental conflict with freedom of



obliged to disclose his religion.65 However, there may be twosets of circumstances in which it may be justified to requiresuch disclosure. First, a state may seek to ascertain the valuesand beliefs held by candidates for public employment on thegrounds that they hold views incompatible with the office.66 Yetthis qualification itself is qualified, for the failure to appoint anindividual to a post on the ground of belief may in turn involvean interference with freedom of expression under Article 10.For example, in Lombardi Vallauri v. Italy a university lecturerhad been refused renewal of a contract for a teaching post at adenominational university since it was considered that he heldviews that were incompatible with the religious doctrine of theuniversity in which he had worked for some 20 years. A viola-tion of Article 10 was established on account of the failure bythe university and by the domestic courts to explain how theapplicant’s views were liable to affect the interests of the univer-sity.67 Secondly, an individual seeking to take advantage of aspecial privilege made available in domestic law on the groundsof belief may be expected to disclose and to justify his beliefs.This may occur, for example, in respect of application for rec-ognition of conscientious objection to a requirement to carryout military service where such an exemption is recognised indomestic law.68 It may also arise in other circumstances. In

Kosteski v.“the foapplicant had beework on the day observed as follow

Insofar as the

interference w

required to

[domestic] c

against the di

findings effec

the genuinen

conduct on t

there were n

faith or join

notion of the

zen’s inner an

unhappily o

observes that

enjoy a specia

vided that Mu

In the contex

specific obli

employee, the

employer ma

ent justificat

employee the

not oppressiv

65. Sinan Işik v. Turkey, §§37-53 (identity cards carried a “religion” data field whichcould, however, be left blank).

66. Vogt v. Germany, §§41-68 (disposal under Articles 10 and 11).67. Lombardi Vallauri v. Italy, §§43-56.68. See N. v. Sweden and Raninen v. Finland. See further p. 44 below.


ate aspects of their own religious and phil-

ictions. The risk of such compulsion was all

ent in view of the difficulties highlighted

nts in identifying the parts of the teaching

sidered as amounting to the practice of

or adherence to another philosophy of life.

question whether a request for exemption

was apparently a potential breeding ground

ituation that parents might prefer simply to

pressing a wish for exemption. 70

plicit reference in the text of Article 9 to theion to hold or to adopt a religion or beliefle 18 of the International Covenant on Civil), Article 9 issues may also arise in situations are required to act against their conscience

rini and others v. San Marino, for example,o had been elected to parliament had beeneligious oath on the Bible as a condition of to office. The respondent governmentt the form of words used (“I swear on theo be faithful to and obey the Constitution ofs essentially of historical and social ratherficance. In agreeing with the Commissioncontradictory to make the exercise of a

o represent different views of society within

Norway [GC], §98.




conscience to require some level of substantiation when

that claim concerns a privilege or entitlement not com-

monly available and, if that substantiation is not forth-

coming, to reach a negative conclusion. …69

The qualification “privilege or entitlement not commonly avail-able”, however, suggests a restricted application of this princi-ple. For example, in respect of parents who seek to have theirphilosophical convictions taken into account in the provision ofeducation for their children, education authorities may notprobe too far into the beliefs of such parents. This situationarose in Folgerø and others v. Norway, in which domesticarrangements allowing parents to object to certain aspects ofthe education of their children were considered unsatisfactoryin terms of Article 2 of Protocol No. 1:

… it was a condition for obtaining partial exemption that

the parents give reasonable grounds for their request. The

Court observes that information about personal religious

and philosophical conviction concerns some of the most

intimate aspects of private life. … [I]mposing an obligation

on parents to disclose detailed information to the school

authorities about their religions and philosophical convic-

tions may constitute a violation of Article 8 of the Conven-

tion and, possibly also, of Article 9. … [I]inherent in the

condition to give reasonable grounds was a risk that the

parents might feel compelled to disclose to the school

authorities intim

osophical conv

the more pres

above for pare

that they con

another religion

In addition, the

was reasonable

for conflict, a s

avoid by not ex

While there is no exprohibition of coerc(as appears in Articand Political Rightsin which individualsor beliefs. In Buscatwo individuals whrequired to take a rtheir appointmentsought to argue thaHoly Gospels ever tthe Republic…”) wathan religious signithat it “would be mandate intended t

69. Kosteski v. “the former Yugoslav Republic of Macedonia”, §39. 70. Folgerø and others v.


21

f religion or belief

ects acts intimately linked to the forum inter-belief.76 The specific textual reference to thealone or in community with others and in to manifest [one’s] religion or belief, in wor-actice and observance” underlines that mani- is an integral part of the protection accorded For example, “bearing witness in words and with the existence of religious convictions”.77

ch “manifestations” of thought, conscience ortimes may appear indistinguishable from theght or conscience falling within the scope oftee of freedom of speech, care must be takenich guarantee ought to apply.

implies a perception on the part of adherents activity is in some manner prescribed ored, the textual formulation of paragraph 1ations by means of “worship, teaching, prac-ce”. What qualifies as a “manifestation” of reli-

ay call for careful analysis, for as thed in the early case of Arrowsmith v. the United “does not cover each act which is motivated

dsen and Pedersen v. Denmark, discussed below at p. 68. Seeeden and C.J., J.J and E.J. v. Poland (dec.). See further pp. 66 ff

oland (dec.).ce.



Parliament subject to a prior declaration of commitment to aparticular set of beliefs”, the Strasbourg Court determined thatthe imposition of the requirement could not be deemed to be“necessary in a democratic society”.71 Similarly, domestic lawmay not impose an obligation to support a religious organisa-tion by means of taxation without recognising the right of anindividual to leave the church and thus obtain an exemptionfrom the requirement.72 However, this principle does notextend to general legal obligations falling exclusively in thepublic sphere, and thus taxpayers may not demand that theirpayments are not allocated to particular purposes.73

Protection against coercion or indoctrination may also arise inother ways. For example, domestic law may deem it appropriateto seek to protect individuals considered in some sense vulner-able (whether on account of immaturity, status or otherwise)against “improper proselytism”, that is, encouragement or pres-sure to change religious belief which can be deemed inappro-priate in the particular circumstances of the case.74 Further, asnoted, in accordance with Article 2 of Protocol No. 1 the philo-sophical or religious convictions of parents must be respectedby the State when providing education, and thus a parent mayprevent the “indoctrination” of his child in school.75

Manifestations o

Article 9 also protnum of personal “freedom, either public or private,ship, teaching, prfestation of beliefby the guarantee.deeds is bound upHowever, since sureligious belief at expression of thouArticle 10’s guaranin determining wh

A “manifestation”that a course ofrequired. As notrefers to manifesttice and observangion or belief mCommission noteKingdom, the term

71. Buscarini and others v. San Marino, §§34-41, at §39.72. Darby v. Sweden, noted above at p. 15.73. C. v. the United Kingdom.74. Kokkinakis v. Greece, discussed below at p. 47 ff.

75. Kjeldsen, Busk Maalso Angeleni v. Swbelow.

76. C.J., J.J and E.J. v. P77. Kokkinakis v. Gree


“manifestation”; but in such cases, interfer-t to disseminate materials of the kind in

ise to issues falling under Article 10’s guar- expression.

er “worship, teaching, practice and observ-or merely motivated by belief may thus notrward. The refusal to work on a particulared a manifestation of religious belief, even

ce from the place of work may have been1 A refusal to hand over a letter of repudia-ouse in terms of Jewish law also does nottion of belief,82 nor will the choice of fore- (although this may fall within the scope ofhe meaning of Article 9).83 Certainly, theving rise to clear interferences with the rightnd to involve “manifestations” in the publicprivate sphere (for example, through the

ions for attempting to convert others, or formbols in university), but it is crucial at this that not every act in the public sphereidual conviction will necessarily fall withinrovision.84 Many of these cases, however,

he Netherlands. See also Knudsen v. Norway (dec.).gdom (dec.) (1981); and Kosteski v.“the former Yugoslav.ia”, §38.

he Netherlands.




or influenced by a religion or a belief”.78 The case-law makesclear that such matters as proselytism, general participation inthe life of a religious community, and the slaughtering ofanimals in accordance with religious prescriptions are readilycovered by the term. However, a distinction must be drawnbetween an activity central to the expression of a religion orbelief, and one which is merely inspired or even encouraged byit. In Arrowsmith the applicant, who was a pacifist, had beenconvicted for handing out leaflets to soldiers. The leaflets hadfocused not upon the promotion of non-violent means fordealing with political issues but instead had been critical ofgovernment policy in respect of civil unrest in one part of thecountry. The Commission accepted that any public declarationwhich proclaimed the idea of pacifism and urged acceptance ofa commitment to the belief in non-violence would fall to beconsidered as a “normal and recognised manifestation of paci-fist belief”, but as the leaflets in question had expressed not herown pacifist values but rather her critical observations of gov-ernmental policy, their distribution could not qualify as a“manifestation” of a belief under Article 9 even although thishad been motivated by a belief in pacifism.79 Similarly, the dis-tribution of anti-abortion material outside a clinic will not bedeemed to involve expression of religious or philosophicalbeliefs as this involves essentially persuading women not tohave an abortion.80 Care is thus needed in determining what is

meant by the term ences with the righquestion will give rantee of freedom of

Establishing whethance” is prescribed always be straightfoday cannot be deemalthough the absenmotivated by such.8

tion to a former spinvolve a manifestanames for children“thought” within tfactual situations gito manifest belief terather than in the imposition of sanctwearing religious systage to appreciateattributable to indivthe scope of the p

78. Arrowsmith v. the United Kingdom.79. Arrowsmith v. the United Kingdom, at §§71-72.

80. Van den Dungen v. t81. X v. the United Kin

Republic of Macedon82. D. v. France (1983).83. Salonen v. Finland.84. Van den Dungen v. t


23

ictions placed upon adherents’ ability to take observances will give rise to Article 9 consid-us in such cases Article 9 needs to be inter-he protection accorded by Article 11. Further,ommunity must be guaranteed access to courtinterests, Article 6 may also be of cruciallose interplay between these three provisions

Court in the case of Metropolitan Church ofdova:

ious communities traditionally exist in the

ised structures, Article 9 must be interpreted

f Article 11 of the Convention, which safe-

ative life against unjustified State interference.

erspective, the right of believers to freedom of

h includes the right to manifest one’s religion

y with others, encompasses the expectation

will be allowed to associate freely, without

e intervention. Indeed, the autonomous exist-

us communities is indispensable for pluralism

ic society and is thus an issue at the very heart

ion which Article 9 affords.

ne of the means of exercising the right to man-

igion, especially for a religious community, in

dimension, is the possibility of ensuring judi-

[GC], §§241-247 (restrictions on movement including accessip curtailed ability to observe religious beliefs).



point to a central dilemma in this aspect of the case-law: deter-mining whether a particular action constitutes a “manifesta-tion” of, or merely has been motivated by, conscience or beliefcan require potentially intrusive scrutiny of individual beliefand thus an intrusion into the “forum internum”. Some retreatfrom – or at least, relaxation of – the Arrowsmith approach isnow evident: for example, it is now accepted that the wearing ofconspicuous signs of religious beliefs in schools should be con-sidered as a restriction on the freedom to manifest religiousfaith,85 an approach which also avoids the difficulty of becom-ing embroiled in questions of theology.

The collective aspect of Article 9

As well as those elements of the guarantee relating to the foruminternum and to individual manifestation of thought, con-science and religion, Article 9 also protects manifestation ofbelief with others both in the private and public spheres, for asthe text of paragraph (1) makes clear, a “manifestation” of beliefmay take place “either alone or in community with others” andthus may occur both in the private and public spheres. Worshipwith others may be the most obvious form of collective mani-festation. Here, though, other provisions of the Conventionmay be relevant, either in interpreting Article 9 in light of theserequirements, or indeed as the more appropriate provision todetermine the particular issue. For example, access to places of

worship and restrpart in services orerations,86 and thpreted in light of tsince a religious cto safeguard its importance. The cwas noted by theBessarabia v. Mol

… since relig

form of organ

in the light o

guards associ

Seen in that p

religion, whic

in communit

that believers

arbitrary Stat

ence of religio

in a democrat

of the protect

In addition, o

ifest one’s rel

its collective

85. See, e.g., Aktas v. France (dec.) (expulsion from school for refusing to removevarious religious symbols). See further p. 49 below.

86. Cyprus v. Turkey to places of worsh


f internal church administration taken by avernmental agency.90 This is so even where

involved is recognised by domestic law aslar status of an established church.91)

ct of Article 9 and recognition of “victim”

ect of Article 9 is indeed emphasised bychurch or other religious organisation mayh “victim” status within the meaning ofnvention. In other words, for the purpose oflity criteria, a church may be recognised as challenge an interference with respect forn it can show it is bringing a challenge in acity on behalf of its members.92 However,esentative status will not extend to a com-stannus OY, Vapaa ajattelija AB and otherspplicant was a limited liability company, thegistered umbrella association (of “free- third was the manager of the applicantber of one of the branches of the applicant

plicant company had been set up with thelishing and selling books reflecting and pro-the philosophical movement. The company

i Stockholm and Teuvo Hautaniemi v. Sweden.(1976).nd Church of Scientology v. Sweden (dec.); and Canea Cath-, §31.




cial protection of the community, its members and its

assets, so that Article 9 must be seen not only in the light of

Article 11, but also in the light of Article 6.87

The protection accorded to this collective aspect of thefreedom of thought, conscience and belief by Article 9 is illus-trated above all by cases in which state authorities haveattempted to interfere in the internal organisation of religiouscommunities. Relevant cases are discussed below.88

Where the individual and collective aspects of Article 9 mayconflict, it will generally be appropriate to consider that the col-lective rather than the individual manifestation of belief shouldprevail, for the reason that “a church is an organised religiouscommunity based on identical or at least substantially similarviews”, and thus the religious organisation “itself is protected inits rights to manifest its religion, to organise and carry out wor-ship, teaching, practice and observance, and it is free to act outand enforce uniformity in these matters”. In consequence, it willbe difficult for a member of the clergy to maintain that he hasthe right to manifest his own individual beliefs in a mannercontrary to the standard practice of his church.89 (In any event,the action complained of must involve exercise of state author-ity rather than action taken by an ecclesiastical body. Thuswhere a dispute relates to a matter such as use of the liturgy,state responsibility will not be engaged as this involves a chal-

lenge to a matter obody that is not a gothe religious body enjoying the particu

The collective aspe

status

This collective asprecognition that a be able to establisArticle 34 of the Cosatisfying admissibihaving the right toreligious belief wherepresentative caparecognition of reprmercial body. In Kuv. Finland the first asecond was a rethinkers”), and thecompany and a memassociation. The apprimary aim of pubmoting the aims of

87. Metropolitan Church of Bessarabia v. Moldova, §118.88. At pp. 62 ff.89. X v. the United Kingdom (dec.) (1981). See also Knudsen v. Norway (dec.).

90. Finska församlingen91. X v. Denmark (dec.) 92. See, for example, X a

olic Church v. Greece


25

ed from pursuing the company’s commercial

s own name.93

nition of representative status in respect of anembers appears only to extend to religious allegations of interference with thought orerein “Kontakt-Information-Therapie” and

the applicant association was a private non-nisation operating drug abuse rehabilitation

ute concerned a requirement imposed uponlose information relating to their clients, aacterised by the applicants as a matter of con-ommission, this part of the application fell toe personae:

tion does not claim to be a victim of a viola-

n Convention rights. Moreover, the rights pri-

ed, i.e. the right to freedom of conscience

9 of the Convention and the right not to be

egrading treatment or punishment (Article 3),

ery nature not susceptible of being exercised

rson such as a private association. Insofar as

oncerned, the Commission considers that a

ust be made in this respect between the

onscience and the freedom of religion, which

ercised by a church as such….94

paa ajattelija AB and others v. Finland.nformation-Therapie” and Hagen v. Austria (dec.).



had been required to pay a church tax, a requirement upheld bythe domestic courts as the company was a commercial enter-prise rather than a religious community or a public utilityorganisation. In deciding that the part of the application alleg-ing a violation with Article 9 rights was manifestly ill-founded,the Commission remarked as follows:

The Commission recalls that pursuant to the second limb of

Article 9 para. 1 the general right to freedom of religion

includes, inter alia, freedom to manifest a religion or

“belief ” either alone or “in community with others” whether

in public or in private. The Commission would therefore

not exclude that the applicant association is in principle

capable of possessing and exercising rights under Article 9

para. 1. However, the complaint now before the Commis-

sion merely concerns the obligation of the applicant

company to pay taxes reserved for Church activities. The

company form may have been a deliberate choice on the

part of the applicant association and its branches for the

pursuance of part of the freethinkers’ activities. Neverthe-

less, for the purposes of domestic law this applicant was

registered as a corporate body with limited liability. As such

it is in principle required by domestic law to pay tax as any

other corporate body, regardless of the underlying purpose

of its activities on account of its links with the applicant

association and its branches and irrespective of the final

receiver of the tax revenues collected from it. Finally, it has

not been shown that the applicant association would have

been prevent

activities in it

Further, the recogassociation of mbelief and not toconscience. In VHagen v. Austria profitmaking orgacentres. The disptherapists to discrequirement charscience. For the Cbe rejected ration

… the associa

tion of its ow

marily invok

under Article

subjected to d

are by their v

by a legal pe

Article 9 is c

distinction m

freedom of c

can also be ex

93. Kustannus OY, Va94. Verein “Kontakt-I


, it will also be necessary in many instances it would be more appropriate to consider another provision of the Convention. Theigious organisation’s material resources, foreld not to fall within the scope of Article 9,

se to issues under the protection of property1 of Protocol No 1.99 Similarly, refusal to

an exemption from the payment of a churchf non-registration may be better consideredt to property taken in conjunction with therimination in the enjoyment of Conventionhan as a matter of conscience or religion.100

usal to recognise marriage with an underage Islamic law involved an interference with

lief was deemed not to fall within the scopeer of Article 12.101

there been any interference with

wn that the issue falls within the scope offor the applicant to establish that there hase” with his Article 9 rights. As noted above,

distinct from a “violation”: the determina-been an “interference” with an individual’s

Greece.0-34 See also note, p. 15 above.ingdom (dec.).




Limits to the scope of Article 9

The scope of Article 9 cannot be stretched too far. It does notinclude, for example, matters such as the non-availability ofdivorce,95 the distribution of information persuading womennot to undergo abortions,96 or a determination of whether thesale of public housing in order to boost a political party’s elec-toral chances involved wilful misconduct on the part of a politi-cian.97 Nor does belief in assisted suicide qualify as a religiousor philosophical belief, but this is rather a commitment to theprinciple of personal autonomy more appropriate for discus-sion under Article 8, as the Strasbourg Court made clear inPretty v. the United Kingdom:

The Court does not doubt the firmness of the applicant’s

views concerning assisted suicide but would observe that

not all opinions or convictions constitute beliefs in the

sense protected by Article 9 §1 of the Convention. Her

claims do not involve a form of manifestation of a religion

or belief, through worship, teaching, practice or observance

as described in the second sentence of the first paragraph.

… To the extent that the applicant’s views reflect her com-

mitment to the principle of personal autonomy, her claim is

a restatement of the complaint raised under Article 8 of the

Convention.98

Further, as stressedto consider whethercomplaint under adeprivation of a relexample, has been hbut rather to give riin terms of Articlegrant an individual tax on the ground oin terms of the righprohibition on discguarantees rather tA claim that the refgirl as permitted bymanifestation of beof Article 9 but rath

Question 2: Has Article 9 rights?

Once it can be shoArticle 9, it will be been an “interferencan “interference” istion that there has

95. Johnston and others v. Ireland, §63.96. Van den Dungen v. the Netherlands (dec.).97. Porter v. the United Kingdom (dec.).98. Pretty v. the United Kingdom, §82.

99. Holy Monasteries v. 100. Darby v. Sweden, §§3101. Khan v. the United K


27

fs or the means used to express such beliefs

.105

s been an “interference” with the rights of an religious organisation may not in practice beish. Sanctions imposed upon individuals forfor wearing items of religious clothing107 willnces”, as will curtailing access to places oficting the ability of adherents to take part in

nces108 or the refusal to grant any necessaryn to a church.109 It is appropriate to proceedthe labelling of a religious organisation as aad a detrimental impact upon the organisa- not every situation involving a conflicthorities and clearly held and sincere convic-f individuals will permit the conclusion to be has been an “interference” with Article 9

ted cases of Valsamis v. Greece and Efstratioumple, pupils who were Jehovah’s Witnessesd for failing to attend parades commemorat-national day because of their belief (and that

h v. Bulgaria [GC], §78.ce, discussed below at p. 48. 6 below.[GC], §§241-247 (restrictions on movement including accessip curtailed ability to observe religious beliefs).t pp. 56 ff.

e.V. and others v. Germany, §84, discussed further at p. 56



rights merely leads to further consideration under paragraph 2as to whether this “interference” was or was not justified in theparticular circumstances. An “interference” with an individual’srights will normally involve the taking of a measure by a stateauthority; it can, where a positive obligation on the part of stateauthorities is recognised, also involve the failure to take somenecessary action. (As discussed above, it is crucial that the chal-lenged action involves that of a state rather than of an ecclesias-tical body: matters of internal church administration do notinvolve the exercise of state authority, even where the church isrecognised as an established church.102 However, even wherethe impugned action is that of a religious organisation, domes-tic courts may be required to reflect Convention expectationsin their decisions, a matter discussed further below.103) Further,as a general principle, state authorities are expected to adopt aposition of neutrality in respect of religions, faiths andbeliefs.104 Such an obligation is inherent in a pluralist demo-cratic society. In particular, any assessment of the legitimacy ofreligious beliefs or of the ways in which those beliefs areexpressed is incompatible with Article 9:

but for very exceptional cases, the right to freedom of reli-

gion as guaranteed under the Convention excludes any dis-

cretion on the part of the State to determine whether

religious belie

are legitimate

Whether there haindividual or of adifficult to establproselytism106 or involve “interfereworship and restrreligious observaofficial recognitioon the basis that “sect” may have htion.110 However,between state auttions on the part odrawn that thererights. In the relav. Greece, for exahad been punisheing the country’s

102. See p. 24, above.103. At pp. 32 ff.104. See, e.g., Ivanova v. Bulgaria, discussed at p. 31 below.

105. Hasan and Chaus106. Kokkinakis v. Gree107. See further page 4108. Cyprus v. Turkey

to places of worsh109. Discussed below a110. Leela Förderkreis

below.


otected rights: it can also place the state to take active steps. The guarantees foundnvention on Human Rights have to be prac-ghts. Hence, Strasbourg jurisprudence con-ositive obligations”, that is, responsibilitieske certain action with a view to protectinguals.

rinciple driving the case-law on positivety on the part of state authorities to ensure

ty exists within a spirit of pluralism andFor example, it may be necessary for thege in “neutral mediation” to help factionsute within religious communities.112 It may

at domestic arrangements permit religiousise their faith in accordance with dietaryugh the obligation may be limited to ensur-able access to the foodstuff, rather than

or the ritual preparation of meat.113 Further,st respond appropriately to protect adher-ths from religiously-motivated attacks, andhave occurred, to do what is reasonable into collect and secure the evidence, explore of discovering the truth and deliver fully and objective decisions, without omitting

cil of the Muslim Community v. Bulgaria.sedek v. France [GC], discussed below at p. 33.




of their families) that such events were incompatible with theirfirmly-held pacifism. The Strasbourg Court considered that thenature of these parades had involved a public celebration ofdemocracy and human rights, and even taking into account theinvolvement of military personnel, the parades could not beconsidered to have been such as to have offended the appli-cants’ pacifist convictions.111 Such cases illustrate the occa-sional difficulty that may arise in determining whether an“interference” has occurred. Assessments may also be conten-tious: here, the dissenting judges were unable to discern anyground for holding that participation in a public event designedto show solidarity with symbolism which was anathema to per-sonal religious belief could be deemed “necessary in a demo-cratic society”.

Positive obligations

Under the European Convention on Human Rights, Article 1,contracting states undertake to “secure to everyone within theirjurisdiction” the rights and freedoms set out in the Conventionand its protocols. In consequence, a state is first under a nega-tive obligation to refrain from interfering with the protectedrights. This negative obligation is reflected, for example, in thelanguage used in Article 9 which provides that “[f ]reedom tomanifest one’s religion or beliefs shall be subject only to suchlimitations as …”. The overarching obligation to secure rights is,however, not confined to a requirement that states refrain from

interfering with prunder an obligationin the European Cotical and effective ritains the idea of “pupon the State to tathe rights of individ

The fundamental pobligations is the duthat religious libermutual tolerance. authorities to engaresolve internal dispalso be expected thadherents to practrequirements, althoing there is reasonaccess to facilities fthe authorities muents of religious faiwhen such attacks the circumstances all practical meansreasoned, impartial

111. Valsamis v. Greece, §§37-38; and Efstratiou v. Greece, §§38-39.112. Supreme Holy Coun113. Cha’are Shalom Ve T


29

eps to protect belief is determined to haveerence.

mandatory or merely permissive will alwayscumstances. A situation in which the state hasd in the internal arrangements of a religiouser to resolve conflict between adherents can

e of a positive obligation arising underthis merely involves “neutral mediation” in different competing religious factions thererence with Article 9 rights, as the case of theuncil of the Muslim Community v. Bulgariaever, the nature of such an intervention mustefully, for action going beyond mere “neutraldeed involve an interference with Article 9concerned efforts made by the respondentdress long-standing and continuing divisionss of a political and personal nature within the community. The question was essentiallytant change of religious leadership had beene state pressure rather than the outcome of aived at by the community:

ent argued that the authorities had merely

ween the opposing groups and assisted the

ocess as they were under a constitutional duty

ious tolerance and peaceful relations between

ievers. The Court agrees that States have such

hat discharging it may require engaging in



suspicious facts that may be indicative of a religiously inducedviolence.114 However, it will not generally be considered neces-sary to take steps to allow an employee to make arrangementsto allow him to take part in religious observances,115 evenalthough the burden placed upon an employer (were such aduty to be recognised) is unlikely to be an onerous one in mostcases.

It is thus not always obvious whether a positive obligation toprotect thought, conscience or religion exists. In deciding moregenerally whether or not a positive obligation arises, the Stras-bourg Court will seek to “have regard to the fair balance thathas to be struck between the general interest of the communityand the competing private interests of the individual, or indi-viduals, concerned”.116 Further, the Strasbourg Court has notalways drawn a clear distinction between the obligation to takesteps, and approval of state action which has been taken atdomestic level with the aim of advancing protection for belief.In other words, there appears to be an important differencebetween Strasbourg Court approbation of domestic measurestaken with a view to promote belief, and cases in which the

failure to take stinvolved an interf

Whether action isdepend on the ciractively intervenecommunity in ordinvolve dischargArticle 9. Where disputes betweenwill be no interfeSupreme Holy Comakes clear. Howbe considered carmediation” will inrights. This case government to adcaused by conflictMuslim religiouswhether the resulthe result of undudecision freely arr

The Governm

mediated bet

unification pr

to secure relig

groups of bel

a duty and t

114. 97 members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v.Georgia, §§138-142 (group attack on a congregation of Jehovah’s Witnesses byOrthodox believers involving violent assaults and destruction of religious arte-facts, the police being unwilling to intervene or investigate, and little attemptbeing made to instigate criminal proceedings: violation of Article 14 in conjunc-tion with Articles 3 and 9).

115. Discussed at pp. 30 ff below.116. For example, Dubowska and Skup v. Poland.


vidual to worship at a particular time or in aEmployees have a duty to observe the rulesrking hours, and dismissal for failing to

ount of religious observances does not giveg within the scope of Article 9.119 The justi-

approach is the voluntary nature of employ-nciple that an employee who leaves his to follow whatever observances he feels are extends to public sector employment. In Strasbourg Court held that a member ofd voluntarily accepted restrictions upon hisis beliefs when joining up on the grounds oflitary life (although in any event, in this case satisfied that the applicant had been pre-g his religious observations):

pursue a military career [the applicant] was

s own accord a system of military discipline

nature implied the possibility of placing on

ghts and freedoms of members of the armed

ns incapable of being imposed on civilians.

pt for their armies disciplinary regulations

(dec.). See also Stedman v. the United Kingdom (dec.). Seesses of Moscow v. Russia, §§170-182 (refusal to re-register a and its dissolution in part on account of perceived restric-lief upon adherents despite assurances that they determined place of employment: violation, the Court noting also thatart-time employment or missionary activities were not con-n Convention on Human Rights).




mediation. Neutral mediation between groups of believers

would not in principle amount to State interference with

the believers’ rights under Article 9 of the Convention,

although the State authorities must be cautious in this par-

ticularly delicate area.

Here, though, the Strasbourg Court determined that theauthorities had actively sought the reunification of the dividedcommunity by taking steps to compel the imposition of a singleleadership against the will of one of the two rival leaderships.This went beyond “neutral mediation” and had thus involved aninterference with Article 9 rights.117 Such cases also illustratethe interplay between freedom of religion and freedom of asso-ciation: Article 9 when interpreted in the light of Article 11

encompasses the expectation that [such a] community will

be allowed to function peacefully, free from arbitrary State

intervention.118

Employment and freedom of thought, conscience and

religion

In the area of employment, the protection accorded by Article 9is somewhat restricted. The Strasbourg Court has proved gen-erally reluctant to recognise any positive obligation on the partof employers to take steps to facilitate the manifestation ofbelief, for example, by organising the discharge of responsibili-

ties to allow an indiparticular manner. governing their woattend work on accrise to an issue fallinfication for such an ment, and the priemployment is ablenecessary. This alsoKalaç v. Turkey, thethe armed forces haability to manifest hthe exigencies of mithe Court was notvented from fulfillin

In choosing to

accepting of hi

that by its very

certain of the ri

forces limitatio

States may ado

117. Supreme Holy Council of the Muslim Community v. Bulgaria, §§76-86 at §§79and 80, discussed further at p. 63, below.

118. Supreme Holy Council of the Muslim Community v. Bulgaria, §73.

119. Konttinen v. Finlandalso Jehovah’s Witnereligious associationtions imposed by befor themselves theirvoluntary work or ptrary to the Europea


31

titute an interference with an individual’sn relation to certain public sector offices, twos on the exercise of freedom of thought, con-n apply. First, “in order to perform its role aspartial organiser of the exercise of religiousay decide to impose on its serving or future

will be required to wield a portion of its sov-duty to refrain from taking part” in the activi-

ovements.122 Secondly, a state may seek toes and beliefs held by candidates for publicismiss them on the grounds that they hold

le with their office.123 However, certain caveats may result in unjustified interferences with rights such as freedom of expression underay also constitute indirect discrimination on.125 Further, the state must remain neutral. Inia the applicant’s dismissal from a non-teach-ol on account of her membership of an Evan-roup that had been denied state registrationied on its activities clandestinely and in the

g official and media harassment was held toiolation of Article 9. Significant pressure hade applicant to resign, but ultimately she had

(dec.).Welfare Party) and others v. Turkey [GC], §94.§§41-68 (disposal under Articles 10 and 11).i Vallauri v. Italy, discussed above at p. 19.eece [GC], discussed at p. 79 below.



forbidding this or that type of conduct, in particular an atti-

tude inimical to an established order reflecting the require-

ments of military service.

It is not contested that the applicant, within the limits

imposed by the requirements of military life, was able to

fulfil the obligations which constitute the normal forms

through which a Muslim practises his religion. For example,

he was in particular permitted to pray five times a day and

to perform his other religious duties, such as keeping the

fast of Ramadan and attending Friday prayers at the

mosque. The Supreme Military Council’s order was, more-

over, not based on [the applicant’s] religious opinions and

beliefs or the way he had performed his religious duties but

on his conduct and attitude. According to the Turkish

authorities, this conduct breached military discipline and

infringed the principle of secularism. The Court accord-

ingly concludes that 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 appli-

cant manifested his religion.120

In short, unless there are special features accepted as being ofparticular weight, incompatibility between contractual or otherduties and personal belief or principle will not normally giverise to an issue under Article 9, and thus action taken as a resultof the deliberate non-observance of professional duties is

unlikely to consrights.121 Indeed, ifurther restrictionscience and religiothe neutral and imbeliefs, the State mcivil servants, whoereign power, the ties of religious mascertain the valuemployment, or dviews incompatibapply. Such actionother ConventionArticle 10.124 It mthe basis of beliefIvanova v. Bulgaring role in a schogelical Christian gand that had carrface of continuinhave involved a vbeen placed on th

120. Kalaç v. Turkey, §§28-31.

121. Cserjés v. Hungary122. Refah Partisi (the 123. Vogt v. Germany, 124. See, e.g., Lombard125. Thlimmenos v. Gr


expected to ensure that Convention guar-al and effective” by reflecting this in theirile the autonomy of religious communities

t undue state interference under Article 9rticle 11’s protection for freedom of assem-

domestic courts and tribunals must never-t the grounds for dismissal have takennt of Convention expectations underly where an employee who has been dis-s organisation has limited opportunities ofment. The related cases of Obst v. Germanyany illustrate this point. In Obst, the Euro-blic relations for the Mormon church hadconfessed adultery; in Schüth, the organist

f a Roman Catholic parish had been dis-me known that he and his new partner wereollowing his separation from his wife. Ineed with the domestic employment court’sissal of the applicant based upon his own

his infidelity could be viewed as a necessarypreserving the church’s credibility, for theave been aware of the contractual impor-lity for his employer and thus of the incom-xtra-marital relationship in light of thens of loyalty that this particular poste, the domestic courts had also consideredess severe sanction and the degree of likeli-




been dismissed on the ostensible ground of not meeting therequirements for her post as a result of the school’s claimedneed that the post-holder should hold a university degree. TheCourt, however, concluded that the real reason for the dis-missal was the application of a policy of intolerance towardsmembers of this evangelical group, and found a violation of theguarantee.126

The Strasbourg Court has also examined cases involving thedismissal of individuals employed by religious associations. Thegeneral principle applies: thus a member of the clergy of anestablished church is expected not only to discharge religiousbut also secular duties, and cannot complain if the latter con-flict with his personal beliefs, for his right to relinquish hisoffice will constitute the ultimate guarantee of his freedom ofconscience.127 However, other Convention guarantees may beapplicable, for where an individual is dismissed from employ-ment with a religious organisation on the grounds of incompat-ibility of practice with professed beliefs of the church, carefulassessment may be needed as to whether state authorities havedischarged the positive obligation upon them to ensure theright to respect for private and family life under Article 8. Here,

domestic courts areantees are “practicdeterminations. Whis protected againsread in the light of Ably and association,theless ensure thaappropriate accouArticle 8, particularmissed by a religioufinding new employand Schüth v. Germpean director of pulost his job for self-and choirmaster omissed after it becaexpecting a child fObst, the Court agrruling that the dismdecision to confess measure aimed at applicant should htance of marital fidepatibility of the eenhanced obligatioentailed. In this casthe feasibility of a l

126. Ivanova v. Bulgaria, §§81-86.127. Knudsen v. Norway (dec.). See also, e.g., Rommelfanger v. Germany (dec.) (dis-

missal of a doctor employed in a Roman Catholic hospital for expressing viewson abortion not in conformity with the Church’s teaching: inadmissible underArticle 10); and Siebenhaar v. Germany, §§36-48 (contract as kindergartenassistant for the Protestant Church made clear that incompatible religious activ-ities would also be incompatible with employment: no violation of Article 9).


33

aching or other observation may arise in It will always be necessary to examine the with particular care. For example, the failureus community access to meat from animalscordance with religious prescriptions mayrence with Article 9. However, as the judg-halom Ve Tsedek v. France clarifies, it is the

lity to such meat rather than the grant of out ritual slaughter that appears to be crucial.ious body sought to challenge a refusal by thent the necessary permission to allow it tohter of animals for consumption in accord-

a-orthodox beliefs. Another Jewish organisa-d approval for the slaughter of animalswn rites which differed only marginally fromcant association. The association alleged thatuted a violation both of Article 9, and also ofjunction with Article 9. It was uncontestedter constituted a religious observance whosesupply to Jews of meat from animals slaugh-ce with religious prescriptions, an essentialion’s practice:

nt association can rely on Article 9 of the Con-

regard to the French authorities’ refusal to

nce ritual slaughter must be considered to be

right guaranteed by the Convention, namely



hood that the appellant would find other employment.128 Incontrast, in Schüth the Court found a violation of Article 8 onaccount of the failure of the employment courts to have prop-erly balanced the interests of the church as employer with theapplicant’s right to respect for his private and family life. Nomention of his de facto family life had been made in the judg-ment of the domestic courts which had simply reproduced theopinion of the church that its credibility would have beenundermined had no dismissal taken place. This had been soeven although the domestic courts had also accepted that thepost in question was not one in which serious misconduct wasentirely incompatible with continuation of employment (aswould have been the case of employees whose responsibilitiesinvolved counselling or religious teaching, for example). Whilethe contract of employment had limited the applicant’s right torespect for private life to a certain degree as it had entailed aduty of loyalty towards the church, such a contract could not beseen as implying an unequivocal undertaking to live a life ofabstinence in the event of separation or divorce. Further, in thisinstance the applicant’s chances of finding alternative employ-ment were considered to be limited.129

Permitting due recognition of religious practices

A positive obligation to ensure that religious communities mayexercise the freedom to worship or otherwise “manifest” their

faiths through tecertain instances.facts of each caseto accord a religioslaughtered in acinvolve an interfement in Cha’are Sissue of accessibiauthority to carryIn this case, a religauthorities to graperform the slaugance with its ultrtion had receiveaccording to its othose of the applithe refusal constitArticle 14 in conthat ritual slaughpurpose was the tered in accordanaspect of that relig

[T]he applica

vention with

approve it, si

covered by a128. Obst v. Germany, §§39-53.129. Schüth v. Germany, §§53-75.


nifest one’s religion only if the illegality of

al slaughter made it impossible for ultra-

to eat meat from animals slaughtered in

h the religious prescriptions they considered

that is not the case.

the applicant religious body had soughte authorities for the slaughter of animalsilar (but not entirely identical) manner by aoup, but this had been refused. The Stras-

ed that this had not involved an “interfer-: first, the method of slaughter employed byers of the association was identical to thepart from the thoroughness of the examina-fter it had been killed; secondly, meat pre-

consistent with the applicant association’silable from other suppliers in a neighbour-ese grounds, the Strasbourg Court deter-had not been an interference with thesince it had not been made impossible forherents to obtain meat slaughtered in a

appropriate. (In any event, even if there hade with Article 9 rights, the Court consideredve been no violation of the guarantee as theent between the two associations had beenmate aim, and had a reasonable relationshipetween the means employed and the aim

d.)130 This judgment perhaps does not fully




the right to manifest one’s religion in observance, within the

meaning of Article 9. …

In the first place, the Court notes that by establishing an

exception to the principle that animals must be stunned

before slaughter, French law gave practical effect to a posi-

tive undertaking on the State’s part intended to ensure

effective respect for freedom of religion. [Domestic law], far

from restricting exercise of that freedom, is on the contrary

calculated to make provision for and organise its free exer-

cise. The Court further considers that the fact that the

exceptional rules designed to regulate the practice of ritual

slaughter permit only ritual slaughterers authorised by

approved religious bodies to engage in it does not in itself

lead to the conclusion that there has been an interference

with the freedom to manifest one’s religion. The Court con-

siders, like the Government, that it is in the general interest

to avoid unregulated slaughter, carried out in conditions of

doubtful hygiene, and that it is therefore preferable, if there

is to be ritual slaughter, for it to be performed in slaughter-

houses supervised by the public authorities. …

However, when another religious body professing the same

religion later lodges an application for approval in order to

be able to perform ritual slaughter, it must be ascertained

whether or not the method of slaughter it seeks to employ

constitutes exercise of the freedom to manifest one’s reli-

gion guaranteed by Article 9 of the Convention. In the

Court’s opinion, there would be interference with the

freedom to ma

performing ritu

orthodox Jews

accordance wit

applicable. But

In this instance, permission from thcarried out in a simdistinct religious grbourg Court decidence” with Article 9the ritual slaughterother association, ation of the animal apared in a mannerbeliefs was also avaing country. On thmined that there association’s rights the association’s admanner consideredbeen an interferencthat there would hadifference in treatmin pursuit of a legitiof proportionality bsought to be realise


35

h the guarantee. Thereafter, the Court will there has been a violation of Article 9.

ence” has been established, the onus is uponthat it was justified. This is assessed by refer-s: whether the interference pursues a legiti-r the interference is “prescribed by law”, and

ference is “necessary in a democratic society”. tests is normally straightforward. It must ber more of the prescribed state interests listedver the situation. These recognised legitimateterests of public safety, for the protection of

th and morals, or for the rights and freedoms their textual formulation narrower than the

sed in Articles 8, 10 and 11 (in particular,is not recognised as such an aim in Article 9),this test normally will not pose any difficultyates as inevitably it will be possible to showce has been to further one (or more) of these principle, it is for the state to identify theishes to advance; in practice, an interferencee a legitimate aim will readily be deemed tope of one of the listed objectives of the partic-hus in Serif v. Greece, a conviction for the usurped the functions of a minister of awas accepted as an interference which hadmate aim of protecting public order,131 whileGreece, the Strasbourg Court readily agreed



address the issue of the extent of the state’s positive obligationsto respect religious pluralism. It is not clear from the judgmentwhether, for example, a state may deem it appropriate to pro-hibit ritual slaughter on the grounds of animal welfare, and ifso, whether it must facilitate in such instances the importationof meat from other countries. The Strasbourg Court’s insist-ence in its case-law that any tension in society occasioned byreligious differences should be addressed not through the elim-ination of pluralism but by encouraging mutual tolerance andunderstanding between individuals and groups is clear. But plu-ralism does not seem to imply an absolute right of groups toinsist upon recognition of and protection for their claims: themaintenance of pluralism seems to be distinguishable from itsactive promotion.

Question 3. Does the limitation on manifestation of religion or belief have a legitimate aim?

The freedom of thought, conscience and religion is not abso-lute. As noted, paragraph 2 of Article 9 provides that a statemay interfere with a “manifestation” of thought, conscience orreligion in certain circumstances. As discussed, it will first benecessary to determine whether the impugned decision fallswithin the scope of Article 9 and whether this involves a “mani-festation” of freedom of thought, conscience and religion. Next,it will be necessary to consider whether there has been an

“interference” witconsider whether

Once an “interferthe state to show ence to three testmate aim, whethewhether the interThe first of theseshown that one oin paragraph 2 cointerests – “the inpublic order, healof others” – are ininterests recogninational security but in any event, for respondent stthat the interferenlisted interests. Inparticular aim it wpurporting to havfall within the scoular guarantee. Toffence of having“known religion” pursued the legitiin Kokkinakis v. 130. Cha’are Shalom Ve Tsedek v. France [GC], §74, §§76-78, §80 and §81.


itical forces were at work, acting hand-in-

anian interests favourable to reunification

abia and Romania. Recognition of the appli-

ould therefore revive old Russo-Romanian

the population, thus endangering social sta-

Moldova’s territorial integrity.

denied that the measure complained of had

to protect public order and public safety.

at the Government had not shown that the

ch had constituted a threat to public order

ty.

nsiders that states are entitled to verify

ement or association carries on, ostensibly in

ous aims, activities which are harmful to the

o public safety Having regard to the circum-

case, the Court considers that the interfer-

ed of pursued a legitimate aim under

raph 2, namely protection of public order

ty.133

o suggest that the test of showing that an “legitimate aim” is not a demanding one, it that a respondent state may have difficul-circumstances.134 Note that the aim orference under this first test is distinct from

of Bessarabia and others v. Moldova, §§111-113.




that the prohibition of proselytism sought to protect the rightsand freedoms of others.132 In Metropolitan Church of Bessara-bia and others v. Moldova, the Strasbourg Court considered therespondent Government’s submissions that the refusal to regis-ter a religious community had sought to advance certain inter-ests listed in paragraph 2:

[T]he refusal to allow the application for recognition lodged

by the applicants was intended to protect public order and

public safety. The Moldovan State, whose territory had

repeatedly passed in earlier times from Romanian to

Russian control and vice versa, had an ethnically and lin-

guistically varied population. That being so, the young

Republic of Moldova, which had been independent since

1991, had few strengths it could depend on to ensure its

continued existence, but one factor conducive to stability

was religion, the majority of the population being Orthodox

Christians. Consequently, recognition of the Moldovan

Orthodox Church, which was subordinate to the patriar-

chate of Moscow, had enabled the entire population to

come together within that Church. If the applicant Church

were to be recognised, that tie was likely to be lost and the

Orthodox Christian population dispersed among a number

of Churches. Moreover, under cover of the applicant

Church, which was subordinate to the patriarchate of

Bucharest, pol

glove with Rom

between Bessar

cant Church w

rivalries within

bility and even

The applicants

been intended

They alleged th

applicant Chur

and public safe

The Court co

whether a mov

pursuit of religi

population or t

stances of the

ence complain

Article 9 parag

and public safe

While this seems tinterference is for ais not inconceivableties in particular purpose of an inter

131. Serif v. Greece, §§49-54.132. Kokkinakis v. Greece, §44. 133. Metropolitan Church


37

asbourg Court is likely to address the issuesles 7 and 9 by using a similar approach.136)

lation of the test to be applied is found in aedom of expression, but this is of equal appli- of Article 9 cases:

opinion, the following are two of the require-

ow from the expression “prescribed by law”.

w must be adequately accessible: the citizen

to have an indication that is adequate in the

s of the legal rules applicable to a given case.

orm cannot be regarded as a “law” unless it is

ith sufficient precision to enable the citizen to

onduct: he must be able – if need be with

dvice – to foresee, to a degree that is reasona-

cumstances, the consequences which a given

tail.

ree of qualification added by the Strasbourg

uences need not be foreseeable with absolute

erience shows this to be unattainable. Again,

ty is highly desirable, it may bring in its train

ity and the law must be able to keep pace with

umstances. Accordingly, many laws are inevi-

in terms which, to a greater or lesser extent,

, Kokkinakis v. Greece, §§32-35; and Larissis and others v.



assessment of its “pressing social need” in terms of the thirdtest of “necessary in a democratic society”.

Question 4. Is the limitation on “manifestation” of religion or belief “prescribed by law”?

The interference must next be shown by the state as havingbeen “prescribed by law”. This concept expresses the value oflegal certainty which might be defined broadly as the ability toact within a settled framework without fear of arbitrary orunforeseeable state interference. Thus the challenged measuremust have a basis in domestic law and be both adequatelyaccessible and foreseeable, and further contain sufficient pro-tection against arbitrary application of the law. These issueshave only occasionally, though, featured in Article 9 jurispru-dence. In any event, the Strasbourg Court may avoid having togive a firm answer to whether an interference is “prescribed bylaw” if it is satisfied that the interference has not been shown tohave been “necessary in a democratic society”.135 (Where theinterference with Article 9 rights has involved the imposition ofa criminal sanction, an applicant may well additionally allege aviolation of Article 7 of the Convention, which enshrines theprinciple of nullum crimen, nulla poena sine lege. In such

instances, the Strraised under Artic

The classic formucase involving frecability in respect

In the Court’s

ments that fl

Firstly, the la

must be able

circumstance

Secondly, a n

formulated w

regulate his c

appropriate a

ble in the cir

action may en

But note the degCourt:

Those conseq

certainty: exp

whilst certain

excessive rigid

changing circ

tably couched

134. But cf Bayatyan v. Armenia [GC], §§112-128 (argument that the imprisonmentof an individual for refusal to perform military service had been for the protec-tion of public order and for the rights of others: the Government’s argumentswere unconvincing, especially given their pledge to introduce alternative civilianservice and, implicitly, to refrain from convicting new conscientious objectors).

135. For example, Supreme Holy Council of the Muslim Community v. Bulgaria, §90.136. See, for example

Greece, §§39-45.


the Convention. In matters affecting funda-

would be contrary to the rule of law, one of

ples of a democratic society enshrined in the

r a legal discretion granted to the executive

d in terms of an unfettered power. Conse-

w must indicate with sufficient clarity the

uch discretion conferred on the competent

the manner of its exercise. The level of pre-

of domestic legislation – which cannot in

e for every eventuality – depends to a con-

e on the content of the instrument in ques-

t is designed to cover and the number and

to whom it is addressed.

es that in the present case the relevant law

e for any substantive criteria on the basis of

cil of Ministers and the Directorate of Reli-

ations register religious denominations and

ir leadership in a situation of internal divi-

icting claims for legitimacy. Moreover, there

ral safeguards, such as adversarial proceed-

independent body, against arbitrary exercise

n left to the executive. Furthermore, [domes-

decision of the Directorate were never noti-

rectly affected. These acts were not reasoned

ear to the extent that they did not even

st applicant, although they were intended to,




are vague and whose interpretation and application are

questions of practice.137

Some examples of the application of this test in Article 9 juris-prudence helps indicate its requirements. In Kokkinakisv. Greece the applicant sought to argue that the definition of“proselytism” was insufficiently defined in domestic law thusrendering it both possible for any kind of religious conversationor communication to be caught by the prohibition, and alsoimpossible for any individual to regulate his conduct accord-ingly. The Strasbourg Court, noting that it is inevitable that thewording of many statutes will not attain absolute precision,agreed with the respondent government that the existence of abody of settled and published national case-law which supple-mented the statutory provision was sufficient in this case tomeet the requirements of the test of “prescribed by law”.138

On the other hand, in Hasan and Chaush v. Bulgaria, the testwas not held to have been satisfied. In this case, a governmentalagency had favoured one faction to another in a dispute overthe appointment of a religious leader. Here, shortcomings indomestic law led the Strasbourg Court to conclude that therehad been a violation of Article 9:

For domestic law to meet [the requirement of “prescribed

by law”] it must afford a measure of legal protection against

arbitrary interferences by public authorities with the rights

safeguarded by

mental rights it

the basic princi

Convention, fo

to be expresse

quently, the la

scope of any s

authorities and

cision required

any case provid

siderable degre

tion, the field i

status of those

The Court not

does not provid

which the Coun

gious Denomin

changes of the

sions and confl

are no procedu

ings before an

of the discretio

tic law] and the

fied to those di

and were uncl

mention the fir137. Sunday Times v. the United Kingdom (no. 1), §49.138. Kokkinakis v. Greece, §§37-41. See also Larissis and others v. Greece, §§40-42.


39

e to register amendments to the statute of thetion following a decision of its governings denomination from the Russian Orthodoxkrainian Orthodox Church had been basedw which, while accessible, had not been suffi-le”. This had further led to another conse- of safeguards against arbitrary decisions byuthority were not rectified by the judicial by the domestic courts, which were clearly

reaching a different finding by the lack ofeseeability of the legislation”. In these circum-n of Article 9 had taken place.142

he limitation on “manifestation” of f “necessary in a democratic society”?

eedom to manifest thought, conscience orcessity on occasion be subject to restraint inblic safety, for the protection of public order,, or for the rights and freedoms of others. But

nces with Article 9 rights can be shown in thestances to have been “necessary in a demo-ot often without difficulty.

fth and final test, the interference complained

a pressing social need,

ska Parafiya v. Ukraine, §§121-152.



and indeed did, remove him from his position as Chief

Mufti.

These deficiencies in substantive criteria and in proceduralsafeguards meant that the interference was “arbitrary and wasbased on legal provisions which allowed an unfettered discre-tion to the executive and did not meet the required standards ofclarity and foreseeability”.139

Other cases have led to the establishment of violations on thisground. For example, in Perry v. Latvia, a prohibition on aforeign evangelical pastor from exercising his ministry whenhis residence permit was renewed had not been based upon anyprovision of Latvian law in force at the material time and thushad not been “prescribed by law”),140 while in Kuznetsov andothers v. Russia, an entirely peaceful religious meeting had beenterminated by the chairwoman of the regional Human RightsCommission and two senior police officers and a civilian. In theopinion of the Strasbourg Court, “the legal basis for breakingup a religious event conducted on the premises lawfully rentedfor that purpose was conspicuously lacking”; further, “the Com-missioner did not act in good faith and breached a State offi-cial’s duty of neutrality and impartiality vis-à-vis the applicants’religious congregation”.141 In Svyato-Mykhaylivska Parafiya v.

Ukraine, the failurreligious organisabody to change itChurch to the Uupon domestic laciently “foreseeabquence: the “lackthe registering areview conductedprevented from coherence and forstances, a violatio

Question 5. Is treligion or belie

It is clear that frbelief must of nethe interests of puhealth and moralswhether interfereparticular circumcratic society” is n

In applying this fiof must:

� correspond to139. Hasan and Chaush v. Bulgaria [GC], §§84-85. See also Bayatyan v. Armenia

[GC], §§112-128 (question of whether conviction for draft evasion was lawfulleft open).

140. Perry v. Latvia, §§51-66.141. Kuznetsov and others v. Russia, §§69-75. 142. Svyato-Mykhayliv


ning physical integrity and human dignity)bject to no express qualification or subjectalifications.

r any interference is “necessary in a demo- important to bear in mind both the worde words “in a democratic society”. In the0, for example, the Strasbourg Court has

tive “necessary”, within the meaning of [this

t synonymous with “indispensable”, neither

ibility of such expressions as “admissible”,

eful”, “reasonable” or “desirable”, and that

s the existence of a “pressing social need”.143

ishing that an interference is justified, andof establishing that an interference is pro-ain upon the state. As is the case in inter-sity of state interferences with other

it may be relevant to consider other interna-standards and practice. Thus the Strasbourgerence in this area to reports by such bodiesil of Churches.144

tification required depends, in practice, onxt. In principle, the stronger the “pressings difficult it will be to justify the interfer-

ited Kingdom, §48.reece, discussed below, at p. 47.




� be proportionate to the legitimate aim pursued, and

� be justified by relevant and sufficient reasons.

Again, the onus is upon the respondent state to show that thistest has been met. It is in turn the task of the Strasbourg Courtto ascertain whether measures taken at national level andamounting to an interference with Article 9 rights are justifiedin principle and also proportionate, but there may often be dif-ficulty in determining this as the Strasbourg Court may not bebest placed to review domestic determinations. In conse-quence, it may recognise a certain “margin of appreciation” onthe part of national decision-makers. This has the consequencein practice of modifying the strictness of the scrutiny applied bythe Strasbourg Court to the assessment of the quality ofreasons adduced for an interference with Article 9 rights. Toexamine this further, some general discussion of certain keyconcepts of general applicability in the interpretation of theEuropean Convention on Human Rights is necessary.

Necessity and proportionality; and the nature of

“democratic society”

The concept of “necessity” is involved – expressly or implicitly– in several articles of the European Convention on HumanRights, but it has subtly different connotations in different con-texts. A broad distinction can be drawn between those articles(such as Article 9) which guarantee rights principally of a civiland political nature and that are subject to widely expressedqualifications, and those articles which guarantee rights (pri-

marily those concerwhich are either suonly to stringent qu

In deciding whethecratic society”, it is“necessary” and thcontext of Article 1said that

whilst the adjec

provision] is no

has it the flex

“ordinary”, “us

rather it implie

The onus of establtherefore the onus portionate, rests agpreting the necesConvention rights, tional or European Court has made refas the World Counc

The standard of justhe particular contesocial need”, the les

143. Handyside v. the Un144. As in Kokkinakis v. G


41

ratic society, which has been dearly won over

depends on it.147

hus determine conclusions that state authori- deem it necessary to protect the religiousts against abusive attacks through expressionPreminger-Institut case discussed below).148

require that a perceived threat of disorder isns that promote rather than undermine plu-ugh this very pluralism may be responsible

er situation requiring state intervention.

iation

ther a measure is necessary and proportion- merely mechanical exercise, for once all the

there remains an irreducible value judgmentade in answering the question “was the inter- in a democratic society?”. However, at theourg Court, any assessment of the necessity ofith Article 9 rights is closely allied to the issuethe system of protection established in Stras-

ary responsibility for ensuring that Conven-ractical and effective is that of the nationalhis end, the Strasbourg Court may accord-makers a certain “margin of appreciation”.n occasion, difficult to apply in practice. It is

ce, at §31.



ence. For example, national security is in principle a powerfulconsideration. However, the mere assertion of such a consider-ation does not absolve the state from indicating the justificationfor advancing such a claim.145 Similarly, public safety appears tobe a compelling social need, and thus a legal requirementapplying to all motorcycle drivers to wear crash helmets wasreadily considered as justified when challenged by Sikhs.146

In any event, application of the test of necessity (and thus con-sideration of the extent of recognition of a margin of apprecia-tion) must also take into account the issue whether aninterference can be justified as necessary in a democratic soci-ety. The critical importance of this concept is obvious inArticle 9 jurisprudence. The Strasbourg Court has in particularidentified the characteristics of European “democratic society”in describing pluralism, tolerance and broadmindedness as itshallmarks. In Kokkinakis v. Greece, for example, the Courtobserved:

As enshrined in Article 9, freedom of thought, conscience

and religion is one of the foundations of a “democratic soci-

ety” within the meaning of the Convention. It is, in its reli-

gious 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 indissociable

from a democ

the centuries,

Such values may tties may properlybeliefs of adheren(as in the Otto-Article 9 may alsoaddressed by mearalism, even althofor the public ord

Margin of apprec

Determining wheate can never be afacts are known, which has to be mference necessarylevel of the Strasban interference wof subsidiarity of bourg, for the primtion rights are pauthorities. To tdomestic decisionThis concept is, o

145. See Metropolitan Church of Bessarabia and others v. Moldova, discussed aboveat p. 36.

146. X v. the United Kingdom (dec.) (1978).147. Kokkinakis v. Gree148. At p. 71.


he guarantee] the decisions they delivered in

their power of appreciation.149

eciation is thus not a negation of the Stras-visory function since the Court has been atthat any recognised margin of appreciationhe Court itself takes the final decision whenment of the national authorities. In relationssion concerning attacks on religious belief,asbourg Court has explained how the widthpreciation depends on the context and, inature of the expression in question and therestriction:

is little scope under Article 10 (2) of the

restrictions on political speech or on debate

public interest, a wider margin of apprecia-

y available to the Contracting States when

dom of expression in relation to matters

intimate personal convictions within the

ls or, especially, religion. Moreover, as in the

and perhaps to an even greater degree, there

uropean conception of “the requirements of

of the rights of others” in relation to attacks

us convictions. What is likely to cause sub-

to persons of a particular religious persua-

gnificantly from time to time and from place

ited Kingdom, §§49-50.




also apt to give rise to controversy. The recognition by theStrasbourg Court of a degree of restraint in determiningwhether the judgment made by national authorities is compati-ble with the state’s obligations under the Convention is thus aprincipal means by which the Strasbourg Court recognises itssubsidiary role in protecting human rights. It is acknowledg-ment of the right of democracies (albeit within limits estab-lished by the Convention) to choose for themselves the leveland content of human rights practice that suit them best.

Obviously, though, if the concept were extended too far, theStrasbourg Court could be criticised for abdicating its responsi-bilities. In the leading judgment of Handyside v. the UnitedKingdom, another case involving freedom of expression, theCourt noted that the Convention:

… does not give the Contracting States an unlimited power

of appreciation. The Court … is responsible for ensuring the

observance of those States’ engagements, is empowered to

give the final ruling on whether a “restriction” or “penalty”

is reconcilable with [the Convention guarantee]. The

domestic margin of appreciation thus goes hand in hand

with a European supervision. Such supervision concerns

both the aim of the measure challenged and its “necessity”;

it covers not only the basic legislation but also the decision

applying it, even one given by an independent court.… It

follows from this that it is in no way the Court’s task to take

the place of the competent national courts but rather to

review under [t

the exercise of

The margin of apprbourg Court’s superpains to emphasise is limited, and that tit reviews the assessto freedom of exprefor example, the Strof the margin of apparticular, on the njustification for the

Whereas there

Convention for

on questions of

tion is generall

regulating free

liable to offend

sphere of mora

field of morals,

is no uniform E

the protection

on their religio

stantial offence

sion will vary si

149. Handyside v. the Un


43

ourt thus recognises that its competence in decision-making in the area of religion is lim- self-evident. The domestic situation is likelyal, cultural and political sensitivities, and anm is not well placed to resolve such dis-siderations do not, of course, apply at domes-mestic courts will have greater awareness ofes (and potentially greater legitimacy) thanourt. Domestic courts in particular shouldxt in which the freedoms guaranteed by thete at national level.

ple, Murphy v. Ireland, discussed below at p. 69.



to place, especially in an era characterised by an ever-

growing array of faiths and denominations. By reason of

their direct and continuous contact with the vital forces of

their countries, State authorities are in principle in a better

position than the international judge to give an opinion on

the exact content of these requirements with regard to the

rights of others as well as on the “necessity” of a “restriction”

intended to protect from such material those whose deepest

feelings and convictions would be seriously offended.150

The Strasbourg Creviewing certainited. This appearsto reflect historicinternational foruputes.151 Such contic level where dolocal circumstancthe Strasbourg Cexplore the conteConvention opera

150. Wingrove v. the United Kingdom, §58. 151. See also, for exam

hought, conscience and belief arising under Article 9

nscience and belief arising

es specific provision for “service of a military charac- for long thought that Article 9 could not in itself

right of recognition of conscientious objection toy military service unless this was recognised byw,152 even although virtually all European states still

ilitary service obligations had moved towards rec-lternative civilian service.153 It was thus not clearrticle 9 could indeed require a state to recognise such civilian service in instances where an individualcould be compelled to act contrary to his fundamen-s beliefs.154 Certainly, it had been accepted that com-ilitary service could give rise to other Conventionions, in particular where it could be argued thator failure to carry out military service requirementsate in a discriminatory manner155 or lead to degrad-ent within the meaning of Article 3.156 In Ülke

v. Norway (dec.) (Article 4 §3.b does not require states to provide sub-ivilian service for conscientious objectors). Committee of Ministers’ Recommendations No. R (87) 8 and Rec..many (dec.) (1977).


Specific aspects of freedom of t44

Specific aspects of freedom of thought, counder Article 9

The Strasbourg Court’s jurisprudence in Article 9 cases illus-trates the application of these tests. Case-law also highlights theexpectation of state neutrality, pluralism and tolerance in situa-tions often involving the reality of official antagonism, hiddenor explicit discrimination, and arbitrary decision-making. Thispart of the Handbook addresses the main issues that havearisen in the context of this guarantee, primarily in respect ofthe issue whether interferences can be shown to have been“necessary in a democratic society”. As has been already noted,however, certain aspects both of the individual and collectiveexercise of freedom of thought, conscience and religion remainuntested in Strasbourg jurisprudence.

Interferences with “manifestation” of individual belief: refusal to undertake compulsory military service

The extent to which Article 9 imposes a positive duty uponstate authorities to recognise exemptions from general civic orlegal obligations was until recently open to some doubt. In lightof Article 4 §3.b of the European Convention on Human Rights

which makter”, it wasimply anycompulsornational laretaining mognising awhether Aalternativeotherwise tal religioupulsory mconsideratsanctions fcould opering treatm

152. Johansenstitute c

153. And see(2010) 4

154. X v. Ger


ory military service 45

nd Chamber ruled that the failure to permit an alternative could now in certain circum-ticle 9. The applicant was a Jehovah’s Witnessntenced to imprisonment for 30 months for military service. His offer to carry out alter-vice had been repeated during his trial for

the new law permitting civilian service – fol-undertaking given by the respondent stateCouncil of Europe some months beforehandan service – had only entered into force a year parole and after he had served more than 10

. The Grand Chamber considered that it wasiate to read Article 9 in conjunction withght of the evolution of the law and practice ofnd of international agreements. The Conven-instrument” and had to reflect such develop-ough no express reference to a right to

ection could be derived from Article 9,

] considers that opposition to military service,

otivated by a serious and insurmountable con-

the obligation to serve in the army and a per-

ce or his deeply and genuinely held religious

fs, constitutes a conviction or belief of suffi-

y, seriousness, cohesion and importance to

arantees of Article 9. …

t in the present case is a member of Jehovah’s

religious group whose beliefs include the con-


Interferences with “manifestation” of individual belief: refusal to undertake compuls

v. Turkey, for example, the Strasbourg Court determined thatthe applicant, a peace activist who repeatedly had been pun-ished for refusal to serve in the military on account of hisbeliefs, had been subjected to treatment in violation of Article 3on account of the “constant alternation between prosecutionsand terms of imprisonment” and the possibility that this situa-tion could theoretically continue for the rest of his life: this hadexceeded the inevitable degree of humiliation inherent inimprisonment and thus was deemed to have qualified as “inhu-man” treatment on account of the premeditated, cumulativeand long term effects of the repeated convictions and incarcer-ation. Domestic law which failed to make provision for consci-entious objectors was “evidently not sufficient to provide anappropriate means of dealing with situations arising from therefusal to perform military service on account of one’sbeliefs”.157

Applications continued to find their way to Strasbourg leadingto friendly settlements in certain cases,158 but in Bayatyan v.

Armenia, the Gracivilian service asstances violate Arwho had been serefusal to performnative civilian serdraft evasion, butlowing upon an when joining the to introduce civiliafter his release onmonths in prisonnow not approprArticle 4 §3.b in liEuropean States ation was a “living ments. Even althconscientious obj

… [the Court

where it is m

flict between

son’s conscien

or other belie

cient cogenc

attract the gu

The applican

Witnesses, a

155. For example, Thlimmenos v. Greece [GC]. See also Tsirlis and Kouloumpas v.Greece, (violation of Article 5, but Article 9 issue avoided); but cf. Commissionreport of 7 March 1996 (opinion that there had been a violation of Article 14read in conjunction with Article 9). See also Autio v. Finland (lengthier period ofservice prescribed for civilian service as opposed to military service falls withina state’s margin of appreciation: inadmissible).

156. Taştan v. Turkey, §§27-31(military service obligation imposed upon a 71-year-old who had been forced to undertake the same activities and physical exercisesas 20-year-old recruits constituted degrading treatment).

157. Ülke v. Turkey, §§61 and 62.158. For example, Stefanov. v. Bulgaria (friendly settlement).

onscience and belief arising under Article 9

atives capable of accommodating the com-

, as demonstrated by the experience of the

majority of the European States.

her reiterates that pluralism, tolerance and

ess are hallmarks of a “democratic society”.

idual interests must on occasion be subordi-

f a group, democracy does not simply mean

of a majority must always prevail: a balance

ed which ensures the fair and proper treat-

from minorities and avoids any abuse of a

ion. Thus, respect on the part of the State

liefs of a minority religious group like the

roviding them with the opportunity to serve

ted by their conscience might, far from cre-

qualities or discrimination as claimed by the

ather ensure cohesive and stable pluralism

ligious harmony and tolerance in society.159

ith “manifestation” of individual ism

h 1 of Article 9 specifically refers to “teach- form of “manifestation” of belief. The right

others of the validity of one’s beliefs is also by the reference in the text to the right “toion or belief”. The right to proselytise by

[GC], at §§ 124 and 126.



Specific aspects of freedom of thought, c46

viction that service, even unarmed, within the military is to

be opposed. The Court therefore has no reason to doubt

that the applicant’s objection to military service was moti-

vated by his religious beliefs, which were genuinely held and

were in serious and insurmountable conflict with his obliga-

tion to perform military service.

It was important to distinguish the applicant’s situation fromone “that concerns an obligation which has no specific consci-entious implications in itself, such as a general tax obligation”.The failure to report for military service had involved a “mani-festation” of the applicant’s religious beliefs, and thus the con-viction for draft evasion had constituted an interference withhis freedom to manifest his religion. Convincing and compel-ling reasons to justify any interference with a person’s right tofreedom of religion were required. Further, almost all EuropeanStates which ever or still had compulsory military service hadintroduced alternatives to military service. Accordingly,

the system existing at the material time imposed on citizens

an obligation which had potentially serious implications for

conscientious objectors while failing to allow any con-

science-based exceptions and penalising those who, like the

applicant, refused to perform military service…. [T]the

imposition of a penalty on the applicant, in circumstances

where no allowances were made for the exigencies of his

conscience and beliefs, could not be considered a measure

necessary in a democratic society. Still less can it be seen as

necessary taking into account that there existed viable and

effective altern

peting interests

overwhelming

The Court furt

broadmindedn

Although indiv

nated to those o

that the views

must be achiev

ment of people

dominant posit

towards the be

applicant’s by p

society as dicta

ating unjust ine

Government, r

and promote re

Interferences wbelief: proselyt

The text of paragraping” as a recognisedto try to persuade implicitly supportedchange [one’s] relig

159. Bayatyan v. Armenia


47

ety”. In its view, a distinction had to be drawn Christian witness” or evangelicalism andytism” involving undue influence or even

orresponds to true evangelism, which a report

956 under the auspices of the World Council

escribes as an essential mission and a respon-

ry Christian and every Church. The latter rep-

uption or deformation of it. It may, according

port, take the form of activities offering mate-

l advantages with a view to gaining new

a Church or exerting improper pressure on

tress or in need; it may even entail the use of

ainwashing; more generally, it is not compati-

ct for the freedom of thought, conscience and

ers.

lure of the domestic courts to specify thenviction meant that it was impossible to showen a pressing social need for the conviction.rts had assessed the criminal liability of theby reiterating the statutory provision ratherwhy the means used by the applicant to try toad been inappropriate:

he relevant statutory provision] shows that the

ria adopted by the Greek legislature are recon-

the foregoing if and in so far as they are


Interferences with “manifestation” of individual belief: proselytism

attempting to persuade others to convert to another’s religion isthus clearly encompassed within the scope of Article 9. But thisright is not absolute, and may be limited where it can be shownby the state that this is based upon considerations of publicorder or the protection of vulnerable individuals against undueexploitation. The jurisprudence distinguishes between “proper”and “improper” proselytism, a distinction reflected in othermeasures adopted by Council of Europe institutions such asParliamentary Assembly Recommendation 1412 (1999) on theillegal activities of sects which calls for domestic action against“illegal practices carried out in the name of groups of a reli-gious, esoteric or spiritual nature”, the provision and exchangebetween states of information on such sects, and the impor-tance of the history and philosophy of religion in school curric-ula with a view to protecting young persons.

In Kokkinakis v. Greece a Jehovah’s Witness had been sentencedto imprisonment for proselytism, an offence specifically pro-hibited both by the Greek Constitution and by statute. TheStrasbourg Court at the outset accepted that the right to try toconvince others to convert to another faith was included withinthe scope of the guarantee, “failing which … “freedom tochange [one’s] religion or belief”, enshrined in Article 9, wouldbe likely to remain a dead letter”. While noting that the prohibi-tion was prescribed by law and had the legitimate aim of pro-tecting the rights of others, the Strasbourg Court, though,could not in the particular circumstances accept that the inter-ference had been shown to have been justified as “necessary in

a democratic socibetween “bearing“improper proselforce:

The former c

drawn up in 1

of Churches d

sibility of eve

resents a corr

to the same re

rial or socia

members for

people in dis

violence or br

ble with respe

religion of oth

However, the faireasons for the cothat there had beThe domestic couapplicant merely than spelling out persuade others h

Scrutiny of [t

relevant crite

cilable with


protect individual soldiers from ideologicalcepted by the Strasbourg Court in this

rves that it is well established that the Con-

in principle to members of the armed forces

vilians. Nevertheless, when interpreting and

es in cases such as the present, it is necessary

the particular characteristics of military life

n the situation of individual members of the

. In this respect, the Court notes that the

uctures which are a feature of life in the

may colour every aspect of the relations

ry personnel, making it difficult for a subor-

f the approaches of an individual of superior

draw from a conversation initiated by him.

ld in the civilian world be seen as an innoc-

of ideas which the recipient is free to accept

ithin the confines of military life, be viewed

rassment or the application of undue pres-

of power. It must be emphasised that not

n about religion or other sensitive matters

uals of unequal rank will fall within this cat-

eless, where the circumstances so require,

stified in taking special measures to protect

freedoms of subordinate members of the




designed only to punish improper proselytism, which the

Court does not have to define in the abstract in the present

case. The Court notes, however, that in their reasoning the

Greek courts established the applicant’s liability by merely

reproducing the wording of [the legislation] and did not suf-

ficiently specify in what way the accused had attempted to

convince his neighbour by improper means. None of the

facts they set out warrants that finding. That being so, it has

not been shown that the applicant’s conviction was justified

in the circumstances of the case by a pressing social need.

The contested measure therefore does not appear to have

been proportionate to the legitimate aim pursued or, con-

sequently, “necessary in a democratic society … for the

protection of the rights and freedoms of others”.160

In contrast, in Larissis and others v. Greece, the conviction ofsenior officers who were members of the Pentecostal faith forthe proselytism of three airmen under their command wasdeemed not to be a breach of Article 9 in light of the crucialnature of military hierarchical structures which the Courtaccepted could potentially involve a risk of harassment of a sub-ordinate where the latter sought to withdraw from a conversa-tion initiated by a superior officer. The respondentgovernment’s arguments that the senior officers had abusedtheir influence, and that their convictions had been justified bythe need to protect the prestige and effective operation of the

armed forces and tocoercion, were acinstance:

The Court obse

vention applies

as well as to ci

applying its rul

to bear in mind

and its effects o

armed forces…

hierarchical str

armed forces

between milita

dinate to rebuf

rank or to with

Thus, what wou

uous exchange

or reject, may, w

as a form of ha

sure in abuse

every discussio

between individ

egory. Noneth

States may be ju

the rights and

armed forces.160. Kokkinakis v. Greece, §§48-49.


ious symbols 49

ts had sought to convert them. Here, therey of deference shown to the determinations ofven in respect of one of the civilians who had stress on account of the breakdown of herot been shown either that her state of minduire “any special protection from the evangel-he applicants or that they applied impropers was demonstrated by the fact that she was take the decision to sever all links with the

ch”.161 These cases indicate that states may intake steps to prohibit the right of individualse others of the validity of their beliefs, evenht is often categorised by adherents as anuty. The cases also clearly indicate, however,ence with the right to proselytise must ben necessary in the particular circumstances.

with “manifestation” of individual ns for wearing of religious

e wearing of religious symbols have given riseddressed to the Strasbourg Court underases can require careful assessment. Restric-ing of items of clothing or other conspicuousbelief will now be accepted as involving inter-

s v. Greece, §§50, 54 and 59.


Interferences with “manifestation” of individual belief: sanctions for wearing of relig

The domestic courts had indeed heard evidence that theairmen involved had felt obliged to take part in or had beenbothered by the persistent attempts by their superior officers toengage them in conversations about religion, even although nothreats or inducements had been made. It was thus clear thatthe airmen had been subjected to a certain degree of pressureby their officers and had felt constrained to some extent. Theconclusion was that in this instance there was no violation ofArticle 9:

… the Court considers that the Greek authorities were in

principle justified in taking some measures to protect the

lower ranking airmen from improper pressure applied to

them by the applicants in their desire to promulgate their

religious beliefs. It notes that the measures taken were not

particularly severe and were more preventative than puni-

tive in nature, since the penalties imposed were not enforce-

able if the applicants did not reoffend within the following

three years. … In all the circumstances of the case, it does

not find that these measures were disproportionate.

On the other hand, the Strasbourg Court rejected the respond-ent government’s contentions in the same case that a prosecu-tion for proselytism of civilians had been “necessary in ademocratic society”, even where it was argued that this hadinvolved the improper exploitation of individuals sufferingfrom personal and psychological difficulties. It was of “decisivesignificance” that these civilians had not been subjected topressures and constraints of the same kind as the airmen at the

time the applicanwas less in the wadomestic courts. Ebeen under somemarriage, it had nwas such as to reqical activities of tpressure to her, aable eventually toPentecostal Churcertain instances to try to persuadalthough this rigessential sacred dthat any interfershown to have bee

Interferences belief: sanctiosymbols

Prohibitions on thto complaints aArticle 9. These ctions on the wearsigns of religious

161. Larissis and other


ld convey to their pupils.165 Similarly, inpulsion of pupils from schooling for theirvarious religious symbols (Muslim head- keski or under-turban) during lessons wasle as the Strasbourg Court considered thath the right to manifest their beliefs could beionate to legitimate aims of protecting the of others and of protecting public order; insions had not been on account of any objec-nvictions as such and the ban had in anytect the constitutional principle of secular-

nsidered in some details by the GrandŞahin v. Turkey. In this case, the applicantrohibition on her wearing the Islamic head-and the consequential refusal to allow herd violated her rights under Article 9. Theroceeded on the basis that there had been her right to manifest her religion, and alsoterference primarily had pursued the legiti-ting the rights and freedoms of others and order. It was also satisfied that the interfer-escribed by law”. Accordingly, the crucialer the interference had been “necessary in a

d (dec.)..).




ferences with Article 9 rights to manifest religious beliefs,162

and assessment has turned upon the reasons advanced for theban. In this area, however, the Strasbourg Court is likely to rec-ognise a certain “margin of appreciation” on the part of stateauthorities, particularly where the justification advanced by thestate is public safety163 or the perceived need to prevent certainfundamentalist religious movements from exerting pressure onothers belonging to another religion or who do not practisetheir religion.164 Thus in Dahlab v. Switzerland, the refusal toallow a teacher of a class of small children to wear the Islamicheadscarf was deemed justified in view of the “powerful exter-nal symbol which her wearing a headscarf represented: not onlycould the wearing of this item be seen as having some kind ofproselytising effect since it appeared to be imposed on womenby a religious precept that was hard to reconcile with the prin-ciple of gender equality, but also this could not easily be recon-ciled with the message of tolerance, respect for others andequality and non-discrimination that all teachers in a demo-

cratic society shouAktas v. France, exrefusal to remove scarves and the Sikhdeclared inadmissibthe interference witconsidered proportrights and freedomsany event, the expultion to religious coevent sought to proity.166

This issue was coChamber in Leyla complained that a pscarf at university access to classes haStrasbourg Court pan interference withaccepted that the inmate aims of protecof protecting publicence had been “prquestion was wheth

162. Aktas v. France (dec.).163. E.g. Phull v. France (dec.) (requirement to remove turban during airport security

screening: inadmissible).164. Karaduman v. Turkey (requirement that official photograph could not show a

graduate wearing an Islamic headscarf, but only bare-headed). Köse and 93 oth-ers v. Turkey (dec.) (prohibition on wearing headscarf within limits of religiouslyoriented school, a general measure imposed upon all students irrespective ofbelief: inadmissible); Kurtulmuş v. Turkey (dec.) (university professor refusedauthorisation to wear a headscarf ); Dogru v. France, §§47-78 (exclusion offemale pupils from state schools for refusing to remove religious attire duringphysical education and sports lessons: no violation); and similarly, Kervanci v.France, §§46-78.

165. Dahlab v. Switzerlan166. Aktas v. France (dec


ious symbols 51

ularism as the guarantor of democratic valueslarism was the meeting point of liberty andily entailed freedom of religion and con-ented state authorities from manifesting a

articular religion or belief by ensuring its rolel arbiter. Furthermore, secularism also helpeds from external pressure exerted by extremist role of the State as independent arbiter wasth the jurisprudence of the Strasbourg Court

ourt was also influenced by the emphasis onthe rights of women in the Turkish constitu-alue also consistent with the key principle ofunderlying the European Convention ony examination of the question of the prohibi-

g the Islamic headscarf had to take into con-act which such a symbol may have on those

wear it if presented or perceived as a compul-. This was particularly so in a country such as majority of the population adhered to the

ainst the background of extremist politicalrkey which sought to impose on society as aious symbols and conception of a societyous precepts, the Grand Chamber was satis-iple of secularism was the paramount consid-g the ban on the wearing of religious symbols a context in which the values of pluralism,


Interferences with “manifestation” of individual belief: sanctions for wearing of relig

democratic society”. By a majority, the Court ruled that theinterference in issue had been both justified in principle andproportionate to the aims pursued, taking into account thestate’s “margin of appreciation” in such cases:

Where questions concerning the relationship between State

and religions are at stake, on which opinion in a democratic

society may reasonably differ widely, the role of the national

decision- making body must be given special importance.

This will notably be the case when it comes to regulating

the wearing of religious symbols in educational institutions,

especially… in view of the diversity of the approaches taken

by national authorities on the issue. It is not possible to

discern throughout Europe a uniform conception of the sig-

nificance of religion in society and the meaning or impact of

the public expression of a religious belief will differ accord-

ing to time and context. Rules in this sphere will conse-

quently vary from one country to another according to

national traditions and the requirements imposed by the

need to protect the rights and freedoms of others and to

maintain public order. Accordingly, the choice of the extent

and form such regulations should take must inevitably be

left up to a point to the State concerned, as it will depend on

the domestic context concerned.

Of some importance in this instance were the principles of sec-ularism and equality at the heart of the Turkish Constitution.The constitutional court had determined that freedom to man-ifest one’s religion could be restricted in order to defend the

role played by secin the state: secuequality, necessarscience, and prevpreference for a pas one of impartiaprotect individualmovements. Thisalso consistent wiunder Article 9.

The Strasbourg Cthe protection of tional system, a vgender equality Human Rights. Antion upon wearinsideration the impwho chose not to sory religious dutyTurkey where theIslamic faith. Agmovements in Tuwhole their religfounded on religified that the princeration underlyinin universities. In


es judiciously had sought a means of avoid-away students wearing the headscarf whiletecting the rights of others and the intereststem. The headscarf ban in consequence hadthe right to education.167

ith individual belief: the pay “church tax”

s protection from compulsion to becomein religious activities against an individual’sn could arise, for example, in respect of a

a church tax. States must respect the reli-f those who do not belong to any church,ke it possible for such individuals to be obligation to make contributions to theus activities.168 (However, as noted, this sit-inguished from arguments that an individ-ayments to the authorities should not beular purposes.169) To this end, states may individuals to notify their religious belief orbelief in order to ensure the effective collec-.170

y [GC], §§104-162 at §109. inion of the Commission, §51. See note, p. 15 above.dom.tesmann v. Switzerland.




respect for the rights of others and, in particular, equalitybefore the law of men and women were being taught andapplied in practice, it was understandable that the relevantauthorities could consider it contrary to such values to allowreligious attire such as the Islamic headscarf to be worn on uni-versity premises. Imposing limitations on the freedom to wearthe headscarf could, therefore, be regarded as meeting a press-ing social need since this particular religious symbol had takenon political significance in the country in recent years. Remark-ing that Article 9 did not always guarantee the right to behavein a manner governed by a religious belief and did not confer onpeople who did so the right to disregard rules that had provedto be justified, the Strasbourg Court also noted that, in anyevent, practising Muslim students in Turkish universities werefree to manifest their religion in accordance with habitualforms of Muslim observance within the limits imposed by edu-cational organisational constraints.

The application also raised the question of whether there hadbeen an interference with the applicant’s right to education interms of Article 2 of Protocol No. 1. By analogy with the rea-soning applying to disposal of the application under Article 9,the Grand Chamber also accepted that the refusal to allowaccess to various lectures and examinations for wearing theIslamic headscarf restriction had been foreseeable, had pursuedlegitimate aims, and that the means used had been proportion-ate. The measures in question had in no way hindered the per-formance of religious observances by students, and indeed the

university authoritiing having to turn simultaneously proof the education sysnot interfered with

Interferences wrequirement to

Article 9 §1 conferindirectly involved will. Such a situatiorequirement to paygious convictions oand thus must maexempted from thechurch for its religiouation must be distual’s general tax pallocated to particlegitimately requirechange of religious tion of church taxes

167. Leyla Şahin v. Turke168. Darby v. Sweden, op169. C. v. the United King170. See for instance Got


53

ligion, the State has a wide margin of appreci-

ng such decisions. …

rg Court did emphasise that the guaranteeds against compulsion to contribute by meansposes which were essentially religious. In this proportion of the full amount of church tax

duals who were not members of the church be proportionate to the costs of the Church’ses, and thus the applicant could not be said tolled to contribute to the religious activities ofs also of some importance that public ratherl bodies monitored expenditure and deter-n payable:

nt, not being a member of the Church of

not have to pay the full church tax but only a

of – 25 per cent of the full amount – as a dis-

the basis that] non-members should contrib-

on-religious activities of the Church. The

ate was determined on the basis of an investi-

economy of the Church of Sweden, which

the costs for the burial of the deceased

about 24 per cent of the Church’s total costs.

arent that the tax paid by the applicant to the

eden was proportionate to the costs of its civil

s. Therefore, it cannot be said that he was


Interferences with individual belief: the requirement to pay “church tax”

In any event, it will be necessary to consider whether theimposition of a church tax is in part to meet the costs of secularas opposed to ecclesiastical purposes. In the case of Bruno v.Sweden the Strasbourg Court drew a distinction between taxa-tion for the discharge of public functions, and functions purelyassociated with religious belief. Legislation allowed for exemp-tion from the majority of the church tax, but still required thepayment of a tax (the “dissenter tax”) to meet the cost of tasksof a non-religious nature performed in the interest of societysuch as the administration of burials, the maintenance ofchurch property and buildings of historic value, and the care ofold population records. The Strasbourg Court first confirmedthat state authorities have a wide margin of appreciation indetermining the arrangements for such responsibilities, andthus rejected the applicant’s submission that these functionswere properly the responsibility of secular public administra-tion rather than of religious bodies:

[T]he Court agrees with the Government that the adminis-

tration of burials, the care and maintenance of church prop-

erty and buildings of historic value and the care of old

population records can reasonably be considered as tasks of

a non-religious nature which are performed in the interest

of society as a whole. It must be left to the State to decide

who should be entrusted with the responsibility of carrying

out these tasks and how they should be financed. While it is

under an obligation to respect the individual’s right to

freedom of re

ation in maki

But the Strasbourequired safeguarof taxation to purcase, however, thepayable by indivicould be shown tocivil responsibilitihave been compethe Church. It wathan ecclesiasticamined the taxatio

[T]he applica

Sweden, did

portion there

senter tax [on

ute to the n

reduced tax r

gation of the

showed that

amounted to

It is thus app

Church of Sw

responsibilitie


s observances. Thus where religion or beliefar diet, this should be respected by theg this is not unreasonable or unduly bur-

le reiterated in the Jakóbski v. Poland judg-hich the refusal to provide a practisingith a meat-free diet as required by the dic-

as held to have constituted a violation ofr, adequate provision should be made totake part in religious worship or to permit spiritual guidance. In the related cases ofine and Kuznetsov v. Ukraine, prisoners onned that they had not been allowed visits take part in religious services available to

e applicants succeeded in these cases on theinterferences had not been in accordancee relevant prison instruction could not so

eaning of the Convention.173 However, thed order and security in prison will normallysed as legitimate state interests. Article 9, be used to require recognition of a special

who claim that wearing prison uniform andk violate their beliefs.174 Further, in respond-d security interests, a rather wide margin of

§§42–55. See also X v. the United Kingdom (dec.) (March

ne; and Kuznetsov. v. Ukraine. v. the United Kingdom (dec.).




compelled to contribute to the religious activities of the

Church.

Moreover, the fact that the Church of Sweden has been

entrusted with the tasks in question cannot in itself be con-

sidered to violate Article 9 of the Convention. In this

respect, it should be noted that the Church was in charge of

keeping population records for many years and it is thus

natural that it takes care of those records until they have

been finally transferred to the State archives. Also, the

administration of burials and the maintenance of old church

property are tasks that may reasonably be entrusted with

the established church in the country. The Court further

takes into account that the payment of the dissenter tax and

the performance of the civil activities of the Church were

overseen by public authorities, including the tax authorities

and the County Administrative Board.

The Strasbourg Court therefore concluded that the obligationto pay this “dissenter tax” did not contravene the applicant’sright to freedom of religion, and declared this part of the appli-cation manifestly ill-founded.171

Individual “manifestation” of belief: prisoners and religious belief

Prison authorities will be expected to recognise the religiousneeds of those deprived of their liberty by allowing inmates to

take part in religioudictates a particulauthorities providindensome, a principment, a case in wBuddhist prisoner wtates of his faith wArticle 9.172 Furtheallow detainees to prisoners access toPoltoratskiy v. Ukradeath row complaifrom a priest nor toother prisoners. Thground that these with the law as thqualify within the mmaintenance of gooreadily be recognicannot, for examplestatus for prisonersbeing forced to woring to such order an

171. Bruno v. Sweden (dec.).

172. Jakóbski v. Poland, 1976).

173. Poltoratskiy v. Ukrai174. McFeeley and others


55

y not be compelled to practise a religion or

nd religious services or meetings, to take part

ractices or to accept a visit from a representa-

igion or belief.”177

eed be cited by the Court in its judgments.178

ent of state neutrality: registration iths, etc.

ral protects the right of individuals to formpurpose of furthering collective action in aterest. When Article 9 is read in conjunctione consequence is a high degree of concern forish religious associations:

us communities traditionally exist in the form

tructures, Article 9 must be interpreted in the

cle 11 of the Convention, which safeguards

e against unjustified State interference. Seen in

ive, the right of believers to freedom of reli-

ncludes the right to manifest one’s religion in

ith others, encompasses the expectation that

be allowed to associate freely, without arbi-

tervention. Indeed, the autonomous existence

mmunities is indispensable for pluralism in a

ules, Recommendation Rec (2006) 2, Rules 29 (2)-(3).ited in Jakóbski v. Poland, 7 December 2010.


The requirement of state neutrality: registration of religious faiths, etc.

appreciation is recognised on the part of the authorities. Forexample, the need to be able to identify prisoners may thuswarrant the refusal to allow a prisoner to grow a beard, whilesecurity considerations may justify denial of the supply of aprayer-chain175 or a book containing details of martial arts toprisoners, even in cases where it can be established that accessto such items is indispensable for the proper exercise of a reli-gious faith.176

These state obligations under the European Convention onHuman Rights are also reflected in the European Prison Rules.These rules are non-binding standards which aim to ensurethat prisoners are accommodated in material and moral termsrespecting their dignity and accorded treatment which is non-discriminatory, which recognises religious beliefs, and whichsustains health and self-respect. Thus the rules provide that

the prison regime shall be organised so far as is practicable

to allow prisoners to practise their religion and follow their

beliefs, to attend services or meetings led by approved rep-

resentatives of such religion or beliefs, to receive visits in

private from such representatives of their religion or beliefs

and to have in their possession books or literature relating

to their religion or beliefs.

However,

prisoners ma

belief, to atte

in religious p

tive of any rel

The Rules may ind

The requiremof religious fa

Article 11 in genetogether for the field of mutual inwith Article 11, ththe right to establ

[S]ince religio

of organised s

light of Arti

associative lif

that perspect

gion, which i

community w

believers will

trary State in

of religious co

175. X v. Austria (dec.) (1965).176. X v. the United Kingdom (dec.) (May 1976).

177. European Prison R178. Rules 29 (2)-(3), c


ew to restricting the spread of minority

state neutrality, on the other hand, does notities from assessing whether the activities of associations may be considered to cause public order.183 Tolerance does not imply

community must be accorded recognitions exemption from taxation. Indeed, in par- authorities may be under a positive obliga-gainst associations considered harmful.

e.V. and others v. Germany, adherents of thehad alleged that the classification of theiron as a “youth sect”, “youth religion”, “sect”ad denigrated their faith and had infringedneutrality in religious matters. While theas prepared to proceed upon the assump-lling had involved an “interference” with“the terms used to describe the applicantent may have had negative consequences

hout the need to ascertain the extent andequences), it nevertheless held that no vio-tee had taken place:

vention for the Protection of National Minorities, Article 8:ry person belonging to a national minority has the right to religion or belief and to establish religious institutions,sociations”.hers v. Greece, §40; Leela Förderkreis e.V. and others v. Ger-




democratic society and is thus an issue at the very heart of

the protection which Article 9 affords.179

The interplay between Article 9’s guarantees for the collectivemanifestation of belief and Article 11’s protection for freedomof association, taken along with the prohibition of discrimina-tion in the enjoyment of Convention guarantees as provided forby Article 14, is thus of considerable significance in resolvingquestions concerning refusal to confer official recognition. Thismay be necessary in order to take advantage of privileges suchas exemption from taxation or recognition of charitable statuswhich may be dependent in domestic law upon prior registra-tion or state recognition. Arrangements which favour particu-lar religious communities do not, in principle, contravene therequirements of the Convention (and in particular, Articles 9and 14) “providing there is an objective and reasonable justifi-cation for the difference in treatment and that similar agree-ments may be entered into by other Churches wishing to doso”.180

However, domestic law may go further and also require officialrecognition in order to obtain the legal personality necessary toallow a religious body to function effectively. Where officialrecognition is necessary for this, mere state tolerance of a reli-gious community is unlikely to suffice.181 The risk with suchrequirements is that these may be applied in a discriminatory

manner with a vifaiths.182

The requirement ofpreclude the authorreligious bodies orharm or a threat tothat every religiousor such privileges aticular cases, publiction to take action a

In Leela Förderkreis“Osho movement” religious organisatiand “psycho-sect”, hthe state’s duty of Strasbourg Court wtion that such labeArticle 9 rights as associations’ movemfor them” (but witnature of such conslation of the guaran

179. Metropolitan Church of Bessarabia and others v. Moldova, §118.180. Alujer Fernández and Caballero García v. Spain (dec.).181. Metropolitan Church of Bessarabia and others v. Moldova, §129.

182. Cf. Framework Conrecognition that “evemanifest his or herorganisations and as

183. Manoussakis and otmany, §93.


57

ion of the Government’s activity in dispute

rther that it in no way amounted to a prohibi-

plicant associations’ freedom to manifest their

lief. [The domestic courts] carefully analysed

d statements and prohibited the use of the

structive” and “pseudo-religious” and the alle-

embers of the movement were manipulated as

principle of religious neutrality. The remain-

tably the naming of the applicant associations’

cts” , “youth sects” or “psycho-sects”, even if

jorative note, were used at the material time

minately for any kind of non-mainstream reli-

urt further notes that the Government undis-

ned from further using the term “sect” in their

ampaign following the recommendation con-

expert report on “so-called sects and psycho-

er these circumstances, the Court considers

ernment’s statements … at least at the time

de, did not entail overstepping the bounds of

ratic State may regard as the public interest.

umstances, “having regard to the margin of

left to the national authorities”, the interfer-

d to be justified and proportionate to the aim

e.V. and Others v. Germany, §§84-101.



The Court reiterates that States are entitled to verify

whether a movement or association carries on, ostensibly in

pursuit of religious aims, activities which are harmful to the

population or to public safety.

… the Court notes that at the material time the increasing

number of new religious and ideological movements gener-

ated conflict and tension in German society, raising ques-

tions of general importance. The contested statements and

the other material before the Court show that the German

Government, by providing people in good time with expla-

nations it considered useful at that time, was aiming to

settle a burning public issue and attempting to warn citizens

against phenomena it viewed as disturbing, for example, the

appearance of numerous new religious movements and

their attraction for young people. The public authorities

wished to enable people, if necessary, to take care of them-

selves and not to land themselves or others in difficulties

solely on account of lack of knowledge.

The Court takes the view that such a power of preventive

intervention on the State’s part is also consistent with the

Contracting Parties’ positive obligations under Article 1 of

the Convention to secure the rights and freedoms of

persons within their jurisdiction. Those obligations relate

not only to any interference that may result from acts or

omissions imputable to agents of the State or occurring in

public establishments, but also to interference imputable to

private individuals within non-State entities.

An examinat

establishes fu

tion of the ap

religion or be

the impugne

adjectives “de

gation that m

infringing the

ing terms, no

groups as “se

they had a pe

quite indiscri

gion. The Co

putedly refrai

information c

tained in the

cults”…. Und

that the Gov

they were ma

what a democ

In these circ

appreciation

ence was foun

pursued.184

184. Leela Förderkreis


ther hand, during this period the first appli-

have legal personality, with all the

ttached to this lack of status [as legal per-

d it to acquire and manage assets in its own

egal standing before the courts and authori-

places of worship, to disseminate its beliefs

and distribute religious material].

t no instances of interference with the com-

he Jehovah’s Witnesses have been reported

iod and that the first applicant’s lack of legal

y be compensated in part by running auxil-

s, as stated by the applicants, is not decisive.

rtance of this right, the Court considers that

ation on all of the State’s authorities to keep

which an applicant waits for conferment of

y for the purposes of Article 9 of the Con-

ably short. The Court appreciates that

ting period the first applicant’s lack of legal

ld to some extent have been compensated by

auxiliary associations which had legal per-

does not appear that the public authorities

any such associations. However, since the

nomous existence is at the very heart of the

rticle 9 these circumstances cannot make up

ed failure to grant legal personality to the87




The imposition of a requirement of state registration is thusnot in itself incompatible with freedom of thought, con-science and religion, but the state must be careful to main-tain a position of strict neutrality and be able todemonstrate it has proper grounds for refusing recognition.However, the process for registration must guard againstunfettered discretion and avoid arbitrary decision-making.185 A state must always take care when it appears tobe assessing the comparative legitimacy of differentbeliefs.186 In Regionsgemeinschaft der Zeugen Jehovas andothers v. Austria, a violation of Article 9 was established. Forsome 20 years, the authorities had refused to grant legal per-sonality to Jehovah’s Witnesses. The state had argued thatno interference with the applicants’ rights had arisen as legalpersonality had eventually been conferred, and in any eventno individual members had been hindered in practisingtheir religion individually; furthermore, the members couldthemselves have established an association enjoying legalpersonality in domestic law. The Court was not persuaded:

On the one hand the period which elapsed between the

submission of the request for recognition and the granting

of legal personality is substantial and it is therefore ques-

tionable whether it can be treated merely as a period of

waiting while an administrative request was being proc-

essed. On the o

cant did not

consequences a

sonality allowe

name, to have l

ties, to establish

and to produce

… The fact tha

munity life of t

during this per

personality ma

iary association

Given the impo

there is an oblig

the time during

legal personalit

vention reason

during the wai

personality cou

the creation of

sonality, and it

interfered with

right to an auto

guarantees in A

for the prolong

first applicant.1185. Supreme Holy Council of the Muslim Community v. Bulgaria, §33.186. Hasan and Chaush v. Bulgaria [GC], §§84-89 at §78.


59

erspective, the right of believers to freedom of

h includes the right to manifest one’s religion

y with others, encompasses the expectation

will be allowed to associate freely, without

e intervention.

w that the applicant church was not a newd by making its recognition depend on the

clesiastical authority that had previously beenty of neutrality and impartiality had not beenas the Court satisfied in the absence of anyontrary either that the church was (as the

nment submitted) engaged in political activi-oldovan public policy or to its own stated

r that state recognition might constitute al security and territorial integrity.188 Similarly,esses of Moscow v. Russia, the refusal to re-s association and its subsequent dissolution taken place without relevant and sufficienteen established. It had been alleged by the

he organisation had forced families to breakcited its followers to commit suicide or toe, that it had impinged on the rights of mem- were not Jehovah’s Witnesses and their chil-had encouraged members to refuse to fulfil

rch of Bessarabia and others v. Moldova, §§101-142. See alsors v. Greece, §46 and Moscow Branch of the Salvation Army v.



Even where a State seeks to rely upon national security and ter-ritorial integrity as justification for refusal to register a commu-

nity, proper assessment of such claims is required. Vaguespeculation is inadequate. In Metropolitan Church of Bessara-

bia and others v. Moldova the applicants had been prohibited

from gathering together for religious purposes and had notbeen able to secure legal protection against harassment or for

the church’s assets. The respondent government sought toargue that registration in the particular circumstances of this

case could lead to the destabilisation of both the OrthodoxChurch and indeed of society as a whole since the matter con-

cerned a dispute between Russian and Romanian patriarchates;

further, recognition could have had an adverse impact upon thevery territorial integrity and independence of the state. Reiter-

ating the State’s requirement to remain neutral and its role inencouraging mutual tolerance between competing groups

(rather than seeking to remove the cause of tension by eliminat-ing pluralism), the Strasbourg Court again stressed that

Article 9 excluded state assessment “of the legitimacy of reli-gious beliefs or the ways in which those beliefs are expressed”. It

was also necessary to read Article 9 alongside Article 11’s guar-

antees against unjustified state interference with freedom ofassociation: and

seen in that p

religion, whic

in communit

that believers

arbitrary Stat

By taking the viedenomination, anwill of another ecrecognised, the dudischarged. Nor wevidence to the crespondent goverties contrary to Mreligious aims, odanger to nationain Jehovah’s Witnregister a religiouwere held to havegrounds having bauthorities that tup, that it had inrefuse medical carbers, parents whodren, and that it

187. Religionsgemeinschaft der Zeugen Jehovas and others v. Austria, §§87-99 (sub-stantial time taken to determine question of recognition of Jehovah’s Witnesses:violation of Article 14 with Article 9).

188. Metropolitan ChuPentidis and otheRussia, §§71-74,


rther noted that Article 9 had to be read in and the guarantees of access to fair judicial

tect the religious community, its members government’s assertion that it had shownhe church and its members could not be al recognition, since recognition alone hadestic law of conferring rights on those con-emselves against acts of intimidation. The

the church had thus resulted in such conse-licants’ rights under Article 9 that could notssary in a democratic society.192 There mustaccess to court for the determination of aghts and obligations in terms of Article 6 ofention on Human Rights.

t of state neutrality: controls worship

religious organisations may also involvestrictions placed upon the entry of religious imposition of restrictions to places of

h of Bessarabia and others v. Moldova, §§101-142 (assetsian aid). See also Pentidis and others v. Greece, §46. Stichting Touba Moskee v. the Netherlands (dec.) (prospec-side the European Union refused work permit: admissible;elinquishment to the Grand Chamber following the issue ofn and K v. Russia, §§61-79 (refusal to allow Unificationnd his son re-entry on secret orders of security service: vio-nd not necessary to consider issue under Article 14 taken




legal duties. However, no appropriate factual basis for the alle-gations had been established, and indeed limitations imposedon members had not differed fundamentally from similar limi-tations on adherents’ private lives imposed by other religions.In any event, encouragement to abstain from blood transfu-sions even in life-threatening situations could not warrant sucha far-reaching measure since domestic law granted patients thefreedom of choice of medical treatment.189

A refusal to register a religious community may also carry withit the consequence that the community is thereby precludedfrom enforcing its interests in the courts. Churches may alsohold property, and any interference with these rights is in prin-ciple liable to give rise to questions falling within the scope ofArticle 1 of Protocol No. 1.190 In Canea Catholic Churchv. Greece a decision of the domestic courts to refuse to recog-nise the applicant church as having the necessary legal person-ality was successfully challenged, the Strasbourg Courtconsidering that the effect of such a decision was to prevent thechurch now and in the future from having any dispute relatingto property determined by the domestic courts.191 In the Metro-politan Church of Bessarabia and others v. Moldova case, the

Strasbourg Court futhe light of Article 6proceedings to proand its assets. Thetolerance towards tsubstitute for actuabeen capable in domcerned to defend threfusal to recognisequences for the appbe regarded as necethus be a right of community’s civil rithe European Conv

The requiremenupon places of

State regulation ofmeasures such as releaders193 and the

189. Jehovah’s Witnesses of Moscow v. Russia, §§170-182 (dissolution had entailed aviolation of Article 9 read in the light of Article 11; and failure to re-register hadinvolved a violation of Article 11 read in the light of Article 9). See also Churchof Scientology Moscow v. Russia, §§94-98 (violations of Article 11 read in con-junction with Article 9).

190. See, for example, Holy Monasteries v. Greece, §§54-66.191. Canea Catholic Church v. Greece, §§40-42.

192. Metropolitan Churcincluding humanitar

193. See El Majjaoui andtive imam from outbut struck out after ra permit; and NolaChurch missionary alation of Article 9, awith Article 9).


61

formal conditions laid down in those enact-

isfied.

m the evidence and from the numerous other

the applicants and not contested by the Gov-

the State has tended to use the possibilities

domestic law] to impose rigid, or indeed pro-

itions on practice of religious beliefs by certain

x movements, in particular Jehovah’s Wit-

]he extensive case-law in this field seems to

endency on the part of the administrative and

authorities to use these provisions to restrict

of faiths outside the Orthodox Church.

me significance that authorisation was stillme the Strasbourg Court delivered its judg-is authorisation was to come not only fromalso from the local bishop. The Court deter-nviction could not be said to have been a pro-se.195 A position of strict neutrality is thus

others v. Greece, §§44-53 at §48. See too Khristianskoteli na Iehova” (Christian Association Jehovah’s Witnesses) v.ion of the association’s registration followed by arrests, dis-

s held in public and private locations and confiscation of reli-clared admissible under Articles 6, 9-11 and 14), and (9 Marchttlement ultimately achieved); Institute of French Priests andriendly settlement) (decision by the Turkish courts to registerlonging to the Institute in the name of state bodies on thestitute was no longer eligible for treatment as a religious bodyof its property for various sporting activities: friendly settle-r a life tenancy in favour of the priests representing the Insti-).


The requirement of state neutrality: controls upon places of worship

worship considered of significance.194 Again, care is needed toensure that the legitimate considerations which underpin therationale for such measures are not used for ulterior purposesto favour or to hinder a particular faith. Planning controlsprovide another example of measures required in the publicinterest but which may nevertheless be imposed in bad faith.For example, in Manoussakis and others v. Greece, domestic lawhad required religious organisations to obtain formal approvalfor the use of premises for worship. Jehovah’s Witnesses hadsought unsuccessfully to obtain such permission, and thereafterhad been convicted of operating an unauthorised place of wor-ship. The Strasbourg Court accepted that national authoritieshad the right to take measures designed to determine whetheractivities undertaken by a religious association were potentiallyharmful to others, but this could not allow the State to deter-mine the legitimacy of either the beliefs or the means ofexpressing such beliefs. In this instance, the context in whichthe application arose was also of relevance:

The right to freedom of religion as guaranteed under the

Convention excludes any discretion on the part of the State

to determine whether religious beliefs or the means used to

express such beliefs are legitimate. Accordingly, the Court

takes the view that the authorisation requirement [under

domestic law] is consistent with Article 9 of the Convention

only in so far as it is intended to allow the Minister to verify

whether the

ments are sat

It appears fro

cases cited by

ernment that

afforded by [

hibitive, cond

non-Orthodo

nesses. … [T

show a clear t

ecclesiastical

the activities

It was also of soawaited by the timent, and that thstate officials but mined that the coportionate respon

194. E.g. Chappell v. the United Kingdom. Cf. Logan v. the United Kingdom (dec.).

195. Manoussakis andSdruzhenie “SvideBulgaria (suspenspersal of meetinggious materials de1998) (friendly seothers v. Turkey (fa plot of land beground that the Inas it had let part ment secured aftetute was conferred


t of state neutrality: interfering utes between adherents of a unity

e authorities have attempted to intervene in dispute between members of a religiouse the interplay between freedom of religionociation. Article 9, when interpreted in the

e expectation that [such a] community will

unction peacefully, free from arbitrary State

favouring a particular leader or group in a

s community or seeking to compel the com-

of it, to place itself under a single leadership

would constitute an infringement of the

ion.197

degree of tension is only the unavoidableralism.198 It is immaterial to the determina-“interference” has occurred with the rightsare dissatisfied with the outcome of stateey are at liberty to establish a new religioustervening in internal disputes between

6-43..cil of the Muslim Community v. Bulgaria at §73.), §§56-61.




required, and to this end, the involvement in this procedure ofanother ecclesiastical authority which itself enjoys state recog-nition will not be appropriate.

Situations in which rigorous (or indeed prohibitive) conditionsare imposed on the adherents of particular faiths, however,must be contrasted with those in which an applicant is seekingto modify the outcome of planning decisions taken in a objec-tive and neutral manner. In Vergos v. Greece the applicant hadbeen refused permission to build a prayer-house for the com-munity on a plot of land which he owned on the basis that theland-use plan did not permit the construction of such buildingsand that in any event he was the only member of his religiouscommunity in his town. The planning authorities had accord-ingly concluded there was no social need justifying modifica-tion of the plan so as to permit the building of a prayer-house.In determining that this interference was “necessary in a demo-cratic society”, the Strasbourg Court accepted that the criterionapplied by the domestic authorities when weighing the appli-cant’s freedom to manifest his religion against the public inter-est in rational planning could not be considered arbitrary.Having regard to a State’s margin of appreciation in matters oftown and country planning, the public interest should not bemade to yield precedence to the need to worship of a singleadherent of a religious community when there was a prayer-house in a neighbouring town which met the religious commu-nity’s needs in the region.196

The requiremenin internal dispreligious comm

Cases in which statmatters of internalcommunity illustratand freedom of asslight of Article 11,

encompasses th

be allowed to f

intervention,

and thus

State measures

divided religiou

munity, or part

against its will

freedom of relig

In any event, someconsequence of plution of whether an of adherents who intervention that thorganisation.199 In

196. Vergos v. Greece, §§3197. Supreme Holy Coun198. Agga v. Greece (no. 2


ts of a religious community 63

ons, denominations and beliefs. What is at

the preservation of pluralism and the proper

f democracy, one of the principal characteris-

is the possibility it offers of resolving a coun-

s through dialogue, even when they are

t case, the relevant law and practice and the

ctions … had the effect of compelling the

unity to have a single leadership against the

the two rival leaderships. As a result, one of

leaders was favoured and the other excluded

of the possibility of continuing to manage

y the affairs and assets of that part of the com-

supported it. … The Government have not

the present case their aim to restore legality

injustices could not be achieved by other

ut compelling the divided community under a

hip.

h measures had thus not been established. Itcance in this particular case that the measuresany event successful as the conflicts in theontinued. While the authorities did enjoy a

f appreciation” in determining what measuresircumstances, the authorities had exceededis instance. Accordingly, the interference byd constituted a violation of Article 9.201


The requirement of state neutrality: interfering in internal disputes between adheren

groups of adherents is likely to be considered as pursuing thelegitimate aim of preventing disorder and protecting the rightsand freedoms of others, but although a certain amount of regu-lation may be necessary in order to protect individuals’ inter-ests and beliefs, state authorities must take care to dischargetheir duty of neutrality and impartiality as the autonomy of reli-gious communities constitutes an essential component of plu-ralist democratic society where several religions ordenominations of the same religion co-exist.200

In the Supreme Holy Council of the Muslim Community v. Bul-garia, the Strasbourg Court was called upon to determinewhether such an interference caused by efforts made by stateauthorities to address long-standing conflicts within theMuslim religious community had been “necessary in a demo-cratic society”. It decided that this had not been shown to havebeen so:

The Court reiterates that the autonomous existence of reli-

gious communities is indispensable for pluralism in a dem-

ocratic society. While it may be necessary for the State to

take action to reconcile the interests of the various religions

and religious groups that coexist in a democratic society,

the State has a duty to remain neutral and impartial in exer-

cising its regulatory power and in its relations with the

various religi

stake here is

functioning o

tics of which

try’s problem

irksome.

In the presen

authorities’ a

divided comm

will of one of

the groups of

and deprived

autonomousl

munity which

stated why in

and remedy

means, witho

single leaders

The need for sucwas also of signifihad not been in community had ccertain “margin oto take in such cthat margin in ththe authorities ha

199. Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and oth-ers v. Bulgaria, §§122-160.

200. Miroïubovs and others v. Latvia, §§82-96.


Court recognises that it is possible that

ted in situations where a religious or any

ity becomes divided, it considers that this is

oidable consequences of pluralism. The role

ies in such circumstances is not to remove

sion by eliminating pluralism, but to ensure

ting groups tolerate each other.202

lso arose in Agga v. Greece (no. 2). Here, theelected to the post of mufti by worshippersresult had been annulled by state officials appointed another mufti to the office. Thened to step down, and had also in conse-cted of the offence of having usurped thenister of a “known religion” as had alsof case. It was again readily accepted that theen for a prescribed interest, that is, the pres-rder. The application of criminal sanctionsseeable. But the Strasbourg Court againd that the interference had been “necessaryciety”. There had been no pressing socialrence. In its view, “punishing a person forimself as the religious leader of a group thathim can hardly be considered compatiblef religious pluralism in a democratic soci-ious leaders were recognised by domestic

54.




The taking of measures by state authorities to ensure that reli-gious communities remain or are brought under a unified lead-ership will thus be difficult to justify if challenged, even wherethe action is purportedly taken in the interests of public order.The responsibility of the authorities to promote pluralism andtolerance clearly trumps any arguments based upon good gov-ernance or the importance of ensuring effective spiritual lead-ership. In Serif v. Greece the applicant had been elected as amufti, a Muslim religious leader, and had begun to exercise thefunctions of that office. However, he had not secured the requi-site state authority to do so, and criminal proceedings werebrought against him for having usurped the functions of a min-ister of a “known religion” with a view to protecting the author-ity of another mufti who had secured the necessary officialrecognition. The Strasbourg Court accepted that the resultantconviction had pursued the legitimate aim of protecting publicorder. However, it was not persuaded that there had been anypressing social need for the conviction. There had been noinstance of local disturbance, and the respondent government’ssuggestion that the dispute could even have resulted in inter-state diplomatic difficulty had never been anything other than aremote possibility. In any case, the function of the state in suchinstances was to promote pluralism rather than to seek to elim-inate it:

Although the

tension is crea

other commun

one of the unav

of the authorit

the cause of ten

that the compe

A similar situation aapplicant had been at a mosque. This who thereafter hadapplicant had decliquence been convifunctions of a mioccurred in the Seriinterference had beervation of public ohad also been forecould not be satisfiein a democratic soneed for the interfemerely presenting hwillingly followed with the demands oety.” Although relig

201. Supreme Holy Council of the Muslim Community v. Bulgaria, §§93-99 at §§93-95. 202. Serif v. Greece, §§49-


ts of a religious community 65

luralism, it should never be necessary in astate to seek to place a religious communityadership by favouring a particular leader over

. 2), §§56-61.


The requirement of state neutrality: interfering in internal disputes between adheren

law as having the right to exercise certain judicial and adminis-trative state responsibilities (and thus since legal relationshipscould be affected by the acts of religious ministers, the publicinterest may indeed justify measures to protect individualsagainst deception), in the present instance there had been noindication that the applicant had attempted at any time to exer-cise these functions. Further, since tension is the unavoidable

consequence of pdemocracy for a under a unified leothers.203

203. Agga v. Greece (no

impact upon the free exercise of conscience or belief

having an impact upon

f Protocol No. 1 to the Convention. This first pro-“no person shall be denied the right to education”,fter that “in the exercise of any functions which it relation to education and to teaching, the State shall right of parents to ensure such education and teach-formity with their own religious and philosophicals”. The right to respect for religious and philosophi-ions belongs to the parents of a child and not to the

204 or to any school or religious association.205 But thespect any such “convictions” of parents is, however,e to the primary right of a child to receive education,he provision cannot be read in such a manner as toognition of a parent’s wish, for example, that a childgeneral exemption from attending school on Satur-igious grounds,206 let alone that a child be allowed tod at home rather than in a school.207

v. Sweden, §93.ordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden

Casimiro and Cerveira Ferreira v. Luxembourg (dec.).


Related guarantees under the Convention having an 66

Related guarantees under the Conventionthe free exercise of conscience or belief

It is also appropriate to discuss – albeit briefly – linked consid-erations concerning religion and belief which have arisen underother provisions of the European Convention on HumanRights. The importance of provisions such as Article 6 andArticle 11 has been highlighted in respect of the collectiveaspect of freedom of religion. Other guarantees also have somebearing upon enjoyment of freedom of thought, conscience andreligion. In particular, issues may arise within the context ofparental rights in the provision of public education underArticle 2 of Protocol No. 1, while limitations on the free expres-sion of religious communities may occasionally arise underArticle 10. Further, it is also necessary to note the importanceof Article 14’s prohibition of discrimination in the enjoyment ofConvention rights. The discussion which follows, however, canonly provide a basic introduction to these additional concerns.

Religious convictions and education: Article 2 of Protocol No. 1

Questions concerning respect for parents’ religious belief in theprovision of education of their children may arise under

Article 2 ovides that and thereaassumes inrespect theing in conconvictioncal convictchild itselfduty to resubordinatand thus trequire recis given a days on relbe educate

204. Eriksson205. Ingrid J

(dec.).206. Martins


67

al convictions” in the setting and delivery ofay obviously arise within the context of cur-ation and delivery, but state interests in

ain factual information – including informa- or philosophical nature – forms part of the may take precedence over parental consid-

rea.210 Furthermore, as the Grand Chamberutsi and others v. Italy, arrangements in edu-g may indeed reflect historical tradition ands adherence. The requirement for the pres-

in classrooms, for example, while conferringy religion in Italy a “preponderant visibility”,note a process of indoctrination, as a crucifixpassive symbol whose influence cannot beble to that of didactic speech or participationities. This conclusion was supported by theculum did not include any compulsory teach-tianity, and indeed there were also clearide an understanding of other faiths and

e of others’ beliefs.211

e guarantee is “the safeguarding of pluralism public education and the prohibition of However, providing indoctrination is

v. Italy [GC], §§62-77 at §71 (no violation of Article 2 of Proto-eparate issue arising under Article 9, Article 2 of Protocol No.cialis in this area).


Religious convictions and education: Article 2 of Protocol No. 1

In the context of this provision, “education” suggests “the wholeprocess whereby, in any society, adults endeavour to transmittheir beliefs, culture and other values to the young”, while“teaching or instruction refers in particular to the transmissionof knowledge and to intellectual development”. “Respect” sug-gests more than mere acknowledgment or even that a parent’sviews have been taken into account, and instead “implies somepositive obligation on the part of the State”.208 “Religious andphilosophical convictions” is much broader than faith. Thusdisciplinary measures may not simply be dismissed as a mattermerely of internal administration. In Campbell and Cosans v.the United Kingdom parents of pupils objected to the practiceof corporal punishment. The Strasbourg Court accepted thatthe applicants’ views met the test of philosophical conviction inthat they related to a “weighty and substantial aspect of humanlife and behaviour, namely the integrity of the person”, and thusthe State’s failure to respect these convictions violated the guar-antee since “the imposition of disciplinary penalties is an inte-gral part of the process whereby a school seeks to achieve theobject for which it was established, including the developmentand moulding of the character and mental powers of itspupils”.209

Such “philosophicthe curriculum mriculum determinensuring that certtion of a religiousschool curriculumerations in this aemphasised in Lacation and teachindominant religiouence of crucifixesupon the majoritcannot in itself deis an essentially deemed comparain religious activfact that the curriing about Chrisattempts to provpromote toleranc

The essence of thand tolerance inindoctrination”.212

207. Konrad and others v. Germany (dec.) (denial of right of home education toChristian parents who objected to private or state schooling on account of sexeducation, study of fairytales, and inter-pupil violence: inadmissible).

208. Campbell and Cosans v. the United Kingdom, §§33 and 37; Valsamis v. Greece,§27.

209. Campbell and Cosans v. the United Kingdom, §§33-37 at §36.

210. Sluijs v. Belgium.211. Lautsi and others

col No. 1, and no s1 being the lex spe

on the free exercise of conscience or belief

ation has arisen may require careful assess-nd others v. Norway the Grand Chamberajority) ruled that the introduction of newhe teaching of religion and philosophy ind failed to respect the rights of parents. Theuired a greater emphasis to be placed uponhristian religion, although other faiths weren classes. The rights of parents to withdrawclasses was also to be restricted: in the past,draw his child from lessons in Christianity. the Court, the emphasis upon knowledgeas not in itself objectionable in light of thehristianity had played in the country’s

n. However, the curriculum’s purported aima Christian and moral upbringing, albeit inthe home, suggested that the distinctionsty and other faiths and religions were notut also qualitative. This in turn called intoulum’s stated aims of addressing sectarian- pluralism and understanding. In these cir-te had to ensure that parental convictionstected. The majority of the Court could not

se arrangements were sufficient to meet therticle 2 of Protocol no 1. Not only would informed in advance as to lesson plans toify and to notify which aspects of teachingible with their beliefs, but the requirement



Related guarantees under the Convention having an impact up68

avoided, decisions on such issues as the place accorded to reli-gion are covered by a margin of appreciation on the part of

national authorities. In Kjeldsen, Busk, Madsen and Pedersen v.Denmark parents objected to the provision of sex education to

their children. In a crucial part of the judgment which encapsu-

lates the manner for resolving the conflicting interests of theState, of pupils and of their parents, the Strasbourg Court drew

a distinction between the imparting of knowledge even of adirectly or indirectly religious or philosophical nature, and

teaching which sought to inculcate a particular value or philos-ophy which did not respect the views of a parent. The provision

does not “permit parents to object to the integration of such

teaching or education in the school curriculum, for otherwiseall institutionalised teaching would run the risk of proving

impracticable” since most school subjects involved “some phil-osophical complexion or implications”. However, a school has

to ensure that the education provided by way of teaching orinstruction conveyed information and knowledge “in an objec-

tive, critical and pluralistic manner”. The key guarantee isagainst the State pursuing an “aim of indoctrination that might

be considered as not respecting parents’ religious and philo-

sophical convictions”, this being “the limit that must not beexceeded”.213

Whether such a situment. In Folgerø a(albeit by a bare marrangements for tprimary schools hanew curriculum reqknowledge of the Calso to be covered itheir children from a parent could withFor the majority ofabout Christianity wimportance that Chistory and traditioof helping provide co-operation with between Christianionly quantitative bquestion the curricism and promotingcumstances, the stawere adequately probe satisfied that therequirements of Aparents need to beallow them to identwould be incompat

212. W. and D.M., M. and H.I. v. the United Kingdom. See also C.J., J.J and E.J. v.Poland and Bernard and others v. Luxembourg.

213. Kjeldsen, Busk Madsen and Pedersen v. Denmark, §53.


69

parents’ rights to have their religious convic-count.216

pression and thought, conscience ticle 10

e considered the extent to which restrictionspression involving aspects of thought, con-

on are compatible with Article 10’s guaranteeression. The exercise of this right by groups org to persuade others may often be better con-of Article 10 guarantees unless this clearlystation” of belief.217 For example, restrictions

expenditure that can be incurred at electionged successfully by an anti-abortionist as a

restriction of freedom of expression.218 Fur-essentially of a commercial nature may begrounds that this is necessary for the protec-from misleading claims.219

ase involving religious advertising is Murphyh the refusal to allow the television screeningertisement was challenged by the applicantes 9 and Article 10 of the Convention. Whileed that Article 10 could permit restrictions of

and Cerveira Ferreira v. Luxembourg (dec.).Arrowsmith v. the United Kingdom, above at p. 22.ited Kingdom, §§35-47.cientology v. Sweden.


Freedom of expression and thought, conscience and belief: Article 10

that any request for withdrawal from teaching was to be sup-ported by reasonable grounds also carried the risk that parentswould be forced to disclose their own religious and philosophi-cal convictions to an unacceptable extent. Further, schools wereto be given authority to respond to requests for withdrawalfrom teaching by withdrawing the child merely from the activ-ity rather than from the classroom. All of this thus supportedthe conclusion that the arrangements were highly complex andlikely to deter parents from making use of requests for exemp-tion.214

Educational issues may also arise within the scope of Article 9,but the influence of case-law under Article 2 of Protocol No. 1in the disposal of applications is clear. A requirement to attendmoral and social education in the absence of any allegation ofindoctrination does not give rise to an interference withArticle 9 rights.215 Further, while a refusal to grant a generalexemption from attending school on Saturdays on religiousgrounds to the sons of the applicants, Seventh Day Adventists,could be regarded as an interference with the manifestation ofbelief, no general dispensation could be recognised which

would adversely affect a child’s right to education, a right which

prevailed over thetions taken into ac

Freedom of exand belief: Ar

Certain cases havon freedom of exscience and religiof freedom of expindividuals seekinsidered in terms involves a “manifeon the amount oftime were challendisproportionate ther, expression restricted on the tion of the public

A more difficult cv. Ireland, in whicof a religious advunder both Articlthe applicant agre

214. Folgerø and others v. Norway [GC], §§85-102. See also Hasan and Eylem Zenginv. Turkey, §§58-77 (religious culture and ethics syllabus failed to meet the crite-ria of objectivity and pluralism and restricted the possibility of exemption frominstruction: violation).

215. Bernard and others v. Luxembourg.

216. Martins Casimiro217. See discussion of 218. Bowman v. the Un219. X and Church of S


d been entitled to take the view that Irishnt having advertisements touching on theseto their homes. For the Strasbourg Court,nt that the prohibition concerned only the a means of communication which has “avasive and powerful impact”. The applicantertised via local and national newspapers

me right as any other citizen to participateeligious matters, public meetings and other

were thus highly “relevant reasons” under the blanket prohibition of the broadcastingsements.220 It is clear from such cases thatch the speech takes place is of particularhannel of communication was television. It to categorise this judgment as one in which“margin of appreciation” was particularlyational judicial forum should be particularlyrom interfering with domestic determina-y sensitive decisions. On the other hand, itt the judgment hardly promotes the valuesadmindedness.

e extent to which state authorities may takeression in order to protect the religiousrents of particular faiths by preventing or

lay of insulting or offensive material that

§65-82 at § 67.




religious expression which would offend others’ religious sensi-tivities, he also argued that an individual was not protectedfrom being exposed to a religious view simply because it did notaccord with his or her own. For the Strasbourg Court, therefusal primarily concerned the regulation of the applicant’smeans of expression and not his manifestation of religiousbelief, and thus the case was disposed of in terms of Article 10.State authorities were better placed than an international courtto decide when action may be necessary to regulate freedom ofexpression in relation to matters liable to offend intimate per-sonal convictions. This “margin of appreciation” was particu-larly appropriate in respect to restrictions on free speech inrespect to religion

since what is likely to cause substantial offence to persons of

a particular religious persuasion will vary significantly from

time to time and from place to place, especially in an era

characterised by an ever growing array of faiths and denom-

inations.

In consequence, the Court accepted that the respondent statewas justified in determining that the particular religious sensi-tivities in Irish society were such that the broadcasting of anyreligious advertising could be considered offensive. The domes-tic courts themselves had noted that religion had been a divi-sive issue in society, that Irish people holding religious beliefstended to belong to one particular church and so religiousadvertising from a different church might be considered offen-sive and open to the interpretation of proselytism, and that the

state authorities hacitizens would resetopics broadcast intoo, it was importaaudiovisual media,more immediate, incould still have advand retained the sain programmes on rassemblies. There Article 10 justifyingof religious advertithe context in whiweight. Here, the cmay be fair, though,the extent of the broad, for an interncareful to refrain ftions on particularlcould be argued thaof pluralism and bro

A related issue is thaction against expsensibilities of adhepunishing the disp

220. Murphy v. Ireland, §


71

others and profane. But careful line-drawingo ensure that the goal of pluralism is notmeasures adopted. For example, in Otto-

t v. Austria, the authorities had seized andture of a film ridiculing the beliefs of Romanrpreting Article 10’s guarantee of freedom ofropean Court of Human Rights affirmed that

ies could indeed deem it necessary to takeadherents of religious beliefs against “provoc-f objects of religious veneration” where suchous violation of the spirit of tolerance, whichature of democratic society”. The close rela-Articles 9 and 10 was of the essence:

oose to exercise the freedom to manifest their

pective of whether they do so as members of a

ority or a minority, cannot reasonably expect

t from all criticism. They must tolerate and

nial by others of their religious beliefs and even

on by others of doctrines hostile to their faith.

manner in which religious beliefs and doc-

osed or denied is a matter which may engage

ility of the State, notably its responsibility to

eaceful enjoyment of the right guaranteed

9 to the holders of those beliefs and doctrines.

reme cases the effect of particular methods of

denying religious beliefs can be such as to


Freedom of expression and thought, conscience and belief: Article 10

could discourage adherents from practising or professing theirfaith through ridicule. The scope of Article 10’s guarantee forfreedom of expression encompasses, after all, ideas which“offend, shock or disturb”221, and in any case the maintenance ofpluralist society also requires that adherents of a faith at thesame time accept that their beliefs may be subject to criticismand to the propagation of ideas that directly challenge thesebeliefs. However, offensive speech which is intended or likely tostir up ill-will against a group in society – so-called “hatespeech” – is unlikely to attract any protection, particularly inlight of Article 17 of the Convention which prohibits the abuseof rights. However, the distinction between offensive speechand that which is merely unpopular may be difficult to draw. Asustained campaign of harassment by private individuals ororganisations may give rise to State responsibility,222 but on theother hand, it is legitimate that individuals are free to criticisereligious groups, particularly if the criticism concerns thepotentially harmful nature of their activities, and when made ina political forum in which issues of public interest are expectedto be debated openly.223 The Strasbourg Court has recognisedthat the peaceful enjoyment of the rights guaranteed underArticle 9 by adherents of religious faiths at the very least mayjustify a State in taking action against the dissemination ofexpression that is, in respect to objects of veneration, gratui-

tously offensive towill be needed tdefeated by the Preminger-Instituordered the forfeiCatholics. In inteexpression, the Eunational authoritaction to protect ative portrayals oconstitute “malicimust also be a fetionship between

Those who ch

religion, irres

religious maj

to be exemp

accept the de

the propagati

However, the

trines are opp

the responsib

ensure the p

under Article

Indeed, in ext

opposing or

221. Handyside v. the United Kingdom, at §49.222. Church of Scientology v. Sweden (dec.).223. See Jerusalem v. Austria, §§38-47.


on free expression even where it is difficultt any offence could be taken other than ton that another religion or interpretation ofted.228 Not all expression considered offen-isturbing to the sensitivities of a religious(or should) fall outside the protection10.229 In principle, it seems appropriate that

orded by Article 9 should be restricted toicious violation of the spirit of tolerance”. Inr example, the conviction of journalist for

ighest representative of the Roman Catholic, and thereby for having disparaged a group Catholic faith, was found to have consti-

f Article 10. The journalist had written an archbishop’s attempts to prevent the distri-the grounds of its blasphemous nature andexual connotation; the article had also con-

§§43-56 (conviction for defamation of Christians, and par-holics, for publication of article critical of a papal encyclicalolic Church’s role in the Holocaust: violation, as the article

rnalist and historian and concerned a matter of indisputabledid not seek to attack religious belief as such but confined Pope’s position).

tology and 128 of its members v. Sweden (dec.); Paturel v.viction for defamation by a member of the Jehovah’s Wit-t association: violation of Article 10, for the passages con-

ere value judgments based upon a sufficient factual basisrely factual assertions); and Aydın Tatlav v. Turkey, §§21-31eligion, but not an abusive attack on the Muslim faith: sanc-iolation of Article 10).




inhibit those who hold such beliefs from exercising their

freedom to hold and express them.224

Similarly, in Wingrove v. the United Kingdom, the StrasbourgCourt rejected a complaint brought under Article 10 concern-ing the refusal to license a video considered blasphemous bythe domestic authorities on the grounds that it was not unrea-sonable to consider that the interference with freedom ofexpression may be deemed justified as for the protection of therights of Christians.225 These cases support the proposition thata State may take action against expression which is gratuitouslyoffensive. Of importance in both of these cases was the mannerin which the opinions had been expressed rather than thecontent of the opinions themselves. Other cases involvingsocial commentary226 or discussion of historical events con-cerning the role played by religious leaders227 have resulted ingreater protection being accorded to expression. However, acase such as Murphy v. Ireland, discussed above, can appear to

support restrictionsto acknowledge thathe mere recognitioreligious belief exissive, shocking or dcommunity could accorded by Articleany protection accthat which is a “malKlein v. Slovakia, fodefamation of the hChurch in Slovakiaof citizens for theirtuted a violation oarticle critical of thebution of a film on strong imagery of s

224. Otto-Preminger-Institut v. Austria, at §§56 and 57.225. Wingrove v. the United Kingdom, §60. See also I.A. v Turkey, §§21-32 (conviction

leading to modest sanction for blasphemy for publication of work examiningphilosophical and theological issues but involving a slanderous attack on theprophet Mohammed: no violation of Article 10, for notwithstanding the strongattachment to secularism in Turkey, it was legitimate for practising Muslims toconsider the work had constituted an unjustified and offensive attack on them).

226. See, e.g., Vereinigung Bildender Künstler v. Austria, §§26-39 (at §8: the paintingin question “showed a collage of various public figures, such as Mother Teresa,[an] Austrian cardinal … and the former head of the Austrian Freedom Party …,in sexual positions”; and at §33: “satire is a form of artistic expression and socialcommentary and, by its inherent features of exaggeration and distortion of real-ity, naturally aims to provoke and agitate”).

227. Giniewski v. France,ticularly Roman Catand the Roman Cathwas written by a joupublic interest, and itself to addressing a

228. See above at p. 69.229. See Church of Scien

France, §§31-51 (connesses of an anti-secsidered offensive wrather than being me(strong criticism of rtions constituted a v


73

otected under Article 8 §1 of the Conven-tent, then, individual decision-making basedlief or conscience seems inviolate. Article 8

sses the exercise of parental responsibilitiest to take decisions concerning the upbringingagain including decisions concerning medicalle there is little consideration of this topic inciple would seem to suggest that this author-t to appropriate limitations on such authority and well-being of children, particularly when life and where countervailing considerationsr, the state’s positive obligation to seek toighly relevant. A similar case could be madeion in respect of adults whose state of healthher vulnerable to undue pressure or who to be fully competent to take decisions con-ment.233

d Kingdom at §83.nmark, at §61: “Family life in this sense, and especially theto exercise parental authority over their children, having duerresponding parental responsibilities, is recognised and pro-nvention, in particular by Article 8. Indeed the exercise ofnstitutes a fundamental element of family life.”Greece, discussed at p. 47, above; and Keenan v. the United1. But cf Riera Blume and others v. Spain, §§31-35, (com-rogramming treatment” involved a violation of Article 9t of a finding of violation of Article 5).


Medical treatment issues: Article 8

tained allusions to the archbishop’s alleged co-operation withthe former communist regime. However, while the opinion hadbeen strongly-worded, it had been published in a weekly withrather limited circulation, the article had related exclusively tothe archbishop, and it had not unduly interfered with the rightof believers to express and exercise their religion, nor had itdenigrated the content of their religious faith.230

Medical treatment issues: Article 8

Domestic courts are on occasion faced with situations in whichobjection is taken to necessary medical treatment on groundsof conscience or belief (for example, to procedures necessitat-ing a blood transfusion). Most domestic legal systems recogniseand respect the absolute right of an adult who suffers from nomental incapacity to make decisions concerning medical treat-ment, including the right to choose not to receive treatment,even when this may involve a risk to life. Similarly, this princi-ple of autonomy or self-determination is recognised byArticle 8. “In the sphere of medical treatment, the refusal toaccept a particular treatment might, inevitably, lead to a fataloutcome, yet the imposition of medical treatment, without theconsent of a mentally competent adult patient, would interferewith a person’s physical integrity in a manner capable of engag-

ing the rights prtion.”231 To this exupon personal befurther encompaincluding the righof their children, treatment.232 Whithe case-law, prinity must be subjecfor the protectionthere is a threat to(and in particulaprotect life) are hfor state interventrenders them eitcannot be deemedcerning their treat

230. Klein v. Slovakia, §§45-55.

231. Pretty v. the Unite232. See Nielsen v. De

rights of parents regard to their cotected by the Coparental rights co

233. Cf Kokkinakis v. Kingdom, §§88-10plaints that “de-pavoided on accoun


explicit reference to religious belief as anibited ground for discriminatory treat-

of the rights and freedoms set forth in this

ll be secured without discrimination on any

sex, race, colour, language, religion, political

n, national or social origin, association with

rity, property, birth or other status.

No. 12 establishes a more general prohibi-on by providing that “the enjoyment of anyw shall be secured without discriminationh as sex, race, colour, language, religion,inion, national or social origin, association

ority, property, birth or other status”.

discrimination found in Article 14 is clearly only to “the rights and freedoms set forth”nvention on Human Rights. Protocol No. 12nal protection against discriminatory treat-

s which have ratified this treaty. Both provi-t to prevent the effective enjoyment of the grounds inter alia of belief. The impor-visions is specifically acknowledged in annstrument: “discrimination between humanof religion or belief constitutes an affront toa disavowal of the principles of the Charterns”.235 The context in which Article 14 and




State recognition of decisions of ecclesiastical bodies: Article 6

On occasion, the Strasbourg Court has been called upon toconsider issues arising from the civil enforcement of decisionsof religious bodies concerning application of Article 6’s guaran-tee of fair hearings. In resolving such issues, it will applygeneral principles of interpretation. In Pellegrini v. Italy theapplicant challenged the proceedings leading to the issue of adecree of nullity of marriage issued by a Vatican court that hadbeen recognised as having legal effect by the Italian courts. Thekey issue was whether these domestic courts had duly verifiedwhether the Article 6 guarantees had been secured in thechurch proceedings before granting the authority to enforce thedecree. Since the Strasbourg Court held that the Italian courtshad failed to ensure that the applicant had had a fair hearing inthe ecclesiastical proceedings before issuing the authority toenforce the judgment of the ecclesiastical court, a review neces-sary when the decision in respect of which an authority toenforce was sought emanated from the courts of a country thatdid not apply the Convention, there had accordingly been abreach of Article 6.234

Discrimination on the basis of religion or belief

Protection for thought, conscience and religion belief is alsobuttressed by two other provisions. First, Article 14 of the

Convention makesexample of a prohment:

The enjoyment

Convention sha

ground such as

or other opinio

a national mino

Secondly, Protocoltion of discriminatiright set forth by laon any ground sucpolitical or other opwith a national min

The prohibition of limited as it appliesin the European Cothus accords additioment in those statesions thus attempindividual rights ontance of these prointernational legal ibeings on grounds human dignity and of the United Natio234. Pellegrini v. Italy, §§40-48.


75

they were unable – in contrast to other reli-eligious marriages conducted in accordancecognised as equal to those of civil marriages,ted to offer religious education in publicondent state argued that no obligation aroseither requiring recognition of religious mar-ing of religious education in public schools.

greed with this part of the submission, it nev-ifferent conclusion:

reiterates that the Convention, including its

cannot be interpreted so as to impose an obli-

tes to have the effects of religious marriages

equal to those of civil marriages. Likewise, the

fest religion in teaching guaranteed by Article

onvention does not, in the Court’s view, go so

l an obligation on States to allow religious edu-

lic schools or nurseries.

the Court considers that celebration of a reli-

e, which amounts to observance of a religious

hing of a religion both represent manifesta-

on within the meaning of Article 9 §1 of the

It also notes that Croatia allows certain reli-

nities to provide religious education in public

nurseries and recognises religious marriages

them. The Court reiterates in this connection

ibition of discrimination enshrined in Article

vention applies also to those additional rights,



Protocol No. 12 apply may also have implications for thoseseeking to promote ideologies which fail to respect basicvalues, for the revival of religious fundamentalism poses a chal-lenge to pluralism and community tolerance calling for anappropriate reaction from national authorities. The 1990 Docu-ment of the Copenhagen Meeting of the Conference on theHuman Dimension of the CSCE, for example, “clearly andunequivocally condemns totalitarianism, racial and ethnichatred, anti-Semitism, xenophobia and discrimination againstanyone as well as persecution on religious and ideologicalgrounds”.

Article 14

As is apparent from its terms, Article 14 does not confer anyfree-standing or substantive right but rather expresses a princi-ple to be applied in relation to the substantive rights conferredby other provisions: that is, this provision can only be invokedin conjunction with one or more of the substantive guaranteescontained in the Convention or in one of the protocols. How-ever, Article 14 is of fundamental importance since an interfer-ence with a particular right not considered to constitute aviolation of the right may nevertheless be deemed to do sowhen read in conjunction with Article 14. Here, though, thescope of protection may be wider than first appears. In SavezCrkava “Riječ Života” and others v. Croatia Reformed churches

complained that gions – to have rwith their rites reor to be permitschools. The respunder Article 9 eriages or the allowWhile the Court aertheless drew a d

The Court …

Article 9 § 1,

gation on Sta

recognised as

right to mani

9 §1 of the C

far as to entai

cation in pub

Nevertheless,

gious marriag

rite, and teac

tions of religi

Convention.

gious commu

schools and

performed by

that the proh

14 of the Con235. United Nations Declaration on the Elimination of All Forms of Intolerance and

of Discrimination Based on Religion or Belief of 1981, Article 3.


on a characteristic that is innate or inher-identity or the personality of the individual),238 but since the text of Article 14 specifi-rences of treatment based upon “religion,inion”, this issue will not be of difficulty ines of treatment falling within the scope of

be difficult in practice to establish a primamination even where such discriminationle, a non-discriminatory rule is applied in aner so as to constitute indirect discrimina-g Court has recently accepted in D.H. and Republic that “less strict evidential rules”field of discrimination in order to guaranteee effective protection of their rights”. This

placement of Roma schoolchildren in seg- similar concerns would arise in respect ofunt of religious faith. The Court considered

suasion necessary for reaching a particular

, in this connection, the distribution of the

f are intrinsically linked to the specificity of

ture of the allegation made and the Conven-

ke,

ngdom, §§55-62.




falling within the wider ambit of any Convention Article, for

which the State has voluntarily decided to provide. Conse-

quently, the State, which has gone beyond its obligations

under Article 9 of the Convention in creating such rights

cannot, in the application of those rights, take discrimina-

tory measures within the meaning of Article 14. It follows

that, although Croatia is not obliged under Article 9 of the

Convention to allow religious education in public schools

and nurseries or to recognise religious marriages, the facts

of the instant case nevertheless fall within the wider ambit

of that Article. Accordingly, Article 14 of the Convention,

read in conjunction with Article 9, is applicable to the

present case.236

An applicant must first establish that there is a situation whichis comparable to his or her own situation: that is, that the appli-cant has been treated in a different way to a relevant com-parator. The situation of an individual holding humanisticbeliefs wishing to use his acquired knowledge for the service ofothers is not similar to the holder of a religious office, for exam-ple.237 The list of prohibited grounds for discrimination is qual-ified by the phrase “any ground such as”, and is not exhaustivebut merely illustrative. The discriminatory treatment must nor-mally be based upon personal characteristics and not, forexample, geographical location. “Status”, though, is not neces-

sarily dependent upently linked to the (such as sex or racecally refers to diffepolitical or other oprelation to differencArticle 9. As it mayfacie case of discriexists (if, for exampdiscriminatory mantion), the Strasbourothers v. the Czechshould apply in the those concerned “thcase concerned theregated classes, butsegregation on accothat

the level of per

conclusion and

burden of proo

the facts, the na

tion right at sta

and thus236. Savez Crkava “Riječ Života” and others v. Croatia at §§56-58.237. Peters v. the Netherlands. 238. Clift v. the United Ki


77

religion does not entail Churches or their

ng given a different tax status to that of other

such agreements or arrangements do exist,

principle, contravene the requirements of

14 of the Convention, provided that there is

and reasonable justification for the difference

and that similar agreements may be entered

Churches wishing to do so.

the churches in question had never wished toents or to seek such arrangements, the appli-ismissed as manifestly ill-founded.240 A differ-t between religious groups on account ofn of a specific legal status resulting in thevileges is thus not in itself incompatible withs long as a framework establishing criteria forersonality is in place, and also providing thatup has a fair opportunity to apply for this

gionsgemeinschaft der Zeugen Jehovas andhis latter qualification was found not to have some 20 years, the authorities had refused toality to Jehovah’s Witnesses. The Court con-

and Caballero García v. Spain, (dec.).33.



when it comes to assessing the impact of a measure or prac-

tice on an individual or group, statistics which appear on

critical examination to be reliable and significant will be

sufficient to constitute the prima facie evidence the appli-

cant is required to produce.

Here, statistics demonstrating that over 50% of Roma childrenwere placed in special schools for less able children, comparedwith less than 2% of non-Roma children, indicated that the edu-cational tests on which the placements were based were notunbiased against Roma children.239

If a relevant comparator is established, the difference in treat-ment must be shown to be objectively justified, and the onus ofestablishing this lies upon the state. Thus a difference in treat-ment is not automatically discriminatory within the meaning ofArticle 14, but will only be deemed to be so if it does not pursuea legitimate aim or if there is no reasonable relationship of pro-portionality between the means employed and the aim soughtto be realised.

A brief examination of case-law illustrates application of thetest. In Alujer Fernández and Caballero García v. Spain taxpay-ers complained that they were unable to allocate part of theirpayments for the support of their own particular religious com-munities, and that this constituted discriminatory treatment.The Strasbourg Court observed that

freedom of

members bei

taxpayers.

However, where these

do not, in

Articles 9 and

an objective

in treatment

into by other

In this case, sinceenter into agreemcation fell to be dence in treatmenofficial recognitioconferment of prithe Convention aconferring legal peach religious grostatus.241 In Reliothers v. Austria tbeen satisfied. Forgrant legal person

239. D.H. and others v. the Czech Republic, §§185-195.240. Alujer Fernández 241. Koppi v. Austria, §


ld accept that such a period might be neces-

nal circumstances such as would be in the

established and unknown religious groups.

pears justified in respect of religious groups

anding existence internationally which are

lished in the country and therefore familiar

tent authorities, as is the case with the

esses. In respect of such a religious group,

should be able to verify whether it fulfils the

f the relevant legislation within a considera-

od. Further, the example of another religious

d by the applicants shows that the Austrian

onsider the application on an equal basis of

period to be an essential instrument for pur-

in that field.242

atory treatment on the basis of religious orlief or opinion thus require some care in practice, the European Court of Humany decline to consider any complaint of dis-Article 14 when it has already establishedn a violation of a substantive guarantee the same point. If it is necessary to con-rgument, it will also be necessary to deter-

opriate substantive guarantee with which toaint, for the case-law of the Court indicates

ft der Zeugen Jehovas and others v. Austria at §§96-98.




sidered that there had been a violation of Article 14 taken withArticle 9:

The Court reiterates that Article 14 does not prohibit a

member State from treating groups differently in order to

correct “factual inequalities” between them; indeed in

certain circumstances a failure to attempt to correct ine-

quality through different treatment may in itself give rise to

a breach of that Article. A difference of treatment is, how-

ever, discriminatory if it has no objective and reasonable

justification; in other words, if it does not pursue a legiti-

mate aim or if there is not a reasonable relationship of pro-

portionality between the means employed and the aim

sought to be realised. The Contracting State enjoys a

margin of appreciation in assessing whether and to what

extent differences in otherwise similar situations justify a

different treatment.

The Court finds that the imposition of a waiting period

before a religious association that has been granted legal

personality can obtain a more consolidated status as a

public-law body raises delicate questions, as the State has a

duty to remain neutral and impartial in exercising its regu-

latory power in the sphere of religious freedom and in its

relations with different religions, denominations and beliefs.

Such a waiting period therefore calls for particular scrutiny

on the part of the Court.

The Court cou

sary in exceptio

case of newly

But it hardly ap

with a long-st

also long estab

to the compe

Jehovah’s Witn

the authorities

requirements o

bly shorter peri

community cite

State did not c

such a waiting

suing its policy

Claims of discriminother protected betheir resolution. InRights will generallcrimination under that there has beeraising substantiallysider an Article 14 amine the most apprconsider the compl

242. Religionsgemeinscha


79

rtainly stress that such considerations have tome care.

apacity of a church to take legal proceedingsrests is restricted by domestic law, an issueder Article 6’s guarantee of access to a court,e no restrictions are placed upon other reli-anea Catholic Church v. Greece the applicant

take legal proceedings in order to protect itshile the Orthodox Church and the Jewish

able to do so. Since the situation essentially to a court for the determination of civilthere could be no objective and reasonableis discriminatory treatment, the Strasbourg

there was a violation of Article 6 (1) taken inArticle 14.244

ay also involve consideration of discrimina-employment and give rise to questions underrovision taken along with Article 14. The case. Greece concerned a person who had been as a chartered accountant because of a crim-he conviction in question arose from hisilitary uniform during a period of general

on account of his religious beliefs as as. The Strasbourg Court noted that whilesion was not as such covered by the Conven-

hurch v. Greece, §§43-47.



that discrimination on the basis of religion or belief may be bestaddressed by considering Article 14 not in conjunction withArticle 9, but in connection with another substantive provision.

Certain cases have also involved the resolution of child custodyand access by reference to religious belief. In Hoffman v. Aus-tria, for example, the applicant had been denied custody of herchild because of her involvement with Jehovah’s Witnesses.While the Strasbourg Court held that it was unacceptable for adomestic court to base a decision on the ground of a differencein religion, it did so under Articles 8 and 14 as it concerned thedetermination of child custody, an aspect of family life. InPalau-Martinez v. France, a violation of Article 8 taken in con-junction with Article 14 was similarly established in respect of adecision concerning the care of children following upon thebreakdown of a marriage. The determination had proceededupon a generalised and “harsh analysis of the principles regard-ing child-rearing allegedly imposed” by the Jehovah’s Witnessesfaith. While such would have been a relevant factor, it could nothave been a sufficient one in the absence of “direct, concreteevidence demonstrating the influence of the applicant’s religionon her two children’s upbringing and daily life” in view of therejection of the applicant’s request for a social enquiry report.243

Neither case seems to rule out entirely in child-custody casesthe use of judicial knowledge of the practices of particular

faiths, but both cebe applied with so

Where the legal cto uphold its intemay also arise unparticularly whergious bodies. In Cchurch could notproperty rights, wCommunity wereconcerned accessrights, and since justification for thCourt found that conjunction with

Religious beliefs mtory treatment in Article 9 or this pof Thlimmenos vrefused admissioninal conviction. Trefusal to wear mmobilisation, butJehovah’s Witnesaccess to a profes

243. Palau-Martinez v. France, §§29-43 at §§38 and 42. 244. Canea Catholic C


siders that, as a matter of principle, States

te interest to exclude some offenders from

f chartered accountant. However, the Court

that, unlike other convictions for serious

es, a conviction for refusing on religious or

rounds to wear the military uniform cannot

onesty or moral turpitude likely to under-

nder’s ability to exercise this profession.

pplicant on the ground that he was an unfit

, therefore, justified. …

he authorities had no option under the law

appoint the applicant a chartered account-

resent case the Court considers that it was

g enacted the relevant legislation which vio-

ant’s right not to be discriminated against in

of his right under Article 9 of the Conven-

e did so by failing to introduce appropriate

e rule barring persons convicted of a serious

profession of chartered accountants.245

col No. 12 has a potentially wide scope. Inosnia and Herzegovina, the first judgment

rantee, constitutional arrangements which to stand for parliament or for the presi-

e [GC], §§39-49 at §§44, 47 and 48.




tion, it treated the complaint as one of discrimination on thebasis of the exercise of freedom of religion. Although statescould legitimately exclude certain classes of offenders fromvarious professions, the particular conviction in question couldnot suggest dishonesty or moral turpitude. The treatment ofthe applicant therefore did not have a legitimate aim, and wasin the nature of a disproportionate sanction as one additional tothe substantial period of imprisonment he had already served.There was accordingly a violation of Article 14 taken in con-junction with Article 9. In a key passage in this judgment, theStrasbourg Court indicated that states may indeed be under apositive duty to treat individuals differently in certain situa-tions: that is, that discrimination can also occur when the sametreatment is accorded individuals who ought to be treated dif-ferently:

The Court has so far considered that the right under

Article 14 not to be discriminated against in the enjoyment

of the rights guaranteed under the Convention is violated

when States treat differently persons in analogous situations

without providing an objective and reasonable justification.

However, the Court considers that this is not the only facet

of the prohibition of discrimination in Article 14. The right

not to be discriminated against in the enjoyment of the

rights guaranteed under the Convention is also violated

when States without an objective and reasonable justifica-

tion fail to treat differently persons whose situations are sig-

nificantly different. …

The Court con

have a legitima

the profession o

also considers

criminal offenc

philosophical g

imply any dish

mine the offe

Excluding the a

person was not

It is true that t

but to refuse to

ant. … In the p

the State havin

lated the applic

the enjoyment

tion. That Stat

exceptions to th

crime from the

Protocol No. 12

It is clear that ProtoSejdić and Finci v. Bconcerning the guarestricted eligibility

245. Thlimmenos v. Greec


81

atory report suggested that four categories ofthin the scope of the provision:

oyment of any right specifically granted to an

der national law;

joyment of a right which may be inferred from

tion of a public authority under national law,

e a public authority is under an obligation

l law to behave in a particular manner;

lic authority in the exercise of discretionary

ample, granting certain subsidies);

ther act or omission by a public authority (for

behaviour of law enforcement officers when

riot.247

eč Života” and others v. Croatia, §§103-115 (decisions whetherts with religious authorities were a matter for state discretion

concern “rights specifically granted to them under national did fall within the third category specified in the explanatoryg the explanatory report’s comment that it was not necessarylements fell to be considered under each of the paragraphs as

were complementary, the distinctions not clear-cut, andstems may have different approaches as to which case comesory”.



dency to those declaring affiliation to one of the three domi-nant ethnic groups in the state (that is, ethnic groups whoseidentity was to a significant extent based upon religious belief )were held to have violated Article 14 taken with Article 3 ofProtocol No. 1 (in respect of parliamentary elections) and Pro-tocol No. 12 (in respect of elections to the presidency). Thesearrangements had derived from the Dayton Peace Agreementwhich had brought about an end to hostilities in the country.246

In its second judgment on the protocol, Savez Crkava “RiječŽivota” and others v. Croatia, the inability of Reformedchurches to provide religious education in public schools or toconclude state-recognised marriage ceremonies was found tohave violated Article 14 taken in conjunction with Article 9,thus allowing the Court to consider it unnecessary to rule onthe Protocol No. 12 issue. The judgment did, however, allowdiscussion of the applicability of the protocol. The text indi-cated that the prohibition of discrimination was not restrictedto “any right set forth by law” but also extended to the prohibi-tion of discrimination by a public authority, and explicit refer-

ence to the explancases could fall wi

i. in the enj

individual un

ii. in the en

a clear obliga

that is, wher

under nationa

iii. by a pub

power (for ex

iv. by any o

example, the

controlling a

246. Sejdić and Finci v. Bosnia and Herzegovina [GC], §§42-56.

247. Savez Crkava “Rijto enter agreemenand thus did notlaw”, but the issuereport; and notinto specify which ethe paragraphs “domestic legal syunder which categ

Conclusion

oning of democracy, one of the principal characteris-

which is the possibility it offers of resolving a coun-

problems through dialogue, even when they are

e.249

words, the protection of individual belief mustather than discourage mutual respect for and toler-ers’ beliefs. Thus the duties upon a state go beyondsibility of merely refraining from interfering withights, and the provision can also call for positivehe part of state authorities to ensure that the right ise one. On the other hand, the interests of pluralismthe same time that those holding religious beliefsect to have these beliefs protected against all criti-ust

e and accept the denial by others of their religious

and even the propagation by others of doctrines

to their faith.250

ciliation of competing considerations is the essentialred by Article 9, but subject to supervision by the

e Holy Council of the Muslim Community v. Bulgaria at §93.eminger-Institut v. Austria at §47.


82

Conclusion

Freedom of thought, conscience and religion is a vital humanright. The jurisprudence of the European Court of HumanRights (and of the former European Commission on HumanRights) provides powerful restatements of the importance ofthe values inherent in Article 9. A proper appreciation of theseunderlying principles and ideals is critical: in particular,freedom of thought, conscience and religion must be seen ashelping to maintain and enhance democratic discussion andthe notion of pluralism. Its two facets – the individual and thecollective – are crucial. This freedom is,

in its religious dimension, one of the most vital elements

that go to make up the identity of believers and their con-

ception of life, but it is also a precious asset for atheists,

agnostics, sceptics and the unconcerned. The pluralism

indissociable from a democratic society, which has been

dearly won over the centuries, depends on it.248

Furthermore,

the autonomous existence of religious communities is indis-

pensable for pluralism in a democratic society. … What is at

stake here is the preservation of pluralism and the proper

functi

tics of

try’s

irksom

In other promote rance of oththe responArticle 9 raction on tan effectivdictate at cannot expcism and m

tolerat

beliefs

hostile

The recontask requi

248. Kokkinakis v. Greece at §31.249. Suprem250. Otto-Pr


83

mestic level, there is still a rich diversity of legal arrangements that reflect the rich tap-n history, national identity, and individual is a constitutional principle in certain states;ticular religion may enjoy recognised status asurch but the implications of such recognitionre, certain religious communities may enjoyal benefits through conferment of taxationnition of charitable status. This relationshipand State will generally reflect local traditionediency. As far as minority faiths are con-olerance has been a practised political princi-in some European countries. In others, this

ore recent origin. In every society, however,ority communities may still feel themselvesccount of belief.

rg Court has approached the interpretationrelated guarantees has depended to a largearticular issue in question. It appears moreenial of recognition of legal personality and of this (including such matters as denial ofand the inability to uphold claims to the pro-han other matters perceived to be of religiousbligation (such as the observation of religious

requirement to engage in proselytism). Thetracted comparatively little protection until school classroom is accorded more scrutiny.



European Court of Human Rights in Strasbourg through theuse of a well-established checklist. In particular, any interfer-ence has to be in accordance with the law, for a prescribed stateinterest, and be shown as being “necessary in a democraticsociety”. It is this last aspect of the test that often is of most dif-ficulty. The exercise requires a proper appreciation of thecrucial role freedom of thought, conscience and belief plays in aliberal democracy, and an acceptance of the importance of reli-gious and philosophical convictions for the individual. On theother hand, an international judicial forum may not be as well-placed as the domestic authorities in carrying out such an eval-uation, and thus a relatively wide “margin of appreciation” onthe part of local decision-makers is relevant in many of thejudgments from the Strasbourg Court. While this may indeedbe an appropriate doctrine of restraint on the part of an inter-national tribunal, it does not necessarily imply that at a domes-tic level the same should be apparent. The rigorous scrutiny ofreasons advanced for an interference with this right of funda-mental importance both for individuals and also society as awhole will help protect that pluralism and diversity necessaryto advance human awareness and understanding of the individ-ual’s place in society and in the wider moral and spiritual uni-verse.

The principle of according respect for thought, conscience andreligion may now be considered a prerequisite of democraticsociety, but the manner in which this is secured in EuropeanStates does vary considerably. There is no standard European

“blueprint”. At doconstitutional andestry of Europeabelief. Secularismin others, one paran Established Chcan vary; elsewheparticular financibenefits or recogbetween religion and practical expcerned, religious tple for centuries notion will be of mmembers of minmarginalised on a

How the Strasbouof Article 9 and extent upon the pwilling to tackle dthe consequencesaccess to a court tection of assets) tor philosophical oholy days, or theworkplace has atrecently, while the

Conclusion

al liberties, in particular of thought, ofssociation. Yet the products of this intellec-not always been positive. Pluralism, toler-ularism may now generally be said to co-ciety, but this has not always been so. Reli- and group identity perhaps have been too

at different times and in different ways reli-d persecution have blighted the continent,

ly the extremism associated with certainhave involved serious and systemic viola-hts. The lessons of history show that thesees are both vital but also necessarily subjectaint.

the past help suggest how best to addressorary importance, for while Europe hadngly secular society towards the end of theundamentalism is now a growing phenome-irst. Across Europe, religion may have beenr some time but it is now one which is re-c bodies regularly require to address theincreasing diversity in belief across a rangeducation, medical treatment, planning con-ployment. In particular, the contemporary the emergence of political parties offering, a growth in religious intolerance triggered considerations, and community concernseligious symbols may have an impact upon



84

The forum internum is largely sacrosanct, but the public spheremuch less so on account of a somewhat restrictive test of whatwill be recognised as a “manifestation” of belief and also in viewof the need to take account of countervailing interests. It iseasier for the state to justify restrictions on religious advertisingon television than on the preaching by door-to-door evangeli-cals, even although it may be easier for an unwilling audience toswitch off a broadcast than to confront those seeking to convertothers.

This lack of consistency in the jurisprudence is, though, proba-bly inevitable as it in some measure reflects the remarkablediversity in domestic arrangements. The religious and philo-sophical movements that have shaped European civilisationcan indeed be viewed in respect of its peoples’ intellectual andspiritual life as having had as profound an impact as the ele-mental forces that have carved out the continent’s geographicalfeatures. While for long synonymous with “Christendom”,Europe has been at different times and to different extentsinfluenced by other beliefs including Judaism and Islam. Inturn, the continent’s contribution to the history of ideas andphilosophy has been considerable, both through individualthinkers such as Plato, Aristotle, Hume and Kant as well as bymeans of major shifts in religious and philosophical under-standing marked, for example, by the Renaissance, the Refor-mation, and the Enlightenment. If “Europe” is indeed to a largeextent a construct of beliefs, value-systems and attitudes, thishas been built up over the centuries through the medium of

certain fundamentexpression, and of atual exercise have ance, belief and secexist in European sogion and nationalismclosely intertwined:gious intolerance anwhile more recentpolitical doctrines tions of human rigfundamental libertion occasion to restr

These lessons fromissues of contempbecome an increasitwentieth century, fnon in the twenty-fa dormant force foemerging. Domestiaccommodation of of issues including etrols, and state emchallenges posed byreligious manifestosin part by securitythat the display of r


85

ctations. This diversity is respected by the, and the historical and political context ofef will often be reflected in its judgments.mmon approach to resolving the question ofeen religion and state at a domestic constitu-s much the richer for it. What Europe nowother hand, is a set of legally binding guaran-gthens the position of individuals and ofligious associations in advancing their claimsught, conscience and religion.



community coherence all call for some assessment of theappropriateness of state responses.

This kaleidoscope of national arrangements must now beviewed through the prism of democracy, the rule of law andhuman rights. But the European Convention on Human Rightsdoes not impose a set of rigid requirements: the treaty merelysets out certain minimum standards, and religious traditionsand differences in constitutional arrangements regulatingchurch and State will continue to form part of the continent’slandscape, providing always that these are compatible with

Convention expeStrasbourg Courtreligion and beliEurope lacks a cothe interplay betwtional level, and ipossesses, on the tees which strengroups such as refor respect for tho

Index of cases

A, Beden (dec.) 3 December 1986

. the United Kingdom (dec.), 16, 21-22

nd (dec.) 6 December 1991 45

v. Turkey, 2 May 2006 72

rmenia (GC), 7 July 2011 7, 6

istic case, 23 July 1968 16

Bernard and others v. Luxembourg (dec.), 8 September 1993 68-69

Bowman v. the United Kingdom, 19 February 1998 69

Bruno v. Sweden (dec.), 28 August 2001 53-54

Buscarini and others v. San Marino, 18 February 1999 14, 20-21

Cnited Kingdom (dec.), 10 93 16

Cosans v. the United February 1982 16, 67

Canea Catholic Church v. Greece, 16 December 1997 13, 24, 60, 79

Cha’are Shalom Ve Tsedek v. France (GC), 27 June 2000 17, 28, 33, 35

e appropriate, the decision (dec.). Where both decision and judgment

dex entry. Cases not final at the time of writing are marked with an

doc.echr.coe.int/, for further information.


86

Agga v. Greece (no. 2), 17 October 2002 62, 64-65

Ahmet Arslan and others v. Turkey, 23 February 2010 14

Aktas v. France (dec.), 30 June 2009 23, 50Alexandridis v. Greece, 21 February 2008 18Al-Nashif and others v. Bulgaria, 20 June

2002 15Alujer Fernández and Caballero García v.

Spain (dec.), 14 June 2001 15, 56, 77

Angeleni v. Sw16, 21

Arrowsmith v16 May 1977

Autio v. Finla

Aydın Tatlav

Bayatyan v. A37, 39, 45-4

Belgian Lingu

C. v. the United Kingdom (dec.), 15 December 1983 15, 21, 52

C.J., J.J and E.J. v. Poland (dec.), 16 January 1996 21, 68

C.W. v. the UFebruary 19

Campbell andKingdom, 25

Index of casesCases are cited with the date of the judgment or, wher

are referred to in the text, each date appears in the in

asterisk.

Please refer to the HUDOC on-line database, http://hu


87

Cserjés v. Hungary (dec.), 5 April 2001 15, 31

Cyprus v. Turkey (GC), 10 May 2001 14, 23, 27

Dubowska and Skup v. Poland (dec.), 18 April 1997 29

Georgian Labour Party v. Georgia, 8 July 2008 18

Giniewski v. France, 31 January 2006 72

Gottesmann v. Switzerland (dec.), 4 December 1984 52

Holy Monasteries v. Greece, 9 December 1994 13, 15, 26, 60

Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and others v. Bulgaria, 22 January 2009 63


Chappell v. the United Kingdom, (dec.), 14 July 1987 17, 61

Church of Scientology and 128 of its members v. Sweden (dec.) 14 July 1980 71-72

Church of Scientology Moscow v. Russia, 5 April 2007 60

Clift v. the United Kingdom, 13 July 2010 76

DD. v. France (dec.), 6 December 1983 22D.H. and others v. the Czech Republic, 13

November 2007 76-77Dahlab v. Switzerland (dec.), 15 February

2001 50

Darby v. Sweden, 23 October 1990 15, 18, 21, 26, 52

Dimitras and others v. Greece, 3 June 2010 18

Dogru v. France, 4 December 2008 50

E, F, GEfstratiou v. Greece, 18 December 1996 27-28

El Majjaoui and Stichting Touba Moskee v. the Netherlands, dec. 14 February 2006, judgment (GC) 20 December 2007 16, 60

Eriksson v. Sweden, 22 June 1989 66

Feldek v. Slovakia, 12 July 2001 12Finska församlingen i Stockholm and Teuvo

Hautaniemi v. Sweden (dec.), 11 April 199624

Folgerø and others v. Norway (GC), 29 June2007 20, 68-69

HHandyside v. the United Kingdom, 7

December 1976 40, 42, 71Hasan and Chaush v. Bulgaria (GC), 26

October 2000 27, 38-39, 58

Hasan and Eylem Zengin v. Turkey, 9 October 2007 69

Hazar, Hazar and Acik v. Turkey (dec.), 10 December 1992 16

Hoffman v. Austria, 23 June 1993 13, 79

Index of cases

Jehovah’s Witnesses of Moscow v. Russia, 10 June 2010 30, 59-60

Jerusalem v. Austria, 27 February 2001 71Johansen v. Norway (dec.), 14 October 1985 44

Johnston and others v. Ireland, 18 December 1986 15, 26

Köse and 93 others v. Turkey (dec.), 24 January 2006 50

Kosteski v. “the former Yugoslav Republic of Macedonia”, 13 April 2006 19-20

Kurtulmuş v. Turkey (dec.), 24 January 2006 50

Kustannus OY, Vapaa ajattelija AB and others v. Finland (dec.), 15 April 1996 24-25

Kuznetsov and others v. Russia, 11 January 2007 39

Kuznetsov. v. Ukraine, 29 April 2003 54

Leyla Şahin v. Turkey (GC), 10 November 2005 50-52



88

I, JI.A. v Turkey, 13 September 2005 72

Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden (dec.) 6 March 1987 66

Inhabitants of Leeuw-St Pierre v. Belgium (dec.), 16 December 1968 15

Institute of French Priests and others v. Turkey (friendly settlement), 14 December 2000 61

ISKCON and 8 others v. the United Kingdom (dec.), 8 March 1994 17

Ivanova v. Bulgaria, 12 April 2007 27, 31-32Jakóbski v. Poland, 7 December 2010 54-55

KKalaç v. Turkey, 1 July 1997 30-31Karaduman v. Turkey (dec.), 3 May 1993 50Keenan v. the United Kingdom, 3 April 2001 73

Kervanci v. France, 4 December 2008 50Khan v. the United Kingdom (dec.), 7 July

1986 26Khristiansko Sdruzhenie “Svideteli na

Iehova” (Christian Association Jehovah’s Witnesses) v. Bulgaria, 3 July 1997 61

Kimlya and others v. Russia, 1 October 2009 17

Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976 21, 68

Klein v. Slovakia, 31 October 2006 72-73Knudsen v. Norway (dec.), 8 March 1985 22, 24, 32

Kokkinakis v. Greece, 25 May 1993 6, 14, 17, 21, 27, 35-38, 40-41, 47-48, 73, 82

Konrad and others v. Germany (dec.), 11 September 2006 67

Konttinen v. Finland (dec.), 3 December 1996 30

Koppi v. Austria, 10 December 2009 77

LLarissis and others v. Greece, 24 February

1998 37-38, 48-49Lautsi and others v. Italy, 18 March 2001 67

Leela Förderkreis e.V. and others v. Germany, 6 November 2008 17, 27, 56-57


89

97 members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v. Georgia, 3 May 2007 29

Nolan and K v. Russia, 12 February 2009 16, 60

Obst v. Germany, 23 September 2010 32-33Omkarananda and the Divine Light Zentrum

v. Switzerland (dec.) 19 March 1981 17Otto-Preminger-Institut v. Austria, 20

September 1994 41, 71-72, 82

l

Religionsgemeinschaft der Zeugen Jehovas and others v. Austria, 31 July 2008 58-59, 77-78

Riera Blume and others v. Spain, 14 October 1999 18, 73

Rommelfanger v. Germany (dec.), 6 September 1989 32


Logan v. the United Kingdom (dec.), 6 September 1996 61

Lombardi Vallauri v. Italy, 20 October 200919, 31

M, N, OManoussakis and others v. Greece, 26

September 1996 14, 56, 61

Martins Casimiro and Cerveira Ferreira v. Luxembourg (dec.), 27 April 1999 66, 69

McFeeley and others v. the United Kingdom (dec.), 15 May 1980 54

Metropolitan Church of Bessarabia and others v. Moldova, 13 December 2001 23-24, 36, 41, 56, 59-60

Miroïubovs and others v. Latvia, 15 September 2009 63

Moscow Branch of the Salvation Army v. Russia, 5 October 2006 59

Murphy v. Ireland, 10 July 2003 43, 69-70, 72

N. v. Sweden (dec.), 11 October 1984 19

Nielsen v. Denmark, 28 November 1988 73

P, Q, RPalau-Martinez v. France, 16 December 2003 79

Paturel v. France, 22 December 2005 72

Pellegrini v. Italy, 20 July 2001 74

Pentidis and others v. Greece, 9 June 1997 59-60

Perry v. Latvia, 8 November 2007 16, 39

Peters v. the Netherlands, 30 November 1994 76

Phull v. France (dec.), 11 January 2005 50

Poltoratskiy v. Ukraine, 29 April 2003 54

Porter v. the United Kingdom (dec.), 8 Apri2003 26

Pretty v. the United Kingdom, 29 April 200216, 26, 73

Raninen v. Finland (dec.), 7 March 1996 19

Refah Partisi (the Welfare Party) and othersv. Turkey (GC), 13 February 2003 13, 31

Index of cases

Stefanov. v. Bulgaria (friendly settlement), 3 May 2001 45

Sunday Times v. the United Kingdom (no. 1), 26 April 1979 38

Supreme Holy Council of the Muslim Community v. Bulgaria, 16 December 2004 28-30, 37, 58, 62-64, 82

Svyato-Mykhaylivska Parafiya v. Ukraine, 14 June 2007 39

Vereinigung Bildender Künstler v. Austria, 25 January 2007 72

Vergos v. Greece, 24 June 2004 62Vogt v. Germany, 26 September 1995 16, 19, 31

X v. the United Kingdom (dec.) 5 March 1976 54

X v. the United Kingdom (dec.), 12 July 1978 41

X v. the United Kingdom (dec.), 12 March 1981 22, 24



90

SSabanchiyeva and others v. Russia (dec.), 6

November 2008 15Salonen v. Finland (dec.), 2 July 1997 22Savez Crkava “Riječ Života” and others v.

Croatia, 9 December 2010 15, 75-76, 81Schüth v. Germany, 23 September 2010 32-33

Sejdić and Finci v. Bosnia and Herzegovina (GC), 22 December 2009 80-81

Serif v. Greece, 14 December 1999 35-36, 64

Sidiropoulos and others v. Greece, 10 July 1998 16

Siebenhaar v. Germany, 3 February 2011 32Sinan Işik v. Turkey, 2 February 2010 19Sluijs v. Belgium, 9 September 1992 67Stedman v. the United Kingdom (dec.) 9

April 1997 30

T, U, VTaştan v. Turkey, 4 March 2008 45

Thlimmenos v. Greece (GC), 6 April 2000 31, 45, 79-80

Tsirlis and Kouloumpas v. Greece, 29 May 1997 45

Ülke v. Turkey, 24 January 2006 44-45

Valsamis v. Greece, 18 December 1996 14, 27-28, 67

Van den Dungen v. the Netherlands (dec.) 22 February 1995 12, 18, 22, 26

Verein “Kontakt-Information-Therapie” (KIT) and Siegfried Hagen v. Austria (dec.), 12 October 1988 25

W, X, Y, ZW. and D.M., M. and H.I. v. the United

Kingdom (dec.) 6 March 1984 68Wingrove v. the United Kingdom, 25

November 1996 43, 72X and Church of Scientology v. Sweden,

(dec.), 5 May 1979 24, 69

X v. Austria (dec.), 15 February 1965 55

X v. Austria (dec.), 15 October 1981 17

X v. Denmark (dec.), 8 March 1976 24

X v. Germany (dec.), 10 March 1981 15-16

X v. Germany (dec.), 5 July 1977 44


91


X v. the United Kingdom (dec.), 18 May 1976 55

X v. the United Kingdom (dec.), 4 October 1977 17

Young, James and Webster v. the United Kingdom, 13 August 1981 8

Z and T v. the United Kingdom (dec.) 28 February 2006 15

Directorate Generalof Human Rights and Rule of LawCouncil of EuropeF-67075 Strasbourg Cedex

www.coe.int/justice

Jim Murdoch is Professor of Public Law at the University

of Glasgow, and was formerly Head of the School of

Law. His research interests are in domestic and

European human rights law. He is a regular participant

in Council of Europe seminar programme visits to

central and east European states and has developed a

particular interest in non-judicial human rights enforce-

ment mechanisms.

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