Freedom of Religion, In the Jurisprudence of the European Court of Human Rights

Mihaela Adriana Oprescu PhD. Online Journal Modelling the New Europe. Issue 19. June 2016.

General Considerations

It is not our intent to conduct an analysis or a presentation of what religion is, either in theological doctrine or in philosophy, as such an endeavour would surpass both the space we have at our disposal and our capabilities.

Nevertheless, through the following research, we shall attempt to emphasise the juridical consequences of cultural, historical and religious diversity in the European framework, as they result from the jurisprudence constructed around art. 9 of the European Convention on Human Rights.

It is worth mentioning that over the last decade, the jurisprudence of the European Court of Human Rights, in the interpretation of art. 9 of the Convention, has become more complex, as the number of cases in this matter has met with a steady increase.

This may be explained through the effect of globalisation, the evolution of ever more heterogeneous societies, the advent of new beliefs—apart from traditional, institutionalised religions, the amplification of the migration phenomenon, the identity claims of certain individuals and—last but not least—the increase in the role of religion and its related matters in socio-political discourse.

We shall begin by outlining the legal sources pertaining to freedom of religion.

Article 9 of the European Convention on Human Rights reads as follows:

  1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
  2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 2 of Protocol 1 of the Convention refers to a particular aspect of freedom of religion, namely the right of parents to provide an education for their children, in keeping with their religious convictions: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

There are other similar international regulations:

  • art. 18 of the International Covenant on Civil and Political Rights. In the light of this article, 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 freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3) Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4) The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
  • art. 14 of the International Convention on the Rights of the Child.
  • art. 12 of the American Convention on Human Rights.
  • art. 10 of the Charter of Fundamental Rights of the European Union also protects freedom of thinking, conscience and religion, in the same terms as the convention. The Charter also guarantees the parents’ right to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions (…) shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

Albeit the provisions of art. 9 par. 2 of the European Convention on Human Rights have not been adopted by art. 10 of the Charter of Fundamental Rights of the European Union, with respect to the provisions of art. 52 of the Convention, the right granted by art. 10 of the Charter can be restricted for reasons pertaining to public safety, protection of order, health and public ethics, as well as of the rights and freedoms of other individuals.

We notice that the principle emanating from the entire legal edifice revolving around freedom of religion is pluralism, as the trait of any democratic society is to be tolerant of cultures, sensitivities and multiple beliefs.

Moreover, it cannot go unnoticed that freedom of religion is tightly connected to freedom of thinking and conviction. In effect, the European Court of Human Rights has stated in many of its decisions that freedom of thinking, conscience and religion forms the basis of a democratic society, in the sense of the Convention. This freedom, through its religious dimension, is one of the paramount identity elements of believers and their view on life, but it is also a precious asset for atheists, agnostics, sceptics or those who are indifferent. This reflects pluralism—difficultly conquered throughout the centuries—which is inseparable from our society. This freedom notably implies embracing or not a certain religion and practicing it or not (see, amongst others, ECHR, the Kokkinakis vs. Greece affair, ruling of 25 May 1993, ECHR, the matter of Buscarini et al. vs. San Marino, ruling of 18 February 1999).

Applicability

With regard to the applicability of art. 9 of the Convention, by examining the jurisprudence in the matter, we find that the Court in Strasbourg has never attempted to confine the protection of this legal provision solely to the great religions (i.e. Christianity, Judaism, Islam), as its field of application is non-restrictive, comprising minority religions and cults in general.

At the same time, the Court was not hasty in providing a definition to the term religion, which is fully understandable, as any assessment of the elements which endow this element with substance and comprise the variety of values, convictions, beliefs and religious practices, irrespective of time and culture, appears to be utopic. No formula was proposed relating this to any group, community, institution or church. Consequently, for lack of a formal definition, the European court had no choice but, in concreto, to state whether a set of convictions or practices can be associated with a certain religion.

For this, it retained that in order to fall under the protection of the Convention, such convictions, on the one hand, have to be more than mere opinions, as they have to attain a certain ‘degree of force, seriousness, coherence and importance’, and on the other hand, they must not be incompatible with the dignity of an individual (ECHR, in the matter of Campbell and Cosans, ruling of 25 February 1982). Furthermore, the formal content of such convictions must be identifiable.

Another constant in the jurisprudence of the Court deals with the respect granted to the margin of appreciation of states in the matter of regulating freedom of religion at national level.

Traits of Freedom of Religion

From an internal perspective, freedom of religion is absolute and intangible, as no individual can be forced to think otherwise than how he/she feels ‘on the inside’, when forming his/her personal convictions, reasons, feelings or states. In other words, since we are referring to profound convictions and ideas pertaining to the inner forum of a person and which cannot, essentially, affect public order, they are not subjected to limitations on the part of national authorities and cannot be the subject of any constraint (Renucci, 2009, 206).

Moreover, an individual shall not be forced to belong to a group founded on convictions he/she disapproves of.

The matter of Buscarini et al. vs. San Marino (ruling of 18 February 1999).

When elected to the Parliament of San Marino in 1993, the plaintiffs denounced their obligation to swear an oath on the Bible, otherwise losing their parliamentary mandate, which proved, in their view, that the act of exercising a fundamental political right was subordinated, in fact, to the public expression of a given religion. The Court concluded that article 9 of the Convention had been violated. It also ruled that the obligation to swear an oath was not ‘necessary in a democratic society’, in the pursuit of one of the objectives stipulated by article 9 § 2 of the Convention, deeming the act of exercising a mandate aimed at representing various views on society in Parliament as contrary to the condition to previously adhere to a determined view on the world.

One may, therefore, conclude that freedom of religion is essential for both believers, who may not be prevented from having and/or practicing their religion, and those who are not religious, who shall not be obliged to adhere to and/or practice a religion.

However, any individual freedom is also a social one, given the juridical existence of man in society. Hence, when religious feelings and convictions are exteriorised individually or collectively, in public or private manifestations, through cult, teaching, practices and performance of rituals, the latter may be the subject of limitations on the part of state authorities, under the terms of paragraph 2 of art. 9 of the Convention.

In this respect, the principle enshrined by the European Court of Human Rights is that of neutrality towards religion, as the authorities have to respect both believers and individuals that have not embraced any given religion.

From the moment when religious convictions are exhibited, the state, as organiser of the life of the entire society, may intervene so as to impose respect and balance amongst individual religious feelings, as well as public requirements and the rights of others.

From this point of view, freedom of religion is relative, as the state’s intervention may only be justified under the terms of art. 9 par. 2 of the Convention, namely: it should be provided by law; it should follow a legitimate goal (public safety, the protection of public order, health or ethics and the protection of the rights and freedoms of others); it is necessary in a democratic society.

Like most articles regulating the rights provided by the Convention, art. 9 also imposes two types of obligations on states:

  • negative obligations—in the light of which states shall abstain from violating in any way the rights granted through the aforementioned article;
  • positive obligations—according to which states shall take all necessary measures in order for the individuals falling under their jurisdiction to exert the rights provided by art. 9.

With regard to positive obligations, state authorities should, therefore, ensure the normal course of religious life and protect the right to religious freedom of any individual, in relation to other people (Chiripá, 2008, 523).

Religion and State (from Islamic veil to crucifix)

Matters related to religious convictions and their manifestations are often controversial and sensitive, chiefly in an ever more pluralist society. This is why, on the one hand, authorities need to be capable of imposing restrictions only on the basis of a clear juridical justification, and on the other hand, they shall pursue a legitimate goal in a proportional manner.

It is to be noticed that, generally speaking, European countries have been confronted with new challenges, due to the religious pluralism stemming from globalisation (the large number of Islamic migrants is relevant in this respect), as well as to the cultural and religious identity crisis Europe has been experiencing.

Amid the turmoil caused by social change in the European area, the European Court of Human Rights has been called upon to act on the thorny matter of defining the place of religion in postmodern pluralist societies.

Thus, the Court ruled on cases in which the conflict had emerged from the act of wearing religious symbols in public institutions. One may indeed state that wearing religious symbols and garments (Islamic veil, burqa, niqab, crucifix etc.) in schools and universities has engendered, for a few years, significant debates in various European countries.

We shall turn to several rulings on the matter at hand:

1. Firstly, the case of Leyla Sahin vs. Turkey (ruling of 10 November 2005).

The root of the affair may be traced to a complaint directed against the Republic of Turkey by Ms Leyla Çahin, who claimed that the regulation on wearing the Islamic veil is higher education institutions was a violation of the rights and freedoms stipulated by articles 8, 9, 10 and 14 of the Convention, as well as article 2 of Protocol no. 1.

The plaintiff, a Turkish citizen, was a 5th year student at the Faculty of Medicine of the University of Istanbul, in 1998. Coming from a family of practising Muslims, the plaintiff wore the Islamic veil during the first four years at University, but in February 1998, the Rector of the University of Istanbul issued an order meant to regulate the access of students to the University campus. This text stipulates that students covering their head (wearing the Islamic veil) and those wearing a beard (…) shall not be allowed to attend courses, stages and practical activities. As she was unwilling to renounce the Islamic veil, the plaintiff was prevented from taking several written exams and was given two disciplinary sanctions: a warning for breaking the dress code and a six-month expulsion for participating in an unauthorised assembly that protested against the dress code imposed by the University. This latter sanction was eventually cancelled following the coming into force of an amnesty law. In September 1999, the plaintiff, who refused to comply with the provisions of the aforementioned order, stopped taking courses at the University of Medicine of Istanbul and applied for the University of Vienna.

In the justification of the ruling, while relying on the concepts of state neutrality and secularism, the Court in Strasbourg underlined the role of the State as neutral and impartial organiser of the exercise of various religions, cults and beliefs, and indicated that this role contributes to ensuring public order, religious peace and tolerance in a democratic society. Furthermore, the Court stated that the safeguard of the principle of secularism stipulated in the Turkish constitution, doubtlessly one of the founding principles of the Turkish state, which reflects the rule of law and the respect for human rights and democracy, can be deemed necessary for the protection of the democratic system in Turkey. The court unanimously concluded that there had been no violation of article 9 of the Convention.

2. Secondly, the matters of Kervanci vs. France (ruling of 4 March 2009) and Dogru vs. France (ruling of 4 March 2009).

The origins of the cases lie in the complaints directed against the Republic of France by Miss Esma-Nur Kervanci and Miss Belgin Dogru, who claimed that their right to religious freedom had been violated, as well as their right to an education, guaranteed by article 9 of the Convention and article 2 of Protocol no. 1.

Hence, the plaintiffs, Muslims aged 12 and 11, respectively, at the time of the case, reported for physical education classes with their heads covered and refused to take off their veils despite the repeated requests by their teacher and his explanations regarding the incompatibility between the act of wearing such a veil and the practice of physical education. The disciplinary council of the high school decided the permanent expulsion of the plaintiffs for disrespecting their attendance obligation, by failing to participate in physical education and sports classes. The plaintiffs contested the decision of the college in court and, after losing their trials in France, turned to the ECHR.

The Court ruled that in France, the practice of freedom of religion in the public space and, more precisely, the matter of wearing religious symbols in school, is strictly connected to the principle of secularism, around which the Republic of France was constructed, and that the sanction given was merely a consequence of the refusal of the plaintiffs to comply with the rules applicable on the premises of the school, which they had been properly made aware of, and not, as they had claimed, because of their religious convictions. Consequently, the Court rejected the case against France.

3. Thirdly, the matter of Lautsi vs. Italy (ruling of 18 May 2011), also known as the ‘crucifixes affair’.

The origins of the case lie in a claim against the Italian Republic, made by Mrs Soile Lautsi (the plaintiff), who complained that crucifixes were hung on the walls of classrooms in the public school where her children were being educated. She invoked, based on this fact, that there was a misinterpretation of the right of children to freedom of thought, conscience and religion, enshrined in article 9 of the Convention.

Through the ruling of 3 November 2009, the Court unanimously admitted the request and decided that art. 2 of Protocol 1 had been violated, corroborated with art. 9 of the European Convention on Human Rights. Subsequently, at the request of the Italian Government, the case was deferred to the Grand Chamber. In the written procedure there intervened 33 members of the European Parliament, several governmental organisations and 11 European states. By the ruling of 18 May 2011, the Court decided there had been no violation of art. 2 of Protocol 1 or of art. 9 of the Convention.

The Court underlined that through its decision to keep crucifixes in the classrooms of the public schools attended by the plaintiff’s children, the authorities acted within the margins of appreciation that the defendant state benefits from, amid its obligation to respect, in exerting the functions it assumes in the areas of education and instruction, the right of parents to provide this education and instruction in keeping with their religious and philosophical convictions.

By performing a comparative analysis of the aforementioned rulings, it becomes apparent that, in spite of the seemingly identical factual premise—wearing religious symbols and garments in public education institutions—the solutions given by the Court in the interpretation of art. 9 of the Convention are markedly different, and even antagonistic: one the one hand, the ban on wearing the Islamic veil, seen as a conspicuous sign of religions belonging (in the cases against Turkey and France), and on the other hand the authorisation of the presence of the crucifix in schools, i.e. a powerful Christian symbol (in the case of Italy).

In this context, certain questions become evident: did the Court ‘rule’ with two different standards in the two situations with identical premises? Or, did the Court not exhibit a certain degree of subjectivity in its ruling on the Lautsi affair?

As far as we are concerned, the premise we should start from so as to be able to comprehend the reasons for the reasoning of the Court in the aforementioned decisions is that the cases brought before it pertain to quite different national situations, stakes and contexts (Ringelhei, 4).

It is beyond doubt that the ban on wearing religious garments interferes with the individual’s freedom to manifest his/her religious beliefs, as the former is prevented from acting in accordance with his/her own convictions.

Therefore, in the matters of Leyla Sahin vs. Turkey, Kervanci vs. France and Dogru vs. France, in which the national law (in a general sense of the word) prohibited the act of wearing the Islamic veil in universities (Turkey), respectively public schools (as in the case of France), it is the Court that was entrusted with verifying the compatibility of this interference with the provisions of art. 9 par. 2 of the Convention.

On the contrary, in the matter of Mautsi vs. Italy, such interference is not present. The Court did not find any violation caused by the Italian Government against the internal or external ‘forum’ of the students, as the latter had not been prompted to act against their own convictions, or prevented from having other beliefs. From this viewpoint, the crucifix present in classrooms would be no more than an essentially passive symbol, not likely to affect the educational rights of parents or the religious freedom of their children. The Grand Chamber states that there are no elements brought before the Court that testify to a potential influence that the exposure on classroom walls of a religious symbol could have on students (§ 66) and that the presence of the crucifix is not associated with the compulsory teaching of Christianity (…), therefore the authorities are not intolerant towards students embracing other religions, non-believers or those having philosophical convictions that are not attached to any religion. (§74)

It becomes apparent that the Court implicitly set a difference between a passive and an active religious symbol, which may trigger acts of intolerance that are likely to degenerate into violence. It is beyond doubt that intolerance is always violent.

Furthermore, the relationship between Religion and State in various European countries bears the markings of the historical and cultural-religious traits of each nation. In effect, in the case of Italy, there is certainly a traditional historical connection between state and church, as Catholicism enjoys historical continuity. One must admit the existence of a strong historical attachment of the Italian people to the Catholic religion, given the presence of the Vatican in Rome.

In the case of France, however, the constitutional principle of secularism, promoted by the French Revolution, is the expression of the will to identity the public space as a non-religious one, in which religious expression does not find its place. Here, secularism uses the vocabulary of tolerance to justify the way the state relates to religion, one that is, nonetheless, based on intolerance.

Thus, there is no single position on the manner in which the balance between the two elements must be achieved—on the one hand, religious freedom, and on the other hand, the principle of secularism, which, at its turn, has variable geometry.

In the case of France or Turkey, secularism implies the evident lack of any sign or religious form of expression within educational institutions depending on the authority of the state. In the case of Italy, secularism in the school environment means the state shall not oblige the student to embrace a certain religion, so it may not carry out acts of religious propaganda, without excluding the possibility that a certain religion may benefit from a privileged position in the public sphere.

It cannot go unnoticed that the interpretation given by national jurisdictions appears to favour the idea that secularism is synonymous with neutrality: a secular state is a neutral one.

With regard to the concept of confessional neutrality, by examining the aforementioned rulings, we may notice that the jurisprudence of the Court provides several concurrent interpretations of what religious neutrality means for a country.

Hence, in the matters against France and Turkey, the Court perceived a state’s neutrality as a total absence of any kind of religious expression in the sphere of public institutions. Here, it is the state that makes use of its will to protect the neutrality of public education, so as to justify a certain reaction to the freedom of individuals to express their religion. In the Lautsi affair, the state’s neutrality is perceived as an absence of coercion. As a consequence, according to the Court, the state cannot oblige an individual to embrace or adhere to a certain religion, but this does not prevent the state from maintaining strong institutional relations with a certain religion, or from providing the latter with a privileged position in the public space (Ringelhei, 4).

It seems paradoxical to admit, based on art. 9 of the Convention, that a state may prohibit the Islamic veil in schools and universities, so as to protect religious freedom and the freedom of conscience of pupils and students, while another state can impose the presence in public schools of symbols belonging to the majority’s religion, without affecting the rights of students of their parents—in both cases, the European Court of Human Rights sanctioned, in the discharge of its conventionality control, the behaviour of national authorities.

Yet, the position of the Court is understandable, as long as the Convention itself is not a rigid system, and its interpretation, in the light of a margin of appreciation of the signatory states, is a means of ensuring some flexibility with respect to the internal relations of each of the latter (Selejan-Guan, 2006, 38).

What is more, in the discharge of its control, the Court recognises European diversity, chiefly that of juridical systems and cultures, which is why the margin of appreciation of the state proves its pivotal role in the theoretical construct developed around art. 9 of the Convention.

By applying the principle of subsidiarity, the Court in Strasbourg has recognised the relative margin of appreciation of the states, starting from the premise that due to the direct and permanent contact with the vital forces of their countries, state authorities are, in principle, more entitled that the international judge to express their opinion on the exact content of those requirements and the ‘need’ for ‘restriction’ or ‘sanction’ so as to implement them. (…) Nevertheless, art. 10 par. 2 (the article whose violation was claimed in the matter) does not provide contracting states with unbounded power of appreciation. The Court which, together with the Commission, is responsible for ensuring that the states’ obligations are met, is empowered to decide whether a ‘restriction’ or a ‘penalty’ is compatible with freedom of expression, as it is protected by art. 10. The internal margin of appreciation thus goes hand in hand with European supervision (ECHR, matter of Handyside vs. UK, ruling of 1976).

Hence, the margin of appreciation stemmed out of the need to recognise the diversity of conditions of application of the Convention in the signatory states, and was conceived as an instrument of ‘judicial self-limitation’ of the Court, as the extent of the margin is greater in areas in which a common European view is difficult to identity.

In fact, in the cases we have analysed, the margin of appreciation of defendant states was invoked as long as there was no European consensus on the presence of religious symbols in educational institutions.

Thus, in the matter of Leyla Sahin, the Court’s ruling was based on the constitutional principles of secularism of the Turkish state, and gender equality. The Court stated that any examination of the matter of prohibition of wearing the Islamic veil needs to take into account the impact this symbol may have on those who choose not to wear it, whether it is presented or perceived as a constraining religious obligation. It is particularly the case in a country such as Turkey, where most of the population adheres to the Muslim religion.

Here, the Islamic veil is regarded not as a sign of Islamic religious piety, but as a flag of a violent political Islam.

In the matters against France, the European judge resorts to the specific traits of the French secular model, its importance in history and the laws of the defendant state.

In the Lautsi affair, when the Court admitted the margin for error of the Italian state, it stated that in Italy, a country with a Christian tradition, the symbol of Christianity legitimately benefits from prominent visibility in society. In other words, exhibiting a crucifix is seen as intrinsically connected to the Italian cultural heritage. As such, the control of the Court focused on the extent to which the presence of the crucifix could influence the freedom of religious conscience of students. As an exception, the Court concluded that the mere presence of the crucifix was not sufficient, per se, to invoke a process of indoctrination on the part of the respective state.

Conclusions

The lack of consistency of the Court, with regard to the concept of state neutrality, can be explained by the fact that Europe is characterised by a great diversity of states, chiefly in terms of their historical and cultural evolution.

At the same time, the degree of difficulty of the debate is high, given that there is more than the freedom of religion at stake—there is also the right to an education, interreligious and intercultural tolerance, the relations between state and church, the neutrality of the state—the guardian of a pluralist society—and last but not least, religious identity.

To conclude, we have noticed, in the jurisprudence engendered through the application of art. 9 of the Convention, on the one hand, the preoccupation for achieving a minimal level of protection and for defining common norms, and on the other hand, the respect for what European judges refer to as the national margin of appreciation of states, in other words preserving the cultural identity of European states. Indubitably, in the interpretation of the provisions of art. 9 of the Convention, the European Court of Human Rights has exhibited a cautious stance and provided countries with a fairly large margin of appreciation, by taking into consideration national constitutional traditions and attempting to reconcile the freedom of cult with the principle of secularism.

It is our view that only in this way can one explain the fluctuating nature of the theoretical constructs developed by the European Court of Human Rights, in the interpretation of art. 9 of the Convention, although jurisprudence attempts to impose stable guidelines which transcend the diversity of cases examined.

Albeit wearing the Islamic veil in public is justified by women through the right to freedom of expression of their religious options, national authorities often leave us with the impression that such garments are a casus belli, i.e. a pretext for a war of symbols and ideas, in a European religious landscape that has not remained impenetrable to the impact of globalisation and finds itself in a continuous process of pluralisation and diversification.

The only reasonable solution is tolerance, combined with the respect for established political traditions: if in France, where secularism is a noble tradition stemming from the French Revolution, the balance is achieved by learning about respect for those who are religious, in Italy, where school has remained attached to Catholic symbols, it is proper to learn about respect for non-believer rationalists.