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Religious Freedom and the European Court of Human Rights PDF Print E-mail

Francois-Henri Briard, France

delivered at the
International Coalition for Religious Freedom Conference on 
"Religious Freedom and the New Millenium"
Berlin, Germany, May 29-31, 1998

The European Convention of Human Rights was signed in Rome in May 1950. It is a statement of the civil and political rights of citizens in Europe and it contains provision for international proceedings to guarantee those rights for the people. Even if the Convention is quite often a compromise, especially on some rights concerning religious freedom, it can be said that probably, in the beginning, the people who wrote it were very concerned by the freedom of religion.

The main article of the Convention regarding the freedom of religion is Article 9. Article 9 is made in two parts. The first part of the Article says that everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change his religion or belief, and the freedom, either alone or in community with others, in public or in private, to manifest his religion or belief in worship, teaching, practice, and observance. This is the principle.

The second part of Article 9 of the Convention says that the freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law, and necessary in a democratic society, in the interest of public safety, for the protection of public order, health, or morals or for the protection of the rights and freedoms of others.

Article 9 cannot be taken alone, but has to be connected with other provisions of the Convention, especially Article 14 regarding the freedom of expression, and also Article 2 of the first protocol to the Convention regarding the rights of parents to give the education and religious teaching of their choice to their children.

From 1968 to 1998, it is possible to find about 40 decisions of the European Court of Human Rights regarding the freedom of religion. There are additional decisions coming from the European Commission of Human Rights, but the decisions of the Commission do not have the same authority as the decisions from the Court. There are two levels in the Convention: the level of the Commission, which has to select the serious cases, and the Court itself, which has jurisdiction over the most serious issues. Only the most serious cases come before the Court. I would like to summarize the main trends and issues of that case law in two parts. The first part concerns the exercise of freedom of religion and the second the limitations of the freedom of religion.

One important consideration in the case law of the Court is religious pluralism. The Court says, especially in a very important decision, Kokkinakis, given in May 1993, regarding Greece, that religious pluralism is the ground of any democratic society. States have to maintain true religious pluralism. Religious freedom cannot be only for one or two or three religions. It is impossible to divide religious freedom. Religious freedom is or is not. It has to be the same for everybody. So, again religious pluralism for the Court is very fundamental.

As I said, when you read Article 9, there are two parts. This is very important in the case law of the Court. The first part, freedom of religion, is absolute. It is not possible to bring any limitation to the freedom of religion, as all men and women are free to make the choice for themselves and for their children. According to the Court, the only limitations can be in regard to the freedom to manifest one’s religion, but never the freedom of religion itself.

The main issue of the case law regarding religious freedom is equity or non-discrimination. The Court said in the Hoffman decision in June 1993 that it is not possible to discriminate between religions. That case arose with the Jehovah’s Witnesses church. It was a matter of divorce. The Austrian judge said that it could be a problem to give the children to one of the two parents—I think it was the father—because he was a member of the Jehovah’s Witnesses. The European Court said that it was not possible to discriminate on religious terms.

Religious freedom includes proselytism. The Court had to make a very important judgment about proselytism. In the Kokkinakis case, May 1993, two members of the Jehovah’s Witnesses church tried to convert a man in the street. They began a discussion with him. Then they spoke about God and they tried to convert him, just by discussing. The problem was that the person’s family belonged to the Orthodox Church. A member of the family called the police who came immediately, arrested the Jehovah’s Witness, and brought him to the police station. The criminal court in Greece was very severe.

In reviewing the case, the European Court said something which is very fundamental. It said that religious freedom is not only inside of a person. One of the main parts of religious freedom is the right to try to convert other people. Otherwise, freedom of religion is nothing. As I said earlier, the Convention, protects the right to change one’s religion. So, if you don’t have the right to discuss, talk, convert, and teach about religion with people, then religious freedom is nothing.

In this case, the judge made several interesting points. The Court said that it is difficult to make a distinction between proselytism which is acceptable and proselytism which is not acceptable, but it also said that a state may consider proselytism criminal in certain cases when it goes beyond mere moral persuasion. For example, when you connect money or advantages with the faith in order to induce the person. So the Court says that proselytism can be abused.

Many people say that case was probably dangerous because it is not possible for a judge to make a distinction between good and bad proselytism and probably the best way would be just the criminal law. Every country has criminal laws regarding moral violence, which is probably enough to protect against that kind of proselytism.

The next issue concerns the problem of civil obligation and religious freedom. In professional life, the European Commission of Human Rights is quite strict. It was strict with the Muslim who refused to teach on Friday afternoons saying he had to practice his religion. The Commission said, “No. You signed the agreement. When you started the work you signed your agreement and so today you can’t say that you have to go to church on Friday afternoon. It would be different if, in your agreement with your employer, something was mentioned about that. But it was not, so you have to go.”

Another decision concerns a civil servant. It is quite a recent case, from July 1997. It was regarding a military judge in Turkey. This person pled that he had moved out of the Army because he was a Muslim. The Court said that when you are in the military, you know that you have to accept some limitations to your faith. In that case, the Court said that this officer was able to practice his religion to pray five times a day and so that the decision was not connected with his religious faith.

There are many cases regarding children, especially regarding education. It would be too long to read these cases together today, but you have to know that the Court says that the parents have the right to ask the children not to join a religion which is not the religion of their family. The Court makes a distinction between religious issues and philosophic issues, especially regarding the teaching of moral issues in the classes. If you can prove that some teachings are against your religious faith, the children do not have to attend the classes, but, if it is only for philosophic reasons that are not connected with religion, the Commission says that it has to be compulsory for everybody. Another point regarding the education of children is that they have the right to be taught religion by the members of their own church, which is quite obvious.

Regarding religious freedom it can be said that the Court protects religion and the spiritual life of people. Some decisions, however, are quite difficult to understand. I talked about proselytism. It is a good example. In practice, it is very difficult to differentiate between good and bad proselytism.

The second part of my speech has to do with the limitations to religious freedom. The limitations to religious freedom can be brought by the states and by the people. Limitations from the states are bound by the European Court of Human Rights. The Court says that it is not possible to have an official religion. The Convention says nothing about that. It can be, as you know, a problem in the Muslim countries. But the case law, as I mentioned is very, very strict on religious pluralism. Therefore, according to the case law of the Court, it is not possible to have an official religion in a country. The people have to make their own choice.

This position has some limits. Especially when laws are not acknowledged by some members of the church. You many know the example of abortion. You may know the example of divorce. The Commission says that when you are a citizen of a state, you have to accept the general laws if they are not directly—and directly is very important—against your faith.

Another point is the right to have a place in which to celebrate your religion. A very important case was judged by the Court in September 1996. Once again, the case involved the Orthodox Church. Also, state controls affecting the way people celebrate their religion, the way they manifest their religion in a place where they can be together and have their own cult, can be only on formal conditions, but never on the religion itself. The state may make no judgment on the religion itself. The decision also said that the state has to appreciate the compatibility of the cults with the public order. It has to be proportional, and the Court is very strict on that matter of proportionality and appreciation by the state.

One limitation which can be brought by the states is regarding the money of the churches themselves. Again, it is a decision of September 1996. The case involved the Catholic Church of Greece against Greece. In its decision, the Court said that all the churches, not only the Orthodox Church, but all the churches have the right to protect their own buildings. It is clearly in favor of religious freedom.

The last point of my paper has to do with the liberty of expression and the way to make compatible the freedom of religion and the freedom of expression. It is, as you know, a very tremendous problem, and the Court gave a response in two cases. The first involved the Otto Preminger Institute, September 1994, and the second was the Windgrove case November 1996. These two cases have to deal with anti-religious graffiti.

The main point is that the Court said that protection of religious belief may justify limitations to the freedom of expression, but there is a condition. The condition again is difficult to put into practice. The condition is that there is a high degree of blasphemy or insult. As you may understand, interpretation on this point may be different and subjective. Nobody knows what the degree is. But it is the problem of the judge to make these two freedoms compatible. But, again, I think it is important to know that any religion can ask the state to protect itself against blasphemy or against insult. The Court said that insults to religious belief may have a strong influence on the freedom of religion itself because people may be afraid to practice their religion if there is blasphemy or insults.

It is difficult to conclude because the canvas is very rich and very large. There are lights and shadows. It can be said, however, that in the case law of the European Court of Human Rights, religious freedom is protected. It is mainly in favor of religious freedom. It is also a very strong instrument for the churches in the different countries to struggle against national laws which limit freedom of religion. Those countries that have signed the Convention are obligated to enforce the decisions of the European Court. When the Court says something, the national court cannot say something different. So for the lawyers it is a very efficient instrument and we use it today quite often.

It is my wish that the 21st Century will be a century where religious freedom will be highly protected. Non-discrimination is today enforced by the Court, but the Court can do still more. My conviction is that where God and his law are respected, the people are respected. To me, the rights of God and the rights of man go together. They are respected together or they are violated together.