On February 12, 2009, the ECHR held in Nolan and K. v. Russia (application no. 2512/04) that there had been a violation of Article 9 (freedom of thought, conscience and religion) in a case involving the expulsion from Russia of a US missionary for the Unification Church.
Background: Facts
In 1994 the Unification Church invited Nolan to assist in its activities in Russia. He was granted leave to stay by the Ministry of Foreign Affairs of the Russian Federation, renewable on a yearly basis. In January 2000, the Concept of National Security of the Russian Federation was amended by the President of the Russian Federation, to read: “Ensuring the national security of the Russian Federation also includes opposing the negative influence of foreign religious organisations and missionaries….”
On 21 May 1991 the Unification Church was officially registered as a religious association in the Russian Socialist Federative Soviet Republic. On 29 December 2000 the Ministry of Justice of the Russian Federation granted State re-registration to the Unification Church at federal level as a centralised religious organisation on the basis of an expert opinion from the Expert Council for Conducting State Expert Examinations in Religious Studies.
In August 2001 the Unification Federation in Rostov that Nolan worked for was dissolved by the District Court on the ground that, for more than three consecutive years, it had failed to notify the registration authorities of the continuation of its activities.
In October 2001 Nolan was summoned by the Rostov police who demanded his passport and stamped it to the effect that his residence registration was “terminated”. Nolan subsequently obtained registration with the police through other FFWPU branches, first in Novorossiysk and then in Krasnodar. His residence registration in Krasnodar was valid until 19 June 2002.
On 19 May 2002 Nolan travelled to Cyprus. His son stayed in Russia. On his way back, on arrival at Moscow airport on the night of 2 June 2002, passport control directed Nolan to the airport transit hall. He was locked in a small room with no phone, ventilation or windows, informed that his visa had been cancelled and told to lie down and sleep until the morning.
On the morning of 3 June 2002, the applicant was allowed to leave the room under guard and use the toilet. He was told that he would not be allowed to cross the Russian border. Nolan bought a ticket to Estonia and was accompanied by a guard until he boarded his flight. His passport was returned to him, but not his visa. In July 2002, although in possession of a new valid multiple-entry visa, he was denied entry when trying to cross the Finnish-Russian border.
In August 2002 Nolan challenged the decision refusing his return to Russia and in March 2003 Moscow Regional Court dismissed his complaint. The judgment, relying on a report by the Russian Federal Security Service (FSB) experts, stated that “the [applicant’s] activities in our country are of a destructive nature and pose a threat to the security of the Russian Federation.” As to Nolan’s overnight detention, the Regional Court ruled that the applicant had not been deprived of his liberty.
The Supreme Court of the Russian Federation also subsequently dismissed Nolan’s appeal, basing their decision on the administrative competence of the FSB and the Border Control in the field of national security and border control.
Despite repeated requests by the European Court, the Russian Government failed to provide a copy of the FSB report in order to clarify why the applicant was expulsed from Russia.
Summary of the Judgment2
Complaint
Relying in particular on ECHR Articles 5, 8 and 38 § 1 (a) and Article 1 of Protocol No. 7, Nolan complained that, on the basis of a report which the Russian authorities have never produced, he was detained overnight at Moscow airport, expulsed from Russia even though he had a valid visa and separated from his infant son for ten months. Nolan further complained that he was prevented from re-entering Russia in order to punish him for manifesting and spreading his religion, in breach of Articles 9 (freedom of thought, conscience and religion) and 14.
Decision of the Court
Article 9
The Russian Government had consistently maintained that the threat to national security had been posed by the applicant’s “activities” rather than “religious beliefs”. However, it had never specified the nature of those activities and had refused to produce the FSB report which could have clarified the factual grounds for Nolan’s expulsion.
Given the primary religious nature of the applicant’s activities and the general policy as set out in the Concept of National Security of the Russian Federation, that is to say that foreign missionaries posed a threat to national security, the Court considered it established that Nolan’s banning from Russia had been designed to repress the exercise of his right to freedom of religion. However, since the interests of national security were deliberately omitted as a permitted ground for restrictions on the exercise of the right to freedom of religion in Article 9 (2) of the Convention, such interests could not be relied upon as a justification for the measures taken by the Russian authorities against Nolan.
The Government submitted that the applicant's expulsion was justified in the light of the European Parliament's Resolution on Cults in Europe of 29 February 1996, in which it had expressed concern over certain cults “engaging in activities of an illicit or criminal nature and in violations of human rights, such as maltreatment, sexual abuse, unlawful detention, slavery, the encouragement of aggressive behaviour or propagation of racist ideologies, tax fraud, illegal transfers of funds, trafficking in arms or drugs, violation of labour laws, the illegal practice of medicine”. The Government also referred to the same effect to Recommendation 1178 (1992) of the Parliamentary Assembly of the Council of Europe on sects and new religious movements and the Committee of Ministers' supplementary reply to that Recommendation, adopted on 17 February 1994 (doc. 7030). The Government inferred from those documents that States had the right and obligation to exercise vigilance and caution in such sensitive matters as spreading religious teachings. The applicant's activity as a coordinator of Rev. Moon's groups had been merely a “motive” rather than a “ground” for the Russian authorities “to exercise vigilance and make use of existing legal instruments”. The grounds for the applicant's exclusion were the results of the operational and search measures as reflected in the report by the Stavropol Regional Branch of the Federal Security Service, dated 18 February 2002, concerning the banning of the applicant from the Russian Federation. As the Moscow City Court had pointed out in its judgment of 25 March 2003, the applicant's activities in the Russian territory were “of a destructive nature and pose[d] a threat to the security of the Russian Federation”. The Government emphasised that the threat resulted from the applicant's activities rather than his religious beliefs.
Finding that the Russian Government had not put forward any plausible legal or factual justification for Nolan’s expulsion on account of his religious activities, the Court found that there had been a violation of Article 9.
The Court reiterated its consistent approach that freedom of thought, conscience and religion, as enshrined in Article 9, is one of the foundations of a “democratic society” within the meaning of the Convention. The Court’s rationale under Article 9 is quite helpful to us in relation to a number of issues. The Court stated:
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. The Court has held on many occasions that the imposition of administrative or criminal sanctions for manifestation of religious belief or exercise of the right to freedom of religion was an interference with the rights guaranteed under Article 9 § 1 of the Convention (see Serif v. Greece, no. 38178/97, § 39, ECHR 1999 IX; Larissis and Others v. Greece, 24 February 1998, § 38, Reports of Judgments and Decisions 1998 I, and Kokkinakis v. Greece, 25 May 1993, § 36, Series A no. 260 A).
The gist of the applicant's complaint was not that he was not allowed to stay or live in Russia but rather that his religious beliefs and/or activities had prompted the Russian authorities to ban his re-entry.... As regards specifically Article 9, it emphasises that “deportation does not ... as such constitute an interference with the rights guaranteed by Article 9, unless it can be established that the measure was designed to repress the exercise of such rights and stifle the spreading of the religion or philosophy of the followers” (see Omkarananda and the Divine Light Zentrum v. Switzerland, no. 8118/77, Commission decision of 19 March 1981, Decisions and Reports (DR) 25, p. 118). More recently, the Court has examined cases against Bulgaria, in which the State's use of immigration controls as an instrument to put an end to an applicant's religious activities within its jurisdiction was found to have given rise to an admissible complaint of an interference with rights under Article 9 (see Al-Nashif v. Bulgaria (dec.), no. 50963/99, 25 January 2001, and Lotter v. Bulgaria (dec.), no. 39015/97, 5 November 1997). In a Latvian case the Court held that the refusal to issue an Evangelical pastor with a permanent residence permit “for religious activities”, a decision which had been grounded on national-security considerations, amounted to an interference with the applicant's right to freedom of religion (see Perry v. Latvia, no. 30273/03, §§ 10 and 53, 8 November 2007). It follows that, in so far as the measure relating to the continuation of the applicant's residence in a given State was imposed in connection with the exercise of the right to freedom of religion, such measure may disclose an interference with that right.
Accordingly, the Court's task in the present case is to establish whether the applicant's exclusion from Russia was connected with his exercise of the right to freedom of religion. The Court observes that the applicant came to Russia in 1994 on an invitation of the Unification Church, a religious association officially registered in Russia....There is no indication in the case-file, and it was not claimed by the Government, that the Unification Church or its branches had engaged in activities other than spreading of their doctrine and guiding their followers in the precepts of Rev. Moon's spiritual movement. The religious nature of their activities finds corroboration, by converse implication, in the judgment of the Promyshlenniy District Court of Stavropol which banned an affiliated social organisation for “engaging in religious activities under the guise of a registered social organisation”.
Furthermore, nothing indicates that the applicant held any employment or position outside the Unification Church and its organisations or that he had exercised any activities other than religious and social work as a missionary of the Unification Church. The Government consistently maintained that the threat to national security had been posed by the applicant's “activities” rather than “religious beliefs”. However, at no point in the proceedings before the Court did they indicate the nature or character of any non-religious activities which the applicant allegedly may have undertaken. Whereas they vaguely mentioned certain “findings” of the operational and search measures relating to the applicant's “activities”, they forfeited the opportunity to substantiate that claim by failing to submit a copy of the report by the Federal Security Service which was repeatedly requested by the Court.
Religious Beliefs Illegally Targeted
Based on these findings, the Court came to the conclusion, based on the unqualified warning by the government that any activities of foreign religious organizations harmed national security, that Nolan’s religious beliefs formed the basis for the adverse action taken by the government against him. The Court stated:
Finally, the Court cannot overlook the applicant's submission that the Concept of National Security of the Russian Federation, as amended in January 2000, declared that the national security of Russia should be ensured in particular through opposing “the negative influence of foreign religious organisations and missionaries”. The unqualified description of any activities of foreign religious missionaries as harmful to the national security lends support to his argument that his religious beliefs, combined with his status as a foreign missionary of a foreign religious organisation, may have been at the heart of the Russian authorities' decision to prevent him from returning to Russia.
On the strength of the parties' submissions and the information emerging from the case-file, the Court finds that the applicant's activities in Russia were primarily of a religious nature and amounted therefore to the exercise of his right to freedom of religion. Having regard to the fact that the applicant was not shown to have engaged in any other, non-religious activities and also to the general policy, as set out in the Concept of National Security of the Russian Federation, that foreign missionaries posed a threat to national security, the Court considers it established that the applicant's banning from Russia was designed to repress the exercise of his right to freedom of religion and stifle the spreading of the teaching of the Unification Church. There has therefore been an interference with the applicant's rights guaranteed under Article 9 of the Convention (see Abdulaziz, Omakaranda, and Lotter cases, all cited above).
Interference with Article 9 Rights Unjustified
Regarding Russia’s allegation that Nolan was engaged in activities that violated national security, the Court rejected these allegations as no evidence was proffered to support these charges and as Article 9 does not allow religious freedom to be infringed on security grounds as opposed to public health, order or safety.
The Court further observes that no evidence corroborating the necessity to ban the applicant from entering Russia was produced or examined in the domestic proceedings. It reiterates that even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive's assertion that national security is at stake. While the executive's assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of “national security” that is unlawful or contrary to common sense and arbitrary. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Liu and Liu v. Russia, no. 42086/05, § 59, 6 December 2007; Al-Nashif v. Bulgaria, no. 50963/99, §§ 123-124, 20 June 2002; and Lupsa v. Romania, no. 10337/04, §§ 33-34, ECHR 2006 VII).
In the instant case, counsel acting for the Federal Security Service in the domestic proceedings referred to the report of 18 February 2002 but did not make specific submissions on the factual circumstances underlying its findings or the nature of allegations of unlawful conduct on the part of the applicant, if such were indeed contained in the report. The Moscow Regional Court at first instance and subsequently the Supreme Court on appeal confined the scope of their inquiry to ascertaining that the report had been issued within the administrative competence of the Federal Security Service, without carrying out an independent review of whether the conclusion that the applicant constituted a danger to national security had a reasonable basis in fact. In these circumstances, the Court is unable to discern in the domestic decisions any concrete findings of fact corroborating the Government's argument that the applicant's religious activity posed a threat to national security.
Furthermore, in so far as the Government relied on the protection of national security as the main legitimate aim of the impugned measure, the Court reiterates that the exceptions to freedom of religion listed in Article 9 § 2 must be narrowly interpreted, for their enumeration is strictly exhaustive and their definition is necessarily restrictive (see Svyato-Mykhaylivska Parafiya v. Ukraine, no. 77703/01, § 132, 14 June 2007). Legitimate aims mentioned in this provision include: the interests of public safety, the protection of public order, health or morals, and the protection of the rights and freedoms of others (see paragraph 58 above). However, unlike the second paragraphs of Articles 8, 10, and 11, paragraph 2 of Article 9 of the Convention does not allow restrictions on the ground of national security. Far from being an accidental omission, the non-inclusion of that particular ground for limitations in Article 9 reflects the primordial importance of religious pluralism as “one of the foundations of a 'democratic society' within the meaning of the Convention” and the fact that a State cannot dictate what a person believes or take coercive steps to make him change his beliefs (see, mutatis mutandis, Kokkinakis, cited above, § 31, and Ivanova v. Bulgaria, no. 52435/99, § 79, ECHR 2007 ...). It follows that the interests of national security could not serve as a justification for the measures taken by the Russian authorities against the applicant.
The Court held that it was not necessary to examine the complaint under Article 14 taken in conjunction with Article 9.
Article 38 § 1 (a)
The Court noted that, despite its repeated requests, the Russian Government had failed to produce a copy of the FSB’s report of 18 February 2002 – which apparently served as the basis for Nolan’s expulsion – on the ground that Russian law did not lay down a procedure for communicating classified information to an international organization.
The Court found that the Russian Government could have addressed those concerns by editing out the sensitive passages or supplying a summary of the relevant factual grounds, and concluded that, in not doing so, the Government had fallen short of their obligation to cooperate with the Court, in breach of Article 38 § 1 (a).
Article 5 §§ 1 and 5
The Court found that the conditions of Nolan’s overnight stay in the Moscow Airport transit hall had been equivalent in practice to a deprivation of liberty, for which the Russian authorities had been responsible.
Given the lack of accessibility and foreseeability of the Border Crossing Guidelines, the Court concluded that the national system had failed to protect Nolan from arbitrary deprivation of liberty, in violation of Article 5 § 1.
Article 8
The Court observed that the ten months period of physical separation between K. and his father had directly resulted from a combination of Nolan’s expulsion from Russia by the authorities and their failure to notify him of that decision. Nolan had in effect had no opportunity to make arrangements for his son to leave Russia.
Consequently the Court found that there had been a violation of Article 8, on the account of the Government’s failure to assess the impact of their decisions on the welfare of the applicant’s son.
Article 1 of Protocol No. 7
The Court found that Nolan, at the relevant time a lawful resident with a valid annual multiple-entry visa, could be considered to have been expelled from Russia. Furthermore, Nolan had been living in the country since 1994 and, his son still a resident, he could legitimately have expected to continue his residence there.
The Court observed that the Russian Government had not corroborated their claim that Nolan’s expulsion had been necessary in the interests of national security or public order, an exception permitted under paragraph 2 of Article 1 of Protocol No. 7. Accordingly, there was no reason to apply that exception and the applicant should have been allowed to exercise the procedural safeguards set out in paragraph 1 prior to his expulsion. The Government, however, had not provided any explanation as to why the decision to expel Nolan of 18 February 2002 had not been communicated to him until such time as he had effectively been removed from the country three months later. Nor had he been allowed to have his case reviewed. The Court therefore found a violation of Article 1 of Protocol No. 7.
Legal analysis of the European Court of Human Rights decisions Dogru v. France and Kervanci v. Franc
Wednesday, 07 January 2009
On 4 December 2008, the European Court of Human Rights adopted two decisions in cases related to the wearing of the Muslim veil in the French public schools.
Both decisions concerned judgements by the French administrative courts adopted before the enactment of the 2004 law prohibiting the wearing of conspicuous religious signs in public schools.
At the time of the contested decisions, which were found to conform to the European Convention on Human Rights by the European Court, the Council of State (the French Supreme Administrative Court) had issued moderate case law on the subject and assumed the role of an arbitrator to resolve opposing viewpoints between Muslim parents and public school teachers in France.
While the confirmation of this case law of the Council of State is commendable, some findings of the Court raise concern.
The Facts
The two European Court decisions refer to cases where two Muslim girls, enrolled in the first year of a high school in Flers (western France), started to wear headscarves to school in January 1999. This corresponded to their religious beliefs and the Muslim practice that women should wear a veil starting at the age of puberty. These two girls were eleven and twelve years old at the time.
On several occasions, the two applicants were refused access to physical education and sports classes because they were wearing their headscarves and refused to take them off despite repeated requests to do so by their teacher. Finally, the school’s Pupil Discipline Committee decided on 11 February 1999 to expel the applicants from the school for failing to participate actively in physical education and sports classes.
The decisions were upheld by the superior educational authorities and by the administrative trial and appellate courts. Finally, appeals on points of law were declared inadmissible by the Council of State.
Background: Moderate Case Law of the Council of State
First, it should be noted that at the relevant period of time, there was no law prohibiting the wearing of headscarves at school. The applicants were only barred from sports lessons for safety reasons invoked by their teacher. Although the applicants maintained that they never got any explanation as to why the headscarf would be unsafe, it is to be noted that this prohibition only concerned sports lessons.
Problems with the wearing of headscarves started in France in 1989. On 27 November 1989, at the request of the Minister of Education, the Council of State gathered in Grand Assembly adopted an opinion on the issue.
The Council of State found that (cited in Dogru v. France, 4 December 2008, § 26):
Pupils wearing signs in schools by which they manifest their affiliation to a particular religion is not in itself incompatible with the principle of secularism in so far as it constitutes the exercise of the freedom of expression and manifestation of religious beliefs, but that this freedom should not allow pupils to display signs of religious affiliation, which, inherently, in the circumstances in which they are worn, individually or collectively, or conspicuously or as a means of protest, might constitute a form of pressure, provocation, proselytism or propaganda, undermine the dignity or freedom of the pupil or other members of the educational community, compromise their health or safety, disrupt the conduct of teaching activities and the educational role of the teachers, or, lastly, interfere with order in the school or the normal functioning of the public service.
These latter motives of safety and order in the school were the ones adopted in the instant administrative courts decisions to sanction the repeated refusal of the applicants to take their veil off during sports lessons.
From the 1989 opinion onwards, the Council of State (followed by administrative courts) maintained a moderate jurisprudence: it annulled the internal rules of schools that had imposed a strict ban on the wearing of any distinctive religious sign in classes or on the school premises on the grounds that the terms used were too general (See, e.g., 2 November 1992 Kehrouaa and 14 March 1994 Melles Yilmaz decisions) as well as penalties for merely wearing a headscarf in a school if it was not established that the behaviour of the pupil in question amounted to an act of pressure or proselytism or interfered with public order in the school (See, e.g., 27 November 1996 Mlle Saglamer and 2 April 1997 époux Mehila decisions). But expulsions from school were upheld based on failure to comply with the duty of diligence, such as a pupil’s refusal to remove her veil during physical education and sports classes (See. e.g., 10 March 1995 époux Aoukili and 20 October 1999 Aït Ahmad decisions) or refusal to attend such classes (See, e.g., 27 November 1996 Chedouane and Wissaadane; Atouf; and 15 January 1997 Aït Maskour and Others decisions).
However, the unrest in France increased due to the issuance of governmental circulars to the teachers requesting no tolerance of any religious signs in schools. Muslim parents appealed decisions of expulsion before administrative courts which would eventually decide in the parents’ favor.
On 20 May 1996, the Council of State adopted four memorable decisions in which it adopted a “Whereas” reasoning of principle:(I)
“Whereas the scarf through which Miss Hanane X intended to express her religious convictions cannot be considered as a sign presenting in itself a conspicuous or claiming character or constituting, by its wearing alone, an act of proselytizing or pressure;”
The Council found in one of the cases that a pupil, who returned to school after a long hospitalization and was refused access to classes because she was wearing a headscarf, did not have a history of violating public order in the school; nor did her conduct constitute an act of pressure, provocation, proselytizing or propaganda justifying her exclusion.
It also found that “the circumstance that unrest followed the application of the instructions of the Minister of Education regarding the wearing of conspicuous signs in schools, if it could found disciplinary measures against the authors of such unrest, could not however legally justify a general prohibition of the wearing of the scarf in the school”.
On 27 November 1996, the Council of State issued 7 decisions on the veil upholding its principle: (II)
“Whereas the scarf through which Misses Y and X intended to express their religious beliefs cannot be considered as a sign presenting by nature a conspicuous or claiming character, and the wearing of which would constitute in all instances an act of pressure or proselytizing;”
Nevertheless, on 10 March 1995, the Council of State upheld a decision of definitive exclusion of two girls based on their refusal to remove the veil they were wearing for sports lessons. It found that the veil was incompatible with sports lessons and that their refusal created a disturbance in the school aggravated by demonstrations with the participation of their father in front of the school.
Under this case law, principals of high schools had to make decisions in each specific case under the control of administrative courts. This jurisprudence of the Council of State was criticized by the partisans of banning all religious symbols from the public schools, in particular unions of public school teachers. Principals and teachers complained of being in a situation of legal fragility. The Circulars they were receiving from the Ministry of Education instructed them to obtain agreements that veils would not be worn in their schools through mediation or dialogue while simultaneously preventing them from prohibiting the wearing of religious signs outright. Some politicians demanded that a new law be voted to bypass and modify the Council of State’s case law.
President Chirac asked for a report on the situation which was rendered to him on 11 December 2003. This report of the Stasi Commission was relied on by the legislature to pass the 2004 law prohibiting the wearing of conspicuous religious signs in public schools.
The European Human Rights Court’s Developments on French Secularism
The description of domestic law and practice in France by the European Human Rights Court, in particular in the historical briefing on French secularism leading to the enactment of the 2004 law, illustrates the view of the French government on this evolution. This might be due to the fact that the applicants did not make any argument on this subject in their pleadings before the Court.
These developments on French secularism, which include the vote of the 2004 law when this did not have to be addressed by the Court as the contested decisions were taken before the law was passed, confirm the European Court was of the opinion that the 2004 law was a positive achievement for France.
The European Court commented in great detail on French secularism, which is enshrined in the French Constitution:
“The real keystone of French secularism, however, is the Act of 9 December 1905, known as the Law on the Separation between Church and State (…) The principle of separation is affirmed in section 2 of the Act: “the Republic may not recognise, pay stipends to or subsidise any religious denomination.” A number of consequences flow from this “secular pact” both for public services and users. It implies an acknowledgement of religious pluralism and State neutrality towards religions. In return for protection of his or her freedom of religion, the citizen must respect the public arena that is shared by all.” (§ 18)
These comments could be interpreted as endorsing the construction of secularism by the French government; the citizen, as a consumer of public services, has a duty to respect the public arena shared by all. Based on this premise, the French authorities maintain that not only do civil servants have a duty of neutrality towards religion, but also users of public services, like pupils, have a similar duty of neutrality (which requires no conspicuous religious symbols) under a purported duty of respect for the feelings or rights of others.
However, the facts which the European Court decided on were misrepresented to the Court. First, the following statement in the European Court’s decision is incomplete:
“The Conseil d’Etat then left it to schools to determine in their internal rules how the principles thus defined would be applied. It indicated, lastly, that it was for the authority vested with disciplinary power to decide whether the wearing of a religious sign breached those rules and whether the breach justified a disciplinary penalty that could go as far as expulsion. The ministerial circulars of 1989 and 1994 accordingly gave school principals instructions regarding implementation of their disciplinary powers in this regard.”
An official report made in the name of the Commission of Cultural Affairs of the Senate (3) explained the following:
“Thus the Circular sent in 1994 to the school directors by the Minister of Education Mr François Bayrou has shown to be inapplicable, contributing to worsen the difficulties met by the school teachers and directors trying to use it as a legal basis. Their authority was then weakened by the solution of the case law, well known by the pupils themselves, who wield it to contest the legality of the sanctions.”
And the decision of the European Court itself reproduces an extract from the 20 September 1994 Circular:
“there is an unacceptable presence, in ever growing numbers, of signs so ostentatious that their signification serves precisely to distance certain pupils from the school’s common rules of conduct. Such signs are inherently of proselytising effect, especially if certain lessons or disciplines are challenged as a result, pupils’ safety is jeopardised or the principle of coexistence at school is undermined.
I therefore ask you to propose to the boards of governors that, when drafting the internal rules, they impose a ban on such conspicuous signs, while remaining mindful that the presence of more discreet signs that merely denote an attachment to a personal belief cannot be subject to the same restrictions”.
Thus, there was a conflict between the moderate case law of the Council of State and the position of certain government officials, who wanted a ban of religious signs in schools and did not follow the case law of the Supreme Administrative Court entitled to sanction government policy.
As stated in the above mentioned official report of the Commission of Cultural Affairs of the Senate: “If the Council of State has not cancelled this Circular, it is because it considered it as being purely interpretative, and not creating rights” (4). In its decision on a request to cancel the circular, the Council of State found that the Circular as merely interpretative of existing regulation could not be demurred to the applicant, and was thus not susceptible to be cancelled by administrative courts.
Ignoring the case law became official through 2004 law which provided:
“In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited.”
As stated by the European Court, a governmental circular of 18 May 2004 indicated that this provision concerned only “signs ..., such as the Islamic headscarf, however named, the kippa or a cross that is manifestly oversized, which make the wearer’s religious affiliation immediately identifiable”.
The shift from the Council of State’s opinion and jurisprudence according to which pupils could in principle wear religious signs in schools and the scarf could not be “considered as presenting in itself a conspicuous or claiming character” was thus achieved.
The opposition between the Council of State’s position and the government instructions is not mentioned in the Court’s development on French secularism and the evolution leading to the enactment of the 2004 law. To the contrary, the Court attributed the persistence of conflicts in schools to the inapplicability of the Council of State’s opinion: “Some ten years later more and more issues relating to the headscarf had arisen and the advisory opinion does not appear to have provided a lasting solution to the difficulties” (§ 21).
This is deeply regrettable since the 2004 law is presented as the next step necessary after the Council of State’s failure. The Court continued:
“According to a report prepared for the Minister for Education in July 2005, “the matter appears to have taken on considerable proportions because having started with three headscarves in Creil in 1989, the Minister referred to 3,000 such cases when addressing the Senate in 1994.” In France, the troubles have given rise to various forms of collective mobilisation regarding the question of the place of Islam in Republican society. It is in this context that, on 1 July 2003, the President of the Republic instructed a commission to study the application of the principle of secularism in the Republic. That commission, known as the “Stasi commission”, after the name of its chairman, produced a report for the President of the Republic on 11 December 2003. The picture it presented of the threat to secularism bordered on the alarming.”
The Court quoted the report of the Stasi Commission which placed the veil issue within the context of a purported fight against the Republic’s values:
“instances of behaviour and conduct that run counter to the principle of secularism are on in the increase, particularly in public society. ... The reasons for the deterioration in the situation ... [are the] difficulties in integrating experienced by those who have arrived in France during the past decades, the living conditions in many suburbs of our towns, unemployment, the feeling experienced by many people living in France that they are the subject of discrimination, or are even being driven out of the national community; these people explain that they thus lend an ear to those who incite them to fight what we call the values of the Republic.”
The Court gave the extract of the report detailing those values:
“for the school community ... the visibility of a religious sign is perceived by many as contrary to the role of school, which should remain a neutral forum and a place where the development of critical faculties is encouraged. It also infringes the principles and values that schools are there to teach, in particular, equality between men and women.”
And the Court concluded that “It is on the basis of these proposals that the Act of 15 March 2004 was enacted”. One can conclude from the above statement that school was viewed by teachers of public schools as the place to train critical faculties of children, especially regarding religions. It also appears that on the basis of the “alarming” assertion in the report of a purported fight for cultural identity, which would have turned into a fight over the Republic’s values and some 3000 cases of conflicts concerning the wearing of the veil in French public schools over five years, the Court seems to conclude that the situation constituted a national threat requiring the remedy of the 2004 law.
However, this description in the decision of the evolution of secularism in France is incomplete. The Stasi report went further in a part not cited by the decision. It explicitly mentioned that the State, as part as its duty of neutrality, has an obligation of defense against proselytizing:
“[The State] ensures that no group, no community can impose to anyone confessional adherence or identity, especially because of his/her origins. It protects everyone against any pressure, physical or moral, exerted under this or that spiritual or religious instruction. Defense of individual freedom of conscience against any proselytizing is today completing the notions of separation and neutrality which are fundamental in the 1905 law.” (5)
This was referring to the “pressure” from the children’s own communities, including their parents under religious instruction. The report added:
Secularism creates a duty for the State: to favor the enriching of critical knowledge of religions at school in order to endow the future citizens with an intellectual and critical background. This way they can exert their freedom of thought and choice in the area of beliefs.”
Is it really the role of the State to fight against religious instruction and to provide critical knowledge of religions to the pupils in public schools, against their parents’ or communities’ beliefs, under international human rights norms?
Arguably, this conception of secularism violates Protocol N° 1 Article 2 of the European Convention of Human Rights, which provides that the “State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions”.
Also, the whole debate on “communautarism” (6) or defense of the rights of minorities that took place at the time of the Stasi report is not mentioned in the European Court’s decisions. The reactions of politicians to the report are telling in this regard. The Stasi Commission recommended - apart from the prohibition of religious signs and as compensation - that Muslim Eid and Jewish Yom Kippur be included in the official holy days. Protests from some politicians in France were formulated against that recommendation, stating that France is primarily Christian.
As national newspaper Libération reported on 13 December 2003:
“Member of Parliament from Alpes-Maritimes Department Lionnel Luca (UMP party) saw this as the mark of an “unacceptable communautarist deviation”. To make Aïd and Kippour holy days seems to him to be “demagogic” and he does not see why the National Education should have the duty of “developing the teaching of the Arabic language”. Rather than take such initiatives, Lionnel Luca wishes that Chirac “reminds that France is firstly a country of Christian history”.
Even if few dare say that openly, numerous Members of Parliament from the South of France find that treating equally Islam and Christianism favors the National Front party. An exasperated Member of Parliament says it bluntly: “If Chirac makes Aïd a holy day, he looses four points. And he will end as the only UMP activist left”. Jean-Marie Le Pen as well understood all he could get from that debate: the conclusions of the Stasi Commission are, he said, a “promotion of Islam in our country of old Christian tradition”. From François Bayrou to Charles Pasqua, all those who do not fear to embarrass Chirac remake the attack against the judges on communautarism which is fashionable since Sarkozy spoke about a “Muslim prefect” (7).”
This last statement referred to the criticism that the Judges of the Council of State favored “communautarism”. Some officials like Hanifa Chérifi, Mediator at the Ministry of Education, stated bluntly to the Commission of Cultural Affairs of the Senate that “the position of principle of the Council of State, which by proscribing a general and absolute prohibition of the veil has implicitly allowed its wearing, has resulted in an increase of the number of veiled girls in schools”. (8)
However, the recommendation of adopting Muslim and Jewish holy days as official banking holidays in France from the Stasi Commission was supported by human rights groups and religious communities as newspaper Libération further reported:
However, during the hearings of the Commission, the establishment of Muslim and Jewish banking holidays in schools imposed itself as a kind of evidence, susceptible of gathering a consensus. This proposal was welcome Thursday evening by both the President of MRAP (movement against racism and for friendship between peoples), Mouloud Aounit, and the President of the Representative Council of the French Jewish Institutions (CRIF), Roger Cukierman. But the politicians mostly understood the highly sensitive character of this measure. Yves Jego (UMP party) hopes that the rebuttal of some “southern members of Parliament” will not be contagious. He finds it “very exaggerated the outcry against communautarism” when allowing Jewish and Muslim children the possibility to “do a family celebration” is considered.
In spite of this support, the recommendation was regrettably abandoned.
All this context of debate on so-called “communautarism,” or the rights of minorities, was not mentioned in the European Court’s description of the evolution of French secularism, in spite of the Court citing the Stasi report on the feeling of cultural exclusion of the immigrants’ community.
Analysis of the Court
First, the applicants complained of an infringement of their right to manifest their religion within the meaning of Article 9 of the Convention, which reads as follows:
“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.”
The Court then examined whether there had been such a limitation, and whether it could be allowed under Article 9.2 of the Convention, which reads:
“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.”
The Court found that the expulsion of the applicant from school, due to her wearing of a headscarf, constituted a “restriction” on the exercise of her right to freedom of religion. The Court also found that this interference could be regarded as having been “prescribed by law”; the relevant rules were accessible since they consisted mainly of provisions that had been duly published (Circulars) and of confirmed case-law of the Council of State. The Court also pointed out that by signing the internal rules when she enrolled at the secondary school, the applicant was made aware of the content of those rules and undertook to comply with them, with her parents’ agreement. The applicant could therefore foresee, to a degree that was reasonable, that at the material time the refusal to remove her headscarf during physical education and sports classes was likely to result in her expulsion from the school for failure to attend classes regularly.
The Court found that “the interference complained of mainly pursued the legitimate aims of protecting the rights and freedoms of others and protecting public order”. This followed the French government argument that the measure in question had pursued a legitimate aim, namely, “the protection of order and the rights and freedoms of others, in the present case compliance by pupils with the duty to wear clothes adapted to and compatible with the proper conduct of classes, both for safety reasons and on public-health grounds”.
Then, the Court examined whether the interference could be considered as necessary in a democratic society. The Court reiterated its former jurisprudence in this regard:
“the State may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety”.
Not only public order and safety can be cases for limitations of the expression of religious beliefs (See, e.g., compelling a motorcyclist, who was a practising Sikh wearing a turban, to wear a helmet as a safety measure, X v. the United Kingdom, no. 7992/77, security checks enforced at airports, Phull v. France, no. 35753/03, or at the entrance to consulates, El Morsli v. France, no. 15585/06, consisting in ordering the removal of a turban or a veil in order to submit to such checks, prohibition of the Sikh turban on photos on driving licences, Shingara Mann Singh v. France, n° 24479/07), but the Court also ruled that prohibiting a teacher from wearing her headscarf while teaching a class of young children was “necessary in a democratic society”, having regard for the fact that secularism presupposed denominational neutrality in schools (Dahlab v. Switzerland, no. 42393/98):
“The Court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.
Accordingly, weighing the right of a teacher to manifest her religion against the need to protect pupils by preserving religious harmony, the Court considers that, in the circumstances of the case and having regard, above all, to the tender age of the children for whom the applicant was responsible as a representative of the State, the Geneva authorities did not exceed their margin of appreciation and that the measure they took was therefore not unreasonable.”
In its decisions Leyla Sahin v. Turkey (44774/98) and Köse v. Turkey (decision on admissibility, 26625/02, 24 January 2006) the Court examined complaints similar to the instant ones, where the wearing of headscarves in high school or university was at stake. In Leyla Sahin, the Court found:
“In addition, like the Constitutional Court ..., the Court considers that, when examining the question of the Islamic headscarf in the Turkish context, it must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. As has already been noted (see Karaduman, decision cited above, and Refah Partisi (the Welfare Party) and Others, cited above, § 95), the issues at stake include the protection of the ‘rights and freedoms of others’ and the ‘maintenance of public order’ in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since, as the Turkish courts stated ..., this religious symbol has taken on political significance in Turkey in recent years.”
Therefore, the rights of others that needed protection under Article 9.2 of the Convention were the rights of Muslim student women to not wear the veil, as there was pressure by the fundamentalist majority party, Refah Partisi, to impose such veils on all women in Turkey. Secularism was jeopardized, as this party constituted the majority and wanted to turn the country into a Muslim State, as the Court explained further:
“The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts ... It has previously said that each Contracting State may, in accordance with the Convention provisions, take a stance against such political movements, based on its historical experience (see Refah Partisi (the Welfare Party) and Others, cited above, § 124). The regulations concerned have to be viewed in that context and constitute a measure intended to achieve the legitimate aims referred to above and thereby to preserve pluralism in the university.”
In the other case, Köse v. Turkey, petitions were being circulated and meetings held in front of the school supported by other movements external to the education sphere. The Court approved the Turkish Constitutional Court’s finding that in countries where a vast majority of the population adheres to a precise religion, “the expression of rites and symbols, without limitation as to place and form, can constitute a pressure on the pupils who do not practice it or adhere to another religion.” The European Court observed that the Imam-Hatip high schools, although they were mainly designed to educate future religious leaders and to teach Islamic theology (among other subjects), were not confessional schools and therefore had to follow the rule of secularism. The Court concluded that the prohibition of the wearing of headscarves was a justified and proportionate measure to protect the rights and freedoms of others, order, and neutrality of education.
Applying those principles and case-law to the instant decisions regarding France, the Court observed that the domestic authorities had justified the ban on wearing the headscarf during physical education classes on grounds of compliance with the school rules on health, safety and assiduity which were applicable to all pupils without distinction. The Courts also found that, by refusing to remove their headscarves, the applicants had overstepped the limits on the right to express and manifest religious beliefs on the school premises.
Nevertheless, the French situation is totally different from the Turkish one. The concerned people wearing religious signs constitute minorities and do not exert pressure on other religions. There is no threat of a majority fundamentalist party coming into power and the rights to be protected are not the rights of nontraditional Muslim women not wearing the veil, but the rights of minorities, including those wearing the veil and other religious minorities such as Sikh children wearing a Keshi.
Still, in the French cases, the Court equally found that the wearing of the veil constituted a means of pressure. Whereas the French administrative courts had grounded their decisions on safety in sports classes and the trouble created inside the school by the pupil’s refusal, the European Court ruled a general finding “the French secular model” and the wearing of the scarf as source of pressure and exclusion, referring explicitly to its former decision Köse v. Turkey:
“69. The Court also observes, more generally, that the purpose of that restriction on manifesting a religious conviction was to adhere to the requirements of secularism in state schools, as interpreted by the Conseil d’Etat in its opinion of 27 November 1989 and its subsequent case-law and by the various ministerial circulars issued on the subject.
70. The Court next notes that it transpires from these various sources that the wearing of religious signs was not inherently incompatible with the principle of secularism in schools, but became so according to the conditions in which they were worn and the consequences that the wearing of a sign might have.
71. In that connection the Court refers to its earlier judgments in which it held that it was for the national authorities, in the exercise of their margin of appreciation, to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion (see Köse and Others, cited above). In the Court’s view, that concern does indeed appear to have been answered by the French secular model.”
It can be inferred from this finding that the Court found that the wearing of the headscarf constituted a source of pressure because of the confrontational situation it created in France, and in particular, in the instant school by the refusal to take it off during sports lessons.
This endorsement of the “French secular model” by the Court, including the 2004 law apparently, and its likening of the French to the Turkish scene is cause for concern, since in France the rights of minorities are at stake. Sikh boys and Muslim girls have been expelled by the hundreds from the public school system. It is even more alarming since the Court adopted the following finding, which could indicate that it would apply the same jurisprudence to any country in which the issue is raised as long as secularism is articulated in its Constitution:
“72. The Court also notes that in France, as in Turkey or Switzerland, secularism is a constitutional principle, and a founding principle of the Republic, to which the entire population adheres and the protection of which appears to be of prime importance, in particular in schools. The Court reiterates that an attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention (see Refah Partisi (Prosperity Party) and Others, cited above, § 93). Having regard to the margin of appreciation which must be left to the member States with regard to the establishment of the delicate relations between the Churches and the State, religious freedom thus recognised and restricted by the requirements of secularism appears legitimate in the light of the values underpinning the Convention.”
Finally, as concerns proportionality, the Court found that the conclusion reached by the national authorities that the wearing of a veil was incompatible with sports classes for reasons of health or safety was not unreasonable. It accepted that the penalty imposed was merely the consequence of the applicants’ refusal to comply with the rules applicable on the school premises – of which they had been properly informed – and not of their religious convictions, as they alleged. Moreover, it noted that these events had led to a general atmosphere of tension within the school.
The Court also noted that the ban was limited to the physical education class, so could not be regarded as a ban in the strict sense of the term. It referred in this regard to the above mentioned decision Köse and Others v. Turkey in which the Court found that the regulation prohibiting the wearing of the Islamic headscarves in high schools, but authorizing it during lessons on the Koran could not be considered as a ban stricto sensu of the Islamic scarf.
The disciplinary proceedings against the applicants seemed to the Court to have fully satisfied the duty to undertake a balanced exercise of the various interests at stake because, despite repeated refusals to remove their headscarves during physical education classes, the authorities tried to enter into dialogue with the applicants over a long period of time and the applicants had a period of reflection. Also the disciplinary process appeared to the Court to have been accompanied by sufficient safeguards, i.e. judicial review.
The applicants' argued that they had proposed to wear a hat or balaclava (a form of headgear covering the whole head, exposing only the face) instead of their headscarf. Still, they had continually been refused permission to participate in sports classes. In addition, the applicants argued that wearing the headscarf had given rise to strike actions by a number of teachers in the school on the pretext of defending the principle of secularism. It was those very teachers who had started the unrest and disruption and not in any way the applicants, who had not engaged in any form of proselytising.
Apart from the fact that it was difficult for the Court to judge whether wearing a hat instead would be compatible with sports classes, the European Court found that, the question whether the pupils expressed a willingness to compromise, as they maintained, or whether they overstepped the limits of the right to express and manifest their religious beliefs on the school premises and violate the principle of secularism, as the Government maintained, fell squarely within the margin of appreciation of the State.
Lastly, the applicants alleged that they had been deprived of their right to education, within the meaning of the first sentence of Article 2 of Protocol No. 1, which provides: “No person shall be denied the right to education ...”, in so far as they had had to take correspondence courses whereas the penalty was based on the obligation to attend classes regularly which they had not sought to circumvent.
The Court reiterated that the right to education does not, in theory, exclude resorting to disciplinary measures, including temporarily or definitively suspending someone from an establishment in order to ensure compliance with the internal rules. In the present case, the Court considered that no separate question arose under this provision, the relevant circumstances being the same as for Article 9. Accordingly, there was no need to examine the complaint based on Article 2 of Protocol No. 1 to the Convention.
Conclusion
Confirmation by the European Court of Human Rights of the Council of State moderate case law on the wearing of the Islamic veil in schools is to be welcome.
It is regrettable however that the description by the Court of the French evolution on secularism is incomplete and that the enactment of the 2004 law prohibiting the wearing of religious symbols at school is wrongly presented as a consequence of the inapplicability of the Council of State’s jurisprudence. On the contrary, the voting of this law is the result of the more drastic position of some politicians unwilling to tolerate any headscarf or any religious symbols in schools, even if worn peacefully.
The European Court’s presentation of French secularism as a founding principle of the Republic, “the protection of which appears to be of prime importance, in particular in schools” and its finding that it is “legitimate in the light of the values underpinning the Convention” seem to indicate that the Court endorses the construction of secularism by the French authorities.
If this position of the Court is to be confirmed in the future, States will be allowed to impose secularism as a duty of neutrality not only on the State or its agents, but also on the citizens in the public areas in the name of protection of “the feelings of others”. This represents a new limitation of the right to express one’s beliefs.
End Notes:
1. Council of State, 20 May 1996, N° 170398, 170343, 172717 and 172718.
2. Council of State, 27 November 1996, N° 170209, 170210, 172663, 172719, 172723, 172724 and 172726.
3. Report N° 219 (2003-2004) of 25 February 2004.
4. Council of State decision on appeal against the Circular, 10 July 1995, N° 162718.
5. Report, 11 December 2003, page 13.
6. “Communautarism” is a polemical term used in France to argue that minority customs should be integrated into French culture.
7. The Prefect is the government representative in each of the regions or departments of France.
8. Cited in above mentioned report of the Commission of Cultural Affairs of the Senate.
Analysis: ECHR Decision on Public Information Campaigns Against Religions
Thursday, 13 November 2008
New European Court of Human Rights Decision Regarding Public Information Campaigns Targeting Religions: Leela Förderkreis e.V. and Others v. Germany (no. 58911/00)
Background
In 1979 the German Government launched a campaign to draw attention to the potential dangers of religious or meditation groups belonging to the Osho movement, formerly known as the Shree Rajneesh or Bhagwan movement, which emerged in Germany in the 1960s and 1970s.
The Government campaign referred to these groups as “sects”, “youth sects”, “youth religions” and “psycho sects” and issued warnings that they were “destructive”, “pseudo-religious” and “manipulated their members”. In 1984, the applicant associations initiated proceedings to prohibit the government from describing them in such uniformly derogatory terms. Following dismissal of their claims below, they brought a constitutional complaint. In 2002, the German Federal Constitutional Court prohibited the government’s use of the terms “destructive”, “pseudo-religious” and charges that they “manipulated their members.” However, the Constitutional Court determined that the government could provide the public with information about such associations and found that the use of the terms “sects”, “youth sects”, “youth religions” and “psycho sects” did not contravene the government’s duty of neutrality in religious matters.
These associations then filed an application with the European Human Rights Court, alleging that the excessive length of the civil proceedings infringed on their right to a fair hearing within a reasonable time guaranteed by Article 6 § 1 of the European Convention on Human Rights. They also alleged that the government had violated their duty to be neutral in religious matters and had embarked on a repressive and defamatory campaign against them in breach of Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 14 (prohibition of discrimination).
Human Rights Court Decision
The Human Rights Court noted that the proceedings had lasted an excessive length of time (over 18 years) and therefore held unanimously that there had been a violation of Article 6 § 1. However, the Court also determined, by five votes to two, that the government’s interference with the applicants’ right to freedom of religion was justified.
The Court assumed that the information campaign had interfered with the applicants’ right to manifest their religion or belief. However, the Court determined that such interference had been “prescribed by law” and pursued the “legitimate aim” of providing information of public concern about the emergence of new religious movements and their attraction for young people in the 1960s and 1970s.
The Court emphasized that the campaign had not prohibited the associations’ freedom to manifest their religion or belief. Indeed, the Constitutional Court had prohibited the government from making statements that, in its opinion, overstepped the bounds of government neutrality. The Human Rights Court observed that the Constitutional Court “carefully analyzed the impugned statements and prohibited the use of the adjectives ‘destructive’ and ‘pseudo-religious’ and the allegation that members of the movement were manipulated as infringing the principle of religious neutrality”. The Court also noted that the Government refrained from further using the term “sect” in their information campaign following an expert recommendation issued in 1998.
The Court therefore found that the government’s statements, as limited by the Constitutional Court, did not exceed “what a democratic State might regard as in the public interest”. Accordingly, the Court determined that the “interference with the applicant associations’ right to manifest their religion or belief had been justified and had been proportionate to the aim pursued”.
Article 9 Dissents
Two judges dissented from the Court’s Article 9 findings in individual opinions.
Judge Trajkovska pointed out the Court’s many precedents emphasizing the need for “religious pluralism as an important part of a democratic society” and the “right to manifest religious belief, in worship, teaching, practice and observance”. Despite the fact that the applicant associations were never banned, the terms used by the State to describe the Osho movement had “negative consequences for them”. The dissent noted that such “interference was not prescribed by law” and the government failed to submit any proof that these religious communities were a danger to society. Under such circumstances, the government's statements represented an interference with the right to religious freedom contrary to the obligation of neutrality and cannot be justified as “prescribed by law” and “necessary in a democratic society”.
Judge Kalaydjieva determined that, in the absence of data on any specific risks, State participation “in the public discussion of beliefs” was “in contrast with the principle of State neutrality in religious matters”. The dissent noted there was no evidence that “prior to distributing warnings and information using the impugned expressions the authorities attempted to verify whether the applicants' activities were harmful to the population or to public safety”. Therefore, in his opinion, the interference with freedom of religion “was in pursuit of or proportional to any of the legitimate aims under Article 9 § 2 of the Convention”.
Conclusion
This case is significant because it confirms that the European Court of Human Rights considers that the right to religious pluralism guaranteed by Article 9 imposes limitations on government information campaigns regarding minority faiths.
The Human Rights Court noted with approval and relied on the German Constitutional Court’s prohibition of the State’s use of certain pejorative adjectives designed to stigmatize targeted faiths in order to reach its decision. The decision makes it clear that statements by government officials and government entities employing terms such as “pseudo-religious” and “destructive” and charging that members of so-called “sects” are manipulated – statements and charges still employed in government reports in some States such as France and Belgium – are not justified and infringe on the principles of religious neutrality and religious pluralism at the heart of Article 9.
Last Updated ( Friday, 14 November 2008 )
Analysis of the European Court of Human Rights Decision- Austria
Wednesday, 24 September 2008
Expert Committee on
Legislation and Implementation
Analysis of the
European Court of Human Rights Decision:
Religionsgemeinschaft der Zeugen Jehovas and others v. Austria
On 31 July 2008, the European Court of Human Rights (ECHR) issued a important decision regarding religious freedom and religious registration laws in the case Religionsgemeinschaft der Zeugen Jehovas and others v. Austria.
Jehovah’s Witnesses (JW) had filed an application complaining on two points: first they have been denied registration and therefore the right to become a legal entity for 20 years (even though they had obtained it when the application was filed) and second, once they were officially registered, they were denied the more consolidated status of “religious society” with its special privileges because they did not fulfil the 10 year registration requirement per the law.
The decision articulated around these arguments is therefore two fold: first the Court ruled on the alleged violation of Article 9 read (right to religious freedom) in conjunction with Article 11 (right of association) because of the non registration, and then on the alleged violation of Article 9 read in conjunction with Article 14 (right to not be discriminated against) because of the discriminatory refusal to be granted “religious society” status.
As regards Article 9 read in conjunction with Article 11:
Article 9 read in conjunction with Article 11 infers that the right of association applies to religious followers and that religious freedom must also be guaranteed through the autonomy of religious communities. The Court reinstated its jurisprudence in this regard:
“Since religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is, thus, an issue at the very heart of the protection which Article 9 affords (see Hasan and Chaush, cited above, § 62).”
The European Court has constantly ruled that religious communities should be granted the right to register in order to be able to conduct their affairs fairly.
As the OSCE reminded in its Guidelines for the Review of Legislation pertaining to Religion and Beliefs:
“Because of the typical importance of legal personality, a series of decisions of the European Court of Human Rights recognized that access to such a status is one of the most important aspects of the right to association,1 and that the right to association extends to religious associations. Undue restrictions on the right to legal personality are, accordingly, inconsistent with both the right to association and freedom of religion or belief”.
In the present case, JW submitted that the refusal of the Austrian authorities to grant them legal personality by conferring on them the status of a religious society violated their right to freedom of religion. In 1978, some of the applicants applied for recognition of JW as a religious society under the 1874 Recognition Act, thereby seeking to have legal personality. After complex proceedings, on 20 July 1998 JW was granted legal personality under the Religious Communities Act, which had been passed on 10 January 1998.
The Court had to determine first whether there had been an interference with the applicants’ right to freedom of religion, and then whether these limitations were acceptable under Article 9.2 of the Convention.
JW complained that due to the refusal of the Austrian authorities to grant legal personality until 1998, JW could not have been established as a legal entity and, thus, could not have entered into legal relations, concluded contracts or acquired assets. Thus, they could not hire the necessary religious ministers and were not entitled to perform their pastoral work for believers in hospitals or prisons.
The Government maintained that there had been no interference with the applicants’ rights under Article 9 because JW had eventually been granted legal personality and the members of the Jehovah’s Witnesses had not been hindered in practising their religion individually and could have set up an association having an organisational structure and legal personality.
The Court disagreed and ruled that the fact that no instances of interference with the community life of the Jehovah’s Witnesses have been reported during that period and that the JW’s lack of legal personality might have been compensated in part by running auxiliary associations was not decisive and decided that there had been an interference with the applicant’s rights.
The Court then found that, although the limitations were prescribed by law and pursued a legitimate aim of protection of public order and safety, they were not necessary in a democratic society. It underlined that some 20 years had elapsed until legal personality was eventually conferred on JW.
Since the Government had not relied on any “relevant” and “sufficient” reasons justifying this failure, it found that the denial of registration for 20 years went beyond what would have amounted to a “necessary” restriction on the applicants’ freedom of religion.
The Court reaffirmed its long standing jurisprudence on the importance of granting of legal personality to religious communities:
“Court reiterates that the autonomous existence of religious communities is indispensable forpluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords (see Hasan and Chaush, cited above, § 62).”
Considering the importance of such right to operate as a legal entity, the Court ruled in the present case that:
“There is an obligation on all of the State’s authorities to keep the time during which an applicant waits for conferment of legal personality for the purposes of Article 9 of the Convention reasonably short”.
As regards Article 9 read in conjunction with Article 14:
Article 9 read in conjunction with Article 14 infers that nobody can be discriminated on the basis of one’s religion or religious beliefs.
The Court restated in the present decision its interpretation of this principle:
“Moreover, a difference of treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (ibid., § 30).”
The applicants submitted that the status of a religious community finally conferred upon JW in 1998 was inferior to the status held by religious societies, as religious communities were subject to more severe State control in respect of their religious doctrine, their rules on membership and the administration of their assets pursuant to the 1998 Religious Communities Act.
The applicants further complained of the discriminatory nature of section 11 of the 1998 Religious Communities Act. This provision amended the 1874 Recognition Act in that it introduced further requirements for recognition as a religious society. In particular, it requires the existence of the religious association for at least twenty years in Austria and for at least ten years as a registered religious community; a minimum number of two adherents per thousand members of the Austrian population (at the moment, this means about 16,000 persons); the use of income and other assets for religious purposes, including charity activities; a positive attitude towards society and the State; and no illegal interference as regards the association’s relationship with recognised or other religious societies.
The Court first observed that under Austrian law, religious societies enjoy privileged treatment in many areas, such as exemption from military service and civilian service, reduced tax liability or exemption from specific taxes, facilitation of the founding of schools, and membership of various boards. Given the number of these privileges and their nature, in particular in the field of taxation, the advantage obtained by religious societies is substantial and this special treatment undoubtedly facilitates a religious society’s pursuance of its religious aims. Therefore, the obligation under Article 9 of the Convention incumbent on the State’s authorities to remain neutral in the exercise of their powers in this domain requires therefore that all religious groups must have a fair opportunity to apply for this status and the criteria established must be applied in a non-discriminatory manner.
The Court found that there was no doubt that Article 14 of the Convention, taken in conjunction with Article 9, was applicable in the present case.
The Court then noted that the Federal Minister for Education and Cultural Affairs, on 1 December 1998, dismissed the request for recognition of JW as a religious society, on the ground that it had not existed as a registered religious community for a minimum of ten years.
It is important to note that the issue here at stake is different from that of registration under examination in the first part of the case, as JW had already been granted registration as religious community. It refers to the accession to a higher level of recognition by the Austrian authorities.
In this regard, under international human rights standards, registration as legal entity represents the base level statusallowing religious entities to carry out their affairs fairly and the granting of which allows no differential treatment, whereas more consolidated or upper level status such as financial aids or tax exemption can be granted on a more discretionary basis. The ODIHR Background Paper 1999/4 presented at the OSCE Review Conference in September 1999 addressed this issue2:
“So long as base level entities have the full measure of freedom to carry out their affairs - a vital caveat - it seems unlikely that the differential treatment accorded "upper tier" entities will be held to violate core international religious freedom standards. It is of course important that such "upper tier" schemes be implemented in ways that are sensitive to the rights and equality concerns of smaller religious groups. But given the prevalence of such systems, and the importance of the consensus in OSCE affairs, it is reasonable to expect that the OSCE commitments requiring that "communities of believers [be given] ... recognition of the status provided for them in their respective countries" will be deemed to be satisfied by granting access to "base level" entities.”
However, the Court found in the present case 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 regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs (see Metropolitan Church of Bessarabia and Others, cited above, § 116).
Such a waiting period therefore called for particular scrutiny on the part of the Court.
Finally, the Court accepted that, “in exceptional circumstances”, a period might be necessary before the granting of such more consolidated status, “such as would be in the case of newly established and unknown religious groups”.
However, it found that it hardly appeared justified “in respect of religious groups with a long-standing existence internationally which are also long established in the country and therefore familiar to the competent authorities, as is the case with the Jehovah’s Witnesses”. In respect of such a religious group, the authorities should be able to verify whether it fulfils the requirements of the relevant legislation within a considerably shorter period.
In addition, the JW maintained that the government did not really deem that waiting period necessary since the Coptic Orthodox Church was granted the status of religious society by a specific law in 2003 whereas this Church had only existed in Austria since 1976 (so 17 years of existence instead of 20 per the law) and had been registered as a religious community in 1998 (5 years of registration instead of 10 per the law). The Court found that this fact showed that the Austrian State did not consider the application on an equal basis of such a waiting period to be an essential instrument for pursuing its policy in that field, and concluded to violation of Articles 9 and 14.
[1]Sidiropoulos v. Greece (1998); United Communist Party of Turkey v. Turkey (1998); Gorzelik v. Poland, § 55 (2001).
2“Freedom of religion or belief: Laws affecting the structuring of religious communities” by Cole Durham
