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Individual and Group Religious Freedom in the European Court of Human Rights: Cracks in the Intellectual Architecture

Published online by Cambridge University Press:  24 April 2015

Carolyn Evans
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Extract

The Evolution of Religious Freedom in the European Court of Human Rights

Article 9 of the European Convention on Human Rights, which protects religious freedom, looked for many decades as though it was going to be effectively a dead letter. The European Court of Human Rights (“the Court”) did not find a violation of Article 9 until the case of Kokkinakis v. Greece which was decided only seventeen years ago, in 1993. Even after that seminal decision, religious freedom cases were still relatively rare for several years; in 2001, there had been fewer than thirty Court cases on Article 9. However, in the last decade the case law has expanded significantly; and from 2001 to 2010 there have been more than sixty additional cases. Thus, in a relatively short period, the Court has been pushed to develop a jurisprudence of religious freedom to deal with increasingly complex and controversial cases. As the case law has multiplied and the issues have diversified, however, it has become clear that the Court has not yet developed a sufficiently coherent and principled approach to this area. So far, its approach has proved of very limited utility to individuals making claims of religious freedom.

This is not to suggest that the Court has played no role in the protection of religious freedom in Europe. Indeed, in recent years, it has arguably played an increasingly positive role, particularly in cases involving group religious rights. However, this jurisprudence has not translated into greater protection for religious individuals in many instances.

Type
Aals Symposium
Information
Journal of Law and Religion , Volume 26 , Issue 1 , 2010 , pp. 321 - 343
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2010

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References

1. Kokkinakis v. Greece, App. No. 14307/88, 260 Eur. Ct. H.R. (ser A) at 1 (1993).

2. The decisions of the Court can be found at the European Court of Human Rights home page, http://www.echr.coe.int/echr/Homepage_EN (last visited Aug. 15, 2010).

3. For more detailed discussions of the case-law of the European Court of Human Rights on religious freedom issues, see Evans, Carolyn, Freedom of Religion under the European Convention on Human Rights (Oxford Univ. Press 2001)CrossRefGoogle Scholar; Evans, Malcolm, Religious Liberty and International Law (Cambridge Univ. Press 1997)CrossRefGoogle Scholar; Taylor, Paul, Freedom of Religion: UN and European Human Rights law and Practice (Cambridge Univ. Press 2005)CrossRefGoogle Scholar.

4. This is not to say that the track record of the Court has been uniformly dismal when it comes to religious freedom claims of individuals, particularly in cases of egregious breach. See, e.g., Masaev v. Mol. (Unreported, Eur. Ct. H.R., May 12, 2009) where the Court held that the conviction of a Muslim man for holding prayers inside his house was a breach of the Convention.

5. See, e.g., Müller v. F.R.G., App. No 12986/04; Reuter v. F.R.G., App. No. 39775/04. A useful list of pending decisions with a religious freedom aspect can be found at Strasbourg Consortium, http://strasbourgconsortium.org (last visited June 15, 2010).

6. Religionsgemeinschaft der Zeugen Jehovas v. Austria, 48 Eur. H.R. Rep. 17 (2009) (“Jehovah's Witnesses v. Austria”). See also Löffelmann v. Austria, App. No 42967/98 (Unreported, Eur. Ct. H.R., First Section, June 12, 2009), Gütl v. Austria, App. No 49686/99 (Unreported, Eur. Ct. H.R., First Section, June 12, 2009), Lang v. Austria, App. No 28648/03 (Unreported, Eur. Ct. H.R., First Section, Mar. 19, 2009).

7. Church of Scientology Moscow v. Russ., 46 Eur. H.R. Rep. 16 (2008).

8. Moscow Branch of the Salvation Army v. Russ., 44 Eur. H.R. Rep. 46 (2007) (“Salvation Army v. Russia”).

9. Biserica Adevărat Ortodoxă din Mold. v. Mold., App. No 952/03 (Unreported, Eur. Ct. H.R., Fourth Section, Feb. 27, 2007) (“True Orthodox Church v. Moldova”).

10. Salvation Army v. Russ. 44 Eur. H.R. Rep. at 916.

11. See, e.g., Church of Scientology Moscow v. Russ., 46 Eur. H.R. Rep. at 313, 316.

12. Salvation Army v. Russ., 44 Eur. H.R. Rep. at 916.

13. Id.

14. Id. at 918-19.

15. Church of Scientology Moscow v. Russ., 46 Eur. H.R. Rep. at 309-12. The Church of Scientology made five applications before the time for re-registration expired. It made five more subsequent to this; and they were rejected for a variety of reasons, including the fact that the time for re-registration had expired.

16. Id. at 311.

17. Id. at 311-12.

18. Id. at 312.

19. Id. at 313.

20. Id. at 319.

21. Id.

22. True Orthodox Church v. Mold., App. No. 952/03, at ¶ 7, 11-12.

23. Id. at ¶¶ 8-9, 16.

24. Id. at ¶ 15.

25. Id. at ¶ 26.

26. Id. at ¶¶ 29-30.

27. Id. at ¶¶ 31-38.

28. See Evans, supra note 3, at 136-42.

29. Jehovah's Witnesses v. Austria, 48 Eur. H.R. Rep. at 443.

30. Id. at 441-42.

31. Id.

32. Id. at 442, 446.

33. Id. at 446.

34. Salvation Army v. Russ., 44 Eur. H.R. Rep. at 927 (2007).

35. Id. at 927-28.

36. Id. at 928, referring to Metropolitan Church of Bessarabia v. Mold. 35 Eur. H.R. Rep. 13, 336, 338-39 (2002) and to Hasan & Chaush v. Bulg., 34 Eur. H.R. Rep. 55,1358-59 (2002).

37. Jehovah's Witnesses v. Austria, 48 Eur. H.R. Rep. at 439. See also Salvation Army v. Russ., 44 Eur. H.R. Rep. at 928; Church of Scientology Moscow v. Russ., 46 Eur. H.R. Rep. at 323; True Orthodox Church v. Mold., App. No. 952/03, at ¶ 34.

38. Salvation Army v. Russ., 44 Eur. H.R. Rep. at 928 (2007).

39. Id.

40. Id. at 928-9.

41. Id. at 934.

42. Id. at 935.

43. Church of Scientology Moscow v. Russ., 46 Eur. H.R. Rep. at 325.

44. True Orthodox Church v. Mold., App. No. 952/03, at ¶¶ 36-7.

45. Case of Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, App. No. 40825/98 (2008).

46. Id at ¶¶ 84 & 98.

47. Id. at ¶¶ 97-98.

48. Dahlab v. Switz., 2001-V Eur. Ct. H.R. 449.

49. Şahin v. Turk., 2005-XI Eur. Ct. H.R. 175.

50. Dogru v. Fr., 49 Eur. H.R. Rep 8 (2009).

51. Dahlab v. Switz., 2001-V Eur. Ct. H.R. at 451.

52. Id. at 459.

53. Id. at 463.

54. For a more detailed analysis of the Dahlab and Şahin cases, see Evans, Carolyn, The 'Islamic Headscarf’ in the European Court of Human Rights, 7 Melb. J. Int'l L. 52 (2006)Google Scholar.

55. Dogru v. Fr., 49 Eur. H.R. Rep at 193.

56. Id. at 194-200.

57. This is a common feature of Article 9 cases. See Evans, supra note 3, at 134.

58. Emphasis added.

59. Dogru v. Fr., 49 Eur. H.R. Rep at 197-98; Şahin v. Turk. 2005-XI Eur. Ct. H.R. at 205.

60. Şahin v. Turk., 2005-XI Eur. Ct. H.R. at 225-26 (Tulkens J, dissenting).

61. See Şahin v. Turk., 2005-XI Eur. Ct. H.R. 175.

62. Dahlab v. Switz., 2001-V Eur. Ct. H.R. at 458; Dogru v. Fr., 49 Eur. H.R. Rep at 8, 197-98; Şahin v. Turk., 2005-XI Eur. Ct. H.R. at 206-07.

63. Şahin v. Turk., 2005-XI Eur. Ct. H.R. at 206.

64. Dahlab v. Switz., 2001-V Eur. Ct. H.R. at 458; Dogru v. Fr., 49 Eur. H.R. Rep at 197-98; Şahin v. Turk., 2005-XI Eur. Ct. H.R. at 206-07.

65. Dogru v. Fr., 49 Eur. H.R. Rep at 196-97.

66. Handyside v. U.K., 24 Eur. Ct. H.R. (ser. A) at 22 (1976).

67. Id. at 23.

68. Dahlab v. Switz., 2001-V Eur. Ct. H.R. at 463; Dogru v. Fr., 49 Eur. H.R. Rep at 200 (2009); Jehovah's Witnesses v. Austria, 48 Eur. H.R. Rep. at 445-46; Şahin v. Turk., 2005-XI Eur. Ct. H.R. at 214.

69. Şahin v. Turk., 2005-XI Eur. Ct. H.R. at 192-94.

70. Id.

71. Id. at 192.

72. Id. at 221 (Tulkens J, dissenting).

73. Dahlab v. Switz., 2001-V Eur. Ct. H.R. at 459, 463.

74. Şahin v. Turk., 2005-XI Eur. Ct. H.R. at 204.

75. Id.

76. Id.

77. Id.

78. See, e.g., de Codes, Rosa María Martínez, The Contemporary Form of Registering Religious Entities in Spain, 1998 BYU L. Rev. 369Google Scholar; Črnič, Aleš, New Religions in ‘New Europe’, 49 J. Church & St. 517 (2007)CrossRefGoogle Scholar; Durham, W. Cole Jr. & Ferrari, Silvio, Laws on Religion and the State in Post-Communist Europe (Peeters 2004)Google Scholar; Motilla, Augustín, Religious Pluralism in Spain: Striking the Balance Between Religious Freedom and Constitutional Rights 2004 BYU L. Rev. 575Google Scholar; Richardson, James, Regulating Religion: Case Studies from Around the Globe (Kluwer Academic/Plenum Publishers 2004)CrossRefGoogle Scholar.

79. Sadurski, Wojciech, Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments, 9 Human Rights L. Rev. 397 (2009)CrossRefGoogle Scholar.

80. Id. at 429-31, 435.

81. True Orthodox Church v. Mold., App. No. 952/03, ¶¶ 7-18.

82. Church of Scientology Moscow v. Russ., 46 Eur. H.R. Rep. at 320.

83. Dahlab v. Switz., 2001-V Eur. Ct. H.R. at 458; Dogru v. Fr., 49 Eur. H.R. Rep at 197-98 (2009); Şahin v. Turk., 2005-XI Eur. Ct. H.R. 175, 206-07.

84. Protocol No. 11 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 155 (entered into force Nov. 1, 1998).

85. Sadurski, supra note 79, at 406.

86. However, dissents and separate but concurring opinions are permitted.

87. The judgments in the Article 9 field tend to repeat word for word a series of core principles in several cases and spend relatively little time analyzing the specific aspects of the case under examination. For example, in the headscarf cases, key elements of the Dahlab judgment are repeated even though a central element of that judgment was the influence that religious symbolism might have on young, vulnerable children—a factor that was not present in the subsequent cases and might have been thought to shift the balance.

88. The headscarf cases need not be conceptualized in this way. Instead, the laws could be said to be overtly discriminatory by limiting the capacity of people of one religion to wear religiously required clothing while those from other religions or no religions could select their clothing freely. However, the Court does not favor this form of analysis; thus, in this article, I adopt the same assumption in order to put the case in a way that casts the Court's analysis in the best light possible.

89. Supra note 1, at 17-18.

90. Dogru v. Fr., 49 Eur. H.R. Rep at 196-98; Şahin v. Turk., 2005-XI Eur. Ct. H.R. at 202-05.

91. Church of Scientology Moscow v. Russ., 46 Eur. H.R. Rep. at 320.

92. Valsamis v. Greece, 1996-VI Eur Ct. H.R. 2313; Efstratiou v. Greece, 1996-VI Eur. Ct. H.R. 2347.

93. Jewish Liturgical Ass'n Cha'are Shalom Ve Tsedek v. Fr., 2000-VII Eur. Ct. H.R. 231.

94. X v. F.R.G., App. No. 2413/65, Collection 1, 8 (1966). Note that this case was heard by the European Commission of Human Rights rather than the Court itself.

95. For example, when the United Kingdom's House of Lords was called on to judge the compatibility of restrictions on wearing a particularly type of Islamic clothing at a public school with the Human Rights Act 1998 (U.K.), it relied significantly on the headscarf jurisprudence of the European Court of Human Rights as setting out the relevant standards. See R (SB) v. Governors of Denbigh High [2007] 1 AC 100, 116-17 (Lord Bingham), 123-25 (Lord Hoffmann), 130-31 (Lord Scott), 133-34 (Baroness Hale).