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The European Court of Human Rights and Freedom of Religion or Belief

Selected case-law of the European Court of Human Rights on Freedom of Religion (art.9 of the European Convention of Human Rights) divided by issue.

 

1. Religious symbols and clothing

Lautsi and Others v. Italy - 18 March 2011 (Grand Chamber)

The applicant’s children attended a state school where all the classrooms had a crucifix on the wall, which she considered contrary to the principle of secularism by which she wished to bring up her children. After exhausting domestic remedies, the applicant complained before the Court that the display of the crucifix in the State school attended by her children was in breach of Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights and of Article 2 (right to education) of Protocol No. 1 to the Convention.

In its Grand Chamber judgment, the European Court of Human Rights held that there had been no violation of Article 2 (right to education) of Protocol No. 1 to the European Convention on Human Rights, and that no separate issue arose under Article 9 (freedom of thought, conscience and religion) of the Convention. It found in particular that the question of religious symbols in classrooms was, in principle, a matter falling within the margin of appreciation of the State – particularly as there was no European consensus as regards that question – provided that decisions in that area did not lead to a form of indoctrination, as in this case.

S.A.S. v. France - 26 June 2014

This case concerned the complaint of a French national that she is no longer allowed to wear the full-face veil in public following the entry into force, on 11 April 2011, of a law prohibiting the concealment of one’s face in public places. The applicant is a devout Muslim and in her submissions she said that she wore the burqa and niqab in accordance with her religious faith, culture and personal convictions. She also emphasised that neither her husband nor any other member of her family put pressure on her to dress in this manner. The applicant added that she wore the niqab in public and in private, but not systematically. She was thus happy not to wear the niqab in certain circumstances but wished to be able to wear it when she chose to do so. Lastly, her aim was not to annoy others but to feel at inner peace with herself.

The Court held that there had been no violation of Article 8 (right to respect for private and family life), Article 14 (prohibition of discrimination) and Article 9 (right to respect for freedom of thought, conscience and religion) of the Convention. It emphasised in particular that respect for the conditions of “living together” was a legitimate aim for the measure at issue and that, particularly as the State had a lot of room for manoeuvre (“a wide margin of appreciation”) as regards this general policy question on which there were significant differences of opinion, the ban imposed by the Law of 11 October 2010 did not breach the Convention.

Dahlab v. Switzerland - 15 February 2001 (decision on the admissibility)

The applicant, a primary-school teacher who had converted to Islam, complained of the school authorities’ decision to prohibit her from wearing a headscarf while teaching, eventually upheld by the Federal Court in 1997. She had previously worn a headscarf in school for a few years without causing any obvious disturbance.

The Court declared the application inadmissible (manifestly ill-founded), holding that the measure had not been unreasonable, having regard in particular to the fact that the children for whom the applicant was responsible as a representative of the State were aged between four and eight, an age at which children were more easily influenced than older pupils.


2. Places of worship

Ouardiri v. Switzerland and Association Ligue des Musulmans de Suisse and Others v. Switzerland 28 June 2011 (decisions on the admissibility)

The applicants – in the first case, a private individual of the Muslim faith who works for a foundation active in building relations between Islam and the rest of the world and, in the second case, three associations and a foundation whose common focal point is the Muslim faith – submitted that the prohibition on building minarets amounted to a violation of religious freedom and to discrimination on the ground of religion.

The Court declared the applications inadmissible (incompatibles ratione personae), on the ground that the applicants could not claim to be the victims of a violation of the Convention. As the applications were solely intended to challenge a constitutional provision applicable in a general manner in Switzerland, the Court considered in particular that the applicants had not shown that there were any highly exceptional circumstances capable of conferring victim status on them. On the contrary, their applications resembled an “actio popularis” aimed at having the compatibility of the constitutional provision with the Convention reviewed in abstracto.

Furthermore, it was clear from a Federal Court judgment of 21 January 2010, concerning the compatibility of a constitutional provision with the Convention, that the Swiss courts would be able to review the compatibility with the Convention of any future refusal to allow the construction of a minaret.


3. Conscientious objection

Erçep v. Turkey - 22 November 2011 (Chamber judgment)

In this case, the applicant, a Jehovah’s Witness, refused to perform his military service. Under the relevant legislation, persons who failed to report for duty when called for military service were regarded as deserters. He was sentenced to several terms of imprisonment. In 2004 the military court decided to impose an aggregate sentence of seven months and fifteen days’ imprisonment. After serving five months in prison, the applicant was released on licence. The applicant complained in particular about his successive convictions for refusing to serve in the armed forces.

The Court held that there had been a violation of Article 9 (freedom of thought, conscience and religion) of the Convention in the present case. It noted in particular that the applicant was a member of the Jehovah’s Witnesses, a religious group whose beliefs included opposition to military service, irrespective of any requirement to carry weapons. The applicant’s objections had therefore been motivated by genuinely held religious beliefs which were in serious and insurmountable conflict with his obligations in that regard. Conscientious objectors having no option but to refuse to enrol in the army if they wished to remain true to their beliefs, in doing so they further laid themselves open to a kind of “civil death” because of the numerous prosecutions which the authorities invariably brought against them and the cumulative effects of the resulting criminal convictions, the continuing cycle of prosecutions and prison sentences and the possibility of facing prosecution for the rest of their lives. Such a system failed to strike a fair balance between the interests of society as a whole and those of conscientious objectors. Accordingly, the penalties imposed on the applicant, without any allowances being made for the dictates of his conscience and beliefs, could not be regarded as a measure necessary in a democratic society.

Other highly debated issues at the European Court of Human Rights under freedom of religion or belief are related to recognition; organisation and leadership of churches and religious communities; refusal to provide public services in religious matters; religious holidays; obligation to disclose religious convictions; proselytism.

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