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Symposium Introduction: The Freedom of Religion and Belief Jurisprudence of the European Court of Human Rights: Legal, Moral, Political and Religious Perspectives

Published online by Cambridge University Press:  24 April 2015

Brett G. Scharffs
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Extract

During the past fifteen years, the European Court of Human Rights has been engaging seriously with the freedom of religion and belief under Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In many ways, the scope and ambition of the Court's jurisprudence has been breathtaking, especially when viewed from the United States; but many questions have begun to emerge about whether the Court has established an intellectual and conceptual architecture that is up to the task of dealing with the increasingly complex cases involving religious freedom that the Court is currently facing and will soon face. Accordingly, several sections of the Association of American Law Schools sponsored a program in January, 2010 entitled, “The Freedom of Religion and Belief Jurisprudence of the European Court of Human Rights: Legal, Moral, Political and Religious Perspectives.”

Type
Aals Symposium
Information
Journal of Law and Religion , Volume 26 , Issue 1 , 2010 , pp. 249 - 260
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2010

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References

1. The “European Convention on Human Rights,” as the treaty is most commonly called, was open for signature by members of the Council of Europe in Rome on November 4, 1950, and entered into force on September 3, 1953. As of April 1, 2010, forty-seven member States had ratified the treaty. See European Court of Human Rights: Questions Answers 3, http://www.echr.coe.int/NR/rdonlyres/37C26BF0-EE46-437E-B810-EA900D18D49B/0/ENG_QR.pdf (last visited July 15, 2010).

2. The program was co-sponsored by the Section on Law and Religion, the Section on Islamic Law, and the Section on Jewish Law at the Association of American Law Schools Annual Meeting: Transformative Law, New Orleans, Louisiana, January 6-10, 2010.

3. Dogru v. Fr., App. No. 27058/05, Eur. Ct. H.R. (2008).

4. Leyla Şahin v. Turk., App. No. 44774/98, Eur. Ct. H.R. (2005).

5. Metropolitan Church of Bessarabia v. Mold., App. No. 45701/99, Eur. Ct. H.R. (2001); Moscow Branch of the Salvation Army v. Russ., App. No. 72881/01, Eur. Ct. H.R. (2006); Church of Scientology Moscow v. Russ., Application No. 18147/02, Eur. Ct. H.R. (2007).

6. Serif v. Greece, App. No. 38178/97, Eur. Ct. H.R. (1999).

7. Kokkinakis v. Greece, App. No. 14307/88, Eur. Ct. H.R. (1993); Larissis v. Greece, App. Nos. 23372/94,26377/94, and 26378/94, Eur. Ct. H.R. (1998).

8. Otto-Preminger-Institut v. Austria, App. No. 13470/87, Eur. Ct. H.R. (1994); Wingrove v. U.K., App. No. 17419/90 Eur. Ct. H.R. (1996).

9. Much of the information in this introduction is based on the web site of the European Court of Human Rights, http://www.echr.coe.int/ECHR/EN/Header/The+Court/Introduction/Information+documents/.

10. Id.

11. See Kozlowski, Dan, “For the Protection of the Reputation or Rights of Others”: The European Court of Human Rights' Interpretation of the Defamation Exception in Article 10(2), 11 Comm. L. & Pol'y 133, 176–77 (2006)Google Scholar (criticizing the European Court of Human Rights' handling of criminal defamation cases as being overly deferential to national sovereignty and citing Castells v. Spain, 236 Eur. Ct. H.R. (ser. A) (1992) as an example of such deference). See also Benvenisti, Eyal & Downs, George W., Court Cooperation, Executive Accountability, and Global Governance, 41 N.Y.U. J. Int'l L. & Pol. 931, 950 n. 36 (2009)Google Scholar (stating that the European Court of Human Rights has been “criticized for its timidity in reviewing governmental policies in situations of national emergencies”).

12. Member States of the Council of Europe (parties to the ECHR) include Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, The Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, “The Former Yugoslav Republic of Macedonia,” Turkey, Ukraine, and the United Kingdom.

13. See Convention for the Protection of Human Rights and Fundamental Freedoms art. 1, Nov. 4, 1950, 213 U.N.T.S. 222, available at http://www1.umn.edu/humanrts/instree/z17euroco.html [hereinafter ECHR] (declaring that “[p]arties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”). See also The European Court of Human Rights: The ECHR in 50 Questions 3 (2009), http://www.echr.coe.int/NR/rdonlyres/5C53ADA4-80F8-42CB-B8BD-CBBB781F42C8/0/FAQ_ENG_A4.pdfGoogle Scholar [hereinafter FAQ] (last visited Aug. 13, 2010), which reads, in pertinent part: “States that have ratified the Convention, also known as ‘States Parties’ have undertaken to secure and guarantee to everyone within their jurisdiction, not only their nationals, the fundamental civil and political rights defined in the Convention.” Id. at 3.

14. See FAQ, supra note 13, at 10, declaring that the ECHR receives over 30,000 new applications every year.

15. See ECHR, supra note 13, art. 21, which reads “The judges … must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.” See also Procedure for Electing Judges to the European Court of Human Rights (Jun. 15, 2010), available at http://assembly.coe.int/CommitteeDocs/2010/20100504__ajdoc12rev.pdf, for more information on the selection process used to determine which candidates will be chosen as a judge on the Court.

16. See FAQ, supra note 13, at 4, stating that there are three main “formations” that hear cases. First, applications are reviewed by a three-judge Committee for admissibility and, if voted unanimously to be “manifestly inadmissible,” they are disposed of. Second, those applications that are accepted are typically assigned to a seven-judge “Chamber” which decides cases based on majority vote. Finally, the Grand Chamber, consisting of seventeen judges hears cases that have either been “relinquished” to it by a Chamber or “when a request for referral has been accepted.”

17. See European Court of Human Rights: Questions and Answers 4, http://www.echr.coe.int/NR/rdonlyres/37C26BF0-EE46-437E-B810-EA900D18D49B/0/ENG_Questions_and_Answers.pdf, (last visited Aug. 13, 2010), under the following heading: “Are there any procedures that must be followed beforehand in the national courts?”

18. Id. at 6, which reads “The Court is not empowered to overrule national decisions or annul national laws.” The article goes on to explain that the Court cannot act as a court of appeal to national courts.

19. In the case of X v. France, App. No. 9587/81, Eur. Ct. H.R. (1982) at 238-39, the Court explains that the Convention regulates only events occurring after a Contracting State's ratification of the Convention. Where a Contracting State's declaration of recognition of the right of individual petition is subsequent to the date of ratification, the Court may still deal with events occurring prior to that declaration (but not prior to ratification) unless the State specifies in its declaration that it recognizes the competence of the Court to receive individual petitions only concerning acts or events subsequent to the deposit of the declaration.

20. See FAQ, supra note 13, at 9, under the headings “What are the consequences of a judgment finding a violation?” and “What is just satisfaction?”

21. See ECHR, supra note 13, art. 46.

22. See Robertson, A.H. & Merrills, J.G., Human Rights in Europe: A Study of the European Convention on Human Rights 5 (Manchester Univ. Press 1993) (1963)Google Scholar (stating that the origins of the Convention go back to a time prior to the Council of Europe when the “Congress of Europe” met at The Hague in 1948 and that many of those who participated in the Congress of Europe later became members of the Consultative Assembly of the Council of Europe). See also Archer, Clive, Organizing Western Europe 43 (Edward Arnold 1990)Google Scholar (characterizing the people comprising the Congress of Europe meeting at the Hague in 1948 thusly: “[A] gathering of almost a thousand people from all over Europe, representing many aspects of life—workers, intellectuals, politicians [and] churchmen”).

23. See FAQ, supra note 13, at 3.

24. See Goldhaber, Michael, A People's History of the European Court of Human Rights 4–5 (Hovav, Adi ed., Rutgers Univ. Press 2007)Google Scholar, which reads in part, “[Before 1998] cases were initially heard by the European Commission on Human Rights, which would issue a nonbinding report. Cases could then be referred for judgment to the European Court of Human Rights (ECHR). In 1998 the Commission was eliminated.”

25. Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, art. 1, May 11, 1994, Europ. T.S. 155, which announced that Protocol No. 11 would alter the basic text of articles 19-21 of the ECHR, with article 19 of the ECHR establishing the Court, art. 27 establishing committees, and articles 28 and 29 creating direct admissibility review of applications by committees and sometimes by chambers of the Court. See also the explanatory text to Protocol 11 provided by the Council of Europe on their website at http://conventions.coe.int/Treaty/en/Reports/Html/155.htm (last visited Aug. 13, 2010).

26. 50 Years of Activity: The European Court of Human Rights—Some Facts and Figures 4, http://www.echr.coe.int/NR/rdonlyres/ACD46A0F-615A-48B9-89D6-8480AFCC29FD/0/FactsAndFiguresEN2010.pdf.

27. Id.

28. See generally ECHR, supra note 13.

29. Id.

30. Id., specifically Article 9 entitled which lists as a basic human right the freedom of “thought, conscience and religion.”

31. See Rorive, Isabelle, Religious Symbols in the Public Space: In Search of a European Answer, 30 Cardozo L. Rev. 2669, 2673–74 (2009)Google Scholar, explaining that Article 9 is typically divided into two parts, one called the forum internum aspect and the other being sometimes referred to as the forum externum aspect, the latter of which involves the outward manifestation of one's religion.

32. See ECHR, supra note 13, art.9.

33. Id.

34. For an example, see Leyla Şahin v. Turk., 2005-XI Eur. Ct. H.R. 175, 196 wherein, as part of its analysis, the Court considered whether or not a ban on women wearing veils as a manifestation of their belief in Islam was “necessary in a democratic society.” See also Rorive, supra note 31, at 2675-76, stating that in all cases where the ECHR has dealt with bans on the wearing of the Islamic veil, it has held the bans to be valid under the Convention, reasoning in each that the State is the best judge of “whether the interference with the fundamental freedom is necessary in a democratic society.”

35. 50 Years of Activity, supra, note 26, at 16-17.

36. Id. A portion of Article 6 having to do with length of proceedings has resulted in more than 4,000 court decisions finding a violation; the right to fair trial, more than 3,000; property rights, over 2,000; liberty and security, over 1,600; private and family life, 650; inhumane or degrading treatment, over 600. A number of other provisions that are more closely related to freedom of religion and belief include freedom of expression, with 392; anti-discrimination, with 152; assembly and association, with ninety-eight; torture for comparison, has fifty-six; and then Article 9, relating to freedom of thought, conscience and religion, with thirty.

37. Kokkinakis v. Greece, App. No. 14307/88, Eur. Ct. H.R. (1993); Buscarini & others v. San Marino, App. No. 24645/94, Eur. Ct. H.R. (1999); Thlimmenos v. Greece, App. No. 34369/97, Eur. Ct. H.R. (2000); Leyla Şahin v. Turk., App. No. 44774/98, Eur. Ct. H.R. (2005); Ivanova v. Bulg., App. No. 52435/99, Eur. Ct. H.R. (2007).

38. Kokkinakis v. Greece, App. No. 14307/88, Eur. Ct. H.R. (1993) (conviction of Jehovah's Witness for proselytism was violation of Article 9).

39. For a more thorough discussion of the Court's usual approach in analyzing Article 9 claims, see Durham, W. Cole Jr. & Scharffs, Brett G., Law and Religion: National, International, and Comparative Perspectives 91–105 (Wolters Kluwer 2010)Google Scholar. See also van Dijk, Pieter, Theory and Practice of the European Convention on Human Rights (Van Hoof, Friedet al. eds., Kluwer Law Int'l 2006)Google Scholar; Evans, Carolyn, Freedom of Religion Under the European Convention of Human Rights (Oxford Univ. Press 2001)CrossRefGoogle Scholar.

40. The answer to this second question is almost always, “Yes,” although occasionally the Court has actually addressed issues by finding that a certain interference was not even prescribed by law. See, e.g., Hasan & Chaush v. Bulg., App. No. 30985/96, Eur. Ct. H.R. (2000) at ¶¶ 84-89 (finding that the interference in question was not “prescribed by law” in that it was “arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability.”) See Larissis & Others v. Greece, 1998- I Eur. Ct. H.R. 362, 378 which reads, in pertinent part: “[T]he law in question must be both adequately accessible to the individual and formulated with sufficient precision to enable him to regulate his conduct.”

41. Durham, W. Cole Jr., Facilitating Freedom of Religion or Belief Through Religious Association Laws, in Facilitating Freedom of Religion or Belief: A Deskbook 321, 362 n. 202 (Lindholm, Tore, Durham, W. Cole Jr., Tahzib-Lie, Bahia G. eds., Martinus Nijhoff 2004)Google Scholar.

42. For one statutory iteration of the familiar language used within the United States, please see the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1(a)(1)-(2), establishing that the government may not substantially burden, among other things, the exercise of religion by inmates, unless the burden is imposed pursuant to a “compelling governmental interest” and is accomplished by the “least restrictive means.” See also McKaskle, Paul L., The European Court of Human Rights: What it is, How it Works, and Its Future, 40 U.S.F. L. Rev. 1, 46–47 (2005)Google Scholar, discussing how the determination as to whether or not restrictions on individual freedoms imposed by a state are “necessary to a democratic state” hinges on proportionality.