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From Cartoons to Crucifixes: Current Controversies Concerning the Freedom of Religion and the Freedom of Expression before the European Court of Human Rights

Published online by Cambridge University Press:  24 April 2015

Malcolm D. Evans
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Extract

During the past five years, issues concerning the freedom of religion, and its relationship with the freedom of expression have received an ever higher profile in both the media and in political debate. The purpose of this article is to reflect on the approach taken by the European Court of Human Rights to some of the most significant of these issues. In a short article of this nature it is not possible to examine each of the issues in a comprehensive fashion, but by juxtaposing relatively brief overviews of these cases, some general insights regarding the current mood of the Court and the capacity of the Convention system to engage with ever more pressing issues will emerge. The main challenge appears to be the need to reconcile the Court's emphasis upon neutrality and impartiality, found in its more recent case law concerning state relations with religious associations, with the core value of respect, which has long dominated its approach in other areas. Its failure to address this challenge in an appropriate manner threatens the Court's ability to engage with emerging problems in a satisfactory fashion.

Type
Aals Symposium
Information
Journal of Law and Religion , Volume 26 , Issue 1 , 2010 , pp. 345 - 370
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2010

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References

1. See, e.g., the on-going controversy concerning the publication of another cartoon image of the Prophet by the Swedish artist Lars Vilks in Sweden in 2007, which led to Al-Qaeda placing a bounty on him. In 2010, a U.S. woman was indicted for alleged involvement in a plot to kill him, prompting the reprinting of the image in three Swedish newspapers. See, e.g., Texan ‘Jihad Jane’ accused of plot to murder artist who mocked Muhammad, The Times, Mar. 11, 2010, available at http://www.timesonline.co.uk/tol/news/worId/us_and_americas/article7057375.ece. Another high profile issue concerned the short film Fitna made by the right-wing Dutch politician Geert Wilders. In February 2009, he was invited by some members of the House of Lords to screen this film in the Palace of Westminster, but this plan was thwarted by his being refused entry to the country. Following a ruling by the Asylum and Immigration Tribunal in October 2009, see Netherlands [2009] UKAIT 00050), G.W. and Immigration Officer, Heathrow, Oct. 20, 2010, http://www.bailii.org/uk/cases/UKIAT/2009/0050.html, the ban on his entry was lifted and he was finally able to attend a screening of the film in March 2010. See, e.g., Geert Wilders to show anti-Koran film in Lords, The Times, Mar. 5, 2010, available at http://www.timesonline.co.uk/tol/news/world/europe/article7050372.ece.

2. Handyside v. U.K., App. No. 5943/72, 24 Eur. Ct. H.R. (ser. A) at ¶49 (1976).

3. Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A), at ¶ 31 (1993).

4. Otto-Preminger-Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) (1994), the approach in which has been followed, and continues to be followed, in numerous subsequent cases. See, e.g., Wingrove v. U.K. (No. 17419/90), 1996-V Eur. Ct. H.R., İ.A. v. Turk., no. 42571/98, 2005-VIII Eur. Ct. H.R., and cases cited in note 5 infra.

5. Otto-Preminger-Institut, supra note 4, at ¶ 47. See, e.g., Giniewski v. Fr. (No. 64016/00), 2006-1 Eur. Ct. H.R., (holding that there had been a breach of article 10 in convicting the applicant for publishing an article claiming that anti-semitic strands in Catholic thought had paved the way to the Holocaust). In Giniewski, the Court said that, whilst potentially shocking or offensive, “[t]he article in question [is] not ‘gratuitously offensive’ or insulting.” For a similar approach, see also Kutlular v. Turk. (No. 73715/01), Eur. Ct. H.R., (2008) (French).

6. Kokkinakis, supra note 3, at ¶ 48; Otto-Preminger-Institut v. Austria, 295-A Eur. Ct. H.R. (ser. A), at ¶ 47 (1994).

7. See, for example, Moscow Branch of the Salvation Army v. Russ., (No. 72881/01), 2006-XI Eur. Ct. H.R., at ¶ 92, at ¶ 92 where the Court said that “the freedom of religion … excludes any discretion on the part of the state to determine whether religious beliefs or the means used to express such beliefs are legitimate.”

8. See, e.g., Kosteski v. The former Yugoslav Republic of Macedonia, (No. 55170/00), Eur. Ct. H.R., at ¶ 39, (2006).

9. Arrowsmith v. U.K., App. No. 7050/75, 19 Eur. Ct. H.R. (ser. A) at 5, ¶ 71 (1978).

10. Otto-Preminger-Institut, supra note 4, at ¶ 49 (1994).

11. Id. at ¶ 47.

12. Id. at ¶ 49.

13. Id. at ¶ 47.

14. In Wingrove, supra note 4, at ¶ 52 (1996) (emphasis added), the Court said that individuals were under “a duty to avoid as far as possible an expression that is, in regard to objects of religious veneration, gratuitously offensive to others and profanatory.” See also İ.A., supra note 4; Murphy v. Ir., (No. 44179/98), 2003-IX. Eur. Ct. H.R. at ¶ 65. The state, however, does not appear to be under a duty to respond to such utterances per se.

15. Otto-Preminger-Institut, supra note 4, at ¶ 47 (1994).

16. “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” International Covenant on Civil and Political Rights art. 20(2), Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). For an important examination of the connections between Articles 19 and 20 of the ICCPR, see World Conference on Human Rights, Expert seminar on the links between articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR): “Freedom of expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence” (Geneva, 10 2-3, 2008),” UN Doc. A/HRC/10/31/Add.3 (Jan. 16, 2009) and associated papers, available at www2.ohchr.org/english/issues/opinion/articles1920_iccpr/Google Scholar.

17. European Convention on Human Rights (ECHR) art. 17, Nov. 4, 1950. For a recent examination of approaches to Hate Speech under the ECHR, see Weber, Anne, Manuel sur le discourse de haine (Martinus Nijhoff/Council of Europe 2009) (French)Google Scholar.

18. Norwood v. U.K. (dec), no 2313/03, 2004-XI. Eur. Ct. H.R., Nov. 16, 2004.

19. Id.

20. None of this, of course, applies to forms of physical expression or threats[?] that prevent or discourage believers from manifesting their beliefs through worship, teaching, practice and observance. In such situations, the state must indeed intervene to ensure that the freedom of religion or belief may be secured to all within their jurisdiction. See, e.g., 97 Members of the Gldani Congregation of Jehovah's Witnesses & Others v. Ga., no. 71156/01, 2007-V Eur. Ct. H.R.; Öllinger v. Austria, no. 76900/01, 2006-IX Eur. Ct. H.R.; Sergey Kuznetsov v. Russ., no. 10877/04, Eur. Ct. H.R., (2008).

21. A substantial literature has developed around these themes. See, in particular, Lewis, Tom, What not to Wear: Religious Rights, The European Court, and the Margin of Appreciation, 56 Int'l & Comp. L. Q. 395 (2007)CrossRefGoogle ScholarPubMed. For more general examinations of the issues involved from a legal and human rights perspective, see McGoldrick, Dominick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Hart Publg 2006)Google Scholar; Evans, Malcolm D., Manual on the Wearing of Religious Symbols in Public Areas (Martinus Nijhoff/Council Eur. Publishers 2009)Google Scholar. For a recent series of questioning reflections, see Lazreg, Marnia, Questioning the Veil: Open Letters to Muslim Women (Princeton Univ. Press 2009)CrossRefGoogle Scholar.

22. Leyla Şahin v. Turk. [GC] (No. 44774/98, 2005-XI Eur. Ct. H.R., at ¶ 99 (a point agreed on by the parties)).

23. Id. at ¶ 114.

24. Id. at ¶ 116.

25. Id. at ¶¶ 117-23.

26. See, e.g., Kurtulmus v. Turk, (dec.) (No 65500/01), 2006-II Eur. Ct. H.R.; Dogru v. Fr., (No. 27058/05), Eur. Ct. H.R., (2008); Kervanci v. Fr., (No. 31645/04), Eur. Ct. H.R., (2008).

27. Dahlab v. Switz. (dec.) (No. 42393/98), 2001-V Eur. Ct. H.R.

28. Id. at 13.

29. Id.

30. Leyla Şahin, supra note 22, at ¶ 115 and see also the Judgment of the Chamber, ¶¶ 107-09.

31. Id. (2004).

32. See, in particular, Refah Partisi (the Welfare Party) and Others v. Turk. [GC], (Nos. 41340/98, 41342/98, 41343/98 & 41344/98), 2003-II Eur. Ct. H.R., at ¶ 125 where the Court observed that

When the former theocratic regime was dismantled and the republican regime was being set up, Turkey opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice. Mindful of the importance for survival of the democratic regime of ensuring respect for the principle of secularism in Turkey, the Court considers that the Constitutional Court was justified in holding that Refah's policy of establishing sharia was incompatible with democracy.

33. See the Classroom Crucifix II Case, Bundesverfassungsgericht [BVerfG] [German Federal Constitutional Court] Oct. 8, 1995, 93 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (F.R.G.).

34. Lausti v. Italy (No. 30814/06), Eur. Ct. H.R., (2009).

35. The relevant provisions took the form of regulations which were not legal in nature, and so not susceptible to the jurisdiction of the Italian Constitutional Court. See id. at ¶¶ 12 & 26.

36. This merely affirmed earlier provisions applicable to the region dating back to 1860 and thus pre-dating the unification of Italy.

37. Interestingly, “cross” and “crucifix” seem to be used as if they were one and the same in the judgment. Whilst a non-religious (or secondarily religious) meaning might conceivably be attached to a cross, it would seem much more difficult to argue than a crucifix was predominantly non-religious in nature.

38. For a full list, see ¶ 35 of the judgment.

39. Id. at ¶ 35.

40. Id. One might wonder what the Church might think of this, but this is hardly relevant to the human rights claim.

41. Id. at ¶ 35.

42. Id. at ¶¶ 13 & 15.

43. Id. at ¶ 51.

44. Id. at ¶ 36.

45. Id. at ¶ 54.

46. Id. at ¶ 57. The Court may have overstepped its jurisdiction when determining that the rights of the schoolchildren “to believe or not believe” had been restricted since this was not, strictly speaking, at issue. Although the applicant appears to have brought a claim in her own name for a violation of Article 9, this does not appear to have been.

47. Id.

48. Id. at ¶¶ 36-37.

49. Id. at ¶ 37, referring to the Judgment of the Court in Kjeldsen, Busk Madsen and Pedersen, 23 Eur. Ct. H.R. (ser. A) (1976).

50. Folgero & Others v. Nor. [GC] (No. 15472/02), ECHR 2007-VIII Eur. Ct. H.R.

51. Hasan & Eylem Zengin v. Turk., (No. 1448/04), ECHR 2007-XI Eur. Ct. H.R., at ¶ 63.

52. Lausti v. Italy, supra note 34, at ¶ 53.

53. Id. at ¶ 55.

54. This was made clear in the first case to address this question, Kjeldsen, Busk Madsen and Pedersen v. Den., supra note 49, at ¶ 53) and has been more recently reaffirmed in the leading restatement of the Court's approach to this in Folgero, supra note 50, at ¶ 78(g).

55. Id. at ¶ 56.

56. Id. at ¶ 57.

57. Id. at ¶ 47(b).

58. Id.

59. Kokkinakis, supra note 3, at ¶ 31.

60. The request to refer was accepted by a panel of the Grand Chamber in March 2010. See Press Release No. 177 (Mar. 2, 2010).

61. Hearings before the Grand Chamber commenced on June 30, 2010. See Press Release No. 531 (June 30, 2010).

62. A federal referendum may be called if supported by more than 100,000 petitioners. See Swiss Federal Constitution, Art. 139.

63. The amendment was supported by 57.5% of the voters (turn out being 57.3%). In addition, only 4 of the 23 Cantons voted against the ban, this being important as to be approved the amendment needed to attract not only a majority vote but also to be supported by the majority of the Cantons. The four Cantons which opposed the amendment were Geneva, Vaud and Neuchatel (all French-speaking) and Basel-City (strictly speaking, a half-Canton for these purposes). In general the amendment received strongest support in the more rural Cantons but as the overall result shows, general support existed throughout much of the country.

64. See United Nations Human Rights Committee, 03 16-Apr. 3, 2009, List of Issues to be Taken up in Connection with the Consideration of the Third Periodic Review of Switzerland, CCPR/C/CHE/Q/3, question 19 (May 20, 1009)Google Scholar.

65. See Replies of the Government of Switzerland to the list of issues (CCPR/C/CHE/Q/3) to be taken up in connection with the consideration of the third periodic report of Switzerland (CCPR/C/CHE/3), CCPR/C/CHE/Q/3/Add.1, ¶¶ 154-60 at 154 (Aug. 10, 2009). It also noted that under the Federal Constitution, only those referenda proposals which violated norms of jus cogens could be rejected, and it took the view that this was not the case in this instance.

66. See CCPR/C/CHE/CO/3, ¶ 8.

67. See Press Release, Special Rapporteur on Freedom of Religion or Belief, Switzerland: UN expert on religious freedom regrets outcome of vote to ban construction of minarets, (Nov. 30, 2009), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=9649&LangID=E. Her statement expressed the view that “A ban on minarets amounts to an undue restriction of the freedom to manifest one's religion and constitutes a clear discrimination against members of the Muslim communities in Switzerland.”

68. See Press Release, Office of the High Commissioner for Human Rights, Swiss law banning minarets “clearly discriminatory”—UN human rights chief, (Dec. 1, 2010, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=9651&LangID=E.

The High Commissioner described it as “discriminatory, deeply divisive and a thoroughly unfortunate step for Switzerland to take, and risks putting the country on a collision course with its international human rights obligations.” Interestingly, the High Commissioner focuses on discrimination in her statement and little mention is made of the freedom of religion or belief.

69. See Press Release, Organization for Security and Cooperation in Europe-Office for Democratic Institutions and Human Rights (OSCE-ODIHR), (Nov. 30, 2009), available at www.osce.org/odihr/item_1_41650.html. by Ambassador Lenarcic, with the endorsement of the OSCE-ODIHR Advisory Council on Freedom of Religion or Belief, said that “A blanket prohibition of minarets is not consistent with OSCE commitments on freedom of religion or belief and the principle of non-discrimination based on religion.”

70. The President, M. Maria de Puig, said that “The result of this referendum goes against the values of tolerance, dialogue and respect for other people's beliefs which the Council of Europe and its Parliamentary Assembly have always upheld. Press Release, President of the Parliamentary Assembly of the Council of Europe (PACE), Minarets in Switzerland—reaction of PACE President, (Nov. 30, 2009), www.assembly.coe.int/ASP/Press/StopPressView.asp?ID=2266.

71. Press Release 901(2009), Secretary General of Council of Europe, Concern about referendum on minarets (Nov. 30, 2009).

72. See App No. 65840/09, Ouardiri v. Switz., (submitted Dec. 15, 2009), http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=868335&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 and App No. 66274/09, L'association ‘Ligue Des Musulmans De Suisse’ & others v. Switz., (submitted Dec. 16, 2009), http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=868334&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.

73. At the domestic level, wearing religious clothing and religious symbols in such situations has of course continued to cause controversy. The latest foray of the England and Wales Court of Appeal into this area was Eweida v British Airways, [2010] EWCA Civ 80 (Eng.), concerning a member of the airline check-in staff who was not permitted to wear a small cross with her uniform. An employment tribunal rejected the argument that this was in breach of Article 9, a view upheld by the Court of Appeal which said that “the jurisprudence on Article 9 does nothing to advance the claimant's case,” quoting the European Court's judgment in Kalac v. Turkey (No. 20704/92), 1997-IV Eur. Ct. H.R., http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal+hbkm&action=html&highlight=20704/92&sessionid=54846827&skin=hudoc-en, which is now significantly undermined by the more recent jurisprudence on religious clothing and symbols which were not considered. It is highly likely that this will be appealed to the U.K. Supreme Court and, if necessary, taken to the European Court, though it should be noted that the ground of appeal did not concern the applicability of Article 9 as such but whether there had been indirect discrimination.

74. See Allen, Peter, Nicolas Sarkozy says the burqa is ‘not welcome’ in France, The Telegraph, 06 22, 2009, available at http://www.telegraph.co.uk/news/worldnews/europe/france/5603859/Nicolas-Sarkozy-says-the-burqa-is-not-welcome-in-France.htmlGoogle Scholar.

75. See news report at http://edition.cnn.com/2010/WORLD/europe/07/13/france.burqa.ban/index.html#fbid=110ANC2ci6n.

76. See news report at http://news.bbc.co.uk/1/hi/world/europe/8652861.stm.

77. See news report at http://www.bbc.co.uk/news/10316696.

78. See http://jurist.org/paperchase/2010/07/spain-lower-house-rejects-proposal-to-ban-burqa.php. The vote was 183 to 162 against, with 2 abstentions.

79. See Hansard, June 30, 2010, Column 867.

80. See, e.g., Moscow Branch of the Salvation Army, supra note 7.

81. See, e.g., Dogru v. Fr., supra note 26, at ¶ 64, where the Court said that

Nor does the regulation of student dress or the refusal to provide administrative services, such as issuing a diploma, constitute a disproportionate interference where the individual concerned fails to comply with the rules (in the case in point requiring a student wearing the Islamic headscarf to appear with her head uncovered on a passport photo), regard being had to the requirements of the secular university system.

82. In June 2010 the Parliamentary Assembly of the Concil of Europe addressed this issue in Resolution 1753 (2010) and Recommendation 1927(2010) on “Islam, Islamism and Islamaphobia in Europe.” Recommendation para 3.13 asks that the Committee of Ministers

call on member states not to establish a general ban of the full veiling or other religious or special clothing, but to protect women from all physical and psychological duress as well as their free choice to wear religious or special clothing and ensure equal opportunities for Muslim women to participate in public life and pursue education and professional activities; legal restrictions on this freedom may be justified where necessary in a democratic society, in particular for security purposes or where public or professional functions of individuals require their religious neutrality or that their face can be seen.

It remains to be seen how the Committee of Ministers responds to this request.

83. Ahmet Arslan & Others v. Turk., (No. 41135/98), Eur. Ct. H.R., (2010) (French). This case was lodged with the Court in 1997, nearly 13 years before the judgment was given.

84. Id. at ¶ 35.

85. Id. at ¶ 43.

86. Kurtulmus, supra note 26.

87. Id. at ¶ 49.

88. Id. at ¶ 53.

89. Id. at ¶ 51.

90. See, e.g., Evans, Malcolm, Freedom of Religion and the European Convention on Human Rights: Approaches, Trends and Tensions, in Law and Religion in Theoretical and Historical Context 291 (Cane, Peter, Evans, Carolyn & Robinson, Zoë eds., Cambridge Univ. Press 2008)CrossRefGoogle Scholar.

91. The leading case remains Metropolitan Church of Bessarabia & Others v. Mold., (No. 45701/99), 2001-XII Eur. Ct. H.R. Other more recent cases of this nature include Moscow Branch of the Salvation Army, supra note 7; Church of Scientology Moscow v. Russ., (No. 18147/02), Eur. Ct. H.R., (2007); Religionsgemeinschaft der Zeugen Jehovas & Others v. Austria, (No. 40825/98), Eur. Ct. H.R., (2008); Kimlya & Others v. Russ., (Nos. 76836/01 & 32782/03), 2009 Eur. Ct. H.R., among many.

92. The most well known, high profile cases of this nature concerned the engagement of the authorities with divisions within the leadership of both the Muslim and Orthodox communities in Bulgaria. See Hasan & Chaush v. Bulg. [GC], (No. 30985/96), 2000-XI Eur. Ct. H.R.; Supreme Holy Council of the Muslim Community v. Bulg., (No. 39023/97), Eur. Ct. H.R. (Dec. 2004); Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) & Others v. Bulg., (Nos. 412/03 & 35677/04), Eur. Ct. H.R. (2009). Other recent examples of similar decisions include Svyato-Mykhaylivska Parafiya v. Ukr., (No. 77703/01), Eur. Ct. H.R. (2007) and Mirojubovs & Others v. Lat., (No. 798/05), Eur. Ct. H.R. (2009).

93. Hasan & Chaush, supra note 92, at ¶ 78.

94. This example being taken from Leyla Şahin, supra note 22, at ¶ 107.

95. See Metropolitan Church of Bessarabia, supra note 92, at ¶ 116, where it quoted para 78 from Hasan and Chaush in support of this proposition. See also Religionsgemeinschaft der Zeugen Jehovas & Others, supra note 92, at ¶ 97: “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.”

96. See, e.g., Kokkinakis, supra note 3; Larissis & Others v. Greece, (Nos. 23772/94, 26377/94, 26378/94), 1998-I Eur. Ct. H.R.

97. For a recent reaffirmation of this, see European Commission for Democracy through Law (Venice Commission), Opinion on the Legal Status of Religious Communities in Turkey, no. 535/2099, Doc. CDL-AD(2010)005, at ¶ 18 (2010).

98. Supra text at note 95.