Freedom of Belief [ECHR]
ECHR Article 9
Article 9 provides: “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. . 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.”
It is the public manifestation only of the right that is subject to limitations. Private expression, worship and observance are subject to protection in absolute terms. Belief in this context implies a certain level of cogency, seriousness, cohesion and importance. Accordingly, mere ideas and opinions are not within the scope of this protection. In Pretty v. United Kingdom, the belief in a right to assisted suicide was not protected for this purpose.
Generally, the state should be neutral and impartial in assessing the legitimacy of religious beliefs and the manner of their expression. The major religions and beliefs are protected, as are more marginal and controversial systems of belief. It covers Christian denominations of many kinds. Jehovah’s Witnesses and Salvation Army have been recognized. It covers Islam, Hinduism, Judaism and Buddhism. Atheism, Druidism, Osh, Church of Scientology have been recognised as beliefs for this purpose.
Covered Beliefs
There have been cases where marginal beliefs, which have some acceptance and practice, have been held not to be protected. In X v. Germany, the applicants claimed to be light believers, but the claim to be light believers was not sufficiently founded in evidence. In X v. United Kingdom, the prisoner claimed to be a believer in the practice of the Wicca religion. Similarly, it was not sufficiently so proved part of the applicant.
In Arrowsmith v. United Kingdom, a conviction for distributing leaflets opposed to UK policy in Northern Ireland could not be challenged under the Convention on the basis that it expressed a belief in pacifism, although pacificism has been accepted as a belief for the purpose of protection.
In Pastor X and the Church of Scientology v. Sweden, restrictions on advertisements for the sale of the Hubbard electrometer, which is alleged to measure forces around the body, was held not be breach the protection as it was more in the nature of a commercial exercise than a manifestation of a belief, refer to sales by the Church of Scientology.
It may be difficult to distinguish, in some cases, the line between professing and holding beliefs and manifesting those beliefs. Originally, the court limited the protection of manifestations of belief to those which were necessarily part of the religion. Its modern approach is outlined in Eweida v. United Kingdom In that case, the wearing of the crucifix was held to be within the scope of manifestation, although it was in no way necessary to the belief.
“In order to count as a manifestation within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts. The existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts in each case”
Accommodating Religious Belief
In Cha’are Shalom Ve Tsedek v. France, the refusal of the state to permit the establishment of slaughterhouses providing for Glatt meat, involving special ritual slaughter and examination of the lungs of the animal, was found not to violate the right on the part of the applicant who an ultra-orthodox Jew. Kosher slaughterhouses administered by a body representing the majority of Jews were permitted. There was imported Glatt meat available and the prohibition was found to be proportionate.
In Franceso Sessa v. Italy, the applicant was a lawyer and the court refused to adjourn a hearing due to taking place on a Jewish holiday. This was found to be compatible with the reasonable requirements of the administration of justice. The court has held that it is legitimate to limit manifestations of religious belief in the commercial and professional sphere where applicants could manifest their belief in another context.
In Kosteski v. Macedonia, a workplace fine for taking time off at the end of Muslim religious festivals was held not to be disproportionate. The workplace required proof that he was a practising Muslim, and this was not provided.
In Eweida v. United Kingdom, one applicant was the Registrar of Marriages who refused on religious grounds to act as Registrar of civil partnerships. Another applicant refused to provide counselling to same-sex couples and also lost his job. States were allowed a margin of appreciation in balancing the rights of homosexuals to equal treatment and religious belief. It was found there was no breach on the facts.
In the second case, the fact that the applicant had knowingly entered a post graduate training counselling knowing that the body concerned operated an equal opportunities policy in respect of homosexuals was a relevant consideration in the circumstances. Two dissenting judges considered there was a distinction between the first and second cases as in the first case, the applicant had become a Registrar prior to civil partnerships.
Conversion
In Larisssis v. Greece, officers of the Air Force who were convicted of having sought to convert soldiers to become Jehovah’s Witnesses did not enjoy the protection of the Convention. Greece was justified in taking measures in the context of the hierarchical nature of the Armed Forces to protect the command of superior offices over others from undue pressure and abuse of power.
In Kokkinakis v. Greece, Jehovah’s Witnesses who called door-to-door to seek to convert persons to their religion were convicted of an offence of attempted proselytizing from the Greek Orthodox religion. It was found that the law was, in principle, legitimate, pursued a legitimate aim of protecting others and was sufficiently clear.
However, the conviction was not necessary in a democratic society in the circumstances as was no evidence that the applicants had sought to convert the persons visited by improper means. Court distinguished between bearing Christian witness, described as true evangelism and improper proselytism, which it referred to as a corruption or deformation of it, which is not compatible with respect for freedom of thought, conscience and religion.
Prisoners
It appears that a prisoner may not generally claim a right to exercise faith in prison that is not generally practised in the state concerned. The same applies to the provision approved in other facilities.
In Kovalkovs v. Latvia, the applicant, who was an adherent of Vaishnavism and claimed the right to meditate and pray, was restricted by being imprisoned with other prisoners and by the removal of his incense sticks. They were motivated by religion and not inherently unreasonable. However, the court held that the restrictions were legitimate due to factors such as finance, the interest of other prisoners, and limitation of objects in prison cells. The authorities had offered separate premises on one occasion to perform religious rituals, which was refused.
In X v. United Kingdom, a Sikh prisoner of ethnic Sikh origin and religion refused to wear prison clothes and wore only a towel and blanket. He was kept in isolation from his fellow prisoners and refused to clean his cell. Any interference with his rights was held to be justifiable in a democratic society and the application was ill-founded.
In X v. Germany, a British prisoner claimed a right to Anglican services. The Commission appears to have, in any event, accepted that access to a Protestant German pastor would suffice. In X v. Austria, the refusal to permit a prisoner wears a beard, as prescribed by his religion and the failure to afford access to particular books did not breach the Convention.
In X v. United Kingdom, there was no breach of the Convention where a Buddhist prisoner claimed a right to send out articles for publication in a Buddhist magazine. The prison had sought to accommodate communication with fellow Buddhists. In any event, he found that such communication, although an important part of Buddhism, was not necessary.
In Jakobski v Poland, a Buddhist prisoner requested a vegetarian diet in prison. The court accepted that the request was motivated by religion. It was found that there was a failure to fairly weigh and balance the interest of the applicant and the authorities.
Military Service Conscientious Objection I
Compulsory military service is provided in many European states party to the European Convention on Human Rights. Military Service is excluded from the general Article 4 prohibition on forced and compulsory labour. The Article provides for conscientious objectives in countries where they are recognised and also refers to substituted services.
Mushfig Mammadov and Others v. Azerbaijan 17 October 2019 (Chamber judgment) This case concerned the applicants’ refusal on religious grounds to serve in the army. The Court held that there had been a violation of Article 9 of the Convention, finding that the criminal prosecutions and convictions of the applicants on account of their refusal to perform military service had stemmed from the fact that there was no alternative service system under which individuals could benefit from conscientious objector status.
In Bayatyan v. Armenia, the applicant Jehovah’s Witness, was convicted and imprisoned for failure to perform military service. At that time, Armenia did not recognise grounds of conscientious objection but recognised it shortly afterwards. Only Azerbaijan and Turkey did not recognise it.
The court pointing to recognition of conscientious objection in international human rights instruments, including under the UN Human Rights Convention, held that conscientious objection to military service arose from a serious and insurmountable conflict between the service and the person’s conscience or deeply and genuinely held religious or other beliefs, is a belief for the purpose of the guarantees under Article 9.
As most other states had introduced such provisions, the respondent state had a narrow margin of appreciation. There were no compelling reasons to require service in the face of strongly held genuine religious beliefs. There was no alternative, and there was found to be a violation. The restriction was not found to be necessary in a democratic society. It did not strike a fair balance between the interests of the applicant and those of the state.
Dyagilev v. Russia concerned the procedure in Russia for examining requests to replace compulsory military service with its civilian alternative. The applicant in the case, a recent graduate, complained that the authorities had refused his request because they found that he was not a genuine pacifist.
The Court held that there had been no violation of Article 9 of the Convention in the applicant’s case. In particular, it could see no reason to doubt the authorities’ assessment of the seriousness of the applicant’s convictions.
Military Service Conscientious Objection II
Teliatnikov v. Lithuania The applicant in this case, a Jehovah’s Witness minister, had requested to be exempted from military service. He submitted that he had been denied the right to refuse military service despite his genuine convictions in that connection with no possibility of civilian service.
The Court held that there had been a violation of Article 9 of the Convention, finding that, overall, the Lithuanian system of conscription failed to strike a balance between the needs of society as a whole and those conscientious objectors who were happy to contribute to society in some other way, and that the State’s failure to respect the applicant’s conscientious objections had not been “necessary in a democratic society”.
In Grandrath v. Germany, the applicant was a Jehovah’s Witness who claimed freedom of thought and conscience to both avoid military service and the substituted duty. He recognised a conscientious objective but was convicted for failure to provide substituted service. The Commission held that because the service would not have interfered with his practice of religion. It also held that conscientious objection was not sufficient grounds for exemption from substituted service.
Savda v. Turkey concerned the failure to recognise the right to conscientious objection in Turkey. The applicant complained in particular about his various prosecutions and convictions for claiming conscientious objector status. The Court held that there had been a violation of Article 9 of the Convention.. A system which provided for no alternative service or any effective and accessible procedure by which the person concerned was able to have examined the question of whether he could benefit from the right to conscientious objection failed to strike the proper balance between the general interest of society and that of conscientious objectors.
Enver Aydemir v. Turkey 7 June 2016 (Chamber judgment) The applicant in this case complained, inter alia, that he had been repeatedly detained, prosecuted and convicted because he had claimed the status of conscientious objector.
The Court found that the applicant’s objection to performing compulsory military service for the benefit of the secular Republic of Turkey did not fall within the scope of Article 9 of the Convention, given that the arguments he had put forward for claiming the status of conscientious objector were not motivated by religious beliefs which were in serious and insurmountable conflict with his obligation to perform military service. It
Papavasilakis v. Greece This case concerned the authorities’ refusal to grant the applicant the status of conscientious objector and to allow him to do alternative civilian work instead of military service. The Court held that there had been a violation of Article 9 of the Convention, finding that the applicant did not enjoy the necessary procedural safeguards in having his request for alternative civilian service examined.
Adyan and Others v. Armenia This case concerned four Jehovah’s Witnesses who were convicted in 2011 for refusing to perform either military or alternative civilian service because of their religious beliefs. The Court held that there had been a violation of Article 9 of the Convention. It found that the Armenian authorities had failed at the relevant time to make appropriate allowances for the applicants’ conscience and beliefs and to guarantee a system of alternative service that had struck a fair balance between the interests of society as a whole and those of the applicants.