Rights of Groups
In Leela Forderkriese ve EV and others v. Germany, the right of religious associations to assert right under the Convention on behalf of its members was confirmed. Some ECHR states have established state religions, whereas others provide that no religion shall be established.
In Leela Forderkreis EV v. Germany, the Bhagwan movement was the subject of an information campaign by German authorities which were concerned regarding its potential effect on the development and social relations of young people. The court accepted that the association’s activities were a manifestation of its beliefs and, without considering the matter in detail, held that there was a sufficient basis for the information campaign and that it was legitimate and proportionate.
In Religionsgemeinschaft der Zeugen Jehovas v. Austria, it was held that Article 9 may be breached by long, significant and unexplained delays in the registration of a religion where this was required.
In Jehovah’s Witnesses in France v France, the applicant claimed that parliamentary commission reports on a draft bill proposing sanctions against sectarian groups might affect its freedom of religion. A law provided had named Jehovah’s witnesses as a sect. The legislative proposals had no legal effect and the applicant had an insufficient interest in the matter.
In the Moscow Branch of The Salvation Army v Russia, the Salvation Army had been registered for some years when a new piece of legislation required re-registration in conformity with the new law. The Salvation Army did not seek any registration and steps were taken to dissolve the Branch.
The court indicated that states’ duty of neutrality and impartiality is defined in the courts’ case law is incompatible with any power in the state’s power to access the legitimacy of religious beliefs. Equally, the right to form an association was also protected by the Convention.
Any limitations on the part of the state must allow a limited margin of appreciation only. The organisation was subordinate to a foreign body and the applicant had not registered the foreign bodies’ constitutive documents. The court held that this was insufficient reason to refuse registration. The claim that the organisation was paramilitary and hierarchical in nature was rejected on the basis of its activities of many years, including years of lawful registration and the fact that it had no aims to undertake anything unlawful. It was held there was a violation of Article 9.
A similar case was later taken by the Moscow Branch of the Jehovah’s Witness against Russia. The Branch had been resolved and the body as a whole was effectively banned from undertaking its activities. Once again, the court held that there was not sufficient evidence to support claims that the community broke up families, infringed the right and freedoms of third parties, incited suicide or refusal of medical care. It was held that the dissolution of the religious body was a disproportionate interference with the freedom of approximately 10,000 believers.
In Kimlya v Russia, Scientology groups were refused registration under the same laws. Two Scientology groups were denied registration on the basis that they had been in existence for less than 15 years. It was once again held the denial of legal identity effectively deprived the applicant of the ability of members to manifest their religion. They could not establish places of worship, hold services publish or produce literature, or support or promote institutions. It was held that the interference with rights was unnecessary and disproportionate and was not aimed at meeting any pressing social need to justify a lengthy delay in obtaining registration. The waiting period, thereby created, was not justifiable in a democratic society.
In Metropolitan Church of Bessarabia v. Moldova, Moldova refused to recognise the applicant Church, thereby preventing it from practising. The court found there to be a violation of Article 9., “The court further observes that in principle, the right to freedom of religion for the purpose of the Convention excludes assessment by the state of the legitimacy of religious beliefs or the ways in which those beliefs are expressed. State measures favouring a particular leader or specific organs of a divided religious community or seeking to compel the community or part of it to place itself, against its will, under a single leadership would also constitute an infringement of the freedom of religion.
In Religionsgemeinschaft der Zeugen Jehovas v. Austria, the applicant was established as a private law entity but sought to become a public law body which had certain preferential treatment. The court held that religious groups should be given fair procedures and an opportunity to seek status in accordance with established non-discriminatory criteria. Although a waiting period could be justified in respect of new bodies, a substantial working period could not be justified in respect of long-established bodies existing internationally for substantial periods. It was found that the applicant’s rights had been breached as it did not enjoy exceptions in relation to tax and certain other privileges that were enjoyed by other religious bodies.
In democratic societies, the state does not need to take measures to ensure that religious communities remain or are brought under a unified leadership. Similarly, where the exercise of the right to freedom of religion or of one of its aspects is subject under domestic law to a system of prior authorisation, the involvement in the procedure for granting authorisation of a recognised ecclesiastical authority cannot be reconciled with the requirements of paragraph 2 of Article 9.
In Manoussakis v Greece, a Jehovah’s Witness body established a place to worship without the required authorisation. The court found that the authorisation used imposed rigid and prohibitive conditions on the practice of religious beliefs by certain unorthodox movements, including the applicant. The effect was held to be disproportionate and unnecessary in a democratic society. The involvement of the established Greek Orthodox Church was also found to be incompatible with Article 9.
However, A general system for permission to use premises for religious purposes is permissible under planning permission type laws; Bergos v. Greece.
Hasan and Chaus v. Bulgaria held that criminalisation of those who manifest a religious belief not recognised by the State breached Article 9. It confirmed that the non-recognition of religion of itself does not breach Article 9.
In Father Basil v. Georgia, (members of the Jehovah’s witness congregation), there was found to be a breach of Article 9 where the State failed to ensure tolerance in the exercise by the applicants of the rights of freedom of religion against violent attacks on worshipers and places of worship by Father Basil, a defrocked priest.
Limits to Rights
In Nolan and K v. Russia, the applicant was banned from re-entry into Russia having lived locally lived for 10 years working for the Unification Church, which is an officially registered religious body. It was claimed that he was a threat to national security, but no evidence was produced.
The court held that Article 9 should be strictly interpreted. In so far as the government relied on the protection of national security as the main, legitimate aim of the impugned measures, the court reiterated that the exceptions to freedom of religion listed in Article 9.2 must be narrowly interpreted; further enumeration is strictly exhaustive and the definition is necessarily restrictive.
Far from being an accidental omission, the non-inclusion of that particular ground for limitations in Article 9 reflects the primordial importance of religious pluralism as “one of the foundations of a ‘democratic society within the meaning of the Convention and the fact that a State cannot dictate what a person believes or take coercive steps to make him change his religious belief. In view of the wide concept that national security relied on by Russia including a policy declaration about the negative influence of foreign religious organisations and missionaries, it held that there was a violation of Article 9.
In El Majjaoui v. Netherlands, the applicant was a mosque in the respondent country serving Moroccans. They failed to secure a work permit from an imam recruited from abroad. The Grand Chamber rejected the claim. It held that foreign nationals do not have a right to obtain residence and a permit for work simply because the organisation is a religious body.
Right Not to Profess
Article 9 applies to the right not to profess or manifest a religion. In Buscarini and Others v. San Marino, the applicants were members of the respondent House of Parliament. They were obliged to swear an oath on the gospels to uphold the Constitution. This was found to breach Article 9.
In Dimitras v. Greece, defendants, witnesses or complainants in criminal proceedings were required to take a religious oath with an alternative that could declare that they were not Orthodox Christians and make a declaration instead. It was found that the presumption of professing a particular religion breached Article 9.
In Sanisik v. Turkey, the applicant member of an Alevi religious community, was required to carry an identity card on which his religion was stated to be Islam. The court emphasised the right not to be required to identify one’s religion. It found that the requirement breached Article 9 as the card was used frequently in everyday transactions.
In Grzelak v. Poland, the applicant refused to attend religious education classes and was not offered an alternative class in ethics. He received no mark in religion/ethics on school reports and this was found to breach Article 9.
Asylum & Religious Persecution
Z and T v. The United Kingdom, the applicants travelled from Pakistan on the basis of attacks on Christian churches there. They claimed asylum and that they were unable to live openly as Christians in Pakistan if they returned, and that Article 9 should apply to prevent deportation.
The court refused the application and rejected the proposition that Article 9 could be relied on. The Protections offered to those who have a substantiated claim that they will either suffer persecution for religious reasons or will be at real risk of death or serious ill-treatment. possibly flagrant denial of a fair trial or arbitrary detention because of their religious affiliation is covered by Articles 2 and 3 of the Convention, if at all.
“Where an individual claim on return to his own country, he would be impeded in his religious worship in a manner that falls short of those above-prescribed levels, the court considers that very limited assistance if any can be derived from Article 9 by itself. Otherwise, it would impose an obligation on a state effectively to act as an indirect guarantor to freedom of worship for the rest of the world.”
In some cases, the Convention requires more positive action. In Eweida v. United Kingdom, the court indicated “Where the acts complained of were carried out by private companies and were not therefore directly attributable to the State, the Court must consider the terms of the positive obligations of state authorities to secure the rights under Article 9 to those within their jurisdiction. . . . While the boundary between the State’s positive and negative obligations under the Convention does not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts, regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, subject in any event to the margin of appreciation enjoyed by the State.
In Otto Preminger Institut v. Austria, it was held that the State had obligations to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of those beliefs and doctrines.
Given the pluralist nature of the Convention, those holding beliefs could not reasonably be expected to be exempt from all criticism and must tolerate and accept the denial d by others of their religious belief and the propagation by others of doctrines hostile to their faith.
In Scrif v. Greece, the applicant was elected religious leader of Muslim communities in Thrace. This usurped the functions of another person appointed to that office by the State. The applicant was convicted of having usurped the minister. The court found that Article 9 had been breached. It did not accept the defence that the state had to intervene to avoid tensions between religious groups. It emphasised that tensions between religious groups were unavoidable in a pluralistic society and that the role of the state was to ensure tolerance. It was not required to establish a single leadership.