9. Freedom of thought, conscience and religion under Article 9

Question 1

Osmanoğlu and Kocabaş v. Switzerland

(religious symbols in classroom, no vio.

Answer 1

d

Question 2

Lautsi and Others v. Italy, 18 March 2011

Answer 2

Lautsi v Italy (religious symbols in classroom, no vio.) – The applicant complained that her two children attended a State school in which a crucifix was displayed in every classroom and that this was contrary to the principle of secularism in which she wished to educate her children.

ECtHR held: While banning of the wearing of an Islamic headscarf by a teacher of young children was within the State’s M.O.A. in Dahlab v
Switzerland, in this case, the Court said that ‘the presence of crucifixes is not associated with compulsory teaching about Christianity.’

Comments: Without engaging in a much clearer definition of what a passive symbol is, the court distinguishes between Dahlab and Lautsi; in so doing, it creates a sort of “presumption of indoctrination” for the hijab, whereas the crucifix, owing to its intrinsic nature as passive symbol, can be placed by public powers wherever they wish and this will never be considered as a form of indoctrination. Thus, the Court’s decision in Lautsi can only harm the efforts to treat all religious beliefs across Europe with equal respect and tolerance.

Question 3

Eweida and Others v. UK, 15 January 2013

Answer 3

Two applicants argued that their employer’s ban on wearing crucifixes had infringed their right to manifest their religious belief as Christians. Ms. Chaplin was a nurse employed in a private organisation. Its policy prohibited all necklaces on the grounds of health and safety.

ECtHR held: The Court held that the ‘hospital managers were better placed to make decisions about clinical safety than a court, particular an international court which has heard no direct evidence’. Therefore, no violation.

Question 4

S.A.S. v. France, 1 July 2014

ban of niqab and burqa, no vio.)

Answer 4

– France penalised the wearing of niqab and burqa in public space. The applicant is a devout Muslim and explained that she wears the burqa and niqab in accordance with her religious faith, culture, and personal convictions, although not all times. The applicant did not object to showing her face when requested to do so for necessary identity checks.

ECtHR held: The Court found that a blanket ban was no necessary in a democratic society. Nevertheless, the Court found it necessary in order to pursue France’s aim of ‘living together’. The Court noted that full-face veil ‘is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face’. The Court thought that a wide M.O.A. was appropriate in this context.

“France is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society”.

In conclusion, the ban in question was proportionate to the aim of preserving the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others’ under Art. 9(2).

Question 5

The scope of article 9

Defining a manifestation of religion or belief

Answer 5

• The manifestation of religion or belief is subject to the limitations set out in paragraph (2) - where the general right to freedom of thought, conscience, and religion is absolute (the manifestation is not).

• In the past, the court tended to adopt a narrow view of the manifestation of religion or beliefs - so only the one which were objectively necessary were protected.
o Today: the manifestation must only be intimately linked to the religion or belief - this must be determined on the facts of each case.

• Dismissing someone from employment solely because of their religious beliefs will violate article 9.
o But article 9 does not give any entitlement to time off work for religious festivals.

Question 6

Proselytism (the act of attempting to convert people to another religion or opinion)

Answer 6

• The article includes the right to try to convince one’s neighbour, for example, through teaching, failing which, moreover, “freedom to change one’s religion of belief” enshrined in article 9, would be likely to remain a dead letter.
• The court has emphasised that not every discussion about religion or other sensitive matters between individuals of unequal rank would justify a State in taking repressive measures under article 9 (2). However, such justification would arise wherever there was evidence of harassment or the application of undue pressure in abuse of power.

Question 7

Religious dress and symbols

head scarf

Answer 7

• The states adopts different approaches to the wearing of the Islamic headscarf. But it can be argued that this decision is limited to the special circumstances in Turkey. That is no to be uncritical of the court, which has failed to spell out exactly what the requirements of secularism (= separation of religion from state) are and how it can be balances, so some women can wear the headscarf as a symbol of their religious belief.

Question 8

Religious dress and symbols at schools

Answer 8

• Schools are also hierarchical structures, and teachers are in a powerful position to influence the children in their charge.
o In one case the court said that the state could forbid a teacher to wear headscarf, because it would affect the children in a bad way, because the lack of equality between sexes - the proportionality test was here too one-sided - because it could also affect the children in a good way and learn them about different religions and beliefs.

Question 9

Religious dress and symbols

dress and full-face veil

Answer 9

• The court finds a wider margin of appreciation in the context of religious dress worn be ordinary citizens in a public space.
o It is okay to ask them to show their face (if they have full-face veil) when it is necessary in order to pursue the governments aim of “living together”. Page 464.
• Perhaps a surprising result - case on page 465.

Question 10

Religious dress and symbols

• Christian insignia (tegn)

Answer 10

• Christian insignia (tegn) has also been the subject to some cases in recent years.
o A case: where it was okay to have a crucifix displayed in every classroom. This case can be compared to the one, with the teacher with the headscarf - because it is almost the same, but different results (page 465). This difference ham the court’s efforts to treat all religious beliefs across Europe with equal respect and tolerance.

Question 11

Manifestation of religion and belief by prisoners

Answer 11

• It remains doubtful how far a prisoner can claim under article 9 facilities to practise a religion, when it is not generally practised in that state.
o Case: article 9 does not impose any obligation to put at the disposal of prisoners books they consider necessary for their religion.
o More cases on page 466 in the end.
o The cases give an impression, that the commission is unsympathetic to complaints of interference with religious freedom by prisoners
• The court has a rather more sympathetic approach to demands from prisoners, at least in the context of religious diets.

Question 12

Conscientious objection to military service

Answer 12

• Problems arise in balancing the competing interests where a state requires a citizen to behave in a manner contrary to his beliefs in pursuit of a more obviously useful social aim. Compulsory military service is a prime example, since a number of states find it necessary to safeguard national security even in peacetime, while many pacifists find it objectionable in the extreme.

Question 13

Immigration issues and freedom of religion

Answer 13

• Article 9 does not guarantee foreign nationals a right to obtain a residence permit for work, even if the employer is a religious association.
• Article 9 (2) (unlike article 8, 10 and 11) did not include the interest of national security as a legitimate aim for an interference with the right to manifest a religion or belief. The court was adamant that article 9 (2) would be strictly interpreted.
• Article 9 is unlikely to be of assistance in the context of expulsion.

Question 14

The right not to manifest a religion

Answer 14

• Article 9 also prevents a state from imposing obligations on citizens in relation to participation in national life which offend their religious beliefs, unless these obligations are necessary in a democratic society.

Question 15

The recognition and authorisation of religious organisations

Answer 15

• The court has held that a religious association may exercise on behalf of its members the rights guaranteed by article 9, taken alone and in conjunction with article 14.
o The status of religion within the states varies - some have established religions and some have de facto state religions.
o Serious and unexplained delays in granting recognition to a religious association under national law will constitute a violation of article 9.

Question 16

Religion or sect?

Answer 16

• The loose definition of religion raises the question of the borderline between a religion and a sect. The commission has never used the word “sect”, but the court has mentioned is a few times.

o The notion that sects are bad

Question 17

The recognition and authorisation of religious organisations - the adobpted policy

Answer 17

• Where issues relating to the recognition of a religion is raised, the court has adopted a policy of reading articles 9 and 11 as closely interlinked. The starting point is freedom association with others, but the context is freedom of religion.
o The court reiterates that the right to form an association is an inherent part of the rights protected by article 11.
o On the question of the appropriate margin, the court held that this cannot extend to total deference to the national authorities assessment of religions and religious organisations.

Question 18

The recognition and authorisation of religious organisations - non-recognitions of a religion by the state

Answer 18

• Non-recognitions of a religion by the state, does not, however, deprive adherents of that religion from the protection of article 9, since such an approach would mean that the state could exclude certain beliefs by withholding recognition. Punishing those who manifest religious beliefs which have not been recognised by the state constitutes a violation of article 9.

Question 19

Positive obligations

Answer 19

• Recent judgements confirm that there are, indeed, circumstances where, in order to comply with article 9, the state has to take positive measures, and these may represent a greater willingness on the part of the court to scrutinise States’ purported justifications for interfering with religious expression.
• States have responsibility to ensure tolerance between the rival factions between and within religious and belief groups.
o Cases page 480-481.
• The obligations on state authorities to take positive steps to protect a right to manifest religion was a subject in a case - page 481 in the end.