Freedom Of Religion Flashcards
What case involved a law where students couldn’t wear religious dress in PUBLIC? (Decided by the HRC)
Raihon Hudoyberganova v Uzbekistan
What case involved a man being made to remove his turban for a residency picture? Violating article 18 ICCPR
Singh v France ( decided by the HRC)
What was Kokkinakis v Greece about?
A Johova Witness that had already been arrested more than 60 times for proselytism and the ECtHR found that his coercion to get people to join his religion was against the echr article 9
What case concerned the advocation of shariah law by the Refah party which was held to be against the constitution of securalism? = ECtHR held that Turkey was NOT in violation of article 9
Refah Partisi v Turkey
Leyla Sahin v Turkey
Student in turkey was prevented from wearing a headscarf, was to promote the secularist society = sometimes this is a problem with the ECtHR because it is based on the compromise and balancing act
What happened in SAS v France ?
Concerning a French law that banned religious dress. It was for all sorts of things including dress, jewellery but some students refused to take off the burqa claiming it was their women’s rights to wear them. It was not a women’s right, and seeing as it was across all religions it was not a violation of their religion under article 9 ECHR
What section of the ICCPR is the right found
18
What section of the ECHR rights is the right found ?
9
Are there any other back up protections?
ICCPR art 27 and minority rights
- articles 2,3,23,26 of the ICCPR are also vital for the enjoyment of the freedom as they prohibit unjustified differential treatment on the basis of religion in article 18 UDHR and ICCPR / Art 9 ECHR
ICERD - article 5 on n/discrimination on the basis of religion
What about any declarations?
UN general assembly in 1981 Declaration on the Elimination of all forms of intolerance and discrimination based on religion or belief
- UN declaration on religious and linguistic minorities 1992
UDHR couldn’t provide what?
The substance for the freedom so it was left to the ICCPR
Conscience = ?
Individuals’ idea of right and wrong
Thoughts = ?
Ideas or beliefs
What is the key to freedoms of thought, opinion, expression and association?
They all work together towards a democratic society
Restrictions
- every Q you come across is a balancing exercise / should the law restrict that?
- public safety
- public order
- health
- morals
- the fundamental rights and freedoms of others
Issues
- some states are declared one religion
- dress and symbols (is it the state’s problems what I wear): headscarfs, public holidays, places of worship, religious discrimination - intolerance
Lautsi v Italy
Applicants complained that the presence of a crucifix which was not used for worship, religious instruction or as an expression of allegiance did not breach article 19 of the ECHR
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Eweida v UK
- disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties that considered incompatible with their religious belief
- 1st applicant: wearing the cross visibly at work was a manifestation of her religious beliefs and had been violated yet non-state actor so did the state breach its positive obligations under article 9? The aim of BAs uniform to promote recognition of its brand and staff was legitimate but there was no evidence that wearing other forms of religious clothing had a negative impact on the brand - no real encroachment on the interests of others so UK had violated positive obligation under article 9
Eweida v UK
Second applicant
The refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion
- had a legitimate aim which was to protect the healthy and safety of nurses and patients
- safety issues about wearing the cross like it being pulled by a patient or getting into a wound
- court was not the best judge of this particular issue
- she was offered to wear it as a brooch or under a top under her tunic
- court was unable to conclude that the measures were disproportionate and the intereference with her freedom of religion was necessary for a democratic society
- other nurses with religious wear had also been asked to remove them
eweida v UK
3rd applicant
- objecting to participate in the creation of same/sex civil partnerships was directly motivated by her religious beliefs
- fell into the ambit of both article 9 and 14
- requirement that all birth, marriages and deaths registrars be civil-partnership registrars pursued a detrimental impact on her relgious beliefs
- protected equal opportunities for those of different sexual orientation
- proportionality of measures - the consequences of her actions were serious and she felt she had no choice but to face disciplinary action rather than do that, and she lost her job
- when she got the job there was no requirement that she waiver her religious belief for the job, this was a later requirement entered in by the employer
- however the local authority’s act was to secure rights of others and striking a balance between convention rights = wide margin of appreciation to states
- court held that the local authority nor national court breached article 9 or 14
Eweida v UK
Fourth applicant
While employed by a private company worth a policy of requiring employees to provide services equal to homo and heterosexual couples, the applicant refused to give psycho-sexual counselling to same sex couples
- court accepted it was motivated by his orthodox Christian beliefs
- losing job was grave consequence
- though he VOLUNTARILY enrolled on his employers post graduate training programme knowing that he had an equal opportunities policy and filtering clients is not possible
- this couldn’t be used to determine whether or not there had been an interference with article 9 but was a matter to be weighed in the balance when assessing whether a fair one was struck
- KEY:!!! Employers action was to secure equal access to all - not providing a discriminatory service
- state = wide margin of appreciation between his religious beliefs manifestation or securing the rights of others
- no violation of article 9 or 14
