European Court of Human Rights and Religious Discrimination

 “The European Court of Human Rights is unable to protect religious minorities from discrimination”. Critically discuss this statement with references to case law.

In response to the question, I will argue whether there is any truth behind the statement that the European Court of Human Rights (hereafter ECtHR) is unable to protect religious minorities from discrimination. To do so I will be looking at article 14 in conjunction with Article 9 of the European Convention of Human Rights (ECHR). Religion along with race and gender is one of the grounds directly mentioned in Article 14 of the ECHR. The Court’s attempts to rule in relation to Article 9- “one of the foundations of a ‘democratic society’ within the meaning of the Convention” (Bielefeldt, 2013)[1]– this protects the freedom of thought, conscience, and religion, prompted opposition on the part of state authorities desiring to maintain their freedom to rule in this area without any external interference.

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     The battle against all different kinds of discrimination seem to be among the top priorities of the European institutions which are involved in the promotion and protection of human rights. In co-operation with the EU, whose role has been involved into force of the Charter on Fundamental Rights[2], the ECtHR is also following this trend competing for the lead role in taking positions against states which are indirectly discrimination those subjects under their jurisdiction who are more susceptible to unjust treatment as a cause of their ethnic origin, gender, sexual orientation and religion.[3] In this essay, the main focus will be on those that are religious minorities in their respective countries.

     This essay will explain how Article 14 in conjunction with Article 9 has been successful and will also discuss the shortcomings the courts have experienced in protecting religious minorities from indirect and direct discrimination. It also aims to highlight how the limitation of Article 14 has changed in recent case law and whether this has had an effect on how the Court has approached different cases in countries such as Greece, Italy, Turkey and France, amongst others.

     The ECtHR over the years has evolved into a venue where some of the most contentious questions regarding religion in European society are addressed. Since its establishment in 1959, it has seen a growth in its approach to religious cases, initially, its involvement with religion was very slow and limited. This remained the case until 1993, whereby the Court didn’t judge any cases based on the primary article of the ECHR defending and protecting religious freedom (Article 9). The landmark case of Kokkinakis v. Greece in 1993[4] marked the genesis of a serious and highly consequential engagement with religion. This case dealt with the compatibility of certain sanctions for proselytism [5]with Articles 7 and 9 of the ECHR. The ruling of six-to-three votes that a Jehovah’s Witness man’s freedom to manifest his religion, which is protected by article 9, had been violated by the Greek government. One judge stated that this case was “of particular importance” because it was “the first real case concerning freedom of religion to come to the European Court” since its establishment in 1959[6]. Since this case, the Court has dealt with topics such as whether religious symbols can be worn at work or at school, religious education, and the extent of a citizens’ bioethics related rights (abortion, medically assisted procreation (IVF), euthanasia etc.), the Court has made both bold and definitive statements, which have led to legal reform in many cases. As Heiner Bielefeldt, former UN Special Rapporteur on freedom of religion or belief explains, “On an abstract level, requirements of equality and non-discrimination receive an almost unanimous approval… [but] when it comes to drawing the necessary consequences from such general professions, things are often less clear”[7]. It has been made clear therefore, that there is a large gap between theory and practice regarding the relationship between freedom and equality is concerned, specifically concerning whether ECtHR are able to protect religious (or non-religious) minorities from discrimination.

    The ECtHR offers a plethora of case law regarding the issue of religious minority discrimination which is often drawn upon by different groups in their engagements with legal status-related issues, which reference different articles of the ECHR, often including Article 9 (freedom of religion) in conjunction with Article 14 (prohibition of discrimination). In Thlimmenos v. Greece (2000)[8], the applicant had been convicted for his refusal to wear a military uniform on the basis of his religious beliefs. Following this, he also wasn’t allowed to practice as a chartered accountant due to his criminal conviction. In this case, the Court interpreted Article 14 as prohibiting not merely the different treatment of persons in analogous situations but also the like treatment of persons who were not analogous. The Court held that in comparison to others, the applicant’s convictions were not deemed as morally reprehensible that would render a person unsuitable to enter the profession. According to the Court, there was no objective and reasonable justification for treating the applicant in the same way as other persons convicted of felonies. The Greek court was found in violation of Article 14 by failing to introduce exceptions to the blanket restriction on entry to the profession. This judgement is considered the landmark case in establishing the duties of differential treatment under the prohibition of discrimination. The slow development of the rationale in this case is due to the intrinsically engrained uneasy relationship between the Court and indirect discrimination.

    In a more recent case in Turkey, the nominally secular state combined with a heavily Sunni-Islam dominated governance renders practically all minority religions without legal status-conferred rights.  In the area of religious discrimination based case law, the religious minority group leading several cases in Turkey: the Alevis. In the case of Dogan and Others v. Turkey (2016)[9], the Court ruled that the Turkish state was discriminatory towards the Alevite branch of Islam in Turkey by not providing public Alevite religious services, even though services are provided for the majority Sunni population. The Court in this case reaffirmed some of the principles that were made in several decision such as the Metropolitan Church case (2001)[10] or Moscow Branch of the Salvation Army v. Russia (2006)[11], the judges felt it necessary to pay a greater amount of attention to the applicants’ being allowed to continue the practice of their religions in the cases whereby the Church did not have any legal recognition. In regards to the alleged violation of Article 14 in conjunction with Article 9, the Court recognised that, whilst the different treatment granted to citizens that followed the Sunni branch of Islam was suitable to uphold the Turkish principle of secularism, it was not proportionate enough for the achievement of this aim. The Court stated that the different treatment of Alevi followers had no objective or reasonable justification and it was therefore decided that there was indeed a violation of Article 14 in conjunction with Article 9[12]. In this particular instance, the ECtHR were able to protect a religious minority from discrimination.

   In contrast to what has been discussed previously, there have also been cases in which the ECtHR has been unable to uphold their duty to protect religious minorities from discrimination. A key case to look at would be SAS v. France (2014)[13] (also known as the ‘burqa ban case’), in this instance, the ECtHR upheld France’s decision to ban the burqa being worn by Muslim women. According to Dr Stephanie Berry, the ECtHR failed to support the principles of the ECHR by applying an assimilationist approach; the decision targeted Muslims due to a lack of neutrality, which in comparison to the Lautsi and Others v. Italy case[14], the Court concluded that a cross on the classroom wall is a ‘passive’ religious symbol, whereas the burqa is considered an ‘active’ one, therefore potentially disrupting the ‘living together’ principle. [15] Although the Court is expected to adopt a de facto high level of scrutiny when dealing with discrimination against religious minorities; their approach towards religion as suspect ground of differentiation is shockingly ambiguous, which can be seen in the two cases mentioned above. In its investigation of Article 14 in conjunction with Article 9, the Court avoids mentioning religion as a suspect ground; although it has been hinted at the suspect nature of religion as a ground of differentiation in some cases where the complaint was about discrimination in granting custody to a parent because of the religious affiliation of the parent concerned[16](see Hoffmann v. Austria (1993)[17]). Their reluctance to unequivocally denote religion as a suspect ground of differentiation is a result of the traditional line of jurisprudence under Article 9 which grants the participating states a broad margin of appreciation regarding ‘religion-state relations’. This answer however, does not explain the underlying question that remains which is why the Court feels the need to grant states a broad margin of appreciation regarding state-church relationships. More recently however, religion-states relations always concern various religions and thus differentiations between religions will inevitably exist. Therefore, when assessing these differentiations, the Court cannot allow states a broad margin of appreciation in matters of church-state relations under Article 9, and simultaneously acknowledge that religion is a suspect ground under Article 14, which entails a narrow margin of appreciation.

     Building on what has been mentioned previously, another angle to look at is the treatment of religious minorities in regards to accommodation of religious practices and norms. There are measures taken in order to address the barrier of participation that certain groups of people that are confronted with in their physical or social environment. These measures are about appreciating the need for equal opportunities, equal access therefore amounting to substantive equality. They are commonly defined in regards to employment, public services, education and social services. It is important to note that these accommodation duties are not absolute, rather, they are limited to what is considered ‘reasonable’ in specific circumstances. The concept of reasonable accommodation was conceptualised in the US and Canada to accommodate the vast religious diversity which followed a period of high immigration. Moreover, the reviews of national regulations in regards to duties of reasonable accommodation revealed that when grounds were specified, they most often include religion.[18] However, with this being said, current EU legislation only explicitly identifies duties of reasonable accommodation on ground of disability.[19] This therefore highlights the inability to protect religious minorities in Europe even though within the law of human rights there seems to be ways to navigate around these seemingly explicit standards through interpretation. Furthermore, with this being said, it was only in February 2016 that the ECtHR was able to explicitly identify duties of reasonable accommodation in terms of Article 14, in a case regarding a blind person.[20] Therefore, this is a telling sign of the fact that it’s unlikely that there will be any significant changes in the way that the Courts view and identify duties of reasonable accommodation on the basis of Article 9 especially due to the Court’s tendency to grant the contracting states a wide margin of appreciation in matters concerning the elusive notion of ‘religion-state relations’ and the lack of a European consensus on duties of reasonable accommodation on religious grounds.

   Most of the complaints about the failures to accommodate religious minorities in a working environment regarding the sanctions for not respecting working hours so that they can attend religious services and/or respect their religious holidays. In the Koteski case[21] the discrimination case wasn’t about indirect discrimination- the claimant complained that he was the only person of the Muslim faith that needed to prove his allegiance in order to benefit from the accommodation that was provided to Muslim terms of days off (so that they could they could honour their holy days). After studying this case, it is evident that when selecting religious holidays, the holidays only seem to accommodate the majority religion of the state, the different treatments could be categorised as either just being denied or being disregarded due to the argument of consensus within the states: ‘in most countries only religious holidays of the majority are celebrated as public holidays.’[22] In other words, actual indirect discrimination complaints are not taken seriously at all. Case law shows that the Court is highly reluctant in highlighting any exemptions or adapting and reinforcing rules that would avoid a disproportionate impact on the followers of a particular religion. A notable exception is the Court’s reasoning which holds that it is the duty of public authorities to make reasonable efforts to provide prisoners with a meal that follows their religious prescripts.[23] An example of this would be Jakóbski v Poland (2010)[24]  and more recently, Vartic v Romania (2013)[25]  these two cases were only decided under Article 9. However, the applicants felt that it was also a violation of Article 14, the Court dismissed this immediately as manifestly ill founded (para 69). Nonetheless, there’s a steady line of jurisprudence since (1976) is based on Article 9, the Court opines that there is no need for a separate evaluation of Article 14 because the inequality of treatment had already been taken into consideration in the finding of a violation of Article 9. Once again, the Court’s case law clearly shows its unwillingness to assess the complaints regarding discrimination.

Bibliography:

Table of Cases:

• Çam v Turkey (2016).
• Dogan and Others v. Turkey (2016).
• Grzelak v. Poland App. No. 7710/02, Eur. Ct. H.R., ¶ 85. (2010)
• Hoffmann v. Austria (1993).
• Jakóbski v Poland (2010)
• Kokkinakis v. Greece (1993).
• Kosteski v the former Yugoslav Republic of Macedonia (2006).
• Lautsi and Othersv. Italy (2011)
• Moscow Branch of the Salvation Army v. Russia (2006).
• SAS v. France (2014).
• Thlimmenos v. Greece (2000).
• Vartic v Romania (2013).
• X v the United Kingdom (1981).

Secondary Sources:

• Charter of Fundamental Rights of the European Union, solemnly proclaimed in Nice in 2001 and reaffirmed in Strasbourg in 2007, O.J. of 14 Dec. 2007
• Bielefeldt, H., 2013. Misperceptions of Freedom of Religion or Belief. Human Rights Quarterly, 35(1), p. 53

• Danisi, C., 2011. How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its nondiscrimination jurisprudence. International Journal of Constitutional Law, 9(3-4), pp. 793-807.
• Ferri, M., 2017. European Papers. [Online]
  Available at: http://www.europeanpapers.eu/en/europeanforum/dogan-et-al-v-turkey-a-missed-opportunity-to-recognise-positive-obligations#_ftn5
  [Accessed 20 April 2019].
• Henrard, K., 2012. Duties of Reasonable Accommodation in Relation to Religion and the ECtHR: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality. Erasmus Law Review, 5(1), p. 64.
• Henrard, K., 2016. The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?. Nordic Journal of Human Rights, 35(3), pp. 157-177.
• Veloy, A., 2014. Minority Rights. [Online]
  Available at: https://minorityrights.org/2014/09/25/europe-minorities-are-protected-but-by-whom/
  [Accessed 29 April 2019].

[1] App. No. 7710/02, Eur. Ct. H.R. (15 June 2010), ¶ 85.

[2] Charter of Fundamental Rights of the European Union, solemnly proclaimed in Nice in 2001 and reaffirmed in Strasbourg in 2007, O.J. of 14 Dec. 2007 (hereinafter CFR). In particular, see chapter III dedicated to equality.

[3] C.  Danisi, How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its nondiscrimination jurisprudence, International Journal of Constitutional Law, Volume 9, Issue 3-4, October 2011, Pages 793–807, https://doi.org/10.1093/icon/mor044

[4] App No 14307/88 (Application No) A/260-A 

[5] The act of attempting to convert people to another religion or opinion

[6] ECtHR judgement, partly concurring opinion of Judge Pettiti

[7] H. Bielefeldt, (2013) ‘Misperceptions of Freedom of Religion or Belief’, Human Rights Quarterly, Vol.35, pp.33-68

[8] no. 34369/97

[9] no. 62649/10

[10] no. 45701/99

[11] no. 72881/01

[12] http://www.europeanpapers.eu/en/europeanforum/dogan-et-al-v-turkey-a-missed-opportunity-to-recognise-positive-obligations#_ftn5

[13]  No. 43835/11

[14] Application no. 30814/06 (2011)

[15] From the University of Sussex, 3^rd September 2014

[16] K. Henrard, The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?, Nordic Journal of Human Rights, 34:3, 157-177, DOI: 10.1080/18918131.2016.1225656, 2016

[17]  No. 12875/87

[18] K Henrard, Duties of Reasonable Accommodation in Relation to Religion and the ECtHR: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality (2012) 5 Erasmus L Rev 64.

[19] UN Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3, art 5, 3; Council Directive (EC) 2000/78 ‘Establishing a General Framework for Equal Treatment in Employment and Occupation’ [2000] OJL 303/16, art 5.

[20] Çam v Turkey (App no 51500/08) ECtHR 23 February 2016

[21] Kosteski v the former Yugoslav Republic of Macedonia (App no 55170/00) ECtHR 13 April 2006

[22] X v the United Kingdom, EComHR Decision, 12 March 1981, DR 27, para 29.

[23] K. Henrard, The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?, Nordic Journal of Human Rights, 34:3, 157-177, DOI: 10.1080/18918131.2016.1225656, 2016

[24] App no 18429/06

[25] App no 14150/08