Legal Battles over Religious Freedom at the European Court of Human Rights

Set up under the European Convention of Human Rights (ECHR) at the Council of Europe, the European Court of Human Rights is a sort of Supreme Court whose jurisdiction extends over about 750 million people in 41 countries, from Greenland to Cyprus and from Gibraltar to Vladivostok. Individuals or associations can submit cases to this European institution for any alleged violation of the ECHR but only after all domestic remedies have been exhausted. The Court  is the implementation mechanism of the ECHR, which guarantees the freedom of thought, conscience, and religion or belief in Article 9 of the ECHR. Other articles, like art 5, 8, 10, 11 (on personal liberty, privacy, freedoms of expression, assembly and association), do not directly protect this freedom but can also be invoked in combination with art. 9.

Article 9 consists of two parts. Paragraph 1 establishes the general principles of freedom of thought, conscience and religion: the right to change one’s religion or belief and the freedom to manifest one’s belief or religion in different ways. It says: “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, and practice observance.” Paragraph 2 fixes the limitations put to that freedom insofar as they are prescribed by law and necessary in a democratic society. It says: “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 the protection of the rights and freedoms of others". Article 2 of the ECHR’s First Protocol establishes that nobody shall be denied the right to education, and that in relation with education and teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. Article 14, which prohibits every kind of discrimination based on religion or belief, can be used in combination of Article 9 and the First Protocol.

From 1964 to 2001, the European Court has issued twenty-two final judgments in cases against Austria, Bulgaria, Denmark, France, Germany, Greece, Moldova, San Marino, Sweden, Turkey, the U. K. There have been five friendly settlements.[i] Some of these legal battles have been initiated by religious non-state actors: a Catholic church in Greece, the Bulgarian branch of Jehovah’s Witnesses, an Orthodox denomination in Bessarabia or a Jewish group in France. Most of the cases were introduced by individuals supported by religious non-state actors from the beginning to the end of very long proceedings: twelve cases concerning Jehovah’s Witnesses in Greece, Bulgaria and Germany; two cases involving the national Muslim communities in Greece and Bulgaria; and one case concerning Pentecostals in Greece.

The most important rights involved in these cases were: proselytism or the right to propagate one's religious beliefs and to make new members, freedom of religious expression, religious hate speech, various issues related to conscientious objection military service, denial of registration, freedom of worship, child custody in divorce cases, state non-interference in internal matters of religions. The European Court is still in its infancy, but it has already been reformed and more changes are announced due to the increasing number of complaints lodged. However, a number of tendencies can already be highlighted.

A wide majority of cases concluded by a final judgment or a friendly settlement have been introduced by individuals affiliated with religions which are in the minority in their respective countries: Jehovah’s Witnesses (12 cases out of 13), Muslims (2), Jews (1) and Pentecostals (1) so that the European Court can be seen as their last resort to annul the effects of ‘bad’ or discriminatory laws, to protect themselves against state interference in their internal matters and to guarantee their rights.    

A decision of the European Court concerns only the case it has been requested to judge and the state is obliged only to implement the Court’s decision in the said case. In the aftermath of each of the European Court’s decisions, no domestic law was abolished or reformed. Experience shows however that such decisions can have far-reaching effects which are difficult to outline and evaluate.

The record of the Court’s decisions show clearly that the European Court contributes to the implementation of the freedom of religion and belief in the 41 member-states of the Council of Europe and paves the way to a better protection of minority religions. Due to the length and the costs of the proceedings, it is also obvious that the attempts at creating European case-law could not be successful without the backing by non-state actors (human rights organizations and the concerned religious groups).