May 8, 2021 | Willy Fautré | Freedom of Religion and Belief | HRWF
In the last few years, we have seen attempts by private and public actors in Europe to interfere in the internal life of religious communities and sometimes to criminalize some long-standing practices in the name of some human rights.
The case of Päivi Räsänen in Finland is a good example of the clash between freedom of conscience, thought, opinion and expression about religious beliefs on the one hand and hate speech on the other hand.
In another case, the association of Jehovah’s Witnesses in Belgium has been recently sentenced to a very heavy fine by the Criminal Court of Ghent on charges of discrimination and incitement to hatred for teaching their members to practice social distancing (shunning, as it is known in their theology) with excluded and disassociated members. They are now told to renounce this teaching and this habit. The verdict is being appealed.
Courts and the judiciary are increasingly used by various private and public actors to try to forcibly modify the teachings of religious organizations, whether they are historical or not. These institutions are taking over a practice that is forbidden to states by international and European standards on freedom of religion or belief: interference in internal matters of religions. (See below)
We can expect that this trend will continue and accelerate in Europe. This will be a challenge not only for the European Court of Human Rights in Strasbourg (ECtHR) but also for the Court of Justice of the European Union (CJEU) in Luxemburg where religious freedom case law has grown exponentially, spanning labour law issues, tax exemptions, religious divorces, refugees, privacy, proselytism, and ritual slaughtering.
Some Jurisprudence of the European Court
Manoussakis and Others v. Greece (1996)
“47. The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.”
Hasan and Chaush v. Bulgaria (2000)
“78. Nevertheless, the Court considers, like the Commission, that facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in this domain must lead to the conclusion that the State interfered with the believers’ freedom to manifest their religion within the meaning of Article 9 of the Convention.”
Metropolitan Church of Bessarabia and Others v. Moldova (2001)
“123. (…) the Court observes that the State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs and requires the State to ensure that conflicting groups tolerate each other, even where they originated in the same group.”
The Moscow Branch of The Salvation Army v. Russia (2007)
“92. The Court points out that, according to its constant case-law, freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.”
Church of Scientology of Moscow v. Russia (2007)
“72. The State’s neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.”
Jehovah’s Witnesses of Moscow v. Russia (2010)
“99. The State’s duty of neutrality and impartiality, as defined in the Court’s case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs.”