April 05, 2012
This post was co-authored by Saïla Ouald Chaib and Lourdes Peroni
This week, in a 4-3 judgment, the Court ruled against a violation of the freedom of religion of Mr. Sessa, a lawyer and member of the Jewish faith, unable to attend a court hearing scheduled on Yom Kippur. The case is Francesco Sessa v. Italy. After two recent steps forward in freedom of religion cases (see here and here), the Court with this case takes several steps back. Fortunately, the dissenting opinion leaves the door open for future reasonable accommodation cases.
Mr. Sessa was the representative of one of the complainants in a criminal case. In this capacity, he appeared before an investigating judge at a hearing concerning the production of evidence. As the judge was prevented from sitting, his replacement invited the parties to choose between two dates for the adjourned hearing (13 or 18 October 2005), according to a timetable already set by the investigating judge. Mr. Sessa pointed out that his religious obligations would prevent him from attending the hearing, as both dates corresponded to Jewish holidays (Yom Kippur and Sukkoth). The hearing was scheduled for 13 October 2005. The applicant lodged an application for an adjournment with the investigating judge in the case but his request was rejected.
Majority Closes the Door to Reasonable Accommodation, but Dissenters Open a Window
While recent cases like Jakobski v. Poland (see our joint post here) and Gatis Kovalkovs v. Latvia (see Saila’s post here) can be viewed as positive steps towards the recognition of reasonable accommodation in freedom of religion cases, it is hard to tell what exactly Sessa v. Italy means for the concept’s further development. All the elements for accommodating the applicant without disproportionately burdening the judiciary were in place, as the dissenters acknowledge. The majority, however, shuts the door at any possibility of considering reasonable accommodation in the very first stage of the analysis by not even finding interference with the applicant’s freedom of religion.
The Court seems to maintain the line of reasoning often used by the former Commission of Human Rights in religious accommodation cases such as Stedman v. the United Kingdom and Konttinnen v. Finland, referred to in this case. In these cases, the Commission was of the opinion that the restrictions imposed on the applicants were a consequence of their contractual obligations and had nothing to do with their freedom of religion. (In Stedman the applicant, a Christian women, was fired after refusing to work on Sundays and in Konttinen, a Seventh Day Adventist was fired after refusing to work on Sabbath). Moreover, the Commission also argued in Konttinen and Stedman that the applicants were free to resign if they wanted to practice their religion freely (for a discussion on this issue, see the following post). Similarly, in the present case, the Court is not convinced that there was interference for the following reasons:
Tout d’abord, il n’est pas contesté que l’intéressé a pu s’acquitter de ses devoirs religieux. En outre, le requérant, qui devait s’attendre à ce que sa demande de report soit refusée conformément aux dispositions de la loi en vigueur, aurait pu se faire remplacer à l’audience litigieuse afin de s’acquitter de ses obligations professionnelles. (par.37)
While it is true that the applicant was able to fulfill his religious duties, this did not come without sacrifices on his part since he was not able to be present at a hearing of his client. This is exactly the issue the applicant is complaining about. His complaint concerns the unwillingness of the Italian authorities to accommodate his religious needs so that he can practice his religion freely without having to make professional compromises. In the paragraph quoted above the Court accepts the de facto situation where an applicant has to choose between his religious duties and his professional duties. According to the Court, a choice was not really necessary because the applicant was replaceable by another lawyer. In our view, this argument does not belong to the interference level. Even if the applicant is replaced by a colleague, his professional wish to be present at the hearing can still not be fulfilled because of religious reasons. His religious freedom is thus still interfered with. It can be argued, however, that this element can play a role in the balancing exercise of the several interests at stake in the proportionality analysis
In a subsequent (and rather superfluous) analysis, the majority makes clear that, even assuming that there was interference, this would have been proportionate anyway: the refusal was justified on grounds of the public’s right to the proper administration of justice and the principle that cases be heard within a reasonable time.
Interestingly, however, reasonable accommodation slips through the dissenting opinion’s window. And it does so in the proportionality analysis. The three dissenting judges – Tulkens, Popović and Keller – note that proportionality requires that authorities resort to the least restrictive means where there are several alternatives to achieve the pursued legitimate aim. Reasonable accommodation, the dissenters add, may be such a means in certain circumstances. They note that the applicant asked an adjournment of the hearing well in advance (4 months) and that the hearing did not have an urgent character. They say:
Or, en l’espèce, nous pensons que les conditions étaient réunies pour tenter d’arriver à un aménagement et un aménagement raisonnable – c’est-à-dire qui n’entraîne pas pour les autorités judiciaires une charge disproportionnée – de la situation. Avec quelques concessions, celui-ci aurait permis d’éviter une ingérence dans la liberté religieuse du requérant, sans pour autant compromettre la réalisation du but légitime que constitue de toute évidence la bonne administration de la justice (par. 10).
No Discrimination Analysis
The Court declares the Article-14 complaint manifestly ill-founded: “Elle observe que le requérant n’a nullement démontré avoir été discriminé par rapport à des personnes étant dans une situation analogue à la sienne” (par. 42). While it is not obvious from the judgment what exactly the applicant argued in this respect, it is obvious that the case concerns the application of the kind of measures that have differential (and potentially discriminatory) effects on members of religious minorities. Lawyers adhering to the majority faith, upon which (judicial) calendars of holidays are usually based, will not face the kind of painful choice Mr. Sessa did. For example, a Christian lawyer will never be confronted with a situation where s/he is compelled to choose between celebrating Christmas or Easter and fulfilling her/his professional duties.
The Supreme Court of Canada has been well aware of the effects of rules of this sort on minorities. In Commission scolaire régionale de Chambly v. Bergevin, the Canadian Court held that “[a]lmost invariably, those adversely affected will be members of a minority group”. The issue before the Canadian Supreme Court in this case was whether the work schedule for teachers had the effect of discriminating against Jewish teachers who wanted to observe Yom Kippur. The Canadian Court recognized that, as a result of their religious beliefs, the Jewish claimants had to take a day off work while the majority of their colleagues had their religious holy days recognized as holidays from work. Similarly, the Court could have at least acknowledged this in Sessa.
Freedom of Religion in a Multicultural Society
We agree with the dissenters that a violation of Article 9 should have been found in this case. In addition, we think that the case should have at least been considered under Article 14. As a final remark, we would like to highlight a statement made by the dissenters. The statement summarizes precisely the type of issue underlying this kind of cases:
Certes, le report demandé de l’audience pouvait entraîner certains inconvénients administratifs, comme par exemple la nécessité de renouveler la notification de la date d’audience aux parties impliquées. Mais ceux-ci nous paraissent minimes et constituent peut-être le modique prix à payer pour le respect de la liberté de religion dans une société multiculturelle (par. 13). (emphasis added)
Indeed, the question at stake is how far we can go in a multicultural society in accommodating religious minorities. The majority, instead, focuses on how a member of a religious minority should adapt to a societal system based on the majority religion, thus placing the burden of accommodation entirely on the applicant. By not finding interference with the applicant’s freedom of religion and by not acknowledging that he is de facto treated differently compared to adherents of majority religions, the Court shows little understanding of religious minorities’ concerns.
In sum, in this judgment, the Court doesn’t seem to take freedom of religion seriously enough as a human right. It doesn’t show itself understanding of the position of religious minorities in a society where the societal system is based on the dominant religion. The reasoning used in this case makes minorities’ freedom of religion meaningless. The human right to religious freedom should be examined carefully, especially in cases dealing with members of religious minorities who are per definition more vulnerable. The Court should start thinking about the implications this type of reasoning may carry for minorities and for its own representativeness and legitimacy. As was already argued in a previous post, this risks alienating minorities. For all these reasons, and in view of the tight (4-3) decision, we think that this case should be referred to the Grand Chamber.