February 27, 2013
It looks like freedom-of-religion season has arrived in Strasbourg. After leaving aside the “freedom to resign” doctrine in Eweida, the Court has just made another move towards greater recognition of the importance of freedom of religion. In Vojnity v. Hungary, the Court clearly recognizes religion as a “suspect” ground of differentiation. As a result – and just like distinctions based on race, sex and sexual orientation – states must give “very weighty reasons” if they wish to justify differences based on religion. In less than a month, the Court has thus put freedom of religion and non-discrimination on the basis of religion on firmer grounds in Strasbourg.
The applicant is an adherent of the religious denomination Hit Gyülekezete (Congregation of the Faith). He is divorced and has a son. Expert opinions suggested that custody be denied to him given his “unrealistic educational ideas hallmarked by religious fanaticism.” Domestic courts placed the child with his brother and kept the father’s access rights. Later on, however, they removed the father’s access rights altogether. The Hungarian courts found his visits harmful for the child, based on an expert opinion highlighting that the applicant’s participation in the boy’s life was damaging because of “his insistence on proselytism.” The Csongrád County Regional Court, for example, held that the applicant’s “irrational worldview made him incapable of bringing up his child” and that he “did not exercise his right of access in accordance with its purpose … but to impose his religious convictions on the child.”
Relying on Articles 14 and 8, the applicant claimed that he was discriminated against on the basis of his religious beliefs in the enjoyment of his right to respect for family life. The Government, on the other hand, claimed that it was the child’s best interests – not the applicant’s religious convictions – that were paramount in the domestic courts’ decisions.
The applicant’s discrimination complaint was examined under Article 14 and Article 8. The Court found that the applicant was discriminated against on the basis of his religious beliefs in the exercise of his right to respect for family life. First, it established that there was a difference of treatment between the applicant and other parents in an analogous situation: the applicant’s religious convictions were decisive in the removal of his access rights. Then – and after asserting that only “very weighty reasons” could justify a difference of treatment based on religion – the Court found that there was actually no such a reason in this case. “The Court observes that in the present case there is no evidence that the applicant’s religious convictions involved dangerous practices or exposed his son to physical or psychological harm” (paragraph 38).
The Court considered that, even assuming that the concern about the psychological harm to the child amounted to “a very weighty reason,” the solution was just unacceptable. Measures as radical as the one taken in this case can be justified only in exceptional circumstances. The Government did not show that such exceptional circumstances existed in this case. The Court further found that the absolute ban on the applicant’s rights amounted to a complete disregard of the principle of proportionality: no consideration was given to whether any other less severe measure could have been enough to allow the child to regain his emotional balance.
As far as I know, before Vojnity the Court was not entirely clear about the suspect nature of religion in its non-discrimination case law. True, it had given various hints – some actually argue that the Court already recognized religion as “suspect” in the 1993 case of Hoffmann v. Austria. Indeed, in Vojnity, the Court refers to the principle affirmed in Hoffman that “a distinction based essentially on a difference in religion alone is not acceptable” (paragraph 31). To me, however, none of the previous signs can be considered as clear as the one given in Vojnity:
[The Court] considers that, in the light of the importance of the rights enshrined in Article 9 of the Convention in guaranteeing the individual’s self-fulfilment, such a treatment will only be compatible with the Convention if very weighty reasons exist. The Court has applied a similar approach in the context of differences in treatment on the basis of sex (see Abdulaziz, Cabales and Balkandali, cited above, § 50), birth status (see Inze v. Austria, 28 October 1987, § 41, Series A no. 126), sexual orientation (see L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003-I) and nationality (Gaygusuz v. Austria, 16 September 1996, § 42, Reports of Judgments and Decisions 1996-IV) (paragraph 36).
Note that the Court does not use classic discrimination rationale (usually couched in terms of “history of discrimination”) to regard religion as “suspect.” In general, it is precisely historical prejudice against certain groups that makes judges worry that distinctions singling out these groups will be most likely tainted by prejudice. For this reason, courts tend to become more suspicious of differentiations based on certain grounds and, therefore, stricter in their scrutiny. In Vojnity, several elements indicated that the expert reports and the courts’ decisions were actually motivated by prejudice. As the Strasbourg Court notes, the Regional Court “deprived the applicant of his access rights essentially on account of the applicant’s ‘irrational worldview’ and his attempts to impose his religious convictions on the child, without explaining what real harm these caused to the child” (paragraph 38). What else is this reference to the applicant’s “irrational worldview” if not prejudice towards his religious views?
The Court’s argument for asking “very weighty reasons” is the importance of freedom of religion itself. This importance lies in the ability of the right to guarantee “the individual’s self-fulfilment.” This is a type of argument I would associate more with Article 10 or Article 8 case law. In Axel Springer AG v. Germany, for example, the Court has said: “Freedom of expression constitutes … one of the basic conditions … for each individual’s self-fulfilment” (paragraph 78). And, in Fernandez Martinez v. Spain the Court has held that Article 8 “protects the right to self-fulfilment . . . whether in the form of personal development … or from the standpoint of personal autonomy” (paragraph 56). I am not saying that the autonomy (or self-fulfilment) argument does not or should not belong in freedom of religion case law. What I am saying is that it is somehow surprising that the Court actually uses a liberty- rather than an equality-based rationale to justify stricter scrutiny in a discrimination case. In any event, the rationale in Vojnity suggests that the principle may be applied outside the discrimination context. If the reason for heightened scrutiny lies in the importance of freedom of religion, why could this level of scrutiny not apply to restrictions on rights under Article 9 alone?
If there were any doubts about the suspect nature of religion as a ground of differentiation in the Court’s non-discrimination case law, Vojnity dissipates them all: religion is “suspect.” In my view, the move is certainly positive. It is hard to deny that religion has historically worked as a category of discrimination and persecution and it therefore makes sense to apply heightened scrutiny to differences based on this ground. It is no wonder that in many other cases concerning religious discrimination in custody disputes (see e.g., Hoffmann v. Austria, Palau-Martinez v. France and Deschomets v. France), the applicants belonged to minority or unpopular religious groups.
 See Dissenting Opinion in Redfearn v. the United Kingdom, paragraph 4. See also, Kristin Henrard, “Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality,” Erasmus Law Review, Volume 5, Issue 1 (2012), pp. 71-72. Henrard, however, observes: “The supervisory practice of the Court is … rather ambivalent about the suspect nature of religion.” Id. p. 71.
 See Renata Uitz, Rethinking Deschomets v. France: reinforcing the protection of religious liberty through personal autonomy in custody disputes in DIVERSITY AND EUROPEAN HUMAN RIGHTS: REWRITING JUDGMENTS OF THE ECHR (Eva Brems, ed.), Cambridge University Press (Cambridge: 2012).