May 04, 2023
By Betül Durmuş
On 9 March 2023, the First Section of the European Court of Human Rights (‘the Court’) delivered its decision on a promising case on religious upbringing – Cupiał v Poland – which concerns the criminal conviction of a religious parent for psychological abuse of his children. Although the case carried a great potential to be a leading case on the limitations of religious upbringing and the triangular relationship between children’s rights, parental rights, and the state’s duty to protect, the Court mainly focused on the right to fair trial under Article 6 and did not find it necessary to examine the remaining arguments on Articles 8, 9, 14 and Article 2 of Protocol No. 1.
In what follows, in the first two sections, I explain the facts of the case and the judgment of the Court. In the third section, I review the jurisprudence of the Court on religious upbringing and argue that there exist two tests so far: whether domestic courts conduct an abstract or a concrete assessment of the child’s interests or whether parental religious practices reach the level of actual harm to the child. In the fourth section, I analyse Cupiał v Poland through the lens of these tests and show that this could have been a moment for the Court to clarify its unsettled stance on the actual harm threshold.
The applicant and A had three children who were born in 1991, 1994 and 1996. At the end of 2005, A initiated divorce proceedings and, in the following year, lodged a criminal complaint against the applicant by alleging that he psychologically abused herself and the children. The report prepared by psychologist E.D. upon the prosecutor’s order noted that the applicant woke the children up at night, restricted their mealtimes, imposed his religious worldview and applied punishment on the children which caused distress.
In March 2007, the applicant was charged with domestic abuse pursuant to Article 207 of the Criminal Code. The Lublin District Court received several reports from E.D., heard witnesses, interviewed the youngest child according to the blue-room procedure without the presence of the applicant and interviewed the eldest daughter M. – who was 17 years old at that time – without the presence of either of the parties. M. stated that the applicant had never abused his children.
During the trial, the applicant contested the reports of E.D. and raised his doubts on the expert’s impartiality several times. However the domestic court found no reason to disqualify the expert. The applicant also argued that A’s complaint regarding psychological abuse was not genuine as she had allegedly threatened him with a criminal complaint unless he consented to divorce. The applicant’s request to hear A’s new partner as a witness was also denied.
In July 2010, the Lublin District Court convicted the applicant for psychological abuse and sentenced him to one year imprisonment that was suspended for three years. The District Court considered that M’s statements were not entirely reliable as they contradicted her earlier testimony. According to its findings, children had to confess and apologise for their sins in public in the presence of the whole family and other members of the religious movement. They were not allowed to eat any food outside of mealtimes and their night sleep was interrupted by the applicant for the evening prayers. The applicant’s appeal against this decision was dismissed by the Lublin Regional Court.
The Court held that the central issue in the applicant’s complaint was the way in which domestic courts assessed evidence. It also highlighted that the effective enjoyment of the right to a fair trial is tied to the parties’ right to be heard (para. 56). It also referred to the duty of courts and tribunals to state the reasons of their judgments (para. 57). According to the Court, it is not its task to review how evidence is assessed by the courts and rule on guilt or innocence of the person. However, it is within its competence to assess whether the domestic courts gave reasons for their judgments (para. 62).
By focusing solely on domestic courts’ duty to state their reasons, the Court found that three issues were not sufficiently addressed. First, one of the main arguments of the applicant was that the criminal complaint was raised against him because he did not consent to divorce. According to the Court, the domestic courts did not address this argument and made no efforts to analyse the general context of the case (para. 63). Second, the psychological evaluations were made by the same expert E.D. and the applicant repeatedly contested the expert’s findings. The Court held that domestic courts dismissed the applicant’s objections without a sufficient reasoning – which was of critical importance, given that the parties are deeply conflicted and the expert opinion carries great weight (para. 64). Third, regarding M.’s testimony in favor of her father, domestic courts did not discuss the fact that M. chose to live with her father. In the Court’s view, domestic courts did not sufficiently examine any possible connections between other witnesses and the applicant and A (para. 65). These shortcomings led the Court to conclude that there was a violation of Article 6(1) of the ECHR.
Before the Court, the applicant also claimed that these facts gave rise to separate violations of Articles 8, 9, 14 and Article 2 of Protocol No. 1. Although the applicant’s substantive arguments are not explained in detail in the Chamber’s judgment, it is seen in the questions submitted to the parties that the applicant alleged that his parental practices did not constitute psychological abuse and were not harmful to his children (Article 8), his religious beliefs were a reason for his criminal conviction (Article 9), and his conviction was discriminatory on the basis of religion (Article 14).
However, and quite unfortunately, the Court considered that these claims were already addressed under Article 6:
Although the Court was too quick to subsume the applicant’s arguments under Article 6, this case is not that different from the earlier cases where parents lost residence or contact rights due to their religious practices that were deemed harmful to their children. And, in all these cases, the Court did examine Articles 8 or 9 in conjunction with Article 14.
Starting from Hoffmann v Austria (1993), the main test employed by the Court has been whether domestic courts’ assessment was in concreto or in abstracto. In Hoffmann, the domestic court’s decision not to give custody to a religious parent was its concern that children would become “social outcasts” if they are educated according to the tenets of Jehovah’s Witnesses. The Court decided that this reasoning relied solely on the difference in religious belief and were not based on psychological expert opinions. This was a violation of Article 8 in conjunction with Article 14 since there was not a reasonable relationship of proportionality between the removal of the applicant’s parental rights and the aim to secure the interests of the child (para. 36).
Ten years later, the Court reached the same conclusion in Palau Martinez v France (2003) where the domestic court criticised Jehovah’s Witnesses’ methods of upbringing and stated that “it is in the children’s interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect.” Having noted that the domestic court did not order a social inquiry report, it ruled that the assessment was “in abstracto and on the basis of general considerations, without establishing a link between the children’s living conditions with their mother and their real interests” (para. 42).
In a subsequent inadmissibility decision – F.L. v France (2005) – the Court developed a more principled stance on the role of domestic courts. Accordingly, the aim of taking into account the best interests of children must reconcile the educational choices advocated by each of the parents and must ensure a satisfactory balance between different conceptions, precluding any value judgment, and where appropriate, a minimal supervision of personal religious practices.
The Court’s emphasis on assessment in concreto and the duty to refrain from value judgments was reiterated in Deschomets v France (2006). In this case, the Court noted that the domestic courts relied on the children’s daily living conditions and on the expert reports. Accordingly, the courts “gave their disputed rulings without any theoretical discussion, and therefore any value judgments, as to the applicant’s conceptions and ideological practices.”
Finally, in Ismailova v Russia (2007), the Court did not find a violation of the applicant’s rights since the domestic courts did not rely on the applicant’s religious beliefs per se but evaluated the fact that she included them in her religious activities and failed to protect them (para. 62).
For some time, the Court solely examined whether the domestic courts considered the concrete daily conditions of children, relied on expert opinions and avoided value judgments on religious upbringing. While this test – assessment in concreto versus in abstracto – still remains in the Court’s jurisprudence, Vojnity v Hungary (2013) introduced a new normative test for religious parental practices: the actual harm threshold. In Vojnity, the first instance court found that the applicant’s efforts to proselytise his child endangered the child’s development and upbringing; it therefore decided to remove his access rights. The appeal court even held that his “irrational worldview made him incapable of bringing up his child” (para. 14).
The European Court’s systematic interpretation of Articles 8 and 9 of the ECHR, together with Article 2 of Protocol No. 1, provides parents “the right to communicate and promote their religious convictions.” The Court described such a right as an “uncontested right” of the parents to pass on their religious ideas or worldview to the child, even “in an insistent or overbearing manner.” However, in any case, this should not expose the child to “dangerous practices or to physical or psychological harm” (para. 37). In Vojnity, the Court was not convinced that there was an “actual harm” going beyond “the mere unease, discomfort or embarrassment which the child may have experienced on account of his father’s attempts to transmit his religious beliefs” (para. 38).
Later, the actual harm threshold was reiterated in a corporal punishment case Tlapak and others v Germany (2018) where the Court upheld Germany’s measure to separate children from their parents to protect them from “institutionalized violence against minors” within the religious community (para. 98). However, the Court’s approach in T.C. v Italy complicated this test. In this case, which concerned the disagreement of non-cohabitating parents on the child’s religious upbringing, the applicant challenged the domestic court’s order refraining him from actively involving the child in the practices of Jehovah’s Witnesses. In T.C., the Court departed from Vojnity on two points. First, it was of the view that the domestic courts focused solely on the child’s interests “to protect her from the purported stress exerted by the applicant’s intensive efforts to involve her in his religious activities” (emphasis added, para. 48). Yet, in Vojnity, the Court told us that “the mere unease, discomfort or embarrassment” experienced by the child cannot suffice to constitute harm and justify intervening into religious upbringing (for this argument see also the dissenting opinion of judges Paczolay and Felici, para. 19). Second, the Court was content with the domestic courts’ conclusion that the involvement of the child in the practices of Jehovah’s Witnesses “more intensely would [have] been harmful for her” (emphasis added, para. 48). It is clear that this forward-looking evaluation is not compatible with the actual harm threshold.
In fact, the Court’s departure from Vojnity is not necessarily unwelcomed. This is because the Court’s actual harm threshold is difficult to reconcile with the provisions of the Convention on the Rights of the Child (‘CRC’). While Articles 5 and 14 of the CRC stipulate that parental guidance and direction in the exercise of the child’s rights shall be “in a manner consistent with the evolving capacities of the child,” Article 18 sets out that the best interests of the child shall be the parents’ “basic concern.” These provisions together with the spirit of the CRC show a paradigm shift from a proprietorial to a fiduciary conception of parenthood (on the ‘fiduciary’ role of parents under the CRC, see John Tobin & Sheila Varadan, Art.5 The Right to Parental Direction and Guidance Consistent with a Child’s Evolving Capacities, in The UN Convention on the Rights of the Child: A Commentary). This means that states’ duties should not be confined to ex post facto interventions into the ‘harmful’ practices of parents, but that they also have a duty to support good, responsible and child-rights sensitive parenthood (see also Council of Europe Recommendation on Policy to Support Positive Parenting).
In light of these discussions, turning back to Cupiał, one can notice that the first test is not that challenging since the domestic courts’ evaluation is very likely to be found reasonable. The domestic courts based their decisions on psychological expert reports and focused merely on the specific conditions of the children’s lives such as the fact that they were woken up by the applicant at night, they had to confess their sins in public, they could not eat between mealtimes, and they had to give their beds to their father’s guests. Neither the District Court nor the Regional Court made negative remarks or stereotypical assessments of the applicant’s religious affiliation. Since the facts do not indicate that domestic courts based their decisions solely on the applicant’s religious belief, these alone would not qualify as a violation of Article 8, 9 or 14.
The second test – the actual harm threshold – is more challenging, partly because the Court’s case-law is far from clear on this test and also because Cupiał is rather unprecedented in terms of its factual differences from the previous cases. While other cases concerned residence or contact rights of parents, Cupiał involved a criminal sanction and therefore a stricter measure on the applicant’s parental rights.
In revisiting the actual harm threshold, Cupiał could have been a novel contribution in two respects. First, the Court could have addressed the notion of ‘harm’ and answered the question of whether making children performing religious practices would fall into that notion. On this point, one could easily imagine the Court taking an approach of deference as it did in Strand Lobben and others v Norway, where it refrained from reviewing the initial reasons of taking children into public care. However, it would still be an interesting development to see the Court granting a margin of discretion to the state in determining the limits of religious upbringing.
Another – rather less likely path – could have been resorting to the broad understanding of violence and harm developed by the UN CRC Committee. Its General Comment No 13 indicates that severity or intent should not be determinative in deciding which acts constitute violence or harm against children and the term ‘violence’ also encompasses psychological or emotional neglect and mental violence.
Second, the Court could have addressed whether criminal action against parents is a proportional measure. In the case of corporal punishment, for instance, the CRC Committee asked states to treat this issue with caution. As put forward by the CRC Committee, considering the intimate relationship between parents and children, “prosecuting parents is in most cases unlikely to be in their children’s best interests” (General Comment No 8, para. 41). In the case of Cupiał, a review of the existence of less stringent measures such as consulting, training or monitoring the parent would have been a central issue as the applicant’s contact rights were not restricted by domestic courts. To conclude, it was unfortunate for the Court to confine its analysis to the applicant’s Article 6 rights without providing a convincing explanation why it did not examine other rights. As I have tried to show, the burgeoning jurisprudence of the Court on religious upbringing is in need of a clear and more principled stand on the actual harm threshold. Cupiał could have been the moment to deliver it.