Leaving Aside Freedom of Religion Complaints

Some of us were expecting with great interest the Court’s judgment in Ali v. Romania, particularly its decision concerning the alleged violation of freedom of religion. The applicant, a Muslim serving a sentence in Rahova Prison, complained that the prayer room had been closed. The judgment came out this week. The Court’s decision on Article 9 (freedom of religion) has left me however puzzled, if not dissatisfied. Why? The reasons are quite simple.

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Şerife Yiğit v. Turkey: The Court did it again!

The first post I wrote for our blog was titled: “Is a more inclusive wind blowing through the Court?”. In this post I discussed the case of Muñoz Díaz v. Spain that came out atthe end of 2009, about the non-entitlement to a widow pension by a women who was married for 29 years, but whose marriage was not seen as legally binding since it was solemnized according to Roma rites. I concluded my post by questioning whether the judgment in Muñoz Díaz  “represents a new wind through the jurisprudence of the court towards minority issues and especially towards legal pluralism” and “if this new wind exists, the question arises whether it will also reach Şerife Yiğit’s case that is still pending before the Grand Chamber”. This case is very similar to Muñoz Díaz, with the difference that here it concerns the non-entitlement of a widow pension to a woman who was only religiously married in Turkey and another difference is that the applicant does not belong to a minority in Turkey. We have been waiting one year in suspense for the answer to the last question. The answer the judges of the Grand Chamber unanimously gave last week was –again- a clear no. Continue reading

Konstantin Markin: One more applause to the Court. This time from a perspective of religious minority rights

The case Konstantin Markin v. Russia was already discussed in a previous post written by my colleague Alexandra who, from a gender perspective, found it a very interesting case, worth applauding on several points.

I want to add an additional point from the perspective of religious minority rights. When reading the case I was surprised by the irony of the following statement made by the Court in paragraph 58: Continue reading

Lautsi and the Empty Wall

Is an empty wall in a state school classroom more neutral than a crucifix on it? No, it is not, argued NYU Professor, Joseph Weiler, representing various intervening governments in the very much expected Lautsi hearing last week. In his view, the naked wall (the absence of religion) is not a neutral option, particularly in today’s societies where the principal cleavages are not among different religions but rather between religious and non-religious (see also his post in EJIL: Talk!).

The Lautsi case raises a whole array of complex issues concerning the limits of permissible state-church relationships under the Convention. Some of the most interesting questions raised during the hearing revolved around the idea of state neutrality in the context of public education. This post focuses on the neutrality debate that took place during the hearing.  Continue reading

Jehovah’s Witnesses of Moscow v. Russia: Strange considerations, but good conclusion

On the 10th of June, the ECtHR issued a judgment about the religious community of Jehovah’s Witnesses of Moscow. In this case, the applicants firstly complained of a breach of article 9 of the Convention since the religious community was dissolved and its activities were permanently banned. The dissolution was ordered following allegations for luring minors into religious associations against their will and without the consent of their parents and for coercing persons into destroying the family, infringing the personality, rights and freedoms of citizens; inflicting harm on the health of citizens; encouraging suicide or refusing on religious grounds medical assistance to persons in life- or health-threatening conditions; and inciting citizens to refuse to fulfil their civil duties. The District Court found that the applicant community violated the right to freedom to choose one’s religion by resorting to active proselytising and “mind control”. The second complaint of the applicants was that the refusal for their re-registration constituted a breach or article 11 ECHR. The Court unanimously found a violation on both complaints.

Although I agree with the outcome in this case I find some parts of the reasoning very disturbing. Continue reading

About crucifixes and headscarves in Dutch jurisprudence. Is there a difference between both?

The Appeal Court of Amsterdam (Gerechtshof Amsterdam) issued on the 15th of June an interesting judgment concerning the wearing of crucifixes by the personnel of a private company that provides public transport services. The personnel of the company GVB must wear a uniform during working hours. The wearing of ornaments on their uniform such as a necklace or a brooch is forbidden. This judgment provoked a little discussion in our team. Bellow you will find a short summary of the case and several comments of some team members.

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“I swear I am not an Orthodox Christian!” Oath taking rules in Greek penal law: Dimitras v. Greece

The general rule in the Greek penal law requires witnesses to take an oath on the Gospels. Accordingly witnesses are a priori considered to be of the Orthodox Christian faith. Individuals who have another religion or who do not have a religion must declare this explicitly to the judge during the hearing. When the witness follows a religion which is recognized or tolerated by the state, he or she can follow the oath taking rules of this religion. When the religion of the witness has no oath taking rules or when the witness has no religion a solemn declaration is sufficient.

In Dimitras v. Greece the Court examines whether the Greek legislator gives the possibility to witnesses to opt for the solemn declaration instead  of taking the oath, taking into account the negative aspect of the religious freedom protected by article 9 ECHR.

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Conscientious objection: unfortunate precedent should not survive in the Grand Chamber

It is great news that the Grand Chamber has accepted the request for referral in the conscientious objection case of Bayatyan v. Armenia. Last October, against commonly accepted standards in the Council of Europe Member States (see, PACE, Recommendation 1518, 2001, paras. 2 and 3) and, despite Armenia’s official commitment to pardon conscientious objectors (see, PACE, Opinion No. 221, 2000, para. 13, iv, d), the Chamber upheld a Jehovah’s Witness conviction for refusing to perform military service on religious grounds. The European Court concluded that “Article 9, read in the light of Article 4 § 3 (b), does not guarantee a right to refuse military service on conscientious grounds.”

The applicant had asked the Court to examine the case “in the light of the evolution of the law and the current practice among member states, the greater majority of which had recognized the right of conscientious objection.” The Court admitted the fact that the majority of Member States had adopted laws providing for alternative service for conscientious objectors. Unfortunately, however, the Court did not proceed this way. Continue reading

Remembering Lautsi

“When is a cross a cross?” was the heading of a post by Stanley Fish earlier this month in the NY Times Opinionator Blog. The entry referred to US Supreme Court’s recent ruling in Salazar v. Buono concerning a solitary Latin cross standing in the Californian desert as a memorial for those who fought in World War I. Alluding to the Establishment Clause jurisprudence, Fish notes that this case is the “latest chapter” of an “odd project of saving religion by emptying it of its content.” He argues that “[i]t has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them.”   Continue reading

Would a Niqab and Burqa ban pass the Strasbourg test?

By Lourdes Peroni, Saïla Ouald-Chaib and Stijn Smet

Whether it is a Burqa or a Niqab, what is at stake is a face-covering veil. This veil is increasingly becoming the subject of heated discussion within Europe. In France, a bill that aims to prohibit its wearing is the subject of a national debate. Also at the level of the European Union certain members of the European Parliament are calling for a general ban on the wearing of face-covering veils.

In this context, the Belgian Chamber of Representatives recently passed an amendment to its Penal Code prohibiting the wearing of clothes that “completely or largely cover the face” and thus became the first European country to introduce what is popularly referred to as the Burqa ban. Although the Chamber of Representatives already approved it with near unanimity (136 votes in favor, two abstentions), the law is not yet definitive as it requires approval by the Senate (which will only discuss the proposed bill after the upcoming federal elections). Despite the fact that the proposed new article of the Belgian Penal Code does not mention the words Burqa or Niqab, and is thus neutral on its face, the Parliamentary discussions clearly show that the mentioned face-covering veils were the intended target of the new provision. If passed by the Senate under its current form, the ban would apply in all public spaces, including streets, parks, shops, public transport, airports, banks, and, of course, public buildings. An exception is introduced for certain cases, including for festivities such as carnival, in which the wearing of face-covering clothing remains allowed. Whoever violates the new law risks a fine of around € 100 and/or a prison sentence of 1 to 7 days. Rationales put forward for the ban include ‘security reasons,’ ‘public order,’ and ‘the protection of the dignity of women and gender equality’.

In this post we would like to analyze the Belgian ‘Burqa ban’ from the angle of the jurisprudence of the European Court of Human Rights.

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Religion and the Public Space

Once more, the Court has been called to decide on a case concerning the public manifestation of beliefs through religious attire, this time in the open public square (Ahmet Arslan et Autres c. Turquie). The outcome is certainly positive. However, prospects for the wearing of religious garment inside public institutions are far from clear.

The case concerns the criminal conviction of members of a religious group for wearing their religious attire in public, on occasion of a ceremony held at a mosque in Ankara. After touring the streets of the city while wearing their distinctive clothing, and following various incidents, they were arrested and placed in police custody. Criminal proceedings under anti-terrorism laws followed. The day of the hearing, applicants appeared in court wearing their religious garments, including a turban which some of them refused to remove when asked to by the court. In the end, they were all convicted for violating Act 671 of 28 November 1925, which abolishes the use of religious headgear (except for religious officials who are authorized) and Act 2596 of 3 December 1934, which imposes a ban on wearing religious attire other than in places of worship or at religious ceremonies.

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