Last Updated on April 21, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Freedom of thought, conscience and religion (Article 9)
Freedom of religion[195]
İzzettin Doğan and Others v. Turkey[196] concerned the State’s obligation of impartiality and neutrality as regards religious beliefs.
The applicants are followers of the Alevi faith to whom the State authorities had refused to provide the same religious public service accorded to the majority of citizens who are of the Sunni branch of Islam. They complained under Article 9 that this implied an assessment of the Alevi faith by the national authorities in breach of the State’s obligation of neutrality and impartiality, and under Article 14 that they had therefore received less favourable treatment than followers of the Sunni branch of Islam in a comparable situation.
The Grand Chamber found a violation of Article 9 taken alone and in conjunction with Article 14.
The Grand Chamber did not confine itself to the discrimination complaint (Article 14 in conjunction with Article 9), but also found a separate violation of Article 9 alone (the negative obligation). In so doing, it found that the authorities’ failure to recognise the religious nature of the Alevi faith (and of maintaining it within the banned Sufi orders) amounted to denying the Alevi community the recognition that would allow its members to “effectively enjoy” their right to freedom of religion in accordance with domestic legislation. In particular, it was found that the impugned refusal denied the autonomous existence of the Alevi community and made it impossible for its members to use their places of worship and the titles of their religious leaders.
In examining the Article 9 complaint, the Grand Chamber noted, at the outset, that it was not for the Court to express an opinion on the theological debate opened before it (concerning the Alevi faith and the Muslim religion) so that its references to the Alevi faith, and the community founded on that faith, were limited to finding that Article 9 applied.
In finding a violation of Article 9, the Grand Chamber reiterated a number of principles previously cited mainly in Chamber cases and, notably, highlighted two aspects of the State’s obligation of neutrality and impartiality.
(i) While the role of the State as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs might allow it to assess certain objective elements (such as the “level of cogency, seriousness, cohesion and importance” of a belief), that role excluded “any discretion on [the State’s] part to determine whether religious beliefs or the means used to express such beliefs are legitimate” (see Manoussakis and Others v. Greece[197]; Hasan and Chaush v. Bulgaria[198]; and Fernández Martínez v. Spain[199]). The right enshrined in Article 9 “would be highly theoretical and illusory if the degree of discretion granted to States allowed them to interpret the notion of religious denomination so restrictively as to deprive a non-traditional and minority form of religion, such as the Alevi faith, of legal protection (see, inter alia, Kimlya and Others v. Russia[200] and Magyar Keresztény Mennonita Egyház and Others v. Hungary[201]).
(ii) The corollary of that obligation of neutrality and impartiality was the principle of autonomy of religious communities, according to which it was the task of the highest spiritual authorities of a religious community to determine to which faith that community belonged. Only the most serious and compelling reasons could justify State intervention. The Court found that the respondent State’s attitude towards the Alevi faith breached the right of the Alevi community to an autonomous existence, which was at the very heart of the guarantees in Article 9 (see, mutatis mutandis, Miroļubovs and Others v. Latvia[202], and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria[203]).
Moreover, in describing the requirements and value of a pluralist society, the Court opined that “[r]espect for religious diversity undoubtedly represents one of the most important challenges to be faced today; for that reason, the authorities must perceive religious diversity not as a threat but as a source of enrichment” (see, mutatis mutandis, Nachova and Others v. Bulgaria[204]).
Manifest one’s religion or belief
The judgment in Süveges v. Hungary[205] concerned house arrest and its consequences for the applicant’s right to manifest his religion in community with others.
The applicant, who had previously been in custody while awaiting trial, was ordered to be placed under house arrest. In the Convention proceedings, he alleged, among other things, that the restrictions accompanying his house arrest prevented him from attending Sunday Mass and thus infringed his right to manifest his religion. He relied on Article 9 of the Convention.
This was the first occasion on which the Court had to address the compatibility of house arrest with the exercise of Article 9 rights.
The Court noted that had the applicant remained in pre-trial detention, rather than being placed under house arrest, he would in all likelihood have been able to take advantage of religious services at his place of detention. His inability to attend Mass, and thus the interference with his right to manifest his religion in community with others, had resulted from the decision to release him from custody and to impose a less coercive form of deprivation of liberty in order to secure his presence during the criminal proceedings. In the circumstances, the Court found that there had been no violation of Article 9. In examining the proportionality of the impugned restriction, it noted, firstly, and without further elaboration, that the very essence of the applicant’s right to manifest his religion had not been impaired and, secondly, when requesting leave to attend Sunday Mass the applicant had failed to specify the time and place of worship. The latter consideration had weighed heavily in the domestic authorities’ decision to refuse leave. Having regard to the margin of appreciation available to the authorities, the Court saw no reason to question that finding.
Positive obligations
The judgment in Papavasilakis v. Greece[206] concerned the procedural requirements applicable to the assessment of the genuineness of an objection to military service.
The applicant objected on ideological grounds to performing military service. He sought an exemption, being willing to undertake alternative civil duties. His application was considered by a commission which was empowered, following interview, to advise the Ministry of Defence on whether an exemption should be granted. On the day the applicant was interviewed, and due to absences of civil members, the commission comprised only two senior military officers and a member of the State Legal Service (who presided over the proceedings). The applicant’s request for exemption was ultimately rejected by the Ministry of Defence. The Court of Cassation rejected his legal challenge. The applicant alleged in the Convention proceedings that there had been a breach of Article 9 having regard to the composition of the commission which examined his request for exemption.
The Court found a breach of Article 9. The judgment is interesting in that it addresses the scope of the State’s positive obligation in the area of conscientious objection. The case-law has already established that a procedure must be in place which allows a conscientious objector the possibility of explaining the reasons for his opposition to military service in terms of his religious or philosophical beliefs and an assessment to be made of whether or not those beliefs are genuinely held (see, for example, Bayatyan v. Armenia[207] and Savda v. Turkey[208]). Greece did have such a procedure. However, the Court found it to be deficient in the applicant’s case since military officers outnumbered civilians on the occasion of the applicant’s interview because of the failure to replace the absent civilian members. On that account, the applicant could legitimately fear that it would be impossible for him to obtain the understanding of the military officers for his ideological-based opposition to military service and thus a positive recommendation from the commission on his request for exemption.
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195. See also, under Article 5 § 1 above, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, ECHR 2016.
196. İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, ECHR 2016.
197. Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports of Judgments and Decisions 1996-IV.
198. Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000-XI.
199. Fernández Martínez v. Spain [GC], no. 56030/07, § 129, ECHR 2014 (extracts).
200. Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 86, ECHR 2009.
201. Magyar Keresztény Mennonita Egyház and Others v. Hungary, nos. 70945/11 and 7 others, § 88, ECHR 2014 (extracts).
202. Miroļubovs and Others v. Latvia, no. 798/05, §§ 86 (g) and 90, 15 September 2009.
203. Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 79, 31 July 2008.
204. Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII.
205. Süveges v. Hungary, no. 50255/12, 5 January 2016.
206. Papavasilakis v. Greece, no. 66899/14, 15 September 2016.
207. Bayatyan v. Armenia [GC], no. 23459/03, ECHR 2011.
208. Savda v. Turkey, no. 42730/05, 12 June 2012.
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