5.8. Religion or belief – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

While EU law contains some limited protection against discrimination on the basis of religion or belief, the ECHR’s scope is significantly wider than this, since Article 9[583] contains a self-contained right to freedom of conscience, religion and belief.

Example: In Alujer Fernandez and Caballero García v. Spain,[584] the applicants – members of the Baptist Evangelical Church – complained that, unlike Catholics, they were unable to allocate a proportion of their income tax directly to their church. The ECtHR found the case inadmissible, concluding that the applicant’s church had not been in a comparable position to the Catholic Church, in that they had not made any such request with the government, and because the government had a reciprocal arrangement in place with the Holy See.

Example: In Cha’are Shalom Ve Tsedek v. France,[585] the applicant, a Jewish association, considered that the meat slaughtered by an existing Jewish organisation no longer conformed to the strict precepts associated with kosher meat, and sought authorisation from the state to conduct its own ritual slaughters. This was refused on the basis that it was not sufficiently representative within the French Jewish community, and that authorised ritual slaughterers already existed. The ECtHR found that in the circumstances there was no actual disadvantage suffered by the organisation since it was still able to obtain meat slaughtered in the required method from other sources.

Example: In Vojnity v. Hungary,[586] the applicant, a member of the Congregation of the Faith, had his access rights to his child withdrawn after the national authorities found that he had abused his rights to influence the child in pursuit of his own religious beliefs. The ECtHR held that the restrictions of the right of the applicant to respect for family life and the right to communicate and promote his religious convictions in his child’s upbringing, pursued a legitimate aim, namely, the child’s interest. However, it found that the authorities had disregarded the principle of proportionality by introducing a complete withdrawal of his access rights. It concluded that the applicant was discriminated against on the basis of his religious convictions in exercising his right to respect for family life.

Example: In İzzettin Doğan and Others v. Turkey,[587] the applicants, followers of the Alevi faith, requested recognition of the services connected with the practice of their faith as a religious public service. The applicants’ request was dismissed in accordance with national legislation. The applicants complained that the refusal of their request breached their freedom of religion and that their treatment was less favourable than that of citizens adhering to a majority branch of Islam. The ECtHR found that freedom of religion did not oblige a state to establish a particular legal framework bestowing privileges on religious groups. However, if they did, each religious group should have a fair opportunity, and the criteria for obtaining privileges should be applied in a non-discriminatory manner. Therefore, the ECtHR considered this difference in treatment between members of a religious minority and members of a religious majority to be discriminatory, and concluded that there had been a violation of the prohibition of discrimination and of the right to freedom of religion.

Example: In Milanović v. Serbia,[588] the applicant, a leading member of the Hare Krishna religious community in Serbia, was stabbed on several occasions. He reported these attacks to the police and his belief that they may have been committed by members of a far-right extremist group. The police questioned witnesses and several potential suspects but never identified the attackers. The ECtHR found that the state authorities had the additional duty to take all reasonable steps to unmask any religious motives and to establish whether or not religious hatred or prejudice could have played a role in the events, even though the ill-treatment had been inflicted by private individuals. Although it had been obvious in the light of the police reports that the religion of the applicant may have been a reason behind the attacks, the authorities had not conducted an investigation in accordance with the requirements of Article 14 in conjunction with Article 3 of the Convention.

Example: In O’Donoghue and Others v. the United Kingdom,[589] the applicant, a Nigerian national seeking asylum in the UK, and his partner, wished to get married in a Roman Catholic Church. As a person subject to immigration control, he was obliged to apply to the Secretary of State for permission in the form of a certificate of approval, for which he had to pay a fee. These formalities were not compulsory in case of persons wishing to get married in the Church of England. The applicant applied for a certificate of approval and requested exemption from the fee on the grounds of his poor financial status, but his application was rejected. The ECtHR found the above scheme discriminatory on the ground of religion for which no objective and reasonable justification had been provided.

What actually constitutes a ‘religion’ or ‘belief’ qualifying for protection was subject matter of the following judgment concerning manifestation of religion at work.

Example: In Eweida and Others v. the United Kingdom,[590] the applicants, practising Christians, complained that they had suffered religious discrimination at work. The first and second applicants complained that their employers had placed restrictions on their visible wearing of Christian crosses while at work and the third and fourth applicants that they had been dismissed for refusing to carry out certain duties which they considered would condone homosexuality, a practice they felt was incompatible with their religious beliefs. The ECtHR found a violation in respect of the first applicant, a British Airways employee, stressing that her cross was discreet and could not have detracted from her professional appearance. In addition, there was no evidence of any real encroachment on the interests of others. As regards the second applicant, a nurse, the interference was proportionate to the desired aim (protection of the health and safety of nurses and patients). In respect of the third applicant, a registrar of births, marriages and death, who had been disciplined for refusing to conduct a civil partnership, the authorities acted within a wide margin of appreciation given to a state when the right of others not to be discriminated against is at stake. In the case of the fourth applicant, a relationship and psychosexual counsellor in a private national organisation, the ECtHR found that there was reasonable and objective reason to restrict the applicants’ freedom of religion in order to uphold other peoples’ rights because the employer was pursuing a policy of non-discrimination for service users. Therefore, the state had acted within the limits of its wide margin of appreciation.

In a series of cases relating to the substantive right to freedom of religion and belief under the ECHR, the ECtHR has made clear that the state cannot attempt to prescribe what constitutes a religion or belief, and that these notions protect “atheists, agnostics, sceptics and the unconcerned”, thus protecting those who choose “to hold or not to hold religious beliefs and to practise or not to practise a religion”.[591] These cases also note that religion or belief is essentially personal and subjective, and need not necessarily relate to a faith arranged around institutions.[592] Newer religions, such as Scientology, have also been found to qualify for protection.[593]

The ECtHR has elaborated on the idea of ‘belief’ in the context of the right to education under Article 2 of Protocol 1 to the ECHR, which provides that the state must respect the right of parents to ensure that their child’s education is “in conformity with their own religious and philosophical convictions”. The ECtHR stated:

“In its ordinary meaning the word “convictions”, taken on its own, is not synonymous with the words “opinions” and “ideas”, such as are utilised in Article 10 […] of the Convention, which guarantees freedom of expression; it is more akin to the term “beliefs” (in the French text: “convictions”) appearing in Article 9 […] – and denotes views that attain a certain level of cogency, seriousness, cohesion and importance.”[594]

One manifest symbol of an individual’s religious belief is the wearing of religious clothing. The ECtHR has been faced with cases related to religious freedom in the context of states wishing to maintain secularism. Here it has placed particular weight on the state’s stated aim of preventing disorder and protecting the rights and freedoms of others.

Example: In S.A.S. v. France,[595] following an amendment to national law, the applicant, a French national and practising Muslim, had been banned from covering her face in public. The ECtHR found that the ban on wearing the integral veil was necessary for ‘living together’ harmoniously and within the law. The ECtHR stressed that “respect for the minimum set of values of an open democratic society” prevailed over the individual’s choice to wear a full-face veil. The ECtHR noted also that, while the ban disproportionately affected Muslim women wishing to wear a full-face veil, there was nothing in the law, which expressly focused on religious clothing; the ban also prevented any item of clothing which covers the face.

Example: In Ebrahimian v. France, [596] the applicant’s contract of employment as a hospital social worker was not renewed after she had refused to stop wearing the Islamic headscarf. Relying on its previous case law on headscarf bans,[597] the ECtHR found that the right of the applicant to manifest her religion was incompatible with the requirement that a public hospital service remained neutral. The inference to the applicant’s right to manifest her religion was justified by the necessity to protect the right of others.

Examples: In a judgment of 27 January 2015, the German Constitutional Court[598] rejected an abstract ban and restricted the possibility of the authorities introducing a headscarf ban in situations in which there is a concrete risk to neutrality or the rights of others.[599] In its Ordinance of 26 August 2016, the French Council of State declared that municipal bylaws forbidding Islamic swimwear on the beach were null and void.[600]

Example: In a case[601] from Austria, the complainant was employed as a notary clerk. When she wore the Islamic headscarf and Abaya her contact with clients was restricted. When she started wearing a full face veil she was dismissed. The Supreme Court found that limiting of the scope of her tasks was not justified. It emphasised that the non-wearing of a headscarf did not constitute a genuine and determining occupational requirement and confirmed direct discrimination in this regard. The court held however, that the wearing of face veils in the workplace did constitute an obstacle in the performance of work because unimpaired communication and interaction with clients, colleagues and employer was necessary. Therefore, there was a genuine and determining occupational requirement to not wear a face veil.

In 2017, almost 17 years after the adoption of the Employment Equality Directive (2000/78/EC), the CJEU delivered its first judgment on discrimination on grounds of religion.

Example: In Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV,[602] the complainant was dismissed for non-compliance with the internal rule not to wear visible signs of their political, philosophical or religious beliefs at work. The CJEU found that the contested internal rule covered any manifestation of such beliefs without distinction and treated all employees of the undertaking in the same way by requiring them to dress neutrally. Accordingly, such an internal rule did not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive. By contrast, it held that such a rule could constitute indirect discrimination if it results in putting at a particular disadvantage persons adhering to a particular religion. However, such treatment could be objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary. CJEU also stressed that a rule restricting religious symbols or attire can only be seen to be appropriate when it is part of a neutrality policy that “is genuinely pursued in a consistent and systematic manner”.

Example: In Asma Bougnaoui and ADDH v. Micropole SA,[603] following a request from a customer, the complainant was asked not to wear the veil at work. As she did not agree to accept the request, she was dismissed. The CJEU reiterated that a generally applicable ban on all visible symbols of religious, philosophical or political belief would be indirectly discriminatory unless it would be justified. In contrast, if the decision to dismiss was not based on a general ban but was specific to the headscarf, then it would be necessary to answer whether compliance with such a request from a client could be seen as a “genuine and determining occupational requirement” that could justify a directly discriminatory policy. The CJEU explained that the concept of a “genuine and determining occupational requirement” refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. Therefore, it cannot cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer.

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583. An explanation as to the scope of Art. 9 ECHR can be found in: CoE (2015), Guide to Article 9.

584. ECtHR, Alujer Fernandez and Caballero García v. Spain (dec.), No. 53072/99, 14 June 2001.

585. ECtHR, Cha’are Shalom Ve Tsedek v. France [GC], No. 27417/95, 27 June 2000.

586. ECtHR, Vojnity v. Hungary, No. 29617/07, 12 February 2013.

587. ECtHR, İzzettin Doğan and Others v. Turkey [GC], No. 62649/10, 26 April 2016.

588. ECtHR, Milanović v. Serbia, No. 44614/07, 14 December 2010.

589. ECtHR, O’Donoghue and Others v. the United Kingdom, No. 34848/07, 14 December 2010.

590. ECtHR, Eweida and Others v. the United Kingdom, Nos. 48420/10, 59842/10, 51671/10 and 36516/10, 15 January 2013.

591. ECtHR, S.A.S. v. France [GC], No. 43835/11, 1 July 2014, para. 124; ECtHR, İzzettin Doğan and Others v. Turkey [GC], No. 62649/10, 26 April 2016, para. 103.

592. ECtHR, The Moscow Branch of the Salvation Army v. Russia, No. 72881/01, 5 October 2006, paras. 57-58; ECtHR, Metropolitan Church of Bessarabia and Others v. Moldova, No. 45701/99, 13 December 2001 para. 114; ECtHR, Hasan and Chaush v. Bulgaria [GC], No. 30985/96, 26 October 2000, paras. 62 and 78.

593. ECtHR, Church of Scientology Moscow v. Russia, No. 18147/02, 5 April 2007.

594. ECtHR, Campbell and Cosans v. The United Kingdom, Nos. 7511/76 and 7743/76, 25 February 1982, para. 36.

595. ECtHR, S.A.S. v. France [GC], No. 43835/11, 1 July 2014.

596. ECtHR, Ebrahimian v. France, No. 64846/11, 26 November 2015.

597. ECtHR, Leyla Şahin v. Turkey [GC], No. 44774/98, 10 November 2005; ECtHR, Kurtulmuş v. Turkey (dec.), No. 65500/01, 24 January 2006.

598. Germany, German Constitutional Court, 1 BvR 471/10, 1 BvR 1181/10, 27 January 2015.

599. See also: Belgium, Council of State, No. 228.752, judgement of 14 October 2014.

600. France, Council of State Ordinance, Nos. 402742 and 402777, 26 August 2016.

601. Austria, Supreme Court of Austria, 9 ObA 117/15, 25 May 2016.

602. CJEU, C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV [GC], 14 March 2017.

603. CJEU, C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA [GC], 14 March 2017.

Contents

5. Protected grounds

5.1. Sex

5.2. Gender identity

5.3. Sexual orientation

5.4. Disability

5.5. Age

5.6. Race, ethnicity, colour and membership of a national minority

5.7. Nationality or national origin

5.8. Religion or belief

5.9. Social origin, birth and property

5.10. Language

5.11. Political or other opinion

5.12. ‘Other status’

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