CHAPTER 10 Javier Martínez-Torrón and Rafael Navarro-Valls, The Protection of Religious Freedom in the System of the Council of Europe
In this chapter Javier Martínez-Torrón and Rafael Navarro-Valls turn from the United Nations to the most effective of the regional human rights systems: the Council of Europe. The central focus is on the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the associated European Court of Human Rights, located in Strasbourg. The Court, which now has jurisdiction over roughly 800,000,000 people, has become the premier human rights tribunal in the world. In contrast with so many other human rights institutions, which are essentially "soft law" institutions, the Court is the relatively unique position among international bodies of being able to issue binding and enforceable decisions. *With this in mind, it is surprising and perhaps a little disappointing that no cases were decided by the Court squarely under the religion provision of the European Convention (article 9) until 1993. A number of cases were decided by the European Commission of Human Rights, pursuant to the older procedure whereby the Commission filtered cases going to the Court, but none were decided by the Court itself. Particularly since 1998, however, when the new court structure and the procedures went into effect, 39 the volume of case case law on religion issues has been steadily increasing. This is important not only for those within the jurisdiction of the Court, but for the world at large, because the provision the Court is interpreting (article 9 of the ECHR) is almost exactly parallel to the key provisions of article 18 of the ICCPR, and the Court's decisions are an extremely credible source of persuasive authority on human rights issues.
The chapter on the Council of Europe is thus extremely important because of the overview it provides of the Court's burgeoning article 9 jurisprudence. While the primary focus of the chapter is on this case law, the authors do include a section on initiatives of the Council of Europe's Parliamentary Assembly and the Committee of Ministers, 40 the most interesting of which relate to new religious movements. The ultimate outcome of these deliberations was a recommentation that called for the establishment of "information centers on 'groups of a religious, esoteric or spiritual nature,'" but at the same time urged governments "to use the normal procedures of criminal and civil law against illegal practices carried out in the name" of such groups. 41
After a brief description of the structure and procedure of the Court, the authors turn to an exposition of its case law (as well as that of earlier Commission decisions). This goes into much greater depth and detail than can be repeated here, but a few of the particularly vital issues and potential problems the authors identify deserve mention.
A first major feature of the "Court's jurisprudence is its implicit recognition that there is a "margin of appreciation" that defers to historically established structures of the relationship between religion and the state. 42 This is a practical recognition of the diverse structures-ranging from states with established churches, to states with strong cooperationist regimes, to those with a strong laicist separation of church and state. As the authors state the apparent principle:
Equality (article 14 of the European Convention) must be applied rigorously in many contexts to preserve religious freedom, but some flexibility is permissible in structuring cooperation with religious communities, particularly, where failure to do so would disrupt long-established patterns and expectations...In other words, article 9 of the European Convention is aimed at providing an adequate guarantee of the right to freedom of religion and belief. Its purpose, however, is not to extablish certain uniform criteria for church-state relations in the Council of Europe members states nor, even less, to impose a compulsory secularism (laïcité).43
Turning from treatment of dominant to minority religious groups, the authors address cases interpreting the equality principle, worship, proselytism, and internal autonomy. They note a certain irony in the fact that while the wording of the European Convention tends to focus primarily on the rights of individuals, the European system has disregarded the individual dimension of freedom of religion or belief more often than its corporate dimension. 45 In part, this is the result of a much narrower interpretation of the notion of protected religious “practice” under the Convention, derived from earlier Commission decisions, than the interpretation that the UN Human Rights Committee has recommended with respect to the parallel language of the ICCPR.46 Specifically, the Commission construed the notion of practice narrowly so that it covered only actions manifesting religion in the strict sense, as opposed to conduct motivated by religion. 47
A second major concern with European Court case law has to do with ostensibly neutral laws that impose indirect restrictions on religious freedom. 48 The tendency to assume that neutral laws necessarily override conscience was more pronounced in the decisions of the Commission, but is a discernible trend (if not a confirmed position) in some of the decisions of the Court. In the view of the authors, the better position is that “freedom to practice one’s religion or belief must be understood as protecting, in principle, every act of the individual when he obeys the dictates of his own conscience” 49 — thus offering the maximum presumptive protection under article 9(1). To the extent that limitations of this right are necessary, they must be justified under article 9(2), with the state having the burden of proof regarding the legitimacy and the necessity of any limitations. The authors find that the restrictions permitted to date are much more skewed toward state initiatives, and that this has the effect of restricting manifestation of religion or belief and freedom of conscience. In their view, this may lead to a kind of secular fundamentalism or indoctrination, which can be as dangerous to pluralism and to minorities in particular as more blatant forms of religious fundamentalism. 50 They conclude that in the effort to eliminate intolerance, it is as important to avoid the dangers of “secularism-oriented intolerance” as it is to prevent “religion-oriented intolerance.” 51
43 Ibid., 216.
44 Ibid., 217.
45 Ibid., 228.
46 Ibid.
47 Ibid., 229–30.
48 The issue here is parallel to that raised by the much-criticized decision of the United States Supreme Court in Employment Division v. Smith, 494 US 872 (1990), which held that any neutral and general law that does not directly target a particular religious group (or groups) can override religious freedom claims. 49 Martínez-Torrón and Navarro-Valls, chapter 10, 233.
