Taylor, 'The basis for departure of European standard under Article 9 of the European Convention on Human Rights from equivalent universal standards.'

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You are here: BAILII >> Databases >> United Kingdom Journals >> Taylor, 'The basis for departure of European standard under Article 9 of the European Convention on Human Rights from equivalent universal standards.' URL: http://www.bailii.org/uk/other/journals/WebJCLI/2001/issue5/taylor5.html Cite as: Taylor, 'The basis for departure of European standard under Article 9 of the European Convention on Human Rights from equivalent universal standards'

The basis for departure of European standard under Article 9 of the European Convention on Human Rights from equivalent universal standards.

Paul Taylor

Summary

This article considers the development and content of Article 9 of the European Convention on Human Rights as contrasted with universal standards (making selective reference to Article 18 of the Universal Declaration, Article 18 of the Covenant on Civil and Political Rights and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.) The social context in which European jurisprudence in the field of freedom of freedom of thought, conscience and religion has developed (largely secular but rooted in the historic influence of the Christian tradition) contrasts starkly with differing cultures, religions and political ideologies represented at the universal level. This leads to speculation whether Article 9 of the European Convention departs significantly from equivalent provisions in equivalent UN instruments. This article is therefore aimed at the conclusions to be drawn from a comparison of the practice of the Human Rights Committee, the European Commission on Human Rights and the European Court, in particular, the implications for Article 9 of the European Convention.

Introduction

Article 9 of the European Convention on Human Rights (the Convention ) drew its inspiration and its text from Article 18 of the Universal Declaration in pursuance of the express aim of the Convention in taking ‘the first steps for collective enforcement of certain rights stated in the Universal Declaration’ (Preamble to the Convention). Article 9, addressing freedom of thought, conscience and religion, was to be based as far as possible on Article 18 of the Universal Declaration to reduce the risk of devising definitions that were at odds with those in U.N. instruments. Yet the travaux preparatoires of Article 18, and those of subsequent United Nations instruments in the field of freedom of religion, demonstrate that some of the influences that fashioned the text of Article 18 may be said to have little relevance to Article 9 of the Convention, intended for the European context. Some of the most significant issues debated in the formulation of the Universal Declaration, which accentuate the differences between instruments intended for universal and European application, were raised with greater force (and arguably lasting effect) in the debates leading up to the International Covenant on Civil and Political Rights (the ICCPR) and the Declaration on the Elimination of all Forms of Religious Intolerance (the 1981 Declaration).

The complexities of devising a universal instrument addressing freedom of conscience or religion appear to be considerably greater than for other, even closely related freedoms. For example, when impetus was given to a U.N. initiative on religious intolerance following various anti-Semitic incidents in the early 1960’s, the General Assembly passed a resolution calling for the preparation of a draft declaration and a draft convention on the elimination of religious intolerance. Simultaneously, a draft declaration and a draft convention were proposed on the elimination of racial discrimination in the knowledge that issues of racial discrimination could be advanced swiftly with the removal of content relating to religious intolerance, given opposition expected from Communist countries on ideological grounds (See Lerner, 1981 at 86). Also by then the requirements of certain Middle East countries were better appreciated than during the drafting of the Universal Declaration. The result was that the Declaration on Racial Discrimination was adopted in 1963, followed rapidly by the adoption of the Convention on Racial Discrimination in 1965. By contrast, it was not until nineteen years after the General Assembly called for preparation of a convention on religious intolerance that, at best, a declaration could be adopted, while a convention still remains an aspiration. The difficulties posed by national law were prominent in the drafting of the 1981 Declaration but had particular significance in Post-Vote Explanations in the Third Committee (UN Doc. A/C.3/36/SR. 43 at 7-14, 43 (1981)) and in the plenary meeting of the General Assembly (UN Doc A/36/PV.73, at 1218-1219 (1981)). Throughout the debates, various countries sought to subject the 1981 Declaration to domestic legislation and, when this was not reflected in drafting changes, ultimately entered reservations concerning inconsistency with national law. Plans for a convention operating as a counterpart to the 1981 Declaration have failed ever since.

In short, developments in universal standards since the Universal Declaration was adopted in 1948, and developments in European standards since the Convention entered into force in 1953 have meant that the two have, in certain respects, followed different trajectories. Apart from General Comment No. 22 (48) which provides the Human Rights Committee’s understanding of Article 18 of the ICCPR, sources of interpretation of universal standards under the ICCPR are generally limited to the travaux preparatoires (which are recorded in some detail), the results of examination of State reports submitted under Article 40 of the ICCPR and, for those countries which accepted the right of individual petition under the first Optional Protocol, the Human Rights Committee’s consideration of communications submitted to it. Unfortunately, State reports have limited interpretive value in relation to specific Articles, and there has been a relative shortage of communications from countries with a non-European conception of freedom of conscience and religion. The work of the Special Rapporteur, appointed to report on various manifestations of intolerance and discrimination on the grounds of religion or belief using the standards established in the 1981 Declaration as a reference point, provides a wealth of information on a variety of violations but its emphasis is more factual than interpretive. By contrast, the

travaux preparatoires of the Convention are incomplete and not authoritative although, given that the origins of Article 9 are so clearly found in Article 18 of the Universal Declaration, this is not a significant handicap, particularly as the decisions of the Commission of Human Rights (the Commission) and the European Court (the Court) are so clearly documented with supporting reasoning even if that reasoning is open to criticism for its lack of rigour. Nevertheless, a number of important issues have been canvassed at both universal and European that deserve comment, a selection of which will now be examined.

Beliefs and their manifestation

Although Article 18 of the Universal Declaration had been drafted initially with the protection of religious freedom in mind, pressure quickly mounted, particularly from Soviet states resisting recognition for religious creeds, for the protection of atheistic or non-theistic beliefs. The Soviet Union was quick to point out that freedom of thought and conscience were equally applicable to believers and atheists, and suggested that the Article should grant freedom not only for the practice of religions but also anti-religious propaganda and militant atheism (UN Doc. E/CN.4/AC.2/SR.6 p 11).

The inclusion of non-theistic beliefs in Article 18 was inevitable and, once accepted, it was not necessary to define ‘thought’, ‘conscience’ and ‘religion’ since this would not be feasible, and in any event they were to be given similar treatment under the Universal Declaration. In the drafting of the 1981 Declaration, certain Communist countries sought detailed definitions of the terms ‘religion’ and ‘belief’, ostensibly in order to ensure that atheistic and non-theistic beliefs were protected in Article 1 (UN Doc. A/C.3/36/SR.35 at p. 11 (1981); UN Doc. A/C.3/36/SR.36 at p. 8 (1981)) but it has been suggested that the real purpose of the proposal was to ‘frustrate the search for consensus on the entire Declaration’ given that it would be both impossible and fruitless to attempt such a definition in view of the diversity of religions and beliefs and ‘the hornet’s nest of theological, legal, and political disputes any definition would open up’ (Liskofsky, 1985, at 465). The post-vote explanations to the 1981 Declaration indicate the strength of opposition by Bulgaria, Czechoslovakia, Poland, Romania and the Soviet Union on the basis that insufficient emphasis was placed in the 1981 Declaration on atheistic belief. They considered the thrust of the 1981 Declaration, as exemplified in Article 6, to be on religious belief and therefore incomplete. A more specific reservation was entered by Iraq (representing the Organization of the Islamic Conference), supported by Iran and Syria, in respect of ‘any provision or wording of the Declaration which might be contrary to Islamic law (Shari’a) or to any legislation or act based on Islamic law’(UN Doc. A/C.3/36/SR.43, para.51), again illustrating the range of difficulties in the implementation of universal standards.

Although it is clear that Article 18 of the ICCPR spans both theistic and atheistic beliefs, not all beliefs are protected. For example, the Human Rights Committee in M.A.B., W.A.T. and J.-A.Y.T. v. Canada (Communication No.570/1993) concluded that a claim to ‘belief’ consisting primarily or exclusively in the worship and use of Marijuana as the ‘Sacrament’ (cannabis) according to the tenets of the Assembly of the Church of the Universe, was outside Article 18 and inadmissible ratione materiae. The Human Rights Committee shortly after that decision adopted General Comment No. 22 elaborating its interpretation of Article 18, confirming that its application ‘is not limited to traditional religions or to religions and beliefs with institutional characteristics or analogous to those of traditional religions’

Similarly in the context of the Convention, ‘belief’ includes pacifism (Arrowsmith v. U.K., DR 19/5 and 3 EHRR 218.), Communism (Hazar, Hazar and Acik v. Turkey, Nos. 16311/90, 16312/90 and 16311/93, 72 DR 200 (Dec. 1991)), atheism (Angeleni v. Sweden, No. 10491/83, 40 DR 41 (Dec. 1986)) and pro-life anti-abortion beliefs (Plattform ‘Arzte fur das Leben’ v. Austria, No. 10126/82, 44 DR 65 (Dec. 1985)) but excludes mere ‘opinions’ or ‘ideas’ (Campbell and Cosans v. UK, Ser.A, No.48 (1982)). The onus of proving the existence of a religion when claiming religious belief is, in practice, on the applicant. In X.v. U.K. (No. 7291/75, 11 DR 55 (Dec. 1977), the applicant was a follower of the Wicca religion but the Commission commented that ‘the applicant has not mentioned any facts making it possible to establish the existence of the Wicca religion’. (It was not necessary in Chappel. v. U.K. to establish the existence of Druidism as a religion, even though its existence was questioned, because the case was decided against the applicant on other grounds, namely that state restrictions on the celebration of the summer solstice at Stonehenge were justified under Article 9(2) (A.R.M Chappell v. UK, No. 12587/86, 53 DR 241, (Dec. 1987), at 246)).

Professor Evans has drawn out in detail the significance of the distinction between ‘religion or belief’ and ‘thought or conscience’ to the issue of manifestation (Evans, M.D, 1997). Only manifestations of ‘religion or belief’ are protected under Article 9 of the Convention, and not manifestations of ‘thought or conscience’ whose expression may, however, be protected under Article 10. Article 9 is possibly narrower in protecting manifestation only of ‘religion or belief’ than Article 10. In Article 9, only manifestations that actually express the belief concerned will be protected, not every act which is motivated and influenced by a religion or belief (Arrowsmith v. U.K. para. 71; Efstratiou v. Greece, No. 24095/94, Rep. 1996, at paras. 48-50). So, in Knudsen v. Norway, the protest at a newly enacted abortion law by a priest refusing to undertake public functions ‘did not actually express the applicant’s belief or religious view and it cannot, therefore, be considered as such to be protected by Article 9(1), even when it was motivated by it’ (Knudsen v. Norway, No. 11045/84, 42 DR 247 (Dec. 1983)). A protest expressing a belief is not the practice of a belief. The primary purpose of Article 9 beyond the protection of personal and privately held beliefs is that it ‘protects acts which are intimately linked to these attitudes, such as acts of worship or devotion which are aspects of the practice of a religion or a belief in a generally recognised form’ (C v. U.K., No. 10358/83, 37 DR 142 (Dec. 1983) at 144). The object of genuinely and even strongly held belief may sometimes be in question. In Valsamis v. Greece the Court did not agree with the applicant concerning the nature of the parade march in which she was required to participate at school. It was not a commemoration of war and was not therefore in opposition to her pacifist beliefs as a Jehovah’s Witness (Valsamis v. Greece, No. 21787/93, Rep. 1995, paras. 40, 50).

Although the jurisprudence of the Court under the Convention is open to criticism for a certain lack of consistency in defining the connection between beliefs and their manifestation, the Human Rights Committee may be said not to have developed even such a precise approach in connection with Article 18 of the ICCPR. In State reports, it has not attempted to clarify that nexus, although paragraph 4 of General Comment No. 22 attempts an elaboration of the phrase ‘to manifest his religion or belief in worship, observance, practice and teaching’. Unfortunately, the illustrations provided in that paragraph are conservative and focus principally on ritual and ceremonial aspects of manifestation. They do little to expand upon the principles which in J.P. v. Canada enabled the Human Rights Committee to provide a considerably more generous illustration of manifestation under Article 18. In J.P. v. Canada, the Committee affirmed that ‘although Article 18 of the Covenant certainly protects the right to hold, express and disseminate opinions and convictions, including objection to military activities and expenditures, the refusal to pay taxes on grounds of conscientious objection clearly falls outside the scope of the protection of [Article 18]’ (J.P. v. Canada, Communication No. 466/1991 (annex X, sect. Y, para. 4.2). See also J.v.K. and G.M.G. v. K.-S. v. the Netherlands, Communication No. 483/1991).

The Human Rights Committee has developed specific principles, broadly consistent with those of the Court and Commission, for addressing those issues affecting conscientious objection, (neither the ICCPR nor the Convention provides a right of conscientious objection), members of the armed forces, and the treatment of prisoners but these principles are particular to their context and are not generally of assistance in the interpretation of either Article 18 of the ICCPR or Article 9 of the Convention, taking each as a whole. (For Human Rights Committee decisions see: L.T.K. V. Finland, Communication No.185/1984 where the applicant was not prosecuted because of his beliefs or opinions as such, but because he refused to perform military service; Richard Maille v. France, Communication No.689/1996; Henricus Antonius Godefriedus Maria Brinkhof v. the Netherlands, Communication No.402/1990; Frederic Foin v. France, Communication No.666/1995 Paul Westerman v. the Netherlands, Communication No.682/1996. For Article 9 decisions see: Grandrath v. Federal Republic of Germany, followed in X. v. Austria, No. 5591/72, 43 CD 161 (Dec.1973); Johansen v. Norway, No. 10600/83, 44 DR 155 (Dec. 1985), A v. Switzerland, No. 10640/83, 38 DR 219 (Dec. 1984), Autio v. Finland, No. 17086/90, 72 DR 245 (Dec. 1991), X. v. Belgium, No. 24631/94 (Dec.1995). Members of the armed forces undoubtedly call for different treatment from civilians. Thus in Kalac v. Turkey, an Article 9(2) No. 20704/92, in choosing to pursue a military career the applicant was accepting of his own accord a system of military discipline that implied certain restrictions on his freedom that could not be imposed on civilians (para. 27). A military judge advocate could therefore be given compulsory retirement on the grounds of his conduct (membership of a fundamentalist sect) and attitude which were inconsistent with his position in a country dedicated to the principle of secularism. See also Yanasik v. Turkey, No. 14524/89, 74 DRD 14 (Dec. 1993), 26.in which a trainee cadet was prevented from participating in a religious movement, whose aim and programme was to ensure the pre-eminence of religious rules. Because of his voluntary enrolment, the ‘military rules may make cadets’ freedom to practise their religion subject to limitations as to time and place, without however negating it completely’.)

Freedom of choice in religion or belief

Both the Universal Declaration and the Convention refer expressly to freedom to change religion or belief yet the inclusion of such wording in the Universal Declaration proved to be one of its most controversial features. It was only on the condition that the concerns of certain Muslim countries appeared in the summary record that Egypt declared itself able to vote in favour of the Universal Declaration. The Saudi delegate felt so strongly about the reference to changing religion in Article 18 of the Universal Declaration that he had been compelled to abstain from voting on the Declaration as a whole (UN Doc. A/C.3/SR. 367 (1948), at 40). In the preparation of the ICCPR explicit language referring to a change of religion also met with sustained opposition (See, for example, UN Docs E/CN.4/SR 319 (1948), A/C.3/SR. 289, 302 and 306 (1948)). Eventually, the compromise version ‘to have or adopt a religion or belief of his choice’ was accepted. In a departure from Article 18 of the ICCPR the 1981 Declaration refers in Article 1, paragraphs (1) and (2) to ‘freedom to have a religion or whatever belief of his choice’ but in order to prevent the Declaration being interpreted as changing any previous U.N. instruments, it was necessary to add the ‘without prejudice’ saver in Article 8. By following the text of Article 18 of the Universal Declaration it clear that Article 9 of the Convention benefited from the successful inclusion of an express right to change religion which could not be repeated in later U.N. instruments, for reasons that were indicated to be related to difficulties that might be encountered in ratification and implementation of the Covenant in various non-European countries while it included an express right to change religion. In its consideration of cases involving proselytism, such as Kokkinakis v. Greece (discussed below), or involving tax exemption on severing membership of the Catholic Church (Gottesmann v. Switzerland, App. No. 10616/83, 40 Eur. Comm’n H.R. Dec.& Rep. 284 (1984)), the Court has undoubtedly given a literal interpretation to the words ‘freedom to change his religion or belief’.

Freedom from coercion

Coercion in religious matters is always a grave violation of human rights. The use of coercion to induce others to adopt a religion which is not theirs or to abandon their own beliefs has played a particularly horrible role in the history of mankind. The condemnation of coercion in the field of religious rights is thus beyond controversy...The question of freedom of propagation of one’s religion and the legitimacy of attempts to convince others of one’s religious truth is different. In modern human rights law, the right to change one’s religion, in the absence of coercion and as a result of free will is considered a recognized freedom.

Proselytism

The origin of the provisions in universal instruments concerning coercion lies in wording proposed by Egypt in the preparation of the ICCPR, to allay fears expressed by Saudi that an express right to change religion ‘might be interpreted as giving missionaries and proselytisers a free rein’ (UN Doc. A/C.3/SR.367 para.41 (1951)). Although the principle was readily accepted that coercion in such matters should be prohibited, no precise distinction has so far been made between proselytism warranting constraint and proselytism warranting protection. Undesirable proselytism has been characterised in terms of ‘improper inducements’ (so described in Rule I(3) resulting from the Krishnaswami study) or ‘material and moral coercion’ (the term adopted by the Sub-Commission's Draft Principles on Freedom and Non-Discrimination in the Matter of Religious Rights and Practices). On the other hand, non-coercive forms of persuasion or appeals to conscience, or even the propagation of one's beliefs, have been regarded as deserving of protection. Among European countries, Greece expressed fear in the drafting of the Universal Declaration that the phrase ‘freedom ... to manifest his religion or belief’ might lead to ‘unfair practices of proselytising’ such as the offer of free material assistance and a number of other advantages offered to religious adherents which would threaten not only minority groups but also the religious majority (UN Doc. A/C.3/SR. 127 (1948), at 393). Greece commented after the vote on what was to become Article 18 of the Universal Declaration that it had voted for it on the understanding that it did not authorise unfair practices of proselytism. Turkey also voiced fears in connection with the ill-fated draft Convention on religious intolerance that certain freedoms expressed in the draft (including the right to establish and maintain places of worship, and the right to make pilgrimages which are clearly safeguarded and were incorporated in the 1981 Declaration ) would encourage proselytising, a practice prohibited in Turkey (UN Doc. A/C.3/SR.1487 (1967) at 120 - See also Clark,1978, at 212). This not only serves to highlight the presence of rigorous antagonism against what some understand by the term ‘proselytism’ but, more importantly, reflects a lack of firm consensus on what ‘proselytism’ means.

It is all the more to be regretted that when given the opportunity to provide a workable distinction between ‘proper’ and ‘improper’ proselytism in Kokkinakis v. Greece, the Court failed to do so (Kokkinakis v. Greece, No.14307/88, Ser.A. No.260-A (1993). Drawing on text provided by the World Council of Churches it accepted that ‘proper’ proselytism might consist of bearing Christian witness, which was the true form of evangelism and an essential duty of every believer and every church, and that ‘improper’ proselytism might take the form of activities such as offering material or social advantages or improper pressure with a view to gaining new members for a church (para.48). However, in spite of making this important distinction, the Court did not apply it to the facts nor did it condemn the Greek law which criminalizes both proper and improper forms of proselytism. Instead it ruled against Greece on the basis of the failure of the Greek court to substantiate with adequate reasoning the conviction of the applicant for proselytising (para.49). The conclusion nevertheless is that only improper proselytism is to be constrained, on the grounds of Article 9(2), and not other forms of proselytism which do not justify such interference. The Court in effect gave justification to the Greek law by reference only to the possibility that there exist aberrations of the practice of proselytism (‘a corruption or defamation of’ the ‘essential mission and responsibility of every Christian and every church’ - para 48).

Clear interpretation in decisions affecting proselytism is greatly needed, given that a disproportionate number of cases concern special categories of applicant such as prisoners, conscientious objectors, and members of the armed forces. It is all the more important given that a different analysis of proselytism applies depending on whether the subjects of proselytism (rather than the applicants) are civilians or military personnel. In Larissis, Mandalaridis and Sarandis v. Greece, the criminal conviction of air force officers for proselytising subordinate ranks was upheld, but not the conviction for proselytising civilians. Concerning subordinate ranks, the conviction was justified by the need to protect the prestige and effective operation of the armed services and to protect combatants from ideological coercion (Larissis, Mandalaridis and Sarandis v. Greece, Nos. 23372/94, 26377/95 and 26378/95 27 EHRR 329 (1998), para.47). Furthermore, subordinates are more susceptible to influence from their superiors and are unable to reject their approaches. By contrast, similar acts of proselytism with civilians were not improper, even when the civilians were in distress (in this case following marital difficulties) and even though the proselytism was unwelcomed. Nevertheless, as a general principle, the Court acknowledges that the right to proselytise is to be safeguarded, as confirmed by the Court in Kokkinakis: ‘Freedom to manifest one’s religion...includes in principle the right to try to convince one’s neighbour, for example, through “teaching”, failing which...”freedom to change [one’s] religion or belief” enshrined in Article 9 would be likely to remain a dead letter’(para.31).

Two other points are of particular interest. First, the Court may well have not wanted to venture a definition which had so far eluded attempts at universal level. However this is to ignore the fact that at universal level far greater opposition was mounted against proselytism by many non-European countries in the development of universal standards, where missionary activities were strongly associated with colonialism or with inducing a change of religion against domestic law, than by European countries. Secondly, the deference exhibited by both the Commission and the Court to the needs of the State and the historical role of established Churches in Europe (as identified by Carolyn Evans) is all the more unjustified in Europe where wider consensus on such an important issue is possible (Evans, C, 2001, at 102). The deference shown to the Greek Orthodox Church is particularly striking given the extensive use made of the anti-proselytism legislation in Greece. Added to this is the dual effect of the bias against non-mainstream religions and the bias in favour of established religions highlighted by Gunn, 1996.

In the universal context, the Human Rights Committee in paragraph 2 of General Comment No. 22 touches on this issue when it views ‘with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community’. The Human Rights Committee also took up the issue of discrimination resulting from the recognition of a religion as a State religion in paragraph 9, but with very little analysis of the issue under Article 18 itself. Instead, it emphasised the position of minorities under Article 27 and the means to be taken for their protection from discrimination, as well as their vulnerability as victims to advocacy of national, racial or religious hatred as contemplated in Article 20, all against the backdrop of the guarantee of equal protection in Article 26. As Professor Evans has commented, (op cit at page 208), ‘[o]nce issues primarily (but not exclusively) relating to discrimination and minority rights are stripped away, the relative paucity of the interpretive material relating to Article 18 per se is all the more apparent.’

Other forms of coercion

In providing protection against forms of coercion other than those associated with proselytism, it is clear that Article 9 of the Convention does not suffer from the lack of an explicit prohibition against coercion which would impair the individual's choice of religion found in the later UN instruments. Expressing the views of the Human Rights Committee on the scope of Article 18(2), paragraph 5 of General Comment No. 22 exemplifies prohibited forms of coercion by referring to ‘the use or threat of physical force or penal sanctions to compel believers... to recant their religion or belief or to convert’, as well as ‘policies or practices having the same intention or effect’. Issues that have caused concern to the Human Rights Committee have included attempts made in Korea to force people to recant their ‘anti-Communist’ beliefs (U.N. Doc. A/47/40 (1994)), and in Nepal excessive restrictions on the right not only to the manifestation of religion but to change religion (U.N. Doc. A/50/40 (1996) and CCPR/C/74/Add.2.)

Article 9 of the Convention (in common with Article 18 (1)) offers protection against a wide range of coercive measures apart from this, though it is not always clear whether it does so on the basis of article 9(1) or (2). Even those cases decided on the basis of article 9(1) do not specify whether protection is being given to the forum internum or the right to manifest. In the Danish Sex Education case, the Court made the following comment in connection with the First Protocol, Article 2 which was to be treated as consistent with Articles 8 to 10 (and which is taken by some, for example Professor Evans, to refer to the forum internum): ‘The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions. This is the limit that must not be exceeded’ (Kjeldsen, Busk Madsen and Pedersen v. Denmark, Ser.A, No.48 (1982), para.53). Compulsion falling short of indoctrination is, needless to say, also protected under Article 9 of the Convention. The case of Darby v. Sweden concerned the payment of tax to the Swedish Lutheran Church in circumstances permitting exemption for non-members of the Church if they were Swedish residents but not the applicant who was non-resident. The Commission explained that the ‘general right of freedom of religion under the first limb of Article 9(1)...protects everyone from being compelled to be involved directly in religious activities against his will without being a member of the religious community carrying out those activities’ (Darby v. Sweden, No.11581/85, Rep.1989, para. 51). In general, however, the tendency of the court is not to decide such matters on the basis of interference with the forum interim, but instead under Article 9(2). For example, in Buscarani and others v. San Marino (App. No. 24645/94, Eur. Ct H. R., 18 Feb 1999), the requirement of members of parliament to ‘swear allegiance to a particular religion’ was decided under Article 9(2) on the basis that the requirement was not necessary in a democratic society, and not under Article 9 (1) as Carolyn Evans has argued it might have been.

Respect for religious and other beliefs

Blasphemy laws are intended to provide a measure of respect for certain beliefs but the manner in which they are upheld by the Court has potentially far-reaching effect. Often such laws are undoubtedly discriminatory, such as UK blasphemy law which only criminalizes certain statements against the Christian faith and not other faiths, but this is not the principle area of concern. In Choudhury v. UK, No. 17439/90, it was held that such laws do not constitute discrimination for the purposes of Article 14 because the Convention itself does not include a right prohibiting blasphemy. Nevertheless, UK blasphemy law was explained, in Wingrove v. UK, to have a legitimate aim under Article 10 (2). The Court distinguished between freedom of political speech and freedom of expression likely to offend the religious convictions of others: ‘Whereas there is little scope under Article 10 (2)....for restrictions on political speech or on debate of questions of public interest ... a wider margin of appreciation is generally available to the contracting States when regulating freedom of expression in relation to matters liable to defend intimate personal convictions within the sphere of morals or, especially, religion’ (Wingrove v. UK No. 17419/90, Rep. 1995 para 58). In supporting a wide margin of appreciation the Court commented that ‘there is as yet not sufficient common ground in the legal and social orders of the Member States of the Council of Europe to conclude that a system whereby a State can impose restrictions on the propagation of material on the basis that it is blasphemous is, in itself, unnecessary in a democratic society’ (para 57). Similar principles are reflected in Otto-Preminger-Institut v. Austria, in which the Court considered that ‘the respect for religious feelings of believers as guaranteed by article 9 can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society’ (Otto-Preminger-Institut v. Austria Ser. A, No. 295 - A (1994), para 47). It then emphasised the importance of ‘weighing up the conflicting interests of the exercise of two fundamental freedoms guaranteed under the Convention, namely, the right of the applicant association to impart to the public controversial views... and the right of other persons to proper respect for their freedom of thought, conscience and religion’. (para 54) . The Court concluded that a wide margin of appreciation should be given to States because ‘[a]s in the case of “morals” it is not possible to discern throughout Europe a uniform conception of the significance of religion in society; even within a single country such conceptions may vary.’

As Professor Evans has observed (Evans, M, 1997, at page 336) the explanation for the emergence of such a right seems to be the to balance competing claims. However, the combined effect of the uncertainty of the emerging concept of ‘respect’ for beliefs and the wide margin of appreciation to be given to States in such matters would certainly be capable of producing unintended results in the absence of adequate reasoning and a proper balancing of rights in favour of minority beliefs. For example, the bias demonstrated in Greece in favour of the Orthodox Church combined with the non-interventionist approach of the Court could unduly stifle the freedom of non-Orthodox faiths if they express beliefs contrary to those espoused by the Orthodox Church.

In the light of this, one area of growing concern is the trend in the domestic legislation of certain European countries to be manifestly antagonistic towards non-State religions or denominations (beyond the illustration already provided by Greece). For example, the anti-sect law passed by the French National Assembly on 30th May, 2001 has the laudable aim of restricting dangerous sects but gives power to a single judge to dissolve any religious group which is deemed to be a ‘sect’. The loose definition of ‘sect’ is reflected in the sheer number already identified by the authorities (173), including such long-established entities as the Free Baptist Church. Similarly, the Belgian parliament in 1997 voted on its own anti-sect report. The list of sects (which was not voted on) appended to the report included reference to a Christian Fellowship operating at the European Parliament. This is believed by some to be an interdenominational prayer group participated in by (among others) members of the European Parliament. The broadly drafted anti-sect legislation in certain countries will undoubtedly mean that the historic practice of the Commission and the Court in failing to rule on the compatibility of the law itself (and not merely certain aspects of its application) will no longer be sustainable and, it may be hoped, will result in a more rigorous interpretation of Article 9 and a more interventionist approach. One of the criticisms made by Judge Martens of the Court in Kokkinakis (partly concurring) was that the ‘dangerous ambiguity’ of the Greek anti-proselytism law was such that ‘in an atmosphere of religious intolerance....provides a perfect and dangerous instrument for repressing heterodox minorities (para.5)’.

Mention has already been made of the concerns expressed by the Human Rights Committee in General Comment No. 22 (para 9) in circumstances where State recognition is given to a particular religion. The Committee has, understandably, not expressed disapproval of State religions but it has emphasised the need for the protection of the interests of minority religions and the requirement of equal treatment. In its consideration of State reports it has, to take a few of many such examples, sought information from Tunisia concerning the exercise of and restrictions on political rights, particularly for non-Muslims, and on legislation and practices regarding access to public office (U.N. Doc. A/42/40 (1987), from New Zealand on whether specific measures had been taken to protect the Maori religion (U.N. Doc. A/39/40 (1984)), and from Finland on the differences that existed between the status of the Evangelical Lutheran Church and the other religious communities in Finland (U.N. Doc. A/41/40 (1986)). It is noticeable how frequently the Human Rights Committee has raised the issue of blasphemy in its examination of reports concerning countries where the penalty for blasphemy is not severe, rather than those in which it is. For example, members of the Committee wished to know whether there had been any evolution in the UK government’s position in respect of legislation relating to blasphemy and blasphemous libel, to which the government replied that it was aware that the current legal situation with regard to blasphemy was unsatisfactory but it did not believe that the necessary consensus existed to change it- furthermore, the UK government observed that the fact that the law did not apply to all religions did not contravene Article 18 (U.N. Doc. A/46/40 (1991)). Similar questions have been asked of New Zealand concerning blasphemous libel (U.N. Doc. A/44/40 (1989)), Finland (U.N. Doc. A/41/40 (1986)), and Trinidad and Tobago, in the latter case concerning the protection of religious movements against the false portrayal of their convictions (U.N. Doc. A/43/40 (1988)). Although the State reports provide useful factual detail, the Committee’s examination of them does not assist in the application of Article 18 to that particular issue. It is unclear precisely where such questions are targeted.

Limitations

In line with similar provisions in universal instruments, Article 9(2) of the Convention allows State limitations to the extent ‘prescribed by law’ and even then only if ‘necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’. The limitation, ‘prescribed by law’ in Article 9 is the same as that found in Article 18 of the ICCPR and is interpreted so that it ‘does not merely refer back to domestic law but also relates to the quality of law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention’ (Malone v. UK, 82 Eur. Ct. H.R. (ser.A) at 32 (1984)). In Manoussakis and others v. Greece it prevented the apparently innocent requirement for authorization to operate a place of worship being ‘transformed from a mere formality into a lethal weapon against the right to freedom of religion’ (Manoussakis and others v. Greece, Judgment dated February 26, 1996; 23 EHRR 387, at para.41). The ‘prescribed by law’ requirement also prevents arbitrariness so that in Hasan and Caush v. Bulgaria, the failure to recognise the leadership of the applicant interfered with the internal organisation of the Muslim community and was condemned for allowing the State unfettered discretion in the appointment (Hasan and Caush v. Bulgaria, Judgment dated October 26, 2000).

In the early Commission and General Assembly debates, it became clear that the notion of ‘democracy’ in the Universal Declaration was capable of a diverse interpretation, with the Soviet Union, for example, defining democratic State in terms which denotes ‘the obligation for a minority to submit to the majority of the people’ (UN Doc E/CN.4/SR.51 (1948)). The resulting draft limitation Article 29(2) of the Universal Declaration referred to ‘democratic society’, firmly rejecting the Soviet Union’s proposal for ‘democratic State’. The purpose of Article 29(2) of the Universal Declaration was to provide a conception of society which excludes all non-democratic regimes and provides a criterion for distinguishing between true and false forms of democracy. The plumb-line for the limitation Article is therefore ‘the purposes and principles of the United Nations’ and to emphasise membership of the international community (UN Docs. A/C.3/SR.153, 345 (1948)). As Svensson-McCarthy has observed, there was agreement in principle among most countries that the criterion of a democratic society is whether or not it genuinely represents the will of the people and respects the human rights proclaimed in the Universal Declaration. Although it might appear circular to define democracy by reference to human rights, she noted that we cannot ignore the fact that this is how the drafters explained a ‘democratic society’ (Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception, p 101). The limitations in Article 9(2) of the Convention differ by the obvious addition of the phrase, ‘necessary in a democratic society’ but given the above interpretation of the United Nations instruments, its addition is not significant other than to reinforce that interpretation. However, one significant difference is that across European countries there is tighter consensus on the meaning of ‘democratic society’ than can be expected at universal level. For this reason the term has not needed much clarification although in the Kokkinakis case pluralism was placed at the heart of the notion of democratic society. Religion was described as ‘one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries depends on it’ (para.31).

There is no universally applicable common standard of 'public morals' (see Hertzberg v. Finland, Communication No. 61/1979, International Covenant on Civil and Political Rights, Human Rights Committee, Selected Decisions under the Optional Protocol (2^nd-16^th Sessions), UN Doc. CCPR/C/Optional Protocol/1, at 124, 126, at 10.3 (1985)). However, it would appear from the Human Rights Committee’s observations that, consistent with developing emphasis on pluralism, the term is not to be judged by reference to a single religion or culture (para.8 of General Comment No.22). Similarly the Special Rapporteur on religious intolerance noted with concern that freedom of religion was only guaranteed in Colombia if not contrary to Christian morality (UN Doc E/CN.4/1988/43, at 10-11), and in Panama that Christian morality was a ground for imposing limitations (UN doc E/CN.4/1987/37, at 13). However, in interpreting Article 9 of the Convention, the ‘morals’ component of ‘health or morals’ confers a wide margin of appreciation because of the lack of uniformity of any conception of morals in the legal and social orders of the Contracting States (Handyside v. UK, Ser. A no.24 (1976) followed in Muller and others v. Switzerland, Ser.A, no. 133 (1988), para. 35).

Conclusion

The similarity between the text of Article 18 of the Universal Declaration and Article 9 of the Convention, and the similarity in the practice of the Human Rights Committee, the Commission and the Court in certain specific respects, belies one critically important difference between the universal and the European context. Among countries that are signatory to UN instruments, the differences in culture, domestic law, political ideology and even in their conception of freedom of thought, conscience and religion are reflected in the obstacles to the development of universal standards over the past 50 years and the failure of a convention on matters of religious intolerance. Although the assertion that ‘it is not possible to discern throughout Europe a uniform conception of the significance of religion in society’ has led to a wide margin of appreciation in decisions concerning religious matters, this does not give sufficient importance to the fact that throughout Europe there is in fact strong consensus on the meaning and value of democracy, pluralism and tolerance. Nevertheless, a wide margin of appreciation potentially provides the gateway for allowing increased State restriction on the activities of minority religious groups in Europe, even if (as in Otto-Premier-Institut) the aim is to protect the enjoyment of certain aspects of religious freedom. Greater scope exists in the development of Convention jurisprudence for cogency, consistency and better precision than exists in the development of universal standards, yet opportunities for this are repeatedly missed and a non-interventionist approach maintained by the Court.

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