2008 06/11

Барыс ЗвозскаўHere is an article provided by the human rights expert Barys Zvozskau. Bearing in mind recent events concerning the freedom of religion in Russia, including information on religious persecution of Old Believers and their appeal for legal assistance, the article appears to be extremely topical, since it deals with a European approach to the exercise of this vital element of the concept of human rights, i.e. freedom of consciousness.

The article may be a good basis for protecting religious freedom where there is a risk of neglecting this fundamental right as an integral part of the system of international standards.

Thus, the victim may appeal to the provisions of international law that should not under any conditions be ignored by the member countries of respective treaties. In this case, it is the European Convention on Human Rights and Fundamental Freedoms.

Freedom of Religion: European Approach

Today, in the world human rights community it id admitted that the high ideals set forth in the Universal Declaration of Human Rights could have remained nothing but a good intention save that the ideals underwent further development in a number of international treaties with a binding effect for respective member countries.

Among these treaties, of especial significance appears to be the European Convention. Owing to the existence of several control authorities of the Convention – the European Commission (active before November 1998), the European Human Rights Court and the Council of Ministers – the Convention has become the finest and most efficient international treaty in the field under analysis.

It is the Court and the Commission that, while considering various claims and human rights issues, came to identifying an adequate approach to tackling this kind of problems and established a procedure of putting the Convention into practice, which resulted in high standards of human rights in today’s Europe.

Therefore, speaking of the European approach to the freedom of religion, I should first of all mention the expertise created by the European Court.

In terms of religious freedom, I should admit that the issue primarily concerns the ‘freedom from’ the State’s excessive intrusion into the sphere.

Article 9 of the ECHR:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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.

This article is unique among similarly structured articles of the European Convention, since it does not provide for any limitation of rights and freedoms under a claim of ‘national security needs’.

The rights to the freedom of consciousness, thought and religion are to a considerable degree inherent in the individual’s mind. It is only when the individual claims his or her convictions and beliefs that the state becomes aware of their existence and character.

The practical experience of the European Court indicates that in case there is a registered governmental intrusion in the exercise of any of the above-mentioned rights protected by Paragraph 1, the control authorities of the Convention identify whether the limitation is ‘provided by the law’ and ‘acceptable in a democratic society’ under Paragraph 2. In case the state introduces legal limitations it is obliged to prove:
a) the unacceptability of the means of considering religious creed and conducting religious rites;
b) the validity of the ban on conducting religious rites without proper license by the government.

In case any of these is ignored, the Court passes a decision on the violation of Article 9.

Besides, in some cases the Court abstains from taking any decision on whether the intrusion is ‘provided by law’ or not, by resolving that it is first of all contradictory to Article 9 (e.g. Funke versus France, 1993).

In its practice of evaluating the necessity of intrusion and its tolerable amount, the Court resorts to endowing governments with discretionary power. However, while estimating the limits of discretion the Court would always bear in mind the fact that ‘it is necessary to maintain true religious pluralism, which is an integral part of any democracy’ (Kokkinakis versus Greece, 1993).

Apart from that, when it is a question of compliance with Paragraph 2 of Article 9, the Court would find it vital to determine whether the limitation imposed by the law is adequate to the legitimate objective. Thus, in 1996 in the case of Manussakis and others versus Greece the Commission decided that ‘regarding the opening of a prayer house without prior license as a crime is obviously inadequate to the legitimate objective’. Moreover, the Commission believed that ‘the system of permissions is open to criticism’ and ‘the limitations of the freedom to practice a religion provided by the Law (the Greek one), … is subject to scrupulous attention by the Court’.

The Court made a special emphasis on the right to the freedom of religion, which when provided by the Convention ‘rules out any governmental evaluation of the legitimacy of religions and means of their expression’. The Court mentioned, inter alia, such evaluation factors as the size of the religious community and direct judgment concerning ‘an actual need’ in opening a church by the community.

In the above-mentioned case of Manussakis and others versus Greece, the Court pointed out that the state of Greece tended to use various opportunities for ‘imposing severe limitations or even a ban to non-Orthodox religious communities’. The Court also reported an acute tendency of limiting the activities of non-Orthodox religions by the administrative and church authorities of Greece.

N.B.: In the case of Manussakis and others versus Greece, the Court resolved that a) there was a violation of Article 9 of the European Convention and b) Greece was to pay the applicants 4,030,100 drachmas within the period of three months.

To sum up the above-stated ideas, I should stress the following things:
1. Belonging to various religions requires that the state resort to ‘pluralism, tolerance and the spirit of openness, which are an integral part of a democratic society’.
2. Any religion, its dogma and rites should not contradict public order.
3. The state may only introduce limitations of the rights to the freedom of religion with the help of law and solely for the purposes stated in 2 of Article 9 of the Convention.
4. In case any limitations, even provided by the law, are aimed at objectives other than provided by Paragraph 2 of Article 9, one can state that there is a violation of Article 9 of the Convention by the state.

Thus, in case a priest is prosecuted, I strongly recommend referring to the practical experience of the European Human Rights Court.
Apart from the above-mentioned instances, I advise to study the cases analyzed in the section ‘The Freedom of Consciousness and Religion’ of the book ‘Leading Cases of the Human Rights Committee’ (compiled by Raija Hanski and Martin Scheinin). The edition can easily be found on-line. In case your religion does not approve of using Internet, you may resort to the help of other people. Visiting a library is an option.

I am convinced that these materials can be effective in protecting your right to free religious practice.

Yours faithfully, Barys Zvozskau,
graduate of the High International Human Rights Course,
Certificate #18


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