Summary of the book:

“Freedom of religion in the judgments of the European Court on Human Rights in Strasbourg”.

FNF has recently published a book entitled “Freedom of religion in the judgments of the

European Court on Human Rights in Strasbourg”.

The main goal of this publication is to inform the public in BiH on the attitudes and the

interpretation of the right to freedom of thought, conscience and religion Art. 9. of European

Convention, made by European Court of Human Rights in Strasbourg (Court).

The book is intended for lawyers, judges, other relevant decision-making bodies dealing with

freedom of religion and all citizens. Given that the book was written in Bosnian language it can

be used in other countries in the region such as Croatia and Serbia.

This book contains the most important judgments relating to the issue of freedom of thought,

conscience and religion Art. 9 of the European Convention on Fundamental Freedoms and

Rights (ECHR).

ARTICLE 9

Freedom of thought, conscience and religion

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, 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.

The European Convention is an international treaty, in which counties on the basis of Art. 1.

pledged that for "everyone within their jurisdiction will be guaranteed the rights and freedoms"

provided in the Convention. Also, countries specifically pledged "to abide by the final judgment

of the Court in any case to which they are parties."

Bosnia and Herzegovina has ratified the Convention on 12.07.2002. and accepted the

jurisdiction of the European Court of Human Rights.

The book presents the most important parts of the 10 judgments: Otto-Preminger institute v.

Austria; Buscarini and others v. Republic of San Marino; Serif v. Greece; Dahlab v. Switzerland;

Refah party and others v. Turkey; Supreme Holy Council of the Muslim Community v. Bulgaria;

Folgero and others v. Norway; Masaev v. Moldavia; Lautsi and others v. Italy; Eweida and

others v. UK Great Brittan.

Otto-Preminger institute v. Austria

In this particular case is about a ban on displaying one film called "Das Liebeskonzil" (Love

council) that offended the religious feelings of Roman Catholics. The European Court of Human

Rights in Strasbourg ruled with six votes "for" and 3 "against" that there was no violation of the

right to freedom of expression when the Austrian authorities confiscated the film and banned its

broadcasts. The final judgment was made on the 20th September 1994.

Judgment: Buscarini and others v. Republic of San Marino

This judgment is about newly elected members of the General Grand Council (Parliament of the

republic of San Marino) who refused to lay down oath as the same was referring to the Gospel.

The applicants were elected to the General Grand Council in elections held on 30 May 1993.

Mr. Cristoforo Buscarini, Mr. Emilio Della Balda and Mr. Dario Manzaroli believed that this

violates their right to freedom of religion and conscience, if they are asked to show loyalty to a

particular religion to which they do not belong.

The Act in question referred to a decree of 27 June 1909, which laid down the wording of the

oath to be taken by members of the Republic’s parliament as follows:

“I, …, swear on the Holy Gospels ever to be faithful to and obey the Constitution of the

Republic, to uphold and defend freedom with all my might, ever to observe the Laws and

Decrees, whether ancient, modern or yet to be enacted or issued and to nominate and vote for as

candidates to the Judiciary and other Public Office only those whom I consider apt, loyal and fit

to serve the Republic, without allowing myself to be swayed by any feelings of hatred or love or

by any other consideration.”

The Government of San Marino emphasized the importance, in any democracy, of the oath taken

by elected representatives of the people, which, in their view, was a pledge of loyalty to

republican values. Regard being had to the special character of San Marino, deriving from its

history, traditions and social fabric, the reaffirmation of traditional values represented by the

taking of the oath was necessary in order to maintain public order.

The Strasbourg Court has unanimously decided that there has been a violation of Art. 9 of the

European Convention on Human Rights and Freedoms, which guarantees freedom of religion

and conscience and ordered the San Marino to change the text of the oath in a manner that does

not refer to any religion.

Serif v. Greece

The applicant is a Greek citizen, born in 1951. He is a theological school graduate and resides in

Komotini, Greece.

In 1985 one of the two Muslim religious leaders of Thrace, the Mufti of Rodopi, died. The

Greek State appointed a mufti ad interim. When he resigned, a second mufti ad interim, Mr M.T.,

was appointed. On 6 April 1990 the President of the Republic confirmed M.T. in the post of

Mufti of Rodopi.

In December 1990 the two independent Muslim Members of Parliament for Xanthi and Rodopi

requested the Greek State to organise elections for the post of Mufti of Rodopi, as the law then in

force provided. They also requested that elections be organized by the Greek State for the post of

the other Muslim religious leader of Thrace, the Mufti of Xanthi. Having received no reply, the

two independent MPs decided to organise elections themselves at the mosques on Friday 28

December 1990, after prayers.

On 28 December 1990 the applicant was elected Mufti of Rodopi by those attending Friday

prayers at the mosques. Together with other Muslims, he challenged the lawfulness of M.T.’s

appointment before the Supreme Administrative Court.

The Rodopi public prosecutor instituted criminal proceedings against the applicant under

Articles 175 and 176 of the Criminal Code for having usurped the functions of a minister of a

“known religion” and for having publicly worn the dress of such a minister without having the

right to do so.

The Government submitted that the interference was necessary in a democratic society. In many

countries, the muftis were appointed by the State. Moreover, muftis exercised important judicial

functions in Greece and judges could not be elected by the people. As a result, the appointment

of a mufti by the State could not in itself raise an issue under Article 9.

The Strasbourg Court recalls that freedom of thought, conscience and religion is one of the

foundations of a “democratic society” within the meaning of the Convention. The pluralism is

indissociable from a democratic society, which has been dearly won over the centuries, depends

on it. It is true that in a democratic society it may be necessary to place restrictions on freedom of

religion to reconcile the interests of the various religious groups (see the Kokkinakis judgment

cited above, pp. 17 and 18, § 31 and 33). However, any such restriction must correspond to a

“pressing social need” and must be “proportionate to the legitimate aim pursued” (see, among

others, the Wingrove v. the United Kingdom judgment of 25 November 1996, Reports 1996-V,

p. 1956, § 53).

Court, therefore, found a violation of Article 9 of the Convention.

From this judgment it is clear that the European Court of Human Rights in Strasbourg found

unacceptable for the state to interfere in the process of election of religious leaders in a particular

religious community. The judgment confirms autonomy of religious communities to freely and

without interference from the state elect its leaders and other representatives.

Dahlab v. Switzerland

This Judgment is about a teacher who was fired because she wore an Islamic headscarf. She has

initiated proceedings before the European Court of Human Rights in Strasbourg who made the

final decision on the 15th February 2001, that Switzerland did not violate Art. 9 of the European

Convention on Human Rights and Freedoms.

This verdict speaks about the use of religious symbols in public school classrooms and can be

correlated with the judgment Lautsi v Italy (Application no. 30814/06, Judgment of 18 March

2011), which speaks about highlighting crucifixes in public school classrooms.

Judgment: Refah party and others v. Turkey

Constitutional Court in Turkey banned the work of Refah Party, as a political party, because

according to the opinion of the Constitutional Court, the Refah Party became the center of anti-

constitutional activities. The Refah party had intention to establish a plurality of legal systems

that lead to discrimination based on religious belief, and that Refah party had intention to

implement shari'a law for internal and external relations in the Muslim community in the context

of pluralism legal systems.

Mr. Necmettin Erbakan, Refah Party President and Mr. Sevket Kazan and Mr. Ahmet Tekdal

activists of the party, have applied the European Court of Human Rights alleging that the

Constitutional Court of Turkey has broken their right to freedom of association Art. 11. of

Convention.

The Court considers that there can be no democracy without pluralism. It is for that reason that

freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to

“information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of

indifference, but also to those that offend, shock or disturb (see, among many other authorities,

Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49,

and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37).

Democracy and religion in the Convention system

For the purposes of the present case, the Court also refers to its case-law concerning the place of

religion in a democratic society and a democratic State. It reiterates that, as protected by Article

9, freedom of thought, conscience and religion is one of the foundations of a “democratic

society” within the meaning of the Convention. It is, in its religious dimension, 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. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to

practise or not to practise a religion (see Kokkinakis v. Greece, judgment of 25 May 1993, Series

A no. 260-A, p. 17, § 31, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34,

ECHR 1999-I).

Moreover, in democratic societies, in which several religions coexist within one and the same

population, it may be necessary to place restrictions on this freedom in order to reconcile the

interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis,

cited above, p. 18, § 33). The Court has frequently emphasised the State’s role as the neutral and

impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role

is conducive to public order, religious harmony and tolerance in a democratic society. It also

considers that the State’s duty of neutrality and impartiality is incompatible with any power on

the State’s part to assess the legitimacy of religious beliefs (see, mutatis mutandis, Cha’are

Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII) and that it requires the

State to ensure mutual tolerance between opposing groups (see, mutatis mutandis, Metropolitan

Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123, ECHR 2001-XII).

In applying the above principles to Turkey the Convention institutions have expressed the view

that the principle of secularism is certainly one of the fundamental principles of the State which

are in harmony with the rule of law and respect for human rights and democracy. An attitude

which fails to respect that principle will not necessarily be accepted as being covered by the

freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the

Convention (see the opinion of the Commission, expressed in its report of 27 February 1996, in

Kalaç, cited above, p. 1215, § 44, and, mutatis mutandis, p. 1209, §§ 27-31).

In order to perform its role as the neutral and impartial organiser of the exercise of religious

beliefs, the State may decide to impose on its serving or future civil servants, who will be

required to wield a portion of its sovereign power, the duty to refrain from taking part in the

Islamic fundamentalist movement, whose goal and plan of action is to bring about the pre-

eminence of religious rules (see, mutatis mutandis, Yanasik v. Turkey, no. 14524/89,

Commission decision of 6 January 1993, DR 74, p. 14, and Kalaç, cited above, p. 1209, § 28).

On that point, the Court considers that a political party may promote a change in the law or the

legal and constitutional structures of the State on two conditions: firstly, the means used to that

end must be legal and democratic; secondly, the change proposed must itself be compatible with

fundamental democratic principles. It necessarily follows that a political party whose leaders

incite to violence or put forward a policy which fails to respect democracy or which is aimed at

the destruction of democracy and the flouting of the rights and freedoms recognised in a

democracy cannot lay claim to the Convention’s protection against penalties imposed on those

grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR

2002-II, and, mutatis mutandis, the following judgments: Stankov and the United Macedonian

Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX, and

Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57,

§ 46-47).

In that context, the Court considers that it is not at all improbable that totalitarian movements,

organised in the form of political parties, might do away with democracy, after prospering under

the democratic regime, there being examples of this in modern European history.

From the above Court unanimously decided that there was no violation of Art. 11 in connection

with Article 9 Convention.

Supreme Holy Council of the Muslim Community v. Bulgaria;

The European Court of Human Rights on 16 Dec. 2004 published a written judgment in the case

of the Supreme Religious Council of the Muslim Community v. Bulgaria . The judgment became

final on 16th March 2005.

The Court unanimously decided that there was a violation of Art . 9 (freedom of religion ) of the

European Convention on Human Rights and Freedoms .

This verdict is very significant in terms of the role of the state and its relation to the religious

communities in the selection of leaders . As could be seen from the judgment , the Court

supported the Government of Bulgaria in order to play a role of a neutral mediator between two

rival groups in the process of unification but stressed that this role could take as long as both

rival groups supported such a role for the State . At a moment when one of the rival groups

withdrew and put forward an objection to the neutrality of the state , the Directorate of faith

Bulgaria had to withdraw from the process of unification and that only offered a role of mediator

when they are ready both rival groups . The Court emphasized that the state has no obligation to

provide the sole leadership of one of the religious community , but the state's obligation to

provide a democratic environment where rival groups will tolerate each other and that disputes

will be resolved through dialogue .

Folgero and others v. Norway;

In this case we talk about the right of parents to complete exemption from KRL subject that is

introduced as a compulsory religious education in the curriculum of public schools in Norway ,

in 1997 . The law allowed the partial exemption but the parents felt that they should have the

right to full exemption for their children from this subject because the subject is conceived as a

Christian seminary .

The Strasbourg Court has decided that there had been a violation of Art . 9th European

Convention on Human Rights and that Norway should enable full exemption for children whose

parents do not want their children to attend teh class.

The court ruled that the government may introduce religious education in the curriculum but it

has the ability to provide exemptions for those who do not want to attend the same . The State is

forbidden to conduct any form of indoctrination that might be considered non-compliance with

parental religious and philosophical convictions . This is the limit that must not be crossed.

Masaev v. Moldavia;

In this judgment the Court found that the punishment for Muslims prayers in a rented apartment,

made a violation of Art. 9 of the Convention. The Court rendered a verdict despite the fact that

Muslims had no registered religious community.

The Court does not dispute the right of a State to establish the conditions for the registration of

religious communities in a way that is compatible with the articals 9 and 11 of the Convention.

However, this does not mean that the Government of Moldova claims, that is compatible with

the Convention to sanction individual members of non-registered religious communities to

perform prayers or otherwise expressing their religious beliefs.

Lautsi and others v. Italy;

In this case the applicant is italian citizen whose children attended public school in Italy, in

whose classrooms were prominent crucifix . She complained that it violated her right to have

children educated in accordance with religious or philosophical convictions of parents , as

stipulated in artical 2. Protocol 1. of European Convention on Human Rights and Freedoms .

However the Italian Government considers that highlight crucifixes in public classrooms is in

accordance with the basic principles of the European Convention on Human Rights. The

presence of crucifixes in classrooms legitimate contribution to children to enable better

understanding of the community in which should be integrated .

The Court on 3 November 2009, unanimously ruled that there was a violation of art. 9. of the

Convention and ordered Italy to remove all crucifixes from public schools. The Government of

Italy appealed on this verdict on 28 January 2010. The Grand Chamber of the Court, composed

of 17 judges , made a final judgment on the 18th March 2011 in which ruled that there was no

violation of the right to education and the right to freedom of religion and that Italy does not

have to remove crucifixes from public schools.

Eweida and others v. UK Great Brittan.

The case arose out of four application (no. 48420/10 , 59842/10 , 51671/10 and 36516/10 )

against the United Kingdom of Great Britain and Northern Ireland, submited by four British

citizens: Ms Nadia Eweida , Ms. Shirley Chaplin , Mrs. Lillian Ladele and Mr . Gary McFarlane

Ms. Eweida and Ms Chaplin had specifically complained about the restrictions placed by their

employers and the issue clearly borne the cross around her neck . Ms. Ladele and Mr. McFarlane

objected specifically to the sanctions that have been taken against them by their employers as a

result of their concerns about the provision of services in their opinion, justify the homosexual

community . Ms. Eweida , Ms. Chaplin and Mr. McFarlane relied on Article 9 Convention ,

alone and in conjunction with Article 14 , while Mrs. Ladele appealed on the basis of Article 14

which can be correlated with Article 9 Convention .

Ms Eweida, the first applicant, who spent the first eighteen years of her life in Egypt, is a

practising Coptic Christian. From 1999 she worked as a member of the check-in staff for British

Airways Plc, a private company. British Airways required all their staff in contact with the

public to wear a uniform.

Ms Chaplin, the second applicant is also a practising Christian. She has worn a cross visibly on a

chain around her neck since her confirmation in 1971, as an expression of her belief. She

believes that to remove the cross would be a violation of her faith. Ms Chaplin qualified as a

nurse in 1981 and was employed by the Royal Devon and Exeter NHS Foundation Trust, a State

hospital. At the time of the events in question she worked on a geriatric ward. The hospital had a

uniform policy, based on guidance from the Department of Health.

Ms Ladele, the third applicant is a Christian. She holds the view that marriage is the union of one

man and one woman for life, and sincerely believes that same-sex civil partnerships are contrary

to God’s law. Ms Ladele was employed by the London Borough of Islington, a local public

authority, from 1992. Islington had a “Dignity for All” equality and diversity policy for all

citizens.

Mr McFarlane, the fourth applicant is a practising Christian, and was formerly an elder of a large

multicultural church in Bristol. He holds a deep and genuine belief that the Bible states that

homosexual activity is sinful and that he should do nothing which directly endorses such activity.

Relate Avon Limited (“Relate”) is part of the Relate Federation, a national private organisation

which provides a confidential sex therapy and relationship counselling service. Relate and its

counsellors are members of the British Association for Sexual and Relationship Therapy

(BASRT). That Association has a Code of Ethics and Principles of Good Practice which Relate

and its counsellors abide by. Paragraphs 18 and 19 of the Code provide as follows:

“Recognising the right to self-determination, for example:

18. Respecting the autonomy and ultimate right to self-determination of clients and of others with whom

clients may be involved. It is not appropriate for the therapist to impose a particular set of standards, values or

ideals upon clients. The therapist must recognise and work in ways that respect the value and dignity of clients

(and colleagues) with due regard to issues such as religion, race, gender, age, beliefs, sexual orientation and

disability.

THE COURT

Holds by five votes to two that there has been a violation of Article 9 of the Convention in

respect of the first applicant and that it is not necessary to examine separately her complaint

under Article 14 taken in conjunction with Article 9;

Holds unanimously that there has been no violation of Article 9, taken alone or in

conjunction with Article 14, in respect of the second applicant;

Holds by five votes to two that there has been no violation of Article 14 taken in conjunction

with Article 9 in respect of the third applicant;

Holds unanimously that there has been no violation of Article 9, taken alone or in

conjunction with Article 14, in respect of the fourth applicant;

Emir Kovačević

Lawyer