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.........Chapter 12
SOME OTHER KEY RIGHTS:
FREEDOM OF THOUGHT,
CONSCIENCE, RELIGION,
OPINION, EXPRESSION,
ASSOCIATION AND
ASSEMBLY.............................
Learning Objectives
l To familiarize the participants with some other key rights, namely freedom of
thought, conscience, religion, opinion, expression, association and assembly, and their
importance in a society that is respectful of human rights in general
l To illustrate how these freedoms, as well as the limitations attached to the exercise of
most of them, are interpreted by the international monitoring bodies
l To explain the role of judges, prosecutors and lawyers in safeguarding the freedoms
dealt with in this chapter
Questions
l How are the following freedoms protected in the country in which you work:
- freedom of thought, conscience, and religion,
- freedom of opinion and expression, and
- freedom of association and assembly?
l Are there any particular concerns with regard to the effective implementation of these
freedoms in the country in which you work?
l Are there any groups in the country in which you work that might be particularly
vulnerable to violations of one or more of these freedoms?
l If so, who are they and how may their freedoms be violated?
Questions (cont.d)
l What judicial or administrative remedies exist in the country in which you work for
persons who consider themselves to be victims of violations of these freedoms?
l What role is played by the following freedoms in building, preserving and/or
strengthening a democratic society/a society respectful of human rights:
- freedom of thought, conscience, and religion,
- freedom of opinion and expression, and
- freedom of association and assembly?
l With regard to freedoms whose exercise may be limited: in your view, how can a
balance be struck between an individual’s right to exercise those freedoms and a
society’s general interest in protecting, for instance, national security, public order,
safety, health, morals or the rights and freedoms of others?
l What can you as judges, prosecutors or lawyers do to protect every person’s right to
freedom of thought, conscience, religion, opinion, expression, association and
assembly?
Relevant Legal Instruments
Universal Instruments
l International Covenant on Civil and Political Rights, 1966
l International Covenant on Economic, Social and Cultural Rights, 1966
l International Convention on the Elimination of All Forms of Racial
Discrimination, 1965
l Convention on the Elimination of All Forms of Discrimination against
Women, 1979
l Convention on the Rights of the Child, 1989
l ILO Freedom of Association and Protection of the Right to Organise
Convention, 1948
l ILO Right to Organise and Collective Bargaining Convention, 1949
l Universal Declaration of Human Rights, 1948
l United Nations Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms,
- The Right to Freedom of
Thought, Conscience and
Religion
2.1 Relevant legal provisions
This sub-section contains the text of the most important legal provisions pertaining to freedom of thought, conscience and religion:
Article 18 of the Universal Declaration of Human Rights:
“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 teaching, practice, worship and observance.”
Article 18 of the International Covenant on Civil and Political Rights:
“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
- No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
- The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”
Article 8 of the African Charter on Human and Peoples’ Rights:
“Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”
Article 12 of the American Convention on Human Rights:
“1. Everyone has the right to freedom of conscience and of religion. This includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs either individually or together with others, in public or in private.
- No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.
- Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.
- Parents or guardians, as the case may be, have the right to provide for the religious or moral education of their children or wards that is in accord with their own convictions.”
Article 9 of the European Convention on Human Rights:
“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.
- 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 right to freedom of religion is further guaranteed by:
v Article 5(d)(vii) of the International Convention on the Elimination of All Forms of Racial Discrimination;
v Article 14 of the Convention on the Rights of the Child;
v Article 9 of the African Charter on the Rights and Welfare of the Child; and
v Article 4(i) of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women. Moreover, as will be further shown in Chapter 13, international human rights law prohibits discrimination on the ground of religion (see, inter alia , articles 1(3), 13 and 55(c) of the Charter of the United Nations, article 2 of the Universal Declaration, articles 2(1), 4(1), 24(1) and 26 of the International Covenant on Civil and Political Rights; article 2 of the African Charter on Human and Peoples’ Rights, articles 1(1) and 27(1) of the American Convention on Human Rights and article 14 of the European Convention on Human Rights).
2.2 General meaning of the right to freedom of
thought, conscience and religion
2.2.1 Article 18 of the International Covenant on Civil and
Political Rights
As pointed out by the Human Rights Committee, the right to freedom of thought, conscience and religion guaranteed by article 18(1) of the International Covenant “is far-reaching and profound; it encompasses freedom of thought on all
The Committee adds that “policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 [i.e. the right to participate in government] and other provisions of the Covenant, are similarly inconsistent with article 18(2). The same protection is enjoyed by holders of all beliefs of a non-religious nature.” 8
2.2.2 Article 8 of the African Charter on Human and Peoples’ Rights
Article 8 of the African Charter on Human and Peoples’ Rights is brief. It merely stipulates that “freedom of conscience, the profession and free practice of religion shall be guaranteed” and that “no one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” It is noteworthy that this provision is silent on the question of freedom of thought and also on the freedom to adopt or change a religion or belief according to one’s own convictions.
In a case against Zaire, the African Commission on Human and Peoples’ Rights held that “the harassment of the Jehovah’s Witnesses and religious leaders, including assassinations, destruction of religious structures and death threats” constituted a violation of article 8 of the Charter, since the Government had “presented no evidence that the practice of their religion in any way [threatened] law and order”.^9
2.2.3 Article 12 of the American Convention on Human Rights
The right to freedom of conscience and religion as protected by article 12 of the American Convention on Human Rights is in many ways similar to the freedoms guaranteed by article 18 of the International Covenant. However, in the Convention freedom of thought is not linked to these freedoms but to the right to freedom of expression set forth in article 13. The right to freedom of conscience and religion under article 12 of the American Convention also includes “freedom to maintain or to change one’s religion of beliefs”, a freedom that is strengthened by article 12(2) of the Convention, according to which “no one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.” It follows, a fortiori , that no one may be subject to “coercion” – the term used in article 18(2) of the Covenant – for purposes of either preventing a person from, or obliging a person to, maintain or change his or her religion or beliefs. In other words, a person’s religion or beliefs must at all times be fully voluntary. Freedom of conscience and religion as protected by article 12 of the American Convention is included in the list of non-derogable rights in article 27(2) and must therefore be guaranteed also “in time of war, public danger, or other emergency that threatens the independence or security” of the State party concerned (art. 27(1) of the Convention).
(^8) Ibid., loc. cit. (^9) ACHPR World Organisation against Torture and Others v. Zaire, Communications Nos. 25/89, 47/90, 56/91, 100/93, decision adopted during the 19 th^ session, March 1996 , para. 71 of the text as published at: http://www.up.ac.za/chr/ahrdb/acomm_decisions.html
Article 12 of the American Convention was considered in the case of Olmedo Bustos et Al. v. Chile – also called The Last Temptation of Christ case – concerning the annulment by the Chilean courts of an administrative decision taken by the Cinematographic Classification Council approving the exhibition of the film The Last Temptation of Christ for an audience of a minimum of 18 years of age. The applicants submitted, inter alia, that their freedom of conscience had been violated because of the censorship of the film, which implied that a group of people with a specific religion decided what other people could see.^10 In its judgment the Inter-American Court of Human Rights pointed out that “the right to freedom of conscience and religion allows everyone to maintain, change, profess and disseminate his religion or beliefs,” adding that this right is one of the foundations of democratic society, which, in its religious dimension, “constitutes a far–reaching element in the protection of the convictions of those who profess a religion and in their way of life”.^11 However, in this case there was no evidence, according to the Court, to prove that any of the freedoms embodied in this article had been violated; “the prohibition of the exhibition of the film ‘The Last Temptation of Christ’ did not impair or deprive anyone of their right to maintain, change, profess or disseminate their religion or beliefs with total freedom.”^12 As will be seen below, however, the prohibition did violate the right to freedom of thought and expression set forth in article 13 of the Convention.
2.2.4 Article 9 of the European Convention on Human Rights
Article 9(1) of the European Convention on Human Rights guarantees “the right to freedom of thought, conscience and religion; this right includes the freedom to change [one’s] religion or belief.” In terms very similar to those used in article 18(1) of the Covenant, article 9(1) of the European Convention also protects the freedom of every person, “either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”.
In the case of Kokkinakis v. Greece , the European Court of Human Rights held that “freedom of thought, conscience and religion” as enshrined in article 9
“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.” 13
Yet, as made clear by the same Court in the case of Kalaç v. Turkey , article 9
“does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account.” 14
(^10) I-A Court HR, The Case of Olmedo Bustos et Al. v. Chile, judgment of 5 February 2001, Series C, No. 73. The version used in this context is the unedited text found on the Court’s web site: www.corteidh.or.cr/seriecing/C, para. 45. (^11) Ibid., para. 79. (^12) Ibid., loc. cit. (^13) Eur. Court HR, Case of Kokkinakis v. Greece, judgment of 25 May 1993, Series A, No. 260-A , p. 17, para. 31. (^14) Eur. Court HR, Case of Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV , p. 1199 at p. 1209, para.27.
The right to freedom of thought, conscience and religion also implies that
every person has the unconditional right to have and adopt a religion of
his or her choice. This freedom includes the right to change one’s religion.
Every person has the right not to be coerced or otherwise compelled to
maintain, adopt or change a religion.
The right to freedom of thought, conscience and religion, including the
freedom to have, adopt or change religion according to one’s choice, are
protected unconditionally, although freedom of conscience does not imply a
right to refuse all obligations imposed by law.
No limitations may be imposed on the freedom to adopt or change a
religion of one’s choice.
Under the International Covenant on Civil and Political Rights and the
American Convention on Human Rights, freedom of thought, conscience
and religion cannot be derogated from in any circumstances.
Freedom of thought, conscience and religion is a cornerstone of a
democratic society/a society respectful of human rights.
2.3 The right to manifest one’s religion or belief
Article 18(1) of the International Covenant guarantees the freedom to manifest one’s religion or belief “either individually or in community with others and in public or private” and the freedom to do so “in worship, observance, practice and teaching”. As noted by the Human Rights Committee, it is thus a freedom that “encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.” 21 The Committee expressed concern, for instance, regarding provisions in the Freedom of Conscience and Religion Organizations Act in Uzbekistan “that require religious organizations and associations to be registered to be entitled to manifest their religion and beliefs” and article 240 of the Uzbek Penal Code, “which penalizes the failure of leaders of religious organizations to register their statutes”. The Committee strongly recommended that these provisions be abolished since they were not in conformity with article 18(1) and (3) of the Covenant. It further recommended that
(^21) United Nations Compilation of General Comments , p. 144, para. 4; emphasis added.
criminal procedures initiated on the basis of these provisions should be discontinued and convicted persons pardoned and compensated. 22
As noted above, article 8 of the African Charter on Human and Peoples’ Rights is the most laconic of the provisions considered in this chapter since it merely guarantees “the profession and free practice of religion”, adding that “no one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”
According to article 12(1) of the American Convention on Human Rights, the right to freedom of conscience and religion includes “freedom to profess or disseminate one’s religion or beliefs either individually or together with others, in public or in private”.
Under article 9(1) of the European Convention on Human Rights, the right to freedom of religion includes “freedom, either alone or in community with others and in public or private, to manifest [one’s] religion or belief, in worship, teaching, practice and observance”. In the case of Kokkinakis v. Greece , the European Court held that, “while religious freedom is primarily a matter of individual conscience, it also implies, inter alia , freedom to ‘manifest (one’s) religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions”.^23 It added that, according to article 9 of the European Convention,
“freedom to manifest one’s religion is not only exercisable in community with others, ‘in public’ and within the circle of those whose faith one shares, but can also be asserted ‘alone’ and ‘in private’; furthermore, it includes in principle the right to try to convince one’s neighbour, for example through ‘teaching’, failing which, moreover, ‘freedom to change (one’s) religion or belief’, enshrined in Article 9, would be likely to remain a dead letter.” 24
The case of Cha’are Shalom ve Tsedek v. France raised the issue of permits to perform ritual slaughters in France. The applicant association complained that articles 9 and 14 of the European Convention had been violated by the refusal of the French authorities to grant it “the approval necessary for it to authorise its own ritual slaughterers to perform ritual slaughter, in accordance with religious prescriptions of its members,” and by their granting such approval to the Joint Rabbinical Committee (ACIP) alone.^25 The applicant association submitted that the conditions for ritual
(^22) UN doc. GAOR , A/56/40 (vol. I), pp. 63-64, para. 24. (^23) Eur. Court HR, Case of Kokkinakis v. Greece, judgment of 25 May 1993, Series A, No. 260-A , p. 17, para. 31. (^24) Ibid., loc. cit. (^25) Eur. Court HR, Case of Cha’are Shalom Ve Tsedek v. France, judgment of 27 June 2000 ; the text used is the unedited text found on the Court’s website: http://hudoc.echr.coe.int, para. 58.
legitimate aim, namely, “the protection of public health and public order, in so far as organisation by the State of the exercise of worship is conducive to religious harmony and tolerance”. Having regard to the margin of appreciation left to the Contracting States, particularly with regard to establishment of the delicate relations between the State and religions, it could not be considered excessive or disproportionate and the measure was not, therefore, in breach of article 9(2). 32 As to the question of alleged discrimination, the Court concluded that there had been no violation of article 9 in conjunction with article 14 of the Convention. It noted in particular that the difference of treatment which resulted from the measure complained of “was limited in scope”. In so far as there was a difference of treatment, it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be realized. The difference of treatment therefore “had an objective and reasonable justification within the meaning of the Court’s consistent case-law”. 33
2.3.1 Limitations on the right to manifest one’s religion or belief
Among the freedoms guaranteed by article 18 of the International Covenant, only the freedom to manifest one’s religion or beliefs may be restricted. According to article 18(3), this freedom “may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. The Human Rights Committee emphasizes that this provision “is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated.”^34 The Committee importantly adds that limitations on the right to manifest one’s religion or beliefs “must not be applied in a manner that would vitiate the rights guaranteed in article 18”.^35 Lastly, the limitations must not, of course, “be imposed for discriminatory purposes or applied in a discriminatory manner”. 36
In resorting to limitations on the right to manifest one’s religion or beliefs, States parties must therefore ensure that they v comply with the principle of legality (“prescribed by law”); v are imposed exclusively for one or more of the objectives enumerated in article 18(3); v are necessary to achieve the objective concerned (principle of proportionality); and, lastly, v are not discriminatory but applied in an objective and reasonable manner.
(^32) Ibid_._ , para. 84. (^33) Ibid_._ , paras. 87-88. The Court, sitting as a Grand Chamber, was not unanimous in this case. By 12 votes to 5 it concluded that there was no violation of article 9 of the Convention, while the vote on article 9 in conjunction with article 14 was 12 to 7. (^34) United Nations Compilation of General Comments , p. 145, para. 8. (^35) Ibid., loc. cit. (^36) Ibid.
With regard to the concept of morals as a possible justification for limitations on the freedom to manifest one’s religion or beliefs, the Committee states that it derives from many social, philosophical and religious traditions and that, consequently, “limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.”^37 It further states that “persons already subject to certain legitimate restraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint.” 38 In the Sing Bhinder v. Canada case, the author, who was a Sikh, complained of a violation of article 18 of the Covenant as a consequence of the termination of his labour contract following his refusal to wear safety headgear during his work. The Committee examined this issue under both article 18 and article 26 of the Covenant and concluded that, if the requirement to wear a hard hat were regarded as raising an issue under article 18, it was a limitation justified by reference to the grounds laid down in article 18(3). On the other hand, if it was considered as a de facto discrimination against persons of the Sikh religion under article 26, “the legislation requiring that workers in the federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant.” 39
The grounds for allowing limitations on the freedom to manifest one’s religion or beliefs contained in article 12(3) of the American Convention on Human Rights are similar to those found in article 18(3) of the International Covenant. Limitations may thus be imposed provided that they are “prescribed by law” and “are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others”. The measures resorted to must, in other words, be proportionate to the legitimate aim pursued.
According to article 9(2) of the European Convention on Human Rights, “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 grounds enumerated cover in substance those found in the other two treaties. There is thus an important convergence on the major issue of limitations on the freedom to manifest one’s religion or beliefs. However, article 9(2) of the European Convention adds the condition that limitations for the reasons invoked must be necessary “in a democratic society”. The necessity test must therefore be made in the light of the needs of a society based on a democratic constitutional order.
(^37) Ibid. (^38) Ibid_._ , pp. 145-146, para. 8. (^39) Communication No. 208/1986, K. Sing Bhinder v. Canada ( Views adopted on 9 November 1989 ) , in UN doc. GAOR , A/45/ (vol. II), p. 54, para. 6.2.
the State were “vigilant to protect a person’s religious beliefs and dignity from attempts to influence them by immoral and deceitful means”. 47
Was the prohibition “necessary in a democratic society”? This is the crucial test that numerous cases have failed to pass under various articles of the European Convention on Human Rights. The test of what is “necessary in a democratic society” is the ultimate safeguard against interference with the enjoyment of a person’s fundamental freedoms that cannot possibly be considered necessary in a society that is pluralistic and tolerant. Although the Contracting States have “a certain margin of appreciation ... in assessing the existence and extent of the necessity of an interference, ... this margin is subject to European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.” The task of the European Court in the Kokkinakis v. Greece case was therefore “to determine whether the measures taken at national level were justified in principle and proportionate”. 48
As to the meaning of proselytism, the Court held that, first of all:
“a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.” 49
An examination of section 4 of Law No. 1363/1938 showed, however, that the criteria adopted by the Greek legislature were reconcilable with the foregoing if and insofar as they were “designed only to punish improper proselytism, which the Court [did] not have to define in the abstract in the present case”.^50 The Court noted, on the other hand, “that in their reasoning the Greek courts established the applicant’s liability by merely reproducing the wording of article 4 and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means”. Indeed, “none of the facts they set out warranted that finding”.^51 It followed that it had not been shown “that the applicant’s conviction was justified in the circumstances of the case by a pressing social need” and the contested measure did not therefore appear “to have been proportionate to the legitimate aim pursued or, consequently, ‘necessary in a
(^47) Ibid., p. 20, paras. 44 and 42. (^48) Ibid., p. 21, para. 47. (^49) Ibid., p. 21, para. 48. (^50) Ibid., loc. cit. According to article 4(2) of Law No. 1363/1938 as amended, “proselytism” meant, “in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion ( eterodoxos ), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety”, p. 12, para. 16. (^51) Ibid., p. 21, para. 49.
democratic society ... for the protection of the rights and freedoms of others’”. There had, in other words, been a violation of article 9 in the case. 52 A violation of article 9 of the European Convention was also found in the case of Serif v. Greece, which – against a complex historical background – concerned the right of Muslims to organize elections for the post of Mufti in Rodopi. That right was overturned on 24 December 1990 by the Government through a legislative decree that was retroactively validated when the Greek Parliament passed Law No. 1920 on 4 February 1991. Requests had been made to the Government for the organization of elections to fill the post of Mufti in Rodopi following the death of the previous Mufti. In the absence of a reply, elections were held at the mosques after prayers on 28 December 1990. The applicant was elected Mufti and, together with other Muslims, challenged before the Supreme Court the Government’s decision to appoint another person to that position.^53 On 12 December 1994, the Salonika Criminal Court found the applicant guilty 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”.^54 The applicant was given a commutable sentence of eight months’ imprisonment, which was reduced to six months on appeal, the Court of Appeal having upheld the conviction. The sentence was commuted to a fine. 55 Before the European Court, the applicant complained that his conviction amounted to unjustified interference with his right to be free to exercise his religion together with all those who turned to him for spiritual guidance. 56 The Court concluded in the first place that the applicant’s conviction amounted to “an interference with his right under Article 9 § 1 of the Convention, ‘in community with others and in public ... to manifest his religion ... in worship [and] teaching’”; this followed from the facts on which the conviction was based, according to which the applicant had issued a message about the religious significance of a feast, delivered a speech at a religious gathering, worn the dress of a religious leader and so forth. 57 The Court did not, however, consider it necessary to deal with the question whether the interference was “ prescribed by law ”, since it was in any event contrary to article 9 on other grounds.
The Court next accepted that the interference pursued a legitimate aim under article 9(2) of the Convention, namely protection of “public order”, since “the applicant was not the only person claiming to be the religious leader of the local Muslim community”, the authorities having appointed another person. The Government had argued that the interference served a legitimate purpose because by protecting the authority of the lawful mufti “the domestic courts sought to preserve order in the particular religious community and in society at large.” 58
(^52) Ibid_._ , pp. 21-22, paras. 49-50. (^53) Eur. Court HR, Case of Serif v. Greece, judgment of 14 December 1999, Reports 1999-IX , p. 79, paras. 9-12. (^54) Ibid., pp. 79-80, paras. 13, 15 and 16; the quote is from para. 13. (^55) Ibid., p. 80, paras. 16-17. (^56) Ibid., p. 84, para. 36. (^57) Ibid., p. 85, para. 39; emphasis added. (^58) Ibid., p. 86, paras. 43 and 45.
In the light of all these considerations, the Court concluded that it had not been shown that the applicant’s conviction “was justified in the circumstances of the case by ‘a pressing social need’”. As a result, the interference with his right, in community with others and in public, to manifest his religion in worship and teaching was not “necessary in a democratic society ... for the protection of public order” under Article 9 § 2 of the Convention. 65 It followed that article 9 had been violated. The third case relating to article 9 of the European Convention on Human Rights is that of Buscarini and Others v. San Marino concerning the obligation imposed on the applicants to take an oath containing a reference to the Holy Gospels on pain of forfeiting their parliamentary seats in the Republic of San Marino. In their view, it had been shown that in the Republic “at the material time the exercise of a fundamental political right, such as holding parliamentary office, was subject to publicly professing a particular faith” in breach of article 9 of the Convention.^66 For its part the Government maintained “that the wording of the oath in question was not religious but, rather, historical and social in significance and based on tradition”. It did not, therefore, amount to a limitation of the applicants’ freedom of religion. 67
Reiterating its fundamental ruling in the Kokkinakis case on freedom of thought, conscience and religion, the Court added that this freedom “entails, inter alia , freedom to hold or not to hold religious beliefs and to practice or not to practice a religion”. The obligation for the applicants to take the oath on the Gospels “did indeed constitute a limitation” within the meaning of article 9(2) of the Convention, “since it required them to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats”.^68 The question thus arose whether such interference could be justified as being prescribed by law and necessary in a democratic society for one or more of the legitimate aims set out in article 9(2).
The Court concluded that the measure was “ prescribed by law ”, since it was based on section 55 of the Elections Act of 1958, which referred to the Decree of 27 June 1909 laying down the wording of the oath to be sworn by members of the Parliament. 69 Without determining in this case whether there were any legitimate aims justifying the interference within the meaning of article 9(2) of the Convention, the Court concluded that it was not in doubt that, in general, the law of San Marino guarantees freedom of conscience and religion. In the instant case, however, “requiring the applicants to take oath on the Gospels was tantamount to requiring two elected representatives of the people to swear allegiance to a particular religion,” a requirement that was not compatible with article 9 of the Convention, which had therefore been violated. 70 In other words, the interference was not necessary in a democratic society.
(^65) Ibid., p. 88, para. 54. (^66) Eur. Court HR, Case of Buscarini and Others v. San Marino, judgment of 18 February 1999, Reports 1999-I , p. 612, paras. 12-13, and p. 615, para. 30 (quotation). (^67) Ibid., p. 616, para. 32. (^68) Ibid., p. 616, para. 34. (^69) Ibid., p. 616, para. 35. (^70) Ibid_._ , p. 617, para. 39.
2.3.2 Prohibitions on the freedom to manifest one’s religion or belief
Article 18 of the International Covenant must be read in conjunction with article 20, according to which the following acts “shall be prohibited by law”:
v any “propaganda for war” (art. 20(1)), and v any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” (art. 20(2)). 71
It follows that the manifestation of religion or beliefs must not at any time be used as a tool for the encouragement of war or for advocacy of hatred. The Human Rights Committee confirms that no derogation made pursuant to article 4(1) of the Covenant “may be invoked as justification for a State party to engage itself, contrary to article 20, in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence”.^72 The fact that States parties are legally bound to outlaw war propaganda and religious incitement to discrimination, hostility and violence implies that they also have a legal duty to ensure that this prohibition is respected in practice.
Every person has the right to manifest his or her religion either in private
or in public and either individually or in community with others.
The manifestation of one’s religion or beliefs may cover such activities as
worship, observance, practice, teaching, evangelization and rites.
The right to manifest one’s religion may be subjected to limitations,
provided that such limitations are
l prescribed by law
l imposed in order to protect a legitimate aim, namely public safety,
(public) order, health, morals or the rights and freedoms of others, and
l necessary in order to protect the legitimate objective.
At the European level, the notion of a democratic society plays a pivotal
role in determining the necessity of measures limiting a person’s right to
manifest his or her religion or beliefs.
2.4 Freedom of religion and public school instruction
According to the Human Rights Committee, “the liberty of parents or legal guardians to ensure that their children receive a religious and moral education in conformity with their own convictions” under article 18(4) of the Covenant “is related to the guarantees of the freedom to teach a religion or belief stated in article 18.1”. This means, inter alia, that article 18(4) of the Covenant “permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and
(^71) United Nations Compilation of General Comments , p. 145, para. 7. (^72) General Comment No. 29 (72) (Derogations from provisions of the Covenant during a state of emergency), in UN doc. GAOR , A/56/40 (vol. I), p. 206, para. 13(e).
