Committee Opinion | Doc. 13886 | 29 September 2015
Freedom of religion and living together in a democratic society
Committee on Legal Affairs and Human Rights
A. Conclusions of the committee
(open)
in 2011. B. Proposed amendments
(open)Amendment A (to the draft resolution)
In paragraph 3, after the words “Those values and principles”, add the words “, which are non-negotiable,”.
Amendment B (to the draft resolution)
In paragraph 3, after the words “the European Convention on Human Rights (ETS No. 5)”, add the words “and its Additional Protocols”.
Amendment C (to the draft resolution)
In paragraph 3, delete the second sentence.
Amendment D (to the draft resolution)
At the end of paragraph 4, add the following sentence:
“States Parties to the European Convention on Human Rights should also strive to find a fair balance between conflicting interests resulting from the exercise of freedom of thought, conscience and religion, and other human rights and fundamental freedoms, such as the right to respect for private and family life, the right to freedom of expression and the prohibition of discrimination.”
Amendment E (to the draft resolution)
In paragraph 7, at the end of second sentence, add the following words: “and the Assembly is aware of the fact that there is no consensus among Council of Europe member States on these matters.”
Amendment F (to the draft resolution)
In paragraph 7, third sentence, replace the words “while it is aware that standards cannot be imposed” by “while it is aware that States Parties to the European Convention on Human Rights have a wide margin of appreciation in this field”.
Amendment G (to the draft resolution)
Delete paragraph 8.
Amendment H (to the draft resolution)
At the end of paragraph 10, add the following sentence:
“The Assembly notes that the European Convention for the Protection of Animals for Slaughter (ETS No. 102) and the European Union’s Council Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing do not prohibit ritual slaughter.”
Amendment I (to the draft recommendation)
In paragraph 3.2, after the words “the European Union”, insert the words “the Organisation for Security and Co-operation in Europe (OSCE)”.
C. Explanatory memorandum by Sir Edward Leigh, rapporteur for opinion
(open) of
July 2014, concerning the ban on wearing clothing designed to conceal
one’s face. In this context, I would like to stress that similar
issues – in particular the notion of “reasonable accommodations”,
the principle of State neutrality vis-à-vis religions and the fight
against discrimination – were examined in some detail by our committee
in October 2011, on the basis of the report by Mr Tudor Panţiru
(Romania, Socialist Group) on “Combating all forms of discrimination
based on religion”.1. Amendment A (to the draft resolution)
Explanatory note:
The amendment is related to Amendment C, which proposes to delete the second sentence in paragraph 3 (see below). In order to keep the phrase “these values and principles are non-negotiable” in this paragraph, it is proposed to move it to the first sentence.
2. Amendment B (to the draft resolution)
Explanatory note:
This amendment aims to add a mention to the additional protocols to the Convention, as some of them enshrine additional rights and freedoms, the implementation of which is necessary to ensure a full respect of the freedom of thought, conscience and religion. This is particularly true for parents’ right to ensure their children’s education in conformity with their own religious and philosophical convictions (Article 2 of Protocol No. 1 (ETS No. 9)) and the general prohibition of discrimination (Article 1 of Protocol No. 12 (ETS No. 177)).
3. Amendment C (to the draft resolution)
Explanatory note:
The amendment aims to delete the second sentence in paragraph 3, and more precisely the phrase “and they must prevail over any social or religious norms that counter them”. The first sentence in this paragraph refers to member States constitutions and the European Convention on Human Rights, which are legal norms, while the second sentence refers to social and religious norms. Both sets of norms should not be compared with each other, as they do not have the same legal authority. As regards religious norms, it should be pointed out, on the one hand, that the right to freedom of religion in its “internal” aspect, as stipulated in Article 9.1 of the Convention, is an absolute right; an individual’s religious ideas and convictions cannot be the subject of restrictions imposed by State authorities, even if, in theory, such ideas and convictions would not be in line with principles and values enshrined in “democratic constitutions” and the Convention – which does however not prevent the State authorities from sanctioning any human behaviour that would contradict such principles and values. On the other hand, the absolute formulation of the second sentence does not sufficiently take into account the States Parties’ margin of appreciation in these matters, according to the Court’s case law. Thus, I propose to delete the sentence in question, as it creates confusion and may open a philosophical discussion on the hierarchy of legal and non-legal (religious, social and other) norms.
4. Amendment D (to the draft resolution)
Explanatory note:
This amendment aims to complement the ideas expressed in paragraph
4, by pointing out that States Parties to the Convention should
ensure a fair balance between conflicting interests resulting from
the exercise of freedom of thought, conscience and religion, and
other human rights and fundamental freedoms. The case law of the
European Court of Human Rights shows that such conflicts may occur,
in particular, in respect of the exercise of the right to respect
for private and family life, the right to freedom of expression
or the prohibition of discrimination.
5. Amendment E (to the draft resolution)
Explanatory note:
The draft resolution refers to three specific issues related
to freedom of religion: wearing of full-face veils in public places,
circumcision of young boys and ritual slaughter of animals. The
amendment aims to underline that there is no European consensus
on these matters. This has been confirmed by the Court’s case law
on wearing religious symbols and clothing in public space. On the
two other issues, the Court has remained silent so far (except for
the case of Cha’are Shalom Ve Tsedek
v. France ,
mentioned in the report, concerning ritual slaughter in France).
6. Amendment F (to the draft resolution)
Explanatory note:
This amendment aims to propose a wording which would be compliant with the terminology used by the European Court of Human Rights. That is why instead of speaking about “imposing standards” (which is impossible in the context of religious pluralism), it is proposed to stress that States Parties to the Convention keep a broad margin of appreciation in the religious sphere.
7. Amendment G (to the draft resolution)
Explanatory note:
It is proposed to delete paragraph 8 of the draft resolution, as the wearing of full-face veils in public space is a controversial issue in Council of Europe member States.
8. Amendment H (to the draft resolution)
Explanatory note:
The amendment aims to recall the existing European regulations – by the Council of Europe and the European Union – concerning the protection of animals for slaughter (mentioned in paragraph 53 of the report). Both the European Convention for the Protection of Animals for Slaughter of 1979 (ETS No. 102), to which 25 member States of the Council of Europe have adhered, and the European Union’s Council Regulation (EC) No. 1099/2009, which is binding on all 28 member States of the European Union, do not preclude ritual slaughter, although the latter may be subject to certain conditions.
9. Amendment I (to the draft recommendation)
Explanatory note:
The amendment aims to add the Organisation for Security and
Cooperation in Europe (OSCE) as a partner of the Council of Europe
in stepping up co-operation with leading religious and humanist
communities. The OSCE has done important work on issues related
to freedom of thought, conscience and religion, also in cooperation with
the European Commission for Democracy through Law (Venice Commission).
In particular, the OSCE’s Office for Democratic Institutions and
Human Rights (ODIHR), which is assisted by an Advisory Panel of Experts
on Freedom of Religion or Belief, has prepared a number of guidelines
and opinions on freedom of religion or belief.