The motion for a resolution entitled “Combating all
forms of discrimination and intolerance based on religion” (Doc. 12257)
was referred to the Committee on Legal Affairs and Human
Rights on 21 June 2010 for report. The committee appointed me as
rapporteur at its meeting in Tbilisi on 16 and 17 September 2010.
At its meeting on 12 April 2011, the committee held a hearing
with the participation of the following experts:
- Professor Peter Cumper, Senior
Lecturer, Leicester University, United Kingdom;
- Professor Marie-Claire Foblets, Law Faculty, Chair of
the Institute for Migration Law and Legal Anthropology, University
of Leuven, Belgium;
- Professor Renata Uitz, Chair of the Comparative Constitutional
Law programme, Central European University in Budapest, Hungary.
of this report
The above-mentioned motion for a resolution focuses
on the recent increase in serious acts of violence committed specifically
against Christian communities outside Europe (in North Korea, Egypt,
Iraq, Malaysia, Nigeria, etc.). This disturbing phenomenon has already
drawn critical responses from several European bodies, particularly
within the European Union.
attacks against Christian communities in the Middle East in October
2010 (Baghdad) and January 2011 (Alexandria), after my appointment
as rapporteur on this issue, elicited further responses from the
Council of Europe, including the adoption by the Parliamentary Assembly of Recommendation 1957 (2011)
on violence against Christians in the Middle East,
the attacks and stressing the need to combat all types of religious
fundamentalism. On 21 January 2011, the Committee of Ministers adopted
a declaration on religious freedom condemning all forms of incitement
to religious hatred and violence and noting that the enjoyment of
religious freedom is an essential precondition for “living together”.
The Council of the European Union also commented on this subject
on 21 February 2011, calling on the international community to consolidate
its collective response to those who want to use religion as an instrument
of division, fuelling extremism and violence.
following a motion for a resolution of March 2011, Mr Luca Volontè
is currently preparing a report on “Violence against religious communities”
within the Political Affairs Committee.
Religious freedom in a multicultural context was recently
the subject of a detailed report by the Committee on Culture, Science
and Education on “The religious dimension of intercultural dialogue”,
which strongly advocated dialogue
between representatives of different religious communities. Ms Brasseur deserves
praise for her dedicated work. I support her proposals and would
like to stress the issue of discrimination on the basis of religion
and prevention of related violence. Religion is important for many citizens.
Members of religious minority groups, including immigrants or Roma,
are more vulnerable than members of major religions. They are often
exposed to tensions, which may give rise to intolerance and acts of
discrimination. Recently, such tensions have been coupled with the
effects of the economic crisis. Council of Europe member states
should therefore consider measures to protect all religious communities
from discrimination and violence and offer effective remedies to
the victims of discrimination and aggression
The Council of Europe has a proven track record in the area
of religious freedom.
of all, therefore, I will consider the Council of Europe’s acquis
in this field, and in particular
the concepts of religious freedom and discrimination in the European
Convention on Human Rights (ETS No. 5, “the Convention”). In this connection,
I would like to thank the Research and Library Division of the Registry
of the European Court of Human Rights (“the Court”), whose report
of 19 January 2011 giving an overview of the Court’s case law on freedom
of religion was helpful in drafting this report. I will also look
at the results of the work of other Council of Europe bodies in
this field, including the Assembly itself, the European Commission
for Democracy through Law (Venice Commission) and the European Commission
against Racism and Intolerance (ECRI), in order to show what means
are currently available to combat violence and discrimination based
on religion. It would also be useful to examine how this subject
is being dealt with by certain member states which are confronted
with an increasing presence of new religious groups and consequently
seek ways to accommodate the needs of these different groups. Therefore,
I wish to express my gratitude to the experts who took part in the
hearing of 12 April 2011 for the valuable information they provided
on the measures aimed at combating discriminatory practices in certain
member states of the Council of Europe and the challenges faced
today by European societies to accommodate different religious groups.
3. International and
European legal framework
Historically, the prohibition of discrimination on
the basis of religion was the first human right to be safeguarded
by an international treaty, through the treaties for the protection
of national minorities established by the great congresses of the
in particular the Congress of Vienna
in 1814-15 (agreement of 21 July 1814 joining Belgium to the Netherlands;
protocol of 29 March 1815 for the protection of the Catholics of
Savoy, who had been attached to the traditionally Protestant Republic
of Geneva), the Conference of London in 1830 (Protocol No. 3 of
3 February 1830 concerning Greece), the Congress of Berlin of 1878
(Treaty of Berlin dealing with the situation in the Balkans) and
the peace negotiations following the First World War (in particular the
treaty with Poland: Treaty of Saint-Germain of 10 September 1919).
7. Freedom of thought, freedom of conscience and freedom of religion
are universal human rights enshrined in several international instruments,
including Article 18 of the Universal Declaration of Human Rights
of 1948, Article 18 of the International Covenant on Civil and Political
Rights of 1966 and the United Nations Declaration of 1981 on the
Elimination of All Forms of Intolerance and of Discrimination based
on Religion or Belief. It was also examined in several reports of
the United Nations Special Rapporteur on freedom of religion or
belief, and in particular her reports of 29 December 2009, 16 February
2010 and 29 July 2010.
In the European Union, Article 10, paragraph 1, of the Charter
of Fundamental Rights of the European Union sets forth the freedom
of thought, religion and conscience.
The Charter is binding on European
Union institutions and on member states to the extent that they
implement European Union law. The European Union has no explicit
legal competence in the sphere of religion, but the management of
relations with faith communities has taken on increasing importance
in the European Union in recent years, mainly in the fields of citizenship
and fundamental rights, non-discrimination, immigration and integration,
social inclusion and education and culture.
Furthermore, religion constitutes
one of the explicitly proscribed grounds for discrimination within
the legal European framework on non-discrimination (including the
Employment Equality Directive, which addresses various forms of
discrimination in employment, including on the grounds of religion or
Currently, a project on
the challenge of religious pluralism in contemporary Europe called RELIGARE
is being conducted under the auspices
of the European Commission. The project consortium comprises 13
universities and research centres from the European Union member
and Turkey. It carries
out sociological surveys and analyses the existing legal and policy
frameworks in the field of religion and secularism across the European
Union and Turkey with a view to making policy recommendations.
9. In the Council of Europe member states, freedom of thought,
conscience and religion is protected by Article 9 of the European
Convention on Human Rights and discrimination on the grounds of
religion is prohibited by Article 14 of the Convention and Article
1 of its Protocol No. 12 (CETS No. 194). Over the years, the European
Court of Human Rights has developed a very extensive body of case
law on the first two provisions, as well as on those which are related
to it directly or indirectly (see below).
4. Religious freedom
and protection against discrimination based on religion in the case
law of the European Court of Human Rights
4.1. The freedoms guaranteed
in Article 9 of the Convention
Article 9 of the Convention
very broad in scope and applies to all personal, political, philosophical, moral
and, obviously, religious beliefs. Unlike national authorities,
institutions do not have the authority to define “beliefs” or “religion”,
but the latter must be interpreted in a non-restrictive sense as including
not only the “main religions” but all religious groups, including
minority groups and their members. The freedom guaranteed in Article
9 of the Convention applies not only to believers, but also to atheists, agnostics,
sceptics and the unconcerned. It entails, inter
, freedom to hold or not to hold religious beliefs and
to practise or not to practise a religion.
in very exceptional cases, the right to freedom of religion as guaranteed
under the Convention excludes any discretion on the part of the
state to determine whether religious beliefs or the means used to
express such beliefs are legitimate.
11. The rights guaranteed in Article 9 have both an internal and
an external aspect. First, the right of individuals to hold beliefs
or not and to change their beliefs is a matter of individual conscience;
it is an absolute right. An individual’s deep-seated beliefs cannot
in themselves prejudice public order and cannot therefore be subject
12. The external aspect includes freedom to manifest one’s religion
or belief alone or in community with others, in public or in private,
in worship, teaching, practice and observance, as stipulated in
paragraph 1 of Article 9. Nevertheless, under the terms of paragraph
2 of this article, the external aspect of this right may be subject
to restrictions. Article 9 therefore does not protect every form
of behaviour simply because it is motivated by religious (or philosophical)
In particular, as shown by the Court’s judgment in the Kokkinakis v. Greece
the right to “convince” one’s
neighbour to convert, although falling within the freedoms of Article
9, does not include unreasonable behaviour such as improper pressure
and actual harassment; such behaviour cannot be protected by the
Convention, as shown in particular by the judgment in the Larissis and Others v. Greece
Restrictions on the right to manifest one’s religion or beliefs
must be “prescribed by law” and be “necessary in a democratic society”,
namely they must meet a “pressing social need”. This means that
the restriction must be justified with reference to one of the forms
of general interest enumerated in paragraph 2 of Article 9: public
safety, the protection of public order, health or morals, or the
protection of the rights and freedoms of others. When assessing
the conformity of a national measure with Article 9, paragraph 2,
of the Convention, the Court must take into account the historical
context and the distinctive features of the religion in question
in terms of dogma, ritual, organisation, etc.
In a democratic society in which several religions, or even
several branches of the same religion, co-exist within the same
population, it may be necessary to place restrictions on freedom
of religion in order to reconcile the interests of the various groups
and ensure that everyone’s beliefs are respected. The state therefore
retains certain prerogatives in this field, but it must nevertheless
remain “neutral and impartial”
in exercising its regulatory
power and in its relations with the various religions.
The Court has
pointed out that “… where questions concerning the relationship
between state and religions are at stake, on which opinion in a democratic
society may reasonably differ widely, the role of the national decision-making
body must be given special importance”.
The Court has recently been faced with cases concerning the
principle of secularism and minimisation of the potentially fragmentary
effect of religion on society, particularly in cases concerning
dress code. Here it has placed particular emphasis on the prevention
of disorder and protection of the rights and freedoms of others.
example, in the Köse and Others v. Turkey
in which the applicants challenged
a dress code prohibiting the wearing of headscarves by girls in
school, the Court held that the impugned rules were not connected
to issues of affiliation to a particular religion, but were rather
designed to preserve neutrality and secularism in schools, which
in turn would prevent disorder as well as protect the right of others
to non-interference in their own religious beliefs. The application
was therefore considered to be manifestly ill-founded and inadmissible.
adopted a similar approach in a case relating to the dress code
The rights recognised in Article 9 of the Convention are not
only individual but also collective rights. As the Court has noted,
“… religious communities traditionally and universally exist in
the form of organised structures”.
Article 9 must therefore
be interpreted in the light of Article 11, which guarantees freedom
of assembly and association. Seen in this perspective, the right
of believers to freedom of religion, which includes the right to
manifest one’s religion collectively, implies that believers should
enjoy freedom of association free from arbitrary state intervention.
Indeed, the autonomous existence of religious communities is “indispensable for
pluralism in a democratic society and is thus an issue at the very
heart of the protection which Article 9 affords”.
Furthermore, according to the Court, Article 9 can hardly
be conceived as being likely to diminish the role of a faith or
a church with which the population of a specific country has historically
and culturally been associated.
the duty of neutrality requires that if a state sets up a framework
for conferring legal personality on religious groups to which a
specific status is linked, all religious groups which so wish must
have a fair opportunity to apply for this status and the criteria
established must be applied in a non-discriminatory manner.
Court considers that, in its relations with religions, the state
must not make distinctions and any differences of treatment must
be “limited in scope”.
4.2. The prohibition
of discrimination based on religion (Article 14 of the Convention
and Protocol No. 12)
Another question which warrants particular attention
in this context is that of the application of Article 14 of the
Convention in situations in which a person suffers discriminatory
treatment because of his or her religion or beliefs. Article 14
provides that: “The enjoyment of the rights and freedoms set forth
in this Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article 1 of Protocol No. 12 to the Convention introduces a general
prohibition on discrimination in the enjoyment of “any right set
forth by law” (paragraph 1), which applies to all acts of public
authorities (paragraph 2). Religion is mentioned there as one of
the possible grounds of discrimination. Unfortunately, this protocol
has so far been ratified by only 18 Council of Europe member states.
It follows from the scope of Article 14 of the Convention
and Article 1 of Protocol No. 12 that the state may not afford different
treatment to persons in substantially similar situations without
any objective and reasonable justification. The state enjoys a certain
margin of appreciation in assessing whether and to what extent the
existing differences justify different treatment; what is important
is that the inequality in treatment pursues a legitimate aim and
respects the criterion of reasonable proportionality.
the Thlimmenos v. Greece
judgment shows that, in some circumstances,
treating in the same manner persons whose situations are significantly
different may be contrary to the principle of non-discrimination.
The Court must therefore take into consideration the distinctive
features of the different religions when certain differences appear
to be essential to resolving the dispute brought before it.
The scope of the Convention in the field of discrimination
based on religion is wide
and the Court has already ruled
on this question in several cases, concerning for example the situation
of the Catholic Church in Greece or Romania or that of the Jehovah’s
Witnesses. In cases of the former type, the Court has had occasion to
find discriminatory obstacles to the right of access to justice
(hence discrimination contrary to Article 14 combined with Article
the Jehovah’s Witnesses are concerned, the Court has found violations
of Article 14 combined with Article 8 (right to respect for private
and family life) in cases concerning the removal of children from
their mother’s custody on the sole basis of her religious beliefs
violations of Article 14 combined with Article 9 because of disparities
in (privileged) tax treatment among religious communities.
14 is therefore to be interpreted in conjunction with different
articles of the Convention, and not just Article 9 guaranteeing
freedom of religion.
4.3. Existence of positive
In general, the Convention requires states to refrain
from all interference in the rights safeguarded therein (“negative
obligation”). In some cases, however, it may turn out to be necessary
to take action on their part; the Court’s case law has therefore
developed the idea of the existence of “positive obligations” by
virtue of which states are required to take certain measures to
protect individuals. For a long time, the Court did not pronounce
itself on whether Article 9 also places positive obligations on
states. As noted by some authors, even if it did have the opportunity
to do so,
to class as interference what might have been seen as a failure
also true that it is not always easy to establish the existence
of a positive obligation to protect the right guaranteed in Article
The obligation to take measures
depends above all on the circumstances of the case. According to
the principles deriving from the Court’s case law, the positive obligations
deriving from Article 9 imply that the national authorities must
safeguard the existence of religious freedom in a spirit of pluralism
and mutual tolerance, for example by acting as a “neutral mediator”
in the case of an internal conflict between different factions within
a religious community.
It should be pointed out that the Court referred explicitly
to the theory of positive obligations in the judgment in the case
of 97 Members of the Gldani Congregation
of Jehovah’s Witnesses and 4 Others v. Georgia,
which it emerges that states have a positive obligation to take
measures to prevent and punish discriminatory violence based on
religious affiliation. The case concerned a very violent attack
in October 1999 by a group of Orthodox believers (led by Vassil
Mkalavishvili, known as “Father Basil”) on members of the Congregation
of Jehovah’s Witnesses. The police authorities refused to intervene
at the scene of the incident to protect the applicants and the children
of some of them and the authorities responsible for the investigation subsequently
took no action, without any reason being given. None of the assailants
was arrested and most of the applicants received no reply to their
complaints. The other complaints were unsuccessful despite the fact that
television footage was available which could have been used to identify
the perpetrators of the violence. In view of the failure of the
Georgian authorities to act, the Court found a violation of Article
9 and a violation of Article 14 combined with Article 9 of the Convention.
This judgment also shows that Article 14 may apply to situations
concerning relations between individuals themselves. The state should
therefore play its role as guarantor by ensuring that its legal
system does not permit discrimination in relations between individuals
and that all violations are duly and effectively sanctioned.
Other cases brought before the
Court, although not under Article 9 (but in particular under Articles
2 and 8), and concerning attacks on Roma and, subsequently, discrimination
based on ethnic origin, confirm this approach adopted by the Court.
Furthermore, the issue
of positive obligations is not unconnected with the non-discrimination
and this principle
is indeed established in that field.
4.4. Other issues
Issues of religious freedom also arise in connection
with provocative remarks, which are generally protected under Article
10 of the Convention guaranteeing freedom of expression. The Court
has already had occasion to criticise the conduct of individuals
seeking to disparage believers’ religious feelings or incite hatred and
violence on the basis of religion. In the Otto-Preminger-Institut
the Court accepted that respect
for believers’ feelings as guaranteed in Article 9 had been violated
by provocative portrayals of objects of religious veneration; such
portrayals can be regarded as malicious violation of the spirit
of tolerance, which must also be a feature of a democratic society.
the Gündüz v. Turkey (No. 2)
concerning the sentencing of the
applicant to imprisonment for incitement to crime and religious
hatred through publication of his statements in the press, the Court
declared the application inadmissible, arguing that the statements amounted
to hate speech which glorified violence and was incompatible with
the fundamental values of justice and peace set forth in the Preamble
to the Convention, and that the penalty imposed by the Turkish authorities was
justified as a deterrent which could be necessary to prevent public
incitement to commit an offence.
25. Given the wide variety of cases which have been brought before
the Court under Article 9 of the Convention, it would be pointless
to try to give a detailed summary of them in this report. Some specific
aspects of religious freedom dealt with by the Court may be mentioned
as examples: compulsory military service and religious beliefs,
the obligation to pay “church tax”, dress codes, prisoners and religious
belief, proselytism, state interference in internal conflicts between
members of a religious community, the requirement for state registration,
and controls on places of worship.
Religious beliefs may also come into conflict with other rights
enshrined in the Convention, such as the right to education (Article
2 of Protocol No. 1).
its recent judgment Lautsi v. Italy,
the Grand Chamber of the European
Court of Human Rights overruled the previous judgment delivered
by its Chamber,
which had found a violation
of Article 2 of Protocol No. 1 in the Italian authorities’ decision
to keep crucifixes in the classrooms of the state school attended
by the applicant’s children. The Grand Chamber considered that the authorities
had acted within the limits of the margin of appreciation left to
Italy in the context of its obligation to respect, in the exercise
of the functions it assumed in relation to education and teaching,
the right of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions.
27. Other rights which might come into conflict with religious
beliefs are, in particular, the right to respect for private and
family life (Article 8), for example in connection with certain
medical treatment issues, and the right to a fair trial (Article
6), for example in connection with state recognition of decisions
of ecclesiastical bodies. But my remit of rapporteur does not include
in-depth consideration of these questions either.
of the Court’s judgments
Judgments of the European Court of Human Rights finding
violation(s) of the Convention may sometimes lead to important changes
in the legislation of the respondent state or the practice of its
judicial or administrative authorities. This is so because on the
basis of Article 46, states are obliged to implement final judgments
of the Court, that is to say, if need be, they must take so-called
“general measures” aimed at preventing similar violations in the
future. Thus, for instance, following the judgments of Metropolitan Church of Bessarabia and Others
Adevarat Ortodoxa din Moldova and Others v. Moldova
both concerning the refusal to register
the applicant churches (violations of Article 9), Moldova adopted
a new Law on Religious Denominations.
in the majority of cases, states have to ensure a wide dissemination
and publication of the Court’s judgments in order to make the relevant
authorities aware of the requirements stemming from the Convention
and avoid further mistakes in its application.
5. The work of the
Council of Europe in the field of religious freedom
5.1. The Parliamentary
On several occasions, the Assembly has taken a stance
on issues related to religion, such as religious tolerance,
relation between state and religion,
of conscience and religion and freedom of expression.
also examined the situation of specific religious groups, such as
Muslims or Jews,
of religious beliefs and legislation in specific countries, including
those of central and eastern Europe
and the issue of religion
the main guidelines stemming from the Assembly’s documents are reflected
5.1.1. Condemning the
use of violence based on religion
The Assembly has consequently condemned the use of
violence purportedly motivated by religion, like for instance in
its recent Recommendation
condemning the attacks against Christians in the Middle
East and stressing the need to combat all types of religious fundamentalism.
In its Recommendation 1396
on religion and democracy,
stated that there was “a religious aspect to many of the problems contemporary
society [faced], such as … fundamentalist movements and terrorist
acts, racism and xenophobia, and ethnic conflicts ...”. It has also
dealt with the issue of hate speech against religious groups, in particular
in its Resolution 1510
on freedom of expression and respect for religious beliefs
and in its Recommendation
on blasphemy, religious insults and hate speech against
persons on grounds of their religion, it stressed that “any death
threats and incitements to violence by religious leaders and groups issued
against persons for having exercised their right to freedom of expression
about religious matters” should be condemned by national governments.
5.1.2. Combating discrimination
based on religion
In its Recommendation
on religion and change in central and eastern Europe,
the Assembly called upon governments
to put special emphasis on the protection of religious minorities
against discrimination and persecution by religious majorities or
“other groups practising aggressive nationalism and chauvinism”.
It stressed that all religious groups should have the possibility
to be provided with the status of legal entities, if their activities
are in conformity with human rights standards. In its recent Recommendation 1962 (2011)
, the Assembly reiterated that states have to ensure
that all religious communities accepting common fundamental values
enjoy appropriate legal status and that any preferential support
granted to certain religions does not become disproportionate and
discriminatory in practice.
5.1.3. Establishing the
relationship between religion and human rights
A set of principles concerning relations between
religion and state was established by the Assembly in its report
on religion and democracy.
thus follows that the state cannot allow violations of human dignity
and of human rights in the name of a faith and that religious communities
are obliged to observe the principles of democracy and the rule
of law. Infringements of public order or the democratic rights of
fellow citizens cannot be allowed to go unchecked. At the same time,
society should make it as easy as possible for citizens to exercise
The Assembly has stressed that religions should respect human
rights as defined in the European Convention on Human Rights, and
the rule of law. Freedom of religion is not unlimited and a situation
in which a religion runs counter to other fundamental rights can
become unacceptable; in such a situation state authorities should
make use of the restrictions allowed under Article 9, paragraph
2, of the European Convention on Human Rights. The dissemination
of religious principles which, when put in practice, would violate
human rights, shall not be allowed and “if doubts exist in this
respect, states must require religious leaders to take an unambiguous
stand in favour of the precedence of human rights, as set forth
in the European Convention on Human Rights, over any religious principle”.
Therefore the Assembly called upon member states to “exclude from
consultations any grouping that does not clearly support the Council
of Europe’s fundamental values, namely human rights, democracy and
the rule of law”.
Following the well-known Danish cartoons controversy, broadly
commented throughout the world, the Assembly also affirmed that
“freedom of expression as protected under Article 10 of the European
Convention on Human Rights should not be further restricted to meet
increasing sensitivities of certain religious groups”.
5.1.4. Reaffirming the
principle of separation of church and state
In its Recommendation
on religion and democracy
and Recommendation 1804 (2007)
on state, religion, secularity and human rights,
the Assembly reaffirmed the principle
of separation of church and state as one of Europe’s shared values.
States are free to organise and enact legislation regarding the relationship
between the state and the church in compliance with the provisions
of the European Convention on Human Rights. However, the degree
of severity of the control on how this separation is put into practice varies
from state to state, in accordance with their different historically
rooted traditions and popular attitudes.
principle of separation between governance and religion seems to
be well established in member states of the Council of Europe. In
particular, following the above-mentioned Recommendation 1804 (2007)
, the Committee of Ministers reaffirmed its commitment
to this principle, which “along with that of freedom of conscience
and thought and the principle of non-discrimination, is an integral
part of the concept of European secularity on which the Committee
of Ministers bases its work on the religious dimension of intercultural dialogue”.
5.1.5. Providing guidelines
The Assembly has stressed that national legislation
should be in conformity with the European Convention on Human Rights
and that restrictions on human rights must be motivated by a “pressing
need” and be “proportionate to the legitimate aim pursued”.
It has also noted
that the legislation of certain Council of Europe member states,
“still [contained] anachronisms dating from times when religion
played a more important part in our societies”
and called on member
states “gradually to remove from legislation, if such is the will
of the people, elements likely to be perceived as discriminatory
from the angle of democratic religious pluralism”.
In its Recommendation
on blasphemy, religious insults and hate speech against
persons on grounds of their religion, the Assembly called on member
states to review their blasphemy laws, ensuring, however, that their
legislation penalises statements that call for a person or a group
of persons to be subjected to hatred, discrimination or violence
on grounds of their religion.
Combating racism, racial discrimination, xenophobia,
anti-Semitism and intolerance from a human rights perspective is
the main task of the European Commission against Racism and Intolerance
(ECRI), an independent monitoring body of the Council of Europe
(Article 1 of ECRI’s Statute).
this goal, ECRI has formulated a number of general policy recommendations
to member states. Recommendation No. 7, adopted on 13 December 2002,
on “National legislation to combat racism and racial discrimination”
is of particular importance in this context. It contains elements
proposed by ECRI to be included in national legislation in order
to effectively combat racism and racial discrimination, also when
it is based on religious grounds,
and advocates the adoption of a comprehensive
anti-discrimination legislation. Moreover, the issue of discrimination
based on religion has been also dealt with by ECRI in its other
recommendations: General policy recommendation No. 1 – Combating
racism, xenophobia, anti-Semitism and intolerance;
No. 5 – Combating intolerance and
discrimination against Muslims;
and No. 9 – on the fight against
The European Convention on Human
Rights is the backbone and source of inspiration for all these recommendations.
5.3. The Venice Commission
On several occasions, the European Commission for
Democracy through Law (Venice Commission) has taken a stand on issues
related to the practice of religion, such as granting legal status
to religious communities (for instance, in Turkey),
the scope of religious freedom in
the constitutional order of certain member states (Armenia,
or the penalisation
In co-operation with the Organization for Security and Co-operation
in Europe (OSCE),
has also drawn up a set of “Guidelines for Legislative Reviews of
Laws Affecting Religion or Belief”,
which, amongst others,
reaffirm the principle of non-discrimination of religions. According
to the Venice Commission, “legislation that acknowledges historical
differences in the role that different religions have played in
a particular country’s history are permissible as long as they are
not used as a justification for ongoing discrimination”.
any form of coercion that would impair one’s freedom of religion
or belief should be prohibited.
5.4. Various other initiatives
Hate speech is one of the issues on which the Council
of Europe institutions have worked on several occasions. With a
view to avoiding the resurgence of racism, xenophobia, anti-Semitism
and intolerance, on 30 April 1997, the Committee of Ministers adopted
Recommendation No. R (97) 20 on hate speech. It remains fully valid
today, in particular its definition of this notion.
On 8 April 2008, the Committee of Ministers started, on an
experimental basis, “annual exchanges on the religious dimension
of intercultural dialogue” with representatives of religions traditionally
present in Europe and of civil society, and launched the “White
Paper on Intercultural Dialogue – Living together as equals in dignity”.
The Speak Out Against Discrimination
campaign, whose mandate was derived from this White Paper, is currently
under way. It is aimed at the general public – in particular victims
of discrimination – via a range of communication initiatives designed
to raise public awareness of the fight against discrimination in Europe.
Besides these initiatives, a number
of activities of the Steering Committee for Education (CDED) and the
Steering Committee for Higher Education and Research (CDESR), concerning
the development of teaching methods, take into account the notion
of religious diversity and the religious heritage in Europe.
The Council of Europe Commissioner for Human Rights has consistently
condemned any form of religious extremism, discrimination and intolerance,
such as hate crimes, Islamophobia, anti-Semitism and other phobias
directed against others.
The very recent report of the Group of Eminent Persons of
the Council of Europe on “Living together. Combining diversity and
freedom in 21st-century Europe”
reaffirms that different
religious groups, in particular Christians, Muslims and Jews, are
still victims of violence and that intolerance and discrimination
on religious grounds are widespread phenomena in Europe. This report
calls on religious leaders to combat such conduct.
Furthermore, cultural and religious diversity of contemporary
societies was the subject matter of a detailed study conducted within
the Directorate General of Social Cohesion of the Council of Europe.
The result of this research was a publication entitled “Institutional
accommodation and the citizen: legal and political interaction in
a pluralist society”.
looks at ways of encouraging and promoting changes to institutions
and individual behaviour to enable citizens to live together in
societies which face – to an increasing extent – ethnic and cultural
diversity. In particular, it examines, from the European and Canadian
perspective, the notion of “reasonable accommodation”, which will
be explained in section 6.5 of this report.
6. The fight against
discrimination and violence based on religion in the Council of
Europe member states: some examples of current problems and challenges
6.1. General situation
46. Although historically Europe might be characterised
as a stronghold of Christianity, today’s Europe is religiously diverse.
While most of the Council of Europe member states have Christian
majorities, there are also some states with Muslim ones (for instance
Albania, Azerbaijan, Bosnia and Herzegovina and Turkey) and an increasing
number of states have a significant Muslim presence (for instance,
France, Germany, Russia or the United Kingdom). Moreover, the Jewish
diaspora and diverse groups representing “new religions” or sects
are spread out all over Europe.
As Mr de Puig noted in his 2007 report,
plurality of new religions in Europe is to a great extent a result
of post-colonial immigration. This new presence poses problems for
both governments and faith communities. States with a long tradition
of secularism have difficulties in accepting the phenomenon of the rise
of new religious practice as such, while many more states face a
situation where there is now a plurality of religions, when, previously,
the state was overtly confessional or the vast majority of citizens
adhered to a single religious profession. More rigorous forms of
practising Islam, such as wearing the niqab,
particular problems. Moreover, some of the requirements stemming
in particular from religion, such as dietary laws or prescribed
times for prayer, might be difficult to be followed in everyday
life for believers in a modern secular or multi-religious society.
conflicts might also relate to equality of the sexes and the rights
48. As Professor Uitzemphasised
at the hearing in April 2011, religious persecution remains a widespread phenomenon
in contemporary societies, including member states of the Council
of Europe. The problems faced by religious groups vary geographically:
while “old” European democracies have difficulties handling their mostly
immigrant Muslim populations, several “new” post-communist democracies
remain deeply entangled in issues such as twenty-year-old church
property restitution schemes and struggles over school curricula
on religious education. Despite the clear standards laid down by
the case law of the European Court of Human Rights, numerous member
states still fail to act in an impartial manner towards religious
communities and their members.
As Professor Foblets indicated at the hearing, the legal solutions
which are currently in force in a number of multicultural states
have sometimes become anachronistic, that is to say not adjusted
to the new needs. New religious communities have not yet had an
opportunity to take part in the democratic debate concerning the protection
of religious freedom, due to a genuine lack of institutional participation
in the functioning mechanisms of the state: either the approach
towards them is based on an old model or the existence of such minorities
is contested. So far, there has been a multitude of studies on cultural
and religious diversity,
basis of which one may define three different approaches, which
exclude one another. Accordingly, there might be three ways of dealing
with the issue of religious diversity: 1) defining clearly the notion
of a neutral state and getting rid of the remaining residues of
religious privileges in the existing legislation (like in Quebec for
2) keeping the existing balance
between the state and the historically rooted religions and the latter’s
privileges; or 3) adopting an intermediary approach, namely establishing
a new sustainable balance and allowing manifest changes within the
6.2. Systemic discrimination
of certain religious minorities in southern, central and eastern Europe
As Professor Uitz pointed out at the hearing, religious
groups in member states of central and eastern Europe suffer from
discriminatory practices, which are less known to the public than
some of the incidents that have occurred in western Europe.
and Jehovah’s Witnesses are confronted with governmental disapproval
in Bulgaria (in the form of denials of construction permits, restrictions
on proselytising in public areas and verbal intolerance in the public
Greek Catholics in Romania reportedly
continue to face difficulties, despite the recent decision of the
Court ruling that denial of legal personality to a Greek Catholic
parish violated the right to access to justice under the Convention.
recently, the Hungarian Government decided to introduce a new, three-tier
registration system for religious communities which – if enacted
– will privilege “historic churches” after twenty years of de jure
Some of the controversies appear to result from systemic discrimination
and prove resistant to continuing disapproval: despite gaining considerable
international notoriety, the ban on proselytism in the criminal
code has still not been repealed by Greece and there are regular
reports on its continuing enforcement against Jehovah’s Witnesses.
although the Greek anti-discrimination law enacted in 2005
based on religious or other beliefs, this prohibition does not extend
its scope to “social protection, education and access to goods and
services”. In this respect, in 2009, ECRI noted “with concern reports according
to which some schoolbooks continue to contain negative references
to Catholicism, Judaism and the ancient polytheistic Hellenic tradition”.
practices in the framework of fighting against religious extremism
Another problem is related to the misuse of measures
aimed at combating terrorism. As Professor Uitz pointed out at the
hearing, such measures have been predominantly aimed against Muslim
communities, but they might also affect other religious groups.
For example, in Russia, several watchdog organisations have reported
that the Russian extremism law of 2002
has been used regularly to prosecute
Jehovah’s Witnesses and the disciples of the Turkish Muslim theologian
The alleged extent of the misuse
of the law against extremism is such that the Russian watchdog organisation
SOVA Centre decided to devote a separate column to it in its regular
This example demonstrates that
the fight against terrorism in the form of anti-extremism measures
targeting religious groups is likely to result in overzealous selective enforcement
which furthers religious intolerance. Such measures are not neutral
and impartial towards religious communities and their members, and
thus they do not comply with the minimum standards established by
the case law of the European Court of Human Rights.
6.4. The prohibition
of discrimination vis-à-vis the freedom of religion: an example
As pointed out by Professor Cumper at the hearing,
the situation in the United Kingdom illustrates well the challenges
that Europe currently faces in eliminating unlawful discrimination
generally and religious discrimination in particular.
At first sight,
the United Kingdom’s record of tackling discrimination and intolerance
on the grounds of religion or belief looks excellent – but on closer
inspection a number of problems remain. For example, in areas of
public life such as education, employment and health, many minority
faith groups – especially Muslims – continue to face discrimination,
while secular groups also complain that the national legislation
fails to afford equal respect to their beliefs. According to a report
conducted under the auspices of the United Kingdom Equality and
Human Rights Commission, the number of court cases relating to religion
or belief has gradually increased since December 2003, when the
Employment Equality (Religion or Belief) Regulations came into force.
However, it is not clear whether this trend reflects an increase
of perceived discrimination or a greater awareness of legal remedies.
For the moment, there is not sufficient data, spanning over time,
to determine whether religious discrimination in the United Kingdom
is increasing or decreasing.
Perhaps somewhat surprisingly, given the Church of England’s
unique position as an Established Church, it is Christian groups
that have tended to have been particularly vocal of late in complaining
about threats to religious liberty in the United Kingdom. This general
trend seems to be confirmed by Professor Weller’s report, since
“there is some emerging evidence that suggests the possibility of
there being a changing pattern at least to perceptions of religious
discrimination and/or readiness to pursue potential issues of such discrimination
in which Christians are increasingly highlighting examples and concerns”.
the April hearing, Professor Cumper pointed out two recent cases
concerning apparent conflicts between the rights of Christians and
those of homosexuals which illustrate this phenomenon: Hall and Preddy v. Mr and Mrs Bull
where the Christian owners of a
hotel were ordered to pay compensation to two gay men in a civil
partnership because of the hotel’s policy that only married heterosexual
couples could stay in a double room, and Johns v.
Derby City Council
where the Court upheld the
Council’s ruling that a married Christian couple who had raised
their own family and had prior foster-care experience were deemed
unsuitable to be foster parents, because of their negative views
55. According to Professor Cumper, cases such as these have three
consequences. Firstly, they raise issues of conscience, because
some conservative Christians may feel compelled to make a choice
between, on one hand, remaining silent and acting against their
religious conscience and, on the other hand, speaking out and challenging
the law. Secondly, it is possible that there will be occasions where
these cases have public service implications, in that they might
conceivably deter a number of conservative Christians from working
in certain areas due to fears of falling foul of equality laws.
It would, for example, be regrettable if cases like Johns v. Derby City Council were
to discourage some Christians from offering their services to fostering
programmes, especially since there is currently a shortage of foster
parents in the United Kingdom. Thirdly, such cases illustrate the
limits of using the law as a tool for dispute resolution, on account
of the risk that high profile litigation on emotive issues (for
example, sexuality and faith) can exacerbate, rather than ameliorate, differences
between certain religious and other communities. Therefore, determining
how far laws that are designed to curb discrimination on the grounds
of religion or belief should be extended to faith groups – which, themselves,
feel that they are bound by their religious beliefs to differentiate
(or even discriminate) between persons on the basis of their sexual
orientation – will be one of the greatest challenges for Europe’s
law and policy makers in the coming years.
Against this background, it will be particularly interesting
to follow a few recent cases brought against the United Kingdom
before the European Court of Human Rights, especially those concerning
alleged discrimination of Christians. In the cases of Ladele v. the United Kingdom
and Mcfarlane v. the United Kingdom,
applicants are Christian employees, a marriage registrar and relationship
counsellor respectively, who refused to provide services to homosexuals
on the basis that to do so would contravene their religious principles.
The other two cases, Eweida
concern the right of people to openly
wear crucifixes at work.
All these cases concern the scope
of the protection afforded by articles 9 and 14 of the Convention
to the manifestation of religious belief in the workplace. The Court
will examine whether the United Kingdom anti-discrimination law
as interpreted by domestic courts sufficiently respects religious
rights and affords protection against discrimination on religion.
These cases have given rise to controversy in the United Kingdom,
especially after the Equality and Human Rights Commission (EHRC)
allowed to intervene, as an expert and an independent body, before
the Court, calling for “reasonable adjustments” on the employer’s
part to accommodate the religious beliefs of their staff.
On 15 September 2011, the EHRC submitted
its intervention to the Court, having conducted a public consultation
Concerning the first two cases,
it considered that domestic courts had come to the correct conclusions.
It argued, amongst others, that state services had to be provided
on an impartial basis and employees could not expect their public functions
to be shaped to accommodate their personal religious beliefs.
However, in the cases of Eweida
commission stated that the courts might not have given sufficient
weight to Article 9, paragraph 2, of the Convention,
as they did not rigorously assess
the question of proportionality.
Hence, the United Kingdom
courts failed adequately to protect individuals from religious discrimination
in the workplace.
The Court's future judgments in
these four cases are likely to have a significant impact on the place
of religion in public life in the United Kingdom.
6.5. Possible solutions
to avoid discrimination based on religion in a multicultural society: example
In this context, it is worth examining a study on
interculturalism ordered by the Belgian Federal Government (Assises de l’Interculturalité
which was conducted between September 2009 and October 2010. The
main outcome of the Assises de l’Interculturalité
a report handed over to the Belgian Government on 9 November 2010.
The report was prepared by their “Pilot Committee” (Comité de pilotage),
composed of 29 experts designated
by the federal authorities and members of concerned cultural/religious
focuses on five main issues, such as education, employment, governance,
access to goods and services (housing and health care), and, lastly,
cultural life, associations and the media. Its authors have formulated
a number of recommendations for the Belgian authorities, concerning,
amongst others, wearing of religious symbols, revising the religious
holidays agenda (by introducing in particular the principle of “floating holidays”)
introducing quotas for cultural minorities in the employment area.
The Pilot Committee also examined
closely the advantages and disadvantages of the above-mentioned
already in Belgium to disabled persons,
and derived from the Quebec
experience. This notion refers to that of “indirect discrimination”,
namely to situations of discrimination which do not result directly
from the legislation, but have been indirectly caused by it, due
to the fact that certain categories of persons suffer more severely
from the effects of the legislation than other groups. Without making
a difference between those categories of persons, and depending
on their situation, the law discriminates against them indirectly.
Solving this problem may mean that, in certain cases, it will be necessary
to adopt particular solutions (legislative or judicial), which would
allow to cancel out the indirectly discriminatory effect of a norm
which is applied to everyone in an equal manner. This problem arises
mainly in the areas of employment, school teaching or access to
goods and services (housing, health care, leisure, etc.).
Therefore, the Pilot Committee
recommended that the Belgian authorities consider extending the application
of the notion of reasonable accommodation to situations related
to religious or philosophical beliefs.
On the basis of the recommendations contained in the above-mentioned
study, at the hearing, Professor Foblets proposed three paths to
explore in approaching the question of the co-existence of various
religious groups: 1) to encourage the relations (and possibly their
institutionalisation) between the state and new religious minorities,
while respecting the principle of neutrality and respect for the
minorities; insofar as possible religious groups will have their
representative bodies recognised; 2) “gradually to remove from legislation,
if such is the will of the people, elements likely to be discriminatory
from the angle of democratic religious pluralism”, as stated in
: this could entail, for instance, revising the religious
holidays calendar; 3) to focus on the notion of personal autonomy
as a starting point; then, for instance, pupils’ wearing of religious
symbols could be allowed in schools from a certain age or school semester,
which would allow,
in turn, for a balance between different freedoms.
However, the implementation of these principles might be very
difficult in practice, not only in Belgium, but also in other countries.
Most of all, it requires the state to co-operate with all religious
groups, which might sometimes be difficult in practice due to the
lack of organised leadership in certain religious communities; the Belgian
experience shows that there has been a problem with the Muslim community,
which lacks a suitable model to follow in this respect. Some countries,
including Belgium itself,
are also very reticent about the technique
of “floating holidays”, which are often perceived as affecting deep-rooted
traditions within the majority population. Furthermore, the idea
of fixing rules concerning religious symbols has always given rise
to controversies: even the recommendations which on the basis of
procedure of the Assises de l’interculturalité
to find a compromise on this issue are not an exception to the rule,
since they have been rejected by some of the experts who took part
in the preparation of this study.
60. In modern and multicultural European societies, the
question of the co-existence of members of different religious communities
and atheists is of vital importance. Law and policy makers increasingly
have to balance a myriad of Christian, secular and multi-faith values.
Therefore it is worth recalling that Article 9 of the Convention
is one of the foundations of a “democratic society”, guaranteeing
the freedom of thought, conscience and religion.
However, this right does not only include absolute rights:
the right to manifest one’s religion or beliefs is subject to the
restrictions set forth in the Convention. Article 9, paragraph 2,
of the Convention allows the member states to retain a certain margin
of discretion, which has been recently recalled by the Court in
the judgment delivered by its Grand Chamber in Lautsi and Others v. Italy,
concerning the presence of crucifixes in
state schools in Italy and the right to education (Article 2 of
Protocol No. 1 to the Convention).
62. The rights even of the “majority” religions should be safeguarded,
but so too should those of minority religious communities and non-believers.
The case law of the Court shows that the Convention protects all these
groups and confers certain rights on them. But the scope of those
rights also varies according to the circumstances, and in particular
the legitimate interests of a “democratic society”, including the
prevention of disorder and protection of the rights of others.
63. States are supposed to protect religious communities from
violence purportedly motivated by religious affiliation or beliefs,
even if that violence is perpetrated by non-state actors. It may
be seen from the case law of the Court that the scope of Article
9 of the Convention remains fairly broad and covers a wide range
of situations, including acts of violence and proselytism. At the
European level, the development of the theory of positive obligations,
including under Article 14 combined with Article 9, holds out great
hope as regards the prevention of violence between members of different
The controversies surrounding the judgment in the case of Lautsi and Others v. Italy,
21 states of the Council of Europe publicly opposed the Chamber’s
approach and its perceived attempt at forced secularisation of schools,
show that there are strong internal religious and cultural divisions
within the Council of Europe.
in Europe, law and policy makers are called upon to tackle problems
stemming from a new religious diversity, inherent to modern contemporary
societies and numerous challenges which follow this (new) diversity.
It should be recalled in this context that, according to the Preamble
of the Statute of the Council of Europe (ETS No. 1), the governments
of the member states reaffirmed their devotion to the “spiritual
and moral values which are the common heritage of their peoples
and the true source of individual freedom, political liberty and
the rule of law, principles which form the basis of all genuine
democracy”. Therefore, different solutions are being envisaged,
including those based on the notion of “reasonable accommodation”.
In any event, the state must remain neutral vis-à-vis this variety
of religions and beliefs, including their presence or absence. Aggressive
secularism, combating all forms of religious beliefs, is also a violation
of the principle of religious neutrality. Member states should be
mindful of the fact that the protection of freedom of religion applies
to all equally, and not only to some religious communities. The
requirement of neutral and impartial treatment is a minimum standard
and the first step towards treatment of individuals with equal respect
and dignity and an effective prevention of any form of discrimination.
As the President of the Assembly, Mr Mevlüt Çavuşoğlu, stressed
last August, “the best model for living together” is to bring cultures and
religions together in a spirit of respect, dialogue and tolerance.