Protection and Promotion of Freedom of Religions and Beliefs in the European Context 3031345029, 9783031345029

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Luca Paladini Maria del Ángel Iglesias Vázquez Editors

Protection and Promotion of Freedom of Religions and Beliefs in the European Context Foreword by Philippe Couvreur

Protection and Promotion of Freedom of Religions and Beliefs in the European Context

Luca Paladini  •  Maria del Ángel Iglesias Vázquez Editors

Protection and Promotion of Freedom of Religions and Beliefs in the European Context Foreword by Philippe Couvreur

Editors Luca Paladini Dipartimento di studi umanistici University for Foreigners of Siena Siena, Italy

Maria del Ángel Iglesias Vázquez International Law Universidad Internacional de La Rioja Logroño, Spain

ISBN 978-3-031-34502-9    ISBN 978-3-031-34503-6 (eBook) https://doi.org/10.1007/978-3-031-34503-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023, corrected publication 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

Foreword by Philippe Couvreur, Judge ad hoc and Honorary Registrar of the International Court of Justice, Associé de l’Institut de Droit international

La liberté d’aimer est le même droit que la liberté de penser, l’une répond au cœur, l’autre à l’esprit ; ce sont les deux faces de la liberté de conscience; elles sont au plus profond sanctuaire de l’âme humaine—Victor Hugo

I have read with great interest the contents of this new book, which is as richly documented as it is original, and it is with real pleasure that I will endeavour, in the following few lines, to introduce it very briefly, hoping to encourage many readers to discover it further. As is the case with most of the essential subjects that touch the very depths of our lives, the subject of freedom of religion, conscience and thought—which we sometimes feel can be covered, in its most diverse aspects, by the more concise expression ‘freedom of belief’—appears to many of us to be both extremely familiar, when it is mentioned furtively in the course of a conversation, and surprisingly foreign, when it comes to defining its precise ins and outs in greater depth. The familiarity that is immediately felt when this freedom is mentioned is undoubtedly due to its truly fundamental and, therefore, ‘immediate’ character in our democratic societies. Its various facets are so closely interdependent that no one would think of conceiving one without the other. The fact that everyone is free to believe or not to believe, and to think what he or she wants, seems today to constitute an a priori given, so obvious in these societies that the reasons for this state of affairs, perceived as fairly banal, now seem rather indifferent. And yet, even in contemporary democratic societies, what appears to be an obvious fact, so firmly anchored in the collective unconscious, is of recent appearance. This is not to say that the problems associated with the emergence of beliefs, their adoption, manifestation or transmission are new—on the contrary. Human beings’ relationship with phenomena of immanence and transcendence, their intuitions in this respect, their questions and concerns in the face of intensely challenging issues which, although so intimately linked to their being, are nonetheless largely beyond the reach of their reason—which perhaps explains why these issues have continued to be posed, over the centuries, in such astonishingly identical terms—go back, like the sense of the sacred that can permeate this permanent quest, v

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Foreword by Philippe Couvreur, Judge ad hoc and Honorary Registrar of the...

and the mystical impulses that can accompany it, to the dawn of human times. The same is true of the rites and other varied cultural expressions to which this existential journey of the heart and the mind has given rise, marking societal behaviour to a greater or lesser extent, as well as of the progressive development of ideas—critical or otherwise—which is necessarily associated with such a journey. This search, so noble and so elementary at the same time, in human beings, for the meaning of their being, or even for its sublimation into a beyond, has unfortunately not been without forms of intolerance, sometimes so radical that they have given rise to the cruellest conflicts and the most merciless persecutions. Such excesses have tended to become more pronounced, and even more widespread, as forms of social organisation have taken shape and the emergence of a diversity of beliefs and thought has been seen as incompatible, in one way or another, with the integrity of that organisation, or dangerous to it, whatever its state of development. The history of Europe, to limit ourselves to it, is unfortunately full of tragic episodes of anti- and inter-religious violence, more or less recurrent, from ancient Rome to the end of the Second World War. We need only think of the horror still inspired today by the mere reference to the Inquisition born in the thirteenth century, to the wars of religion of the sixteenth and seventeenth centuries, or to the bloody excesses of the French Revolution, despite the solemn proclamation, in Article 10 of the 1789 Déclaration des droits de l’homme et du citoyen, of the principle according to which ‘Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l’ordre public établi par la loi’. While the emergence of beliefs and the conflicts that accompanied it are thus ancient, the definitive consecration, in a fairly rigorously ‘codified’ form, of the ideals of religious tolerance and pluralism of ideas, which were born of the Reformation and Humanism and developed during the Enlightenment, is comparatively very recent. Freedom of religion, conscience and thought has thus made its entry, successively, at the internal level, into various constitutional texts and, at the external level, into such pre-eminent instruments as the 1948 Universal Declaration of Human Rights (Article  18), the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article  9), the 1966 Covenant on Civil and Political Rights (Article  18), the 1969 American Convention on Human Rights (Article  12) and, closer still, the 1981 African Charter on Human and Peoples’ Rights (Article  8), as well as in various instruments of primary and secondary European Union law (notably Article  6 of the Treaty on European Union and Article 10 of the Charter of Fundamental Rights of the European Union). But while the principle of this freedom has since been so well established that it has become an integral part of our life, this is not the case with its material content and, above all, the conditions under which it must be exercised. However fundamental it may be, the freedom of belief of each individual in foro interno, like all the other freedoms, can only be manifested in foro externo while respecting the freedoms of others and the essential values of ‘vivre ensemble’ within the societies concerned. It is therefore not surprising that the above-mentioned texts all set out, in fairly similar terms, certain limits to the realisation of this freedom, relating to the rights and freedoms of others, public safety and public order, health, morals, etc.

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Stated in general terms, such limits obviously give rise to problems of i­nterpretation when they are applied to the increasingly diverse concrete cases that arise in our communities. Phenomena such as the ‘globalisation’ of the world, and the ever-­increasing and difficult-to-order migrations, have made the social fabric of these communities sometimes so complex that they have seen the resurgence of not only certain tensions, thought to be outdated, between philosophical or religious orientations of various kinds, resurrecting the classic divisions of hostility between ‘majority’ and ‘minority’ groups, but also a growing degree of intolerance, or even radicalism, which was also thought to belong to the past. In such a context, where the modern liberal, ‘materialistic’ and ‘hypocritically neutral’ State is often called into question, the balance between, on the one hand, the full enjoyment of such an essential freedom as freedom of religion, conscience and thought, and, on the other, the limits necessary for its harmonious and serene manifestation in a democratic and open society, is particularly delicate to achieve. All freedom is difficult to assume. As Sartre wrote, following Kierkegaard, ‘c’est dans l’angoisse que l’homme prend conscience de sa liberté’; and we know Dostoevsky’s famous phrase: ‘Nothing is more attractive to human beings than their freedom of conscience, but nothing is more of a cause of suffering’. It is by being aware of one’s freedom of belief and by assuming it that the holder himself or herself becomes the first actor responsible for regulating its manifestation. States further have a certain margin of appreciation and action in this respect, which is not easy to handle nor to control. As for the role of the judge, whether national, regional or international, it is undoubtedly essential, here as elsewhere, to ensure the effectiveness, in all its complexity, of the rule of law concerned, and its integrity, without which this rule could not fulfil its eminent social purpose. The intervention of the judge constitutes, particularly in the matter at hand, given the difficulty that characterises it, a privileged instrument for the fair and balanced protection of the rights of individuals and communities (including States), while respecting their duties. Given its major importance in so many respects, freedom of belief has naturally been the subject of numerous studies, using a wide range of approaches and disciplines, including, of course, legal ones. This book is not just another one. Its editors have met the ambitious challenge of bringing together in a single volume a series of contributions of a high scientific level, but accessible to all, which, as self-sufficient but complementary monographs, offer a complete and up-to-date overview of the work of the two major European Courts—the European Court of Human Rights and the Court of Justice of the European Union—each with regard to its own legal system, both in terms of the definition and interpretation of the theoretical components of freedom of religion, conscience and thought, and in terms of the practical applications, individual and collective, to which these components may give rise in the most varied cases of everyday life (wearing of signs and symbols, exercise of worship, performance of rites, observance of special days off, etc.). The editors’ choice of limiting the book to the state of the problem in Europe seems judicious, since it was also a question of attempting to make certain comparisons and to identify certain interactions in a relatively more homogeneous human and cultural space-time.

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Foreword by Philippe Couvreur, Judge ad hoc and Honorary Registrar of the...

The reader, whether a lawyer or not, a theoretician or a practitioner, will thus find in this book, which is quite unique from this point of view, precise answers to the many questions he or she may have concerning the general or concrete legal scope of this freedom, its necessary relations with related rights, such as those to private and family life, equal treatment and non-discrimination, education, or non-­ refoulement, as well as the limits to which its exercise is subordinated in the case law of the two Courts. In the course of the book, the reader will discover the points of convergence, and sometimes divergence, of these jurisprudences, particularly taking into account the institutional architectures in which these Courts exercise their specific functions and the links maintained by the distinct legal orders in which they operate (including the references made by EU instruments to the ECHR and the interferences between freedom of belief and the strictly ‘Community’ freedoms). The book approaches the work of these Courts both analytically and synthetically, in a dynamic and evolutionary perspective, and with a constructive critical spirit. It gives a clear indication, where appropriate, of the hesitations that their judges have sometimes experienced when making decisions, faced as they were with the uncertainty of certain values in rapidly changing societies, as well as the complexity of the subject, which thus remains, in various respects, open … This valuable overview of jurisprudence is very usefully completed by a final section concerning the measures, of a different nature, taken by certain organisations such as the ILO, the Council of Europe or the OSCE to promote freedom of religion, conscience and thought, inter-cultural dialogue and tolerance. Of particular interest is the study devoted to the position of the Holy See on religious freedom since the adoption on 7 December 1965, within the framework of the Second Vatican Council, of the famous Declaration De Libertate Religiosa Dignitatis Humanae, which constituted a true Copernican revolution within the Catholic Church. Since then, this position has been enriched by reflections in the wake of the Declaration to take full account of the evolution of our societies, as shown, for example, by the important document of the International Theological Commission entitled ‘Religious Freedom for the Good of All. Theological Approaches and contemporary Challenges’, published in April 2019, which contains interesting developments concerning, among other things, religious freedom and evangelisation. This chapter highlights the efforts of the Holy See, through various mechanisms, to strengthen dialogue between religions and with States, thus ensuring peaceful coexistence and constructive cooperation in their mutual relations. To all those who have chosen to purchase this beautiful book, I wish them a good and fruitful reading! The Hague, The Netherlands January 2023  Philippe Couvreur

Scientific Committee

Prof. Giovanna Adinolfi (Università degli studi di Milano); Prof. Silvia Angeletti (Università degli studi di Perugia); Prof. Elisa Baroncini (Università degli studi di Bologna); Prof. Javier Carrascosa (Universidad de Murcia); Prof. Gianluca Contaldi (Università degli studi di Macerata); Prof. Giacomo Di Federico (Università degli studi di Bologna); Prof. Carla Gulotta (Università degli studi di Milano-Bicocca); Dr. Bernhard Hofstötter (EU Commission); Prof. Javier Martínez-Torrón (Universidad Complutense de Madrid); Prof. Maria Paola Monaco (Università degli studi di Firenze); Prof. Massimiliano Montini (Università degli studi di Siena); Prof. Edmondo Mostacci (Università degli studi di Genova); Prof. Excmo Sr. Rafael Navarro-Valls (Conferencia Permanente Academias Jurídicas Iberoamericanas and Real Academia de Jurisprudencia y Legislación de España); Prof. Eulalia W. Petit de Gabriel (Universidad de Sevilla); Prof. Pietro Pustorino (LUISS Guido Carli, Roma); Prof. Mercedes Salido (Universidad Internacional de La Rioja); Adv. LL.M. Msc Edgardo Sobenes Obregon (International Litigation and Arbitration – ESILA); Rector Magnífico Prof. Jose María Vázquez García-Peñuela (Universidad Internacional de La Rioja); Prof. Marco Ventura (Università degli studi di Siena); Prof. Patrizia Vigni (Università degli studi di Siena); Prof. Mariano Vivanco Comes (Universitat de Valencia); Prof. Roberto Virzo (Università degli studi di Messina and LUISS Guido Carli, Roma); Prof. Francisco Javier Zamora Cabot (Universidad Jaume I, Castellón).

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Contents

The Freedom of Religions and Beliefs in the European Context: An Introduction to the Book ��������������������������������������������������������������������������    1 Maria del Ángel Iglesias Vázquez and Luca Paladini Part I The ECHR  Freedom of Thought, Conscience and Religion Under the European Convention on Human Rights: New Approaches������������������������������������������   21 Núria Reguart-Segarra and Victoria Camarero-Suárez Clothing, Symbology and Religious Prescriptions: The Perspective of the European Court of Human Rights������������������������������������������������������   53 Isabel Cano Ruiz The Legal Protection of Religious Freedom and Belief in Public Transport: An Approximation from the Case Law of the Strasbourg Court����������������������������������������������������������������������������������   79 Silvia Meseguer Velasco  Personal Beliefs, Family and Education of Children������������������������������������   99 Miguel Rodríguez Blanco  Positive and Negative Obligations of Member States ����������������������������������  119 Diego Aboy Rubio  Personal Beliefs and Risk of Danger in Case of Return to the Origin Country ������������������������������������������������������������������������������������������������������������  137 Yanitza Giraldo Part II The EU  The Protection of Freedom of Religion in the EU Law��������������������������������  167 Valentina Petralia

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 Free Movement of Persons and Religious Freedom Within the EU������������  193 Alessandra Lang Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice��������������������������������������������������������������������  215 Fabio Spitaleri Jus Migrandi and Personal Beliefs of Migrants Coming from Third States: Practice from the EU Asylum Policy��������������������������������������  237 Francesco Cherubini and Tommaso Pochi The EU and the Status of Churches, Religious Associations, Philosophical and Non-Confessional Organisations ������������������������������������  267 Michał Rynkowski  Navigating Between Animal Welfare and Freedom of Religion������������������  283 Costanza Di Francesco Maesa Part III Other International Actors in the European Context  Freedom of Religion or Belief: The Role of the Holy See����������������������������  309 Vincenzo Buonomo The International Labour Organisation and Freedom of Religious Belief������������������������������������������������������������������������������������������������������������������  333 Djamil Tony Kahale Carrillo Promoting Diversity, Combating Hate Speech and Broadening Intercultural Dialogue: The Council of Europe’s Actions in Favour of Personal Beliefs��������������������������������������������������������������������������������������������  357 José Ramón Intxaurbe Vitorica The Organization for Security and Cooperation in Europe and the Promotion and Assistance to Member States in the Field of Freedom of Religion and Belief��������������������������������������������������������������������������������������  377 Rubén Miranda Gonçalves Freedom of Religions and Beliefs in the European Context: Concluding (Quo Usque Tolerantia Nostra Nos Ducit)������������������������������������������������������  399 Maria del Ángel Iglesias Vázquez and Luca Paladini Correction to: Protection and Promotion of Freedom of Religions and Beliefs in the European Context . . . . . . . . . . . . . . . . . . . . . . . . C1

Editors and Contributors

About the Editors Luca Paladini  is Senior Lecturer of European Union Law at the University for Foreigners of Siena (Unistrasi), and qualified as Associate Professor. He graduated in Political Sciences and specialised in EU Law at the University of Milan. He holds a PhD in EU Law from the University of Bologna. He was Jean Monnet Fellow (2008–2009) and then Visiting Fellow (2009–2011) at the European University Institute (Florence). His research interests include the EU external action, the human rights international protection, and the domestic legal order conformity with international law and the EU Law. Luca Paladini is a co-editor of an edited book, author of a book and about 50 contributions on EU Law and International Law. He is a member of the editorial team of the Legal Journals ‘DPCEonline’, ‘Giurisprudenza italiana’, ‘GenIUS’, and ‘Revista Hispanoamericana de derechos humanos’. Since 2022, he is the Unistrasi Rector’s Delegate for ‘students’ traineeships and job placement’. Maria del Ángel Iglesias Vázquez  is Professor of International Law and Human Rights since 1999. She is a member of the Royal Academy of Jurisprudence and Legislation (Spain), the Bar Association of Valencia and the Spanish Association of Professors of International Law and International Relations (AEPDIRI). She is the author of several publications (books, book chapters, reviews, forewords and papers) on human rights, the most recent with a special focus on the rights of indigenous peoples (and freedom of beliefs). She has actively participated in several research groups (among others on culture, religion and human rights, and global law) and she is currently the lead researcher (director) of the group ‘Relevance of the status and condition of indigenous peoples’. She has supervised several doctoral theses and has been a member of doctoral and master’s thesis tribunals. She has taught and lectured in several countries in Europe and America. In 2008 and 2019 she was a Visiting Researcher at the Lauterpacht Centre for International Law (University of Cambridge). xiii

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List of Contributors Diego Aboy Rubio  Universidad Internacional de La Rioja, La Rioja, Spain Vincenzo Buonomo  Pontifical Lateran University (PUL), Rome, Italy María Victoria Camarero Suárez  Jaume I University of Castellón, Castelló, Spain Isabel Cano Ruiz  University of Alcalá, Madrid, Spain Francesco Cherubini  LUISS Guido Carli, Roma, Italy Costanza di Francesco Maesa  University of Siena, Siena, Italy Yanitza Giraldo  International University of Rioja, Logroño, Spain Maria del Ángel Iglesias Vázquez  International Law, Universidad Internacional de La Rioja, Logroño, Spain José Ramón Intxaurbe Vitorica  Department of Public Law, Deusto Law School, Bilbao, Spain Djamil  Tony  Kahale  Carrillo  Polytechnic Cartagena, Spain

University

of

Cartagena,

Alessandra Lang  University of Milan, Milan, Italy Silvia Meseguer Velasco  Universidad Complutense de Madrid, Madrid, Spain Rubén  Miranda  Gonçalves  University of Las Palmas de Gran Canaria, Las Palmas, Spain Luca Paladini  DISU, University for Foreigners of Siena, Siena, Italy Valentina Petralia  University of Catania, Catania, Italy Tommaso Pochi  LUISS Guido Carli, Roma, Italy Núria Reguart-Segarra  Jaume I University of Castellón, Castelló, Spain Miguel Rodríguez Blanco  University of Alcalá, Madrid, Spain Michał Rynkowski  European Commission, Brussels, Belgium Fabio Spitaleri  University of Trieste, Trieste, Italy

The Freedom of Religions and Beliefs in the European Context: An Introduction to the Book Maria del Ángel Iglesias Vázquez and Luca Paladini

Abstract  The first chapter of this book is a sort of cover letter in which the authors raise the general problems we face when analysing what this right and freedom mean and how it is interpreted in the European context. It seems well worth looking at the history to understand the importance of Freedom of Religions and Beliefs (FoRB) being recognised as a universal fundamental right. The authors of the Universal Declaration of Human Rights witnessed the great difficulty (not impossibility) of reconciling the different thoughts of the representatives of the States while, at the same time, the necessity of its proclamation as a human right. However, as can be seen from the description given in this initial chapter, the problems arising from its interpretation are various, heterogeneous and complex. Analysing this right and freedom in the European context means keeping in mind that Europe is a multicultural scenario in which accepting and accommodating different beliefs does not seem easy. However, this is certainly not an insurmountable obstacle when t­ olerance is premised as the key to peaceful coexistence. A multicultural scenario, we say, in which it becomes clear that the highest interpreters of the FoRB, the ECJ and the CJEU have said not everything. Keywords  FoRB · Fundamental rights · Universal Declaration of Human Rights · ECtHR · CJEU · International organisations · Holy See · European context This chapter is the result of the two co-editors joint thinking and work. Nevertheless, editing requirements made it necessary to share the paragraphs to write. Thus, Sects. 1, 3, 4 and 5 have been written by María del Ángel Iglesias Vázquez, while Sects. 2, 6, 7 (Sects. 7.1 to 7.3 included) and 8 have been written by Luca Paladini. M. d. Á. Iglesias Vázquez International Law, Universidad Internacional de La Rioja, Logroño, Spain e-mail: [email protected] L. Paladini (*) Dipartimento di studi umanistici, University for Foreigners of Siena, Siena, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_1

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1 Looking at the Past Few events in the history of humankind can be pointed out so strongly international in character and so closely related to religious freedom as that of the Mayflower in 1620. Never had there been a displacement caused by the exercise of this freedom. Since ancient times, the right to adopt a particular belief and exercise it has been closely linked to the struggle for and recognition of one of the most basic of human freedoms. The reasons for the Mayflower’s departure to America lie in the consequences of the Protestant Reformation in Europe. In fact, it is in our subcontinent that freedom of thought, conscience and religion was first recognised as a human right, later universally established in the 1948 Universal Declaration of Human Rights (UDHR). 1 The debates that took place during the elaboration of this text already show the final acceptance of this same right by different cultures, not without leaving their objections on the record. The UDHR was intended to seek a common ideal; to achieve this, the differences between the various positions had to be reconciled. Even the initial reference to ‘all men’, the addressees of the rights being proclaimed, was modified at the request of the Indian representative, Hansa Mehta, who, noting that the first of the articles said, ‘All men’, pointed out to Eleanor Roosevelt that ‘man’ should be deleted so as not to make any distinction. The Universal Declaration was intended to present a universal conception, an ideal common to all mankind, of human rights, rising, in a divided world, above the different ideologies and conflicting views of their origin or nature.2

The search for this common ideal was not an easy task. It must be understood that what was sought was common to all and that cultural differences were palpable. On the question which is the subject of the work now being presented, in the travaux préparatoires the religious question was the subject of intense debate, from the beginning to the final version, not only in the debates on the Article 9 but also in others, such as the one on the proclamation of the equality of ‘all’. The draft contained the reference to the equality of human beings ‘by nature’ (introduced by the representative of the Philippines), but there were also those who wanted to incorporate the reference to God (such as De Athayde, the Brazilian representative, supported by the United Kingdom, among others). Soviet opposition and Chinese reasoning, despite Malik’s mediation, led to a yes to ‘nature’ and no to ‘God’, although they eventually agreed on the deletion of both the reference to nature and

 

1 International Bill of Human Rights. A Declaration of Human Rights. United Nations General Assembly. Hundred and eighty-third plenary meeting. 10 December 1948. Doc.: A/RES/217(III). Available at https://undocs.org/A/RES/217(III).

 Gross Spiell (1988) [cit. by Gómez Isa, Pureza (2004) 130] (original Spanish passage: ‘la Declaración Universal pretendió presentar una concepción universal, un ideal común a la humanidad entera, de los Derechos Humanos, elevándose, en un mundo dividido, sobre las distintas ideologías y los opuestos criterios sobre su origen o naturaleza’). 2

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the divine. The UN, in short, ‘would be deciding by vote on a principle that is beyond human capacity to judge’.3 Religious freedom did not include the right to change religion in the UDHR 1947 proposal. States such as Saudi Arabia, for example, considered such a change to be incompatible with Muslim beliefs and therefore chose to delete any reference to religious change in the proposed text. The issue of proselytising and the danger it represented, according to some delegates, weighed heavily. It should be noted that this provision also affected (ad ex.) the right to marry. The Egyptian representative wanted to make a specific statement without abandoning his point of view on the question. He could have concealed the reservations he had expressed on Articles 17 and 19, but it seemed to him more loyal and franker to have expressed them, since, by voting for the declaration, his country intended to apply and implement it in all honesty.4 Despite the enshrinement of freedom of belief in the final text of the UDHR and the acceptance by States of such different positions, and despite its invocation in other subsequent international texts, the religious factor continues to be a source of intense confrontation, and this is reflected in the diversity of norms, jurisprudence and doctrine.

2 Freedom of Religions or Beliefs Today: A Key (but Still Controversial) Human Right An abundant, highly specialised body of legal literature has examined in depth Freedom of Religion or Belief (FoRB), emphasising its nature as a key human right5 and, at the same time, acknowledging the limits that still affect the legal protection of this basic human freedom. Despite this, however, examining FoRB as a ­fundamental right is far from being an easy task, since it has quite unique characteristics, the first of which is that it is a key human right whose content is ‘in many ways’ twofold. Indeed, regardless of the specific belief at stake, FoRB has both an internal dimension that is impervious to the State (forum internum) and an external dimension that relates to the manifestation of belief (forum externum), which, on the

 United Nations. Universal Declaration of Human Rights (1948), Drafting History, Doc. A/C.3/ SR.89. See also Pallarés (2017). 4  Cfr. Rafaat, 183 séance plénaire, 10 décembre 1948, Continuation of the discussion on the draft universal declaration of human rights: report of the Third Committee (A/777). 5  Many authoritative scholars have written books and edited collections of essays on human rights and FoRB, some from the point of view of international law, while others from the more limited standpoint of the European context. Ex plurimis, see Uitz (2007), Crawford (2012), p. 644, Green and Witte (2013), p. 9 ff., Bielefeldt et al. (2016), Zagrebelsky et al. (2016), p. 325 ff., Parra Vera et  al. (2017) passim, Temperman et  al. (2019), Walter (2021) and, finally, Pustorino (2023), p. 181 ff. 3

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contrary, can be limited by the State under certain conditions. Besides, there is further duality with regard to the forum externum. First, because the manifestation of FoRB can happen at both individual and collective levels, as demonstrated by the variety of existing institutions of worship and religious associations and organisations. In addition, this freedom has a positive aspect as well as a negative one, encompassing as it does the right to practice and manifest belief, as well as the right not to do so if one wishes. Furthermore, the content of FoRB has an intrinsically dual and asymmetrical nature, in that it refers at the same time to the major subcategory of religious beliefs and to the minor subcategory of philosophical and spiritual beliefs (e.g. pacifism, atheism, etc.)—the latter of which seems to have given rise to less controversy, at least at the international level. Finally, there is a duality also to the application of the guarantee of daily exercise of FoRB, since in both cases the State exercises jurisdiction vis-à-vis the individual or group concerned. Indeed, we have the vertical application of FoRB between, on one side, individuals or groups entitled to it and, on the other side, the State, which has a duty to provide appropriate guarantees and legal protection for this fundamental right. At the same time, however, we also have its horizontal application between individuals—and in this respect too, the State must provide appropriate guarantees and legal protection. The second unique feature of FoRB is, on the other hand, its interconnection with other human rights. While all key human rights are interconnected, the complementarity of FoRB with other, neighbouring human rights is particularly profound and articulated. A quick review of the relevant international practice and case law,6 which of course the legal literature has commented upon, shows clear and deep interconnections between FoRB and the prohibition on discrimination (of course, especially discrimination based on religion or belief), as well as between FoRB and the rights of minorities, the right of association, the right of access to justice, the right to private and family life (including with regard to the raising and education of children), freedom of expression, and the right to property. The interweaving of these key human rights is only further evidence of the complex content of FoRB. The third, and last, unique feature of FoRB is that it is one of the foundations of democratic society, as demonstrated by the importance that religious and personal beliefs have had, and still have, in the pluralist socio-political debate happening in contemporary democracies. This view has long been espoused in Europe, at least since the famous 1993 judgment in the Kokkinakis case, where the European Court of Human Rights,7 finding for the first time a violation of Article 9 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), stated that freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the

 For example, see Bielefeldt et al. (2016).  Hereinafter, ECtHR or Strasbourg Court.

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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.8

It could thus be said that FoRB is a freedom that benefits not only individuals and groups but society as a whole and, as a consequence, that the State has a duty ‘to safeguard and promote tolerance and pluralism in modern European societies’.9 Once again, while this connection with society holds true for all key human rights (as examples, just think of freedom of the press and freedom of expression), it is especially profound and ancient in the case of FoRB. As a mode of living together in society, religious tolerance—and, therefore, respect for the beliefs of others— dates back to antiquity, a fact noted already by Voltaire in his Treatise on Tolerance (1763), where, having inquired into whether intolerance was known to the Greeks, he states: ‘I may be wrong, but it appears to me that not one of the ancient civilised nations restricted the freedom of thought’.10 The brief overview provided above sketches out the challenges that face legal scholars when embarking on a general or sector-specific analysis of FoRB.  The notion of this key human right seems quite vital and topical by reason of the context under examination and, particularly, the continuous evolution of societies and cultures—a consequence of which is that new creeds and beliefs arise and, once they become established in society, those who espouse them request legal protection for exercising them. Already 30 years ago, around the same time when the ECtHR delivered the aforementioned Kokkinakis judgment, the Human Rights Committee emphasised that FoRB is in constant evolution, making reference to what one is tempted to call a ‘universal’ notion of this key human right.11 Indeed, while giving its interpretation of Article 18 ICCPR (right to freedom of thought, conscience and religion), the Committee stated that FoRB includes theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. 12

 Kokkinakis v Greece, judgment of 25th May 1993 (Application No. 14307/88), § 31.  Uitz (2007), p. 15 ff. 10  Voltaire, Traité sur la Tolérance, Genève, 1763, Chapter VII (original French passage: ‘Je peux me tromper; mais il me paraît que de tous les anciens peuples policés, aucun n’a gêné la liberté de penser’). 11  References to the General Comment No. 22 (see note below) can be found in the case law of different international courts. As for Europe, see the Strasbourg Court (e.g. Kimlya and Others v Russia, Applications Nos. 76836/01 and 32782/03, § 71, and Ancient Baltic Religious Association Romuva v Lithuania, Application No. 48329/19, § 72; in both cases with regard to the relevant international documents). On the latter, see the Inter-American Court of Human Rights [extensively, Palomino Huaco (2019), p. 389] and the African Court on Human and Peoples’ Rights (e.g. the so-called case Ogiek, i.e. African Commission v Kenya, Application No. 6/2012, § 163). 12  CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) Adopted at the Forty-eighth Session of the Human Rights Committee, on 30 July 1993, CCPR/C/21/ 8 9

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Of course, if it is true that, compared to the past, today the diversity of beliefs is being taken more into account in terms of legal protection, it is equally true that not all types of religious and personal belief can benefit from legal protection. To briefly paraphrase Voltaire, natural law establishes the right to practise one’s religion freely in a context of maximum tolerance. However, it is not always possible to guarantee the legal protection of that right when faced with the (sometimes gratuitous) multiplication and diversification of beliefs. In the context of FoRB, it cannot be said that there is absolute tolerance towards diversity, and understandably so. Indeed, national, European and international judicial practice has emphasised that a belief needs to be based on grounds that are ‘solid’, or at least solid enough, in order for it to be afforded legal protection. The latter is thus guaranteed under specific conditions, to avoid a situation where an open, inclusive understanding of FoRB ‘could open the floodgates to all sorts of trivial interests’—such as, for instance, the ‘Star Wars religion’ founded in the early 2000s, or the ‘Church of the Flying Spaghetti Monster’, created in Oregon, US, in the same period.13 Needless to say, assessing the solidity of a belief is not easy and it may certainly be maintained that the assessments of the courts have not always resulted in a fair outcome in terms of the legal protection of individuals or groups. All of the above confirms the difficulties in investigating FoRB—a key human right and a cornerstone of democracy that, however, is still a controversial human right. This book is devoted to it, with specific reference to the European context.

3 Is Europe Different? The interpretation of the FoRB is the subject of recent decisions by the courts, especially in its external subjective and objective aspects. It does not seem, therefore, to be a peaceful issue. On the contrary, the exercise of this right, both in the public and private sphere, has given rise to a relevant amount of case law at the European level, whether in the broader ECtHR or the narrower European Union.14 A quick glance at the latest decisions of both courts confirms this assertion. One might think that, given the common roots of European states, their positions on the objective dimension of this freedom are similar. Nothing could be further from the truth. There are disparities ranging from the proclamation of a certain religion as official (ad ex. in Sweden) to those States that proclaim themselves confessional (ad ex. in Spain) or secular (ad ex. in France). In this sense, we could ask ourselves why States take a position in such a personal sphere as freedom of belief and, in addition to this question, does the State have the right to proclaim an official

Rev.1/Add.4, General Comment No. 22. (General Comments), § 2. For a comment, see Joseph et al. (2013), p. 562 ff. 13  Bielefeldt et al. (2016), p. 19 ff. 14  Hereinafter, the EU or Union.

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position on the matter, can we not consider that this is in some way an invasion of the intimate sphere of the individual? Here we would drag into our debate the question of the separation of Church and State. If we agree that religious beliefs enter into the innermost sphere of the individual, it will seem that the State should not interfere in these matters. Certainly, there is no shortage of those who would argue otherwise. Alongside this objective aspect, the studies presented in this work provide an excellent example of the disparity of criteria as far as the external subjective sphere is concerned. We are dealing with a freedom whose full exercise goes beyond a mere internal positioning; it requires an external projection in respect of which both the ECtHR and the EU Court of Justice have been pronouncing (and not always in the same way). ‘Religious freedom is an extremely complex principle, and to apprehend it, it must be understood in the following way reference necessarily to theological, philosophical, historical and legal issues’.15

4 Looking to the Future: Has Everything Been Said? Undoubtedly, the freedom of movement of people in Europe, and generally the migratory phenomenon, has led to the formation of markedly intercultural societies that require understanding for their peaceful coexistence. In our scenario, Christian, Islamic, Hebrew, Evangelical, Buddhist, etc., beliefs coexist. In this bowl, recognition and acceptance of differences with ‘the other’ is necessary, as Peces Barba points out: Without their moral dimension, rights would lack legitimacy; without their political dimension they could not be imposed and take root in social life and without their legal dimension they would lack validity and effectiveness to organize coexistence.16

Thus, in fact, in Europe, States have reacted to this reality, including by enacting laws that serve to give the necessary civil effects, for example, to the union between persons, or by establishing an educational framework that makes possible the external subjective exercise of this freedom, among others. Despite this, the courts have resolved (and will continue) to resolve disputes in this regard and have consequently issued important case law to develop the content and scope of this freedom. The doctrine, for its part, offers different visions of this right, which is a consequence, in fact, of freedom of thought. And to this must be

 Cociña y Abella (1980), p. 313 (original Spanish passage: ‘La libertad religiosa es un principio extremadamente complejo y para su comprensión en profundidad debe hacerse referencia necesariamente a cuestiones teológicas, filosóficas, históricas y jurídicas’). 16  Peces Barba (1999), pp.  101–103 (original Spanish passage: ‘Sin su dimensión moral, los derechos carecerían de legitimidad; sin su dimensión política no podrían imponerse y arraigar en la vida social y sin la dimensión jurídica carecerían de validez y eficacia para organizar la convivencia’). 15

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added the current scope of this freedom to include the freedom not to believe or conscientious objection. ‘Ex facto oritur ius’:17 society is evolving, and the law must meet the needs of understanding that change. The current position on freedom of belief, in Europe in general and in the European Union in particular, shows an evolution in line with the reality of the time.

5 ‘Public Order’ and Its Relevant Implications One problem concerns the limitation of the exercise of this freedom18 since it is not an absolute freedom, and therefore the interpretation of morality and the ‘public order’ clause, which depends ‘on the social reality of the moment in which it is applied’. This, together with the margin of appreciation left to the States.19 The concept of ‘public order’ and its determination show a certain complexity. Polo Sabau already distinguishes between two types of meaning, of which we bring up, not that of common language, but the material or external meaning which he defines as ‘a certain general order of society which is based on respect for its institutions, uses and customs, and generally accepted values, and which in some sense operates as an authentic closing clause of the legal system in terms of the exercise of legally recognized rights and freedoms’.20 This is an issue that generally affects the law, so that its use can be seen in rules relating to different branches of domestic law (ad ex. private international law), and the notion of ‘European public order’21 or ‘international public order’22 has appeared. It is a concept used in the texts as a limitation rather than a definition. If we refer to ‘usages and customs’, it seems that these have changed and, it seems, will change

 Expression attributed to Bartholo Sentinati, Consilia, quaestiones et tractatus, 1392.  Cfr. ECHR, Article 9, para 2: ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’; the EU Charter of Fundamental Rights, Article 10, para 2: ‘The right to conscientious objection is recognized, in accordance with the national laws governing the exercise of this right’. International Covenant on Civil and Political Rights, Article 18. 3: 3: ‘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’. Finally, cfr. Déclaration des droits de l’homme et du citoyen de 1789, article 10: ‘Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l’ordre public établi par la loi’. 19  Leyla Sahin v Turkey, judgment of 29th June 2004 (Application No. ….). 20  Polo Sabau (2012), p. 215. 21  Vid., ad ex., Loizidou v Turkey, Preliminary Objections of 23rd March 1995 (Application No 15318/89). 22  The use of ordre public arguments in resolution of public international law disputes has also been treated with reserve due to the relative indeterminacy of this concept. 17 18

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even more. What has been interpreted as contrary to public order in the past is sometimes not so in the present, and perhaps will not be so in the future. ‘La notion d’ordre public est, de la sorte, dérogatoire, variable dans l'espace et dans le temps’.23 The EU Court of Justice applied the public policy clause as a limitation in the Van Duyn case in a different way than it would later do with regard to the Church of Scientology, not so much because of an evolution of the Court, but because of that of the United Kingdom. This, interpreting the Free Movement of Workers.24

6 Aim, Approach and Method The complexity of FoRB as outlined above has determined our choices as co-editors with regard to the structure of this volume. When we started planning the book, we were deeply aware of the complexity of the topic and of the vast and steadily growing body of legal literature on the subject. Consequently, we conceived the book as a collection of specialist essays that would represent as current a view as possible of legal protection of FoRB in Europe. This aim is reflected in the book’s parts—not only the first two, which discuss, respectively, the ECHR and EU systems and their case law, but also the third one, where an account is given of the activities carried out in the European context by entities subject to international law to promote or support the implementation of FoRB ‘beyond the courts’. As the tripartite structure of the book shows, in conducting this analysis we decided to take an approach that is only partly traditional. The book follows the tradition of legal literature on FoRB in the first two parts, which deal with non-national legal systems—a topic widely investigated by scholars. At the same time, in parts one and two, the essays are ordered in such a way that it is possible to examine FoRB both in its systematic aspects (e.g. the scope of its content, or the positive and negative obligations imposed on States) and its ‘daily aspects’ (e.g. the possibility of using a certain item of clothing, or the unfortunate circumstance where belief leads to refoulement). In addition, we believe that the division into two separate parts may be useful to those readers who, for study reasons, need to look at FoRB from a specific point of view, be it that of treaty international law—and, therefore, the Strasbourg system—or of the EU legal order and the supranational obligations deriving from it. The book’s third part, on the other hand, shines a light on a topic that has been less examined in the literature, namely, the activities carried out in Europe by some international organisations and by the Holy See to promote and protect FoRB. We thought this topic deserved its own part because, in our opinion, investigating FoRB

 Terré (2015), p. 194.  Case 41/74, Yvonne van Duyn v Home Office, judgment of 4th December 1974, European Court Reports 1974, p. 1345, ECLI:EU:C:1974:133. 23 24

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does not only mean examining regulatory practice and case law at international and supranational levels (and at the national level too, of course, although reasons of space made it impossible to cover this aspect), but also considering the activities to promote, recommend or otherwise support FoRB undertaken by non-State subjects of international law that have competence to undertake them. Our hope is that this part will offer useful hints and information to both general readers and academics interested in International Institutional Law and the Holy See. As briefly mentioned above, this book offers a collection of specialist essays written by experts in the field. Their contributions are preceded by this introduction and followed by our conclusions, which close the volume.25 Each essay is the result of independent critical research and, therefore, can be viewed as a monographic study on a specific aspect of FoRB. This does not mean, however, that the essays should be regarded as individual articles randomly arranged into three parts. Rather, they form a single chain of legal analysis through which multiple FoRB-focused common threads run—and on these, we, as co-editors, have the honour to comment in our conclusions.

7 Structure and Contents As noted, the book’s analysis of FoRB in the European context covers three areas of investigation: the ECHR system, the EU system, and the activities undertaken by certain entities subjects to international law to promote this key human right. These three areas correspond to the three parts into which the book is divided, and whose content is outlined below.

7.1 Part I: The ECHR Part I deals with the protection afforded to FoRB by the 1950 ECHR and relevant protocols. Therefore, this part revolves around Article 9 ECHR, under which 1. Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others.

as well as the 1952 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol No. 11), whose Article  Chapter “Freedom of Religions and Beliefs in the European Context: Concluding (Quo Usque Tolerantia Nostra Nos Ducit)”. 25

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2, relating to the right to education, provides that the States parties ‘shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’. Of course, these legal provisions are examined in the light of the case law of the ECtHR which some legal writers have regarded as lacking in clarity in certain respects,26 and, therefore, as difficult to systematise. Part I opens with a comprehensive contribution by Victoria Camarero-Suárez and Núria Reguart-Segarra (both from the University of Alcalá de Henares), who discuss the scope of application of Article 9 ECHR,27 with reference to the interpretation developed by the Strasbourg Court in its case law since the Kokkinakis judgment (and to the Commission’s pre-­ Kokkinakis ‘case law’28), with its lights and shadows. This part continues with an analysis of certain ‘daily aspects’ of FoRB, such as clothing, food, the exercise of rituals or the display of symbols in relation to normal, routine activities and ordinary areas of life. Due to the abundance of relevant case law, these aspects are the subject of two essays, one by Isabel Cano Ruiz29 (University of Alcalá) on clothing, symbology, and religious prescriptions, and the other by Silvia Meseguer Velasco30 (Complutense University, Madrid), on the sphere of transport. Another ordinary area of life is examined by Miguel Rodríguez Blanco (University of Alcalà), who addresses the ‘familial aspects’ of FoRB,31 especially regarding the raising and education of children, and the problems that arise in the exercise of the right to religious freedom by minors. The penultimate essay in this part, written by Diego Aboy Rubio (International University of La Rioja), delves into the Strasboug case law on the positive and negative obligations of the State parties to ensure the legal protection of FoRB32—quite a sensitive issue, since, as we will see, it involves the controversial (and so far, uncodified) doctrine of the margin of appreciation of the State parties. Finally, the last essay in this part is written by Yanitza Giraldo (International University of La Rioja) and examines, in a European context, the sensitive topic of the right to FoRB in the case of third-country nationals.33 The latter terms refer not only to individuals legally residing in the EU, and thus falling within the jurisdiction of the State parties (Article 1 ECHR), but also to those who,  For example, see Temperman et al. (2019), passim.  Chapter “Freedom of Thought, Conscience and Religion Under the European Convention on Human Rights. New Approaches”. 28  Often viewed in the literature as innovative: see Temperman et al. (2019), Chapter “Freedom of Thought, Conscience and Religion under the European Convention on Human Rights. New Approaches” by Evans (33 ff). 29  Chapter “Clothing, Symbology and Religious Prescriptions: The Perspective of the European Court of Human Rights”. 30  Chapter “The Legal Protection of Religious Freedom and Belief in Public Transport. An Approximation from the Case Law of the Strasbourg Court”. 31  Chapter “Personal Beliefs, Family and Education of Children”. 32  Chapter “Positive And Negative Obligations of Member States”. 33  Chapter “Personal beliefs and risk of danger in case of return to the origin country”. 26 27

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whether or not because of religious or philosophical/spiritual discrimination, arrive in Europe from countries in crisis in the hope of being granted international protection, and certainly not wishing to be sent back to the place they fled.

7.2 Part II: The EU The second part of the book, on the other hand, deals with FoRB in the EU System, id est its legal order. As is well known, the EU legal order is completely different from the ECHR System, mainly because of its specific characteristics (just think, for example, of the primacy of the EU law over the law of the Member States) and of the different nature of the Union with respect to the Council of Europe. Indeed, due to its origins and the competences conferred on it, the EU, unlike the Council of Europe,34 is not properly a Human Right Organisation but, rather, a supranational organisation aimed at the progressive integration of its Member States. Within it, respect for fundamental human rights is at once a founding value,35 an objective,36 and the content of a general principle of the EU law (one which embodies a standard of legitimacy of the Union’s law and of the conduct of Member States in implementing it). This endorsement of respect for human rights is now enshrined in Article 6 TEU,37 which reads: 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. … 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. … 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

In fact, Article 6 TEU certifies the existence of a link between the EU System and the ECHR System in terms of a correspondence in the level of protection of fundamental rights, a possible expansion of the standard of protection set in the Strasbourg case law,38 and the possible (but so far impracticable) accession to the 1950 Convention. This reveals that the level of protection of fundamental rights in the EU is subordinate to the ECHR standard, at least regarding first-generation rights.

 Rosas (2011).  Article 2 TEU. 36  Article 3 TEU. 37  Article 6 TEU was first codified in the Maastricht Treaty (with a similar, but partly different wording), although, as is well known, this primary provision was preceded by the historic case law of the Court of Justice, which dates back to the 70s. On this excursus, see Adam and Tizzano (2020), p. 152 ff. 38  Article 52 of Charter of Fundamental Rights of the European Union. 34 35

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Confirmation of the above can be found in the ‘Explanations’39 to the Charter of Fundamental Rights, particularly the explanation to Article 10,40 which concerns FoRB: Article 10 — Freedom of thought, conscience and religion. The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: ‘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 guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.

In consideration of the foregoing, Part II of the book, mirroring the approach adopted in Part I, opens with a contribution by Valentina Petralia (University of Catania) that aims to provide the reader with an overview of FoRB in EU law.41 Not an easy task, considering that this individual freedom cuts across the Union’s legal order in different directions, whether through provisions of a horizontal nature or specific provisions relating to the competences conferred on the EU, including external ones (the so-called ‘external human rights policy’42). And all this without any competence having been conferred on the EU regarding the relationships between Member States and religious beliefs, which remain within the scope of national sovereignty. Valentina Petralia’s contribution is followed by a trio of essays on three important areas of Union competence where primary law has laid the foundations for the adoption of a large body of secondary law and given rise to an abundant case law. More specifically, Alessandra Lang (University of Milan) discusses the connection between FoRB and European citizenship,43 a fundamental institution of the EU law, examining in  particular the possible interferences between one of the rights enjoyed by EU citizens—free movement of persons—and religious affiliation. The second essay in the trio is written by Fabio Spitaleri (University of Trieste), who investigates the vast case law of the EU Court of Justice on the connection between FoRB and labour law,44 especially with regard to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in  2007/C 303/02, OJ C 303, 14th December 2007. In the literature, see Lock (2019), p. 389 ff.  ‘1. Everyone has the right to freedom of thought, conscience, and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right’. 41  Chapter “The Protection of Freedom of Religion in the EU Law”. 42  See EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief, Foreign Affairs Council, Luxembourg, 24 June 2013. 43  Chapter “Free Movement of Persons and Religious Freedom within the EU”. 44  Chapter “Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice”. 39 40

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employment and occupation.45 Finally, Francesco Cherubini and Tommaso Pochi (LUISS University, Rome) offer the reader—in a telling parallel with the contribution to this volume by Giraldo46—a comprehensive analysis of Luxembourg case law on FoRB and EU jus migrandi,47 a shortcut term to refer to the part of the European Area of Freedom, Security and Justice that regulates the entry, movement and stay of third-country nationals in the EU. Two further essays conclude the second part of the volume. Michal Rynkowski (European Commission) contributes a piece on a horizontal provision that has been the subject of much debate in the literature, especially with a view to clarifying its actual scope: Article 17 TFEU, which constitutes the legal basis for the establishment of a dialogue between the European Union and churches, religious associations or communities, philosophical and non-confessional organisations.48 Costanza di Francesco Maesa (University of Siena) provides a focus on the relationship between FoRB and animal welfare, the protection of which is enshrined in a horizontal provision of EU law—Article 13 TFEU—and has been dealt with in the Luxembourg case law, with particular regard to ritual slaughter.49 The decision to include this particular focus in the book stems from the realisation that the protection of the daily exercise of FoRB may conflict with the welfare of animals—an issue that individuals and society as a whole are becoming increasingly aware of. As co-editors, and as citizens of EU Member States where there is a lively debate on this issue (just think of bullfighting in Spain, and of the risks to which the horses racing in the Palio di Siena are exposed), we felt the need to ask our colleague to prepare an in-depth study on it.

7.3 Part III: Other International Actors in the European Context The third and last part of the book examines FoRB in the European context from the point of view of the activities undertaken by certain entities subjects of international law (we will synthetically call them ‘actors’) to promote it. This part partly differs from the previous two, since it deals less with the protection afforded to FoRB under international and supranational law as applied and interpreted by the courts, and more with the activities carried out by some international organisations and by the Holy See to promote, and thus strengthen, the

 OJ L 303, 2nd December 2000.  Chapter “Positive And Negative Obligations of Member States”. 47  Chapter “Jus Migrandi and Personal Beliefs of Migrants Coming from Third States: Practice from EU Asylum Policy”. 48  Chapter “The EU and the Status of Churches, Religious Associations, Philosophical and NonConfessional Organisations”. 49  Chapter “Navigating between Animal Welfare and Freedom of Religion”. 45 46

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protection of this key human right. Indeed, said activities, too, may ensure the legal protection of FoRB in cases where political action by international bodies prompts State parties to take legislative decisions that dictate an increasing opening to different beliefs, thus allowing, on a vertical level, all individuals to exercise their beliefs and, on a horizontal level, enabling mutual coexistence and tolerance between religions and personal beliefs. While well aware that quite a few international organisations carry out praiseworthy work related to FoRB in Europe, we decided to invite four of our colleagues to provide accounts of the activities of the Holy See50 and of some international organisations which, among other things, ‘deal with’ FoRB by virtue of the competence conferred on them,51 id est respectively the International Labour Organization (ILO), the Council of Europe, and the Organization for Security and Co-operation in Europe (OSCE). The first essay in this part is written by Vincenzo Buonomo (Pontifical Lateran University), who examines the conceptual framework in which the Holy See acts at the international level to promote and to protect FoRB.52 His essay gives the reader an account of how this subject of international law—which, as the central organisational authority of the Catholic Church in the world, has a mission that is essentially above all else religious and moral—is now conducting an open and responsible interfaith dialogue. This dialogue stems from the legacy of the Second Vatican Council and the end of the Holy See’s too-long opposition to FoRB, two factors that were beautifully brought together in the Dignitatis Humanae Declaration of 7th December 1965, which reads: (s)ince the common welfare of society consists in the entirety of those conditions of social life under which men enjoy the possibility of achieving their own perfection in a certain fullness of measure and also with some relative ease, it chiefly consists in the protection of the rights, and in the performance of the duties, of the human person. Therefore, the care of the right to religious freedom devolves upon the whole citizenry, upon social groups, upon government, and upon the Church and other religious communities, in virtue of the duty of all toward the common welfare, and in the manner proper to each.53

The second essay is by Djamil Tony Kahale Carrillo (Polytechnic University of Cartagena), who  provides an account of the activities carried out by the ILO— which now has a recognised role within the international human rights system—to

 See Crawford (2012), p. 124 ff., and Shaw (2008), p. 243 ff.  See Schermers and Blokker (2011) § 206 ff. and Klabbers (2015), p. 53 ff.; more in detail, see Saaroshi (2005). 52  Chapter “Freedom of Religion or Belief: the Role of the Holy See”. 53  Paulus Episcopus Servus Servorum Dei Una Cum Sacrosancti Concilii Patribus, Ad Perpetuam Rei Memoriam, Declaratio De Libertate Religiosa, Dignitatis Humanae, 6 (original Latin passage: ‘[c]um societatis commune bonum, quod est summa earum vitae socialis condicionum, quibus homines suam ipsorum perfectionem possunt plenius atque expeditius consequi, maxime in humanae personae servatis iuribus et officiis consistat, cura iuris ad libertatem religiosam tum ad cives tum ad coetus sociales tum ad potestates civiles tum ad Ecclesiam aliasque communitates religiosas spectat, modo unicuique proprio, pro eorum erga bonum commune officio’). 50 51

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ensure FoRB in the workplace without any discrimination,54 especially with regard to the international conventions stipulated under its aegis and the related recommendations addressed to its 187 Member States.55 The third essay, written by José Ramón Intxaurbe Vitorica (University of Deusto), examines the political and promotional work that the Council of Europe carries out in favour of FoRB ‘beyond the Strasbourg case law’56 to profess religious neutrality and, as a consequence, facilitate interfaith dialogue and strengthen mutual respect, tolerance and understanding in the 46 State parties.57 Finally, Part III closes with a contribution by Ruben Miranda Gonçalves (University of Las Palmas de Gran Canaria) that focuses on the activities of the OSCE,58 which has developed an extensive series of Commitments pertaining to FoRB, established the Office of Democratic Institutions and Human Rights’ Advisory Council and Advisory Panel and launched programmes to monitor legislation for the State parties.59

8 This Book as a Working Tool As mentioned, this volume on FoRB is a carefully selected collection of 16 specialist essays that are preceded and followed, respectively, by the co-editors’ introduction and conclusions, and where the contributors have taken a monographic and critical examination approach to the topic under investigation. It is thus a useful working tool for all those who, having an academic or professional interest in FoRB, must face the issue of the protection of this freedom. The volume is intended not only for academics who work in the fields of international law, constitutional law, private law, comparative law, the EU law and human rights, but also for legal practitioners (judges, lawyers, diplomats), human rights defenders, members of religious and belief communities, policy makers and, finally, students who, for study or research reasons, need to consult a monograph on FoRB. Generally, however, this volume is certainly intended for readers who wish to know more about this complex, fascinating and evolving issue, which represents a crucial test for

 Chapter “The International Labour Organisation and Freedom of Religious Belief”.  See Swepston (2013) and, on the relevant labour standards, C-111 Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and R-111 Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111). 56  Chapter “Promoting Diversity, Combating Hate Speech and Broadening Intercultural Dialogue: the Council of Europe’s Actions in Favour of Personal Beliefs”. 57  For instance, for the pro-diversity campaign ‘all different-all equal’, see Branders et al. (2016). 58  Chapter “The Organization for Security and Cooperation in Europe and the Promotion and Assistance to Member States in the field of Freedom of Religion and Belief”. 59  The ODIHR programme, for instance, which is in place since 1977, aims inter alia to review ‘legislation for governments, upon request, to help them bring their legislation in line with OSCE commitments and other international standards’ and to monitor ‘key developments affecting freedom of religion or belief in the OSCE area’. 54 55

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modern democracies and contemporary societies. Our hope is that this volume, considering its large potential readership, may contribute to the debate and to positive developments concerning this key (and still controversial) human right. In sending this volume to press, the co-editors wish to thank the contributors for the enthusiasm, commitment, and scholarly rigour—qualities that are clearly reflected in their essays—with which they participated in the project, each providing an essential piece of this detailed analysis of FoRB in the European context. The co-editors also wish to thank their publisher Springer-Verlag GmbH and all the Springer-Verlag staff who, since the proposal for this book was first approved, assisted us with great dedication.

References Adam R, Tizzano A (2020) Manuale di diritto dell’Unione europea, 3rd edn. Giappichelli, Torino Bielefeldt H, Ghanea N, Wiener M (eds) (2016) Freedom of religion or belief. An international law commentary. Oxford University Press, Oxford Branders P, Cardenas C, de Civente Abad J, Gomes R, Taylor M (2016) Education Pack “all different-­all equal” – Ideas, resources, methods, and activities for non-formal intercultural education with young people and adults, 3rd edn Cociña y Abella M (1980) El orden público como límite del derecho a la libertad religiosa Crawford J (2012) Brownlie’s principles of public international law, 8th edn. Oxford University Press, Oxford Green MC, Witte J Jr (2013) Religion. In: Shelton D (ed) The Oxford handbook of international human rights law. Oxford University Press, Oxford. 9 ff Gross Spiell H (1988) Estudios sobre Derechos Humanos II. Instituto Interamericano de Derechos Humanos, Madrid: Civitas [cited by Gómez Isa F. and Pureza F (2004) La protección internacional de los Derechos Humanos en los albores del siglo XXII, Bilbao: Universidad de Deusto] Joseph S, Schultz J, Castan M (eds) (2013) The international covenant on civil and political rights. Cases, materials and commentary, 3rd edn. Oxford University Press, Oxford Klabbers J (2015) An introduction to international organizations law, 2nd edn. Cambridge University Press, Cambridge Lock T (2019a) Article 10 CFR. Freedom of thought, conscience and religion. In: Kellerbauer M, Klamert M, Tomkin J (eds) The EU treaties and the charter of fundamental rights. A commentary. Oxford, Oxford University Press. 389 ff Pallarés P (2017) Una Introducción a la relación entre Jacques Maritain y algunos redactores nucleares de la Declaración Universal de los Derecho Humanos. Open Insight. Vol IX. Num. 15 Parra Vera O, Sijniensky RI, Pacheco Arias G (2017) La Lucha por los Derechos Humanos hoy Estudios en Homenaje a Cecilia Medina Quiroga. Valencia, Tirant Peces Barba G (1999) Derechos Fundamentales. Universidad Carlos III de Madrid, Madrid Polo Sabau (2012) Libertad de creencias y orden público en la Constitución. Foro Nueva época 15:213 ff Pustorino P (2023) Introduction to international human rights law. TMC Asser Press/Springer Rosas (2011) Is the EU a Human Rights Organisation?, CLEER Working Paper 2011/1, The Hague Saaroshi D (2005) International organizations and their exercise of sovereign powers. Oxford University Press, Oxford Schermers HG, Blokker NM (2011) International institutional law. Unity within diversity, 5th edn. Brill, Leiden – Boston Shaw M (2008) International law, 6th edn. Cambridge University Press, Cambridge

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Swepston L (2013) The International Labour Organization and international human rights system. In: Sheeran S, Rodley N (eds) Routledge handbook of international human rights law. Abingdon-New York, Routledge. 339 ff Temperman J, Gunn TJ, Evans M (eds) (2019) The European court of human rights and the freedom of religion or belief. Brill, Leiden-Boston Terré F. (2015) L’ordre public entre deux siècles, in Archives de philosophie du droit, 58, 194 ff Uitz R (2007) Freedom of Religion in European constitutional and international case law, Council of Europe, Strasbourg Walter C (2021) Religion or belief, freedom of, international protection. Max Planck Encyclopedia of Public International Law [MPEPIL] Zagrebelsky V, Chenal R, Tomasi L (eds) (2016) Manuale dei diritti fondamentaki in Europa, 2nd edn. Il Mulino, Bologna María del Ángel Iglesias Vázquez  is Professor Doctor of International Law and Human Rights since 1999. She is a member of the Royal Academy of Jurisprudence and Legislation (Spain), the Bar Association of Valencia and the Spanish Association of Professors of International Law and International Relations (AEPDIRI). She is the author of several publications (books, book chapters, reviews, forewords and papers) on human rights, the most recent with a special focus on the rights of indigenous peoples (and freedom of beliefs). She has actively participated in several research groups (among others on culture, religion and human rights, and global law) and she is currently the lead researcher (director) of the group ‘Relevance of the status and condition of indigenous peoples’. She has supervised several doctoral theses and has been a member of doctoral and master’s thesis tribunals. She has taught and lectured in several countries in Europe and America. In 2008 and 2019 she was a Visiting Scholar at the Lauterpacht Centre for International Law (University of Cambridge). Luca Paladini  is Senior Lecturer of European Union Law at the University for Foreigners of Siena (Unistrasi), and qualified as Associate Professor. He graduated in Political Sciences and specialised in EU Law at the University of Milan. He holds a PhD in EU Law from the University of Bologna. He was Jean Monnet Fellow (2008–2009) and then Visiting Fellow (2009–2011) at the European University Institute (Florence). His research interests include the EU external action, the human rights international protection, and the domestic legal order conformity with international law and the EU Law. Luca Paladini is a co-editor of an edited book, author of a book and about 50 contributions on EU Law and International Law. He is a member of the editorial team of the Legal Journals ‘DPCEonline’, ‘Giurisprudenza italiana’, ‘GenIUS’, and ‘Revista Hispanoamericana de derechos humanos’. Since 2022, he is the Unistrasi Rector’s Delegate for ‘students’ traineeships and job placement’.

Part I

The ECHR

Freedom of Thought, Conscience and Religion Under the European Convention on Human Rights: New Approaches Núria Reguart-Segarra and Victoria Camarero-Suárez

Abstract  Freedom of religion or belief is a core freedom that enshrines the capacity for individual self-determination of one’s own convictions by promoting an equal protection of all beliefs regardless of which their deepest origin is. The European Court of Human Rights has carried out a critical, indispensable task, with its lights and shadows, in the development and shaping of Article 9 of the European Convention and related provisions, particularly in the light of the overriding principle of equality and non-discrimination, which has been of special relevance in the acceptance and protection of the rights of religious minorities. This chapter examines the key issues in the debate and legitimacy around the configuration of freedom of religion or belief within the European human rights protection system, by providing new approaches from which to address it in times of human rights awareness, promotion and advocacy worldwide. Keywords  Freedom of religion or belief · Equality · Non-discrimination · Religious minorities · Margin of appreciation · Public order

1 Introduction The presence of religion and belief both in the public and private spheres has been a constant throughout the ages, with a huge social significance. Its progressive acknowledgment in society, along with the on-going growth in conflicts of both Núria Reguart-Segarra is the author of Sects. 2, 2.1, 2.2, 2.3, 3, 3.1 and 3.3.2. Victoria CamareroSuárez is the author of Sects. 3.2, 3.3 and 3.3.1. The authors have worked jointly on the introduction and concluding remarks. N. Reguart-Segarra (*) · V. Camarero-Suárez Universitat Jaume I, Castelló, Spain e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_2

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political and legal character, is a proven reality in advanced democracies, which are increasingly diverse and globalised. Moreover, the 21st century is witnessing a revaluation of the religious factor that is also reflecting in the legal sphere, where the cross-sectional study of law and religion is critical. At the European level, ever since the European Court of Human Rights (hereinafter ECtHR) decided on its very first case on religious freedom, the highly-quoted Kokkinakis v Greece case,1 judgments on Article 9 of the European Convention on Human Rights (hereinafter ECHR)2 have grown steadily due to the expanding impact of religion and related matters on socio-political reality,3 which is giving rise to an extensive case law that may, on some occasions, be deemed neither consistent nor robust,4 running the serious risk of ending up bowing to political opportunism.5 This chapter aims to analyse the key issues around freedom of thought, conscience and religion as enshrined in Article 9 ECHR from a new, original approach. Departing from the unquestionable relevance of recognising this core freedom under the European human rights system, its essential configuration derived from the Strasbourg case law will be examined, while placing a special focus on the broad concept of religion or belief that has so far been developed and on its actual scope of effective exercise. The principle of equality and non-discrimination that arises from the main provisions relating to this freedom and its implications on religious minorities will also be looked at, along with some insight into the doctrine of the margin of appreciation. This resource of the Court, while favouring pluralism over uniformity, may end up devouring freedom of religion if it is excessively used, which is why insurmountable ‘red lines’ must be determined. In this manner, this chapter provides new approaches from which to address this central freedom in times of human rights awareness, promotion and advocacy worldwide.

 Judgment of the ECtHR on the case of Kokkinakis v Greece (Application No. 14307/88), of 25 May 1993. 2  Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, its entry into force took place on 3 September 1953. Article 9 proclaims freedom of thought, conscience and religion and will be extensively commented on below. 3  See the Guide on Article 9 of the European Convention on Human Rights (2022), para 9. 4  See Evans (2019a), p. 31 and Martínez-Torrón (2013), p. 277. 5  See Camarero-Suárez and Zamora-Cabot (2015), p. 5. 1

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2 The Relevance of Recognising the Right to Freedom of Religion or Belief Under the European Convention 2.1 Institutional Origins There is broad agreement within comparative legal scholarship and jurisprudence on enshrining freedom of thought, conscience and religion —also referred to as freedom of religion or belief (FoRB) or, simply put, religious freedom— as the first and most radical freedom of all,6 both at a chronological level, as it was the first freedom to be socially claimed and institutionally recognised,7 and at an ontological level, as all the other freedoms emanate from it.8 While its historical origins in the European context date back to the French Revolution,9 it was not until the second half of the 20th century that the need for strong, thorough protection of this freedom was eventually made clear. The horrors of World War II and the economic, physical and spiritual devastation Europe was immersed in as a result of it promoted the emergence of organisations that advocated for the cooperation between the different states of the old continent.10 All of this culminated in the celebration of the so-called Congress of Europe, organised by the International Committee of the Movements for European Unity in 1948, which resulted in the establishment of the Council of Europe.11 One of its objectives was ‘to achieve a greater unity between its members’ so that the ideals and principles that are their common heritage could be safeguarded and realised, as well as to facilitate their economic and social progress.12 For this purpose, each Member State had to accept ‘the principles of the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental

 See Jellinek (1908), pp. 151 et seq.; Jemolo (1961), pp. 130–131; Prieto-Sanchís (2016), p. 54. The latter points out that, as this freedom allows each and every person to either choose or work out for themselves the answers to the most intriguing and fundamental questions in life, it has a logical previous character and enables the construction and shaping of the other human rights (ibid., p. 55). 7  It has long been said that the right to FoRB was the first to receive international legal treatment. See Corriente-Córdoba (1972), p. 122; García-Hervás (1997), p. 143; Souto-Paz (1999), p. 159. 8  See Souto-Paz (1999), p. 143. 9  The Declaration of the Rights of Man and of the Citizen set by France’s National Constituent Assembly on 26 August 1789 expressly recognised freedom of thought and religion. However, State confessionalism hindered the full applicability and enjoyment of this right until the Catholic Church promulgated the Declaration on Religious Freedom Dignitatis Humanae in 1965, by which European states started to acknowledge the right to FoRB of every individual, without abandoning their confessionalism. See generally Souto-Paz (1999), pp. 143–159. 10  See Hart (2010), pp. 534–535. For a comparative description of the historical origins of the three regional systems of human rights protection, see Huneeus and Madsen (2018), pp. 136–160. 11  See Martínez-Torrón (1986), p. 406. 12  Article 1(a) of the Statute of the Council of Europe, signed on 5 May 1949. 6

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freedoms’.13 Its first action was the preparation of its masterpiece:14 the European Convention for the Protection of Human Rights and Fundamental Freedoms.15 It represents the first actual treaty of human rights and was adopted as one of the first suitable measures for securing the collective guarantee of the rights enshrined in the Universal Declaration of Human Rights (hereinafter UDHR).16 More recently, it has been defined as the most effective human rights regime in the whole world.17 The official original text of the Convention envisaged two bodies in charge of guaranteeing the observance of the commitments made by Member States: the European Commission of Human Rights and the European Court of Human Rights.18 The former was responsible for deciding on either the admissibility of a claim, in which case it should first try to reach a friendly settlement between the two parties involved, or its inadmissibility, which could be justified through a brief explanation of the legal foundations of such decision.19 This is one of the reasons why the functions of the Commission have often been deemed quasi-judicial.20 From the 1980s, and as a result of the incorporation of new Member States and the increase in individual claims before the Commission, this structure proved untenable.21 Subsequently, Protocol No. 1122 introduced a series of substantive modifications, among which the complete disappearance of the Commission stood out, along with the possibility that individuals, groups of individuals and ONGs could directly file a claim against a Member State before the ECtHR. Thereafter, the Court has stood alone as the permanent monitoring body around which the whole control and guarantee system established by the Convention revolves.23 It should also be borne in mind that the two main features of the current system are exclusivity, which reflects on the fact that the Court’s jurisdiction extends to all issues related to the interpretation and application of the Convention and its  Ibid., Article 3.  See Leuprecht (1988), p. 71. 15  Its signature continues to be an unavoidable condition so as to adhere to the Council of Europe. See Valero-Estarellas (2022), p. 32. 16  See ECHR Preamble. 17  See Keller and Sweet (2008), p. 3. 18  See former Article 19 ECHR. 19  There were three reasons by virtue of which the Commission could deem inadmissible a petition: when it was considered as incompatible with the provisions of the Convention; manifestly ill-­ founded; or an abuse of the right of petition. These same motives can justify today that the Court declares inadmissible an individual application submitted under Article 34 ECHR, along with a fourth one: that the applicant has not suffered a significant disadvantage. See Evans (2001), p. 9. 20  See Navarro (1983), p. 797 and Martínez-Torrón (1994), p. 170. 21  See Motilla (2021), p. 4. 22  Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, signed in Strasbourg on 11 May 1994. 23  See Salado-Osuna (1994), p. 944. As every Member State of the Council of Europe is, at the same time, Party to the Convention system, it spreads its effects on a population of more than 800 million people. See Valero-Estarellas (2022), p. 32. 13 14

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Protocols,24 and subsidiarity, according to which States have to make sure that the rights and freedoms enshrined in the Convention are respected within their respective territories, by impeding or sanctioning violations at the domestic level,25 whose legislation remains as the main instrument for the protection of fundamental rights and freedoms.26 This principle arises from the conviction that national authorities and judicial bodies must be granted a certain margin of appreciation in these matters, as they are best placed to assess the particular circumstances of a case by contextualising them into its own historical, cultural and socio-political landscape, even more when deciding on the restriction of rights in conflicts around religion or belief.27 That is why the Court’s competence starts only when all judicial remedies at the national level have been exhausted and the human rights violation still persists. In the end, it is about harmonising Convention rights with Member States traditions.28

2.2 Key Provisions The core provision on freedom of religion or belief in the Convention lies in Article 9: ‘1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’. The first paragraph clearly follows the trail of Article 18 UDHR,29 while the second paragraph replicates the formula used in Article 18 of the International Covenant on Civil and Political Rights (hereinafter ICCPR),30 as well as in other  Article 32 ECHR.  See Salado-Osuna (1994), p. 945. 26  See Martínez-Torrón (1986), p. 413. 27  See generally Greer (2000), Arai-Takahashi (2002), Martín-Sánchez (2014) and Berry (2019). 28  See Motilla (2021), p. 7. 29  Article 18 UDHR: ‘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’. 30  Article 18 ICCPR (adopted by the UN General Assembly Resolution 2200A [XXI] of 16 December 1966, entered into force on 23 March 1976): ‘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. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a reli24 25

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provisions of the European Convention.31 Such a general, broad proclamation of the right to freedom of religion or belief is complemented with Article 2 of the First Protocol to the ECHR,32 which some conceived as a necessary requirement so that grave errors of the past could never be repeated again.33 The final wording of this Article is as follows: ‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’. Another provision that is directly linked34 to this fundamental human right is Article 14 ECHR, which proclaims the principle of equality and non-discrimination on religious grounds: ‘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’. All these provisions reflect centuries of struggle for the freedom of heterodoxy in the western world; ultimately, for the freedom of religious diversity. Based on the principle of equality, the ECHR protects with terminological diversity the freedom of thought, conscience and religion, meaning, the capacity for individual self-­ determination of one’s own worldview, whose origin can be philosophical, ideological, ethical, religious, and so on. It promotes an equal protection of all beliefs regardless of the origin of the personal sphere in which such beliefs or convictions are deeply held.35 In this vein, the UN Human Rights Committee emphasised, in its General Comment No. 22 on Article 18 ICCPR,36 the far-reaching and profound character of freedom of thought, conscience and religion, which encompasses gion or belief of his choice. 3. 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. 4. 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’. 31  See Articles 8, 10 and 11 ECHR. 32  Protocol to the ECHR, signed in Paris on 20 March 1952. 33  During the Second Session of the Consultative Assembly (see preparatory work, vol. 6, at 162), Maxwell-Fyfe strongly stood for this provision and reminded the drafters of ‘what we all know was a terrible aspect of totalitarianism, namely, that the youth of the country were brought up so much under the dogmatic teaching of totalitarianism by the agencies or para-agencies of the State that it was impossible for their parents to bring them up in their own religious and philosophic beliefs’. See Evans (2001), pp. 68–69. For a detailed description of the drafting of Article 9 ECHR and Article 2 of the First Protocol, see Evans (1997), pp. 262–280. 34  There are a number of other provisions that, albeit not directly connected to freedom of religion or belief, have been or could be used to protect different aspects of this freedom, such as Article 8 (right to respect for private and family life), Article 10 (freedom of expression), Article 11 (freedom of assembly or association) and Article 12 (right to marry). 35  See Souto-Paz (1999), pp. 256–257. 36  General Comment No. 22 on Article 18 ICCPR, adopted by the UN Human Rights Committee at its 48th session held on 30 July 1993 (CCPR/C/21/Rev.1/Add.4).

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‘freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. […] The freedom of thought and the freedom of conscience are protected equally with the freedom of religion or belief’.37 The European Court of Human Rights has repeatedly stressed that one of the foundations of a democratic society lies in freedom of thought, conscience and religion.38 While today there is major agreement on the fact that the different naming with which this right is often enshrined in both international and domestic legal instruments39 does not aim at protecting three different freedoms, but rather, a single freedom on the same content40—one’s own personal convictions—the existence of three dimensions, with their own, singular object, which can be extracted from the legal configuration of this human right cannot be overlooked. First, it must be borne in mind that freedom of thought refers to the right each and every person has to possess their own ideas, concepts and judgments on the different realities regarding the world and life, meaning, a personal, free worldview. This freedom, which is recognised as one of three distinct, but equal rights within the right to freedom of thought, conscience and religion,41 concerns, just like the other two, a dimension of human beings that finds its deepest origin in their own inner self. More precisely, it guarantees the elaboration and conclusion of one’s own answers to the different manifestations of life42 and protects not only religious matters, but also political, scientific and philosophical thought. Despite its obvious significance for our very nature as rational beings, this right has not received enough attention in jurisprudence, legislation and scholarship,43 mainly because conflicts around it tend to be analysed under the umbrella of other human rights, such as

 Ibid., para 1.  See Kokkinakis v Greece, para 31. See also the judgment of the ECtHR on the case of Buscarini and others v San Marino (Application No. 24645/94), of 18 February 1999, para 34. 39  For instance, Article 16.1 of the Spanish Constitution of 1978 guarantees ‘freedom of ideology, religion and worship’, while its second paragraph refers to ‘religion, beliefs or ideologies’. 40  See Martínez-Torrón (1995), pp. 239–240; González-del-Valle (1997), p. 325; Souto-Paz (1999), p.  158; Llamazares-Fernández (2001), pp.  276–277; Polo-Sabau (2014), p.  60; Alenda-Salinas (2015), pp.  26–28. In opposition to this approach, see Lombardía and Fornés (1996), p.  62; Hervada (1994), p. 100; Viladrich (1982), p. 52. 41  See the Interim Report of the Special Rapporteur on Freedom of Religion or Belief (hereinafter SRFORB), Ahmed Shaheed, on Freedom of Thought, submitted to the UN General Assembly at the 76th session (A/76/380, of 5 October 2021), at 1. 42  See Souto-Paz (1999), p. 102. 43  See the SRFORB Interim Report on Freedom of Thought, at 3–4. 37 38

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freedom of expression,44 inter alia.45 However, it should be underscored that freedom of thought extends well beyond religion or belief-based thought.46 In its religious dimension, freedom of thought, conscience and religion is ‘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’,47 inasmuch as it protects theistic, non-theistic and atheistic beliefs, along with the right not to profess any religion or belief.48 Therefore, freedom of religion mainly comprises an act of faith, regardless of the positive, negative or neutral character of such a personal choice, i.e. it encompasses all attitudes individuals can adopt as regards the place of religion in their own lives. In its positive side, its object is constituted by the practice of one’s faith in all its manifestations, which can be individual, associated or even institutional, both in the public and private spheres, through preaching, worship, teaching and observance.49 At the same time, the right to profess religious or non-religious beliefs involves the right to freely declare and manifest them, along with the freedom not to be coerced to do so, which is also known as immunity from coercion.50 Lastly, freedom of conscience is generally understood as the freedom to act in accordance with one’s own moral judgment.51 It reflects the harmony between what individuals internally believe in and what they externally manifest. The internal facet of this freedom regards an essentially personal phenomenon by which persons construct their highest moral standards of behaviour without illegitimate  It should be noted that freedom of thought differs from freedom of expression in that while the former is absolute, the latter can be limited. However, the distinction is not always clear. For instance, and unlike the European Convention, the American Convention on Human Rights enshrines, on the one hand, in its Article 12, ‘freedom of conscience and religion’, and, on the other hand, in its Article 13, ‘freedom of thought and expression’. See the Pact of San José, Costa Rica, adopted on 22 November 1969 (entered into force on 18 July 1978). 45  An illustrative example of this can be found in the judgment of the ECtHR on the case of Riera Blume and others v Spain (Application No. 37680/97), of 14 October 1999, in which the Court decided not to analyse separately the possible violation of Article 9 ECHR, in its freedom of thought dimension, since the facts had already been examined under Article 5 ECHR, regarding the right to liberty and security. 46  For instance, the ECtHR has considered the parents’ wish to choose their child’s name as a thought in the sense of Article 9 ECHR (judgment of the ECtHR on the case of Salonen v Finland [Application No. 27868/95], of 2 July 1997). The SRFORB has recently mapped four possible attributes of the right, which comprises: (a) freedom not to reveal one’s thoughts; (b) freedom from punishment and/or sanctions for one’s thoughts, real or inferred; (c) protection from impermissible alteration of one’s thoughts; and (d) States promotion of an enabling environment for freedom of thought. For detailed information, see the SRFORB Interim Report on Freedom of Thought, at 25–47. 47  See the most quoted extract of the ECtHR case law on religious freedom in Kokkinakis v Greece, para 31. On the perils of excessively relying on this mantra, see Evans (2019b), pp. 33–54. 48  General Comment No. 22 on Article 18 ICCPR, para 2. 49  See Viladrich and Ferrer-Ortiz (1996), p. 129. 50  See Souto-Paz (1993), p. 89. 51  See Hervada and Zumaquero (1978), p. 148. 44

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intromissions.52 There is no stricter rule than that of one’s own conscience. As such, the right to conform to one’s conscience represents the logical presupposition of freedom of thought and freedom of religion in the individual sphere, as their choice must result from a free, conscient decision.53 Hence, freedom of thought and freedom of religion are the most characteristic specificities of freedom of conscience, as they represent the point of arrival of the freely formed conscience.54 This is the first level of personal autonomy that guarantees the creation of ideas or beliefs. Once this has been completed, individuals have the right to act in accordance with it and to be immune from coercion. Furthermore, in its omissive side, this freedom implies the refusal to obey those legal mandates that are considered contrary to one’s own conscience, meaning, the right to conscientious objection.55 Considering the above, freedom of thought, conscience and religion stands as a right of liberty with different dimensions, of which a few generic manifestations need to be pointed out: the freedom to believe; to choose the object of one’s own beliefs; to form groups inspired by such beliefs; and to exteriorise them through personal and collective conduct, including through dissemination and proselytism. In other words, it is the freedom of individuals and groups to act accordingly; a conclusion that the ECtHR also reaches.56

2.3 The Prevalence of Personal Autonomy The rationale behind the comprehensive legal framework and special protection freedom of religion or belief nowadays enjoys can be varied. According to Carolyn Evans (2001), an instrumental argument for protecting religious freedom is that of tolerance in religious matters to achieve another important end. However, this reasoning suggests that what is being tolerated is thought of as undesirable, improper or wrong.57 Another argument focuses on the history of religious persecution and oppression in Europe, which helps to understand why religious freedom has been recognised in virtually all human rights treaties. Nevertheless, it does not provide an explanation as to why individuals must also enjoy a positive right to religious freedom or why one cannot be discriminated against based on the exercise of their freedom of religion or belief.58 There are also several religious and theological  See Souto-Paz (1999), p. 298. See generally Llamazares-Fernández (1997–1999).  See Martín-Sánchez (1999), p. 451. See also generally the reference work of Navarro-Valls and Martínez-Torrón (2012), pp. 29–39; and Martínez-Torrón (2001), pp. 122 et seqq. 54  See Bellini (1989), p. 95. 55  See Martín-Sánchez (2001), pp. 14–16. In this regard, see generally Navarro-Valls and Martínez-­ Torrón (2012), Llamazares-Fernández (2013), Martínez-Torrón (2014) and Smet (2019). See also Bertolino (1967), pp. 8 et seqq., and Castro-Jover (1998), p. 136. 56  See Camarero-Suárez (2012), p. 111, note 9. 57  See Smith (1990), pp. 305–306. 58  See Evans (2001), pp. 22–25. 52 53

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arguments that, while departing from the assumption that one’s religion constitutes the absolute truth, are more or less prone to religious freedom.59 In all the arguments mentioned above, there is something missing to fully justify the need for legally protecting freedom of religion or belief in today’s societies. There is, however, one last reasoning—with which the authors identify—that seems to be widely understood as the most accurate one, which takes as its point of departure the personal autonomy argument,60 i.e. that this freedom is ‘an essential and independent component of treating human beings as autonomous persons deserving of dignity and respect’.61 This theory upholds that a society that treats individuals this way is in turn committed, to a larger or lesser extent, to pluralism, which enables people to choose their own beliefs, whether religious or not, and practise them in a community that respects and protects them because they symbolise a free personal choice. At the same time, this theory also explains why States cannot interfere in citizens’ religious freedom without strong reason, as such conduct would be incompatible with the respect they are worthy of because of their very nature as human beings—nothing more, nothing less. All in all, this argument places religious freedom in a more general political and moral philosophy, while disassociating it from a particular religious viewpoint, which is in line with the ideals of the Convention.62 One of the most notable criticism the ECtHR has tended to receive, as far as religious freedom is concerned, is that its vast case law lacks consistency. Some authors have attributed this acute deficiency to the lack of a clear standard of protection. That is why the personal autonomy argument appears as the most suitable approach from which the Court should interpret Article 963 and has the potential to create an adequate framework in which it is able to trace a coherent line of case law on this primary human right.64 The Court’s shaping of this freedom up until the present time will be carefully analysed in the following section.

 Ibid., pp. 25–28.  See generally Raz (1986). See also Brownstein (1990), p.  95; Lombardía and Fornés (1996), p. 61; Martínez-Torrón (2001), p. 126; Greenawalt (2006), pp. 3–4; Berger (2007), p. 291. 61  See Evans (2001), p. 29. 62  Ibid., pp. 29–33. 63  In this vein, some argue that the Strasbourg case law has been progressively leaning towards reinforcing the principle of personal autonomy guaranteed in Article 8 ECHR. Such principle has come to be considered as pivotal in the framework of the European Convention system of rights and freedoms. See Motilla (2012), p. 191; Camarero-Suárez (2012), p. 118. However, the agreement on this positioning is not unanimous. Dr. Farrah Ahmed has asserted that the existing tensions between the autonomy argument and religious belief, practice and proselytism prove that, while it is an ‘attractive rationale’, it does not support the wide range of protection liberal States currently offer to this freedom. See generally Ahmed (2017), pp. 238–262. 64  See generally Kiviorg (2009). 59 60

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3 Its Shaping Through the Case Law of the European Court of Human Rights First, it should be noted that, in the early years of operation of the ECHR institutions, cases on personal beliefs were generally not paid the attention they deserved, in accordance with the late evolution, from the mid-20th century, towards the promotion of individual rights, connected with a more equalitarian consideration of persons.65 The Commission tended to exclude from consideration a wide range of cases on purely jurisdictional grounds, such as the victim’s failure to exhaust domestic remedies or the respondent’s lack of Member State status. Other applications were dismissed because they were deemed manifestly ill-founded, although this argument is said to have been frequently used to prevent the Court from examining cases which seemed to be too controversial.66 In the only one case it decided in relation to Article 9, the violation of such provision was brought up as a secondary issue and did not require a thorough analysis by the Court.67 Not without reason was it thought to end up being a dead letter.68 The turning point was represented by the Kokkinakis case, in which the Court, for the first time in its history, condemned a Member State for an Article 9 ECHR violation. From then on, cases on freedom of thought, conscience and religion decided by the ECtHR have multiplied exponentially, which can be mainly due to two different factors: on the one hand, due to the fact that today’s societies are becoming increasingly multicultural, which in turn leads to an evident rise in the diversity of personal beliefs and convictions that need to live together with one another; on the other hand, the gap left by the fall of communists systems has enabled the return to traditional values in Eastern Europe, which has resulted in a greater prominence of religion in public life.69 Be that as it may, the Court’s task of shaping this fundamental right through its already vast case law has not been straightforward, as evidenced by the fact that it has encountered difficulty in establishing a coherent line of jurisprudence in this regard. In the following subsections, a thorough look will be taken at the essential content of the right to religious freedom, ranging from the concept of religion and belief itself to this right’s twofold dimensions that reflect in the freedom to choose a religion or belief and the freedom to manifest it, both in private and in public, and individually or in community, along with the restrictions it may be subjected to. As regards its holders, a special focus will be placed on religious minorities as the most  See Martínez-Torrón (1995), p. 233.  See Evans (2019a), pp. 16–18. 67  Judgment of the ECtHR on the case of Johnston and others v Ireland (Application No. 9697/82), of 18 December 1986. 68  Evans (2010–2011), p. 321. 69  See Motilla (2021), p. 8. In this regard, Martínez-Torrón (2001, p. 102) appreciates that the massive incorporation of post-communist States to the ECHR system might have created the need for the Court to more carefully define the content and limitations of this right. 65 66

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disadvantaged groups in the European human rights system and the problems they still have to face, which may in turn collide with the principle of equality and non-­ discrimination enshrined in Article 14 ECHR.

3.1 The Broad Concept of Religion and Belief Following the trend of international bodies, neither the Court nor the today-extinct Commission have precisely defined the concept of religion and belief.70 Neither have they determined the meaning of critical expressions such as ‘religious ­symbols’ or ‘public space’, which has resulted in a number of possible interpretations that would need to be analysed on a case-by-case basis.71 Nevertheless, what they have indeed developed is a wide, inclusive notion of what religion and belief should mean for Article 9 ECHR purposes,72 which equally protects both religious and non-­ religious beliefs.73 It has also been described as ‘a precious asset’ not only for believers, but also for atheists, agnostics, sceptics and the unconcerned, as has already been pointed out. What should be understood by religion seems to leave little room for doubt in the European context, where this notion draws on our Judeo-Christian legacy, with all the problems this can lead to in the case of new or unconventional religious groups.74 Nonetheless, as this provision is aimed at safeguarding both religion and belief, on an equal footing, the Court has applied it not only to major and long-established denominations,75 but also to new or relatively new religions or spiritual practices,

 Engaging in this task would be extremely difficult, as such definition would need to be flexible enough to cover the whole spectrum of religions all around the world and specific enough to apply to particular cases (see Guide on Article 9 ECHR, note 3, para 14). 71  See Camarero-Suárez (2012), p. 76, note 126. 72  See Evans (2019a), p. 15. 73  Judgment of the ECtHR on the case of Leela Förderkreis E.V. and others v Germany (Application No. 58911/00), of 6 November 2008, para 81. 74  See Martínez-Torrón (1997), p. 1552; ibid. (2019), p. 58. This has been the case of the Church of Scientology, which has traditionally encountered a number of impediments at the domestic level that have been brought before the ECHR institutions: X. and Church of Scientology v Sweden (Application No. 7805/77), Commission Decision of 5 May 1979; Scientology Kirche Deutschland v Germany (Application No. 34476/97), Commission Decision of 7 April 1997; judgment of the ECtHR on the cases of Church of Scientology of Moscow v Russia (Application No. 18147/02), of 5 April 2007; and Church of Scientology of St Petersburg and Others v Russia (Application No. 47191/06), of 2 October 2014. 75  For instance, see judgments of the ECtHR on the cases of Jakóbski v Poland (Application No. 18429/06), of 7 December 2010; Francesco Sessa v Italy (Application No. 28790/08), of 24 April 2012; Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v Turkey (Application No. 32093/10), of 2 December 2014; Genov v Bulgaria (Application No. 40524/08), of 23 March 2017; Metodiev and Others v Bulgaria (Application No. 58088/08), of 15 June 2017. 70

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such as the Unification Church, Mormonism or the Jehovah’s Witnesses,76 and to a number of coherent and sincerely-held philosophical beliefs, including pacifism, veganism or secularism,77 regardless of the official recognition they might enjoy in the respondent State.78 The key is that such beliefs play an axiological function comparable to the one religion plays in believers’ lives, that is, that they represent their highest standards of behaviour.79 When the Court had the chance to deepen into the scope of non-religious/spiritual beliefs or convictions as enshrined in Article 2 of the First Protocol to the Convention, which explicitly refers to the right of parents to choose their children’s education and teaching in accordance with their own religious and philosophical convictions, it stressed that the term ‘convictions’ used in such provision was very close to the ‘beliefs’ protected by Article 9,80 all of which generally allude to ‘views that attain a certain level of cogency, seriousness, cohesion and importance’.81 Moreover, it cannot be understood as synonymous with the words ‘opinions’ and ‘ideas’ that are enshrined in Article 10 of the Convention,82 which consequently enjoy a weaker protection than that granted to religion and belief in Article 9, as their manifestations are not expressly recognised. This now well-established test has proven to be critical for elucidating whether a belief or conviction is worthy of protection under the Convention or not.83  See, respectively, judgments of the ECtHR on the cases of Boychev and Others v Bulgaria (Application No. 77185/01), of 27 January 2011; The Church of Jesus Christ of Latter-Day Saints v the United Kingdom (Application No. 7552/09), of 4 March 2014; Jehovah’s Witnesses of Moscow and Others v Russia (Application No. 302/02), of 10 June 2010; Anderlecht Christian Assembly of Jehovah’s Witnesses and Others v Belgium (Application No. 20165/20), of 5 April 2022. 77  See Arrowsmith v the United Kingdom (Application No. 7050/75), Commission report of 12 October 1978; W. v the United Kingdom (Application No. 18187/91), Commission Decision of 10 February 1993; judgments of the ECtHR on the cases of Lautsi and Others v Italy [GC] (Application No. 30814/06), of 18 March 2011; and Hamidović v Bosnia and Herzegovina (Application No. 57792/15), of 5 December 2017. 78  See the judgment of the ECtHR on the case of Mockutė v Lithuania (Application No. 66490/09), of 27 February 2018, para 119. In this regard, Evans (1997, pp. 290–292) notes that if one’s religious beliefs can be placed within the boundaries of an ‘accepted form of religious belief’, it will be easier for the Court to consider they fall under the scope of protection of Article 9. In the case of non-religious beliefs, they are also more likely to be accepted as protected by this provision if such beliefs emanate from a ‘well-established school of thought’. 79  See Martínez-Torrón (1995), pp. 241–244. 80  In fact, the French official version of the Convention refers to religion ou conviction. 81  Judgment of the ECtHR on the case of Campbell and Cosans v United Kingdom (Application No. 7511/76 and 7743/76), of 25 February 1982, para 36; Eweida and others v United Kingdom (Application Nos. 48,420/10, 59,842/10, 51,671/10 and 36,516/10), of 15 January 2013, para 81. 82  Article 10 ECHR: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers […]’. 83  See Evans (2019a), p. 16. See also the judgment of the ECtHR on the case of De Wilde v the Netherlands (Application No. 9476/19), of 9 November 2021, in which the failure to meet the requirements mentioned above prompted the Court to reject the application of Article 9 to 76

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3.2 The Actual Scope of Effective Exercise When looking into freedom of thought, conscience and religion, the core distinction that needs to be made is that between its forum internum and its forum externum. The former comprises the freedom to choose or deeply hold one’s own beliefs or convictions, as well as the freedom to change them84 or simply not to have any. This freedom is incoercible and, thus, represents an absolute right that cannot be subject to restrictions or State interference.85 On the other hand, the latter alludes to the freedom to manifest such innerly chosen beliefs or convictions through four external ways: worship, teaching, practice and observance. This list of manifestations is not intended to circumscribe this freedom, but, rather, the four selected terms were used to try to cover the widest spectrum possible of manifestations of religion and beliefs.86 Moreover, it is through this outer dimension that this freedom gets to be inserted in the legal realm, as the merely holding of beliefs cannot be captured by law.87 Unlike the freedom of choice, the forum externum of this right might indeed be subject to the limitations provided for in Article 9.2 ECHR, which must consequently be ‘prescribed by law’, pursue a ‘legitimate aim’ and be deemed ‘necessary in a democratic society’.88 The control exercised by the Court over a prima facie neutral law is specified in the analysis of the possible existence of a social need that can be considered as a justification on the basis of which the general rule yields to religious freedom.89 The legitimate aims that can justify an interference with an individual’s right to freedom of religion or belief are the protection of public order, health or morals, or the protection of the rights and freedoms of others.

Pastafarianism, a social movement whose divinity is the ‘Flying Spaghetti Monster’ that started as a parody and now allegedly promotes a light-hearted view of religion. 84  It has been described, from a secular and western-legal viewpoint, as the most relevant manifestation of this right and one of the essential elements of its content. See García-Ruiz (2017), p. 108. 85  See the judgment of the ECtHR on the case of Ivanova v Bulgaria (Application No. 52435/99), of 12 April 2007, at 79, where the Court asserts that the State cannot interfere with an individual’s forum internum by taking coercive measures to change their beliefs. 86  See the 1960 Study of Discrimination in the matter of Religious Rights and Practices (E/CN.4/ Sub.2/200/Rev.1), by Arcot Krishnaswami, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, at 17. 87  See Souto-Paz (2004), p. 345. 88  To determine whether there has been a breach of Article 9, the Court has developed a test which consists of addressing five question in turn. Prior to the three requirements mentioned above, the Court will have to elucidate whether the complaint falls within the scope of Article 9 and whether there has been an interference with this provision rights. Only when these two questions are answered in the affirmative can it go on to examine whether the three other requirements have been satisfied (see Hill and Barnes [2019], p. 83), the third one being the most critical and the most difficult to determine in the particular case (see Martínez-Torrón [2019], p. 62). 89  See the judgment of the ECtHR on the case of Sofianopoulos and Others v Greece (Application Nos. 1977/02, 1988/02 and 1997/02), of 12 December 2002.

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On public order, the Court has been sensitive to the considerations linked to it.90 However, the guarantee of public order, including public security that is part of it, cannot justify just any restriction on the enshrined rights and freedoms. A balance must be ensured between the different requirements under the supervision of the judiciary, which is the guarantor of the constitutionality and legality of every action. With that in mind, the requirements to be considered are the following. First, restrictions on rights and freedoms must be based on the existence of disruptions of public order or on a sufficiently strong probability that such disruptions will occur. This is why jurisprudence has tended to be reluctant to consider that a virtual or unproven risk—such as the principle of caution—may justify a prohibition, which means that the existence of a real and serious threat that affects a fundamental interest of society is required.91 A second judicial requirement is that the infringement of the rights and freedoms that the measures entail must be proportionate and reduced to what is necessary for the preservation of public order, that is, such measures must not be excessive in their material, personal and geographical scope of application nor in their effects. The ECtHR has examined whether the interference by public authorities with protected rights and freedoms is not proportionate in view of the imperatives of public order listed in the Convention. In this regard, it should be noted that the Court does a very valuable job by clearing the way for reflection processes on a core of complex problems.92 The protection of the rights and freedoms of others as a legitimate aim that can justify a restriction on a religious practice allows the State to limit a manifestation of a religion—for instance, regarding religious clothing—if the exercise of such freedom conditions the aim of protecting the rights and freedoms of third parties. It is assumed that the ECtHR case law does not clearly define what the ‘rights and freedoms of others’ could comprise beyond the scope of the rights and freedoms provided for by the Convention.93 Nevertheless, and making an extensive interpretation of this clause, it has not prevented the Court from defending nebulous elements integrated in it such as the vivre ensemble, or living together, as an element embedded in the protection of the rights and freedoms of others,94 at the expense of the voluntary practice of religious clothing and of what has been defended as the existence of an individual right to freedom from society—the freedom to live outside of it—, the acceptance of which underscores a high and very desirable degree of maturity in a democratic society.

 For instance, see the judgment of the ECtHR on the case of Ahmet Arslan and Others v Turkey (Application No. 41135/98), of 23 February 2010. 91  See Camarero-Suárez (2012), pp. 65–68. 92  As a landmark decision on the treatment of religious freedom in its case law, see the judgment of the ECtHR on the case of S.A.S. v France (Application No. 43835/11), of 1 July 2014. 93  See S.A.S. v France, Joint partly dissenting opinion of Judges Nusserber and Jäderblom, para 4 and 5. 94  See S.A.S. v France, para 121. See also generally Camarero-Suárez and Zamora-Cabot (2015). 90

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The above is a closed enumeration of the legitimate aims limitations on this right must pursue if they are to be considered compatible with the Convention.95 As such, this exhaustive list of legitimate aims must be interpreted restrictively, that is, always trying to grant the greatest possible degree of freedom, with few, justified exceptions. When the Court is asked to determine whether measures taken at a domestic level are justified in principle and proportionate, the burden is on national authorities, who must prove that no other measures could have been taken to achieve the same end that would have interfered less seriously with the fundamental right in question.96 Thus, any valid interference must respond to a ‘pressing social need’.97 As for the requirement of proportionality, the Court may grant the State a certain margin of appreciation in the evaluation of the existence and extent of the need for that interference, which appears as a necessary consequence of the subsidiarity inherent to the Convention mechanism.98 Another difference worth noting is that while the absolute freedom of choice regards ‘thought, conscience and religion’, the freedom to manifest only covers ‘religion or beliefs’, which is an indication that ‘thought’ and ‘conscience’ can be ‘expressed’, but not ‘manifested’ for Article 9 purposes.99 However, not every act that is somehow inspired, motivated or influenced by religion or belief represents a manifestation of it.100 This consideration is only applicable to acts closely linked to such religion or belief, depending on the particular circumstances of each case, without it being necessary for applicants to prove that by performing such acts they were fulfilling a duty mandated by their creed.101 On the holders of this right and its scope of action, it should be stressed that it can be exercised either individually or in community with others, in private or in public. This latter reference neither puts in place an exclusionary alternative nor leaves public authorities a real choice. Rather, it merely states that this right can be exercised in either way,102 which implies that, irrespective of the model of Church-State relations governing a particular State, its citizens should be able to exercise their freedom of religion in public, if they wished to do so. Hence, the freedom to manifest one’s religion or beliefs also has a negative side, as it comprises the right not to

 See judgments of the ECtHR on the cases of Svyato-Mykhaylivska Parafiya v Ukraine (Application No. 77703/01), of 14 June 2007, para 132; and S.A.S. v France, para 113. 96  See judgment of the ECtHR on the case of Biblical Centre of the Chuvash Republic v Russia (Application No. 33203/08), of 12 June 2014, para 58. 97  See judgments of the ECtHR on the cases of Wingrove v United Kingdom (Application No. 17419/90), of 25 November 1996, para 53; and Bayatyan v Armenia (Application No. 23459/03), of 7 July 2011, para 123. 98  See Guide on Article 9 ECHR, note 3, para 47. 99  See Evans (1997), p. 285. 100  See Arrowsmith v the United Kingdom, para 71. 101  See Eweida and others v United Kingdom, para 82; S.A.S. v France, para 55. 102  X. v United Kingdom (Application No. 8160/78), Commission Decision of 12 March 1981, para 34. 95

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practise or manifest them, along with the right to keep them private.103 Moreover, while its individual or personal sphere comprises various rights, among which the right to act and operate in accordance with one’s own beliefs stands out, the collective facet of this freedom reflects in the rights of association, assembly and demonstration every individual is holder of so that they can group with others on the grounds of their personal beliefs,104 which appears as a fundamental complement of the individual facet of this right that prevents religious freedom from ending up devoid of substance. In the case of some religions, this collective dimension has resulted in a third institutional category, especially in States that have traditionally subscribed treaties with the major denominations to regulate their formal relations. However, on too many occasions, the conception of what should be understood by ‘religious denomination’ has been restricted by the traditional concept established in western cultures and, consequently, the right to freedom of religion or belief in its collective dimension has only been attributed to a few groups that fitted under such conception.105 In any event, rather than representing mere associations, they are clearly a specific type of organised structures which is considered as vital to make up believers’ identity and their conception of life.106 The rules by which they abide tend to be seen as having a divine origin and rigorously govern their community life. That is why they must enjoy a high degree of organisational and functional autonomy at internal level, free from arbitrary State interference. Consequently, they possess a wide range of rights, such as the right to self-organisation, to appoint their leaders, to obtain legal status, to define religious doctrines, to determine who is qualified to teach their doctrine on their behalf, inter alia.107 In this vein, it should be outlined that Article 9 must be interpreted in the light of Article 11108 when the organisation of a religious community is at issue, since it represents the conventional foundation of the protection of religious freedom’s collective and associative dimension.109 All in all, the Court has acknowledged that the organisational life of religious institutions is a core issue in the protection granted by Article 9, to the extent that if  This is clearly linked to Article 8 ECHR. See Martínez-Torrón (2019), p. 66.  See Alenda-Salinas (2015), p. 30. 105  See Ibán-Pérez (1985), p. 355. 106  See judgment of the ECtHR on the case Krupko and others v Russia (Application No. 26587/07), of 26 June 2014, para 47. 107  See Martínez-Torrón (2019), p. 69. As part of the internal autonomy of religious communities, the Court has recognised that they can legitimately exercise their freedom of religion on situations where they engage in regulated activities such as employment, even in jobs not directly related to religious activities (see McCrea [2010], pp. 130–135). See also Rommelfanger v Federal Republic of Germany (Application No. 12242/86), Commission Decision of 6 September 1989, and the Jugdment of the ECtHR on the case Siebenhaar v Germany (Application No. 18136/92), of 3 February 2011. 108  Article 11 ECHR: ‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests […]’. 109  See Valero-Estarellas (2022), pp. 36 and 48. 103 104

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it was not protected by this provision, ‘all other aspects of the individual’s freedom of religion would become vulnerable’.110 In point of fact, even trying to establish a distinction between the religious freedom of a church and that of its members is ‘essentially artificial’, since when a religious body files a claim under the Convention, it clearly does so on behalf of its members.111 Hence, religious groups need to see their Article 9 rights recognised in any situation, even when they constitute a ­religious minority or when they defend moral values that are at odds with those widely held by mainstream society.112 This latter aspect is a logical consequence of the principle of equality and non-discrimination derived from Article 14 ECHR, which appears as the most suitable tool to achieve that minority religious groups’ rights are not violated for the benefit of major denominations’ rights and can thus freely exercise their freedom of religion or belief. The keys around the respect to this principle in the European context will be addressed below.

3.3 The Principle of Equality and Non-Discrimination It has already been stated that Article 14 ECHR is closely connected with the protection of freedom of religion or belief, inasmuch as it proclaims the principle of equality and non-discrimination on religious grounds.113 Indeed, not only can freedom of religion or belief suffer a violation in itself, but it can also be violated through the principle of equality and non-discrimination. Early jurisprudence already underscored the eminently complementary character of Article 14,114 which cannot be invoked separately from other provisions. However, it can certainly give rise to an indirect violation of rights enshrined in other articles that otherwise could not be considered infringed upon, if they were to be considered in isolation. This is a result of its nature as principle—not right—which places a duty upon States to recognise and guarantee individuals the effective exercise of their human rights on equal terms and conditions. At the same time, it should be borne in mind that equality is understood, for Article 14 purposes, as equivalent with non-discrimination, which means that different legal treatment can be compatible with the Convention  See judgment of the ECtHR on the case Hasan and Chaush v Bulgaria (Application No. 30985/96), of 26 October 2000, para 62. 111  X. and Church of Scientiology v Sweden (Application No. 7805/77), Commission Decision of 5 May 1979, p. 70. See also the judgments of the ECtHR on the cases of Cha’are Shalon Ve Tsedek v France (Application No. 27417/95), of 27 June 2000, at 72, and Leela Förderkreis E.V. v Germany, at 79. 112  See Martínez-Torrón (2001), p. 103. 113  In this regard, Dinstein (1992, p.  164) has pointed to the ‘complex relationship’ freedom of religion or belief has with the general non-discrimination rule in the exercise of human rights. 114  The European Commission of Human Rights stated, in its Decision of 23 July 1968, that there can be a violation of a guaranteed right or freedom as proclaimed by the relevant Article read in conjunction with Article 14, ‘as though the latter formed an integral part of each of the Articles laying down rights and freedoms’ (see sect. I.B, at 9). See generally Arnadóttir (2003). 110

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mechanism as long as it does not amount to discrimination. The concept of equality is thus different from the concept of uniformity, which is alien to the Convention.115 A difference in treatment will only be deemed discriminatory if it has ‘no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ and if there is no ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.116 In this vein, the Court has admitted that States can engage in cooperation agreements with specific churches, insofar as there is an objective and reasonable justification for the special treatment and similar arrangements can be concluded with other denominations that wish to do so.117 Therefore, the principle of equality is rigorously applied in connection with freedom of religion or belief, but it is not necessarily applicable to cooperation. This is in turn an indication that Articles 9 and 14 ECHR are not intended to dictate the type of relations States should have with religious denominations, not least to establish a forced secularism in Europe, which would exceed the scope of action of the Convention mechanism.118 What they are certainly aimed at is securing the effective exercise of freedom of religion or belief by all individuals and groups and prohibiting any discriminatory difference in treatment on these grounds. 3.3.1 The Margin of Appreciation Doctrine The ECtHR case law has clearly evoked the State duty to promote mutual tolerance between opposing groups, taking into consideration the sociological and legal specificities of each particular State. In this vein, the margin of appreciation given to each State is deemed a notion of fluid contours, whose greater development in scholarship and jurisprudence enables to make some mere general reflections. It is assumed that the authorities of each State must be granted a considerable margin of appreciation to take account of the need for certain restrictions on freedoms adopted

 See Martínez-Torrón (1997), pp.  1574–1575; Gutiérrez-del-Moral and Cañivano-Salvador (2003), pp. 96–97. 116  See the judgments of the ECtHR on the cases of Darby v Sweden (Application No. 11581/85), of 24 September 1990; Oršuš and Others v Croatia (Application No. 15766/03), of 16 March 2010, para 156, among others. 117  See the Decision of the ECtHR on the case of Alujer Fernández and Caballero García v Spain (Application No. 53072/99), of 14 June 2001; and its judgment on the case of Savez crkava “Riječ života” and Others v Croatia (Application No. 7798/08), of 9 December 2010. 118  See Martínez-Torrón (2001), pp. 103–104. The author has stated in this regard that ‘the state’s attitude towards religion is primarily a matter of political choice’ (2019, p.  58). See also the enlightening Concurring opinion of Judge Bonello to Lautsi v Italy (at 2.5): ‘Freedom of religion is not secularism. Freedom of religion is not the separation of Church and State. Freedom of religion is not religious equidistance – all seductive notions, but of which no one has so far appointed this Court to be the custodian. In Europe, secularism is optional, freedom of religion is not’. See generally Parejo-Guzmán (2010). 115

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by virtue of limit-concepts authorised by the Convention, particularly Articles 8 to 11.119 As an analytical instrument that is linked to many provisions of the ECHR, this resource is understood to favour pluralism over uniformity and performs what can be called a normative function and a systematic objective that returns a large degree of responsibility to domestic courts, with regard to the scrutiny of the acts or omissions of the corresponding authorities, placing them in their primary and natural function of protecting human rights.120 However, the power of appreciation is not unlimited, but rather goes hand in hand with a European control of State decisions, as is shown by the arguments that can be obtained from comparative and international law against the acceptance of a ‘wide margin of appreciation’ and in favour, instead, of a rigorous control by the Court in this matter.121 Nevertheless, it should be understood that its use has been versatile, being greatly activated on many occasions, given the lack of European consensus on certain areas of religious freedom, in a clear setback of the right. The Court has expressly conceded ‘a certain margin of appreciation’ in the cases of Leyla Sahin v Turkey122 and Kokkinakis v Greece,123 clearly infrequent in its previous case law. A different treatment is observed in cases related to religious clothing. Such would be the cases of Ahmet Arslan and S.A.S. In the first one, the Court restricted the margin of appreciation of Turkish authorities and declared the violation of Article 9 ECHR, as there was no affectation of public order or combative proselytism capable of infringing the rights of third parties.124 But in the case of S.A.S., regarding the Islamic full-face veil, the Strasbourg Court understood the possible affectation of the rights of third parties to the detriment of the aforementioned vivre ensemble.125 Such wide margin of appreciation was also granted, by way of example, in the Grand Chamber decision on the case of Lautsi and Others v Italy,126 but specifying that its use is carried out in different scenarios, the latter in relation to static symbology. In more recent cases, such as those of Hamidović v Bosnia and Herzegovina or Lachiri v Belgium, the Court considered that the domestic authorities exceeded the wide margin of appreciation afforded to them with the imposition

 See Martínez-Torrón (2003), p. 15.  See the Lecture of Dean Spielmann, former President of the ECtHR, ‘Whither the Margin of Appreciation?’ (20 March 2014). 121  See Bayatyan v Armenia, para 121–123. 122  See the judgment of the ECtHR on the case of Leyla Sahin v Turkey (Application No. 44774/98), of 10 November 2005, para 154. 123  See Kokkinakis v Greece, para 47. 124  See Ahmet Arslan and Others v Turkey, para 50–52. 125  See S.A.S. v France, para 155. 126  See Lautsi v Italy, para 61. For a comparative analysis of the Court’s divergent discourses around Christian and Muslim symbols, see Evolvi and Gatti (2021). 119 120

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of a restriction that was not necessary in a democratic society, which resulted in a violation of Article 9 ECHR.127 All in all, in the absence of consensus at the European level, unless it is observed that the Court decides whether and to what degree to use the versatile margin of appreciation and if, eventually, not even through this nor the vivre ensemble, do we find a solid legal argument that justifies the result achieved by the ECtHR, attention will have to be paid to other areas that can provide us with different perspectives of analysis, such as those that affect institutional policy issues, which can explain why the Court opts for solutions that guarantee its own survival,128 despite its extensive record and the authority with which it is invested. 3.3.2 Implications on Religious Minorities It should be borne in mind that, historically, the protection of freedom of religion or belief arose from the need for protecting religious minorities, who often suffered abuses by major religions.129 Today, this is still a central issue. Throughout the past three decades, the rights of members of religious minorities have taken a notorious position in the case law of the ECtHR, as they have often encountered obstacles when attempting to fully exercise their freedom of religion that have encouraged them to file claims around issues as different as education,130 employment,131 association,132 access to registration133 and the use of religious symbols in the public

 See Hamidović v Bosnia and Herzegovina, para 43, and the judgment of the ECtHR on the case of Lachiri v Belgium (Application No. 3413/09), of 18 September 2018, para 46–48. Another example of this, but with regard to the freedom of expression enshrined in Article 10 ECHR, can be found in the judgment of the ECtHR on the case of Rabczewska v Poland (Application No. 8257/13), of 15 September 2022. 128  See Camarero-Suárez and Zamora-Cabot (2015), p.  32. Concerning the inherent tensions between the margin of appreciation doctrine and State neutrality, see Evans and Petkoff (2019). 129  See Uitz (2019), p. 209. 130  For instance, see the judgments of the ECtHR on the cases of Osmanoğlu and Kocabaş v Switzerland (Application No. 29086/12), of 10 January 2017, and Perovy v Russia (Application No. 47429/09), of 20 October 2020. 131  See Eweida and others v United Kingdom, and the judgment of the ECtHR on the case of Ebrahimian v France (Application No. 64846/11), of 26 November 2015. 132  See the recent judgment of the ECtHR on the case of A.O. Falun Dafa and Others v The Republic of Moldova (Application No. 29458/15), of 29 June 2021, in which the Court held that there had been a violation of Articles 9 and 11 ECHR following the dissolution of a religious organisation and the banning of its representative symbol. 133  See the judgments of the ECtHR on the cases of Bektashi Community and Others v The Former Yugoslav Republic of Macedonia (Application No. 48044/10, 75,722/12 and 25,176/13), of 12 April 2018, and Christian Religious Organization of Jehovah’s Witnesses in the NKR v Armenia (Application No. 41817/10), of 22 March 2022; in both of which the Court found a violation of Article 9 of the Convention, read in the light of Article 11. 127

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sphere,134 just to name a few.135 While the Court has repeatedly recognised that freedom of thought, conscience and religion is one of the foundations of a democratic society and of its indissociable pluralism, which depends on it, some argue that, at the same time, it has built up a restricted and contradictory notion of religious pluralism.136 This is because, on the one hand, it has underscored the relevance of religious pluralism, urging States to promote mutual tolerance between different religious groups without removing the causes of tension, and, on the other hand, it has placed harsh restrictions on religious pluralism in public buildings and, more worryingly, in the public space.137 Unlike the universal framework for minority rights protection derived from Article 27 ICCPR,138 and the subsequent Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,139 the European Convention does not contain any specific provision in this regard. Nevertheless, among the wide range of grounds on which discrimination is strictly prohibited in Article 14 ECHR, religion, race or belonging to a national minority can be found.140 The supremacy of the principle of equality and non-discrimination in the European system can thus operate as a means of protection of religious minorities, as do Article 9 ECHR and Article 2 of its First Protocol, in this latter case through the parents’ right that their children are educated according to their religious identity.141 Moreover, on a number of occasions, the Court has considered that the particular lifestyle of a minority group is part of their right to respect for private and family life

 See the ECtHR judgments referred to in notes 124–127 above.  See Anagnostou (2019), p. 388. 136  See Ferri (2017), pp. 186–202. 137  See Ferri (2021), p. 5. 138  Art. 27 ICCPR: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. A similar provision lies in Article 30 of the Convention on the Rights of the Child (of 20 November 1989, A/RES/44/25): ‘In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with the other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language’. See generally Dinstein (1990), pp. 145–169. 139  Adopted by the UN General Assembly in its Resolution 47/135, of 18 December 1992 (A/ RES/47/135). 140  In this regard, it should be noted that the Committee of Ministers of the Council of Europe adopted the Framework Convention for the Protection of National Minorities on 10 November 1994 and is now in force in 39 States. As it does not contain a definition of ‘national minority’, States are given a margin of appreciation to decide which groups fall under the protection of the Framework Convention. Most States understand that a national minority is a group that has resided on a State’s territory for more than a hundred years with a distinct culture and/or language that they wish to protect (see Toivanen [2019], p. 67). 141  See Bajalan (2020), p. 29. 134 135

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protected by Article 8 ECHR.142 This was the case of G. and E.,143 a Sami reindeer shepherd and a Sami fisherman and hunter that lived in the Alta municipality, where the Norwegian government had authorised the construction of a hydroelectric plant that ended up flooding parts of the Alta valley and led to its substantive modification as a result of all the infrastructure built around it. Although this situation prevented the applicants from practising their traditional livelihood activities, the Commission failed to consider it as an interference with the population’s right to private life because the submersion affected a very small area of land. Even in the case that there had been an interference, it would have been deemed necessary for the economic well-being of the country.144 Furthermore, the Commission also failed to acknowledge that the applicants belonged to an indigenous people, a status by virtue of which they enjoy a wide range of specific rights that had been—and still are—recognised and promoted in the international sphere.145 Moreover, indigenous peoples keep a close, spiritual connection with their ancestral territories that lays at the core of their beliefs systems and gives meaning to their existence,146 to the extent that their lands and natural resources therein represent not only their basic means of subsistence, but also an inherent part of their worldview, religious beliefs and, consequently, of their cultural identity.147 That is why judicial cases around indigenous territories should not be examined without taking account of this particular characteristic. Nevertheless, this early Commission Decision on the rights of two members of an indigenous people reflects a pattern that, regrettably, is still being followed by the ECtHR,148 which tends to base its rulings on the group’s property rights provided for in Article

 See Medda-Windischer (2010), p. 255.  See G. and E. v Norway (Application No. 9278/81 and 9415/81), Commission Decision of 3 October 1983. 144  See Koivurova (2011), pp. 9–10. See also generally Otis and Laurent (2013), Gismondi (2016) and Iglesias-Vázquez (2017). 145  See the three specific international instruments that nowadays enshrine indigenous peoples’ rights: the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on 13 September 2007 (A/RES/61/295); the International Labour Organization Indigenous and Tribal Peoples Convention No. 169 (adopted on 27 June 1989, entered into force on 5 September 1991); and the American Declaration on the Rights of Indigenous Peoples, adopted by the Organization of American States on 15 June 2016, AG/RES. 2888 (XLVI-O/16). 146  See generally Camarero-Suárez (2018). 147  See the judgments of the Inter-American Court of Human Rights on the cases of the Yakye Axa Indigenous Community v Paraguay, of 17 June 2005, Ser C 125, para 135; Kaliña and Lokono People v Suriname, of 25 November 2015, Ser C 245, para 130; among others. For a comprehensive study of indigenous peoples’ religious freedom and its relevance in the fight for their lands, see Reguart-Segarra (2021). 148  For instance, see the judgments of the ECtHR on the cases of Johtti Sapmelaccat Ry. and others v Finland (Application No. 42969/98), of 18 January 2005; Hingitaq 53 and others v Denmark (Application No. 18584/04), of 12 January 2006; Handölsdalen Sami village and others v Sweden (Application No. 39013/04), of 30 March 2010. 142 143

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1 of the First Protocol to the Convention,149 without paying attention to the religious connection that bounds an indigenous community with its territories and that can rightfully fall under the scope of protection of Article 9 ECHR.150 This is only one of the most novel, striking illustrations of the challenges the Court is nowadays facing and to which it will soon have to respond in accordance with the international human rights regime established around these communities. However, issues around religious minorities started long before indigenous peoples eventually became subjects of rights in the international sphere. In fact, by way of example, one of the religious groups that is most well-known for its ‘intensive use of the legal system in order to rise to the “challenge of the times”’ are the Jehovah’s Witnesses.151 In the Strasbourg jurisdiction, their claims are believed to act ‘as a source of inspiration and rights-awareness’ for other religious minority groups in pursuit of their own claims and mobilisations.152 Their latest dispute heard by the ECtHR in 2022 has given rise to a landmark judgment against Russia,153 by which the State has been condemned for violations of Articles 9, 10 and 11 ECHR, and also of Articles 5 ECHR and 1 of the First Protocol to the Convention.154 This follows a ten-year period in which the government took different actions against Jehovah’s Witnesses religious organisations that amounted to religious persecution.155 Particularly, the judgment addresses 20 cases filed between 2010 and 2019 that implicate over 1,400 applicants, both individuals and legal entities. On the same date when the judgment was released, the Russian State Duma passed two bills to remove Russia and occupied Crimea from the Strasbourg jurisdiction, establishing 15 March 2022 as the ‘cut-off point’, after which Russia does not need to comply with ECtHR judgments.156 Nonetheless, a political decision of this sort should not minimise the relevance of this judgment, in which the Court analysed key issues around freedom of thought,  Article 1 of the First Protocol to the ECHR: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law’. 150  See Reguart-Segarra (2021), p. 289. 151  See Côté and Richardson (2001), p. 11. 152  See Markoviti (2017), p. 270. 153  See the judgment of the ECtHR on the case of Taganrog LRO and others v Russia (Application Nos. 32,401/10 and 19 others), of 7 June 2022. 154  Ibid., pp. 84–85. 155  According to the Press Release issued by the Registrar of the Court, ECHR 179 (2022), this included: ‘a requirement to re-register, amendments to anti-extremist legislation leading to the banning of their religious literature and international website and the revocation of their permit to distribute religious magazines, and eventually to a nation-wide ban on Jehovah’s Witnesses religious organisations in Russia, the criminal prosecution of hundreds of individual Jehovah’s Witnesses, and the confiscation of their property’. 156  See Halya Coynash, ‘Crucial Judgment for Jehovah’s Witnesses as Russia Tries to Deny ECHR Jurisdiction for its War Crimes in Ukraine’ (9 June 2022), https://khpg.org/en/1608810693 (accessed on 1 October 2022). 149

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conscience and religion under the Convention, especially on this right’s collective facet. In this vein, one of the most remarkable declarations the Court made was the violation of Article 9 read in the light of Article 11 ECHR on account of the forced dissolution of the Taganrog local religious organisation of Jehovah’s Witnesses (Taganrog LRO), as the interference with their freedom of religion or belief could under no circumstances be considered ‘prescribed by law’. This is because such interference was based upon the provisions of the Suppression of Extremism Act,157 which contained excessively wide definitions of ‘extremism’ that could have covered virtually any possible conduct. Hence, the Court asserted that this Act had been ‘misused for the prosecution of believers or religious ministers on the basis of the content of their beliefs alone’.158 There are plenty more examples of the difficulties religious minority groups, generally, still have to face to see their rights recognised on an equal footing to those of dominant religions, which inevitably places them among the most disadvantaged groups within the European human rights system. The key to address their legitimate concerns is that the acceptance of their diversity cannot be achieved through the loss or erosion of the most characteristic elements that make up their religious identities, but rather, through the full recognition of their inherent worth and dignity as human groups that are part of the present-day globalised, yet multicultural societies.

4 Concluding Remarks Freedom of thought, conscience and religion is a core freedom within the European human rights protection system that enshrines the capacity for individual self-­ determination of one’s own convictions, by promoting an equal protection of all beliefs regardless of which their deepest origin is, namely religious, ideological, philosophical or ethical. The terminological diversity used in Article 9 of the European Convention, as well as in other international instruments, intends to reflect the wide variety of beliefs that can make up individual and group identity. It embodies a right of liberty with different dimensions that possess their own, singular object, meaning that each of these dimensions represents one of three different, but in turn equal rights within this freedom. The rationale behind the special legal protection it generally receives is directly connected with the prevalence of personal autonomy, inasmuch as it is considered the result of a free personal choice that all societies committed to pluralism must respect and dignify. The European Court of Human Rights has indeed developed a wide, inclusive notion of what religion and belief should mean for Article 9 purposes, which equally protects both religious and non-religious beliefs, comprising traditional,

157 158

 Federal Law No. 114 FZ on Counteraction of Extremist Activities, of 25 July 2002.  See Taganrog LRO and others v Russia, at 158.

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long-­established denominations and new or relatively new religious movements, as well as coherent and sincerely-held philosophical or ethical beliefs. The key is that such beliefs represent the highest standards of personal behaviour. In the words of the Strasbourg Court, that they attain a certain level of cogency, seriousness, cohesion and importance. However, its task of shaping this freedom within the Convention mechanism has encountered a number of obstacles that have hindered the establishment of a coherent line of case law on Article 9, which represents one of the most frequent criticisms this high-level monitoring body still receives. The critical distinction made between the forum internum and the forum externum of this right has revealed that only when the deeply-held beliefs are exteriorised, can they be captured by law. Their manifestations can be restricted in accordance with the exhaustive list of limitations provided for in Article 9.2 ECHR, which must be interpreted restrictively and, thus, always attempting to grant the greatest possible degree of freedom. This is proven when the public order guarantee, including public security that is part of it, cannot justify just any restriction on the protected rights and freedoms. What is required is the existence of a real, serious threat that affects a fundamental interest of society. The infringement of rights and freedoms must be excessive neither in its material, personal and geographical scope of application nor in its effects. The Court very valuably clears the way for reflection processes on a core of complex problems. Nevertheless, when it makes an extensive interpretation of the rights and freedoms of others and defends nebulous elements embedded in them, the religious practice can be affected. The ECtHR case law has emphatically evoked the State duty to promote a mutual tolerance among the holders of the right to freedom of religion or belief, upholding citizens’ religious diversity, which is indispensable for the pluralism on which advanced societies are built. Being proportionality a fundamental principle that must be very carefully considered when restricting this human right, the Court, consistently with the subsidiarity inherent to the Convention mechanism, has allowed national authorities to assess it through the margin of appreciation doctrine. This resource is understood to favour pluralism over uniformity and needs to go hand in hand with a rigorous European control of domestic decisions. In the absence of consensus on certain areas of religious freedom, the versatile use by the Court of the margin of appreciation doctrine and its exceeding activation find no solid legal arguments, which suggests us attention to other perspectives of analysis, such as those that affect issues of institutional policy. The right to freedom of religion or belief, critical in the realisation and development of all the other freedoms, cannot be left to the discretion of political opportunism and positions of rejection of the other, which are incompatible with the values and demands of multicultural societies like those that principally exist in the European context. Specific and insurmountable ‘red lines’ should be determined so that this core freedom would not end up being devoured by the excessive use of this doctrine. The study of this freedom’s actual scope of effective exercise has also focused on the collective facet that arises from the reading of Article 9 in the light of Article 11 ECHR.  In the case of some religions—especially those which have traditionally subscribed treaties with national authorities—this has given rise to a specific type of

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religious organised structures that are vital for believers’ identity and their conception of life and that must enjoy a high degree of organisational and functional autonomy. It is considered a fundamental complement of the individual facet of this right that prevents it from ending up devoid of substance, to the extent that were it not protected, all other aspects would become fragile, especially in the case of religious minority groups, whose rights acquire a special connotation in light of the principle of equality and non-discrimination on religious grounds enshrined in Article 14 ECHR.  Its complementary character explains that religious freedom can be violated, not only in isolation, but also through this principle. While different or specific legal treatments in matters of religion or belief are compatible with the Convention, the impassable limit is that they do not amount to discrimination. Throughout the past three decades, the rights of religious minorities members have achieved notable visibility in the case law of the ECtHR on several different matters. Minority groups’ traditional demands are also leaving some room for the new challenges the Court must face in times of human rights awareness, promotion and advocacy worldwide. That is precisely what indigenous claims represent for the European Court, which up until now has not addressed their petitions in accordance with the international regime established around them. The religious minorities affected by the persecutory attitude of majorities demand the defence of human rights, without modulations or fissures, in the only possible terms of dignity, i.e. the acceptance of their diversity cannot be achieved at the expense of undermining their religious identity. The performance of the Strasbourg Court becomes essential in view of its extensive execution and vested authority. That is the only way in which it will be able to rise to the challenges of the times and continue to be a referent in their actual effectiveness.

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Berry SE (2019) Avoiding scrutiny? The margin of appreciation and religious freedom. In: Temperman J, Gunn TJ, Evans M (eds) The European court of human rights and the freedom of religion or belief: the 25 years since Kokkinakis. Brill, Leiden, pp 103–127 Bertolino R (1967) L’obiezione di coscienza negli ordinamenti giuridici contemporanei. G. Giappichelli, Turin Brownstein A (1990) Harmonizing the heavenly and earthly spheres: the fragmentation and synthesis of religion, equality, and speech in the constitution. Ohio State Law J 51:89–174 Camarero-Suárez V (2012) El velo integral y su respuesta jurídica en democracias avanzadas europeas. Tirant lo Blanch, València Camarero-Suárez V (2018) Acaparamientos de tierras y aguas: impacto sobre los pueblos indígenas y sus convicciones religiosas. Anuario de Derecho Eclesiástico del Estado 34:23–73 Camarero-Suárez V, Zamora-Cabot FJ (2015) La Sentencia del TEDH en el caso S.A.S. c. Francia: Un análisis crítico. Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 37:1–38 Castro-Jover A (1998) La libertad de conciencia y la objeción de conciencia individual en la jurisprudencia constitucional española. In: Martínez-Torrón J (ed) La libertad religiosa y de conciencia ante la justicia constitucional. Actas del VIII Congreso Internacional de Derecho Eclesiástico del Estado, Comares, Granada, pp 133–186 Corriente-Córdoba JA (1972) El proyecto de Convención Internacional de las Naciones Unidas sobre eliminación de todas las formas de intolerancia y discriminación fundadas en la religión o creencia. Ius Canonicum 24:121–148 Côté P, Richardson JT (2001) Disciplined litigation, vigilant litigation, and deformation: dramatic organization change in Jehovah’s witnesses. J Sci Study Relig 40(1):11–25 Dinstein Y (1990) Freedom of religion and the protection of religious minorities. Israel Yearb Human Rights 20:145–169 Dinstein Y (1992) Freedom of religion and the protection of religious minorities. In: Dinstein Y, Tabory M (eds) The protection of minorities and human rights. Martinus Nijhoff, Dordrecht, pp 145–169 Evans C (2001) Freedom of religion under the European convention on human rights. Oxford University Press, Oxford Evans C (2010–2011) Individual and group religious freedom in the European court of human rights: cracks in the intellectual architecture. J Law Relig 26:1, pp. 321–343 Evans C (2019a) Pre-Kokkinakis case law of the European court of human rights: foreshadowing the future. In: Temperman J, Gunn TJ, Evans M (eds) The European court of human rights and the freedom of religion or belief: the 25 years since Kokkinakis. Brill, Leiden, pp 13–32 Evans M (1997) Religious liberty and international law in Europe. Cambridge University Press, Cambridge Evans M (2019b) The freedom of religion or belief in the European convention on human rights since the Kokkinakis case; or “Quoting Kokkinakis”. In: Temperman J, Gunn TJ, Evans M (eds) The European court of human rights and the freedom of religion or belief: the 25 years since Kokkinakis. Brill, Leiden, pp 33–54 Evans M, Petkoff P (2019) Marginal neutrality–neutrality and the margin of appreciation in the jurisprudence of the European court of human rights. In: Temperman J, Gunn TJ, Evans M (eds) The European court of human rights and the freedom of religion or belief: the 25 years since Kokkinakis. Brill, Leiden, pp 128–152 Evolvi G, Gatti M (2021) Proselytism and ostentation: a critical discourse analysis of the European court of human rights’ case law on religious symbols. J Relig Eur 14:162–189 Ferri M (2017) The freedom to Wear religious clothing in the case law of the European court of human rights: an appraisal in the light of states’ positive obligations. Relig State Soc 45:186–202 Ferri M (2021) How to strengthen protection of (religious) minorities and cultural diversity under EU law: some lessons from human rights protection system. Religions 12(10):1–21 García-Hervás et al (1997) Manual de Derecho eclesiástico del Estado. Colex, Madrid

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García-Ruiz Y (2017) Libertad de pensamiento, conciencia y religión (artículo 9). In: Monereo Atienza C and Monereo Pérez JL (coords), La garantía multinivel de los derechos fundamentales en el Consejo de Europa: el Convenio Europeo de Derechos Humanos y la Carta Social Europea. Comares, Granada, pp 107–116 Gismondi G (2016) Denial of justice: the latest indigenous land disputes before the European court of human rights and the need for an expansive interpretation of protocol 1. Yale Human Rights Dev Law J 18:1–58 González-del-Valle JM (1997) Derecho eclesiástico español. Servicio de Publicaciones de la Universidad de Oviedo Greenawalt K (2006) Religion and the constitution: free exercise and fairness. Princeton University Press, Princeton and Oxford Greer S (2000) The margin of appreciation: interpretation and discretion under the European convention on human rights. Council of Europe, Strasbourg Gutiérrez-del-Moral MJ, Cañivano-Salvador MA (2003) El Estado frente a la libertad de religión: jurisprudencia constitucional española y del Tribunal Europeo de Derechos Humanos. Atelier, Barcelona Hart JW (2010) The European human rights system. Law Libr J 102(4):533–559 Hervada J (1994) Libertad de pensamiento, libertad religiosa y libertad de conciencia. Díkaion: Revista de Actualidad Jurídica 3:98–123 Hervada J, Zumaquero JM (1978) Textos internacionales de Derechos Humanos. Eunsa, Pamplona Hill M, Barnes K (2019) Limitations on freedom of religion and belief in the jurisprudence of the European court of human rights. In: Temperman J, Gunn TJ, Evans M (eds) The European court of human rights and the freedom of religion or belief: the 25 years since Kokkinakis. Brill, Leiden, pp 82–102 Huneeus A, Madsen MR (2018) Between universalism and regional law and politics: a comparative history of the American, European, and African human rights systems. Int J Const Law 16(1):136–160 Ibán-Pérez IC (1985) El contenido de la libertad religiosa. Anuario de Derecho Eclesiástico del Estado 1:353–362 Iglesias-Vázquez MA (2017) El hecho religioso en las comunidades indígenas y la jurisprudencia de los tribunales regionales de protección de los derechos humanos. Especial referencia a Europa. Anuario de Derecho Eclesiástico del Estado 33:461–494 Jellinek G (1908) La Declaración de los Derechos del Hombre y del Ciudadano. Librería General de Victoriano Suárez, Madrid Jemolo AC (1961) I problemi pratici della libertà. Giuffrè, Milano Keller H, Sweet AS (2008) A Europe of rights –the impact of the ECHR on national legal systems. Oxford University Press, Oxford Kiviorg M (2009) Religious autonomy in the ECHR. Derecho y Religión 4:131–144 Koivurova (2011) Jurisprudence of the European court of human rights regarding indigenous peoples: retrospect and prospects. Int J Minor Group Rights 18:1–37 Leuprecht P (1988) Derechos humanos y Derecho Comunitario Europeo. Poder Judicial 1:69–78 Llamazares-Fernández D (1997–1999) Derecho de la libertad de conciencia. Vol I and II. Civitas, Madrid Llamazares-Fernández D (2001) Derecho de la libertad de conciencia: la construcción del sistema. Laicidad y Libertades. Escritos Jurídicos 1:271–304 Llamazares-Fernández D (2013) Conciencia y Derecho. La objeción de conciencia. In: Martínez-­ Torrón J, Meseguer Velasco S and Palomino Lozano R (coords) Religión, Matrimonio y Derecho ante el siglo XXI.  Estudios en homenaje al Profesor Rafael Navarro-Valls. Vol I (Religión y Derecho). Iustel, Madrid, pp 921–953 Lombardía P, Fornés J (1996) El Derecho eclesiástico. In: Ferrer-Ortiz J (coord) Derecho eclesiástico del Estado español. Eunsa, Pamplona, pp 23–68 Markoviti M (2017) The ‘filtering effects’ of ECtHR case law on religious freedoms: legal recognition and places of worship for religious minorities in Greece. Relig State Soc 45(3–4):268–283

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Martínez-Torrón J (1986) El derecho de libertad religiosa en la jurisprudencia en torno al Convenio europeo de derechos humanos. Anuario de Derecho Eclesiástico del Estado 2:403–496 Martínez-Torrón J (1994) La protección internacional de la libertad religiosa. In: Vv.Aa. Tratado de Derecho Eclesiástico. EUNSA, Pamplona, pp 141–239 Martínez-Torrón J (1995) El objeto de estudio del derecho eclesiástico. Anuario de Derecho Eclesiástico del Estado 11:225–248 Martínez-Torrón J (1997) La doctrina jurisprudencial de los órganos de Estrasburgo. In: Vv.Aa. Estudios de derecho público en homenaje a Juan José Ruiz-Rico. Tecnos, Madrid Martínez-Torrón J (2001) La protección de la libertad religiosa en el sistema del Consejo de Europa. In: De la Hera Pérez-Cuesta A, Martínez de Codes RM (coords) Proyección nacional e internacional de la libertad religiosa. Ministerio de Justicia, Dirección General de Asuntos Religiosos, pp 89–131 Martínez-Torrón J (2003) Los límites a la libertad de religión y de creencia en el Convenio Europeo de Derechos Humanos. Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 2:1–46 Martínez-Torrón J (2013) Universalidad, diversidad y neutralidad en la protección de la libertad religiosa por la jurisprudencia de Estrasburgo. In: Martínez-Torrón J, Meseguer Velasco S and Palomino Lozano R (coords) Religión, matrimonio y derecho en el siglo XXI.  Estudios en homenaje al Profesor Rafael Navarro-Valls. Iustel, Madrid, vol 1, pp 275–301 Martínez-Torrón J (2014) Las objeciones de conciencia en la jurisprudencia de Estrasburgo. Derecho y Religión 9:37–58 Martínez-Torrón J (2019) Manifestations of religion or belief in the case law of the European court of human rights. In: Temperman J, Gunn TJ, Evans M (eds) The European court of human rights and the freedom of religion or belief: the 25 years since Kokkinakis. Brill, Leiden, pp 57–81 Martín-Sánchez I (1999) El derecho a la formación de la conciencia y sus garantías constitucionales en el ordenamiento jurídico español. Il diritto ecclesiastico 110(2):450–544 Martín-Sánchez I (2001) Las libertades de pensamiento, de conciencia y de religión en el ordenamiento jurídico internacional. In: De La Hera A, Martínez de Codes R (coord), Proyección nacional e internacional de la libertad religiosa. Ministerio de Justicia, Secretaría General Técnica, pp 13–88 Martín-Sánchez I (2014) Margen de apreciación nacional y libertad religiosa en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Derecho y Religión 9:11–36 McCrea R (2010) Religion and the public order of the European Union. Oxford University Press, Oxford Medda-Windischer R (2010) The European court of human rights and minority rights. J Eur Integr 25(3):249–271 Motilla A (2012) La prohibición del burqa islámico en Europa y en España: reflexiones “de iure condendo”. Anuario de Derecho Eclesiástico del Estado 28:171–196 Motilla A (2021) La jurisprudencia del Tribunal de Estrasburgo en materia de libertad religiosa. Cuestiones Disputadas, Comares, Granada Navarro LF (1983) La libertad religiosa en la Convención Europea de Salvaguarda de los Derechos del Hombre. Ius Canonicum 23(46):779–824 Navarro-Valls R, Martínez-Torrón J (2012) Conflictos entre conciencia y ley. Las objeciones de conciencia, 2nd edn, Iustel, Madrid Otis G, Laurent A (2013) Indigenous land claims in Europe: the European court of human rights and the decolonization of property. Arctic Rev Law Polit 4(2):156–180 Parejo-Guzmán MJ (2010) Reflexiones sobre el asunto Lautsi y la jurisprudencia del TEDH sobre símbolos religiosos: hacia soluciones de carácter inclusivo en el orden público europeo. Revista de Derecho Comunitario Europeo 37:865–895 Polo-Sabau JR (2014) Dimensiones de la libertad religiosa en el Derecho español. Bosch Editor Prieto-Sanchís L (2016) El derecho fundamental de libertad religiosa. In: Ibán-Pérez IC, Prieto-­ Sanchís L, Motilla A (eds) Manual de Derecho Eclesiástico. Trotta, Madrid, pp 53–92

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Raz J (1986) The morality of freedom. Clarendon Press, Oxford Reguart-Segarra N (2021) La libertad religiosa de los pueblos indígenas. Estudio normativo y jurisprudencial de su relevancia en la lucha por sus tierras. Tirant lo Blanch, València Salado-Osuna A (1994) El Protocolo de enmienda número 11 al Convenio Europeo de Derechos Humanos. Revista de Instituciones Europeas 21(2):943–966 Smet S (2019) Conscientious objection under the European convention on human rights: the ugly duckling of a flightless jurisprudence. In: Temperman J, Gunn TJ, Evans M (eds) The European court of human rights and the freedom of religion or belief: the 25 years since Kokkinakis. Brill, Leiden, pp 282–306 Smith SD (1990) The restoration of tolerance. Calif Law Rev 78:305–356 Souto-Paz JA (1993) Derecho eclesiástico del Estado: el derecho de la libertad de ideas y creencias, 2nd edn. Marcial Pons, Madrid Souto-Paz JA (1999) Comunidad política y libertad de creencias: introducción a las libertades públicas en el Derecho comparado. Marcial Pons, Madrid Souto-Paz JA (2004) La libertad de pensamiento, conciencia y religión. In: Garrido Mayol V, Álvarez Conde E (eds) Comentarios a la Constitución Europea, vol 2, Los derechos y libertades. Tirant lo Blanch, València, pp 335–358 Toivanen R (2019) Beyond legal categories of indigeneity and minority-ness: the case of Roma and falling in-between. In: Medda-Windischer R, Boulter C, Malloy TH (eds) Extending the protection to migrant populations in Europe: old and new minorities. Routledge, London, pp 65–88 Uitz R (2019) Religion and equality: from managing pluralism towards a European requirement of state neutrality. In: Temperman J, Gunn TJ, Evans M (eds) The European court of human rights and the freedom of religion or belief: the 25 years since Kokkinakis. Brill, Leiden, pp 209–234 Valero-Estarellas MJ (2022) Neutralidad del Estado y autonomía religiosa en la jurisprudencia de Estrasburgo. Tirant lo Blanch, València Viladrich PJ (1982) Ateísmo y libertad religiosa en la Constitución Española de 1978. Ius Canonicum 22(43):31–85 Viladrich PJ y Ferrer-Ortiz J (1996) Los principios informadores del Derecho eclesiástico español. In: Ferrer-Ortiz J (coord) Derecho eclesiástico del Estado español. Eunsa, Pamplona, pp 115–152 Núria Reguart-Segarra  is Assistant Professor of Law and Religion at the Jaume I University of Castellón. She holds a Bachelor’s Degree in Law (Bachelor’s Degree Extraordinary Award), a Master’s Degree in Professional Legal Practice and a PhD cum laude in Law (International Doctorate distinction) by the Jaume I University. She is a member of the Research Group on Human Rights and Fundamental Rights of this University, member of the REDH-EXATA (Red Iberoamericana de Empresas y Derechos Humanos: incidencia especial en el extractivismo y los acaparamientos de tierra y agua) and member of the RECI (Relevancia del Estatus y la Condición de Indígena) Research Group of the International University of La Rioja (UNIR). She has carried out research stays at the Strathclyde Centre for Environmental Law and Governance of the University of Strathclyde (Glasgow), at the Human Rights Research and Education Centre of the University of Ottawa and at the Sapienza Università di Roma. Her doctoral thesis has been awarded with the Jaime Brunet Prize for the Promotion of Human Rights and Development Cooperation 2020 by the Public University of Navarre (UPNA). So far, her research has focused on indigenous peoples’ religious freedom, in overall business and human rights conflicts, the religious dimensions of climate change, and the interlinkage between migrations and religion. Victoria Camarero-Suárez  is Associate Professor of Law and Religion at the Jaume I University of Castellón and counts with three six-year research periods recognised by the National Agency for Quality Assessment and Accreditation of Spain (ANECA). He is corresponding academician for the Royal Academy of Jurisprudence and Legislation since 2006 and lawyer by the Rota Tribunal of the Apostolic Nunciature to Spain since 1999. With more than 45 publications and four

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pioneering monographs, her research focuses on matrimonial processes, religious freedom and multiculturalism. She has participated as a researcher in the relevant project ‘Human Rights Age’ (HURI‑AGE) at a national level, and in the Project/Contract of the European Commission ‘Business & Human Rights challenges for cross-border litigation in the European Union’ (Commission Implementing decision of 14 November 2013). Human rights advocacy stands out in her most recent trajectory. She has directed a doctoral thesis at the Jaume I University, subsidised by the Generalitat Valenciana, which is entitled ‘Indigenous peoples and the protection of their religious convictions in land and water grabbing conflicts’. She has also developed extensive management activity, including Department direction from 2010 to 2018.

Clothing, Symbology and Religious Prescriptions: The Perspective of the European Court of Human Rights Isabel Cano Ruiz

Abstract  The purpose of this chapter is to present a simple diagnosis or assessment of some of the most important pronouncements of the European Court of Human Rights (and the EU Court of Justice) on different external manifestations of the right to freedom of religion: clothing and symbolism, food and ritual sacrifice, and commemoration of public holidays. Their analysis shows that both courts are taking sometimes opposing positions on the protection of the religious sphere. Keywords  European Court of Human Rights · Symbology and religious clothing · Religious diet · Ritual sacrifice · Holiday commemoration · EU Court of Justice

1 Introduction For millions of people, religion is an essential aspect of their lives and how they relate to the world and to each other. Religion can manifest itself through many activities, such as the wearing of distinctive clothing, the observance of certain religious practices, including religious holidays and festivities and the observance of dietary rules. These practices may seem trivial to non-believers, but they constitute the essential core of a believer’s religion. The following sections aim to show the degree of practical application of some manifestations of the right to freedom of religion recognised in Article 9 of the European Convention on Human Rights (ECHR), through the case law of the European Court of Human Rights (ECtHR) and the EU Court of Justice (ECJ). Both become guarantors and limiters of these manifestations, allowing that the defence of these manifestations by groups or individuals who share the same beliefs does not hinder or condition the appropriate exercise of these freedoms by others. I. Cano Ruiz (*) University of Alcalá (Spain), Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_3

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2 Religious Dress and Symbols in the Work Environment In this section we intend to approach two interesting pronouncements of the ECtHR and two others of the ECJ on the use of religious clothing and symbols, all of them in the field of employment, as we consider this to be the most conflictive for those who hold the right to freedom of religion. This is due to the importance of the case law of the ECtHR, since, as the authoritative interpreter of the ECHR, it serves as a guideline both for the ECJ and for the interpretation of the fundamental rights enshrined in the constitutional texts of the States parties. The ECJ, by virtue of the material competence delimited by the EU law, will examine these labour problems and the relationship between supplier and client or recipient of the service. The first of these is the case of Eweida and others v United Kingdom, a paradigmatic case that will mark a turning point in the intertwining of the employment contract and the right to freedom of religion.1 The facts are as follows: Mrs Eweida is a practising Coptic Christian and has worked since 1999 for the private company British Airways Plc. This company required employees who were in contact with the public to wear a uniform that complied with a code established by the company, which stated that any accessory or article of clothing that the employee, for religious reasons, is obliged to wear, must always be covered by the uniform. If this is impossible given the nature of the item and the way it is to be worn, then approval will be sought through the local headquarters as to the suitability of the design to ensure compliance with uniform standards, unless such approval already appears in the uniform guide. Within this internal regulation, it should be noted that, among the items of clothing considered by British Airways to be compulsory in some religions and which could not be concealed under the uniform, Sikh men were allowed to wear a white or dark blue turban and display the Sikh wristband in summer if they were authorised to wear a short-sleeved shirt. Muslim female ground staff were allowed to wear the hijab in British Airways approved colours. In 2004, the airline changed the women’s uniform from a turtleneck blouse to an open-necked blouse. Two years after the implementation of the new uniform, in 2006, Ms Eweida began to wear a visible cross as a sign of commitment to her faith. She was asked to remove it or at least hide it, a request she refused, and was suspended from work and pay on 20 September 2006. Subsequently, she was offered a job in another position that did not require a uniform or contact with people, but refused. In November of that year, British Airways revised its uniform policy to allow the display of religious symbols with prior authorisation. The worker’s cross was authorised and she returned to her post on 3 February 2007, but the company refused to compensate her for unpaid wages during her absence. This worker decided to start legal proceedings which, after passing through the Employment Tribunal, the Employment Appeal Tribunal and the UK Supreme Court, were finally brought before the European Court of Human Rights, claiming compensation for lost earnings on the grounds of indirect discrimination  Eweida and others v United Kingdom, 48420/10 and others, 15 January 2013.

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and also alleging a violation of her right to manifest her religion contrary to Article 9 ECHR. After balancing Ms Eweida’s right to manifest her religious beliefs against the company’s desire to project a corporate image, the ECtHR concluded that the applicant’s right was not adequately protected, as although the company’s interest was legitimate, there was no evidence that other authorised religious clothing had a negative impact on British Airways’ image or brand, and the fact that the uniform policy was subsequently changed showed that it was not a fundamental aspect.2 Another element highlighted in the judgment is that the wearing of religious symbols is not regulated in most member countries of the Council of Europe. In three of them, namely Ukraine, Turkey and some Swiss cantons, civil servants and other public sector employees are not allowed to wear clothing or symbols of religious significance, while employees of private companies are allowed to do so. In five States—Belgium, Denmark, France, Germany, France and the Netherlands—courts have in principle upheld the right of companies to impose limits on their employees’ wearing of religious symbols, even in the absence of authorising legislation. In France and Germany, there is a strict ban on public employees wearing religious symbols or clothing, while in the other three countries the attitude is more flexible. Nowhere is there a blanket prohibition preventing private sector workers from wearing such religious clothing or symbols. What is expressly forbidden by law in France. However, to be considered correct, such a prohibition must pursue a legitimate aim in relation to health standards, the protection of health and morals, the credibility of the company’s image in the eyes of its customers, and in any case, it must be a proportionate measure (§ 47). In the public sector, it is interesting to mention the judgment of the ECtHR in the Ebrahimian v France case of 26 November 2015. On this occasion, the Court dismissed the appeal brought by a worker who worked as a social worker in the psychiatry department of the public hospital reception and care centre in Nanterre (France). The worker was employed on a fixed-term contract for three months, which was subsequently extended for a further year, and shortly before the end of the extension, the human resources management informed the worker that her contract would not be extended again, due to her refusal to remove her Islamic headscarf during work and the complaints lodged by some of the centre’s patients. In its judgment, the Strasbourg Court accepts the thesis that, in the case of France, there must be a strict obligation to respect the principle of neutrality expressly enshrined in the Constitution. The French model is imposed on the staff representing it and is rooted in the traditional relationship between the secularity of the State and freedom of conscience. It is not up to the national courts to assess this model as such, but rather to ensure that the action of the administration does not entail a disproportionate restriction on the freedom of conscience of public officials, and they considered the decision taken by the hospital’s management to be proportionate:

 Ex multis, we highlight Hill (2013), pp. 191–203 and Palomino Lozano (2013), pp. 241–244.

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I. Cano Ruiz The Court has already accepted that States may invoke the principles of secularism and neutrality of the State to justify restrictions on the wearing of religious symbols by civil servants, in particular teachers in public establishments […]. It is their status as public servants which distinguishes them from ordinary citizens, who “are not representing the State in the exercise of public authority” and are therefore not “subject, on the basis of an official status, to an obligation of discretion in the public expression of their religious beliefs” […]. Similarly, the Court can accept in the circumstances of the present case that the State, which employs the applicant in a public hospital, where she is in contact with patients, considers it necessary for her not to manifest her religious beliefs in the performance of her duties in order to ensure equal treatment of patients. In this spirit, the neutrality of the public hospital service can be seen as related to the attitude of its agents and as a requirement that patients should not be able to doubt its impartiality (§ 64).

With regard to the European Union, in 2017 the ECJ ruled for the first time on two preliminary rulings that raised the possibility that a prohibition on wearing religious clothing or displaying religious symbols imposed by the company in the workplace could be a cause of discrimination on religious grounds, as provided for in Directive 2000/78. Although both rulings address the same issue, they present such interesting particularities that they allow for a specific analysis of each one of them. We will focus on the Achbita case, which deals with the controversial issue of the wearing of the headscarf by Muslim women workers in the workplace, to conclude that the case in question does not involve direct discrimination as opposed to the application of Article 2 of Directive 2000/78, although it does involve indirect discrimination.3 In February 2003, Ms Achbita was employed on a permanent basis by G4S Secure Solutions NV (hereinafter G4S) as a receptionist. At the time, this was not part of the internal rules, but an ‘(…) unwritten rule that employees may not wear visible signs of their political, philosophical or religious convictions in the workplace’ (§ 11) was tacitly applied within the security company (§ 11). Three years after her employment, Ms Achbita informed G4S of her intention to wear the hijab during her working hours, which she will do as soon as she returns to work after a period of sick leave. Until then, she had limited herself to wearing the headscarf only outside her working hours, without protesting the internal rule. The company management informed her that this attitude was contrary to the policy pursued by the company and finally, the G4S works council approved an amendment to its

 Case C-157/15, Samira Achbita e Centrum voor gelijkheid van kansen en voor racismebestrijding contro G4S Secure Solutions NV, 14 March 2017. The second case to which we refer, but which we will not comment on, is the Bougnaoui case, case C-188/15, which arises from a request made by the French Court of Cassation which was to rule on the appeal lodged by a female employee of the Muslim religion. This employee was dismissed in 2009 by letter explaining that a client of the company had been upset because she was wearing a veil and had asked the company ‘not veil next time’. The company, during the recruitment period, had told the employee that it respected her freedom of expression and personal religious convictions, but warned her that in its relations with customers it imposed a policy of discretion regarding the expression of employees’ personal choices. Having established the employee’s refusal to dispense with the wearing of the headscarf, the employer considered that she was unable to perform the work and had to terminate her employment contract. In this case, the Court considers that there has been direct discrimination. 3

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internal regulations to put in writing the tacit rule that prevented employees from wearing visible signs revealing their personal convictions during their working hours. Thus, the clause in the company policy, the legality of which is challenged in the question referred for a preliminary ruling, reads: ‘employees are prohibited from wearing visible signs of their political, philosophical or religious convictions or observing any ritual derived from them in the workplace’. The employee was dismissed from her job because of her manifest and persistent desire to come to her place of work wearing the Islamic headscarf and to receive the corresponding severance pay. Ms Achbita subsequently brought an action for unfair dismissal before the Belgian courts concerned, which dismissed the action. For the Belgian court ‘(…) the general prohibition on wearing visible signs of political, philosophical or religious convictions in the workplace did not amount to direct discrimination and no indirect discrimination or violation of individual freedom or freedom of religion had been observed’ (§ 17). Also in the Court’s view, the house rules, as they stood, did not affect the principle of equality and non-discrimination, as they had a general material and personal scope. First, the generality of its material scope of application can easily be deduced from the wording of the rule itself, since the prohibition does not only refer to ‘(…) signs of religious convictions (…), but to all those which are related to political, ideological or philosophical convictions’ (§ 19). Thus, the prohibition affects all the dimensions in which these can be realised, without there being a difference between being religious or non-religious or especially affecting a particular worldview as opposed to others. Its personal scope of application is also general, as the provision refers to all employees of the company who are committed to and abide by the same code of conduct, without any perceived difference in treatment in its application (§ 18). The two elements of general personal scope of application and the use of a neutral criterion to determine the content are, in fact, the two essential features which enable the Belgian court to counteract the impact of the domestic rule at issue on the principle of equal treatment. In that context, Ms Achbita does not agree with that decision and observes, in her appeal to the Belgian Court of Cassation, that the Court is misapplying the concepts of ‘direct and indirect discrimination’ protected by Article 2(2) of Directive 2000/78/EC (para 20). For this reason, the Belgian Court of Cassation considers it necessary to refer the following question to the Court of Justice of the European Union for a preliminary ruling: Is Article 2(2)(a) Link to legislation of Directive 2000/78 to be interpreted as meaning that a prohibition on wearing a headscarf as a Muslim in the workplace does not constitute direct discrimination if the rule in force in the undertaking prohibits all workers from wearing outward signs of political, philosophical or religious conviction in the workplace?.

The ECJ concludes that Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, must be interpreted as meaning that a prohibition on wearing an Islamic headscarf resulting from an internal rule of a private undertaking which prohibits the visible wearing of any political, philosophical or religious sign in the workplace does not constitute direct discrimination on grounds of religion or belief

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within the meaning of that directive. On the other hand, such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation which it contains in fact causes a particular disadvantage to persons professing a particular religion or belief, unless it can be objectively justified by a legitimate aim, such as the pursuit by the employer of a regime of political, philosophical and religious neutrality in its relations with its customers, and the means of achieving that aim are appropriate and necessary, which is a matter for the national court to determine. The allegedly ‘neutral’ character of the company’s internal rules has been criticised as In the position of the CJEU, the religious neutrality of the company is equivalent to the requirement of prohibition of all types of religious symbols for workers. This position does not seem to us to be neutrality towards religion in the strict sense of the word, but rather the exclusion of religion from the company’s own sphere. It is as if a policy of neutrality with regard to disability meant that the company decided not to hire people with a recognised disability in order to respect the different types of disability and not to discriminate between physical, mental or sensory disabilities. Neutrality would thus entail the exclusion of workers with functional diversity.4

Following the reasoning of this judgment, when employers are going to establish some kind of limitation on external signs of a religious or philosophical nature, they should consider: first, the existence of a legitimate aim, the wish to pursue a regime of political, philosophical or religious neutrality in relations with customers in both the public and private sectors being regarded as legitimate. An employer’s desire to present a neutral image to his customers is linked to the freedom to conduct a business, recognised in Article 16 of the Charter, and is in principle legitimate, particularly where the employer includes in the pursuit of that aim only those employees who will in principle be in contact with his customers; second, the appropriateness of an internal rule prohibiting employees from visibly wearing signs of political, philosophical or religious convictions is suitable for ensuring the correct application of a neutrality regime, provided that such a regime is actually pursued in a consistent and systematic manner. On the necessary nature of the prohibition at issue in the main proceedings, it must be ascertained whether it is limited to what is strictly necessary. Particularly, it must be ascertained whether the prohibition on the visible wearing of any sign or item of clothing which may be associated with a religious belief or a political or philosophical conviction concerns only G4S employees who are in contact with customers. In such a case, such a prohibition must be considered strictly necessary to achieve the objective pursued. Finally, attention should be drawn to the Court’s reasoning, in which it refers to the national judge the analysis of whether the worker could have been offered a job that did not involve eye contact with clients, instead of dismissing her.

 Rodríguez Blanco (2017), p. 389.

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This reasoning was used by the same court in the recent case of L.F. v S.C.R.L.5 In this case, L.F. is a Muslim woman who applies for an interview for a traineeship with the company S.C.R.L. which manages social rentals. Ms L.F. refuses to remove her hijab to comply with S.C.R.L.’s policy of neutrality, as set out in its internal employment regulations. This attitude of non-compliance with the company’s policy meant that she was not hired. A few weeks later, L. F. again applied for an internship in the same company, proposing to cover her head with another type of headdress, a possibility that was denied because no head covering, be it caps, hats or scarves, were allowed in S.C.R.L.’s facilities.6 Faced with this situation, L.F. complained of discrimination to the independent public body responsible for combating discrimination in Belgium, before bringing an action for an injunction before the Brussels Labour Court. The applicant contests the company’s refusal to conclude a traineeship contract, which, in her view, was based directly or indirectly on her religious convictions, and seeks a declaration that S.C.R.L. infringed the provisions of the General Law against Discrimination. The Brussels Labour Court asked the ECJ whether the terms ‘religion or belief’ in the Directive on equal treatment in employment and occupation should be interpreted as two sides of the same protected criterion or, on the contrary, as two different criteria. It also asked the ECJ whether the prohibition on wearing a sign or clothing with connotations, contained in S.C.R.L.’s internal rules of employment, constitutes direct discrimination on grounds of religion. In this regard, the Court states that Article 1 of Directive 2000/78 must be interpreted as meaning that the terms ‘religion or belief’ in that article constitute one and the same ground of discrimination covering both religious and philosophical or spiritual beliefs. In this regard, it recalls that it is clear from its case law that the ground of discrimination based on ‘religion or belief’ must be distinguished from that based on ‘political or any other opinion’. It also points out that a provision in an undertaking’s internal rules of employment which prohibits employees from expressing orally, through their clothing or in any other way, their religious or philosophical convictions, of whatever kind, does not constitute, in respect of employees who seek to exercise their freedom of religion and conscience by the visible wearing of a sign or article of clothing with religious connotations, direct discrimination ‘on grounds of religion or belief’ within the meaning of the EU law, provided that that provision is applied in a general and undifferentiated manner. Since any person may profess a religion or hold religious, philosophical or spiritual beliefs, such a  C-344/20, L.F. v S.C.R.L., 13 October 2022.  In similar terms, the same Court (Grand Chamber), in its judgment of 15 July 2021, ruled in Cases IX (Case C-804/18) and MJ (C-341/19) on the application of the principle of non-discrimination in the field of employment and occupation, which is the subject of Directive 2000/78/EC. As the two cases are joined, the facts, which give rise to the activity of the courts, are not identical, although the cases on which the original disputes are based share a common fact: the clarification of the concept of ‘indirect discrimination’ in the application of that directive. All this, without forgetting the necessary alignment between European Union law and the law of the Member States on the protection of the right to freedom of religion. The workers IX (Case C-804/18) and MJ (C-341/19) were asked by their employers to remove the Islamic headscarf which they both wore. 5 6

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rule, provided that it is applied generally and without distinction, does not establish a difference in treatment based on a criterion indissolubly linked to a particular religion or belief (§ 40). However, the ECJ states that an internal rule such as that in force in S.C.R.L. may constitute a difference of treatment indirectly based on religion or belief, if it is shown—and this is a matter for the Brussels Labour Court to establish—that the apparently neutral obligation it contains in fact places persons professing a particular religion or holding particular beliefs at a particular disadvantage. In this regard, the Court adds that a difference in treatment will not constitute indirect discrimination if it can be objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary, while recalling that the mere intention of an employer to implement a neutrality regime, even if it constitutes a legitimate aim in itself, does not constitute indirect discrimination, even if it is in itself a legitimate aim, is not in itself sufficient to justify objectively a difference in treatment indirectly based on religion or belief, since the objective nature of such a justification can only be established in the light of a real need on the part of the employer, which it is for the employer to demonstrate (§ 42). Finally, the Court states that, at the stage of assessing whether indirect discrimination is justified, the EU law does not preclude a national court from attaching, in the balancing of competing interests, greater weight to the grounds of religion or belief than to those resulting, in particular, from the freedom to conduct a business, provided that that is apparent from its national law (§ 52). However, a very significant clarification is introduced, since the margin of discretion accorded to the Member States cannot go so far as to allow them or the national courts to divide, on several grounds, one of the grounds of discrimination listed exhaustively in Article 1 of the Directive, otherwise the wording, context and purpose of that ground itself would be called into question and the useful effect of the general framework for equal treatment in employment and occupation established by the EU law would be undermined. Consequently, since the ground of discrimination ‘religion or belief’ covers all workers in the same way, a segmented approach to that ground, according to the objective pursued by the rule in question, would have the effect of creating subgroups of workers and thus undermine the general framework for equal treatment in employment and occupation established by Directive 2000/78. The following reflections can be drawn from these four cases. First, the ECtHR, through the Eweida case, provides a good example of the application of the principle of proportionality in cases of employee clothing. The imposition of a uniform on workers is a suitable means of conveying a certain corporate image. But it is not necessary to prevent its very slight alteration when the worker wishes to exercise his religious freedom by wearing clothing or objects of a religious nature that do not hinder the normal purpose intended by the uniform. However, in addition to the principle of proportionality, it is ruled out that the worker must change his activity to avoid interference with his right to religious freedom, by weighing up the

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conflicting rights.7 On the other hand, the prohibition of public servants from wearing religious symbols does not violate Article 9 ECHR, as it is considered to be contrary to the principle of secularism understood in an absolute manner. Second, in a diametrically opposed position is the ECJ, which is opting for an excessively reductionist position on religious freedom and its exercise, to the benefit of freedom of enterprise. All of this under the umbrella of a conception of neutrality that is implying exclusion and the appearance of a lack of impartiality, which is clearly open to criticism for placing religion at a lower level of protection against discrimination than other causes. So much so that the recent pronouncement of October 2022 has made the words of McCrea a reality. This liberal and individualistic approach to Article 9 leads to a second notable feature of the caselaw in this area: the commitment to the equality of religious and non-religious worldviews. In its first significant consideration of Article 10 of the EU Charter of Fundamental Rights Court of Justice endorsed a vision of that right that encompasses the individualistic and egalitarian approach of the ECtHR.8

Third, despite this, we share Faggiani’s position in maintaining that the fact that the ECJ resolves these cases is a positive thing, as they are always a source of social conflicts and integration. Also, because this Court would consolidate its harmonising function of national legislations, encouraging ‘dialogue both with the European Court of Human Rights and between the European courts upstream and downstream’.9 Finally, if the pronouncements of both courts allow for an improvement in the protection of rights through a kind of ‘forum shopping’ as announced by Fokas,10 the question is: is reasonable accommodation now possible in cases of discrimination on religious grounds?

3 Food and Ritual Sacrifices Food is also an external manifestation of the fundamental right to religious freedom. The forbidden and permitted foods, the ways of preparing these foods are behaviours which, regardless of whether they are strict or not, belong to the way of life of many people and are also a way of identifying oneself. This is why food is a cultural phenomenon and a phenomenon with which believers identify themselves. A free person is one who, within the rule of law, finds the protection to be able to develop his or her personality.

 The principle of proportionality is addressed in the case of Lachiri v Belgium, 3413/09, 18 September 2018, where a witness refused to remove her hijab during court proceedings (a similar problem to Hamidović v Bosnia and Herzegovina, 57792/15, 5 December 2017). 8  Mccrea (2016), p. 4. 9  Faggiani (2022), p. 580. 10  Fokas (2016), p. 544. 7

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Few cases have come before the ECtHR concerning the failure to provide a menu in accordance with the applicant’s religious requirements. And the two that we are aware of have occurred in a place of special restraint (a prison), where individuals cannot choose freely the food they eat, because they are under the guardianship of a public institution or their freedom of movement is limited. In these circumstances, it is the administrations’ responsibility to put in place the necessary measures to bring menus into line with religious prescriptions. One such case is Iwankiewicz v Poland of 7 December 2010. The applicant is a Buddhist prisoner who demands a vegetarian diet because of his Buddhist convictions. Initially, for health reasons, pork is removed from the diet, and the diet is practically vegetarian, but when the health problem improves, he is offered a diet containing meat. The plaintiff insists that he is a Buddhist and because of his religious convictions he must eat a vegetarian diet. In fact, the Buddhist Mission in Poland sent a letter to the authorities explaining the importance for Buddhist practitioners of a vegetarian diet and asked the authorities to eliminate meat from this prisoner’s diet. The Polish Ombudsman reaffirms the official position and agrees with the prison authorities who continue to deny this right to the inmate, even complaining about his insistence on this issue, as, in his opinion, he had put too much pressure on the authorities. The Government objects on the grounds that Buddhism advises a vegetarian diet, but does not impose it; furthermore, it mentions in its submissions that if each prisoner were to claim a different diet for religious reasons, the prison would be unmanageable and, particularly, it is said that such a claim for a single person in a collective of more than a thousand inmates involves too many difficulties of a technical and financial nature. The ECtHR, in its judgment, starts from the assumption that Buddhism is one of the world’s major religions recognised in many countries, also its settled doctrine from previous case law that the observance of dietary diets can be regarded as a direct expression of belief in practice within the meaning of Article 9 ECHR. In § 45 the Court states that the appellant’s choice of a vegetarian diet can be considered to be inspired by his religion, so it does not appear to be without reason. Finally, referring to the financial problem and to the functioning of the prison kitchen, he notes that it is not that certain products are required, nor that food has to be prepared in a certain way, which leads him to the assertion that preparing a vegetarian diet would not entail any disruption to the functioning of the prison or any prejudice to the variety of meals served to the other inmates. The ECtHR refers to the 2006 Recommendation of the Committee of Ministers of the Council of Europe on European rules for prisons, with the aim of meeting as far as possible the aspirations of prisoners with regard to the subsistence allowance required for religious reasons, a provision which is not mandatory, but which the Court had expressly reminded Poland of in another case. The unanimous conclusion is that Poland has violated Article 9 ECHR. We see that this is a clear example of the projection of the requirements of religious freedom and that the cooperation of the public authorities is therefore essential to ensure the guarantee of rights in cases of objective impossibility of the exercise of religion in conditions of free access for the

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subject, as in the case of penitentiary institutions, in which the freedom of some of their inmates is limited. In similar terms, the ECtHR ruled in Vartic v Romania, 17 December 2013. The applicant complained that, by refusing him the vegetarian diet required by his Buddhist beliefs, the prison authorities had infringed his right to manifest his religion, protected by Article 9 ECHR.  However, the Government alleged that the applicant was listed as orthodox in prison documents and that the prison authorities discovered that some of the prisoners changed their religion to obtain better food. Accordingly, they require prisoners to provide written proof of their religion. The applicant did not provide such written proof at the time and was provided with food suitable for his state of health: his diet did not contain pork, but lean meat. The Government pointed out that, according to medical opinion, a vegetarian diet was not the most suitable diet for persons suffering from hepatitis as in the present case. However, the Court finds that providing a vegetarian diet to the applicant would not have disrupted the running of the prison or undermined the quality of the meals served to the other prisoners, especially since a similar diet without meat products was already provided to those prisoners who complied with the requirements of the orthodox Christian faith, and therefore concludes that there has been a violation of Article 9 ECHR. The conclusion we reach in this approach to the two pronouncements of the Strasbourg Court is that, when food for religious reasons becomes a circumstance that generates social conflict, we are interested in knowing whether and to what extent this particularity of food, as an external manifestation of religious freedom, is guaranteed by the State. In other words, if a person’s request to be offered a menu that does not contravene his religious convictions is denied when he is in a situation of dependence on the public authorities, in this case, is he offered a legal mechanism to meet his request? The answer is yes, since the public authorities become guarantors of this manifestation of the right to religious freedom by removing the obstacles that prevent its realisation. It is also part of the rituals of certain religions to slaughter animals in ways and means that make them fit for consumption. It is now more than 20 years since the ECtHR first ruled on this issue in the case of Chaare Shalom Ve Tsedek v France.11 This Jewish association sued because of the authorities’ refusal to grant it the necessary authorisation for access to slaughterhouses. The need for this access is based on the need to be able to practice ritual slaughter in accordance with the ultra-­ orthodox religious prescriptions of its members. The facts date back to July 1982, when the Association Consistorial Israelite de Paris (hereinafter ACIP) was granted authorisation to authorise slaughterers as the only inter-community rabbinical committee. The complainant association was set up because of disagreements within the ACIP over post-mortem checks on animals to detect any disease in them. According to the Torah, only a certain type of animal slaughtered in a certain way may be eaten, and after slaughter it must be verified that there was no disease of any kind in

11

 Chaare Shalom Ve Tsedek v France, 27417/95, 27 June 2000.

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the animals, or else they must be discarded. Particularly, in the case of ruminants it must be verified that there is no filament in the lungs indicating lung disease. The complainant claims that ACIP does not check for the existence of these filaments and that they sell meat labelled as kosher but not of glatt quality for ultra-­ orthodox Jews.12 The French government, according to a certificate from the Chief Rabbi of France, claims that the applicant Association can buy glatt meat, among other things because it has nine employees, six of whom are slaughterers. Article 276 of the Rural Code prohibits the ill-treatment of domestic, wild, domesticated or captive animals. This article was subsequently supplemented by Decree No. 80–791 of 1 October 1980, which stipulates that the slaughter of animals must be carried out in slaughterhouses after the animals have been immobilised and stunned. Stunning of animals in the case of ritual slaughter must be carried out by slaughterers approved by the authorised religious bodies and on a proposal from the Ministry of the Interior and the Ministry of Agriculture. If no slaughterer has been approved by the religious body, the prefect of the slaughterhouse must do so. French legislation complies with the European Convention on the Protection of Slaughter Animals of 10 May 1979 and with recommendation number R(91)7 of the Committee of Ministers of the Member States on the slaughter of animals, as well as with the European Directive of 18 November 1974 on the stunning of animals prior to slaughter, which considers the particularities of certain religious rites. The ECtHR notes positively that only religious bodies authorised by the State may appoint authorised slaughterers for ritual slaughter, as this will be carried out in accordance with public health and hygiene standards. However, it also finds it necessary to examine whether the religious practice differs between the applicant and the religious body representing the same religion. The Court notes that the applicant is not prevented from eating glatt quality meat because it is easily available in Belgium and even in some of the butcheries under the control of ACIP.  Similarly, it would be possible for the applicant and ACIP to come to an agreement to be approved. There would only be an interference with Article 9 ECHR if the applicant were cumulatively forbidden to licence slaughterers and could not otherwise obtain supplies. It does not therefore constitute an interference contrary to Article 9 ECHR because it would be justified under Article 9(2) by a legitimate aim such as the protection of public health and order. There is therefore no violation of Article 9 ECHR.

 The word ‘glatt’ actually means ‘smooth’ in Yiddish, and refers to the lack of adhesions on the lungs of an animal. To understand this, we need to define another word that has taken on a whole new meaning, treif. In the vernacular, the word refers to anything unkosher. In truth, treif refers specifically to an animal that has died by violent death, as the verse states, ‘Do not eat meat from an animal torn (treifah) in the field’. More broadly defined, this also includes animals that have physical defects that halachah determines will limit their lives. Even if such animals would be properly slaughtered and salted, their meat would not be kosher. One of the most common invalidating defects is a punctured lung. Every animal needs to be inspected by an expert bodek (examiner) to determine that its lungs do not contain any holes or defects. 12

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As the joint dissenting opinion of up to seven judges of the Grand Chamber demonstrates, this case was particularly complex. In their opinion, they justify that there had been an impact on the right to freedom of religion and consider that Article 9 was violated in the light of Article 14 ECHR. The discrimination can be seen, first, in the fact that both the applicant and the ACIP have the status of a religious association. Second, the Decree of 1 February 1980 does not require a minimum representativeness, so that whether the applicant’s followers are smaller in number than those of ACIP is irrelevant. Third, the Government pointed out that the applicant’s complaint was purely commercial and not religious, since more than half of its income came from the Slaughter Tax. On this point the dissenting judges also consider that there is discrimination because more than half of ACIP’s activity is financed by this tax. Finally, on the protection of public health, there is no justification for the fact that the slaughterers working for the applicant and authorised by ACIP were working in breach of the rules of public hygiene and were therefore a danger. For its part, the ECJ has had occasion to rule on ritual slaughter in two cases. One of them is from 2018.13 The facts are as follows: the Islamic Feast of Sacrifice is celebrated every year for three days. Many practising Muslims consider it a religious duty to slaughter or order the slaughter, if possible on the first day of the festival, of an animal whose meat is eaten in the family and distributed to the underprivileged, neighbours and distant relatives. There seems to be a broad consensus among the majority of the Muslim community in Belgium, expressed through the Council of Theologians within the Exécutif des Musulmans de Belgique (the representative body of the Islamic cult in Belgium), that the slaughter should be carried out without prior stunning of the animals and taking into account other requirements of the rite. In 1998 Belgian legislation established that slaughter prescribed by a religious rite could only be carried out in approved slaughterhouses or in temporary slaughterhouses. Consequently, the competent minister has been authorising the use of temporary slaughterhouses every year which, together with the approved slaughterhouses, allowed ritual slaughter to take place during the Islamic Feast of the Sacrifice, thus making up for the lack of capacity in the approved slaughterhouses associated with the increased demand during this period. In 2014, the Flemish regional minister responsible for animal welfare announced that he would no longer grant authorisations for temporary slaughterhouses on the grounds that such authorisations contravened the EU law, particularly a 2009 Regulation on the protection of animals at the time of slaughter.14 As a result of that decision, from 2015, all slaughter of animals without stunning, including on the occasion of the Islamic Feast of the Sacrifice, had to be carried out only in approved slaughterhouses. This is the context in which, in 2016, several  C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others v Vlaams Gewest, 29 May 2018. 14  Regulation No. 1099/2009 of 24 September 2009 on the protection of animals at the time of killing. 13

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Muslim associations and umbrella organisations of mosques brought legal proceedings against the Flemish Region aimed essentially at challenging the validity of certain provisions of the above-mentioned Regulation,15 particularly from the perspective of the right to freedom of religion.16 The Brussels Court of First Instance, before which the case was brought, decided to refer the matter to the Court of Justice for a preliminary ruling. The ECJ holds that ritual sacrifice does indeed fall within the concept of ‘religious rite’ within the meaning of the above-mentioned regulation and that it therefore also falls within the scope of the freedom of religion guaranteed by the EU Charter of Fundamental Rights. The Court considers that the existence of possible theological differences on that question does not in itself invalidate that classification as a ‘religious rite’. Next, the ECJ examines whether the regulation constitutes a restriction of the right to freedom of religion. It points out that, as a general principle, animals are killed in the EU only after stunning. The practice of ritual slaughter without prior stunning is exceptionally permitted, provided that such slaughter takes place in an establishment approved by the competent national authorities and in compliance with the technical requirements in force relating to construction, design and equipment (those requirements are set out in another EU regulation).17 The Court states that this derogation does not establish a prohibition on the practice of ritual slaughter in the EU but, on the contrary, expresses the positive commitment of the EU legislature to allow the slaughter of animals without prior stunning to ensure effective observance of freedom of religion, particularly of practising Muslims, during the Feast of the Sacrifice. Thus, the obligation to carry out ritual slaughter in an approved slaughterhouse merely seeks to organise and provide a technical framework for the free exercise of slaughter without prior stunning for religious purposes. This technical framework does not in itself imply a restriction of the right to freedom of religion of practising Muslims. Ritual slaughter is subject to the same technical requirements applicable, in principle, to all slaughter of animals in the EU, irrespective of the method used. Moreover, the EU legislature has reconciled compliance with specific slaughter methods prescribed by religious rites with the essential rules laid down by EU regulations on the protection of animal welfare during slaughter and of the health of consumers of animal meat. The reasoning of the judgment is a clear example of how to deal with the right to religious freedom in a holistic or integral manner, since we are dealing with a religious rite that, insofar as it is linked to freedom of worship, belongs to the essential core of the above mentioned right. However, this does not mean that its exercise is uncontrolled or overrides any EU provision. An accommodation is required, which is ensured, particularly by Regulation No. 1099 (2009), the purpose of which is to safeguard other legal interests: animal welfare and food quality. Since the rule does

 Article 4(4), in conjunction with Article 2(k) of Regulation No. 1099/2009.  Article 10 of the EU Charter of Fundamental Rights and Article 9 ECHR. 17  Regulation No. 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin. 15 16

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not appear to restrict the legitimate exercise of religious freedom, the legality of the rule is not called into question.18 This same Court is again ruling on the issue of ritual slaughter, but on a completely different issue from the one being tried in 2018: the application of Regulation (EC) No. 889/2008 on organic production and labelling of organic products.19 Specifically, the preliminary ruling procedure asks for the interpretation of Article 13 TFEU (animal welfare) and its impact on Regulation (EC) No. 1099/2009 (on the protection of animals at the time of killing), among others, to determine whether it is possible to label organic production in the European Union (Article 57 of Regulation (EC) No. 889/2008), in the case of meat from animals that have undergone ritual slaughter without prior stunning. On this occasion, the Grand Chamber considers that those provisions must be interpreted as prohibiting the use of the EU Ecolabel on products from animals slaughtered by ritual slaughter without prior stunning. The main arguments on which the ECJ bases its decision are set out below. First, it should be mentioned that both Regulation No. 834/2007 on organic production and labelling of organic products and Regulation No. 889/2008 state in numerous places the importance of animal welfare, seeking to ensure that high standards are met to minimise animal suffering. As these Regulations certainly do not set out a specific method of slaughter of the animal, the Court considers that the provisions which should govern the slaughter of animals are those set out in Regulation No. 1099/2007. That regulation lays down precisely the method of slaughter best suited to minimise the animal’s suffering: prior stunning. Second, it should be pointed out that, although Regulation No. 1099/2009 defines precisely that the suitable method is the prior stunning of the animal, it also establishes an exception to this in its articles (Article 4.1) for cases of ritual slaughter. In this regard, we ask ourselves whether this exception is also valid for obtaining the eco-label, that is to say, is another slaughter method valid—meaning that of the aforementioned exception—other than that of prior stunning to obtain the eco-­ label? Well, the Court has held that no, insofar as these other methods do not amount to a high level of protection of animal welfare at slaughter and do not guarantee the maintenance of consumer confidence in products labelled as organic, as laid down in Regulation No. 834/2007. Under Article 13 TFEU ‘[…] the Union and the Member States shall pay full regard to the welfare requirements of animals as sentient beings, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage’. Turning, on the other hand, to the regulations, Regulation No. 834/2007 stipulates that, for products to be labelled as organic, the established animal welfare standards must be met. In addition, Article 14 of Regulation No. 834/2007 stipulates that animal

 A critique of this judgment can be found in Watson and Oliver (2019), pp. 847–873.  C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs (OABA) v Ministre de l’Agriculture et de l’Alimentation and Others, 26 February 2019. 18 19

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suffering must be kept to a minimum. Furthermore, these provisions must be complemented by the provisions of Regulation No. 1099/2009, which provides in Article 4 (first paragraph) that animals must only be killed ‘after stunning’. Thus, irrespective of the references to respect for religious rites (particularly the derogation clause in Article 4(4) of Regulation No. 1099/2009), it follows that products from animals slaughtered without prior stunning are prohibited from being classified as organic because they do not comply with animal welfare requirements. The ECJ holds that stunning reduces suffering during the slaughter of the animal and is therefore an essential requirement to ensure animal welfare, which is also enshrined in the regulations. This means that this method of slaughter by the Halal method does not meet the requirements and therefore cannot be labelled as organic. Thus, our opinion agrees with the Court’s pronouncement, since we consider that the Halal method does not guarantee that the animal does not suffer in the slaughter process, as it is not as effective in reducing pain and suffering as slaughter by stunning, and animal welfare must take precedence over religious freedom in this specific case. Our position is in favour of the decision of the Grand Chamber. In the light of the provisions analysed, the Ecolabel requires that the killing must be carried out with the minimum of suffering and, as the ECJ rightly points out, scientific studies show that stunning is the most respectful mechanism for animal welfare. On the derogation mentioned in Regulation No. 1099/2009, which seeks to ensure respect for religious freedom, we consider that it should not be applied to the achievement of the label, as the latter requires a strict and marked procedure, as is the case for the achievement of the halal label. Let us look at it from the opposite point of view: would it be fair to halal consumers if products could be labelled (with the halal label) that have not rigorously followed the predetermined production method?

4 Commemoration of Public Holidays and Rest Days In all international, regional and state legal texts in which the right to religious freedom is guaranteed, the possibility of practising acts of worship and commemorating the festivals proper to each religion appears as something that belongs to the very essence of this right. Article 9 ECHR, although it does not expressly mention this manifestation of the right to freedom of religion, proclaims that freedom of thought, conscience and religion implies freedom to manifest religion or belief, either individually or in community with others and in public or private, in worship, teaching, practice and observance. The Council of Europe allows weekly rest to coincide with Sunday (a day consecrated by Christianity), but without forgetting the days designated as mandatory by non-Christian denominations (or Christian denominations such as the Adventists). Thus, Article 10 of the European Convention on the Legal Status of Migrant Workers states in para 3 that ‘each Contracting Party undertakes to ensure to migrant workers

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and members of their families the freedom to worship according to its own religion; it shall facilitate, within the means available, the practice of such worship’. Recommendations from the Parliamentary Assembly call for mechanisms to be put in place to try to respect the public holidays and rest days of certain religions and, as far as possible, to reconcile them with the working environment. Resolution 1396/1999 on religion and democracy recommends that the Committee of Ministers invite the governments of the Member States to guarantee freedom of conscience and religious expression within the conditions laid down in the ECHR for all citizens, particularly to safeguard religious pluralism by allowing all religions to develop under identical conditions; and to facilitate, within the limits set out in Article 9 ECHR, the observance of religious rites and customs, e.g. on marriage, dress, public holidays (with the possibility of adjusting permission for their observance) and military service (point 13.1, paras a and b). Recommendation 1162/1991, on the contribution of Islamic civilisation to European culture, considers that governments should encourage dialogue between Islamic communities and the competent authorities to meet the religious needs of their faith (e.g. holidays, rules of prayer, dress and food), respecting the customs of the host country, in addition to the usual provision for association and representation of immigrants and Islamic communities (point 11.11). The ECtHR has had occasion to rule on this issue in several cases. The former European Commission of Human Rights issued several decisions on the subject. One of them was Ahmad v United Kingdom.20 In this case, the appellant, a Muslim, was employed as a full-time teacher from 1968 to 1975, without his employment contract specifying the hours or days during which he was to work. During those seven years, at no time did he express the need to attend prayer on Fridays. When he came back from leave, he was transferred to another school, near which there was a mosque. From then on, he was absent from work, invoking his religious freedom and his obligation to attend Friday prayers. The appeal was dismissed as the Commission considered that Article 9 ECHR could not be considered a sufficient legal basis to entitle the employee to be absent during school hours to attend Friday prayers at the mosque. The Commission’s argument was that ‘Freedom of religion, as guaranteed by Article 9, is not absolute, but is subject to the limitations set out in Article 9(2). When the appellant was interviewed and recruited in 1968 he indicated no objection to working on Fridays, for if he had done so he would only have been offered part-time work’. The Commission was clear in one aspect: the right invoked is included in the right to manifest religion through community worship; it is an essential part of the exercise of the right to freedom of religion individually or collectively, ‘which must not be exclusive or left to the authorities to decide’. However, faced with the dilemma of whether going to Friday prayers is necessary for every observant Muslim, as Mr Ahmad argues, or, according to the English government’s argued position, Islam permits absence motivated by the fulfilment of work obligations, the

20

 European Commission of Human Rights, Decision 8160/78, 12 March 1981.

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Commission did not take a position. The rejection is based primarily on the fact that he did not express his religious beliefs before entering into the contract. In the case of Arrowsmith v Great Britain, a British citizen who was active in pacifist civil rights movements and a pacifist, handed out leaflets in front of a British Armed Forces barracks in Northern Ireland encouraging soldiers to leave the army to avoid further killings, and advising them how to desert.21 She is charged with and convicted of incitement to disaffection and sentenced to eighteen months imprisonment. The Commission considers that the applicant’s pacifist convictions constitute a philosophy of life rooted in her actions and conduct, which is protected as a belief within the scope of Article 9 ECHR. However, the practice of such beliefs ‘does not cover all acts which are merely motivated or influenced by beliefs and religions’, but only those manifestations which are binding on those beliefs. The distinction this ruling makes between ‘acts merely inspired or motivated by belief’ and ‘acts required and compelled by religions or convictions’ will be the basis for the ECtHR to dismiss a large number of claims brought as manifestations of religion, as acts only permitted but not compelled by the various religions are not protected by Article 9, which will undoubtedly result in a lower degree of protection of the right to freedom of thought, conscience and religion. This decision establishes the doctrine of non-protection of acts permitted but not compelled by religious denominations.22 The dismissal of the employee for non-attendance at work due to the observance of religious holidays is the solution given in the Konttinen v Finland decision. The case concerns a worker who, since 1986, had been working as an employee (not a civil servant) for the Finnish State Railways and who, among other peculiarities, did not work on Saturdays or Sundays and worked a rotating working day, including some Fridays, ending at 6.30 pm. In 1991, the applicant joined the Seventh-day Adventist Church in Finland, which requires its adherents not to work on the Sabbath, the religious day of rest beginning at sunset on Friday. After informing his supervisor of this situation, Mr Konttinen left his workplace before the end of his working day on Friday to comply with this mandatory precept according to his beliefs. The employer proceeded to terminate the applicant’s employment on the grounds of non-compliance with his employment obligations. An application for amparo is lodged with the European Commission of Human Rights, based primarily on the violation of Article 9 ECHR. The Finnish Government argues that, although the dismissal could give rise to a violation of Article 9 of the Convention, it is not possible to draw such a conclusion from the evidence in the case for the following reasons. First, the employment contract had been signed, without reservation, in 1986 and the worker’s membership of the Seventh-day Adventist Church took place in 1991. The worker could have resigned from his job if he considered that his professional duties were not compatible with his religious convictions. Second, the employer had made efforts, all of

21 22

 European Commission of Human Rights, Decision 7050/75, 12 December 1985.  Motilla (2016), pp. 28–29.

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them unsuccessful, to transfer him to another job compatible with his convictions. Attempts had also been made to modify and adapt the worker’s working hours and shift rotation, but this caused inconvenience for the employer and the other workers. Third, at no time was the worker pressured to change his religious convictions or arbitrarily prevented from expressing his religion or belief. The Commission, fully accepting the Government’s allegations, dismisses the complaint on the grounds that the applicant had a duty to accept certain obligations towards his employer, including that of observing the rules governing his working hours, and had been expressly warned by his employer that he could not be absent from work. The Commission considers that he was not dismissed for his religious convictions, but for failure to observe his working hours. Such non-compliance, even if for religious reasons, cannot be considered to be protected by Article 9 ECHR, given the circumstances of the case. An interesting case in which the ECtHR questions the sincerity of the applicant’s religious convictions is the Koteski case. The case stems from an application brought before the Strasbourg Court against the former Yugoslav Republic of Macedonia (fYRoM) by a Macedonian citizen.23 The applicant did not report to work on a working day, justifying his absence by the celebration of a Muslim holiday. The employer penalised the worker because he had been absent from work without authorisation. The worker complained to the court, claiming that his right to freedom of religion had been violated when he was punished for enjoying a holiday that the government of the fYRoM had designated as a special holiday for Muslim citizens. The Court rejected the plaintiff’s claims on the grounds that there was no evidence that he actually professed the Muslim religion. The judgment was upheld on appeal, concluding that, although the legislation in force granted persons of the Muslim religion the right to celebrate paid religious festivals, the plaintiff had not provided evidence to prove that he belonged to the Muslim religion. The court relied on the fact that the applicant had previously celebrated other Christian festivals, on the fact that his parents were Christian, and on the applicant’s way of life and diet, which were associated with the Christian religion. Based on this body of evidence, the Court concludes that the applicant claimed to be a Muslim to justify his absence from work, and therefore the company’s decision is considered to be in accordance with the law and does not entail a breach of the applicant’s right to religious freedom. The worker applied to the ECtHR, claiming that his government required him to prove that he belonged to a particular religion, and that such a decision resulted in an unlawful interference with his right to freedom of religion under Article 9 ECHR. The Court dismisses his claim, taking into account the considerations of the domestic courts and states that (…) the courts’ decisions on the applicant’s appeals against the disciplinary punishment imposed on him effectively found that the applicant had not substantiated the genuineness

23

 Kosteski v Former Yugoslav Republic of Macedonia, 55170/00, 13 April 2006.

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I. Cano Ruiz of his claim to profess the Muslim religion and that, on the contrary, his conduct raised doubts about that claim as there were no outward signs that he practised the Muslim religion or joined Muslim collective cults (…). The Court notes that in this case the applicant was claiming to enjoy a special right granted by Macedonian law whereby Muslims could take holidays on special days, including the Bayram holiday, as in this case. In the context of employment, with contracts setting out specific obligations and rights for the employer and the employee, the Court does not find it unreasonable that an employer could consider absence without leave or apparent justification as a disciplinary matter. Where the employee seeks to rely on a particular exemption, it is neither oppressive nor in fundamental conflict with freedom of conscience to require some level of specificity where that claim relates to a privilege or right not generally available and, if the evidence is not produced, to reach a negative conclusion (§ 39).

What this ruling concludes, on the commemoration of religious festivities specific to each religion, is that the right not to declare one’s beliefs does not prevent those who seek to obtain a benefit, in this case, in terms of employment, from being required to prove their religious beliefs. Another interesting case that reached the ECtHR was Sessa v Italy.24 The facts can be summarised as follows: Mr Francesco Sessa, an Italian lawyer, of Jewish religion, took part in a trial in relation to the presentation of evidence. The incumbent judge being unable to attend, his substitute judge summoned the parties to choose a new hearing date, different from the previous ones, between 13 and 18 October 2005. Mr Sessa indicated that the two dates corresponded to two Jewish holidays, respectively Yom Kippur and Sukkot, and that he would not be able to attend these dates due to his religious customs. The judge did not care about his religious reasons and summoned them on the date of 13 October 2005, for which reason Mr Sessa filed an application for a postponement of the fixed date with the regular judge. The judge noted at the hearing on 13 October 2005 that the plaintiff was absent for ‘personal reasons’ and asked the other parties for their opinion on the adjournment to a different date. The Public Prosecutor’s Office and the defendants’ lawyers opposed the request, noting the absence of a legally established reason for adjournment, the only support being the other applicant’s lawyer. The judge did not agree with Mr Sessa on several grounds. On the one hand, he argued that under Article 401 of the Code of Legal Procedure, the attendance of the prosecutor’s lawyer is considered optional. On the other hand, he clarified that the aforementioned Code ‘does not consider the power of a judge to postpone a hearing on the grounds of legitimate impediments to appearance on the part of the prosecution’s lawyer’. In addition, the judge considered that, in the case of a procedure with a large number of intervening parties, and ‘taking into account the work overload of this office (which would force the hearing to be delayed to 2006), the principle of reasonable time imposes the rejection of the request, submitted by a person not entitled to request the adjournment’ (§ 32). Mr Sessa argued that the judge’s action was a clear violation of his right to freedom of religion, ‘he considered that the judicial authorities had had time (the notice 24

 Francesco Sessa v Italy, 28790/08, 3 April 2012.

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was given four months in advance) to rearrange the calendar of hearings in order to guarantee the various rights at stake and for these reasons he invoked Articles 9 and 14 of the ECHR’. The Italian government took the position that there was no violation of the applicant’s right to freedom of religion, as he was not prevented from participating in Jewish holiday celebrations, only that the exercise of this right should not interfere with the exercise of essential public services of the State. The case reached the ECtHR, which found that the holding of the court hearing on a date that coincided with a religious celebration was not sufficient grounds for alleging a change in the same and therefore ‘did not entail a restriction of the applicant’s right to worship freely’ and that the applicant had never shown ‘that he had been pressured to change his religious beliefs, or to prevent him from freely manifesting his religion or belief, so that there has been no interference with the right to freedom of religion under Article 9 of the Convention’ and, furthermore, that there has been no ‘discrimination in relation to other workers within the meaning of Article 14 of the ECHR’ (§ 37). Closer to home, it is interesting to note a ruling by the ECJ concerning time off work and membership of certain churches.25 The case is brought by a detective who, although he does not belong to the churches listed below, considers that he should be treated in the same way as those believers who work on a public holiday. In Austria, under Article 7(3) of the Law on Rest at Work, Good Friday is a paid public holiday, accompanied by a 24-hour rest period, for members of the Evangelical Churches of the Augsburg Confession and the Helvetic Confession, the Old Catholic Church and the Evangelical Methodist Church (hereinafter ‘Churches covered by the Law on Rest at Work’).26 If a member of one of these churches works on this day, however, he or she is entitled to additional holiday pay, i.e. a holiday allowance. Mr A. is an employee of Cresco, a private detective agency, and is not a member of any of the Churches covered by the Law on Rest at Work. He considers the decision not to pay him the holiday allowance for the work he performed on 3  C-193/17, Cresco Investigation GmbH v Austria, 22 January 2019.  Section 1(1) of the Arbeitsruhegesetz (Law on Rest at Work; B. 144/1983) provides as follows: ‘This Federal Act shall apply to workers of all types, notwithstanding any contrary provisions of this Act. Article 7 provides as follows: “1. On public holidays, a worker shall be entitled to a continuous rest period of at least 24 hours, beginning not earlier than 00.00 hours and not later than 06.00 hours on the public holiday. 2. For the purposes of this Federal Law, the following shall be public holidays: 1 January (New Year’s Day), 6 January (Epiphany), Easter Monday, 1 May (State holiday), Ascension Day, P. Monday, C.C. Day, 15 August (Assumption), 26 October (bank holidays), 1 November (All Saints’ Day), 8 December (Immaculate Conception), 25 December (Christmas Day) and 26 December (St. Stephen’s Day). 3. For members of the Evangelical Churches of the Augsburg Confession and the Helvetic Confession, the Old Catholic Church and the Evangelical Methodist Church, Good Friday shall also be a public holiday […]”’. Under Article 9, ‘1. Failure to work on a public holiday […] shall not entail the loss of the worker’s remuneration for that day. 2. The worker shall be entitled to the same remuneration as he would have received if he had not been exempted from work for the reasons referred to in paragraph 1 […] 5. An employee who performs work on a public holiday shall be entitled, in addition to the remuneration referred to in paragraph 1, to remuneration corresponding to the work performed, unless compensatory rest has been agreed in accordance with Article 7(6)’. 25 26

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April 2015, Good Friday, to be discriminatory and claims payment of an amount plus interest from his employer in this respect. The Austrian Supreme Court makes the following findings: that of the thirteen public holidays listed in Article 7(2) of the Rest at Work Act, all of them—with the exception of 1 May and 26 October, which have no religious connotation—are related to Christianity, and two of them are even exclusively linked to Catholicism. Moreover, all these days are non-­ working and paid for all workers, irrespective of their religious affiliation; the special regime provided for in Article 7(3) of the Law on Rest at Work is intended to enable members of the churches covered by this provision to practise their religion on a day of special importance to them; the granting of an additional public holiday depends on the religion of the workers, with the consequence that persons who do not belong to the Churches covered by the Law on Workers’ Rest enjoy one less paid public holiday than members of these Churches, which constitutes, in principle, less favourable treatment on the grounds of religion; the purpose of that provision is to enable workers who are members of one of the churches covered by the Law on Rest at Work to practise their religion on Good Friday without having to request a day’s leave from their employer. However, employees who are members of the Roman Catholic Church, to which the majority of the Austrian population belongs, enjoy this possibility, since the public holidays provided for in Article 7(2) of the Law on Work-Relief and corresponding to their religion are non-working days for all employees; it is true that some collective agreements contain provisions analogous to section 7 of the Rest at Work Act, notably in relation to the Jewish Day of Atonement or the Reformation Feast of the Evangelical Churches, but where this is not the case, workers are largely dependent on the goodwill of their employer. In these circumstances, the Supreme Court decided to stay the proceedings and to refer the following questions to the ECJ for a preliminary ruling.27 The ECJ will find direct discrimination against Mr A., first, because Articles 1 and 2(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that national legislation under which, first, Good Friday is a public holiday only for workers who are members of certain Christian churches and, second, only those workers are entitled, if they have to work on that public holiday, to a wage supplement for the work carried out on that day. We agree with Cañamares when he points out that the Court’s mistake in this judgment is in considering that the only valid term of reference in Austrian law is that derived from Articles 7 and 9 of the Weekly Rest Act, ignoring the content of Article 8 where—as is the case with some collective agreements—there is room for the right of workers to rest on the day provided for by their own convictions ‘through the duty of care and protection’ that employers have towards their employees. Consequently, the solution most respectful of the right to equality and non-­ discrimination would have been not to apply Article 9 to the cases of Article 7.3 of the Austrian Rest at Work Act. The indiscriminate recognition of paid rest for all

27

 As for the referred questions, see C-193/17, § 28.

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employees means treating those in different situations in the same way, thereby deepening precisely the kind of discrimination that is to be avoided.28 After analysing these pronouncements, we can conclude with the following reflections. First, the ECtHR has made timid progress in overcoming the doctrine laid down in the Arrowsmith v Great Britain decision, which distinguished between acts merely motivated by belief and those necessary and compelled by conviction. The latter are the only ones protected by Article 9 ECHR. Indeed, the former Human Rights Commission declared inadmissible several claims of infringement of religious freedom brought by workers who had been denied rest on days marked by their religious denomination. In more recent rulings, the ECtHR remains reluctant to accept the connection between the observance of public holidays and religious freedom, while warning that the exercise of the latter does not protect any act motivated or inspired by a religion or belief. Second, the employer is entitled to make appropriate changes to working conditions, working hours and weekly rest periods to avoid conflict between the employee’s religious duties and his or her work duties. But this is a power and not an imposition. Third, the grounds on which the Strasbourg Court bases its rejection of claims concerning the right to observe religious holidays in the field of employment are, on the one hand, the equality of the parties to the employment relationship and, on the other hand, that the employee voluntarily binds himself to each and every clause of the employment contract. These arguments are not entirely true, since the superiority of the employer is evident in the emergence of trade unions or in state regulations to protect the rights of employees, from which it follows that the relationship between the two parties is not balanced.

5 Conclusion The pronouncements of the ECtHR and of the ECJ on different external manifestations of the right to freedom of religion are taking sometimes opposing positions on the protection of the religious sphere. The use of clothing and symbols of a religious nature in the workplace is being interpreted restrictively by the ECJ through the invocation of an alleged corporate ‘neutrality’ which, although legitimate, is not sufficient to justify a difference in treatment indirectly based on religion. It must be shown that there is a real need for such a difference. The argument being used by this Court in its recent judgments is that a rule which creates a difference in treatment in the workplace indirectly based on political, philosophical or religious convictions may be justified if the employer demonstrates that it is pursuing a regime of political, philosophical and religious neutrality towards its customers or users; furthermore, that this model of neutrality must respond to a ‘real’ need connected to the context in which they take place, to

28

 Cañamares (2019), p. 11.

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the legitimate expectations of customers and, on the other hand, to the purpose of avoid unfavourable consequences of the activities carried out by the company. We are concerned that the need for a neutral model is subordinated to the legitimate expectations of customers because would it seem legitimate for a group of customers to demand that a working woman have to wear sexist clothing, footwear or make-up to perpetuate stereotypes between men and women? Clearly not. The purpose of the preliminary ruling mechanism is to enable the judges of the States that are part of the EU to refer their doubts about the validity of the rules adopted within this organisation to the ECJ. The aim is to achieve a uniform interpretation of a controversial issue. However, this result is not achieved by the use of the resource ‘direct discrimination vs. indirect discrimination’ in the religious question, to which no single answer is given, not because of the variety of cases, but because of the lack of normalisation of the religious fact in an area as everyday as the workplace. Religion continues to be discriminated against among the causes of discrimination. The diagnosis of this manifestation of the right to religious freedom is: disconnection between the ECtHR and the ECJ. Food prepared in accordance with religious rules, permitted and prohibited foods, are issues on which the ECtHR is more sensitive. The ECJ has also ruled on the legality of ritual slaughter of animals, which is part of the content of the right to religious freedom. However, meat from animals slaughtered without prior stunning cannot bear the European organic production logo because it does not respect the highest animal welfare standards. The Court cannot be said to significantly restrict religious freedom, as the practice of the halal rite remains legal and free. The ban on the organic label seems to be a good balance between animal welfare and respect. The diagnosis of this manifestation of the right to religious freedom is: connection between the ECtHR and the ECJ. On the observance of public holidays and rest days, the ECtHR is still reluctant to accept the connection between the observance of public holidays and religious freedom, while warning that the exercise of the latter does not protect any act motivated or inspired by a religion or belief. The ECJ is also reluctant to understand that equality between workers is not broken by the recognition of a worker’s right to rest because he or she belongs to a particular religious denomination that does not require the performance of a religious or liturgical activity. The diagnosis of this manifestation of the right to religious freedom is: connection between the ECtHR and the ECJ.

References Cañamares S (2019) Retribución de festividades religiosas e igualdad laboral. Revista La Ley Unión Europea 70:1–16 Faggiani V (2022) The “veiled” Swiss Constitution: the burqa ban in the context of regressive trends of democracy in Europe. Anuario de Derecho Eclesiástico del Estado XXXVIII:537–585 Fokas E (2016) Comparative susceptibility and differential effects on the two European courts: a study of grasstops mobilizations around religion. Oxford J Law Relig 5(3):541–574

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Hill M (2013) Religious symbolism and conscientious objection in the workplace: an evaluation of Strasbourg’s Judgment in Eweida and others v United Kingdom. Ecclesiast Law J 15:191–203 Mccrea R (2016) Singing from the same hymn sheet? What the differences between the Strasbourg and Luxembourg courts tell us about religious freedom, non-discrimination, and the secular state’. Oxford J Law Relig 5(2):183–210 Motilla A (2016) Derecho a conmemorar las festividades y descanso semanal. La jurisprudencia del Tribunal Europeo de Derechos Humanos en torno a la libertad religiosa en el ámbito laboral Comares, pp. 1–40 Palomino Lozano R (2013) Judgment of the European Court of Human Rights (4th Section), 15 January 2013, Eweida and others v. United Kingdom. Ars Iuris Salmanticensis 1(2):241–244 Rodríguez Blanco M (2017) La neutralidad del empresario como límite a la libertad religiosa del trabajador (Comentario a las sentencias de la Gran Sala del Tribunal de Justicia de la Unión Europea de 14 de marzo de 2017). Foro. Nueva Época 20(1):383–397 Watson P, Oliver P (2019) Is the Court of Justice of the European Union finding its religion? Fordham Int Law J 42(3):847–873 Isabel Cano Ruiz  is Professor of State Ecclesiastical Law at the University of Alcalá. Her main lines of research focus on the protection of personal data (religious data), religious diversity in the workplace, the right to education and functional diversity (disability). In the teaching field, she stands out as a member of the Support Center for Teaching Innovation and Online Studies of the University of Alcalá. In 2022, she received the Teaching Innovation Award and the XVII Social Council Award for ‘University-Society Knowledge Transfer’ in the Humanities and Social and Legal Sciences category.

The Legal Protection of Religious Freedom and Belief in Public Transport: An Approximation from the Case Law of the Strasbourg Court Silvia Meseguer Velasco

Abstract  This chapter analyses the case law of the European Court of Human Rights in the field of transport, taking two main parameters into account. The first is that they concern cases that affect the sphere of transport (generally public, but sometimes including references to private transport). Second, that they affect the exercise of citizens’ right to freedom of religion or conscience, either as users or as employees of the transport companies that manage these services. In any case, the tensions over the religious factor that arise in the field of transport and the legislative and jurisprudential solutions that are analysed show, once again, the challenge that public authorities face in managing religious pluralism in the public space of contemporary societies. Keywords  Religious freedom · Public transport · Pluralism · State neutrality

1 Introduction At present, the treatment of religious acts in different legal systems goes beyond what has traditionally been considered the religious sphere itself. The immigration phenomenon of recent decades,1 globalisation, and the secularisation of European

 See Sartori (2001), pp. 88–92.

1

This work has been carried out within the framework of the HUDISOC Project, DER2019-106005 of the Ministry of Science and Innovation. S. Meseguer Velasco (*) Universidad Complutense de Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_4

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societies, together with the remarkable emergence of new religious groups,2 are the factors commonly pointed out to explain how the religious factor has erupted forcefully in all areas of society—school, family, institutions, and public services in general— with the inevitable consequences of what has been called the ‘juridification’ of religion.3 This phenomenon has led to a significant increase in public policies relating to the management of religious diversity, we can think, for example, in hospitals, in the field of food, places of worship, cities and urban planning, etc., and, in the same progression, a considerable increase in the judicial proceedings of national and international courts on these issues. Thus, the study of the legal treatment of the religious factor already occupies a ‘space of its own’ in other disciplines of public law, increasingly involved in the protection of the indivisibility of human rights,4 and in the legal protection of a fundamental right—freedom of thought, conscience, and religion—the exercise of which must not only be guaranteed but also made effective. From this perspective, the chapter of this collective work places the focus on the specific area of public transport, that is, on the sector that organises the movements of people, and products, and goods, and the legal implications of such movements. And this for several reasons.5 First, because the legislative policies in this sector, both national and international, have traditionally been characterised by intensive intervention by the public authorities aimed at achieving proper management of the activity, leaving aside other factors not closely related to its purpose. At present, however, the above-mentioned immigration policies and national and international defence actions aimed at safeguarding public security have an impact on the effective protection of the exercise of fundamental rights, and among them, the right of religious freedom and conscience of users and workers of this group. Second, because in the field of public transport—as part of public services— some of the conflicts arising from the greater role of the religious factor in the public space have developed so that in most cases the rules—of different legal nature— which restrict the exercise of the right to religious freedom are not specifically aimed at regulating the religious fact, it is appropriate to analyse them from the perspective of ecclesiastical law insofar as these rules produce an effective reaction in citizens on religious or conscience grounds.6 And third, because precisely to the extent that they directly involve external manifestations of religious freedom and possible restrictions on its exercise in the public space, the common denominator to which States tend in relation to the religious factor and non-religious worldviews, lies in protecting human dignity, and on this

 See Palomino Lozano (2014), pp. 32–38.  See Sandberg (2011), pp. 10–14. 4  See Vega Gutiérrez (2010), p. 1106. 5  See Meseguer Velasco (2017), pp. 20–30. 6  See Martínez-Torrón (1999), pp. 58–59. 2 3

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basis, to ensure religious freedom and non-discrimination based on religion or belief of all persons and groups to which they belong.7 Therefore, this work focuses on analysing the case law of the European Court of Human Rights in this area, considering mainly two parameters. The first, logically affecting the sphere of transport of people (generally public, but sometimes including references to private). The second, that they affect the exercise of the right of religious freedom or conscience of citizens, either as users or as employees of the public or private transport companies that manage these services. In any case, the tensions on the religious factor that arise in the field of transport and the legislative and jurisprudential solutions that are analysed show, once again, the challenge that public authorities face in managing religious pluralism in the public space of contemporary societies. For this reason, before entering into the analysis of the mentioned casuistry, it will be necessary to briefly recall the general principles established by the European Court of Human Rights (hereinafter referred to as the Strasbourg Court, the Court or the ECHR) on the scope of Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention, or the ECHR), and the implicit mandate on the ideological-­ religious neutrality of the State, as a necessary condition for ensuring adequate protection of freedom of religion and belief in this particular area.8

2 Legal Coordinates for the Protection of Religious Freedom in the Strasbourg Case Law Article 9 of the Convention guarantees freedom of thought, conscience and religion, ‘individually’ or ‘in private’, through worship, teaching, practices and observance of rites.9 The religious freedom that emanates from the forum internum implies the freedom to hold or not hold religious convictions, to modify them, and to practice or not a religion, with absolute and unconditional character, without subject to any restriction or limit. In its external dimension, it implies the freedom to manifest one’s religion not only in private, but also in community with others, and in the specific circle of those whose faith is shared.10 From this point of view, freedom of religion may be subject to certain restrictions provided for by law and necessary in

 Prieto Álvarez (2010), pp. 50–51; Maclure and Taylor (2011), pp. 36–39.  Martínez-Torrón (2014), p. 109. 9  Article 9.1 ECHR: ‘Everyone has the right to freedom of thought, conscience and religion; this right implies the freedom to change one’s religion or belief, as well as the freedom to manifest one’s religion or belief individually or collectively, in public or in private, through worship, teaching, practice or observance of rites’. 10  See Kokkinakis v Greece, § 31. 7 8

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a democratic society if the objective of interference is proportional to the legitimate aim pursued.11 In any case, the term ‘religion’ is not defined either in the text of the Convention or in the jurisprudence of the Court which only qualifies that it includes both religious beliefs and convictions that are not, including expressly atheism, 12 and neopaganism.13 For its part, the term ‘practice’ does not guarantee to behave in the public space in the manner indicated by one’s religion or beliefs.14 Protection extends to manifestations of religion or belief with a degree of coherence, seriousness, cohesion, and importance,15 regardless of whether they are traditional religions or minority religious groups.16 In addition, the right to religious freedom may be exercised collectively. Indeed, religious communities traditionally exist in the form of organised structures, and the freedom of religion and belief provided for in Article 9 must be interpreted in conjunction with the right of association provided for in Article 11 of the Convention, ensuring that religious communities exercise such rights, without unnecessary interference by the State.17 For the European Court, the autonomous existence of religious communities is necessary to guarantee the pluralism inherent in democratic societies, and is, therefore, a question that is at the core of the object of protection provided by Article 9,18 without prejudice to the fact that in a society in which  Article 9.2 ECHR: ‘The freedom to manifest one’s religion or belief may not be subject to restrictions other than those which, provided for by law, constitute necessary measures, in a democratic society, for public security, the protection of public order, health or morals, or the protection of the rights or freedoms of others’. Inter alia, Bayatyan v Armenia [GC], no. 23459/03, 7 July 2012, § 123; Fernández Martínez v Spain [GC], no. 56030/07, 12 June 2014, § 124. 12  Lautsi et al. v Italy [GC], no. 30814/06, 18 March 2011, § 58. 13  Ancient Baltic Religious Association “Romuva” v Lithuania, no. 48329/19, 8 June 2021, § 117. 14  Arrowsmith v United Kingdom, no. 7050/75, 12 October 1978; Kalaç v Turkey, 1 July 1977, § 27; Leyla Şahin v Turkey [GC], §§ 105 and 121; S.A.S. c. France [GC], § 125. 15  Eweida et al. v United Kingdom [GC], no. 48420/10, 15 January 2013, § 81. 16  It is interesting to recall the interpretation of the United Nations Human Rights Committee embodied in General Comment No. 22, on the scope of protection of the core of freedom of thought, conscience and religion, according to which, ‘it protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief’. The terms belief or religion should be understood in a broad sense, so that they are not limited ‘in their application to traditional religions or to religions or beliefs with institutional characteristics or practices similar to those of traditional religions’. Cf. 48th Session (1993). General Comment 22, para 2. At the same direction, Bayatyan v Armenia [GC], § 110; Izzettin Doğan et  al. v Turkey [GC], § 114; Ancient Baltic Religious Association “Romuva” v Lithuania, no. 48329/19, 8 June 2021, § 115. 17  See Article 11 ECHR: ‘1. Everyone has the right to freedom of peaceful assembly and freedom of association, including the right to form, with others, trade unions and to join them for the defense of his interests. 2. The exercise of these rights may not be subject to restrictions other than those which, provided for by law, constitute measures necessary, in a democratic society, for national security, public security, the defense of order and the prevention of crime, the protection of health or morals, or the protection of the rights and freedoms of others. This article does not prohibit the imposition of legitimate restrictions on the exercise of these rights for members of the armed forces, the police or the State Administration’. 18  Hassan and Tchaouch v Bulgaria [GC], no. 30985/96, 26 October 2000, § 62. 11

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different religious communities coexist, restrictions are allowed to reconcile the interests and ensure respect for the convictions of the various groups.19 In parallel, the doctrine of the European Court, from the beginning and in its subsequent evolution, attributes a primary role to the principle of the neutrality of the State in religious and ideological matters.20 It is outlined as a necessary ­parameter of the action of the public authorities to ensure pluralism and the effective protection of religious freedom,21 and to guarantee the mutual independence of both spheres, without undue interference with the organisational autonomy of religious communities.22 Nevertheless, the Court considers, like the Commission, that facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in this domain must lead to the conclusion that the State interfered with the believers’ freedom to manifest their religion within the meaning of Article 9 of the Convention. It recalls that, but for 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. State action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. In democratic societies, the State does not need to take measures to ensure that religious communities are brought under a unified leadership (see Serif, cited above, § 52). The Grand Chamber of the Court holds that the mandate of neutrality implicitly recognised in the Convention includes the incompetence of the State to assess the legitimacy of the religious beliefs of its citizens or the ways in which they manifest themselves through groups religious, even if they are a minority, beyond what is its role to preserve public order, or the protection of the rights of third parties.23 The task of the Court, in such cases, shall be to monitor whether measures taken at national level entail restrictive consequences on the exercise of religious freedom by religious groups, paying special attention to the preservation of religious pluralism in democratic societies.24 In this assessment, the Tribunal may consider certain common practices or values of some States, their territorial configuration, as well as the historical background and characteristics of the religion in question.25  Kokkinakis v Greece, § 33.  That development and the relevance of the two elements identified in the judgment Hassan y Tchaouch c. Bulgaria, see Valero Estarellas (2022), pp. 68–83. 21  Serif v Greece, §§ 49 and 53. 22  Hassan and Tchaouch v Bulgaria [GC], §§ 78 and 62. 23  Ibid., § 76; Leyla Şahin v Turkey [GC], § 107; Izzettin Dogän and Others v Turkey [GC], § 132. 24  Metropolitan Church of Bessarabia and others v Moldova, no. 45701/99, 13 December 2001, §§ 115–116. 25  Bayatyan v Armenia [GC], §§ 121-122; S.A.S v France [GC], § 129; Osmanoğlu and Kocabaş v Switzerland, no. 29086/12, 10 January 2017, § 99; Cha’are Shalom Ve Tsedek v France [GC], §§ 13–19. 19 20

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At the same time, since the case of the Metropolitan Church of Bessarabia and others v Moldova argues that this notion of neutrality includes on the part of the State the prohibition of arbitrary differentiation between religious groups, In other words, it prohibits discrimination when it results in restrictive measures in the exercise of religious freedom.26 Likewise, the State will have a negative impact on its obligation to respect the organisational autonomy of religious communities when it intervenes in conflicts between various religious groups, in the election of religious leaders or in the election procedures of their governing bodies or, particularly, in conflicts between a religious community and its employees.27 In the same direction, interference is detected when States fail to properly observe their positive obligations in relation to the protection of religious beliefs in certain institutions under State agencies, for example, in prisons, armed forces, public schools, etc. In any event, the restrictions established must be assessed in the light of Article 14 of the Convention, which guarantees the right to enjoy freedom of religion and any other right or freedom recognised in the Convention, without subjecting its exercise to any discrimination, is not justified in an objective and reasonable cause.28 As it is known, in most cases equality has a relational character, not autonomous or independent; so, if the European Court considers that the substantive law subject to discrimination has been violated, it is customary that the Court does not comment on discrimination. However, it has on occasion pointed out that the application of this right may come into play, even without a breach of its requirements, and, to this extent, has an autonomous scope.29 In other words, the prohibition of discrimination enshrined in Article 14 goes beyond the enjoyment of the rights and freedoms that the Convention and its Protocols require each State to guarantee at the national level.30 In this connection, it should be noted that Protocol No. 12 to the Convention extends the scope of the prohibition of discrimination to other rights not covered by the Convention itself, such as membership of a national minority, fortune, birth,

 Metropolitan Church of Bessarabia and others v Moldova, § 105. Bayatyan v Armenia [GC], §§ 121–122; S.A.S v France [GC], § 129; Osmanoğlu and Kocabaş v Switzerland, no. 29086/12, 10 January 2017, § 99; Cha’are Shalom Ve Tsedek v France [GC], §§ 13–19. 27  See, inter alia, Suyato-Mykhayliuska Parafiya v Ukraine, no. 77703/01, 14 June 2007; Fernández Martínez v Spain [GC], 12 June 2014. 28  See Article 14 ECHR: ‘The enjoyment of the rights and freedoms recognized in this Convention shall be ensured without distinction of any kind, in particular on grounds of sex, race, colour, language, religion, political or other opinions, national or social origin, membership of a national minority, wealth, birth or any other situation’. 29  See Case concerning certain aspects of the language arrangements for education in Belgium v Belgium, nos. 1474/1962, 1677/1962 and 1691/1962, 23 July 1968, § 9. The Court reiterates this view, inter alia, in Thlimmenos v Greece [GC], no. 34369/97, 6 April 2000, § 40; Eweida et al. v United Kingdom [GC], § 85. 30  See Ancient Baltic Religious Association “Romuva” v Lithuania, §§ 115–116. Moreover, the European Court holds that this is not the only facet of the prohibition of discrimination set out in Article 14 but includes cases in which States do not treat persons in significantly different situations differently. Thlimmenos v Greece [GC], § 44. 26

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etc.31 Particularly, the scope of the additional protection refers not only to ‘any right provided by law’, but also extends to cases where a person is discriminated against by a public authority.32 Moreover, in accordance with settled case law of the Court, to raise a question under Article 14, there must be a difference in the treatment of citizens and religious groups in comparable situations with regard to the rights and freedoms recognised in the Convention. The distinction shall be discriminatory only if it is not based on objective and reasonable justification, that is, if it does not pursue a legitimate objective or if there is no reasonable proportionality between the means employed and the objective to be achieved.33 In short, the reasonable justification, as it is known, in a good part of the cases, is sustained based on the doctrine of the margin of appreciation that allows to establish different models of State-Church relations.34 The margin of appreciation for Member States to assess whether and to what extent distinctions in legal treatment between similar situations are discriminatory will vary according to the factual circumstances, legal and political characteristics of the life of society in the State in which the subject matter and the contested measure must be assessed.35

 INSTRUMENT of Ratification of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (No. 177 of the Council of Europe), done at Rome on 4 November 2000. 32  Article 1 of Protocol No. 12 provides: ‘1. The enjoyment of all rights recognized by law shall be ensured without discrimination of any kind, in particular on grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, membership of a national minority, wealth, birth or any other status. 2. No one may be discriminated against by any public authority, in particular on the grounds referred to in paragraph 1’. On the interpretation of this article and its corresponding report by the Court, see Savez Crkava “Riječ Života” and others v Croatia, no. 7798/08, 9 December 2010, §§ 103–104. 33  See Case concerning certain aspects of the language arrangements for education in Belgium v Belgium, § 10; Darby v Sweden (dec.), no. 11581/85, 23 October 1990, § 31. Likewise, in Alujer Fernández y Caballero García v Spain (dec.), no. 53072/99, 14 June 2001. 34  See Burden v United Kingdom [GC], no. 10358/83, 29 April 2008, § 60; Carson et al. v United Kingdom [GC], no. 42184/05, 16 March, 2010, § 61. 35  It also expresses this, for example, in Cha’are Shalom Ve Tsedek v France [GC], no. 27417/95, 27 June 2000, §§ 13–19; Izzettin Dogän and Others v Turkey [GC], §§ 68–70; Ancient Baltic Religious Association “Romuva” v Lithuania, §§ 115–116. The ECtHR has pointed out that ‘the political nature of parliamentary proceedings entails the risk that the granting or refusal to grant a particular status to a religious organisation may be related to political events and situations’. Magyar Keresztény Mennonita Egyház and Others v Hungary, no. 70945/11, 8 April 2014, § 102; Ancient Baltic Religious Association “Romuva” v Lithuania, § 135. 31

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3 Ideological-Religious Neutrality of the State in the Public Transport Sector Based on the concept of the ideological-religious neutrality of the State outlined by the European Court, manifestations of the right of citizens to freedom of religion and conscience must also be guaranteed in the public transport sector. Naturally, the attitude of the State to the presence of religious facts in other public institutions, such as schools, municipalities and local authorities, will be the key to finding out how these issues are addressed in this particular public space, and at the same time, to assess the possibility of transferring some of these legislative or jurisprudential solutions to the conflicts generated in this specific public space, with the appropriate adaptations required by the legal, social and cultural context in question. Consequently, apart from the breadth with which we conceive the public space— academic doctrine has addressed this question profusely36—the parameters in which the protection of religious freedom is carried out in the field of transport emerge, in general terms, from the criteria established by the Court of Strasbourg. First, transport—in its various forms: air, sea, or land—is a public service and, as such, the space in which it operates is expressly configured as a public space. From this perspective, the role of the public authorities is decisive in managing religious and ideological pluralism and at the same time ensuring and giving effect to the exercise of religious freedom and belief of the individuals and religious groups that make up contemporary societies. At the same time, this management implies that the welfare function that the public authorities develop with religious confessions—and with other actors of civil society—is also deployed in these spaces for the transport of citizens. A concrete example stems from the transfer of spaces that in most Western countries are offered for the provision of chaplaincy services at airport terminals or some of the main train stations. In Spain, without going any further, there have been no objections— let us remember, on the contrary, what happened with some chapels of public universities—to the installation of chapels for Catholic worship, or of multi-confessional chapels, in the commercial areas of airports. There are facilities of this kind in the airports of Spanish cities—Madrid, Barcelona, Malaga, and Seville—in other European cities—Rome, Milan—and in North American and Canadian—New York, Montreal. Similarly, in countries with national church systems—United Kingdom and Denmark—no objection has been raised to the provision of such religious services in common airport areas—for example, in the St. George interdenominational chapel at Heathrow Airport, London—and the same is true of countries with strict church-state separation systems—such as Orly Airport in Paris. In contrast, other airports do not allow Christian worship and it has not been possible to provide rooms in their terminals for such services.37 Similarly, in the United  See Ferrari and Pastorelli (2012), pp. 149 and ss.  For example, at Bangkok and Dubai airports, among others, there are only prayer rooms for Muslim worship. At Tel Aviv airport there is only one synagogue and no other multi-faith rooms 36 37

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States some implementing regulations were passed some time ago in the terminals of some airports and metro stations which expressly prohibited the distribution of religious propaganda and the application for financial aid to certain religious organisations; specifically, members of Jew for Jesus, or the International Society for Krishna Consciousness.38 In the same way, welfare efforts manifest themselves in cases where certain publicly owned airlines or railways collaborate with certain religious communities, for example by providing through the catering service that is served on these means of transport, compliance with the food requirements of certain religious groups. In these cases, where public airlines provide kosher or halal food, the neutrality of the public authorities in relation to a particular religious group is not affected; on the contrary, they act in furtherance of the principle of cooperation between the State and religious communities, which makes it possible to manage properly the religious diversity of citizens and the religious groups in which they are integrated. Second, the legal protection of citizens’ right to freedom of religion in this space expressly intended for public use or service, as is the case in other sectors, albeit in this area with particular firmness, may be restricted where security, order and public health reasons and the protection of the rights and freedoms of others so require. In any case, they shall act as a necessary budget for the exercise of the fundamental rights of others. These limitations, interpreted with restrictive criteria and in the sense more favourable to the effectiveness and essence of the right to religious freedom, do not, or at least should not, result from a negative assessment by the State of the legitimacy of the religious beliefs of its citizens, the European Union must also take all the necessary measures for the climate of national security demanded by Western societies, which is particularly concerned at the global acts of terrorism to which they have recently been subjected. In fact, these restrictive measures have been further aggravated since the acts of terrorism that have forced to reinforce the security measures in the various means of transport and in which the international air safety policies have been particularly affected.39 It should be borne in mind that most acts of terrorism have two elements in common: a religious background having been perpetrated in the name of fundamentalist religious positions, and which has developed in the field of transport (aircraft, metro, bus). In the case of the attacks of 11 September 2001, the weapon used to attack the Twin Towers of the World Trade Center and the Pentagon were aircraft belonging to the scheduled airlines American Airlines and United Airlines intended for passenger movement. The attacks of 11 March 2004 in Madrid were carried out are available. 38  Resolve these issues in Airport Comm’rs v Jews for Jesus, Inc., 482 U.S. 569 (1987); International Society for Krishna Consciousness v Lee, 505 U.S. 672 (1992). 39  For example, Annex 17 to the International Convention on Civil Aviation establishes mínimum on aviation safety measures that will later be developed by each State. Available in: http://apw. cancilleria.gov.co/tratados/AdjuntosTratados/d4c9a_ oaci_m-­convaviacioncivilinternalAnexoXVIIvolII1944-­texto.pdf (15/07/2022). On this issue, see Iglesias Vázquez (2021), p. 335.

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on four commuter trains, during an hour of massive passenger traffic. The same happened with the attacks of 7 and 21 July 2005 on London Underground trains. To cite a few more examples relating to the sector covered by our study, mention should be made of the attacks of 22 March 2016 at Zaventem airport in Brussels and on the metro in the same city, in which 35 people died and more than 300 were injured. Then, in the French city of Nice, on 14 July 2016, the attack, committed on behalf of the Islamic State, was perpetrated with a truck directed at a crowd of people celebrating France’s National Day. On December 19, 2016, in Berlin, a truck broke into a Christmas market located in a commercial area of the city, resulting in the death of twelve people and the wounding of fifty. In this case too, the attack was vindicated by Islamist terrorists from Daesh. On 3 April 2017, on the Saint Petersburg metro, a suicide bombing occurred on a train, and on 7 April 2017, in Stockholm, a truck rammed a crowd of people. And, on August 17, a mass vehicular accident was committed with a van on the promenade of Las Ramblas in Barcelona and in Cambrils, resulting in 15 deaths and one hundred and thirty injuries. Both acts of terrorism were claimed by the Islamic State. Consequently, the response of the States to these events did not wait.40 The safety rules were reinforced by restrictive measures which, in most cases, include the exercise of fundamental rights by users and workers (drivers, crew members, etc.) of these means of transport. For example, the introduction of certain security measures at airports and at some train stations, mainly in the United States and in some European countries, such as the installation of the body scanner, biometric identification through computer reading of the iris, fingerprints, or the transfer of passenger data (Passenger Name Records), have been subject to various doctrinal criticisms to the extent—and not only for this, but also because of the risks that in certain cases may entail for health— which may involve a violation of the right to privacy and respect for privacy, the protection of personal data, or the right to freedom of religion and conscience.41 Let us look at some of these cases which have a direct bearing on the legal protection of the right to religious freedom and belief, particularly those on which the European Court of Human Rights has ruled directly.

4 Impacts on the Exercise of Religious Freedom by Transport Users Under the prism of the events that have occurred in the field of public transport, if we refer to some paradigmatic judgments of the European Court of Human Rights in which respect for public security is invoked as a limit to the exercise of the right to religious freedom when wearing certain religious garments or objects, in all 40 41

 Durham and Ligget (2006), pp. 42–43.  Bello-Salau et al. (2012), pp. 664–672.

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cases, it is considered that there is no interference with the applicants’ right to religious freedom within the meaning of Article 9 of the ECHR, claiming that in a democratic society, measures to safeguard the security and public order must prevail. A similar argument is used to resolve disputes relating to the identification of persons on identity documents (national documents, passports, and, particularly, driving licence) where the photograph identifying them is omitted or any visible religious garment or symbol is worn which may, to a greater or lesser extent, depending on the attire in question, make identification difficult. For the Strasbourg Court, religious freedom may be subject to restrictions in the case of provisions established to ensure the security of States, without disproportionately affecting the exercise of the right to religious freedom.42 Thus, in relation to the protective measures laid down in the security controls, the Phull v France43 case stands out. The airport authorities forced Mr Phull, a British citizen, a practicing Sikh, to get rid of the turban he was carrying because of his religious beliefs in the security check at Strasbourg airport. The applicant raised the issue of interference with the exercise of his religious freedom, arguing that there was no need on the part of the security personnel to force him to withdraw his turban, particularly because he was willing to pass the security check through the scanner intended for this purpose or to undergo a check with a portable detector. The Strasbourg Court, for its part, considered that this action could be regarded as interference with the exercise of its right to manifest its religion or belief and that such a measure ‘was not provided for by law’, at the same time, it noted that it was aimed at fulfilling one of the legitimate objectives referred to in Article 9.2 of the Convention, which allows restrictions to be placed on its exercise precisely to ensure public security. For this reason, it rejected the admissibility of the application as manifestly unfounded, arguing that security checks at airports are necessary in a democratic society for the sake of public security. Consequently, the application in the present case of those measures fell within the State’s discretion.44 In addition, the Court referred to case X v United Kingdom of 12 July 1978, in which it addressed a different case, not directly related to public safety in public transport, but rather to the personal safety and health risks of the person wearing certain religious symbols in lieu of the elements provided by the relevant regulatory authorities, even when they are for private use. This is the well-known case of a British citizen, Sikh practitioner, who had been repeatedly punished with traffic fines for refusing to wear the helmet required to drive motorcycles for being incompatible with the turban that his religion obliged him to wear. The Commission found that the compulsory use of a helmet for riding motorcycles was a necessary safety measure and that any interference which the complainant might have suffered with his right to religious freedom was justified by the health protection under Article 9.2. However, the Commission’s decision was criticised to the extent that the

 El Morsli v France (dec.), no.15585/06, 4 March 2008.  Phull v France (dec.), no. 35753/03, 11 January 2005. 44  See Evans (2009), p. 92; Elósegui Itxaso (2013), pp. 271–272. 42 43

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justified interference in the protection of the health of this citizen should be directed at public health, which is the true limiting element of religious freedom referred to in Article 9.2 of the Convention.45 In the same vein, in relation to the identification of persons on the supporting documents, in the Mann Singh46 case, a truck driver, after having had his driving licence stolen, he was refused a duplicate because he appeared in the photographs with his turban, which his religion demanded, and he submitted the complaint to the European Court on the grounds that his religious freedom was being violated. In this case, too, the Court, without stopping to examine the applicant’s claim and based on the State’s margin of discretion, rejected the admissibility of the ­application as manifestly unfounded. In its view, the alleged interference with religious freedom had been temporary, justified, and proportionate to the aim pursued, without assessing that the applicant was authorised prior to the turban being shown on the photograph on his driving licence, particularly that the applicant was normally travelling with the turban, which was therefore the most appropriate way to identify him. Subsequently, in a different forum, Mr Singara Mann Singh submitted a complaint concerning the prohibition of wearing a turban on the photograph, in this case, of his passport, to the UN Human Rights Committee.47 The difference in how the situation is addressed in both cases is clear. For the Strasbourg Court, interference with the right to freedom of religion is justified by the existence of a rule necessary to preserve public security which requires it and, in turn, relies on the discretion of the States. The UN Human Rights Committee, while not binding, argues that it will be necessary to explain why these measures are specifically aimed at preserving security and public order, trying, in any case, to balance the interests at stake.48 It follows from the foregoing that, despite the fact that the tension between the demonstrations on the right to religious freedom, the autonomy of the individual will, and the public interest that opposes it is relatively frequent, most of the cases are resolved in the same direction, and in a particularly relevant way, in the public transport sector. That is, recognising that in globalised societies priority is given to measures to protect security and public order which implicitly entail the possibility of negatively delimiting the content of certain fundamental rights and freedoms which, since they are not absolute, may be subject to legal restrictions and may be limited to their exercise. In any case, the administrative doctrine understands that, to the extent possible, unjustified abuses should be avoided and cause the least possible harm in the intimate sphere of the citizen.49 In other words, it is not a question of other rights being infringed in defence of public order and security, but rather of

 X v United Kingdom (dec.), no. 7992/77, 12 July 1978.  Mann Singh v France (dec.), no. 24479/07, 13 November 2008. 47   HRC, 26/09/2013, CCPR/C/108/D/1928/2010. Available in https://strasbourgobservers. com/2013/11/19/mann-singh-wins-in-geneva-after-losing-in-strasbourg/#more-2197. 48  Ibid. 49  Guerrero Lebrón (2010), pp. 151–163; Acosta Gallo (2006). 45 46

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making a weighting judgment between the tensions that arise in each case to try to accommodate the religious beliefs of users, suffering the minimum possible restrictions in the exercise of their rights.

5 Conflicts of Transport Workers on the Grounds of Their Religious Beliefs In the following, we will analyse those cases in which the exercise of the right of religious freedom of workers clashes with the restrictions imposed by reason of safeguarding the personal safety and health of the worker himself, or with the freedom of enterprise, in cases of sabbatical rest or the use of religious symbols for personal use. In these cases, we have two possible courses of action for States. The first, typical of American50 and Canadian51 law, tries to accommodate the religious beliefs of the worker, as long as they do not involve an undue burden for the company or for other workers. For their part, the worker bears the burden of proving that he or she professes certain religious beliefs, as well as demonstrating their sincerity. Additionally, it must prove that the discrimination at work resides mainly in these beliefs and must inform the employer in advance so that a solution can be proposed that takes into account the interests at stake, through the balancing test or proportionality criterion applicable in the resolution of industrial disputes.52 The second, typical of countries in the European environment, in which the theory of reasonable accommodation and the application of the rule of proportionality have not penetrated legislative policies or judicial pronouncements with the effectiveness that could be expected. In the same vein, the European Court of Human Rights, through the Commission first,53 and the Court itself later,54 has not shown any particular sensitivity to protecting the freedom of worship of workers when it conflicts with their obligations arising from the contractual relationship, irrespective of whether the employer is an employer or the public administration. The cases raised so far show that the Court, in those occasions where it comes into play, on the one hand, demonstrations of the right of religious freedom of the worker and, on the other hand, the right of the employer or administrative or judicial authorities to enforce the obligations arising from the employment relationship under the terms agreed, does not require the employer to make a reasonable accommodation effort

 Sherbert v Verner, 374 U.S. 398 (1963).  Ontario (Human Rights Commission) v Simpsons-Sears Ltd., (1985) 2 S.C.R. 536. 52  See Pearson (2012), pp. 35–42. 53  X v United Kingdom, 12 March 1981; Kontinnen v Finland, no. 24949/94, 3 December 1996 and Stedman v United Kingdom, no. 29107/95, 9 April 1997. 54  Kosteski v ex-Yugoslav Republic of Macedonia, no. 55170/00, 13 April 2006. 50 51

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about the worker’s religious beliefs.55 On the contrary, they transfer the problem to the worker, placing him in the position of choosing between fulfilling his contractual obligations or his religious obligations, to the detriment of the effective legal protection of his right to religious freedom. In any case, as we will now study, since Bayatyan and Eweida the approach of the Strasbourg Court has evolved towards greater protection of religious beliefs in the workplace. Of particular relevance to our study is the specific field in which it is developed the Konttinen case. In this incident, a worker of the Finnish State railway, whose religious beliefs had changed after his conversion to Seventh-day Adventists, requested permission to attend to his religious duties. These beliefs required him to respect rest from Friday afternoon until Saturday sunset. In response to the refusal to take leave, the worker was absent and shortly after informed of the dismissal from his job. The Finnish Courts upheld the employer, and the European Commission declared the application inadmissible, on the understanding that the dismissal had occurred because he had been absent from work before the end of the working day, without giving importance to the absence being motivated to attend to their religious beliefs. In any event—the Commission, similarly, the Court will assume it later— held that if religious beliefs are an obstacle to the performance of contractual obligations, the worker may resign from his job to guarantee his right to freedom of religion and the expression thereof.56 In definite, in Konttinen, as in the other cases mentioned, the Commission considers that the redundancies of the employees were caused by the breach of the obligations arising from the contractual relationship, without entering into an assessment of the extent to which these dismissals have been motivated by the religious beliefs of the workers and, above all, without distinguishing the status of the employee; that is, if he is a public employee (a civil servant) or an employee performing his professional duties in a private company. In summary, it maintains that the exercise of the worker’s religious freedom, within the established legal limits, is not a cause that can be invoked to justify the breach of obligations arising from the employment relationship. It even appears that when these beliefs conflict with work obligations, regardless of the type of employment relationship involved—whether public or private—the criterion for resolving these questions is to assess the worker’s actual ability to change jobs. At the same time, the Court is unaware that some of the assumptions to which we are referring are frequently conscientious objections arising after the birth of the contractual relationship, in some cases, because the worker does not manifest them—X v United Kingdom— in others, because the worker modifies such beliefs throughout the employment relationship—Kontinnen—and that, in any event, such situations of abstention from manifestation or modification of religious beliefs cannot be an obstacle to their protection; both fall within the specific content of the

 Francesco Sessa v Italy, no. 28790/08, 3 April 2012.  Konttinen v Finlandia (dec), no. 24949/94, 3 December 1996. In Stedman v United Kingdom (dec.), no. 29107/95, 9 April 1997, it is similarly decided. 55 56

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fundamental right to religious freedom in the terms referred to in Article 9 of the ECHR. After the Commission disappeared, the Court transferred this criterion to other similar cases in which we will not stop because it does not directly affect the public transport sector, Kosteski v ex-Yugoslav Republic of Macedonia,57 and Sessa v Italy.58 On the contrary, there is a glimpse of the doctrine more favourable to the protection of conscientious objection in the Bayatyan case,59 which will later be manifested in Eweida. In the Bayatyan case, the Grand Chamber of the Strasbourg Court uses two particularly interesting arguments which go beyond the strict scope of conscientious objection to military service, allowing its application to other areas where conflicts of conscience arise from the tension between the fulfilment of obligations arising from ‘neutral laws’ and moral duties arising from a sufficient conviction ‘imperative, serious, coherent and important’.60 On the one hand, the Court holds that although Article 9 of the ECHR does not expressly refer to conscientious objection, it is clear that it is protected by the same when a serious and unavoidable conflict occurs with legally established obligations and based on ‘a conviction or belief of sufficient imperativity, gravity, coherence and importance’.61 On the other hand, it implicitly incorporates the need to reasonably accommodate beliefs by understanding that ‘the penalties imposed on the complainant cannot be considered a necessary measure in a democratic society, particularly in view of the fact that there were other alternatives to accommodate the respective opposing interests of the State and the objector’.62 The Grand Chamber of Strasbourg in the Eweida case63 is maintained in this direction. Of the four different situations dealt with in this case, we are particularly interested in the Eweida case because it directly affects the field of air carriers. In fact, Nadia Eweida, a flight attendant stationed at the British Airways land offices, was dismissed when she refused to remove the crucifix—she was a Coptic Christian—which she wore hanging from a chain around her neck, claiming that it was contrary to the uniform rules of the airline. When the employee refused to stop wearing her religious symbol, she was dismissed, and Eweida went to the British courts. The Courts, although the company itself rectified the code of uniformity, admitting the possibility of wearing certain symbols, did not agree.64 The Strasbourg Court, for its part, held that, in view of the importance of safeguarding freedom of religion and belief in a democratic society, the approach

 Kosteski v ex-Yugoslav Republic of Macedonia, §§ 39 and 46.  Sessa v Italy, 3 April 2012. 59  Bayatyan v Armenia [GC], 7 July 2011. 60  See Martínez-Torrón (2014), pp. 53–54. 61  Bayatyan v Armenia [GC], § 110. 62  Ibid., § 125. 63  Eweida and Others v United Kingdom, nos. 48420/10, 36516/10, 51671/10 et al.,15 January 2013. 64  See Hill (2013), pp. 1–15. 57 58

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adopted so far should be changed, by subjecting it to a new review criterion that assesses the clash between the worker’s beliefs and the employer’s freedom of enterprise,65 in such a way that ‘when a person complains of a restriction on freedom of religion in the workplace, instead of stating that the possibility of changing jobs would avoid any interference with the law, the best approximation would be to weigh the possibility in the total balance when considering whether the restriction was proportionate or not’.66 The Court abandons the previously held view that ‘the freedom to leave work—opting out—is the ultimate guarantee of religious freedom, the escape valve available to the employee in case of conflict’.67 Next, and without forgetting the margin of appreciation of States, the Court considers that in this case a fair balance was not reached68—it should also be borne in mind that the company itself was contemplating the possibility of making exceptions to this question—and therefore argues that particular care should be taken to balance the interests at stake, without any ‘real invasion of the interests of others’. 69 The academic literature has positively perceived the change of direction of the Court in considering that a business rule which prevents a worker from fulfilling a moral obligation constitutes an interference with the freedom of conscience guaranteed by Article 9 of the ECHR, provided that such a moral obligation arises from ‘conceptions which attain a certain level of imperativity, seriousness, coherence and importance’, and that there is a ‘sufficiently close and direct link between the act in question and the underlying belief’ thus, the State must provide a justification that allows such interference in the freedom of conscience of the worker, applying the criteria of Article 9.2 of the ECHR, and therefore proving that it is necessary in a democratic society.70 In any event, it seems that the Strasbourg Court considers that the application of the rule of proportionality makes it possible to balance the conflicting rights in the labour field and qualifies the unilateral application of the employer’s will, weighing the particular considerations that relate to the specific employment situation and the good faith of the worker. This will not imply that the protection of the right to religious freedom must always be victorious, but it will require that in those cases in which it is intended to restrict a right, at least, sufficient and convenient justification is provided to those who by their acts affect that right; that is, it is verified whether the benefit obtained by the restriction of the right to religious freedom is adequate with the interference caused by the same measure.

 See Palomino Lozano (2016), p. 76.  Eweida, § 83. 67  See Motilla (2016), p. 23. 68  Eweida, § 84. 69  Ibid., § 95. 70  See Martínez-Torrón (2014), pp. 57–58; and Eweida, §§ 81–83. 65 66

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6 Final Considerations Of course, in the globalised environment to which we have been referring since the beginning of this work, means of transport have become one of the main engines of social progress and the economic development of people. In fact, the economic relevance of the transport sector is reflected in the fact that it has become one of the main policy lines for preferential action by States at the national and European Union level. At the same time, national and international public policies on the public means of transport analysed are aimed at safeguarding public safety and order, without specifically considering the legal protection of religious beliefs which are manifested in this field, and which are only the mirror in which is reflected, in large part, what is happening in other areas of the public sphere. In short, we are witnessing a phenomenon of mimetisation of conflicts that have been transferred from one area to another, so it is appropriate to look at the solutions adopted in other areas: schools, institutions, municipalities, etc., to extract the common lines of action that public authorities apply to manage religious pluralism in public space. In any case, from a legal perspective, it is necessary to carry out an exercise of weighting that makes it possible to harmonise the rights and duties of the State in the area of the provision of public services with the protection of citizens’ religious or ideological beliefs. This process requires the involvement of the various actors involved in the public sphere: legislators, courts of justice, public administrations, and religious communities. It is the duty of the legislature to guarantee and give effect to the exercise of the fundamental right of religious freedom, without prejudice to its legitimate powers in matters of security and public order. It must therefore pay particular attention to the environment in which safety rules are applied which restrict the exercise of religious freedom—the transport sector undoubtedly has some peculiar characteristics—and consider the scale of the risk to provide for some reasonable exceptions to compliance with general rules. The courts, for their part, must examine conflicts of law not only in the light of the interests of the State in relation to the specific measure justifying a restrictive rule, but also by assessing whether the exemption from compliance could affect the State’s ability to achieve its legitimate objective. In other words, they must apply a proportionality judgment, enabling them to check whether the restriction is really necessary, and not only useful, in a democratic society. The network of reciprocal rights and duties that originate between the public administration and citizens, among which the safeguarding of public security stands out, allows the latter, in certain situations, to impose limitations on their fundamental rights, but without restricting or eliminating the exercise of the right to religious freedom by mere conjecture or suspicion about possible future behaviour and its hypothetical consequences.

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For its part, the role of religious communities in this process will be decisive in reducing conflict and providing a path to peace.71 It is precisely this positive attitude of mutual cooperation between public authorities and religious communities that will make it possible to promote the conditions necessary for the freedom and equality of the individual and the groups in which they are integrated real and effective, as required by many European constitutional texts.

References Acosta Gallo P (2006) Las nuevas amenazas a la seguridad y el concepto de orden público en democracia. Revista General de Derecho Administrativo 11 Bello-Salau H, Salami AF, Hussaini M (2012) Ethical analysis of the full-body scanner (FBS) for airport security. Adv Nat Appl Sci 6(5) Durham WC, Ligget BD (2006) The reaction to Islamic Terrorism and the Implications for Religious Freedom after September 11: A United States Perspectives, Derecho y Religion 1 Elósegui Itxaso M (2013) El concepto jurisprudencial de acomodamiento razonable, Aranzadi, Pamplona Evans MD (2009) Manual on the Wearing of Religious Symbols in Public Areas, Council of Europe Ferrari S, Pastorelli S (eds) (2012) Religion in public spaces. A European perspective. Ashgate, London Guerrero Lebrón M (2010) El nuevo escáner corporal de los aeropuertos, ¿violación de derechos o aumento de la seguridad? Revista de Derecho del Transporte: Terrestre, marítimo, aéreo y multimodal 4 Hill M (2013) Simbología religiosa y objeción de conciencia en el lugar de trabajo: un examen de la sentencia de Estrasburgo en Eweida y otros c. Reino Unido. Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 32 Iglesias Vázquez MA (2021) Seguridad nacional, derechos fundamentales y directiva (UE) 2016/681 (directiva PNR). In: Fernández Rodríguez JJ (ed) Democracia y seguridad: respuestas para avanzar en el sistema público, Tirant Lo Blanch, Valencia Maclure J, Taylor C (2011) Laicidad y libertad de conciencia, Alianza Editorial, Madrid Martínez-Torrón J (1999) Religión, Derecho y Sociedad. Antiguos y nuevos planteamientos en el Derecho Eclesiástico del Estado, Comares, Granada Martínez-Torrón J (2014) Símbolos religiosos institucionales, neutralidad del Estado y protección de las minorías en Europa. Ius Canonicum Vol. 54, núm. 107 Meseguer Velasco S (2017) Transporte y factor religioso. Dykinson, Madrid Motilla A (2016) Ora et labora. Festividades descanso semanal en la jurisprudencia del Tribunal de Estrasburgo. Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 40 Palomino Lozano R (2014), Neutralidad ideológico-religiosa y espacio público, Thomson Reuters, Cizur Menor, Navarra Palomino Lozano R (2016) La religión en el espacio público. Los símbolos religiosos ante el Derecho, Digital Reasons, Madrid Pearson M (2012) Proportionality: a way forward for resolving religious claims. In: Spencer (ed) Religion and Law, London Pérez-Madrid F (ed) (2017) Religión, libertad y seguridad. Tirant Lo Blanch, Valencia Prieto Álvarez T (2010) Libertad religiosa y espacios públicos. Laicidad, pluralismo y símbolos, Civitas Thomson Reuters, Cizur Menor, Pamplona Sandberg R (2011) Law and religion. Cambridge University Press, New York 71

 On this question, we can deepen in the different studies collected in Pérez-Madrid (2017).

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Sartori G (2001) La sociedad multiétnica. Pluralismo, multiculturalismo y extranjeros, Taurus, Madrid Valero Estarellas MªJ (2022) Neutralidad del Estado y autonomía religiosa en la jurisprudencia de Estrasburgo, Tirant Lo Blanch, Valencia Vega Gutiérrez A (2010) Gobernabilidad democrática y desarrollo humano: algunas implicaciones de la indivisibilidad de los derechos humanos. In Blanco et  al. (eds) Ius et Iura, Comares, Granada Silvia Meseguer Velasco  is Professor of Law at the Complutense University of Madrid and Academic Correspondent of the Spanish Royal Academy of Jurisprudence and Legislation; Vice-­ President of LIRCE (Institute for the Analysis of Religious Freedom and Religious, Cultural and Ethical Identity); member of the Spanish Association of Canonists; member of Consociatio Internationalis Studio Iuris Canonici Promovendo; extraordinary member of the Latin American Consortium for Religious Freedom, and of the International Consortium for Law and Religion Studies (ICLARS); lawyer of the Illustrious Bar Association of Madrid (1991) and Rotal Lawyer (2001); and member of the Editorial Board of the General Journal of Canonical and Ecclesiastical Law of the State. She has participated in several research projects funded by the Ministry of Economy and Competitiveness, the European Commission and the Community of Madrid. Her research activity has been linked to the ideological-religious neutrality of the State and the various manifestations in Spanish law and compared in relation to the main sectors involved: financing of religious denominations at the national, autonomous and comparative law; management of the cultural heritage of ecclesiastical ownership; management of religious plurality in the field of services (public transport), public institutions (Armed Forces and schools) and sport; and teaching religion in public and charter schools, etc.

Personal Beliefs, Family and Education of Children Miguel Rodríguez Blanco

Abstract  This chapter analyses some of the problems that arise in the exercise of the right to religious freedom by minors. To carry out the study, cases have been selected from the European Court of Human Rights that deal with the education of minors in accordance with the religious beliefs of their parents, respect for the cultural and religious tradition of minors in the adoption of protective measures that entail a restriction of parental authority, conflicts between parents themselves regarding the religious orientation of their children, and parental refusal of compulsory vaccination of children. Emphasis is placed on the importance of respecting the child’s autonomy, maturity and best interests without undermining parental rights or making subjective value judgments about their beliefs. Keywords  Child rights · Best interests of child · Religious freedom · Education · Family law · Child custody · Compulsory vaccination

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 ducation of Minors, Religious Freedom and Rights E of the Parents

This chapter focuses on the right to religious freedom of minors and the problems that arise when this right is exercised by parents on behalf of their children. Specifically, it will deal with various issues related to the scope of parents’ rights in relation to their children, with particular attention to private and family life, religious freedom and the education of children in accordance with their parents’ religious convictions. The original version of the chapter has been revised. A correction to this chapter can be found at https://doi.org/10.1007/978-3-031-34503-6_19 M. Rodríguez Blanco (*) University of Alcalá (Spain), Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023, corrected publication 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_5

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Some relevant cases of the European Court of Human Rights (ECHR) have been chosen for the study. The choice of cases has considered the importance of the issues they address, the problems they raise, and the lack of clear and precise answers. This chapter does not contain an exhaustive compilation of all the proceedings before the ECHR that deal with the interaction between the beliefs of parents and the rights of their children, but rather offers elements of reflection, based on pronouncements of undoubted relevance, with the aim of showing the principles that must be considered to reconcile the integral development of the child and his or her best interests with the rights to private and family life, to religious freedom and to education when they are exercised by parents as a manifestation of parental authority over their children. It is an uncontroversial legal fact that the child is entitled to both the right to education and the right to religious freedom.1 The very wording of both rights makes this clear, as expressions such as ‘everyone’ or ‘every person’ are used when stating them. Article 18 of the Universal Declaration of Human Rights2 says that ‘everyone has the right to freedom of thought, conscience and religion’. Article 27 of the same Declaration indicates that ‘everyone has the right to education’. The same terminology is used by Article 9 of the European Convention on Human Rights (‘the Convention’),3 which recognises freedom of thought, conscience and religion to every person, and by Article 2 of Protocol No. 1, concerning the right to education. In the specific international texts on children’s rights, both rights are unambiguously stated. The Convention on the Rights of the Child (CRC)4 provides in Article 14, para 1, that ‘States Parties shall respect the right of the child to freedom of thought, conscience and religion’. On other hand, Article 28, para 1, reads as follows: ‘States Parties recognize the right of the child to education’. The CRC establishes four essential principles that inform the entirety of children law: prohibition of discrimination, best interests of the child, right to life and integral development, and the child’s right to be heard.5 Particularly, the best interests of the child is the guiding light for decisions affecting children and, at the same time, the basis on which those decisions must be made. The justification of decisions affecting children’s rights must show the reasons why the best interests of the child is preserved and protected. These four principles are complemented by the rights, duties and responsibilities of parents as persons legally responsible for their children. In this sense, Article 5 of the CRC provides: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

 For the capacity of children to be holders of rights with particular focus on religious freedom, see Papadopoulou (2004), pp. 533–551. 2  Adopted 10 December 1948, UN General Assembly resolution 217 A. 3  Adopted 4 November 1950, Council of Europe. 4  Adopted 20 November 1989, UN General Assembly resolution 44/25. 5  Cfr. Articles 2, 3, 6 and 12 of the CRC. 1

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This role of parents is expressly recognised in the field of religious freedom and education. Article 5 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,6 states that the parents or, as the case may be, the legal guardians of the child have the right to organise the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.7 The Special Rapporteur on freedom of religion or belief on the elimination of all forms of religious intolerance, in the report presented at the 70th Session of the General Assembly (UN Doc. A/70/286, 5 August 2015), pointed out that: 22. Given the child’s dependency on an enabling family environment, albeit with recognition of the variety of family forms, parents have the primary responsibility for supporting the child in the exercise of his or her human rights. According to Article 5 of the Convention on the Rights of the Child, they should provide ‘appropriate guidance and direction’ to the child in that regard. That specific responsibility entrusted to the parents also constitutes a parental right that the State must respect and protect. Article 14, paragraph 2, of the Convention further specifies that general understanding by enshrining due respect for the rights and duties of the parents ‘to provide direction to the child in the exercise of his or her right’ to freedom of religion or belief.

According to the above, parents are entitled to make decisions about the spiritual life of their children,8 but it should not be forgotten that the holder of religious freedom is the child himself/herself, hence, as he/she develops and matures, his/her own judgment should be considered.9 Thus, Article 14, para 2, of the CRC establishes that States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right ‘in a manner consistent with the evolving capacities of the child’. In relation to this last point, the Committee on the Rights of the Child General Comment No. 20 (2016), on the implementation of the rights of the child during adolescence, 6 December 2016, § 43, makes the following points in this regard: The Committee urges States parties to withdraw any reservations to Article 14 of the Convention, which highlights the right of the child to freedom of religion and recognizes the rights and duties of parents and guardians to provide direction to the child in a manner consistent with his or her evolving capacities (see also Art. 5). In other words, it is the child who exercises the right to freedom of religion, not the parent, and the parental role necessarily diminishes as the child acquires an increasingly active role in exercising choice throughout adolescence.

These general premises of international children law have been recalled because the content of the CRC, as well as of other international instruments, is applicable

 Adopted 25 November 1981, UN General Assembly resolution 36/55.  See also Article 18, para 4, of the International Covenant on Civil and Political Rights [Adopted 6 December 1966, UN General Assembly resolution 2200A (XXI)] and Article 13, para 3, of the International Covenant on Economic, Social and Cultural Rights [Adopted 6 December 1966, UN General Assembly resolution 2200A (XXI)]. 8  Barker (2020), p. 157. 9  Langlaude (2007), p. 108. 6 7

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in the resolution of cases brought before the ECHR, according to the basic rules of the international law on treaties. The ECHR has reiterated several times that ‘the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights’.10 In cases dealing with the religious freedom of children, the four articles of the Convention that are most frequently connected and invoked by the complaints are: Article 8, right to respect for private and family life, Article 9, right to religious freedom, Article 14, prohibition of discrimination, and Article 2 of the Protocol No. 1, right to education. In all the cases to be analysed in this study, the parties raise the relationship between these four rights, which in many facets of children’s lives cannot be dissociated. The ECHR has a well-established doctrine on Article 14 of the Convention, according to which this provision complements the other provisions of the Convention and its Protocols. Article 14 is not substantive in itself, since it has effect only in relation to the enjoyment of the rights and freedoms recognised under the Convention. The Court has frequently underlined that Article 14 merely complements the other substantive provisions of the Convention and the Protocols. This means that Article 14 does not prohibit discrimination as such, but only discrimination in the enjoyment of the ‘rights and freedoms set forth in the Convention’. In other words, the guarantee provided by Article 14 has no independent existence and the Court always examines Article 14 in conjunction with another substantive provision of the Convention. However, the ancillary nature of Article 14 in no way means that the applicability of Article 14 is dependent on the existence of a violation of the substantive provision.11 On the right to education, the ECHR has pointed out that Article 2 of Protocol No. 1 is closely linked to Article 14 of the Convention and to the prohibition of discrimination. Also, it should be underlined that in the field of education and teaching, Article 2 of Protocol No. 1 is basically a lex specialis in relation to Article 9 of the Convention.12 The relationship between both precepts is evident, since one of the manifestations of religious freedom is the right of parents to educate their children according to their own convictions. Likewise, the right to respect for private and family life is concerned in many situations related to the education of minors and the exercise of religious freedom, as will be discussed in the following pages.

 Case of Nada v Switzerland, Grand Chamber, 12 September 2012, (Application No. 10593/08), § 169. 11  ECHR (2022a), Guide on Article 14, pp. 6–7. 12  ECHR (2022b), Guide on Article 2 of Protocol No. 1, p. 6. 10

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2 Children’s Right to Education Versus Parents’ Religious Freedom The general obligation to attend to the best interests of the minor as primary consideration has particular concretisations in each fundamental right of which the child is the holder. In the case of education, Article 29, section 1, of the CRC states that the education of the child should be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment.

Parents have the right to ensure the religious and moral education of their children in conformity with their own convictions, but this right must respect the child’s own rights and the purpose of education. An ECHR case on the collision between the religious freedom of parents and the best interests of their children in which the right to education is present in the background, both from the perspective of the decisions that parents have to take and from the perspective of the guarantees afforded to children, is Wetjen and Others v Germany, fifth section, Applications Nos. 68125/14 and 72204/14, 22 June 2018. The applicants are members of the Twelve Tribes Church. They live in a community of around 100 members of the church. The German courts agreed to place their children in the custody of the public authorities and deprived the parents of several parental rights in view of the likely risk that the children would be subjected to corporal punishment as a form of correction and education. The applicants complained that the withdrawal of parts of their parental authority and the subsequent separation of the children and their parents had been disproportionate and not grounded on a sufficient factual basis, but on general considerations about the Twelve Tribes Church and their religious beliefs. They further complained that they had been prevented from raising their children in compliance with their religious beliefs and that the court proceedings had led to the stigmatisation of their religious community. They alleged violation of their right to respect for their family life, as provided for in Article 8 of the Convention. In addition, they also invoke Articles 9 and 14  in conjunction with Article 8 of the Convention, Article 2 of Protocol No. 1 and Article 6 § 1 of the Convention (cfr. § 3 and 44 of the ECHR’s pronouncement). There, the ECHR reiterates that the right to respect for family life and to religious freedom, as enshrined in Articles 8 and 9 of the Convention, together with the

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right to respect for parents’ philosophical and religious convictions in education, as provided for in Article 2 of Protocol No. 1 to the Convention, convey to parents the right to communicate and promote their religious convictions in bringing up their children (Vojnity v Hungary, no. 29617/07, § 37, 12 February 2013). However, this right of parents is subject to limits and particularly does not entitle them to expose their children to physical or psychological punishment or ill-treatment, as this would be contrary to the best interests of the child. The Court confines itself to analysing the case from the perspective of Article 8, the right to private and family life, which is the one invoked by the applicants, although it considers the references made by the applicants to the other Convention articles mentioned above, 9 and 2 of Protocol No. 1. The position taken by the ECHR is that there are no matters of substance which fall within the scope of freedom of religion and the right of parents to bring up their children in accordance with their convictions. Depriving parents of certain parental rights entails interference with the scope of protection of the right to private and family life. This obliges the Court to examine whether, in the particular case under consideration, that restriction satisfied the requirements of Article 8 § 2 of the Convention. After analysing the facts, the Court finds that the measure was provided for in the legislation and pursued a legitimate aim, namely the health and rights of minors. Having reviewed the circumstances of the case and assessed the submissions of the intervening parties, the Court considers that the decisions of the German authorities were not taken in the abstract, but that it is established that they made a detailed assessment of the factors present, were reasoned and sought to preserve the best interests of the children. This is evidenced by the fact that no absolute limitation of parental authority was ordered. It was only restricted in those areas where it was considered that the parents’ actions could be detrimental to the children’s development. In the view of the Court, the necessity of the restrictive measures, their legitimate aim and their proportionality were demonstrated. At § 69, the Court specifies how to act to identify the child’s best interest. Its statements read as follows: In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (Neulinger and Shuruk v. Switzerland [GC] no. 415/07, § 136, ECHR 2010). Switzerland [GC], no. 41615/07, § 136, ECHR 2010).

In its argument, the Court attaches great importance to the obligation of States Parties to the Convention to introduce legal measures prohibiting, in an effective and not merely theoretical manner, corporal punishment of children. It considers that there is an international consensus that no parental right can be invoked to allow a child to be subjected to degrading treatment that violates his or her physical and moral integrity.

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Almost all the Court’s argumentation revolves around the best interests of the child as a limit to the parents’ right to private and family life. The focus is therefore on Article 8, para 2, of the Convention. Religious freedom and the right to education are hardly touched upon, although the parents’ actions that led to the restrictions on their parental authority were clearly religiously inspired and had an impact on the children’s right to education. The facts of the case mention that one of the reasons justifying the measures to protect the children was the need to ensure their compulsory schooling. Although the issue is relegated to the background because the children were not yet of school age, it would have been appropriate to take the opportunity to bring up the ECHR’s doctrine on Article 2 of Protocol No. 1 and its relationship with Articles 8 and 9 of the Convention: The two sentences of Article 2 of Protocol No. 1 must be read not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention (Folgerø and Others v. Norway [GC], § 84) which proclaim the right of everyone, including parents and children, ‘to respect for his private and family life’ (Catan and Others v. the Republic of Moldova and Russia [GC], § 143), including the concept of personal autonomy (Enver Şahin v. Turkey, § 72), ‘freedom of thought, conscience and religion’, and ‘freedom ... to receive and impart information and ideas’ (Kjeldsen, Busk Madsen and Pedersen v. Denmark, § 52).

The right of parents to educate their children in accordance with their religious and philosophical convictions in Article 2 of Additional Protocol No. 1 to the Convention is not limited to religious instruction, but also includes aspects such as sex education, ethics and behaviour in society. But this parental right must respect the essential content of the right to education of children, which stands as a limit to parental decisions.13 If the parents’ membership of the Twelve Tribes Church meant that the children could be deprived of compulsory schooling, it should have been recalled that there is no consensus among the States Parties on home schooling. For that reason, the Court has accepted as falling within the State’s margin of appreciation the view that not only the acquisition of knowledge but also integration into, and first experiences of, society are important goals in primary-school education and that those objectives cannot be met to the same extent by home education, even if it allows children to acquire the same standard of knowledge provided by primary-­ school education. Related with these arguments is the importance of pluralism for democracy. The reasoning of domestic courts’ stressing both the general interest of society in avoiding the emergence of parallel societies based on separate philosophical convictions and the importance of integrating minorities into society is accepted by the ECHR for rejecting a complaint concerning a refusal to allow the parents to educate their children at home as manifestly ill-founded.14

13 14

 Relaño (2010), p. 27.  Cf. Konrad v Germany (dec.), 11 September 2006, no. 35504/03.

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3 Child Custody and Religious Freedom Children should be in the company of their parents. This is required by the best interests of the child and follows from the content of the right to respect for private and family life of both parents and children. The best interests of the child may justify the adoption of protective measures involving the separation of the child from his or her parents, but such decisions must be adopted with the maximum procedural guarantees, giving the parents the opportunity to be heard, and must pay due regard to the child’s ethnic, religious, cultural and linguistic background.15 The case law of the ECHR logically starts from these premises when it has had to decide cases in which, in addition to a situation of a child’s lack of protection, there are elements linked to religion. The reference case is undoubtedly Abdi Ibrahim v Norway, Grand Chamber, Application No. 15379/16, 10 December 2021. The facts describe the deprivation of parental rights of a Somali mother residing in Norway and the subsequent decision to have her child adopted by the foster parents. The biological mother alleges a violation of Articles 8, 9 and 2 of Protocol No. 1 of the Convention. Not only does she consider that her right to private and family life has been restricted by depriving her of parental authority and separating her from her child, but also that her and her child’s religious freedom has not been respected, given that her religious tradition is Muslim, while the new adoptive family is of Christian orientation. She also considers that her right to educate her son according to her own convictions has not been respected. The Court unanimously concludes that there has been a violation of Article 8 of the Convention. After carefully analysing the circumstances of the case and the parties’ submissions, it considers that in depriving the applicant of her parental responsibility in respect of her son and authorising his adoption by the foster parents, the domestic authorities did not attach sufficient weight to the applicant’s right to respect for family life, particularly to the mother and child’s mutual interest in maintaining their family ties and personal relations and hence the possibility for them to maintain contact. A decision as important as terminating the child’s relationship with his or her biological mother must be duly founded on the best interests of the child, something which the Court does not consider to be established in this case. The Court is of the opinion that other measures could have been adopted that would not have entailed such a strong interference with the mother’s right to private and family life. The approach of the appellant’s submissions is very interesting because it shows the interconnections between family life, religious freedom and the education of minors. She insists that the case has to be analysed as a whole. In her view, the Court should not enter into an assessment of the possible violation of the right to private and family life without considering her and her child’s cultural and religious tradition and the other related rights. This is why she insists on the relevance of Articles 9 of the Convention and 2 of Protocol No. 1 for a correct response to the situation 15

 Cfr. Articles 9 and 20 of the CRC.

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before the Court. Paragraph 96 of the Judgment describes its position in the following terms: In the applicant’s view, Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1 interacted and had to be interpreted in the light of Article 14 of the Convention. A religiously neutral policy of child placements systematically benefited religious majorities, as children belonging to such groups would be more likely to be placed with someone of the same religion than those belonging to minorities. The case also involved a child who had been christened into a missionary church outside the religious mainstream whose activities could be described by the majority as indoctrination, and natural parents belonging to the Christian majority could also have objected to fostering and adoption on those grounds.

In view of these allegations, the Court states that while the type of measures under consideration in this case is one which, according to the Court’s case law, is invariably considered under Article 8 of the Convention, the question arises as to whether and to what extent the applicant’s complaint attracts the application of Article 9 of the Convention and/or Article 2 of Protocol No. 1. This leads to some considerations on parental rights in education and religious freedom, although the Grand Chamber focuses its analysis on Article 8 and does not study in depth the implications of the other two precepts. On the violation of Article 2 of the First Additional Protocol, there is a procedural reason for not going into the merits of the case: this article was not invoked in the initial application and is a new issue raised by the complaint before the Grand Chamber. Nevertheless, the Court summarises the position adopted to date by the Convention organs. It recalls, first, Olsson v Sweden (no. 1), 24 March 1988, § 95, Series A no. 130, in which the former European Commission of Human Rights stated in para 183 of its report adopted on 2 December 1986 that decisions on the custody of children do not deprive parents of parental authority and have a temporary purpose, the ultimate aim being that the child should return to his or her parents. A decision placing a child in the custody of the public authorities does not remove the right of parents to bring up their children in accordance with their convictions, although it is logical that this right should be restricted, which obliges the public authorities not to disregard it in the decisions they take. The Court notes that the Convention bodies, in the cases brought to date, have not specified the scope of Article 2 of Additional Protocol No. 1 when a child is declared to be in custody. They have merely stated that this right of the parents must be considered. Despite being aware that this is an open and unresolved issue, the procedural reasons given above lead Grand Chamber not to go into the substance of the case and it does not therefore provide an express response. As regards Article 9, it is argued that the right of parents to bring up their children in accordance with their beliefs is part of the content of religious freedom. This parental power is realised, in ordinary family situations, through the exercise of the rights under Article 8 of the Convention. Parental prerogatives are maintained in cases where a child is in foster care, albeit with the limitations appropriate to the circumstances. The Court does not see the need for a separate examination of Article 9 but considers it sufficient to analyse it in the context of Article 8, as it has done on many other occasions when it has been ruled appropriate to consider a case under a

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particular Article, notwithstanding that it touches on matters covered by other rights protected by the Convention. In short, the implications of the mother’s religious beliefs and the religious tradition from which the child comes are relegated to the background by being diluted in the more general context of private and family life. Once the Court has reached the merits of the case, it starts from the assumption that the deprivation of parental authority and the authorisation of the adoption of the child have entailed a restriction of the applicant’s right to private and family life, just as there is no doubt that those restrictions were in accordance with the law and pursued a legitimate aim: the protection of the child’s health, morals and rights. What is at issue is whether the measures ordered were necessary in a democratic society for the pursuit of these legitimate aims, including whether the domestic authorities had due regard to the applicant’s interests protected by Article 9 of the Convention. It is interesting to mention the Grand Chamber’s summary of the principles governing the protection of children at risk which require protective measures to be taken by the public authorities. These principles are as follows: (a) Decisions concerning the custody of a child affect several rights, some of them of the children and others of their parents. For this reason, the circumstances of each case must be assessed as a whole to see whether the reasons given for decisions restricting parental rights are relevant and sufficient and whether a fair balancing of the interests at stake has been carried out. (b) The best interests of the child are paramount. In decisions concerning custody and the restriction of contacts with the family of origin, this interest is the main reason justifying the decisions of the public authorities. (c) Family unity is a general guiding principle, from which it follows that protective measures are, per se, of a temporary nature. The ultimate objective is the reunification of the family. (d) In cases of conflict between the interests of parents and their children, a precise and real weighing of the competing legal interests must be carried out, without forgetting that ultimately the best interests of the child prevail over the rights of the parents. (e) As a general rule, it is in the best interests of the child to maintain ties with the family of origin, unless there are real and precise facts that make it inadvisable to do so. Breaking these ties means depriving the child of his or her roots. Only in very exceptional circumstances can such a relationship be severed. As noted above, child custody measures must be aimed at reunification with the child’s family of origin. Notwithstanding this, parental rights cannot restrict the child’s growth in an environment suitable for his or her health and development. (f) Since custody measures are by their very nature temporary and the ultimate aim is the return of the child to his or her natural parents, there is a consensus in international law that a child cannot be separated from his or her parents against their wishes, unless a reasoned decision is taken by judicial bodies, in accordance with the law, and subject to appeal. Custodial measures limiting the relationship between parents and children must be appropriate and proportionate,

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as their prolongation over time has irreparable consequences on the child’s relationship with his or her family of origin. This entails positive obligations on the public authorities, which should seek to maintain the child’s ties with his or her natural parents. If that relationship is broken by a decision imposed by the public authorities, then they cannot use the absence of links between parents and descendants to justify measures such as an adoption of the child. (g) The decision to deprive the parents of parental authority and to authorise an adoption, since it implies the severance of legal ties with the family of origin, is an exceptional measure that can only be taken when there are compelling reasons to protect the best interests of the child. It is in the essence of adoption that there is no possibility of rehabilitation of the situation with the parents of origin, whose rights yield to the best interests of the child. (h) Decisions on child custody vary from State to State depending on traditions, regulation and public resources. In addition, national authorities have direct contact with the parties involved, which facilitates the assessment of the circumstances of the case. This gives the national authorities a wide margin of appreciation in decision-making but does not imply an absolute ability to decide free from control by the Convention organs. The ECHR is entitled to carry out a rigorous scrutiny of the measures adopted, their effect and the reasons for them. (i) Attention should also be paid to the procedural channels followed in making decisions concerning the custody of a child. Particularly, to check whether the parents were kept informed at all times, had the option to assert their rights, were heard and their requests and arguments were considered. Following this summary of the principles to be considered in deciding the case, the Court analyses the facts and the parties’ submissions. It concludes that the national authorities focused solely on the best interests of the child and did not give due weight to the mother’s rights, which would have enabled them to try to reconcile the two legal interests before ruling out family reunification and deciding to sever legal ties with the natural mother. The Court also mentions that much weight was given to the child’s negative reactions when he had contact with his mother but ignored the fact that once custody was granted their relations were very limited, which affected his emotional ties with her. Although the Court does not enter into an individualised analysis of Article 9 of the Convention, it does make some interesting statements on the right to freedom of religion. As the child is of Somali origin and comes from a Muslim family, the choice of parents with a different religious orientation has a direct impact on the rights conferred on the mother by Article 9. Two elements are added to this: the prohibition of adoption by Islam16 and the obligation arising from Article 20.3 of the

 Among the third-party interveners in the case, the AIRE Centre put the spotlight on this issue. It stated that it was essential to be aware that adoption was not permitted in Islam and that the Koran forbade it. Children who had lost the care of their birth parents were provided in Islam with new homes through the institution of Kafalah (§ 126). 16

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CRC, according to which due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. The Court emphasises that the national authorities credited efforts to find a Somali family for the child, which proved unsuccessful. At the same time, it notes that independent experts on the adoption of Muslim children were heard and concluded that Article 20.3 of the CRC did not prohibit the adoption of a Muslim child. This is a matter to be decided on a case-by-case basis in the best interests of the child. While there is a positive obligation on States to endeavour to find a culturally and religiously attuned family for the child, this is an obligation of means, not of result: The Court notes that the applicant’s rights under Article 8 of the Convention, as interpreted in the light of Article 9, could be complied with not only by ultimately finding a foster home which corresponded to her cultural and religious background. It refers to the assessments of the domestic courts of the various interests that have to be taken into account throughout the whole process in cases of this nature where the child’s best interest must remain paramount (...) and to the relatively broad agreement in international law that domestic authorities in circumstances such as those in the present case are bound by an obligation of means, not one of result (§ 161).

Notwithstanding the above, the Court concludes that the appellant’s interest in the child maintaining certain links with his mother and with his cultural and religious origins was not given due weight. The existence of such exceptional circumstances as to terminate the child’s ties and relations with his biological mother in such a categorical manner is not established. One aspect of great relevance that is mentioned, although the Court hardly mentions it, is the opinion of the minor himself regarding his religious orientation. Let us not forget that the holder of religious freedom is the child himself and that the main focus should be on him, on his autonomy, and not on the rights of the parents.17 Since the child has already been living with his or her foster parents for some time at the time of the adoption decision, the Norwegian courts considered the child’s own values at that time. It was considered that respect for the child’s original religious tradition had to give way to the fact that adoption could create clarity for the child and reinforce the development of his current identity after a few years of living with the adoptive family and make him feel part of the family with which he lives. Beyond hypothetical or subjective considerations, this reflection shows that on occasions the exercise of religious freedom by the minor may collide with the position of his or her parents in this respect.

17

 Capodiferro Cubero (2013), p. 70.

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4 Marriage Crisis and Children’s Religious Orientation It has been shown in the preceding lines that there is a general consensus in international law on the right of parents to make decisions about their children’s religious choices and to decide on their religious and moral education. The exercise of this right, as we have seen, is limited by the child’s own rights and his or her best interests, which must be safeguarded by the public authorities when the parents’ decisions jeopardise the child’s physical and psychological development and integrity. If such a confrontation between legal interests arises, the public authorities will have to decide based on the circumstances of the case and with regard to the competing legal interests. A particular manifestation of this conflict is when there are disagreements between parents as to how the religious and moral upbringing of their children should be oriented. Such disagreements may arise at any time in family life, but they are most frequently manifested in cases of marital crisis (separation, divorce, annulment), as they are sometimes the trigger for the break-up of the couple. The case T.C. v Italy, first section, Application No. 54032/18, 19 May 2022, addresses this issue. After the couple broke up, one of the parents began to attend Jehovah’s Witness meetings and became a Jehovah’s Witness. Subsequently, he married a Jehovah’s Witness. During the periods when his daughter was with him, he took her to Jehovah’s Witness ceremonies and even distributed Jehovah’s Witness pamphlets in the streets. The girl’s mother asks for an end to these decisions by the father because of the lack of agreement between the parents and because the girl has grown up in a Catholic context. The Italian courts, based on a report issued by an independent expert, order the father to refrain from taking his daughter to Jehovah’s Witness ceremonies and activities. The protection of her best interests advises that the only religion she should be involved in is Catholic, given that she is baptised in that church, has grown up in a Catholic cultural environment and many of her friends are Catholic. The fact that the child practices two religions at the same time can cause her confusion and tension. The father considers that this decision violates his rights to private and family life and to religious freedom and discriminates against him. At § 25 the Court summarises the appellant’s allegations as follows: The applicant complained that the domestic courts’ decisions ordering him to refrain from actively involving his daughter in his religion had disproportionately interfered with his right to family life and his freedom of religion. He further claimed that such treatment had been based on his adherence to the Jehovah’s Witnesses religion and, as such, it had amounted to a differential treatment in respect of the enjoyment of his Convention rights. In this regard, he claimed a violation of Articles 8 and 9 of the Convention, alone and in conjunction with Article 14.

The Court examines the possible violation of Article 14 of the Convention in conjunction with Article 8, the latter read in the light of Article 9. The Court makes it clear that parents and children have a right to be together, and a restriction of access and contact is an interference with the right to protect for private and family

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life which must be duly justified. Alongside this right is freedom of religion, which leads the Court to state in para 30 as follows: The Court considers that for a parent to bring his or her child up in line with one’s own religious or philosophical convictions may be regarded as a way to ‘manifest his religion or belief, in teaching, practice and observance’. It is clear that when the child lives with his or her parent, the latter may exercise Article 9 rights in everyday life through the manner of enjoyment of his or her Article 8 rights.

The connection between family life and religious experiences makes both rights two closely interrelated realities that in many respects cannot be separated. Spiritual and religious choices are part of everyday family life, not unrelated. Another relevant aspect is that Article 8 of the Convention protects the right of parents and children to be together, in company, as an indispensable part of family life, even in cases of breakdown of the couple’s relationship. It follows that a limitation of the access and relations of a parent with his or her children is a restriction of his or her rights which must be adequately justified. Decisions on the exercise of parental authority must respect the religious freedom of parents, but, as the Court emphasises at § 42, the priority aim is to consider the best interests of children, trying to reconcile the educational choices of each parent and attempting to strike a satisfactory balance between the parents’ individual conceptions, precluding any value judgments and, where necessary, laying down minimum rules on personal religious practices. The Court rejects the complaint and concludes that there has been no violation of any of the articles alleged by the applicant. There are several reasons on which it bases its reasoning. It considers clear that the decisions of the Italian authorities were based on the protection of the best interests of the child and took into account the circumstances of the case and the opinion of independent experts. There is no evidence of prejudice towards the religion practised by the complaint, who is at no time prevented from continuing his religious practices and activities. Given the existence of a conflict between the parents, the aim is to eradicate the problem to guarantee the child’s development in an open and peaceful environment, avoiding situations of tension. The fact of maintaining the option of her practising the Catholic religion is due to the factual circumstances of the case, not to a preference for this religion over the father’s own. For the Court this case is different from Palau-Martinez v France, second section, Application No. 64927/01, 16 December 2003, in which the decision on residence rights was taken based on the appellant’s religion, or Vojnity v Hungary, second section, Application No. 29617/07, 12 February 2013, in which a father was deprived of the right to have relations with his son on account of his religious beliefs and in the absence of the necessary proportionality of the measures restricting a right recognised by the Convention. The case T.C. v Italy has a concurring opinion and two dissenting opinions. We will begin with the latter, formulated by Judges Paczolay and Felici, for whom there has been a violation of Article 14 of the Convention, in conjunction with Article 8. In their opinion, the beliefs of the parents have received a different assessment, from

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which it can be deduced that the father has been discriminated against on the grounds that he is a Jehovah’s Witness. They argue that no account has been taken of the fact that the Jehovah’s Witness faith is part of the child’s family environment, as the father is a practising Jehovah’s Witness, as is his new wife. Based on this fact, the choice of the Catholic religion implies a prejudice towards the father’s religion, whose beliefs are not valued in the same way as the mother’s own. They also dispute the assertion that participation in the ceremonies and rites of one faith automatically excludes participation in activities of another faith to avoid a situation of confusion and tension in the child. They believe that precisely because the children are developing and forming their critical thinking, this is possible and does not interfere with their intellectual growth. Moreover, they consider that the position of the Court in this case is contradictory to the reasoning followed by it in other contexts, where it indicates that exposing young people to the ideas of diversity, tolerance and equality contributes to social cohesion, as does the interaction between individuals and groups with various identities. They believe that in the end there has been a judgment in the abstract that fails to show evidence that the child’s participation in the father’s religious activities was against her best interests, especially when the father was open to respecting both his daughter’s practice of the Catholic religion and the fact that she was taking Catholic religion lessons at school. The concurring opinion, formulated by Judge Sabato, emphasises three main points that will be reflected upon below: the need to approach the case from the perspective of the right to religious freedom (Article 9 of the Convention), the relevance of the parents’ agreement on the religious education of their children in light of the fact that the minor himself is the holder of religious freedom, and the principle of continuity or status quo that advocates respecting the religious option originally decided by the parents.

5 Compulsory Vaccination of Minors and Religious Beliefs of Parents The ECHR has not directly addressed whether parents have, for religious motivated reasons, the right to refuse medical treatment for their minor children.18 If parents’ refusal of certain medical interventions for their children is motivated by their religious beliefs, there seems to be no obstacle in asserting that such a position would fall within the scope of protection of the right to freedom of religion, which implies the right of the individual to behave and act in accordance with his or her convictions. But it is not correct to infer from this that the opinion of the parents should prevail over the opinion of the medical practitioners, as the limits of religious freedom include public health and the rights and freedoms of others. The health of

 Of course, the Court has decided cases with references to the opposition to blood transfusions. See Martínez-Torrón (2010), pp. 19–37. 18

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minors and their rights are an indisputable limit to the religious freedom of parents, the exercise of which must be adapted to the requirements deriving from the preservation of the best interests of the minor. In the case Vavřička and Others v the Czech Republic, Applications Nos. 47621/13 and 5 others, 8 April 2021, the Grand Chamber is faced with this question. The case focuses primarily on the authorities’ refusal to admit children to kindergarten because they had not been given the compulsory vaccinations, as well as the financial penalty imposed on a parent for failing to vaccinate his child. The appellants allege infringement of the right to private and family life, Article 8 of the Convention. In § 263 the Court states that the facts of the case allow it to say that there has been an interference with the scope of protection of Article 8: The Court has established in its case-law that compulsory vaccination, as an involuntary medical intervention, represents an interference with the right to respect for private life within the meaning of Article 8 of the Convention (see Solomakhin v. Ukraine (no. 24429/03, § 33, 15 March 2012, with further references). With regard to the present applicants, it is true that, as the Government underlined, none of the contested vaccinations were performed. However, having regard to the subject matter of this case as established above (see paragraph 260), and also to the fact that the child applicants bore the direct consequences of non-compliance with the vaccination duty in that they were not admitted to preschool, the Court is satisfied that, in their regard, there has been an interference with their right to respect for private life.

The Court considers that the restriction was provided for in the legislation and pursued a legitimate aim. It focused on whether the measure was necessary in a democratic society, which led it to assess each State’s margin of discretion in matters of public health: While childhood vaccination, being a fundamental aspect of contemporary public health policy, does not in itself raise sensitive moral or ethical issues, the Court accepts that making vaccination a matter of legal duty can be regarded as so doing, as attested by the examples of constitutional case-law set out above (at paragraphs 95-127). It notes in this regard that the recent change of policy in Germany was preceded by an extensive societal and parliamentary debate on the issue. The Court considers, however, that this acknowledged sensitivity is not limited to the perspective of those disagreeing with the vaccination duty. As submitted by the respondent Government, it should also be seen as encompassing the value of social solidarity, the purpose of the duty being to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination (see in this respect Resolution 1845(2011) of the Parliamentary Assembly of the Council of Europe, set out at paragraph 143 above).

Having analysed the issue from the perspective of the right to private and family life, the Court also examines whether there is a violation of Article 9 of the Convention. The first point to note is that the complainants do not mention any religious belief, and the Court therefore considers that freedom of thought and conscience are at stake. It is thus clear that Article 9 of the Convention protects not only religious convictions, but also other convictions that are equivalent in terms of their

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degree of importance, seriousness and coherence and their influence on the life of the individual. The Court reiterates that Article 9 protects not only the forum internum of the individual, the right to believe as one sees fit, but also the external forum, the right to act in public and in private in accordance with one’s professed beliefs, which would imply the right to refuse obligations imposed by neutral rules of general application. On compulsory vaccination, he cites the precedent Boffa and Others v San Marino, Commission decision of 15 January 1998, Application No. 26536/95. This case has little argumentation. The former Commission merely recalls that Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief. The term ‘practice’ does not cover each and every act which is motivated or influenced by a religion or belief. It goes on to state that the obligation to vaccinate is imposed on everyone, whatever their beliefs, so there is no infringement of religious freedom. The case is very old and is decided at a stage of the case law of Strasbourg organs in which generally neutral applicable laws were considered, in any case, compatible with Article 9 of the Convention. For this reason, it is positive that the Court then brings up the case Bayatyan v Armenia, Grand Chamber, Application No. 23459/03, 7 July 2011, in which it considered the applicability of Article 9 to the conscientious objection of the applicant, on religious grounds, to military service. It held that ‘opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9’. It further held that whether and to what extent such objection came within the ambit of Article 9 must be assessed in the light of the particular circumstances of the case. In the case Vavřička and Others v the Czech Republic the Court considers that the applicants have not established convictions of such consistency, seriousness and intensity as to justify an exception to the general obligation to vaccinate. This follows from the position expressed by the parties, which focuses primarily on health aspects, with ethical and philosophical considerations being of secondary importance. The Court does not close the door to a person’s beliefs or convictions allowing exceptions to the general obligation to vaccinate (or other medical treatment), but it does not rule on this either. It remains an open question, so the opportunity for clarification has been missed. Moreover, a more than debatable argumentative approach is used to rule out infringement of freedom of thought, conscience and religion. The Court considers that the claimants’ convictions do not have the degree of strength, seriousness and coherence required by Article 9. This is a purely subjective assessment which opens the door for the Court to decide which beliefs deserve protection and which do not.

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6 Critical Appraisals There is no doubt that among the fundamental rights to which minors are entitled, the right to religious freedom is included. It is expressly recognised in Article 14 of the CRC and is also protected by the other international human rights instruments that guarantee religious freedom to everyone. In the case of the European Convention on Human Rights, the ECHR has held, in a case where a minor claimed Article 9, that The Court has previously accepted complaints under this provision, without reservations ratione personae, from persons who experienced an alleged violation of Article 9 of the Convention before reaching the age of majority, thus acknowledging the position of children as holders of the right to freedom of religion (see, among other authorities, Dogru v. France, no. 27058/05, 4 December 2008; Kervanci v. France, no. 31645/04, 4 December 2008; and Grzelak v. Poland, no. 7710/02, 15 June 2010).19

If the ownership of this right by the minor is legally consolidated, its exercise in each specific case presents various problems that are far from being resolved. It is both parents or, where appropriate, the legal guardians, who are entitled to make decisions on the religious choices of the minor until the minor acquires the necessary maturity to act on his or her own behalf, whether they are in a marital or analogous relationship or not. If there is agreement between them, the limit is the health and physical and moral integrity of the minor: the rights to respect for family life and religious freedom as enshrined in Articles 8 and 9 of the Convention, together with the right to respect for parents’ philosophical and religious convictions in education, as provided in Article 2 of Protocol No. 1 to the Convention, convey on parents the right to communicate and promote their religious convictions in the bringing up of their children. The Court adds in this context that this would be an uncontested right in the case of two married parents sharing the same religious ideas or worldview and promoting them to their child, even in an insistent or overbearing manner, unless this exposes the latter to dangerous practices or to physical or psychological harm, and it sees no reason why the position of a separated or divorced parent who does not have custody of his or her child should be different per se.20

From the above considerations, several problems arise which do not admit of a clear or identical answer in all cases. The first question is: when does the minor acquire the maturity to act on his or her own, with full autonomy, in the religious field? The holder of the right is the child itself, but this question tends to be approached from the perspective of parental rights.21 How far do parental rights go when they collide with the interests of the child itself? In 2017, the European Union Agency for Fundamental Rights has published a report about age at which the children can change religion in the European Union countries without parental consent. The results show that some States allow it at the age of 14 (Austria and Germany), others at the age of 15 (Estonia and Slovenia), others at 16 (Cyprus, Portugal and

 Case of Perovy v Russia, third section, Application No. 47429/09, 20 October 2020, § 49.  Case of Vojnity v Hungary, cited, § 37. 21  Scolnicov (2007), p. 16. 19 20

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Romania), some require the age of 18 (Bulgaria, Denmark and Finland) and the rest have no express regulation.22 If the key is to consider the development of the minor and his or her maturity, this necessarily obliges us to assess two questions: the first is whether it is possible to set a standard age applicable to all minors from which to establish the presumption that the minor has sufficient maturity to act on his or her own regardless of what his or her parents think. The second is to note that not all decisions related to a religious belief require the same degree of maturity. While there are decisions that by their nature can be permitted to a minor at a certain age (e.g. refusing to attend religious ceremonies, not being taught religion at school), there are others that are so important that prudence would seem to advise waiting until the person reaches the age of majority (this would be the case of refusing medical treatment when a minor’s life is at stake). If the key is to respect the minor’s own autonomy, how is his or her maturity to be determined? It does not seem correct to resort to presumptions based on age, without considering the circumstances and characteristics of the minor, his or her social and family environment or the importance of the decisions to be taken. Apart from the maturity of the child, which makes it necessary to assess when the child decides or when the parents decide, there is the question of the decision being made by the parents, which presupposes that there is an agreement between them. This agreement will often be merely tacit or verbal and will not pose problems until discrepancies arise between the parents, which will normally lead to a break-up of the couple. Particularly conflictive will be the situation of discrepancy whose origin is precisely the religious options of the parties. This last consideration is linked to the core element of children law: the best interests of the child. This is an indeterminate legal concept that cannot be defined in the abstract. It will have to be determined according to the circumstances of each case and the transcendence and repercussions on the child of the decisions affecting him or her. The analysis carried out in this chapter of some ECHR cases leads to the conclusion that in cases concerning the religious freedom of minors, the Strasbourg Court starts from the interconnection between the right to private and family life, the right to religious freedom and the right of parents to educate their children according to their religious and philosophical convictions. However, it sometimes seeks to resolve disputes from a formal, minimalist approach, without addressing all the questions raised by the applicants. There are several questions present in their judgments that have not yet received an answer: can parents invoke their beliefs or convictions to refuse to administer compulsory vaccinations to their children? Can measures to protect minors, such as adoption, be adopted contrary to the religious beliefs of their natural parents? What is the extent to which the child’s cultural and religious tradition has an impact on child protection decisions? Does the upbringing of a child in the context of a particular belief preclude a parent from discussing other

 Cfr. https://fra.europa.eu/en/publication/2017/mapping-minimum-age-requirementsconcerning-­­rights-child-eu/change-religion (accessed on 27 September 2022). 22

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religious options with the child? What exactly is the scope of the right of parents to bring up their children according to their convictions in child custody and guardianship situations? The ECHR has had the opportunity to explore these questions in depth but has remained at a formal level. It has looked for the easiest solution for each specific case rather than adopting a more proactive stance that would allow it to offer guidelines for future situations in which the exercise of religious freedom of minors would pose conflicts. Logically, the response to the questions raised will depend on the specific circumstances of each case, but it is possible to affirm that such responses should pay attention to the following: (a) enhancing the autonomy and identity of the child, which requires listening to the child’s views; (b) respecting the parents’ beliefs and decisions, which implies that they must be heard, provided with full information about decisions affecting their children and given the option to assert their rights; (c) objectively determining the best interests of the child, which requires independent expert opinions; (d) avoiding subjective value judgments on the beliefs of parents, which must be assessed in a neutral and impartial manner to avoid discrimination.

References Barker R (2020) Children in Schools: the battle ground of religious belief. Univ Western Aust Law Rev 47:152–174 Capodiferro Cubero D (2013) The position of Children’s Freedom of thought and religion in the rulings of the European Court of Human Rights on the Case Lautsi v. Italy. Age Human Rights J 1:67–93 European Court of Human Rights (2022a) Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention. Prohibition of discrimination (Updated on 30 April 2022) European Court of Human Rights (2022b) Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights. Right to education (Updated on 31 August 2022) Langlaude S (2007) The right of the child to religious freedom in international law. Martinus Nijhoff Publishers, Leiden Martínez-Torrón J (2010) A critical analysis of the case-law of the European Court of Human Rights on blood transfusion and religious beliefs. In: Emilianides A (ed) Blood transfusion, religious education and custody. University of Nicosia Press, Nicosia, pp 19–37 Papadopoulou L (2004) Children and religious freedom: an enquiry into children’s capability of being holders of rights and the nature of religious freedom in the Western World. In: Lødrup P, Modvar E (eds) Family life and human rights. Gyldendal Akademisk, Oslo, pp 533–551 Relaño E (2010) Educational pluralism and freedom of religion: recent decisions of the European Court of Human Rights. Br J Relig Edu 32:19–29 Scolnicov A (2007) The child’s right to religious freedom and formation of identity. Int J Children’s Rights 15:1–17 Miguel Rodríguez Blanco  is Professor of Law and Religion at the University of Alcalá where he has been General Secretary. He is a member of the European Consortium for Church and State Research, Editor in Chief of the journal ‘Anuario de Derecho Eclesiástico del Estado’ and Visiting Professor at Universities of Cardiff, Catholic of Milan, Paris-Saclay and Oxford.

Positive and Negative Obligations of Member States Diego Aboy Rubio

Abstract  Article 9 ECHR shows in its wording and development certain obligations of the States parties which project not only onto this right’ individual facet, but also onto its collective one. There are both positive and negative requirements that are primarily based on the general principle established in the first of its provisions, which calls for the recognition of the rights and freedoms set out in the ECHR. This chapter analyses Member States obligations described not only with reference to the doctrine but also to the interpretation and development of the ECHR made by the Strasbourg Court, which is relevant given the eminently evolutionary character of this issue due to the dynamics of European society. Keywords  Article 9 ECHR · Freedom of religion or belief · Member States obligations

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Introduction: Religious Freedom in the ECHR

Article 9 of the European Convention of Human Rights (hereinafter ECHR) recognises freedom of thought, conscience and religion, which is the cornerstone of the social and democratic State. In the broadest sense, the religious factor shapes the identity of believers and their conception of life; moreover, it allows atheists, agnostics, sceptics and unconcerned people to have their own identity and their own vision of reality. Pluralism is, therefore, an essential element of a democratic society. The original version of the chapter has been revised. A correction to this chapter can be found at https://doi.org/10.1007/978-3-031-34503-6_19 D. Aboy Rubio (*) Universidad Internacional de La Rioja, La Rioja, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023, corrected publication 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_6

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This right implies the freedom to hold or not to hold religious beliefs and to practice or not to practice a religion. In a democratic society in which there is a plurality of religions, the State has the obligation to regulate and even impose certain restrictions, within the limits set by Article 9, para 2, ECHR to reconcile the interests of the various groups and to ensure that the beliefs of all are respected. The State also has the negative obligation to remain neutral when regulating relations with different religions, denominations and beliefs, which does not preclude its collaboration with them. Ultimately, collaboration and neutrality are not antonymous terms. This stems from the need to preserve pluralism and the proper functioning of democracy.1 Article 9, para 2, ECHR states that the legitimate aims justifying interference with a person’s manifestation of religion or belief are public security, the protection of public order, health and morals, or the protection of the rights and freedoms of others. This is an exhaustive and restrictive list: as the European Court of Human Rights (hereinafter ECtHR) held in Svyato-Mykhaylivska,2 a limitation on this freedom compatible with the ECHR must pursue an aim which can be linked to one of those listed in this provision. Article 9 ECHR does not establish a list of States’ obligations—whether positive or negative. As Martínez-Torrón points out, generally speaking, human rights texts contain provisions ‘clothed in an inevitable generality’.3 It is therefore necessary to resort to the Strasbourg Court case law to delimit the content of the positive and negative obligations of States. Generally, the obligations of the States parties with regard to religious freedom are to respect, promote and guarantee religious freedom for individuals and groups. In that regard, it should not be forgotten that obligations can be either to do or to abstain from, i.e. they can be positive actions that the State must carry out or negative ones.

2 Positive Obligations The fundamental principle behind the jurisprudence on positive obligations is the duty of State authorities to ensure religious freedom, pluralism and mutual tolerance. At the same time, the action of the State must be neutral, that is, it has the obligation not to interfere. The jurisprudence of the Commission and of the ECtHR has highlighted the positive obligations of States parties in cases regarding the right

 Metropolitan Church of Bessarabia et  al. v Moldova, 45701/99, 13 December 2001, paras 115–116. 2  Svyato-Mykhaylivska Parafiya v Ukraine, 77703/01, 14 June 3007. 3  Martínez Torrón (1986), p. 405. 1

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to education,4 the right to a fair trial,5 the right to free elections and the right to freedom of association,6 and, most notably, the right to personal and family privacy.7 Under Article 1 ECHR, contracting States must ‘secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention’. Moreover, under Article 9, States parties have a positive obligation inherent in those rights, even if the impugned acts were committed by private actors and are not, strictly speaking, attributable to the respondent State. In the well-known case Eweida,8 the Court rejects the Government’s arguments that it is not enough not to prevent the practice of religious freedom, it is necessary to legislate to protect the rights of the individuals so that they can freely practice their religion. The jurisprudence considers that ‘positive obligations’ mean that the State must adopt certain measures to protect the right to religious freedom of individuals. Thus, positive obligations may require measures to ensure respect for freedom of religion that affect the very fabric of individuals’ interpersonal relationships.9 States must actively promote rights to guarantee them effectively, even if this means, to a certain extent, breaking the neutrality required by negative obligations. The separation between the civil sphere and the religious phenomenon cannot be absolute, as they are intimately linked in each individual and in the social fabric. The first obligation of the State is to respect different convictions or religions. It has the obligation to accept that the manifestations of individuals and groups can be made in freedom and with equal treatment. Thus, the ECHR is concerned with the effectiveness of rights, which is why it gives a dynamic interpretation of the text. In Airey,10 the Court states that rights are not only theoretical or illusions, but the individual must also be provided with the necessary conditions to make their rights effective, in this case, through access to the courts as established in Article 6 ECHR. This is why the Convention allows citizens to make positive claims against States, which cannot remain impassive in the face of rights violations; the State must take specific and effective measures to guarantee the free exercise of human rights. Positive obligations under Article 9 ECHR may involve the provision of effective, accessible means and instruments to protect the rights guaranteed. It requires the State to provide a legal framework, with judicial and enforcement mechanisms that protect people’s rights, which means that particular measures must be taken.11 The Court may refrain from formally adjudicating whether the situation should be

 Habitants d’Alsemberg and de Beersel v Belgium, 1474/62, Commission decision, 26 July 1963.  Guincho v Portugal, 8990/80, 10 July 1984. 6  Gustafsson v Sweden, no. 15573/89, 25 April 1996. 7  Ignaccolo-Zenide v Romania, 31679/96, 25 January 2000. See also Saiz Arnaiz (2008), p. 7. 8  Eweida and others v the United Kingdom, 48420/10 et al., 15 January 2013, para 60. 9  Siebenhaar v Germany, 18136/02, 3 February 2011, para 38. 10  Airey v Ireland decision, 6289/73, 6 February 1981. 11  Osmanoğlu and Kocabaş v Switzerland, 29086/12, 10 January 2017, para 86. 4 5

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examined in terms of ‘negative obligations’ or ‘positive obligations’.12 The neutrality of the State cannot be passivity in the face of the action of religious groups that do not respect the freedom of other collectives. The positive obligation not only affects the actions of the public authorities, but the State is obliged to persecute and overturn the activities promoted by its citizens with the aim of preventing others from exercising their religious freedom.13 The ECtHR ruled in the case Gldani.14 The facts date back to 1999, when a group of orthodox people on several occasions violently opposed the celebrations of the Jehovah’s Witnesses. ‘Father Basil declared “I warn (…) the Jehovah’s Witnesses sect they must not meet and hold their satanic meetings (…), they must not be tolerated”’.15 While 138 attacks took place, public authorities failed to prosecute them. The ECtHR recalled that the neutrality of the State is incompatible with an assessment of the legitimacy of beliefs. The State must ensure and guarantee public order that allows the free exercise of religious freedom. The Court’s jurisprudence considers that assessing the legitimacy of religious beliefs is incompatible with any power of the State. For instance, this is found in the judgments Hassan and Tchaouch,16 and Metropolitan Church of Bessarabia.17 In the latter case, the Court ruled that Articles 9 and 14 ECHR were violated by the State’s passivity in failing to protect the applicants’ religious freedom. The applicants were not treated equally by the officials because they belonged to the Jehovah’s Witnesses. It is true that Georgia did not prevent violent acts against Jehovah’s Witnesses, but the Court did not consider that its Constitution protects freedom of thought, conscience and religion, and confers a special status and privileges to the Georgian Orthodox Church. Article 9 of the Georgian Constitution states: ‘the prominent role of the Georgian Apostolic Autocephalous Orthodox Church in the history of Georgia and its independence from the state is recognized’. In some cases, and for some citizens, the presence and methods of Jehovah’s Witnesses amount to what can be considered a disturbance of public order. In response to this conflict affecting coexistence, in March 2018, an initiative was introduced in Parliament to include an article in the Criminal Code that would punish ‘manifesting in public hatred of religious symbols, of religious organization, of clerics or a believer and/or publishing and displaying material aimed at insulting the feelings of believers’.18 MP Kvitsiani justified this on the grounds of frequent hate  Religious Community Jehovah’s Witnesses of Kryvyi Rih’s Ternivsky District v Ukraine, 21477/10, 3 September 2019, para 58. 13  Celador Angón (2011), p. 115. 14  Members of the Gldani Congregation of Jehovah’s Witnesses and others v Georgia, 71156/2001, 3 May 2007. 15  Members of the Gldani Congregation of Jehovah’s Witnesses and others v Georgia, 71156/2001, 3 May 2007, para 67. 16  Hassan and Tchaouch v Bulgaria, 30985/96, 26 October 2000, para 78. 17  Metropolitan Church of Bessarabia, cit., para 123. 18  Georgia is among the signatories States of the Statement on Blasphemy and Apostasy Laws of July 18, 2019, Ministerial to Advance Religious Freedom, U.S. Department of State. 12

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speech directed against the Georgian Orthodox Church and other traditional religions. While violent acts are certainly not justified in any case, States are allowed to limit religious freedom for health, public order and security reasons. Another example of necessary State intervention can be cited in the case of Zagubnya,19 in which the applicants, two Jehovah’s Witnesses who were engaged in door-to-door preaching, were attacked by an orthodox priest. The complaint was based on Articles 3, 9 and 14 ECHR. The applicants considered that the authorities failed to sufficiently investigate the facts. The State has an obligation—through its courts—to prosecute and try crimes. The competent authorities must do so in a neutral and rational manner. According to the latest Religious Freedom Report 2021, there have been conflicts in Ukraine between the believers and clergy of the Ukrainian Orthodox Church of Ukraine (IOU) and the Ukrainian Orthodox Church of the Moscow Patriarchate (IOU-MP) over the former’s attainment of the IOU’s autocephaly, i.e. ecclesial independence, from the latter on 15 December 2018. Attacks against Jehovah’s Witnesses in Ukraine have continued, including a knife attack (Kremenchuk, 7 July 2019) and two attacks in which religious texts carried by worshippers were destroyed (both in June 2019: one in Kiev and the other in Vinnytsia). This case shows how the mere declaration of rights is not enough. The Ukrainian Constitution states in Article 15 that ‘Social life in Ukraine is based on the principles of political, economic and ideological diversity’. The State may not recognise any ideology as binding, but in practice the State does not exercise its positive obligation to protect religious freedom. The positive valuation of the religious phenomenon translates into the principle of cooperation-not interference. The exercise of this principle should be combined with the principles of equality and secularism of the State. We found that this is not a general rule applicable to all states. Each state has developed its own system of church-state relations. While religious freedom is a European principle the Court must safeguard, secularism is not. The State has a positive obligation not to discriminate against its citizens on religious grounds: ‘cooperation with confessions must be done in such a way that the freedom and equality of other religious groups and non-believers are safeguarded’.20 States’ positive obligations to guarantee and promote religious freedom have a twofold dimension. Article 9 ECHR recognises that everyone may manifest his religion or belief, either individually or in community with others and in public or private, in worship, teaching, practice and observance. Therefore, the positive obligations of States cover both the individual and the collective dimension. The social and democratic State cannot deny the social reality of the religious phenomenon. Therefore, it must respect, promote and guarantee religious freedom for both individuals and collectives.

19 20

 Zagubnya and Tabachkova v Ukraine, 60977/14, 12 November 2020.  Prieto Sanchis (2004), p. 46.

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2.1 The Religious Freedom Individual Dimension Freedom of religion is, first, a matter of individual conscience and implies, inter alia, freedom to ‘manifest (one’s) religion’. Under Article 9 ECHR, the freedom to manifest religion does not only concern the public and collective sphere; it has a very personal sphere so that the belief can be manifested individually. 2.1.1 The Right to Change Religion and Proselytism The State has a positive obligation to allow a change of religion; it is a right recognised in Article 18 of the Universal Declaration of Human Rights (UDHR) and in Article 9 ECHR.  The inclusion of this right in the ECHR did not pose as many problems as in the UDHR, which shows that the members of the Council of Europe were more homogeneous. Sweden had to introduce this possibility into its domestic law before ratifying the ECHR.  Although there are denominational countries in Europe—Catholic, Orthodox or Reformed—it can be said that state religion is not incompatible with the right to religious freedom. Article 9 must be interpreted in light of Article 14 ECHR, which prohibits discrimination on the grounds of religion. The right to change one’s religion means that no one can be forced or coerced to change one’s faith and therefore enjoys wholehearted protection. But in the forum externum, there is the possibility of manifesting one’s faith, of offering it to others, that is, of proselytising. The State cannot prohibit this manifestation of religious freedom, but it must regulate it within limits established by Article 9, para 2, ECHR. In Kokkinakis,21 the ECtHR addresses this question. Mr Kokkinakis considers that a democratic society cannot prohibit the right to discuss religion with one’s neighbour. For its part, the Court states in the judgment that the freedom to manifest one’s religion includes the right to try to persuade one’s neighbour, for example, by ‘teaching’, otherwise the ‘freedom to change one’s religion or belief’ enshrined in Article 9 ECHR would probably be a dead letter. The ECtHR judgment states that Mr Kokkinakis did not engage in improper proselytising. He did not offer material or social advantages with a view to gaining new members for a church, nor did he exert undue pressure on persons in distress or need; nor did he use violence or brainwashing; therefore, the right to manifest one’s faith through proselytising was not violated. The ECtHR revisited the issue in Ibragimov; the judgment considers that proselytising is part of the freedom to manifest one’s religion. Within the perimeter of religious freedom is proselytism (the right to manifest one’s beliefs). This is the only way to realise the envisioning of a hypothetical change of religion or belief by ‘trying to convince’ other people through ‘teaching’. The Court considers that freedom of conscience and religion is of an intimate nature and therefore subject to the least possible limitations, the manifestation of the freedom may be limited in some 21

 Kokkinakis v Greece, 14307/88, 25 May 1993, paras 45 and 122.

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circumstances, but not the teachings themselves.22 Proselytising falls within the scope of ‘teaching’, of promoting religious worship and observance in private life of the requirements of Islam. According to the judgment, it was not intended to reorganise the functioning of society as a whole by imposing its religious symbols on everyone, so the Court is considering proselytism as part of the freedom to manifest one’s religion. This is the only way to realise the foreseeability of a hypothetical change of religion or belief.23 2.1.2 The Right to Manifest One’s Convictions Manifesting does not only refer to believers; Article 9 ECHR must be interpreted broadly and in connection with the following Article 10, which recognises freedom of expression. While it is true that worship and observance refer to the religious sphere, teaching, on the other hand, covers both believers and non-believers. As García-Pardo says, it should be borne in mind that the list is merely exemplary and that it admits as many manifestations of atheist convictions that would not fit in with religious manifestations.24 An example of one’s faith manifestation in clothing is the judgment in Lahiri.25 In this case, the ECtHR considers that the expulsion of a witness from a court hearing room for refusing to remove her hijab constituted a ‘restriction’ on Ms Lachiri’s right to manifest her religion through her clothing. Moreover, given her respectful attitude and what her expulsion was intended to preserve, the measure was considered unjustified under the ECHR. 2.1.3 The Rights of Inmates in Prisons The obligation of the State is to respect the religious freedom of all its citizens, including prison inmates; even if they are restricted in their freedom of movement, they do not lose their fundamental rights. The State must take positive measures to facilitate the free exercise of religious freedom, not only by offering the public service of the ministers of the respective religions but also by offering the possibility to pray with other inmates or to read books. This is the case in Neagu26: a prisoner who converted to Islam was denied his request to eliminate pork from his diet.

 Ibragim Ibragimov and others v Russia, 1413/08 and 28621/11, 28 August 2018, para 38.  Ibid., para 122. 24  García-Pardo (2000), p. 85. 25  Lahiri v Belgium, 3413/09, 18 September 2018. In this regard, see also Camarero-Suárez (2012); Camarero-Suárez and Zamora-Cabot (2015). 26  Neagu v Romania, 21969/15, 10 November 2020. 22 23

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Another example is Saran,27 where he was not allowed to follow his diet in accordance with his Muslim faith. But like any other right, it is not absolute, especially when it is to be exercised in prison. In the case of Jakóbski,28 the issue raised was that of allowing a Buddhist inmate a meat-free diet; the Court had stated that, if a decision to make special arrangements for a prisoner within the system may have financial implications for the custodial institution and thus indirectly also on the quality of treatment of other prisoners, a fair balance must be struck between the interests of the institution, other prisoners and the particular interests of the applicant. And in Korostelev,29 a Muslim inmate was punished for praying at night outside permitted hours. There was no interference of the applicant’s night-time worship with the daytime routine of prisoners, including attendance at investigative actions or attendance at court hearings. The State did not guarantee the exercise of religious freedom; the sanction was not necessary in a democratic society, so there was a violation of Article 9 ECHR for repressing the night prayers of a Muslim prisoner.30 2.1.4 The Right of Conscientious Objection Finally, Article 9 ECHR entails a positive obligation on States to establish an effective and accessible procedure for exercising conscientious objection. There is no general right to conscientious objection, thus it must be resolved on a case-by-case basis, which is why case law that addresses specific issues is key. For example, in judgments Papavanisialakis31 and Savda,32 the State was required to implement a procedure to establish whether it fulfilled the conditions to enjoy this right. Moreover, the judgment in Dyagilev33 reaffirms the need to regulate conscientious objection. Article 9 ECHR obliges the respondent government to provide an effective and accessible procedure to establish whether individuals are entitled to conscientious objector status.

 Saran v Romania, 65993/16, 10 November 2020.  Jakóbski v Poland, 18429/06, 7 December 2010, para 50. 29  Korostelev v Russia, 29290/10, 12 May 2020, para 65. 30  Martí Sánchez (2021), p. 934. 31  Papavanisialakis v Greece, 66899/14, 15 September 2016. 32  Savda v Turkey, 42730/05, 12 June 2012. 33  Dyagilev v Russia, 49972/16, 10 March 2020. 27 28

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2.2 The Religious Freedom Collective Dimension 2.2.1 Recognition of the Legal Personality of Denominations The first obligation of States is to recognise the legal personality of denominations. In Hassan and Tchaouch,34 the Court recognised that the autonomy of religious communities is indispensable for pluralism in a democratic society and is therefore a matter which falls within the rights recognised in Article 9 ECHR. Freedom of religion implies freedom of association for religious purposes. The State must be neutral and impartial on the legitimacy of beliefs. It may not favour one church over another. However, the State can control whether a religious association constitutes a danger to public order. This was the case of Metropolitan Church of Bessarabia.35 In this case, the recognition of the personality of the Bessarabia church was refused. The applicants argued that their freedom to collectively manifest their religion was frustrated by the fact that they were forbidden to gather for religious purposes, in addition to the total absence of judicial protection of their property. The State, for its part, considered the issue to be an internal dispute within the Moldovan church, and that believers could exercise their freedom through the Moldovan metropolitan church.36 2.2.2 Registration of Denominations The issue on the obligation of registration of denominations to be able to exercise religious freedom as a collective was raised in the case of Masaev. The Court held that the existence of a register is not a violation of Article 9 ECHR. What does constitute a violation is the existence of a penalty—a sanction in the Code of Admissibility Offences—for religious groups that do not wish to register. The government penalised individual members of an unregistered religious denomination. This amounts to the exclusion of minority religious beliefs that are not formally registered with the State and would therefore amount to admitting that a State can dictate what a person should believe.37 Denominations and Churches are also holders of the right to religious freedom on behalf of their members or as their representative. This is the core of the notion developed around the collective aspect of religious freedom in national laws. Although nowhere in Europe a religious group is required to have legal personality, under civil law, individuals may form such groups based on their right of association. Thus, the right to associate as a religious group exists independently of the State’s relations established with denominations.  Hassan and Tchaouch, cit.  Metropolitan Church of Bessarabia, cit. 36  Fogundes (2021), p. 7. 37  Masaev v Moldova, 6303/05, para 26. 34 35

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Here there is a wide margin of appreciation depending on the model of relations between the State and the churches. One can systematise—by way of example— privileged relations with a denomination as in the case of Greece, Armenia, and the Nordic countries. Cooperative relations such as Portugal, Italy, Germany, and Spain. Finally, countries of separation, such as France and Ireland. The Court recalls that the different levels of recognition must not violate Article 14 ECHR. Differences in treatment are acceptable if there are objective reasons. In the case of denominational countries, they are usually sociological, historical, and identity-related. But in Religionsgemeinschaft der Zeugenjehovas, the Court considers that the difference in treatment was not objectively and reasonably justified, thus violating Articles 14 and 9 ECHR.38

3 Negative Obligations The Strasbourg jurisprudence also covers the negative obligations of States. Negative obligations are those based on which the State, or any entity with international obligations, refrains from specific actions. The obligations, in this case, are not to do or not to interfere with the freedom of religion or belief of individuals. In the field of human rights, negative obligations are mainly obligations of abstention in the area of individual rights and freedoms.39 Negative obligations require States not to interfere with or prejudice the exercise of rights. They are, therefore, an essential and inherent element of the ECHR. This concept of religious freedom also implies that the State commits not to interfere directly or indirectly in the natural evolution of the religious factor, which translates into ‘the distinction between the civil and religious spheres, to which is added the need to create the objective conditions for this right to be genuinely exercisable’.40 A State that defines itself as a State based on the rule of law, social and democratic cannot intervene arbitrarily in the right to religious freedom; it must always respect the principle of legality. Restrictions on religious freedom must be justified. As has already been pointed out, Article 9, para 2, ECHR states that the limits to religious freedom are public security, the protection of public order, health and morals or the protection of the rights and freedoms of others. National security is not among the causes justifying state intervention.41 The Court’s jurisprudence considers that States cannot delimit what is or is not religious. Neutrality implies a negative obligation for the State, as only

 Religionsgemeinschaft der Zeugenjehovas v Austria, 40825/98, 31 July 2008. See Bouazza (2021), p. 324. 39  Pisillo Mazzeschi (2021), p. 85. 40  Martínez Torrón (2001), p. 190. 41  Sánchez Gómez (2022), p. 122. 38

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denominations or individuals are legitimised to define themselves.42 For effective compliance with respect for multi-denominationality, the State should not determine what does or does not constitute a religion or belief, as the ECtHR rightly pointed out in the case Salvation Army.43

3.1 The Religious Freedom Individual Dimension 3.1.1 Obligation Not to Declare One’s Own Confession In 1997, the Court addressed this issue in the case Buscarini, in which the Strasbourg Court stated that, in the specific case in question, requiring citizens to take an oath on the Gospels constituted a violation of Article 9 ECHR, since it entailed a requirement to adhere to a particular religion on pain of losing their parliamentary seats. Their parliamentary office was subject to the oath they had to swear, using the old formula, on pain of being deprived of that office. In the applicant’s view, the religious oath implied that adherence to a particular religion was required for fundamental political exercise. For its part, the State considered that the condition was of a historical nature, as the Republic of San Marino had been founded on religion but was now defined as a secular State in which religious freedom was respected; the oath was therefore intended to commit the rulers to guarantee San Marino’s political values. The Government underlined the importance, in any democracy, of the oath of the elected representatives of the people, which, in its view, was a pledge of allegiance to republican values. On the special character of San Marino that derives from its history, traditions and social fabric, reaffirming the traditional values represented by the oath was necessary to maintain public order.44 The ECtHR found that, although the legislation was amended, the obligation to take an oath on the Gospels infringed on the parliamentarians’ right to freedom of religion. The Court held that requiring the applicants to take an oath on the Gospels was tantamount to requiring the elected representatives of the people to swear allegiance to a particular religion, a requirement which is not compatible with Article 9 ECHR. Moreover, the mandate for the representation of diverse ideas in Parliament is contradictory to the prior requirement of a declaration of adherence to a particular type of belief. In 2008, the European Court of Human Rights again ruled on the negative obligations of States in Alexandridis.45 The case concerned the obligation to take an oath to practice law in Greece. Under Article 9 ECHR, no one can be forced to declare his own convictions.

 Fogundes (2021), p. 8.  Moscow Branch of The Salvation Army v Russia, 72881/01, 5 October 2006, paras 57–55. 44  Buscarini and others v San Marino, 24645/1994, 18 February 1999, para 36. 45  Alexandridis v Greece, 19516/06, 21 February 2008. 42 43

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In Dimitras, the Court observed that there had been a violation of Article 9 ECHR since the applicants, having to opt for the oath or the alternative formula, were obliged to declare their attachment or disaffection to the Christian Orthodox Church. The freedom to manifest one’s religious convictions has another negative aspect, namely the right of the individual not to be compelled to manifest his religious affiliation or convictions and not to act in such a way that his membership of a denomination may be inferred. The Court considers that the State authorities must not intervene in the individual’s freedom of conscience or inquire into his religious convictions or compel him to express them. In its judgment, the Court affirms that ‘the applicants’ obligation to disclose their religious beliefs during oath-taking proceedings before the judicial authorities amounts to a violation of freedom of religion’.46 The right of individuals not to be compelled to state their religious beliefs in official documents was recognised in Stavropoulos.47 The question arose as to the registration of the name of the applicants’ daughter, to which was added a note in inverted commas of the abbreviation of the word ‘appointment’, implying that she was not baptised and that her name was given to her by the civil act of appointment. This was a common practice in some registry offices and was not provided for by law. This interference involved declaring that she did not belong to the majority church. This entailed, in a way, a risk of discrimination by the administrative authorities as the civil registers were public. When the registers were digitalised, the note on the birth certificate was maintained. The Court found that there had been a violation of Article 9 ECHR. 3.1.2 Obligation Not to Presuppose Confession In the case Saran, the issue was raised that there was no adequate and detailed regulatory framework for declaring membership of a denomination. In the area of religious freedom in penitentiary institutions, the prison authorities refused to provide a Muslim inmate with meals in accordance with the dietary requirements in Islam and to provide a suitable place for prayer. When the inmate entered prison and declared himself to be orthodox, the State maintained this presumption and denied his request for Muslim assistance. The Court considers that the State is not required to assess the legitimacy of a religious belief, but the neutrality of the domestic authorities does not preclude the examination of the factual aspects of the manifestation of a person’s religion. However, it does not appear from the decisions rendered in the present case that the domestic courts have sought to establish how the applicant manifested or purported to manifest his new religion.48 The lower Court should have verified the factual data

 Dimitras and Others v Greece, 42837/06 and other, 3 June 2010, para 3.  Stavropoulos and Others v Greece, 52484/18, 25 June 2020. 48  Saran v Romania, cit., para 34. 46 47

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recorded by the prison management concerning the applicant’s religious affiliation. Furthermore, the Government had failed to explain the discrepancies as to the applicant’s religious affiliation.

3.2 The Religious Freedom Collective Dimension The Court leaves the ECHR States parties a certain margin of appreciation in deciding whether interference with individual denominations is necessary. Through its case law, the ECtHR has been determining whether measures taken at the national level in relation to denominations are justified and proportionate. To determine the scope of the margin of appreciation, the Court must consider what is at stake, namely the need to maintain a non-discriminatory relationship with the confessions, which allows for real religious pluralism, which is inherent to the concept of a democratic society. Article 9, para 2, ECHR states that interference with denominations, churches and movements must correspond to an ‘urgent social need’ and must be ‘proportionate to the legitimate aim pursued’. 3.2.1 Not to Classify Religious Movements According to the Strasbourg jurisprudence, States do not have the competence to pronounce on the definition of religion. The denomination and its classification must therefore be left to individuals as well as to religious groups. This is the case of the group Bhagwan,49 which was established in Germany in the 1960s. The federal government classified its activities as those of a destructive religious group because of the attitude of its followers towards the families of origin. Faced with this measure, the religious group appealed to the Cologne Court, which recognised that its methods of action were not contrary to human dignity and that the classification by the administration was in breach of the State’s obligation of neutrality. The Court, therefore, prohibited the government from referring to them in pejorative terms. This decision was appealed to the Court of Appeal which ruled in favour of the government, considering that the measures taken by the government had been proportionate. The Bhagwan movement appealed to the Constitutional Court and the ECtHR, which found that the exercise of religious freedom was not impeded. What interests us are the separate opinions of judges Trajkvska and Kalaaydieva, who considered that the State had not been neutral and had not fulfilled the negative obligation: not to classify and not to discriminate on religious grounds. The

49

 Leela Förderkreis e.V. and others v Germany, 58911/00, 6 November 2008.

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majority vote did not follow the ECtHR case law, which considers that states are not competent to determine which beliefs are legitimate.50 The State cannot classify movements based on their official, or majority, character and consider the rest as dissident religions, or sects. That being said, the State can create different legal categories which allow it to maintain relations with churches or denominations according to their different needs. This is the case in Spain, which in the Register of Religious Entities distinguishes between the Catholic Church, Denominations with agreement, Denominations with deeply rooted and registered Denominations. This classification is not discriminatory and is in accordance with Article 14 of the Spanish Constitution, Article 5 of the Organic Act 7/1980, of 5 July, on Freedom of Religion, and Article 6 of Royal Decree 594/2015, of 3 July, on the Registry of Religious Entities. 3.2.2 Not Intervening in Internal Organisation Freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary state intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and it is, therefore, an issue at the very heart of the protection offered by Article 9 ECHR.51 Similarly, the same provision does not guarantee any right to dissent within a religious body; in case of disagreement on matters of doctrine or organisation between a religious community and its members, the individual’s freedom of religion is exercised through his freedom to leave the community.52 In internal conflicts between organisations, their members or ministers of religion, the jurisprudence is that the State’s obligation is negative, i.e. it cannot act as an arbitrator between the various dissenting factions. In Károly Nagy, the ECtHR addresses an employment issue of a minister of religion of a Calvinist church in Hungary. It acknowledges that the state authorities could not enforce the internal church rules, and states that the state law should have been applied.53 The Court recalls that the State has the obligation to apply civil law, and to refrain—negative obligation—from doctrinal questions. ‘Any question of a purely economic nature falls within the scope of state law, which must be judged by state courts. The autonomy of the Church should prevail only with respect to questions related to religious doctrines and the exercise of religion’.54 The negative obligations of states in relation to the autonomy of religious organisations concern respect for their legal status. The neutrality of the State extends  Celador Angón (2011), p. 113.  For example, Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and others v Bulgaria, 412/03 and 35677/04, 22 January 2009, para 103. 52  See the Commission decisions in Karlsson v Sweden, 12356/86, 12 April 1989, and Spetz and others v Sweden, 20402/92, 12 October 1994. 53  Károly Nagy v Hungary, 56665/09, 14 September 2017, para 67. 54  Ibid., para 56. 50 51

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from its denomination of confessions to their internal organisation. The State’s lack of competence in religious matters allows the different denominations an area of freedom and autonomy, thus avoiding interference by the public authorities and overcoming the old royalist practices.

4 Conclusions Article 9 ECHR recognises freedom of thought, conscience and religion, which implies freedom to change one’s religion, freedom to manifest one’s religion or beliefs through worship, teaching, practice and observance of rites. This right belongs to both individuals and collectives. Article 9, para 2, ECHR establishes that the limits to the exercise of the freedom to manifest must be provided for by law, and in a democratic society, only regard public safety, the protection of public order, health or morals, or the protection of the rights or freedoms of others are admissible. Through its case law, the ECtHR has given a dynamic interpretation of the rights proclaimed in the ECHR. In this way, the content of these rights has been delimited, and the ECtHR’s judgments have clarified the State positive and negative obligations. The ECHR is not just a theoretical declaration, a mere illusion. The dynamic, evolving interpretation has made it possible to adapt to current living conditions and the conceptions prevailing in today’s democratic states. According to the Court’s approach, the ECHR is a living instrument. Thus, the ECtHR’s case law allows it to make a dynamic interpretation in light of current living conditions. This mechanism has enabled it to extend the ‘rights recognized in the Convention, so that its provisions now apply to situations which at the time of its formulation were completely unforeseeable and unimaginable, such as issues relating to new technologies, bioethics or the environment’.55 The States parties not only recognise the rights in the text of the ECHR, but also oblige themselves to accept the jurisprudential developments made by the Court. The Court’s judgments are binding, even if they are essentially declaratory. Whilst they are not directly enforceable, judgments do not imply that they have no legal effect in domestic legal systems. The decisions of the ECtHR have the effect of binding all States party to the Convention with erga omnes effects, since the Court not only has the power to apply the Convention but also to interpret it.56 Hence, the ECtHR, through its jurisprudence, not only binds the particular State condemned for a human rights violation, but rather obliges all the other States to receive this interpretation in their domestic legislation, which in some cases leads to legislative changes. The positive obligation of States is to promote rights effectively. According to the ECtHR case law, States must adopt measures to protect freedom of thought,

55 56

 ECtHR 2022 p. 7.  Carrillo Salcedo (2003), p. 421.

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conscience and religion. State neutrality cannot mean passivity in the face of violations of religious freedom. On the individual dimension, the State must allow, without discrimination, the change of religion, the manifestation of religion through worship, teaching, practices and observance of rites. As far as the collective dimension is concerned, the first obligation of the State is to recognise the personality of the denominations, which are also holders of the right to religious freedom. The different treatment they receive must be justified and not violate Article 14 ECHR. In terms of negative obligations, the State is supposed to be neutral. They cannot define what is or is not religious. The State cannot force individuals to confess their religion, let alone that this refusal has consequences for the individual. Nor should the State presuppose a person’s faith, as Article 9 ECHR recognises the right to change one’s religion. At the collective level, the State may not interfere in the internal affairs of denominations, be it their designation, internal disputes, labour disputes, and so on. Negative obligations require the State to respect the autonomy of denominations in its relationship with them. Therefore, the State may not interfere in the internal organisation of denominations. Religious communities can be divided in a pluralistic society, the State can at most mediate so that opposing groups tolerate each other.

References Bouazza OA (2021) Notas de jurisprudencia del Tribunal Europeo de Derechos Humanos. Revista de Administración Pública 216:363–386 Camarero-Suárez V (2012) El velo integral y su respuesta jurídica en democracias avanzadas europeas. Tirant lo Blanch, València Camarero-Suárez V, Zamora-Cabot FJ (2015) La Sentencia del TEDH en el caso S.A.S. c. Francia: Un análisis crítico. Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 37:1–38 Carrillo Salcedo JA (2003) El Convenio Europeo de Derechos Humanos. Tecnos, Madrid Celador Angón Ó (2011) Libertad de conciencia y Europa: un estudio sobre las tradiciones constitucionales comunes y el convenio europeo de derechos humanos, Madrid Fogundes A (2021) El deber de neutralidad del Estado. In: Derecho, Estado y Religión, Volumen VI-VII. 1–21 García-Pardo D (2000) La protección internacional de la libertad religiosa. Servicio de Publicaciones Universidad Complutense, Madrid Martí Sánchez JM (2021) Jurisprudencia del tribunal europeo de derechos humanos y del Tribunal de Justicia de la Unión Europea. Anuario de Derecho Eclesiástico del Estado XXXVII:900–954 Martínez Torrón J (1986) El derecho de libertad religiosa en la jurisprudencia en torno al Convenio europeo de Derechos Humanos. Anuario de derecho eclesiástico del Estado 2:403–496 Martínez Torrón J (2001) La protección internacional de la libertad religiosa, La protección de la libertad religiosa en el sistema del Consejo de Europa. In: Proyección nacional e internacional de la libertad religiosa. Ministerio de Justicia, Madrid Pisillo Mazzeschi R (2021) Content and nature of the obligations. Various categories and their validity. International Human Rights Law. Springer Prieto Sanchis (2004) Principios constitucionales del Derecho Eclesiástico Español, Madrid

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Saiz Arnaiz A (2008) El convenio de Roma y su interpretación por el tribunal. In: Estudios sobre la Constitución Española: homenaje al profesor Jordi Solé Tura. Congreso de los Diputados, Madrid Sánchez Gómez ME (2022) Libertad religiosa, igualdad y no discriminación en la jurisprudencia del Tribunal Europeo de Derechos Humanos: su proyección sobre las entidades religiosas. Tesis doctoral Universidad Complutense, Madrid Diego Aboy Rubio  is Professor at the Universidad Internacional de La Rioja, UNIR, of Law and Religion, director of TFM of the Master in Canonical Matrimonial Law. He has studied at the UNED, at the University of La Rioja, and defended his thesis at the University of Navarra. He has published several articles on religious freedom and places of worship, on reciprocity with Islamic countries. He participated in the project of the Diccionario General de Derecho Canónico published by Aranzadi. At this time, he collaborates with the UNESCO Chair of the University of La Rioja, UR, in the lines of research related to the right to religious freedom, migration and the right to asylum.

Personal Beliefs and Risk of Danger in Case of Return to the Origin Country Yanitza Giraldo

Abstract  The principle of non-refoulment is a rule of customary international law that is binding on all States, and which becomes fundamental to the right of asylum. It ensures the protection of persons who are persecuted because of particular fears or based on their personal ideas or beliefs, and who risk being subjected to torture, cruel, inhuman or degrading treatment or punishment if returned to their country of origin or a third country. It thus prohibits refoulement, expulsion, or extradition to a State where there is a serious risk to the life and integrity of persons. This obligation protects them regardless of their official recognition, including asylum seekers whose status has not yet been determined. Despite the recognition of this principle in numerous international and regional instruments, there is evidence of non-­ compliance. There is extensive jurisprudence of the European Court of Human Rights on the effective guarantees that States must provide to protect the applicant against arbitrary refoulement, direct or indirect, to the country of flight, which insists on the duty to assess the existence of a real risk of ill-treatment that he or she may face upon return, professing and practising his or her ideas or beliefs. Keywords  Personal beliefs · Persecution · Non-refoulement · Asylum · Refugee

Y. Giraldo (*) International University of Rioja, Logroño, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_7

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1 Introduction Freedom of thought, conscience, and religion is a human right enshrined in the Universal Declaration of Human Rights (UDHR)1 that must be guaranteed to all individuals without discrimination of any kind,2 but whose violation is a fact that is not difficult to verify. It is a Fundamental Right whose violation materialises both in the subjective and objective aspects of this right and freedom, in the internal forum, where it is understood as an absolute and unconditional right, and in the external forum of the person in which the limits must be prescribed by law, and is necessary in a democratic society for the achievement of one or more of the legitimate aims set out therein, as stated by the ECtHR in the case of Eweida and others v the United Kingdom. Notwithstanding this consideration as a right inherent to the dignity of the person, discrimination3 and persecution against ‘the other’ for practising their beliefs or ideas, thus in the external manifestation,4 we see the action of different actors, States or State agents5 or a combination of these or by private individuals, interfering with their execution and even adopting all kinds of violence: illegal detentions, extrajudicial executions, gender-based violence, use of torture or other cruel and inhuman treatment or persecution. This degree of importunity is a factor that leads people to emigrate to other countries and seek asylum, where, as we have seen, they are not exempt from problems of a different kind.6 This chapter aims to analyse the risk faced by persons seeking refuge and asylum if they are returned to their country of origin or an unsafe third country, addressing the conditions required for due legal protection and the main obstacles that practice reveals to guaranteeing it. The research starts with a study of the right to freedom of religion in Europe by analysing the concept of an act of persecution for personal beliefs. This is followed by a study of the principle of non-refoulment and the exceptions to it. It examines the impact of the refugee crisis that our continent has experienced in recent years, and ends with some of the most relevant cases that we have  Article 18 UDHR.  Article 9 ECHR. 3  Article 9 must be read in conjunction with Art. 14 of the ECHR, as the ECtHR held in İzzettin Doğan v Turkey, 62649/10, 26 April 2016. 4  As the ECtHR stated in the case of Eweida v UK, 48420/10, 15 January 2013. 5  These practices or beliefs can be very diverse. As an example, we have the case of a student and citizen of the People’s Republic of China, residing in Manchester. He was detained at an immigration centre in Harmondsworth and was at risk of being returned after his asylum claim was rejected. While on holiday in China, he was arrested by police officers for distributing leaflets relating to Falun Gong, a spiritual practice using meditation and qigong or chi kung exercises; based on the principles of truth and tolerance. He was interrogated for distributing such leaflets in a residential area and physically abused. He managed to escape from his captors and returned to the UK. Falung Gong had been engaged in these activities before he left China, as had his family, so they had been constantly threatened and concerns were expressed that on his return to his home country, he might be subjected to torture or other forms of ill-treatment. However, his application for asylum was ultimately denied. See E/CN.4/2006/5/Add.1, §§ 390–392. 6  EU Parliament, On the persecution of minorities on the grounds of belief in religion, 2022, 7. 1 2

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found relating to persecution for religious, political, or other reasons in the European Court of Human Rights (ECtHR), highlighting the initial idea that, despite its nature as a basic human right, it continues to be violated in different scenarios and by different actors, giving rise to the application of one of the basic principles of international law contained in the 1951 Refugee Convention.

2 Freedom of Belief in the European Law As has already been noted, religious freedom is a fundamental right and this is contemplated in different international instruments, recognising not only the right to profess any religion or personal belief, but also the right not to practise any religion or belief.7 Thus, it is more accurate to speak of freedom of belief, which includes freedom of thought, conscience, and religion. The aim is to cover convictions that are neither religious nor part of an institution, and for this reason, people who change religion or convert to another religion, those who are atheists, must also be protected. 8 International law does not determine what is religion: courts and other bodies interpret it in a general sense, without distinguishing between religion and sect.9 As the ECtHR recalled in the Kokkinakis10 case, one can distinguish an internal dimension, a ‘forum internum’, which implies the right to have a religion or belief, and the ‘forum externum’ is the freedom to profess the religion or belief; neither of the two can be subject to coercion.11 In the exercise of this external facet, we can see how the non-acceptance of the other, rejection, and discrimination, manifests itself in the persecutory act that we analyse below, which includes physical violence, affecting different areas of private, family, social and political life. This is a universal right, respect for which helps to maintain a tolerance for diversity. Being able to exercise it contributes to guaranteeing ‘the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’.12 There is no universally accepted definition of the meaning and scope of what ‘persecution’ means, but if we take as a reference Article 33(1) of the Convention relating to the Status of Refugees, adopted in Geneva on 28 July 1951 (The Refugee Convention), it can be interpreted as the manifestation of an act that causes ‘any threat to the life or freedom of a person on account of race, religion, nationality,  Alexandridis v Greece, 19516/06, 21 February 2008, § 32.  Council (2013), p. 2. 9  Santini and Spatti (2020), p. 112. 10  Kokkinakis v Greece, 14307/88, 25 May 1993. In this judgment, the ECtHR set out the general principles of religious freedom and proclaimed that it constitutes one of the foundations of a democratic society, § 31. 11  Ghanea-Hercock (2004), p.  93. For a more detailed analysis, see Iglesias Vázquez (2015), pp. 148–149; Palomino (2020), p. 42; Santini and Spatti (2020), p. 113. 12  Article 2 TEU. 7 8

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membership of a particular social group or political opinion’.13 Fear of persecution involves an assessment of the convictions and feelings of the person concerned. The individual is different and circumstances change according to his or her position. Even what persecution means also differs from person to person. In the case of ‘grounds of religion’ or personal beliefs, we see how this materialises through the prohibition to belong to a religious community, the study of religion, desertion from military service, sexual orientation, or serious discrimination measures imposed on individuals because of the practice of their beliefs.14 These situations, which can become dangerous and intolerable, lead the individual to seek safety in countries preferably nearby, thereby obtaining protection through the refuge, which thus becomes a guarantee to avoid irreparable damage to his or her person, and which we will refer to in the following section, but not before briefly alluding to the three categories which, due to their factual similarity, are often confused. We refer to the figures of the ‘migrant’, the ‘asylum seeker’ and the ‘refugee’. The ‘migrant’ is a person who moves to another place without generally fleeing for reasons of conflict or persecution, but for reasons that are generally economic or related to the search for better living conditions,15 without fear of returning to his or her place of origin. Asylum is the protection granted by a State to non-nationals who are recognised as having a certain status, that of a refugee, which—unlike a ‘migrant’—does entail a well-founded fear of persecution, as we will see below.

3 The Refugee and the Principle of Non-Refoulement 3.1 Refugee Concept A refugee is a person who is outside his or her country of origin, and who, for fear of being subjected to suffering contrary to human rights, such as life, liberty, or security, seeks international protection. The refugee benefits from the protection of a country other than the country of origin. Asylum implies a ‘territorial protection granted by a State in its own country’ which implies not only the right to reside but also, depending on domestic regulations, the right to work in the country of asylum. Accepting a person as a refugee does not grant them territorial asylum, i.e. a residence permit to live in the country that grants them that status unless this is established in domestic law.16 This happens in the European Union (EU) countries  Article 9 of the Refugee Convention provides for persecution. At the EU level, Directive 2008/115/EC establishes common standards and procedures in the Member States for the return of illegally staying third-country nationals. 14  Acnur (1992), p. 15; Smith (2012), p. 1030. 15  However, we should add that of the internally displaced person who flees for safety—this word being used in the broadest sense of the term—and who would not fit into the categories of asylum and refuge. 16  For further considerations, see Morgades Gil (2016), p. 234; Hamid and Majeed (2017), p. 33. 13

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through Directive 2011/95/EU, Art. 24—States must ensure that common criteria are established to recognise asylum seekers as refugees per Art. 1 of the Refugee Convention. In this regard, it should be recalled that States have autonomy in granting asylum,17 which does not contradict the fact that the possibility of requesting it, the request for asylum, is recognized as a human right.18 In short, the right of every person to seek asylum is one thing, but the granting of asylum is another. This is a difference, from the outset, with the refugee whose protection is enshrined in international human rights law, particularly the Refugee Convention and the Protocol relating to the Status of Refugees, adopted in New York on 31 January 1967, which are the reference instruments at international level for the protection of persons who fear for their lives. Article 1 of the Refugee Convention provides that the term refugee shall apply to any person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’, and Art. 33.1 determines the prohibition of the expulsion of a refugee at the borders of territories where his life or freedom would be threatened. This category also includes persons who are stateless and in need of international protection.19 However, although refugee status does not immediately grant asylum, this does not mean that the State can return the person to his or her country of origin, until a final decision is issued: any process of return, expulsion, or extradition that could affect the applicant is suspended based on the principle of ‘non refoulement’; it must be verified whether the return of this person poses any risk to his or her physical and moral integrity.20 This is part of the protection of human rights, linked to the dignity of the person, which is enshrined in Art. 1 of the UDHR. The principle of non-refoulement has been recognised as a general principle of international law that connects ‘the international asylum and refugee regime with the human rights protection regime’. A person seeking protection in a State where he or she feels safe must be protected until his or her status is determined. To guarantee the minimum standards set out in international human rights law, refugees must be protected and guaranteed their basic rights, taking into account vulnerable groups, including children, women, and the elderly.21 Although the Refugee Convention has a general and universally accepted definition of who is considered to be a refugee, States, because of the massive flows of people and the impact they have had on different legal systems, have modulated this

 Koula (2021), p. 354.  Article 14 UDHR and Art. 18 ECHR. It should be borne in mind that the refugee, the asylum seeker and the asylum seeker are subject to forced migration, derived from different elements that make them flee for their lives; see Morgades Gil (2016), pp. 233–234. 19  Solanes Corella (2020), p. 30. 20  Article 1 of the Refugee Convention. 21  Solanes Corella (2020), p. 36. 17 18

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definition. In addition, they have the power to determine to whom it applies and is recognised, taking into account their domestic law.22 Hence, there are debates about the interplay between human rights law and refugee law as binding legal regimes, so important for interpreting current norms and future reforms. It should study whether refugee law is no longer as effective, and focus efforts on the development of international human rights law that protects individuals against forced displacement and its causes, analysing the political and legal implications this may have. If the current instruments are not adequate for the protection of the human rights of asylum seekers, it is necessary to consider a future reform project that seeks an international legal change through a new Refugee Convention.23 Some argue that the Refugee Convention is ineffective, and that the refugee legal regime is limited,24 and, therefore, international human rights law should be taken as the main basis for refugee protection. They are based on the thesis that human rights are universal, and applicable to all because of the inherent dignity of the individual. Otherwise, achieving refugee protection depends on qualifying as a protected person, and may exclude others in need of protection from protection.25 At the European level, the ECtHR has considered victims of human rights violations recognised in the European Convention on Human Rights (ECHR) as refugees or asylum seekers based on their vulnerability, creating a jurisprudence of protection against return or expulsion measures that are contrary to human rights. However, although neither the ECHR nor its additional protocols directly protect asylum seekers and refugees, by interpretation of the rights contained therein, the ECtHR has realised protection through other rights. In other words, great importance has been given to the analyses of the articles safeguarding the prohibition of torture and inhuman or degrading treatment (Art. 3) to cover situations where the forced departure of an alien from a State may pose a risk to his or her life or physical integrity; Art. 5, the right to liberty and security and not to be deprived except as provided by law; and Art. 13 of the ECHR the right to an effective remedy.26 However, the case law of the ECtHR has been questioned, about asylum seekers, as it looks under Art. 8 ECHR to determine whether an expulsion violates the right  Morgades Gil (2016), p. 238.  Colin (2015), pp. 45–46. 24  Some authors have criticised the Convention because it does not protect all persons at risk of persecution, but only those who are at risk of persecution because of who they are or what they believe. See Meili (2018), pp.  388–389; Kowalczyk and Versteeg (2017), p.  1223; Koula (2021), p. 350. 25  See Chetail (2014), pp. 23–24. The Refugee Convention does not include all people who are at risk of persecution, but only those who are at risk of persecution because of who they are and what they believe. Nor does it consider individuals fleeing serious situations caused by armed conflict or climate change that force them to leave their place of residence. Although the aim should be to protect the human rights of those at risk. In reality, the purpose of creating an international refugee safeguard regime was to provide a mechanism for countries to control forced migration between States. See also Alija (2020), p. 40. 26  Morgades Gil (2016), p. 243; Bertomeu Navarro (2018), p. 267. 22 23

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of every person to respect his or her private and family life. It weighs the rights of the individual against public interests. Scholars have criticised it as an ‘overly mechanical approach to balancing in the context of an inconsistent application of the proportionality test’. They argue that the public interest justification is poorly substantiated and is only referred to in a technical and economically based manner. They consider that it does not give people a right to enter or live in one of the contracting States, nor a right not to be expelled. This position is seen as problematic, as it does not consider human rights, contrary to the purpose of the ECHR, and reduces migrants to the status of aliens, subject to State control instead of recognising their needs as human beings. This particularly affects asylum seekers.27

3.2 The Principle of Non-Refoulement in the European Regulatory Framework The principle of non-refoulement28 is the fundamental basis of the international refugee protection system and, as mentioned above, is enshrined in Art. 33.1 of the Refugee Convention. This principle prohibits devolution, expulsion, or extradition to a State where there is a serious risk of being subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment. It is important to remember that this principle is fundamental, because it prevents a State from handing over an individual to another State where serious risks to his or her life or physical integrity because of his or her race, nationality, religion, or beliefs are presumed to exist.29 International law prohibits this direct form of refoulement, as well as the return of an individual to a State that might hand him or her over to a third country, where there is a danger to his or her integrity.30  Reyhani and Golmohammadi (2022), pp. 7–8.  Article 21.1 of the directive 2011/95/EU explicitly provides for the obligation of Member States to respect the principle of non-refoulement. Similarly, this principle has been considered in Directive 2013/32/EU, which establishes common procedures for granting or withdrawing international protection, and in Regulation 2016/1624 of the European Parliament and of the Council on the European Border and Coast Guard. See Solanes Corella (2020), p. 36; Ristik (2017), p. 116. On the obligation of the national authorities to ensure non-refoulement and whether there are effective safeguards protecting the applicant against arbitrary refoulement, whether direct or indirect, to the country he or she has fled, see, N.A. v Finland, 25244/18, 13 July 2021, § 71, Shenturk v Azerbaijan, 41326, 10 March 2022, § 112. 29  The ECtHR has established the need for the rights recognised in the Refugee Convention, such as Articles 3 and 4, to be interpreted in a dynamic, practical and effective, rather than theoretical, manner. Thus, in themselves, they neither acknowledge nor exclude the right to conscientious objection and must be interpreted in the light of current conditions. See Bayatyan v Armenia, 23459/03, 7 July 2012, § 98. 30  Article 3 ECHR. The ECtHR has ruled on the issue of risk of ill-treatment in case of refoulement or extradition, in those countries where there is information from different sources showing the existence of a persistent and serious problem of ill-treatment of detainees by the police, without evidence of a change in this area. See Nazarov v Russia, 74759/13, 11 December 2014, § 34. 27 28

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Therefore, States have to ensure that the entire asylum procedure processed by a third country31 guarantees no devolution and assessment of the dangers he or she may face.32 The principle of non-refoulement33 now constitutes an erga omnes subjective right of a customary nature that has attained the status of a norm of ius cogens or peremptory norm, which in no way allows States to allege non-­compliance ‘they are considered norms so essential to the international system that their breach place the very existence of the system in question’.34 A norm of ius cogens or peremptory norm of international law ‘is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.35 It thus has a general application in the international community. According to its historical background, it arises from the recognition of certain human and universal values, which must be respected and are essential for ‘the life and subsistence of the community’.36 Non-refoulement, therefore, is a norm that must be guaranteed by all States in the world and not only by the signatories of the Refugee Convention and the 1967 Protocol. Thus, utilising international treaties, States are obliged to comply with general standards of international refugee protection.37 This commitment is linked  The ECtHR has referred to the obligation of States to ensure that the return of a person to a safe third country must be based on a fair and thorough examination of the conditions offered by that country, in light of the principle of non-refoulement enshrined in Art. 3 ECHR. They have the right to protection from a real risk of being subjected to inhuman or degrading treatment. The authorities have an obligation to provide the necessary information to the applicant to challenge the qualification of a third country as safe. See Gkliati (2016), p. 215; Soler García (2020), pp. 565–566. In MSS the ECtHR condemns Greece and Belgium for violating Art. 3 ECHR, and for applying the Dublin Regulation, knowing that Greece could not comply with its obligations. A full examination is essential to verify that the State is safe. See M.S.S. v Belgium and Greece, 30696/09, 21 January 2011, § 99. 32  Chetail (2014), p. 38. 33  This principle was first discussed in Soering v United Kingdom, in asylum cases, specifically in the applicability of the ECHR in situations of expulsion or extradition, where a State decision to extradite a fugitive may give rise to a violation of Art. 3 where there are substantial grounds to show that the person if extradited runs a real risk of being subjected to inhuman or degrading treatment. See, Ristik (2017), p. 115. 34  International standard does not allow deviation, a principle that no violation is allowed. For further considerations, see Allain (2001), p. 535; Chetail (2014), p. 29; Koula (2021), p. 355. In this regard, it has been determined that States are obliged to protect persons fleeing armed conflict or generalised violence and cannot return them to their country of origin or residence. This implies the non-refoulement of those who have not acquired refugee status, even if they are irregularly present in the territory of refuge unless their situation has been previously analysed by State authorities. See, The third report on the expulsion of aliens, A/CN.4/581, 130. 35  Article 53 of the 1969 Vienna Convention on the Law of Treaties. Furthermore, Art. 64 of the same Convention provides that if a new peremptory norm of general international law arises, treaties which are contrary to that norm would be null and void and would terminate. 36  Gómez Robledo (2003), p. 78. 37  Balogh (2015), p. 6. 31

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to the prohibition of exposing individuals38 to any context in which they are put at risk of ill-treatment, whether by expulsion, deportation, extradition, non-admission at the border, interception, removal, or rendition. Non-refoulement must be distinguished from asylum because it is a negative notion that prohibits States from returning refugees to a country where they are persecuted: first, asylum is a positive concept that grants admission to residence and protection to the individual that his or her country does not guarantee; second, non-­ refoulement is an obligation of States, and asylum is a right that States may grant at their discretion. However, despite this distinction, it cannot be denied that asylum is practically the only way to guarantee the prohibition of expulsion and devolution, without assessing whether their life, integrity, and liberty may be threatened by a return to their country of origin. Hence, in practice, the person may be sent to a country where there is no risk of persecution and such a transfer implies in some way temporary admission to a place where effective protection will be provided against any unlawful devolution.39 Thus, the obligation to protect grants the right to a provisional asylum immediately, from the moment a person requests protection from the authorities of the State where he or she is. This will continue until protected status is granted or asylum is refused.40 This principle has an imperative character, it is considered a ‘hard law rule’ as it is legally enforceable and binding on States. It must therefore give rise to a sanction when it is infringed, and in this case, it is the State that fails to fulfil its obligation to guarantee it. It should be used even in times of large migratory flows when it is difficult in practice to process the high volume of applications for international protection. For this reason, international law has established the procedure of ‘temporary protection’ in which the guarantee of non-refoulement is fundamental for people who are part of large migratory flows and it is presumed that the reasons for which they are fleeing their countries give them the option of being considered as refugees.41 This has been referred to as ‘prima facie’ refugees where immediate response is very important and where, for practical reasons, it is not possible to individually determine the refugee status of each member of the group.42 In these cases, ‘collective determination’ of refugee status is used and unless there is evidence to the contrary, all persons are considered refugees, but only for recognition purposes. The decision on whether or not to reject them must be based

 Ecre (2021), pp.  4–5. In this regard, the ECtHR has pointed out that where an individual is exposed to a place of general violence of exceptional intensity, as in the case of armed conflict, there are substantial grounds for believing that if he is returned to the place of destination, he is at risk of ill-treatment by the mere fact of his presence on the territory of that country. See Sufi and Elmi v UK, 8319/07, 28 June 2011, § 32. 39  Chetail (2014), pp. 30–32; Soler García (2020), pp. 567–568. 40  Morgades Gil (2016), p. 235. 41  Solanes Corella (2020), p. 41. 42  Morgades Gil (2016), p. 238. 38

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on an individual assessment.43 In this sense, they will be entitled to the same benefits as refugees in the country where they are recognised, and those established in the Refugee Convention or applicable instrument. Prima facie recognition is not something temporary or pending further confirmation. Once refugee status is obtained, ‘prima facie’ status must be maintained, except in situations where it can be demonstrated that it falls within the terms of the ‘cessation’ clauses, or its status is cancelled44 or revoked.45 Finally, this principle must also be guaranteed at borders because this is one of the areas where international law on refuge and asylum is suspended, making access to this legal status impossible. And, in any case, it is always necessary to guarantee the principle of non-refoulement.46

3.3 Non-Refoulement Obligations in the EU Member States47 The 1999 Treaty of Amsterdam gave the EU institutions new powers to draft asylum legislation and to create through the agencies a special protection system. With the 1999 Tampere Programme, the European Council decided that the implementation of the Common European Asylum System would be implemented by adopting, within a short period, minimum standards and a common procedure for granting people asylum valid throughout the EU. This generated the first beginnings of the Common European Asylum System (CEAS), which, between 1999 and 2004, laid the foundations for determining the Member State responsible for examining asylum applications, replacing the 1990 Dublin Convention. The common minimum standards to be followed by the Member States in the reception of asylum seekers, the requirements for international protection, and the nature of the protection granted were established, as well as procedures for granting or withdrawing refugee status. The 2009 Treaty of Lisbon amended asylum measures, creating minimum standards for a common system. It introduced important improvements in judicial control by the Court of Justice of the European Union. Among the problems that have arisen in the protection of refugees, it should be noted that the EU, despite creating a joint migration and asylum policy, generated a ‘progressive degradation of refugee  Acnur (1992), p. 14.  This happens when the person should not have been recognised as a refugee. Either because of fraud committed by the applicant, illegal acts affecting the eligibility of the material submitted, threats or bribery, or an error of law by the refugee status determination authority. See Acnur (2004), p. 7. 45  Refugee status is withdrawn in cases where a ‘crime against peace, a war crime, or a crime against humanity’ has been committed. See Art. 1F of the Refugee Convention. 46  Solanes Corella (2020), p. 40. 47  For a  in-depth analysis on  the  EU law, see the  chapter “Jus Migrandi and  Personal Beliefs of Migrants Coming from Third States: Practice from EU Asylum Policy” of this volume. 43 44

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status’.48 Council Directive 2001/55/EC of 20 July 2001 regulates the temporary protection of asylum seekers in a coordinated manner through Community institutions and the adoption of economic measures and the relocation of protected persons between the Member States. It aims to apply the principle of non-refoulement to individuals who are at risk of persecution and serious human rights violations.49 Directives 2004/83/EC and 2005/85/EC lay down the minimum requirements to be met by third-country nationals to be able to apply for refugee status and contain the minimum standards applicable to the procedures for examining asylum applications and the rights of applicants. The need for uniform rules in the Member States to enable the application of the principle of mutual recognition of asylum led to the adoption of Directive 2011/95/ EU of the European Parliament and of the Council on 13 December 2011. It lays down the rules on the qualification of third-country nationals or stateless persons as beneficiaries of international protection. It is a status for refugees or persons eligible for subsidiary protection and the content of the protection granted.50 As people flee for different reasons such as armed conflicts,51 the reasons for fleeing are war, harassment, and not only due to economic issues.52 Thus, nine out of ten people arriving in Greece come from Syria,53 Afghanistan, and Iraq, and those in Italy come from countries such as Eritrea, Somalia, and Sudan, among others; they all have one thing in common, they are at war. Individuals would be protected by international refugee law, however, there is a growing trend not to recognise them as refugees, but as economic migrants.54  Solanes Corella (2016), p. 44.  Morgades Gil (2016), p. 239. 50  Alija (2020), p. 41. Subsidiary protection is granted to persons who do not qualify for refugee status: because of a death sentence or risk of physical execution; torture and inhuman or degrading treatment in the applicant’s country of origin; serious threats to life or integrity of persons due to indiscriminate violence in conflict situations. Mostly granted to persons from Syria, Somalia, Palestine, and Yemen. 51  There is a tendency to consider that the State receiving refugees who do not fall within the classic definition contained in the Refugee Convention, being persons fleeing their country because of armed conflict, disturbances of law and order, either throughout the territory of their country of origin or where they habitually reside, must admit them to its territory and ensure respect for the principle of non-refoulement at the borders. The presumption is that any person who has fled his or her country should be considered a priori as a refugee unless proven otherwise. See Tercer informe sobre la expulsión de extranjeros, A/CN.4/581, 130. 52  In 2015, Europe faced the largest refugee crisis since World War II when more than 1.3 million people from Syria, Afghanistan, and Iraq sought asylum. They were fleeing armed conflicts that threatened their lives because of their personal beliefs, religion, and ethnicity. See Koula (2021), p. 358. 53  People fleeing Syria do so for many reasons, including a religious sectarian conflict between Shi’a and Sunnis. The Sunni extremist group Islamic State of Iraq (ISIS) has clashed with Sunnis. In Syria, Sunnis are estimated to account for more than 70% of the population compared to Shiites, who together with the Alawis account for less than 10%. Both profess Islam as their religion. See Fernández Martín (2014), pp. 4–8. 54  Mesa (2015–2016), p. 74. 48 49

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An example of the adverse effects of the common asylum policy is the Dublin Regulation. It does not allow applicants to choose the country in which to seek protection: ‘It aims to determine a single EU Member State as responsible for the processing of an asylum application’,55 so that they must stay in the first country of entry, where, in many cases, they have neither the financial means nor the preparation to do so. The aim is to determine a single EU Member State to be responsible for processing an asylum application, so they must stay in the first country of entry, where, in many cases, they are neither financially equipped nor prepared to handle a large volume of applications. Consequently, with the EU failing to reach a settlement on refugees and migratory pressure from States such as Greece and Italy, who have demanded a fair share of asylum, the EU has had no choice but to send financial and management support.56 Among other solutions for the protection of asylum seekers, the relocation of asylum seekers to different countries was determined, but without a humanitarian response to the terrible refugee crisis.57 Under current rules, asylum seekers are not treated equally in different EU countries and asylum grants vary widely.58 To guarantee asylum, the principle of non-refoulement must necessarily be applied to their own country as a safe third country.59

3.4 Criticism of Refugee Management As mentioned above, it has been widely criticised that the EU, and especially the Member States, are in practice violating the fundamental guarantees of refugee rights and curtailing asylum. This right has been modified and linked to a process of commodification that affects economic, social, and cultural rights particularly

 The Dublin system was first established in 1990 and updated in 2003 and 2013.  Support has been provided by the EU agencies Frontex and the European Asylum Support Office, which together with local authorities assist in the registration and fingerprinting of asylum seekers, which is essential to determine the procedures to be followed. See, Koula (2021), pp.  359–360; Alija (2020), p.  45; Tauner (2016), p.  315; European Court of Auditors (2017), pp. 6–7. 57  Tauner (2016), p. 313. It has been argued that the response to migration is driven by the imposition of political and economic objectives. In this sense, the ECtHR has determined that migration control serves to protect the general interests of economic welfare. It can thus be observed that ‘a clear connection between the legitimate aim of economic well-being and the notion of migration control’. See Reyhani and Golmohammadi (2022), pp. 11–18. 58  See Tauner (2016), p. 314. In response to this, on 23 September 2020, the European Commission proposed a ‘New Pact on Migration and Asylum’ to establish a common European framework for managing asylum and migration, more efficient and resilient to migratory pressure, fighting abuses, and helping the most affected Member States. On 19 January 2022, the European Union Agency for Asylum replaced the European Asylum Support Office (EASO) intending to improve EU asylum and reception practices. 59  De Lucas (2016), p. 100. 55 56

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because of the measures imposed through austerity directives, as the only way to reduce spending in the most indebted countries. One such case is that of Greece, where cutbacks have affected the right to asylum, despite it being a universal human right, which has been called ‘a denaturalisation of the right to asylum’60 by removing minimum guarantees. In countries such as Denmark, a bill was passed allowing Danish police or government officials to confiscate money or valuables to secure the resources needed for asylum recognition. This country, like the rest of the EU, is bound by international refugee law and must ensure subsidiary international protection.61 Actions were taken on the condition that obligation, particularly the demand for payments, is contrary to that legal duty, and contrary to the basic feature of European identity: ‘upholding the rule of law’ and respect for the fundamental rights of all those under European sovereignty. Maintaining security and developing mechanisms to prevent terrorist and criminal threats is not easy. However, any limitations must not disregard the EU’s obligations to respect freedom and protect the fundamental rights of refugees. This brings with it humane management of external borders, simplification, accelerated funding, and access to banking resources created for humanitarian and refugee integration crises.62 One of the measures taken to prevent the increase in migration flows is the so-­ called ‘agreement’ between the EU and Turkey of 18 March 2016. This accepts the rapid return of all migrants not in need of international protection crossing from Turkey to Greece, including the acceptance of all irregular migrants intercepted in Turkish waters.63 Turkey committed to protecting European borders, to readmit all persons arriving irregularly on Greek shores, and the EU to increase resources for the reception of refugees. EU countries pledged to relocate every Syrian citizen for every Syrian returned to Turkey, but that had an adverse effect: ‘the Greek islands became like open-air detention camps’. Four years after the agreement, the returns were not as expected because the Greek courts did not consider Turkey a safe country,64 and the Turkish government complained that the EU did not deliver.65 This agreement was widely criticised for its ‘legality deficit’. It started to be implemented de facto and partially on 4 April 2016, without time to ‘verify the

 Ibid., 98.  Ibid. 62  Alija (2020), p. 50. 63  De Lucas (2016), p. 100; Mcewen (2017), p. 21. 64  In Greece, applications for asylum and subsidiary protection are first examined by the Asylum Service and, in case of appeal, by the Committees. From April to June 2016, out of 393 applications lodged with the Greek authorities, 390 were upheld by the Committees on the grounds that Turkey did not meet the requirements of being a safe third country. They considered that the principle of non-refoulement was systematically violated in Turkey through incidents of violent refoulement at the borders and mass deportations to Syria. See Gkliati (2016), pp.  217–219; Ovacik (2020), pp. 73–75; Soler García (2020), pp. 570–571. 65  Garcés Mascareñas (2020), pp. 1–2. 60 61

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minimum legal requirements’ and to avoid collective expulsions,66 the guarantee of effective judicial protection for asylum seekers, as well as for migrants. It was also necessary to verify that Turkey fulfilled the requirements to be considered a safe country.67 The ECtHR notes that the obligation to protect migrants and refugees against devolution is triggered if the authorities of the State of return know or ought to have known that persons are at risk of being returned to their place of origin or a third State. This may be known if those countries do not have adequate asylum procedures in place, carry out forcible returns without due process, or there are allegations of mistreatment of detainees.68 The solution to this context is a different asylum and border policy that guarantees ‘human security beyond borders’.69

4 Exceptions to the Principle of Non-Refoulement 4.1 Danger to State Security As mentioned above, States have different mechanisms to guarantee an individual the principle of non-refoulement, but they have the power to make an exception to granting it, and a refugee cannot claim it when he or she represents a danger to the security of the country in which he or she is. In this case, the threat to security is limited to terrorist actions, military and espionage operations, or others that lead to the destruction of institutions. Nevertheless, it must be based on serious indications

 Collective expulsions of foreigners are prohibited under international law. This type of expulsion implies that the State does not examine the particular condition of each individual, nor does it assess whether he or she is under a risk of harm and therefore cannot be returned to his or her country of origin or to a third party. It was first codified in Protocol 4 to the ECHR of 1963 and is regulated in Art. 19.1 of the EU Charter of Fundamental Rights. See Mcewen (2017), p. 23. 67  De Lucas (2016), p. 102. 68  See Hirsi v Italy, 27765/09, 23 February 2012, §§ 134–135. An action was brought against Italy by 11 Somali nationals and 13 Eritrean nationals. They were part of a group of 200 people who had left Libya in three boats with the aim of reaching the Italian coast in 2009. When they were 35 nautical miles south of Lampedusa, they were intercepted by three vessels of the Italian Fiscal Police and coastguard. The intercepted occupants were transferred to Italian military vessels and returned to Tripoli. The applicants complained that they had been exposed to the risk of inhuman or degrading treatment in Libya and in their countries of origin. The ECtHR held that the State’s exercise of jurisdiction is territorial, but exceptionally its acts outside its territory may constitute an exercise of jurisdiction where there is effective control of an extraterritorial area. According to the law of the sea, a vessel on the high seas is subject to the exclusive jurisdiction of its flag State and in this case the events occurred on board Italian vessels under the effective control of Italian military personnel. Therefore, the applicants were de jure and de facto under Italian jurisdiction. The ECtHR analysed the case in the light of Art. 33, and in its connection with Art. 3 ECHR, finding that the refoulement of the asylum seekers violated the obligation of non-refoulement. 69  De Lucas (2016), p. 106. 66

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that objectively demonstrate, with evidence, that the threat is serious.70 This is to ensure the security of the State and its institutions.

4.2 Convicted by a Final Judgment Another exception to the principle of non-refoulement is when the person has been convicted of a particularly serious crime, and thus constitutes a risk to the security of the community of that country. The reason behind this measure is the protection of the host society against criminality.71 In this case, it is mandatory to exhaust all judicial remedies: the conviction must be for a serious crime, and both the harm inflicted, and the circumstances of its commission must be examined. In addition, these refugees represent a danger to the whole community because of their criminal record and the risk of recidivism. In concrete terms, the principle of non-­refoulement aims to reconcile two opposing values: on the one hand, the right of States to control the territory and interests of the community; on the other, the obligation to grant protection to refugees, who fear for their freedom and their lives.72

5 European Court of Human Rights Case Law 5.1 Cases of Persecution on Grounds of Religion or Other Beliefs When a person is persecuted for his or her beliefs, whether religious or non-­religious in nature, the authorities must always determine what constitutes an act of persecution. Investigate whether the asylum seeker, by professing his or her faith or opposing a practice in the country of origin, is at risk of harassment, torture, or inhuman or degrading treatment. In the case of religious beliefs, the fear may be considered  Article 32 (2), Refugee Convention, and Solanes Corella (2020), pp. 38–39.  Chetail (2014), p. 32. 72  Ibid., 33. In this regard, the ECtHR has ruled on the importance of analysing the applicant’s claims, taking into account Art. 2, right to life, and Art. 3, prohibition of torture and inhuman or degrading treatment of the ECHR, together and inseparably. In Tatar v Switzerland, the applicant, a Turkish national who had been convicted of a serious crime, alleged that he was at risk of death or ill-treatment if deported to Turkey because of his mental health condition, the risk of being killed as an act of enmity by his wife’s relatives and of being arrested and tortured because he was a member of a Turkish communist party. The Federal Supreme Court rejected the applicant’s appeal. It ruled that he could be returned despite his recognition as a refugee under the Refugee Convention. The ECtHR considered that he had been convicted of a serious crime and that it could not be shown that, in the event of removal, the applicant’s mental health would deteriorate to the point of endangering his life. It upheld the expulsion and considered that the applicant had not been able to justify a threat, and again, see Tatar v Switzerland, 65692/12, 14 April 2015, § 19. 70 71

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well-founded when it is known that, upon return to the country of destination, he will practise religious acts that expose him to a risk of harassment and he cannot be expected to renounce these because they are part of his faith.73

5.2 Bayatyan v Armenia In the case at hand, the ECtHR ruled for the first time on the question of the applicability of Art. 9 of the ECHR to conscientious objectors and persecution for refusing to serve in the army. It noted that the ECHR is a living instrument that must be interpreted, taking into account current conditions and prevailing ideas in democratic States.74 Furthermore, although Art. 9 does not specify the right to conscientious objection, it does apply when opposition to military service is based on a ‘serious and insurmountable conflict between the obligation to serve in the military and a person’s conscience or deeply held or genuine religious or other beliefs’. This is recognised as a sufficient, strong, serious, and important conviction for its protection to apply.75 The appellant refused to perform military service because he was a Jehovah’s Witness and because, although this service did not require him to bear arms, it was contrary to his beliefs; he was convicted of evasion and failure to fulfil his obligation. To this effect, the ECtHR considered the sanction as an interference with the freedom to manifest his religion, and is contrary ‘unless it is prescribed by law’,76 has one or more objectives, such as public safety or morals, protection of public order, health, rights and freedoms of others.77 The State must be neutral and impartial, which applies to any belief, religious or non-religious. On the other hand, religious freedom is fundamental and is considered one of the vital elements in the identity of believers and their concept of life, ‘but it is also a precious commodity’ for agnostics, skeptics, and non-practising people.78 The ECtHR held that the primary obligation to implement and enforce the rights and freedoms guaranteed in cases concerning asylum seekers lies with the State authorities. But, in principle, it is for the applicant to provide evidence demonstrating the risk of refoulement to the country of destination on account of his or her beliefs or religious conversion. Nevertheless, the assessment of the asylum claim by the Contracting State and the return decision must be adequate and supported. In cases of change of religion or persecution for other beliefs, it is important to consult

 Palomino (2020), p. 63.  Bayatyan v Armenia, § 102. 75  Ibid., § 110. 76  Ibid., §§ 112–113. The expression ‘prescribed by law’ should be clear and enable conscientious objectors, if necessary, to foresee the consequences of a certain action and their conduct. 77  Article 9.2 ECHR. 78  Bayatyan v Armenia, §§ 118–119. 73 74

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national reports, and reliable and objective documents from reputable non-­ governmental organisations that demonstrate the situation of the individuals and the risks of refoulement.79

5.3 A. A. v Switzerland The same line is followed in A.A. v Switzerland. The applicant was an Afghan citizen of Hazara ethnicity from the province of Ghazni and a family tradition of the Shi’a faith. In his asylum application, he explained that he had had problems with the Afghan authorities because of his conversion to Christianity and because he had distributed copies of the Bible to the inhabitants of his village. In his absence, the police searched his home and questioned his mother about him, and she denied her son’s involvement in the distribution. When the complainant returned home, he confessed his conversion and his religious activities to his family. He escaped to Iran, then to Turkey, and finally applied for protection in Switzerland. Asylum was refused by the responsible body (SEM) because the description of his escape was superficial, lacked precision, and gave very general details of Christianity and information about the recipients to whom he delivered the bibles.80 The Federal Administrative Court noted that it could not be excluded that the applicant had been interested in Christianity in his country of origin and, after verifying the information submitted during the appeal procedure: baptismal certificate, certificate of Christian initiation, and letter from the vicar of Bellinzona, in contrast to the SEM, stated that it did not intend to question the authenticity of the applicant’s conversion.81 Although freedom of religion is guaranteed in the Afghan constitution, this is purely theoretical and is not considered as an authorisation to abandon the Muslim faith and embrace Christianity.82 So renouncing Islam would be considered apostasy and, in certain situations, a cause for the person to be persecuted and even punished with death.83 The ECtHR affirms the right of States to control the entry, stay, and expulsion of non-nationals. It recalls that the refoulement of a foreigner can give rise to State responsibility under Art. 3 of the ECHR.84 Therefore, the situation of the asylum seeker and the dangers that exist in his country must be assessed. In this case, he belongs to a minority persecuted and punished by different groups in Afghanistan,  FG v Sweden, 43611/11, 23 March 2016, § 117.  A.A. v Switzerland, 32218/17, 5 November 2019, § 13. 81  Ibid., § 17. 82  Ibid., § 18. 83  In Afghanistan, members of religious minorities such as the Baha’is and Christians are not allowed to spread their religious beliefs or gather in public to practise their faith because they risk discrimination, ill-treatment, arbitrary arrest, or execution. 84  Saadi v Italy, 37201/06, 28 February 2008, §§ 124–125, Tarakhel v Switzerland, 29217/12, 4 November 2014, § 93. 79 80

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and even by State agents. Also, there is a conversion involved, and the authorities had to check whether he was sincere, and had a degree of commitment and coherence, in the sense that he is based on religious, authentic, and personal convictions.85 At the same time, the real risk of being subjected to unfavourable treatment if he were to be deported to his country of destination had to be established. It was verified that if the applicant returned, he would have to change her way of relating. So his new faith would be assumed privately, which would mean living a lie and he would be forced to renounce contact with other people who professed his religion for fear of being found out. This is also the situation of an apostate in Afghanistan, who cannot express his ideas and beliefs freely.86 The ECtHR found that the Federal Administrative Court did not consider how the applicant externalised his Christian faith in Switzerland, nor how he would do so in Afghanistan, in assessing the risks of his expulsion, but merely stated that he would not be in danger if returned to his country. After considering all these facts, and the lack of a rigorous examination of the case,87 and the risks faced by converts in Afghanistan, it is unanimously held that, if the applicant is returned, Art. 3 of the ECHR would be violated.88 In these situations, where there is access to general information describing a country context, an applicant’s allegations of membership in a persecuted group must be corroborated by other evidence. If he or she is a member of a congregation and verifies being systematically subjected to threats, persecution, and ill-treatment, the protection of Art. 3 ECHR can be applied. For this, it is necessary to prove, with relevant sources and reliable reports, that there are sound reasons to show that the practice and its membership in the group in question are punishable.89 It is very important that the asylum authorities investigate the facts of the case and determine the reasons for the fear of persecution. Likewise, to determine whether the definition set out in the Refugee Convention applies. This is essential because the grounds of persecution under this instrument sometimes overlap. In many situations, a person is a political opponent who belongs to a religious group or both, and this is very relevant when assessing the petition. Although the burden of proof lies with the individual making the claim, both the applicant and the examiner have a shared duty to assess the relevant facts. In that case, the asylum authorities will have to use all means at their disposal that support the claim.90 In this regard, the ECtHR has indicated that about ‘sur place’91 activities it is usually very difficult to assess the degree of engagement in an action. Whether there is

 A.A. v Suisse, § 50–51.  Ibid., § 55. 87  Ibid., §§ 52–54. 88  Ibid., § 17. 89  FG v Sweden, § 120. 90  Ibid., §§ 121–122. 91  This term refers to a person who is not a refugee at the time of leaving his or her country of origin, but who becomes a refugee, i.e. acquires a well-founded fear of persecution, at a later date. 85 86

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a genuine interest, be it religious, political, or other, or, on the contrary, whether the person did it to create ulterior motives for his departure. In these cases, particular credibility problems arise for asylum claimants. According to the general legal position, a rigorous, in-depth examination of the circumstances and elements obtained from a conversion, participation, or political beliefs is necessary.92 When persons have undergone a genuine change of faith or are at risk of being accused of a new religious dogma and face the danger of persecution if returned to the country of destination, international protection cannot be denied on the sole ground that they practise their faith privately, he or she can avoid persecution.93 However, in those applications based on a well-known general danger, the obligation of States, about Articles 2 and 3 ECHR in expulsion cases, leads to an ex officio risk assessment. Conversely, in individual asylum applications, which are based on a risk, it is the individual who invokes and justifies the risk.94 If the applicant chooses to omit the reason for asylum and deliberately refrains from reporting it, regardless of the type of belief, the State cannot be expected to discover the reason for asylum by its means. Considering the special character of Articles 2 and 3 of the ECHR, and referring to the vulnerability of asylum seekers, if the State becomes aware of facts concerning an individual, who may be exposed to a risk of ill-treatment upon return to the country of origin or a third party, it must assess the dangers to which he or she is exposed.95 Indeed, in Bahaddar v The Netherlands, it was found that in applications for refugee status, it may be difficult or impossible for the person concerned to provide evidence within a short period. Particularly, if it has to be obtained in the country from which he or she claims to have fled. Therefore, time limits should not be so short, or applied so harshly, as to deny a refugee status claimant a realistic opportunity to prove his or her claim.96

5.4 M.A.M. v Switzerland A Pakistani national, in 2015, submitted an asylum claim upon arrival in Switzerland, arguing that his life was in danger due to a land dispute between his relatives and a neighbouring family. After they won their case in court, the other family tried to kill him. He, therefore, decided to leave the country and settled in the refugee centres of Lyss and Tramelan. There, he joined the religious activities of various Christian

 FG v Sweden, §§ 123 and 146.  Ibid., § 145. 94  FG v Sweden, §§ 126–127. 95  Ibid., § 127. 96  Bahaddar v The Netherlands, 25894/94, 22 May 1995, § 45. 92 93

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churches. He eventually became a member of the Salvation Army, regularly attending all church activities, where he was finally baptised in 2016.97 Asylum authorities interviewed him in 2017 without being represented by a lawyer, but accompanied by a pastor, and focused on the reasons why he had left Pakistan and why he believed his life was in danger. He submitted a letter of recommendation in which the pastor confirmed that he regularly attended Salvation Army church activities. In 2018, his asylum application was rejected by the State Secretariat for Migration (SEM): fear of persecution due to the land dispute was not accepted as a valid reason, as they considered that he could move to another city in Pakistan. Also, there was no general scenario of violence in the whole territory and the country could offer him protection.98 The petitioner appealed the decision to the Federal Administrative Court, which was dismissed in 2020 because the land dispute was a conflict between private parties. In contrast, it did find the conversion credible and recalled that there is likely to be social intolerance and an increased risk of reprisals against religious minorities. Nevertheless, the attacks were not so frequent as to amount to persecution of all members of the Christian faith. The number of attacks affects only 1.6 or 2% of the total population. Therefore, it was not considered high enough to imply a group or collective persecution.99 In this regard, the ECtHR recalls that it is important to analyse in detail the facts of the beliefs and their practices. In this case, the church to which the applicant belongs highlights as significant the fact that members promote their faith and make it known by participating in prayer groups and youth groups. Moreover, this is exercised publicly in the streets. All these religious activities were carried out by the applicant and confirmed by the Salvation Army Church so that he cannot be asked to practise his faith discreetly without attracting the attention of the Pakistani authorities. Therefore, the assessment of danger cannot be made on the assumption of the secret practice of religion. Concealment of his beliefs would entail a severe psychological burden, amounting to torture within the meaning of Art. 3 ECHR.100 Therefore, given all the elements submitted by the applicant to the national authorities, the ECtHR concludes that he has demonstrated that his asylum application, based on his conversion to Christianity, should be further examined by the Swiss authorities. Articles 2 and 3, as well as Art. 9 of the ECHR, would be violated if the petitioner were to be returned to Pakistan101 since, upon return to his country, he will face problems in exercising his beliefs freely because Christians are at risk of persecution, violent attacks and ill-treatment.102

 M.A.M v Switzerland, 29836/20, 26 April 2022, §§ 4–9.  Ibid., §§ 10–11. 99  Ibid., § 20. 100  Ibid., § 49. 101  Ibid., §§ 79–81. 102  Ibid., §§ 39–41. 97 98

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The ECtHR has underlined the importance of weighing the evidence, the consideration of well-founded fear, and the risk of return. In the present case, following the religious conversion, the authorities did not consider his attendance at the Salvation Army church, although they knew that he was a regular participant. Nor did they ask him during the interview what kind of activities he carried out in religious worship. It is also important to investigate all the information one has about the asylum seeker’s country of destination because it is relevant to determine the level of danger of return.103

6 Cases of Persecution for Political Views As seen above, the ECHR does not expressly provide for the right to asylum, but the protection of the applicants’ human rights is done through the interpretation of other rights contained therein, such as the aforementioned right to life (Art. 2), prohibition of torture (Art. 3), right to liberty and security (Art. 5) and right to effective remedies with these rights.104 The ECtHR has ruled on the extent of participation in political activities, organisations, demonstrations, or any other function,105 and the risk this poses to asylum seekers if they are returned to their place of destination. An individual does not need to hold a recognised position within a party, or a prominent role, or be a leader in defence of human rights and freedom, to be at risk of serious harm to his or her dignity.

6.1 Öcalan v Turkey On 22 February 1999, the prosecutor of the National Security Court in Ankara interrogated the applicant, and took his statement as a defendant. He said that he was the founder of the PKK and its leader, whose aim was to create an independent Kurdish State, and, sometime later, they sought to secure a share of power as a free people. He recognised that he used violent methods against the Turkish civilian population, particularly from 1987 onwards, but indicated that he opposed such methods and tried to prevent them.106 This case is interesting from another point of view: when a detainee, because of his convictions, suffers social isolation, this can destroy his personality and constitute a form of inhuman treatment. This is not justified by  Ibid., § 34.  Ovacik (2020), p. 66. 105  MSS v Belgium and Greece, 30696/09, 21 January 2011, § 31. The asylum seeker fled Afghanistan because of an assassination attempt carried out by the Taliban in retaliation for his activities as an interpreter for international troops based in Kabul. 106  Öcalan v Turkey, 46221/99, 12 May 2005, §§ 24–25. 103 104

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security requirements or any other reason. However, the ECtHR considered that the general conditions of the detainee did not reach the minimum level required to constitute inhuman or degrading treatment.107

6.2 Hilal v the United Kingdom The applicant was an active member of the Civic United Front (CUF) opposition party. He was arrested and tortured at the police station in Zanzibar because of his commitment to the CUF. The country of destination and the endemic situation of human rights problems, related to the persecution of its members, were analysed. Reference was made to Amnesty International’s reports, which alleged that the police carried out summary executions, mistreated suspected members of the group, and carried out lethal arrests. The ECtHR assessed the evidence and considered the risk of refoulement, and ruled that it could not be expected that if the appellant moved to live in another town within Tanzania, i.e. by ‘internal flight’, he would escape the danger.108 In the same connection, in the judgment R.C. v Sweden, a student who participated in marches in defence of freedom and opposition to the Iranian regime was subjected to ill-treatment and torture by the police. He applied for asylum, but his application was rejected because he did not prove that he was a member of a political organisation or group.109 Again, the ECtHR stressed the importance of examining the applicant’s situation and determining whether his return to his country of origin would be contrary to Art. 3 prohibition of torture of the ECHR. In this context, the applicant must provide evidence demonstrating reasonable grounds to believe that he or she would be exposed to a real risk if returned. However, where information gives strong indications to question the veracity of an asylum seeker’s statements, he or she must provide satisfactory explanations for the alleged discrepancies.110 The government must assess and focus the analysis on the foreseeable consequences of the applicant’s transfer to the country of destination, taking as a reference all information on the personal circumstances of the person concerned and the violence scenario in the country.111 The ECtHR reiterated the absolute prohibition of torture, degrading and inhuman treatment or punishment, the State’s obligation to protect them from such treatment, and that this would happen if it

 Ibid., § 191.  Hilal v UK, 45276/99, 6 March 2001, §§ 38–39. 109  RC v Sweden, 41827/07, 9 March 2010, §§ 10–13. 110  See FG v Sweden, § 113. 111  See RC v Sweden, § 53. 107 108

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carried out the expulsion.112 Even where the applicant’s actions are undesirable and dangerous, this cannot be a justification for refoulement.113 In this sense, if during the asylum application it is not possible to prove the veracity of the written information, it should always be interpreted in favour of the applicant. The application shall be considered well-founded when: it is submitted within a short period; it provides all the information available; the statements are consistent.114 The State’s commitment under Art. 3 ECHR is based on the fact of exposing an individual to the risk of ill-treatment, the existence of that risk is assessed based on the information he or she had or should have possessed at the time of return; the focus will be on the possible consequences. It does not matter whether the risk is due to violence in a country, particular to the applicant, or a combination of both.115

6.3 T.K. and Others v Lithuania The persecution of leaders or members active or not active in a political group was analysed. The ECtHR drew attention to the danger of any kind of ill-treatment faced by other categories. The applicants argued the risk of inhuman and degrading treatment, one of them being persecuted in his country because of his political activities as a member of the Islamic Renaissance Party of Tajikistan (the IRPT). The others because of their family links with him. The IRPT was an opposition group, banned and declared a terrorist organisation.116 The ECtHR again relied on the fact that Tajikistan has a widespread practice of ill-treatment of persons in the applicant’s situation, and therefore returning them would violate Art.  3 of the ECHR on the prohibition of torture. At the same time, it also considers the danger a person faces when he or she has ceased to belong to a political group. In the case of Abdolkhani and Karimnia v Turkey, two Iranians joined the People’s Mojahedin Organization of Iran (PMOI) in 1992 and 2001. They lived with its members until they left in 2005 and 2006 because they disagreed with its aims and methods. They sought protection in Ashraf Refugee Camp and were recognised as refugees by UNHCR headquarters in Geneva during their stay in Iraq.

 On the prohibition of removal of a person who is expected to suffer inhuman treatment in the country of return, see ECtHR cases Soering v UK, 1/1989/161/217; 7 July 1989, §§ 90–91; Hilal v UK, § 37; Mayeka v Belgium, 13178/03, 12 October 2006, § 48; Sheek v The Netherlands, 1948/04, 11 January 2007, § 135; MSS. v Belgium and Greece, § 218; Tarakhel v Switzerland, 29217/12, 4 November 2014, § 93. 113  Chahal v UK, 22414/93, 15 November 1996, § 80. 114  TK v Lithuanian, 55978/20, 22 March 2022, §§ 43 and 87. 115  FG v Sweden, §§ 115–116. 116  TK v Lithuanian, §§ 57–58. 112

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The first applicant was found to have a well-founded fear of persecution in Iran on account of his political opinion, personality, and convictions. He had been a member of the organisation for 10  years and feared the treatment of members because of their ideas about the need for a secular State in his country. Therefore, it had been reasonably demonstrated that because of his ideals he would be persecuted by the security agencies upon his return. To the second petitioner, UNHCR found that he had substantial grounds to believe that the Iranians would violate his right to an arbitrary or unlawful deprivation of life, torture, ill-treatment, arbitrary arrest or detention, as well as the right to a fair and public trial. This was based on his membership in the PMOI, the persecution of his political views, and the treatment of members of that group. The Ashraf Refugee Camp was closed in 2008, the applicants were transferred to northern Iraq, and escaped back to Turkey.117 On the other hand, in A.A. v Switzerland, the ECtHR ruled on the extent of a person’s participation in an organisation. A Sudanese national, a former member and human rights officer of the anti-government group Sudan Liberation Movement-­ Unity (SLM), based in Switzerland since 2009. He applied for asylum because he had to flee his village in North Darfur, Sudan, after being attacked and abused by a government-backed militia. His asylum applications in 2004 and 2006 were rejected. First, a lack of credibility about their linguistic and cultural knowledge that would demonstrate the country of origin, coupled with the inconsistency of the account of their travel itinerary. Second, based on the new risk created by his political activism with SLM in 2009 and evidence of his North Darfur origins obtained through birth registration in Sudan. Political activities also included an interview with a local Swiss TV station against the government of Sudan. All of these were rejected as ways of generating post-refugee and anti-removal motives. The ECtHR agrees with the Swiss authorities that the applicant was not a high-­ profile political activist. However, regardless of rank, those suspected of supporting opposition movements are at risk of treatment contrary to Art. 3 of the ECHR in Sudan. The SLM-Unity applicant’s participation in the UN meetings in Geneva signified his involvement in an opposition movement against the government. Therefore, he considered that there was sufficient evidence to believe that he would be at risk of detention, interrogation, and torture if returned to his country.118 In Abdulazhon Isakov v Russia, the dispute is based on the applicant’s extradition to Uzbekistan because of his political convictions. The EctHR notes that the claim is admissible because he was arrested in Russia and then detained at the request of Uzbekistan. They suspected him of an attempt to overthrow the constitutional order and of membership in an extremist organisation. The Russian authorities initiated deportation proceedings. Throughout the proceedings, the petitioner demonstrated, with reports from the UN and international NGOs, the ill-treatment of detainees in his country. Concerning

117 118

 Abdolkhani and Karimnia v Turkey, 30471/08, 22 September 2009, §§ 2–3.  A.A. v Switzerland, § 43.

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this, the EctHR States that there is a problem of human rights violations in Uzbekistan, it persists and there is no evidence to the contrary. As a warrant was issued, he was likely at risk of ill-treatment. As to the Government’s argument that it had assurances from the Uzbek authorities that the applicant would not be subjected to inhuman or degrading treatment, he considered that this argument was unacceptable because they had no diplomatic document guaranteeing it. At the same time, he warned of the danger of relying on the custody of States where torture is persistent practice.119

7 Conclusion As we have been able to analyse, freedom of belief has different dimensions and is related to other human rights. It gives people the right to choose which religion to profess without any kind of interference, including atheism, conversion to another religion, proselytising, political ideas, conscientious objection, and different manifestations of belief. This apostasy has led to serious human rights violations: torture, arbitrary arrests, forced disappearances, and kidnappings, which cause people to flee because of the constant threats and harassment to which they are subjected in their country of origin. International law has responded to this reality, establishing the human right to seek and enjoy asylum, adding the obligation of the receiving country to guarantee their safety and non-refoulement when life or integrity is in danger. Undoubtedly, the ius cogens nature of the principle of non-refoulement means that, even in the absence of any ad hoc rule in the ECHR, the ECtHR has applied the absolute prohibition of its arbitrary transgression. Accordingly, it has been pointed out that, about asylum seekers on grounds of religion or personal belief, the links between refugee law and human rights must be taken into account. Asylum authorities or national courts must preserve specific safeguards on the assessment of the asylum seeker’s place of origin. It also stresses the importance of the asylum interview, appropriately, inquiring into the well-founded reasons for fear, as it constitutes a guarantee of the right of refugees. The case law of the ECtHR also reiterates the absolute character and nature of Art. 3 of the ECHR prohibiting torture, as it is not possible to weigh the risk of ill-­ treatment against the grounds for expulsion of an asylum seeker on grounds of national security. Although the ECtHR recognises the sovereignty of States to decide the criteria for admission and expulsion of non-nationals, it recalls their human rights obligations. It has reiterated the importance of complying with the commitments derived from the ECHR, and ensuring that no individual is expelled without particular consideration of his or her situation; if applicable, to enjoy special protection, regardless of whether the person is under the jurisdiction of the

119

 Isakov v Russia, 14049/08 8 July 2010, §§ 18–21.

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State, within or outside the national territory. Thus, the principle of non-refoulement benefits from the absolute nature of the prohibition of torture, to which no restriction or exception may be made. The same applies to other rights that may be affected by the act of expulsion. In short, the principle of non-refoulement is fundamental to the EU law and its protection is not only provided for in the ECHR but is also found in Art. 78.1 of the Treaty on the Functioning of the European Union, as well as in secondary EU law. It cannot be ignored that the EU has had to face a major migration crisis, which has challenged its policies and the actions of its Member States, creating a contradiction with its own values. However, it is important to remember that despite this scenario, the EU is obliged to comply with its international obligations. Moreover, international law binds the EU and is part of its legal system. It has been shown that migratory pressure has been a turning point in common asylum policy and decision-making. Despite attempts to homogenise standards and procedures, positive asylum responses vary considerably from country to country. The effect is that asylum seekers turn to the countries where they believe they will obtain international protection. The established regulations are an obstacle to guaranteeing the rights of applicants, creating differentiation in fact, but not in law, depending on the country where the application is made. The Dublin Regulation has sometimes not been applied because of the need to guarantee refugees a safe place free of risks to their integrity. Ultimately, different obstacles faced by asylum seekers, whether regulatory or procedural, make it difficult for those who need it most to enter European territory, forcing them into dangerous situations and to use different methods to enter, such as resorting to mafias and illegal groups that take advantage of their desperation and need. The position of host countries is not easy because they must guarantee public security and public order. The solution is not to tighten the requirements for refugee recognition and status. This not only prevents access but also transforms the concept of protection.

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Solanes Corella A (2020) Protección y principio de non-refoulement en la Unión Europea, SCIO. Revista de Filosofía 19:27–62 Soler García C (2020) ¿La noción de «país seguro» es segura? Un análisis a la luz de la jurisprudencia del Tribunal Europeo de Derechos Humanos. Revista de Derecho Comunitario Europeo 66:559–600 Tauner F (2016) Asylum policy: the EU’s ‘crises’ and the looming policy regime failure. J Eur Integr 38(3):311–325 Yanitza Giraldo  is Assistant Professor of Human Rights at the International University of Rioja, Faculty of Law. She is the Coordinator of the Master’s Degree in Labor and Social Security Law. She is a graduate of the Carlos III University of Madrid, Department of Legal Studies (LL.M. in Public Law, 2008). She holds a PhD in Law from Carlos III University of Madrid. She taught at several institutions in Latin America and Europe. She is the author of about 30 articles, especially on public international law and also, she has had research about Palestine and Israel conflict.

Part II

The EU

The Protection of Freedom of Religion in the EU Law Valentina Petralia

Abstract  The paper aims to face the relevance of the religious phenomenon in the context of the EU primary law. The analysis starts connecting the individual’s religious dimension to its connotation of culture and identity, in the first place. To follow, the paper focuses on the influence of religions on the European integration process, in order to outline the secular model to which the pluralistic EU takes inspiration from. The ECJ case law on religious freedom and on religion-based discrimination on the job will be analysed to highlight its critical points. Keywords  Religious freedom · Non-discrimination principle · Cultural inheritance · Identity · Pluralism

1 EU Religious Inheritance: A First Approach to the Perspective The religious issue in the European Union (EU) has been defined as a mix of inheritance and freedom, and also tensions. The concept of inheritance seems to recall the idea of cultural and spiritual heritage resulting in the cultural milieu of the European area; it represents one of the fundamental values on which the European law system is based on.1 From this standpoint, the religion issue in the European context must be considered starting from its cultural dimension.2The anthropologist Geertz provided a  Mignolli (2019), p. 99.  Cornelli (2018).

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V. Petralia (*) University of Catania, Catania, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_8

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definition of ‘religion’ and developed the idea that it would be a framework of reference which the members of a community share, in an effort to give a sense to life and to regulate their own behaviours.3 It comes across as a cultural system—or a complex of meanings—made of symbols based on which human beings build their own motivations and their general order of existence: ‘so culture patterns […] shape public behaviour’. According to Geertz, the underlying axiom of each religious experience is ‘the religious perspective’: ‘[a] perspective is a mode of seeing, in that extended sense of “see” in which it means “discern”, “apprehend”, “understand”, or “grasp”. It is a particular way of looking at life, a particular manner of construing the world’.4 A long-term debate took place about the relevance of the religious phenomenon in the European integration process, which first involved the Member States during the EU Treaties revision. The emerging points were discussed on a two-level basis. First, involving religious confessions in the European integration process would have contributed to construct a deeper and wider integration, but also to lead the communitarian action towards an ethical, cultural, and spiritual path. What’s more it would have given value to the European cultural heritage.5 It gained momentum from the above the idea of the President of the European Committee Mrs Delors, who in 1990 proposed to involve such religious confessions in the integration process; her idea was revived, in 1998, by her successor, Mr Santer. It was this first perspective to set the open dialogue—ex Article 17 of Treaty on the Functioning of the EU (TFEU)—between the EU and the Churches, but also between religious confessions and philosophical or non-confessional associations.6 On the other hand, someone claimed that the religious dimension was a cultural element that already contributed to the European integration, thus deserving a specific acknowledgment. That debate had a particular echo during the drafting of the so-called European Constitution.7 On that occasion, a heated debate was recorded about the possibility to clearly state a reference to the Christian roots of Europe in the preamble, as a part of the common European inheritance. Such a proposal was supported by some States and by the Church of Rome, while it was contrasted by the countries with a secular orientation, such as France.8 Making reference to a European inheritance would have been useful to determine a European identity through an attempt of summarising all the religious, humanist and cultural items characterising each Member State participating the integration process.9  Geertz (1993), p. 90.  Geertz (1993), pp. 89, 92 and 110. 5  Ventura (2001), pp. 199–200. 6  See also the chapter “The EU and the Status of Churches, Religious Associations, Philosophical and Non-Confessional Organisations” by Michał Rynkowski of this book. 7  Treaty establishing a Constitution for Europe signed in Rome on 29 October 2004 by the representatives of the 25 Member States of the European Union. 8  See Fabbri (2012), p. 32; Alicino (2011), p. 34; Lariccia (2006). 9  Durisotto (2016), pp. 88–89, refers to a ‘balance’ among all the religious, humanist and cultural items characterising European history and tradition and which differs from State to State. 3 4

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Nevertheless, the need to make reference both to national cultural and religious elements was a signal of a EU not yet possessing the necessary political authority to outline the scheme of relations between religion, rights and the State. ‘The Convention in charge of drawing up the Constitutional text chose to limit in the preamble the reference to “cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”’.10 Since the Constitutional Treaty never entered into force, the reference to the cultural, religious and humanist inheritance of Europe was proposed once again in the Treaty of Lisbon. Such a formula was widely welcomed, as the most suitable to ensure the coexistence of different traditions.11 It reflects the choice of a pluralistic model,12 in which the reference to the universal values of individual’s inviolable and inalienable rights testify the attention that the EU assign  to the central role of individuals.13 Such a choice was subject to many interpretations. The reference to cultural and humanist inheritance next to the religious ones would implicitly be an evidence of EU laicity.14 On the other hand, such a choice would not be enough to disavow the cultural and historical contribution provided by Christianism in the European area. Besides, recalling the common constitutional traditions made by the EU Treaty would facilitate a reference to Christianism (as reported by the Constitutions of many States), representing a unification element from shared historical and cultural assumptions.15 Additionally, such a reference would recall a tradition of thought which provided solid fundamentals to the protection of a person’s value and dignity.16 On the other side, someone insists on the fact that, regardless  of the role of Christianism in the European culture, it is to be also considered the role of laicity and secularity in the construction of the European identity, being them aimed at excluding the influence of religion from the life of political institution.17 Formal acknowledgement of Christian roots throughout the Constitutional text would have determined the overcoming of the boundaries between the political and the religious spheres. On the contrary, the European construction does not have (and should not have) religious roots of any kind, proposing itself as a neutral space.18  Preamble of the Treaty establishing a Constitution for Europe. See Botta (2005), p. 75.  Botta (2005), p. 75. See also Santini (2021), pp. 127–152. 12  Santini (2021). 13  Botta (2005), p. 75. 14  Santini (2021). In a compliant sense, see Lariccia (2006). 15  Durisotto (2016) and the doctrine quoted therein, in footnotes 258, 259 and 261. 16  Ancona (2005), pp. 161–163. 17  See Lariccia (2006): ‘contrariamente all’Europa come realtà storica e culturale, la costruzione europea non ha (e non dovrebbe avere) radici religiose di alcun tipo, proponendosi come uno spazio neutro, in grado di garantire ad ognuno la professione delle proprie personali convinzioni spirituali, siano esse cristiane, musulmane, ebraiche, agnostiche o atee’. 18  Parisi (2005), p. 114. 10 11

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As I will highlight, such an idea of neutrality gives birth to a series of misunderstandings.

2 Pluralism as a principle in the EU Creating a neutral space implies the involvement of extremely delicate political choices. The EU multicultural context and, thus, its many religions make room for a specific topic to face, id est finding the right balance aimed at guaranteeing to the coexisting cultural communities their own right to be different. Referring to its cultural nature rather than to its religious nature is not a mistake. In accord with the literature, it was clearly stated that in the current context of multicultural humanity, religions seem to become the one and only social glue.19 In view of an emerging and evident religious diversity, classic models which are consolidated in the context of the so-called State-nations, aimed at managing the religious phenomenon, lose their own descriptive and normative abilities. In here we shall refer to the concepts of laicity and secularism, as well as to the different organisational models of the relationships between the State and all the religions which take inspiration from these concepts. In the nation-state, laicity was meant to be the means through which the conflict between public order and religious groups would take place.20 A State inspired by a secular model is not in charge of bringing any metaphysical concept or fighting against the values of a specific religious faith. Laicity, as it has been said, cannot impede the existence of religious values in the legal system, since it is supposed to disregard a positive or negative evaluation of such.21 In this model, public authority must present itself as a neutral actor towards the person’s freedom of religion. At the same time, it must guarantee the defence of all those common values inspired by the protection of society. Based on this double perspective, on the one hand, public power must guarantee the person’s realisation of their religious dimension; on the other hand, it must guarantee the respect of public order and of individual rights potentially contrary to the religious freedom of others. As a result, while freedom of consciousness will be absolute (forum internum), external manifestations of such freedom could meet limitations aimed at the protection of opposite interests. Such limitations, to be said neutral, should not derive from ethical and religious principles or non-religious ones, considered by the public power as influential items on its action.22

 Alicino (2011), p. XXIV.  Ibid., XXIV–XXV. 21  Fabbri (2012), pp. 25–26. 22  Ibid., 27. 19 20

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The model of secularism, as outlined and shaped in the context of the modern State, established itself as essential to constitutionalism.23 Nowadays this latter may have lost its own validity, both because national communities are currently facing a profound cultural and religious transformation, and because EU Member States must confront two supranational systems. On the one hand, there is the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), while, on the other hand, there is the EU law. The first is solely in charge of protecting fundamental rights of the individual. The second must guarantee such rights to be respected and promoted within the areas of competence attributed to EU. As a result, the fundamental rights of an individual are to be intended as a part of a much wider—thus, diversified—freedom of space. Considering the new dynamics of integration, it is necessary to shape a new model of secularism, able to take into account the cultural and religious traditions of each State participating in the process but shaped according to the needs proposed by the concept of integration, which shall create a diversified religious context.24 According to the literature, secular and democratic constitutionalism can count today on a new juridical main reference coming from the supranational system, within which the European one represents—structurally speaking—the most advanced archetype and in which a ‘new’ European public law of religion is taking shape.25 As for the contents which are supposed to enrich the new model of secularism, strong differences shall be recorded. First, a lack of the principle of secularism in the EU primary law was highlighted. For this reason, it would still be hard to determine the EU orientation on the religious phenomenon.26 Nevertheless, the European system seems to have a series of features through which it would be possible to identify the principle of secularism in its own system. Particularly, the principles of equality and freedom, along with all the EU fundamental values, which ‘are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’27 would be aimed at imposing a model of active neutrality to all the Member States, facilitating the freedom of expression of religion, culture and philosophy emerging from the social tissue and without influencing individual’s choices or imposing consequences related to them.28 This new secular model is represented by the guarantee of pluralism which, despite the individual right of consciousness (forum internum), involves the right of the persons to manifest, both collectively and individually, their own religious or philosophical beliefs in a public space. Pluralism is guaranteed through tolerance, based on which a legal system must search for shared common rules aimed at

 Alicino (2011), pp. 170–171.  Alicino (2011), pp. 170–171. 25  Ibid., 232. 26  Fabbri (2012), pp. 105–106. In a compliant sense, see Ventura (2001), p. 135. 27  Article 2 TEU. 28  Lariccia (2006). 23 24

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facilitating a peaceful coexistence, and at regulating within a unitarian system the great variety of demonstrations related to freedom of conscience. Moreover, in the context of a unitarian legal system, guaranteeing pluralism, tolerance and a peaceful coexistence represents a political need aimed at the survival and the legitimation of the system itself. Considering the references to the religious dimension and to the values of freedom, equality, pluralism, tolerance and non-discrimination in the EU primary law, it can be outlined an inclination towards the construction of a model of pluralism, which shall be based on the acknowledgment of many religious beliefs and on the individual freedom to worship of one’s own accord.29 Nevertheless, it is necessary to check how these principles are concretely applied, and if the EU—both internally and in its external action—is able to show loyalty to such principles throughout its policy and institutions. Considering the EU ‘internal actions’, the reinforcement of a pluralistic model is not worn out, as it is also expressed through its relations with the rest of the world. From an external perspective, the EU ‘shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, […], solidarity and mutual respect among peoples, […] and the protection of human rights […]’.30 This way, the EU tries to establish its own values and spread them throughout the rest of the world. Such a perspective is clearly stated in Title V TEU on general provisions of the EU’s external action and on the common foreign and security policy specific provisions. In that part of TEU, Article 21, para 2, TEU detects all the objectives that the EU settles to be achieved in international affairs; among such objectives, the safeguard of the EU values along with a reinforcement of democracy, of the rule of law, of the human rights and of the principle of the international law. In such a context, freedom of religion can be detected. As highlighted by the EU High Representative for Foreign Affairs, on the occasion of the International Day Commemorating the Victims of Acts of Violence based on Religion or Belief, ‘[i]n line with the EU Action Plan on Human Rights and Democracy, the European Union works relentlessly to address violations and abuses of freedom of religion or belief […] Within the European Union itself, we actively fight all forms or manifestations of racism and intolerance, stigmatization of a religion, belief or non-belief, including by combatting hate crime and hate speech and by promoting education and pluralism. We also reiterate that criticism of beliefs, ideas, religious leaders or practices should not be prohibited or criminally sanctioned. The EU reaffirms that freedom of religion or belief and freedom of expression are interdependent, interrelated and mutually reinforcing rights’.31

 Santini (2021), p. 128.  Article 3, para 5, TEU. 31  International Day Commemorating the Victims of Acts of Violence based on Religion or Belief: Declaration by the High Representative on behalf of the EU, 646/21, 21 August 2021. 29 30

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Finally, it is worth pointing out that all the EU actions on this topic take inspiration from the ‘EU Guidelines on the promotion and protection of freedom of religion or belief’ adopted by the Foreign Affairs Council on 24 June 2013.

3 Freedom of Religion, Cultural Identity and Non-Discrimination Principle Considering the above, freedom of religion appears as a consequence of the cultural diversity which the EU must deal with, and it involves topics such as identity, unity and pluralism. All these matters need to be faced from a perspective of values, and they deserve a detailed discussion, although it might not be possible to examine them in depth. Nevertheless, it is worth trying to identify the EU political orientation on such subjects in light of the EU fundamental values. In fact, we shall start from at least two perspectives; the first one focuses on the individual dimension of identity, while the second one focuses on the collective dimension of identity, or, in other words, on the perspective of the State. Generally speaking, Article 2 TEU defines the fundamental values of the EU as ‘the respect for human dignity, freedom, democracy, equality, the rule of law and human rights, including the rights of persons belonging to minorities’ and, besides, it certifies that ‘[t]hese values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. With such a background, the EU Treaties provisions must be read considering they have a big impact on the individual’s right of identity and freedom of conscience. Moreover, it must be premised that EU primary law does not provide any definition of ‘religion’.32 As for the individual dimension, several primary provisions outline the boundaries of the protection area of individuals identity and religious dimension. Among them, there are the non-discrimination law rules, defined by the Articles  10 and 19 TFEU. The first reads ‘[i]n defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. On its side, Article 19 claims ‘[…] the Council, […] after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. By way of derogation from paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of Union  For a definition of the concept of religion, see Article 10, para 1, (b) of the Directive for a uniform status for refugees: ‘the concept of religion shall in particular include the holding of theistic, nontheistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief’. See Durisotto (2016), pp. 90–91. 32

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incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1’. A pluralistic context may be guaranteed by prohibiting discrimination—also on a religious ground—and by adopting measures aimed at fighting such discriminations, albeit respecting each national identity specificities. The prohibition to discriminate is also doubled down in the Charter of Fundamental Rights of the EU (CFR). Article 21, para 1, establishes the prohibition of ‘[a]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’. Protecting the individual from any form of discrimination based on religious beliefs shall be a prerogative for everyone to feel free to choose their own orientation and to manifest their own beliefs openly. In light of the above, many other individual forms of freedom of religion may find their own concrete expression. Specifically, we are referring to the freedom of thought, conscience, and religion (Article 10 CFR), and to the ‘right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions’ (Article  14  CFR). Additionally, the EU is obliged to ‘respect cultural, religious and linguistic diversity’,33 equally recalling the prohibition to discriminate. All provisions mentioned above give their own contribution in defining an accomplished model of the individual’s identity and religious protection, by sealing a tendency to achieve a society inspired by multiculturalism, fundamental to the European structure. On the collective dimension, national identities are intended to be all on the same level of mutual complementarity and inclusion in the EU context. In accordance with an osmosis process that lasted centuries, they gave birth to a common inheritance of values which coexist—not one against the other—making a unique European identity. The main actor in this process of osmosis may be the European Court of Justice (ECJ or the Court), which, on the one hand, is in charge of protecting the constitutional principles of the Member States; on the other hand, it is in charge of taking out from such fundamentals all the EU general principles which are to be enhanced in light of the concept of integration. The reference to common constitutional traditions, laid down by the Article 6, para 3, TEU, allows the Court to take such national values and to import them into the EU legal order, so as to facilitate the birth of an EU principle system.34 National judges participate in such a process, being, as they are, in charge of guaranteeing both a compliant enforcement and interpretation, in accordance with the European rules, as well as of giving a first-hand reading of the values of their own legal systems matching European rules and values.35 With such dialogue, national values establish themselves in the context of the EU law, while European values enter into

 Article 22 CFR.  Rinoldi (2012). 35  Parisi (2008). 33 34

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the national constitutional public order. Thus, on the one hand, the protection and enhancement of the identity of each Member State is guaranteed; on the other hand, what is pursued is a gradual process of establishment of the EU identity itself. Also, the dialogue between the courts guarantees a combination of principles which derive from national legal systems but readjusted in accordance with the single needs of each legal system. In light of such intense dialogue and cooperative attitude it is a foregone conclusion that there are some features of a European identity both in fieri and consolidated in common values. It is also the concept of ‘autonomy’ established by the ECJ in the EU legal order that offers its contribution to the construction of such  an identity, in comparison to both the international and the national legal systems.36 The protection of fundamental rights throughout the European area is a good example of these ‘parallel tracks’. On the one hand, it is a cohesive source, considering that it is mandatory to satisfy some specific criteria of protection which require the Member States to cooperate simultaneously. On the other hand, it is a source of division, considering identity features that the Member States are not keen on quitting. Freedom of religion is a fertile soil for cultural and religious subjectivity.37 The EU is also endowed with its own constitution,38 which clearly draws the EU’s shape, and which can be stated in terms of identity. It would be indeed a strong identity, since its fundamental values cannot be subverted due to their deeply constitutional nature, and since this would involve boundaries which are proper of the Member States constitutional systems.39 In such a process of models’ circulation, the identities of the EU and of the Member States feed each other by continuously redefining a mutual balance, where public powers respect cultural bonds existing between the individuals and their own community.40

 See Jayme (2003), who denounce that between, on one hand, the European integration and, on the other, the protection of national peculiarities, it lies the problem of the cultural identity of a national legal system, which constitutes at the same time an obstacle to the law unification and the price to pay for the European integration. Original text: ‘[…] si è acquisita consapevolezza nel momento storico in cui l’integrazione europea ha richiesto l’unificazione del diritto […]. Attualmente è l’idea […] di uno spazio della libertà, della sicurezza e del diritto che appare richiedere un allineamento normativo. Tra questi estremi, rappresentati da un lato dall’integrazione europea e dall’altro dalla tutela delle peculiarità nazionali, si colloca la problematica circa l’identità culturale di un sistema giuridico nazionale, che costituisce al contempo un ostacolo all’unificazione del diritto ed il prezzo che uno Stato europeo deve pagare in vista dell’integrazione europea’. 37  Ventura (2001), pp. 50–52. 38  According to the reconstruction proposed by Romano and taken up by Crisafulli, it is an essential system of a well-organised political community: each jurisdictional system is an institution funded on its own constitution. See Romano (1947), p. 124; Crisafulli (1970). 39  Parisi (2008). 40  Jayme (2003). 36

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4 Establishment of the Human Rights in the European Legal System The European integration process was initially born and developed at an economic and trading level, which permitted to set the basis for building a much wider institutional process, able to find a balance in the relationships among Member States.41 This starting point allowed the fundamental rights to lose their ‘economic ratio’ and to become central in the European integration and in the EU law.42 In fact, the fundamental rights and the freedom of religion are characterized by an interdisciplinary nature and, thus, by the predispositions to match the policies conferred to the EU, giving birth to a delicate debate about the split of competences between the State government and the EU one.43 Such  a step forward was encouraged by the fact that the application of  some specific principles—such as the direct effect of the EU law or its supremacy —to national legal systems was not acceptable in case the European legal order was not able to guarantee the fundamental rights of the individual.44 At first, a jurisdictional reconnaissance was set off of a catalogue of rights to be submitted to the observance of the European governance. Such process was held by the ECJ, based on the constitutional traditions which are common to the Member States,45 The aim was to fill the gap left by the Treaties,46 by building a multilevel system of fundamental rights protection. Although influences deriving from traditions of each Member State were evident, such catalogue was endowed with a certain level of autonomy.47 It comes as no surprise that the religious phenomenon also participated in such a process. The Court was asked to offer their opinions about arguments which implied some religious shades. It began by excluding religion from the judicial controversy, leading all the issues raised towards the economic and trading fields.48 That choice made room for some perplexities: on the one side, as for the honesty of such an operation; on the other side, putting aside the religious aspects in favour of secularism might sometimes be interpreted as a non-coherent

 Parisi (2005), p. 103.  See Ventura (2001), p. 17: that balance relationships among Member States ‘ha consentito che i diritti fondamentali, dapprima recessivi rispetto ai diritti strumentali alla realizzazione dello spazio economico comune, acquistassero centralità nella costituzione materiale dell’UE, nei suoi fondamenti giuridici espressi, nella giurisprudenza del suo organo giurisdizionale e persino nell’impulso dell’integrazione europea allo spontaneo armonizzarsi dei diritti nazionali’. 43  Durisotto (2016), pp. 65–66. 44  Ventura (2001), pp. 22–23. 45  Through this choice, the ECJ would corrode the sovereignty of Member States, enabling fundamental rights to be applied within the EU community, up to making irreversible the opening of the communitarian system towards human rights. Ventura (2001), pp. 26–27. 46  Durisotto (2016), pp. 56–57 and the doctrine quoted therein. 47  Ibid., 58–59. 48  Alicino (2011), p. 117; Ventura (2001), p. 148. 41 42

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criterion of selection.49 Moreover, opting for enhancing a certain aspect surely influences the competences distribution between Member States and the EU. By neutralising the religious aspect, the Court attracts the object of controversy50 towards the EU competences. The establishment of fundamental rights reaches its peak through the drafting of the CFR and its acknowledgment as having ‘the same legal value as the Treaties’.51 This step comes across as crucial in this EU constitutionalising process. Through the CFR a visible, clear, and predictable value is conferred to the fundamental rights protected in the EU.52 Before entering into the subject of freedom of religion as sealed by the CFR, some premises are needed. First, the EU is based on the values enshrined in Article 2 TEU, which includes the respect of human rights. In this regard, the main normative reference is Article 6 TEU, whose provisions evoke all the rights, freedom and principles sealed by the CFR, along with all the fundamental rights guaranteed by the ECHR and resulting from all the constitutional traditions which are common to all the Member States as general principles. Under a methodical perspective, it can be assumed that the importance of fundamental rights of the individuals in the EU must be coordinated both with the ECHR—as intended by the Strasburg Court—and with the constitutional traditions common to the Member States. The establishment of fundamental rights is, therefore, based on all the tools able to influence it. In practice, such confluence of tools shall be solved by Article 52, para 3, CFR according to which ‘[i]n so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention’. The provisional mentioned above seems to institutionalise—by theorising a correspondence of rights—some sort of ‘conditioning’ of the CRF to the ECHR. Such conditioning—known as ‘consistent interpretation’ or ‘equivalent clause’—does not necessarily imply that relationships between the Courts and between the two Charters shall be intended in accordance with a hierarchical structure. On the contrary, ‘[l]es relations entre la Cour de justice de l’Union européenne et la Cour européenne des droits de l’homme ne peuvent pas se penser en termes de concurrence ou de priorité; ce sont des relations de complémentarité et d’interaction qui supposent un climat de confiance réciproque’.53 Nevertheless, CFR may provide a more extensive protection.54 Based on such a framework, it is normally the judge in

 Ventura (2001), p. 149.  Durisotto (2016). 51  Article 6, para 1, TEU. 52  Communication from the Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, 19.10.2010 COM(2010) 573 final. 53  Tulkens (2010). 54  Article 52, para 3, CFR. 49 50

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charge to apply and interpret the CRF after ‘looking at’ the Strasbourg Court case law.55 Such coordination provisions were made necessary for two reasons. First, because some early incursions of the EU law in the area of fundamental rights had brought to interferences between the EU law and the ECHR in preserving human rights.56 Second, because the ECHR provisions were acknowledged as EU general principles.57 In that sense, the ECJ clarified that ‘the necessary consistency between the Charter and the ECHR, “without thereby adversely affecting the autonomy of Union law and …” that of the Court of Justice of the European Union’.58 As for  the interferences with the Member States constitutional traditions, the ECJ had to detect some basic rules or principles which, even if common only to a few national law systems, came across as better rule, or, in other words, the rule apt to guarantee a balanced management of the controversy.59 In fact, contrary to the national Constitutions, International Charters are normative documents drawn up to respond to ‘complex systems’ resulting from the participation of many legal orders, each having its own constitutional identity and needing to be protected and further transmitted.60 Such traditions, to be intended as commonly endorsed by the Member States, act as a limit of the EU jurisdiction in light of the Treaties and of the CFR, and they are aimed at (a) the guarantee of the identity of each Member State, (b) the preservation and the development of these common values while respecting the diversity of cultures and traditions of the peoples of Europe as well as the national identities of the Member States,61 and (c) the protection of the fundamental principles provided by the national constitutional Courts in virtue of the counter-limits doctrine.62 And credit must also  be paid to the CRF, as it would have rebuilt the constitutional structure on the basis of the concept of community of rights. Such a mix of sources makes it necessary to detect some criteria aimed at ensuring a peaceful coexistence between systems which differ from one another, and the ECJ would be in charge of such an alignment.63 Nevertheless, a warning must be raised, and it is that the CFR—among such a net of normative sources influencing each other—might not be able to establish universally accepted values. In accordance with the literature, the CRF only meets the identity of the European country which identifies itself in it.64  No lack of situations where the opposite phenomena took place was recorded. About this topic, see Rinoldi and Petralia (2017), p. 168; Durisotto (2016), pp. 73–74. 56  Ventura (2001), p. 87. 57  Article 6, para 3, TEU. 58  C-601/15 PPU, J.N. v Staatssecretaris van Veiligheid en Justitie, 15 February 2016, para 47. 59  Rinoldi and Petralia (2017), p. 167. 60  Ruggeri (2016). 61  See Article 4, para 2, TEU (‘The Union shall respect the equality of Member States before the Treaties as well as their national identities’) and the CFR Preamble. 62  Rinoldi and Petralia (2017), p. 168. 63  Durisotto (2016), pp. 63–64. 64  Castellano (2005), p. 32. 55

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5 ECJ Case Law About Freedom of Religion: Discriminations at Work Based on Religion As mentioned, the EU is based also on the respect of human rights. At the early stages of the European integration process, and in absence of a fundamental rights catalogue, the ECJ proceeded recognising human rights to protect them whenever they were affected by European competences. Afterwards, the CFR was proclaimed, which was declared to be as equally valid as the Treaties.65 However, the Charter does not provide any extension of the EU competences; in other words, it did not provide the EU with a general competence on fundamental rights, and consequently those rights gain relevance in relation with the EU attributed competences. This allowed the EU law to interfere somehow with the religious freedom as a transversal issue that can be relevant for several EU competences at the same time. Consequently, on many occasions the ECJ was called to pronounce on subjects relevant to the EU law and on issues involving (directly or not) Article 10, para 1, CFR according to which ‘Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance’. Before moving further, some methodological premises are needed. To start with, it is worth reminding that the CFR ‘contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention’.66 In this regard, it must be highlighted that Article 10 CFR moves away from Article 9 ECHR. Contrary to the first one, the latter provision specifies that ‘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’.67 Despite the fact that the possibility to establish those limitations is not clearly laid down in the CFR, ‘[t]he right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: “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”’.68

 Article 6, para 1, TEU.  Article 52, para 3, CFR. 67  Para 2. 68  Explanations relating to the Charter of Fundamental Rights (2007/C 303/02). 65 66

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Second, a further consideration must be done with regard to the inviolable bonding between freedom of religion, pluralism and democracy. In this regard, the ECJ affirmed that ‘[i]n accordance with the case-law of the European Court of Human Rights […], the right to freedom of thought, conscience and religion […] “represents one of the foundations of a ‘democratic society’” […] and constitutes, “in its religious dimension,… one of the most vital elements that go to make up the identity of believers and their conception of life” […], contributing to “the pluralism indissociable from a democratic society”’.69 Such a perspective shall be confirmed also by the Strasbourg Court, which—referring to forum externum—established that it represents ‘the expression of a cultural identity which contributes to the pluralism that is inherent in democracy’.70 Finally, Articles 21 and 22 CFR integrate Article 10 CFR. On the one hand, by sanctioning the prohibition of discrimination based on religion or on personal opinions, and, on the other hand by protecting religious diversity, Articles 21 and 22 CFR make way to the protection of the religion dimension. Moreover, those provisions also make way for the protection of the identity of persons and inspire multiculturalism as a fundamental element of the European construction process. As a result, the religious dimension of persons contributes to construct their own identity and cultural roots.71 In that sense, in cases Y and Z the Advocate General detected, by making reference to the ECJ jurisdiction,72 that ‘[r]eligion entails not only a belief, but also identity groups related by race or nationality. It mixes national and cultural traditions, may involve radical, conservative or reformist readings and embraces a wide range of beliefs, rituals and customs as important to some religions as they are insignificant to others’.73 Regardless of such theoretical premises, in practice, guaranteeing person’s cultural and religious identity is not always easy. In this regard, a relevant part of the ECJ case law in the field of religious discriminations, which fuelled a heated debate in the literature, focuses on the labour issues. The historical case seeing the Court entering in such an area is Prais,74 deciding which the Court declared that ‘[i]f a candidate informs the appointing authority that religious reasons make certain dates impossible for him the appointing authority should take this into account in fixing the date for written tests, and endeavour to avoid such dates’.75 The discriminations in the workplace have lately returned to the ECJ more frequently than before, with specific reference to the prohibition of employees to wear both religious clothes and religious symbols. In those occasions,  C-804/18 and C-341/19, Wabe, 15 July 2021, para 48.  S.A.S. v France, 43835/11, 1 July 2014, para 120. On the jurisdiction of the European Court of Human Rights, please refer to Part 1 of the present volume. See also Spatti (2021). For a comparative analysis of the most recent leanings of the European Courts, see Ventura (2015). 71  Pinto (2022). 72  Leyla Şahin v Turkey, 44774/98, 10 November 2005, and the case law quoted into. 73  C-71/11 e C-99/11, Opinion of 19 April 2012, para 42. 74  C-130/75, Prais v Council, 27 October 1976. 75  Ibid., para 16. 69 70

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the Luxembourg case law confirmed the direct effect of Article 21 CFR.76 The issue at stake regarded the legitimacy of the dismissal or the missed hiring of a few women/workers because they had worn religious symbols. In Bougnaoui,77 the employee had been fired for her lack of compliance to the employer indication not to wear her traditional hijab. The national judge, on that occasion, queried the ECJ about whether firing the employee was legitimate or contrary to the non-discrimination principle based on religion.78 On two other occasions—G4S Secure Solutions79 and Wabe—the employees had been fired due to their breaking of a general rule imposed in the workplace, as a way to keep a neutrality policy via forbidding any visible sign of either political, philosophical or religious beliefs. Finally, in S.C.R.L. the ECJ faced the issue of an internship equally conditioned by neutrality and by the general rule—indeed, addressed to women—to give up wearing the traditional Islamic hijab.80 In all the cases mentioned, the ECJ had to make two premises, as a start. First, ‘the right to freedom of conscience and religion, enshrined in Article 10(1) of the Charter, and which forms an integral part of the relevant context in interpreting Directive 2000/78, corresponds to the right guaranteed in Article 9 of the ECHR and, under Article 52(3) of the Charter, has the same meaning and scope […]’.81 Furthermore, on the concept of religion, ‘it must be interpreted as covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public […], which corresponds to the interpretation of that concept used in Article 10(1) of the Charter’.82 A general criterium was followed: had dismissal be due to a lack of respect for a general internal rule and had the prohibition be justified by a legitimate objective—the neutrality policy—firing is not illegitimate and would not determine any form of direct discrimination based on religion.83 In Bougnaoui case, firing was based on a prohibition directed to the employee individually. For such a reason, the Court concluded for its illegitimacy, although adding that discrimination— even  being based on an individual measure—could have been considered legitimate in case of prominent need of the employer.84 In S.C.R.L case., regardless of the similarities with the previous case law, its peculiarity is to be detected in the doubt of interpretation raised by the national judge. The judge wondered if the national provisions aimed at reinforcing the degree of

 Gennusa (2018), p. 82.  C-188/15, Bougnaoui and ADDH, 14 March 2017. 78  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 79  C-157/15, G4S Secure Solutions, 14 March 2017. 80  C-344/20, S.C.R.L., 13 October 2022. 81  Wabe, para 48; G4S Secure Solutions, para 27. 82  Ibid.; G4S Secure Solutions, para 45. 83  Wabe, para 63. 84  Bougnaoui and ADDH, para 34. 76 77

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protection against discriminations – underlining the specific traits of each one of them, as well as a better visibility of those – could be considered more favorable provisions than those included in 2000/78 directive, that the State can envisage in the exercise of the discretion reserved to it.85 Despite having reaffirmed the Member States margin of discretion, the ECJ highlighted that this is subject to its control86 and that, in such a case, that discretion ‘undermin(ed) the effectiveness of the general framework for equal treatment in employment and occupation introduced by that directive’.87 From a retrospective standpoint, such a decision highlights the tendency of the ECJ to restrain the latitude of Member States.88 The most recent case law has been criticised by many relevant points. First, neutrality as provided by a workplace general rule de facto is not directed to all the confessions but only to the ones establishing the use of visible symbols.89 Thus, the ECJ have underestimated the possibility that neutral rules might easily dissimulate directly discriminatory attempts against minorities.90 Second, by prioritising laicity proper of a secularist society, where liberalism prevails on the right of individuals to profess their own religion, the ECJ would be acted on a prejudice,91 because the general prohibition becomes the means by which to sacrifice singular identities. On a technical level, such jurisprudence was strongly criticised by Weiler. The Court, in considering the ‘right to business’ ex Article 16 CFR—generally said to be fully legitimate—might have omitted a step. After verifying the legitimate nature of such a limitation, and once confirmed that such a measure was necessary, the ECJ did not proceed with the last—and most determining—test: it omitted an operation of balancing between all the values reflected on the goals legitimately pursued by a necessary measure and the values included in the freedom, hurt and undermined by that measure.92 The Court had thus overcharged the neutrality policy as to make it predominate against the freedom of manifesting one’s own religion. As a result, this operation would imply a risk: neutrality would impose few models (the dominant ones) and would confine part of the religious freedom to the private sphere. This train of thoughts, though, preserves the prejudice that the prohibition of discrimination intends to fight, instead. All of this does not reflect what the EU embodies.93

 S.C.R.L., para 22.  Ibid., paras 46–48. 87  Ibid., para 54. 88  Differently, see Van Duyn (C-41/74, 14 December 1974). 89  Nuzzo (2017). 90  Pinto (2022). 91  Ibid. 92  Weiler (2018), pp. 13–14. 93  Ibid., 31. See also Farr (2015). 85 86

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5.1 The Collective Dimension of Religious Freedom Religious freedom shall not be interpreted at an individual level only. It shall also involve a collective dimension, inherent to organised structures. In this regard, we shall compare two opposite orientations. On the one hand, some may claim that religious freedom should only involve individuals, even without disregarding the collective dimension.94 On the other hand, the collective dimension should be much more widely recognised.95 The EU approach to the religious phenomenon seems to be neutral toward every religious belief. Article 17 TFEU laid down that ‘[t]he Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’ (para 1); ‘[t]he Union equally respects the status under national law of philosophical and non-confessional organisations’ (para 2); and ‘[r]ecognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations’ (para 3). Such norms recall the contents provided by the Declaration n. 11 about the status of the churches  and  the non-confessional organisations, enclosed to the Treaty of Amsterdam, adding a new paragraph (the third one). It can be interpreted in different ways. First of all, by taking inspiration from a secular and non-denominational standpoint, Article 17 TFEU brings to the same level religious beliefs and other beliefs.96 Here it might be possible to read a guideline for European legislation.97 Additionally, it seems to offer a constitutional principle which will lay the foundations for institutionalising the dialogue between the EU and the religious confessions, mitigating a shortfall in democracy which still affects the EU. All of this considering that worships represent most of European citizens98 and that they play an indisputable role in the production of existential values.99 It might be reported as a risk for dialogue, which might be an opportunity only for well-structured confessions at a European level.100 If it seems indisputable that, from a secular perspective, the EU opted for dialogue instead of indifference, it must be underlined that Article 17 TFEU represents a clear expression of the willingness of the Member States to ensure safeguard and intangibility of the national peculiarities.101 Therefore it is impeded by the EU any attempt to harmonise the relationship between the State and the churches. In light of the above, the literature  Alicino (2011), pp. 71–72. Ventura (2001), p. 234.  Fabbri (2012), p. 137. 96  Fabbri (2012), p. 100. 97  Ventura (2001), pp. 243–244. 98  Alicino (2011), pp. 137–139. 99  Tozzi (2005), pp. 11–12. 100  Fabbri (2012), p. 146. 101  Gennusa (2018). 94 95

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has reported some inconsistencies between the two first paragraphs of Article 17 TFEU and the third one. In fact, in accordance with the reserve of competence provided by the first two paragraphs, it seems difficult to detect what might be the subject of the dialogue mentioned in the third one. The contradiction may be solved by considering that the EU law can affect religious communities in case their activities encounter the EU competences.102 In fact, the reserve of competence did not impede the EU to interfere with the religious phenomenon, without undermining the status of the religious and non-denominational organisations at national level. The recognition of the autonomy of confessional groups within the Member States does not imply that a public authority can’t penetrate the field of religious confessions’ activities,103 especially where the protection of the fundamental rights of the person is at stake.104 And, in that sense, the ECJ was requested to decide cases  that impacted on the rights of structured confessional communities.105 For instance, the judges of Luxemburg had to clarify when the activities developed by a religious community were qualified as economical activities in accordance with the EU law.106 Additionally, they had to check that some State aids offered to such bodies were compatible with a proper internal market competition.107 The field of action might become ‘slippery’ where it is required to adjust the right to autonomy of the confessional/philosophical institution to the right of the person. A trendy institution might demand specific loyalty obligations from its affiliates to preserve its own ethos. The autonomy of the organisation in shaping its own identity is not exempt from limitations. However, it is a matter of finding a way to guarantee such autonomy without coming into conflict with fundamental rights.108 Since the autonomy we are discussing cannot make a ‘free zone’ for confessional and philosophical organisations, the literature has proposed a useful criteria aimed at separating the space where interferences are not allowed and the space where public authority may interfere with the organisation’s life. A boundary line might be traced between the ‘tendency functions’, strictly related to the organisation ethos and allowing a sort of ‘immunity’, and the ‘neutral functions’, where there is no such a bond.109 Nevertheless, such a distinction is not easy to apply. In the case law, such issue has been considered in cases Egenberger110 and IR111 in connection with directive 2000/78 on discrimination in the workplace.

 Durisotto (2016), p. 316; Alicino (2011), p. 135.  Parisi (2005). 104  Ventura (2001), p. 233. 105  Fabbri (2012), p. 113. 106  C-196/87, Steymann, 5 October 1988. See Fabbri (2012), p. 114. 107  Durisotto (2016), pp. 285–288. 108  Gennusa (2018), pp. 54–55. 109  Such distinction may be compared to the one separating the acts jure imperii and the acts jure gestionis of the Member States. Gennusa (2018), p. 57. 110  C-414/16, Egenberger, 17 April 2018. 111  C-68/17, IR, 11 September 2018. 102 103

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In Egenberger, the case regarded the limits within which an employer is allowed to prescribe—as a determinant criterion for exercising a certain activity—the affiliation to a religious belief and which are supposed to be the features that the activity shall possess so that the belonging to a given religion becomes an essential, legitimate and justified requirement.  In recalling the need of guaranteeing a balance between  the autonomy of religious institution and the non-discrimination of employees based on religion, the ECJ established that ‘the Member States and their authorities, including judicial authorities, must, except in very exceptional cases, refrain from assessing whether the actual ethos of the church or organisation concerned is legitimate’.112 Nevertheless, it is the national judge who is in charge of checking whether or not religion shall be a fundamental, legitimate and justified requirement to implement a working activity. Taking such a power of control away from the judge to put it back in the hands of the religious organisation would imply to empty its function of judicial control. Article 17 TFEU, despite confirming the EU neutrality towards religious organisations, does not preclude the exercise of such control.113 If a religious organisation is independent in establishing its own ethos, qualifying a certain function as ‘of tendency’ is not in its powers, and on such a qualification the jurisdictional control must be full and complete. A similar interpretation can be found in IR. The case regarded the possibility for the employer to treat differently the employees practising a certain confession – the same the employer practiced – compared with the employees adhering to a different confession or with those defined as nondenominational. Following  the previous case law, the ECJ sorted out the issue by focusing on the existence of an essential religious requirement, both legitimate and justified, to perform certain work activities. In this case, the solution adopted by the Court was more peremptory: adhering to a certain belief—as established by the employee—did not appear necessary to the establishment of the confessional ethic considering the professional activity of the medical doctor. In their words, ‘it [did] not appear to be a genuine requirement of that occupational activity within the meaning of the first subparagraph of Article 4(2) of Directive 2000/78, which is, nevertheless, a matter for the referring court to verify’.114 Generally, it seems that the ECJ case law pays more attention to the individual rights, to the detriment of confessional organisations. Nevertheless, such a tendency seems to be the consequence of the case law analysed in the previous paragraph. According to the ECJ, the main concern seems to protect the reasons for integration—mainly economical—compared to phenomena which could determine some disruptive effects.

 Egenberger, para 61.  In a critical sense, see Gennusa (2018), p. 79. 114  IR, para 58. 112 113

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6 The Religious Phenomenon in the EU: Between the Competitive Model and the Protectionist Model According to Professor Ventura, the EU swings between two interaction models with the religious phenomenon: the competitive model and the protectionist model. In the competitive model, the ECJ leads cases linked to religion back to the application of the EU law, wherever legal relevance was denied to the religious item itself. Issues classified as religious are treated as equally as any other question which is relevant to the application of the EU law, regardless of their religious connotation, which shall not determine a different juridical treatment115 or deprive the EU of their competencies in favour of a national authority.116 In such a model, the EU law influences the religious phenomenon if it ‘touches’ an EU competence and if its religious peculiarity does not assume relevance. For instance, the employee of a religious organisation in the workplace is relevant with regard to the principles of the internal market, while the religious issue is absorbed by the economic one. Such a treatment might be perceived as a guarantee of equity for everyone to have access to the ‘religious market’ on equal terms.117 In other cases, both the EU legislation and the Court case law had acknowledged a particular link between the religious aspect at stake and national identities and traditions, leaving the State authorities the competence to decide each case, so admitting derogations to the EU law. In these cases, the EU has applied a protectionist model, through which no equality, but difference, is promoted. 118 For instance, if we consider the directive on non-discrimination at work, many secondary provisions lay down the possibility of derogating to the general non-discrimination at work due to religion in favour of confessions and of their organisations. Applying a protectionist model implies some obstacles, and in such a scheme a valid basis is needed to justify why the derogation from the general normative framework. What is at stake is the balancing between, on the one side, the State margin of appreciation and its national identity and, on the other side, the EU interest in creating a harmonised system. In this case, State autonomy cannot be in contrast with the EU objective or values, particularly with the democratic and pluralist principle.119 Finally, although the EU does not have specific competences aimed at developing a ‘European religious policy’—able to take over the policy of each Member State—in its own competences it might influence the pertinent national legislation.

 Ventura (2001), p. 149. In support of such a reconstruction, he recalls van Duyn, van Roosmalen (C-300/84, 23 October 1986), and Steymann (196/87, 5 October 1988). 116  In this regard, see C-84/94, UK v Council, 12 November 1996; C-169/91, Council of the City of Stoke-on-Trent e Norwich City Council v B & Q plc, 16 December 1992; C-159/90, Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan et al. 4 October 1991. See Fabbri (2012), p. 111. 117  Ventura (2001), pp. 150–155. 118  Ibid., 136–137 and 158. 119  Ibid., 159–176. 115

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This overlap of competences is defined by the fact that ‘the religious subject’ escapes every attempt to be classified as a specific field of competence, due to its transversal nature and, additionally, being able to acquire relevance in different material policies.120 In such a context, the most recent ECJ case law seems to opt more for the competitive model compared with the protectionist model (and the latitude it allows to States).

7 Freedom of Religion as a Criterion to Evaluate Levels of Democracy The EU law constitutionalisation process is part of a context where finding a tendency to cultural and religious unity/homogeneity is not possible. In this regard, the concept of ‘deconstruction of the traditional religion’  could be described, which determines the raising of new interests and needs for religious features which should be protected by the supranational law system. In the meantime, a so-called European public law of religion has started, whose terms are defined both by the EU law and the ECHR system.121 For its part, the ECJ has tried to protect the idea of an institutional public space, free from religious references, aimed at guaranteeing the  freedom of religion itself.122 The establishment of fundamental rights within the EU does not seem to have affected the premises of the European secularisation.123 The protection of religious freedom is indeed still to be conducted mainly on an economic field, inherent to the EU law,124 considering that the market applies a major force of attraction on politics and turns political issues into economic issues. From ECJ case law it emerges that restrictions to freedom of religion and belief are not totally compatible with the constitutional democracy inspired by pluralism, due to the fact that it reflects concepts accepted by the majority, rather than establishing additional and finer forms of protections applicable to fundamental rights.125 Freedom of religion is often referred to as the basis to the development of other forms of freedom, and as strictly connected to the dignity of individuals. Besides, it was claimed that the concept of dignity does not imply a complete list of rights, but what it lays down is solely a principle of interpretation of such rights; there seems to be only one existent right: having one’s dignity respected by the others.126

 Ibid., 176–186.  Alicino (2011), p. 113. 122  Fabbri (2012), p. 197. The same tendency was reported in reference to the Strasburg Court (see Ventura (2001), pp. 64–65). 123  Ibid., 144–145. 124  Ventura (2001), p. 50. 125  Alicino (2011), p. 251. 126  Bettiol (2005), pp. 173–174. 120 121

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‘Without it, the other rights and freedoms—for example, freedom of speech and association, or the equality of all citizens under the law—cannot do their work of consolidating democracy and rendering it stable’.127 In sum, freedom of religion would represent a main factor to the survival of democracy. As a result, such a perspective seems to be rich in content and non-shared by everybody. Without entering the details of the ongoing debate, we aim to emphasise—as highlighted by Witte—that part of literature claims that ‘religion should have no place in a modern regime of human rights. Religious ideas may well have been the sources of human rights in earlier eras, they allow. Some religious groups might even have helped to inspire the modern human rights revolution that began with the promulgation of the Universal Declaration of Human Rights (1948). But religion, these religious skeptics argue, has now outlived its utility’.128 Opposite to such a position, it has been stated that there could be an evident ‘connection between religious freedom and the health of democracy’; and that ‘the presence of religious freedom can contribute to economic, social and political goods; its absence or decline can undermine them’; and, however, that ‘religious freedom can make an important contribution to economic development, reduction of poverty, and social development’.129 Denying this connection would imply opting for some sort of secularism, according to which religion would represent a non-relevant item in the context of public dimension. Additionally, freedom of religion should not be  a part of  the public space, since it would otherwise represent destabilising items within the society.130 Following such a perspective, it could be stated that ‘the human rights regime is not static. It is fluid, elastic, and open to challenge and change. The human rights regime is not a fundamental belief system. It is a relative system of ideas and ideals that presupposes the existence of fundamental beliefs and values that will constantly shape and reshape it. The human rights regime is not the child of Enlightenment liberalism, nor a ward under its exclusive guardianship. […] liberalism does not and should not have a monopoly on the nurture of human rights; indeed, a human rights regime cannot long survive under its exclusive patronage’.131 In a such a  historical context, a non-shared tendency to impose predominant models seems to grow stronger.132 Such a subject summarises the debate about the extent to which the public power could interfere with the free worship of religious freedom, to guarantee that such limits shall not be founded on a pure willingness of  Farr (2015), p. 37.  Witte Jr. (2015), p. 47. 129  Farr (2015), p. 38. The Author argues ‘sociologists Brian Grim and Roger Finke have analyzed the cross-national relationship between religious liberty and numerous indicators of economic development and political freedom. They found particularly robust relationships, not only between religious freedom and political freedom and the longevity of democracy, but also lower poverty, and greater economic freedom’. 130  Fabbri (2012), p. 39. 131  Witte Jr. (2015), pp. 50–51. 132  Castellano (2005), p. 32. 127 128

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the majority. One of the milestones which is basic to the foundation of constitutionalism, which has been establishing itself since the Second World War, is ‘the human rights belief’ which carries a certain number of universalistic projections.133 The problem with multicultural and multireligious societies concerns integration in all its shades of meaning. The more one moves away from a model of interactive and intercultural dialogue in favour of some forms of integrationism—until the ultimate one, which is assimilation—the more it becomes risky to determine a forced homogeneity. The big challenge that the EU is called to go through is keeping alive the intercultural dialogue without giving in to the temptation of considering new, emerging, entities within a multicultural society as something which could not be reducible to the values of the Western constitutionalism.134 Protection as a subject moved from a national to a supranational level. Such a result is due to both the process of internationalisation of human rights and to the so-called ius mercatorum, determining a gradual setback in positive rights of the Member States, resulting in a reinforcement of supranational laws. The EU has to confront itself with the public acknowledgment demanded by religious confessions, which are trying to escape conventional or assimilationist forces applied by either religion or majority cultures. Therefore, it has to quit universalism, accept and protect diversity and search for a common ground.135 Universalism of rights and secularism of the State are a clear representation of the Western culture. The risk deriving from applying these two might be shaping new forms of cultural, economic, and social colonialism.136 The EU was given a warning, i.e. if it is keen on playing the role of a transnational governance—free from a self-sufficient circularity and open to new values— it cannot commit a mistake by changing such a transcendent goal, as it is optimising both human rights and fundamental freedom with the absoluteness of the individual’s self-referential demands, as developed into the Western culture.137 To enhance the acknowledgment of communities and of people representing a diversity of values—and, thus, to put in practice the concept of pluralism—more relevance should be given to the religious dimension as a way to acknowledge all the identities co-­ existing in the society, as long as the undeniable values of the host community are guaranteed.138 According to Annichino, the data provided by sociologists of religion reported that freedom of religion may find more and more difficulties in its protection.139 This shall depend on violations and limitations which do not show up in traditional forms only, but also in new ways, even more insidious. A proof of this might be

 Alicino (2011), p. XVI.  Ibid., 7–9. 135  Botta (2005). 136  Alicino (2011), pp. 67–68. 137  Berlingò (2005). 138  Botta (2005), pp. 66–67. 139  Annichino (2015), p. 55. 133 134

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represented by the subject concerning the religious symbols and the religious clothes. Such an interpretation of this historical context has been taking place for over 10 years now and it seems to find confirmation in the mentioned EU Guidelines on the promotion and protection of freedom of religion or belief. That document summarises a series of basic overriding principles necessary to the EU action on religious subjects, even in terms of international relations. It deals with universal character of freedom of religion or belief, along with the right to practise the freedom of religion or belief, both individually and in the community. Also, it deals with the primary role of the Member States in ensuring freedom of religion or belief; and of the connection with the defence of other human rights and with other EU Guidelines on human rights. Nevertheless, following such  a statement of principles, the ECJ seems to act based on a few ‘prejudices’ and, in doing so, it seems to escape its duty of establishing the values of a pluralistic society, where integration must be founded on acknowledgment and enhancement of identity differences, just as already established in the constitutional EU platform.140 In light of the cases analysed, the reasons which currently impede a full affirmation of a series of fundamental rights may trace back to the fact that the ECJ tends to interpret such rights as dependent on the needs of trading integration; this way, they make prevail a so-called standardised perspective of integration above cultural varieties, in which the individual’s identity is visible. Such a way to interpret integration invalidates the pluralistic perspective and risks to delegitimise the idea according to which building a society able to embody all the values of a multi-ethnic community, based on intercultural dialogue and the respect of the individual’s fundamental rights is possible, even if it presents features that are typical of a visible diversity. This way, pluralism becomes the necessary antidote to the Western models demanding to acquire a universalistic influence by establishing themselves as predominant and reducing the space of cultural independence.

References Alicino F (2011) Costituzionalismo e diritto europeo delle religioni. Cedam, Padova Ancona E (2005) Sul fondamento dei diritti dell’uomo. In: Castellano D, Costantini F (eds) Costituzione europea, diritti umani, libertà religiosa. Edizioni Scientifiche Italiane, Napoli, pp 159–163 Annichino P (2015) Persecuzioni religiose e diritto d’asilo nella giurisprudenza delle Corti sovranazionali europee. In: Lugato M (ed) La libertà religiosa secondo il diritto internazionale e il conflitto globale dei valori. Giappichelli, Torino, pp 55–66 Berlingò S (2005) La condizione delle Chiese in Europa. In: Parisi M (ed) Le organizzazioni religiose nel processo costituente europeo. Edizioni Scientifiche Italiane, Napoli, pp 46–47

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Bettiol M (2005) I diritti umani via alla liberazione? In: Castellano D, Costantini F (eds) Costituzione europea, diritti umani, libertà religiosa. Edizioni Scientifiche Italiane, Napoli, pp 165–173 Botta R (2005) Cittadini e fedeli nei Paesi dell’Unione Europea: l’identità spirituale e i diritti di libertà religiosa nella costruzione europea. In: Parisi M (ed) Le organizzazioni religiose nel processo costituente europeo. Edizioni Scientifiche Italiane, Napoli, pp 63–77 Castellano D (2005) Replica (provvisoria) dell’autore. In: Castellano D, Costantini F (eds) Costituzione europea, diritti umani, libertà religiosa. Edizioni Scientifiche Italiane, Napoli, pp 29–37 Cornelli R (2018) Violenza organizzata e appartenenza religiosa. Il caso dell’ISIS. In: Ninatti S (ed) Pluralismo religioso e integrazione europea. Giappichelli, Torino, pp 205–235 Crisafulli V (1970) Lezioni di diritto costituzionale. Cedam, Padova Durisotto D (2016) Istituzioni europee e libertà religiosa. Edizioni Scientifiche Italiane, Napoli Fabbri A (2012) Unione europea e fenomeno religioso. Giappichelli, Torino Farr TF (2015) A global crisis of religious liberty: evidence, origins, and significance. In: Lugato M (ed) La libertà religiosa secondo il diritto internazionale e il conflitto globale dei valori. Giappichelli, Torino, pp 23–39 Geertz C (1993) Religion as a cultural system. In: Geertz C (ed) The interpretation of cultures: selected essays. Fontana Press, Roermond, pp 87–125 Gennusa ME (2018) Libertà religiosa collettiva e principio di non discriminaizone nel sistema “costituzionale” dell’Unione europea. In: Ninatti S (ed) Pluralismo religioso e integrazione europea. Giappichelli, Torino, pp 53–85 Jayme E (2003) Sull’identità culturale del sistema giuridico italiano in un’Europa unita. Rivista trimestrale di diritto processuale civile 2:635–642 Lariccia S (2006) Le radici laiche dell’Europa. Diritto di famiglia e delle persone 1:251–269 Mignolli A (2019) Eredità e libertà. Il ruolo della libertà religiosa nel diritto dell’Unione europea. In: Papa MI, Pascale G, Gervasi M (eds) La tutela internazionale della libertà religiosa: problemi e prospettive. Jovene, Napoli, pp 99–126 Nuzzo V (2017) La Corte di giustizia e il velo islamico. Rivista italiana di diritto del lavoro 2:436–445 Parisi M (2005) Il sistema europeo di relazioni tra gli Stati e le organizzazioni religiose: conservazione o innovazione nella prospettiva della Costituzione dell’Unione europea? In: Parisi M (ed) Le organizzazioni religiose nel processo costituente europeo. Edizioni Scientifiche Italiane, Napoli, pp 79–121 Parisi N (2008) Considerazioni sulla natura giuridica dell’Unione europea alla luce dei rapporti fra gli Stati membri e fra questi e l’Organizzazione. In: Draetta U, Santini A (eds) L’Unione europea in cerca di identità. Giuffré, Milano, pp 1–55 Pinto V (2022) Focus Corte di giustizia e velo islamico. il punto su discriminazione e politiche aziendali di neutralità religiosa. Rivista italiana di diritto del lavoro 4:801–814 Rinoldi D (2012) Lo spazio di libertà, sicurezza e giustizia nel diritto dell’integrazione europea. I. Principi generali e aspetti penalistici. Editoriale Scientifica, Napoli Rinoldi D, Petralia V (2017) Articolo 9 Carta dei diritti fondamentali dell’Unione europea. Commento. In: Mastroianni R, Pollicino O, Allegrezza S, Pappalardo F, Razzolini O (eds) Carta dei diritti fondamentali dell’Unione europea. Milano, Giuffré, pp 158–202 Romano S (1947) Frammenti di un dizionario giuridico. Giuffré, Milano Ruggeri A (2016) Famiglie, genitori e figli, attraverso il “dialogo” tra Corti europee e Corte costituzionale: quali insegnamenti per la teoria della Costituzione e delle relazioni interordinamentali? In: Ruggeri A, Rinoldi D, Petralia V (eds) Vecchie e nuove ‘famiglie’ nel dialogo tra Corte europee e giudici nazionali. Editoriale scientifica, Napoli, pp 2–62 Santini A (2021) La religione nell’ordinamento dell’Unione europea: il modello pluralistico alla prova della giurisprudenza della Corte di giustizia. In: Santini A, Spatti M (eds) Libertà di religione in un contesto pluriculturale. Libreria editrice Vaticana, Città del Vaticano, pp 127–152

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Spatti M (2021) Il diritto alla libertà di religione negli strumenti universali di tutela dei diritti dell’uomo e nella Convenzione europea. In: Santini A, Spatti M (eds) Libertà di religione in un contesto pluriculturale. Libreria editrice Vaticana, Città del Vaticano, pp 9–33 Tozzi V (2005) Persone, Chiese e Stati nell’evoluzione del fenomeno europeo. In: Parisi M (ed) Le organizzazioni religiose nel processo costituente europeo. Edizioni Scientifiche Italiane, Napoli, pp 9–17 Tulkens F (2010) Les aspects institutionnels de l’adhésion de l’Union européenne à la Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales, Audition au Parlement européen-Commission des affaires constitutionnelles, 18 mars 2010. https://www. europarl.europa.eu/cmsdata/193695/20100324ATT71243FR-­original.pdf Ventura M (2001) La laicità dell’Unione europea. Diritti, mercato religione. Giappichelli, Torino Ventura M (2015) Balancing convergence and divergence: the challenge for European law and religion. In: Lugato M (ed) La libertà religiosa secondo il diritto internazionale e il conflitto globale dei valori. Giappichelli, Torino, pp 89–102 Weiler JH (2018) Je suis Achbita! In: Ninatti S (ed) Pluralismo religioso e integrazione europea. Giappichelli, Torino, pp 3–31 Witte J Jr (2015) “To serve right and to flight wrong” why religion, human rights, and human dignity need each other. In: Lugato M (ed) La libertà religiosa secondo il diritto internazionale e il conflitto globale dei valori. Giappichelli, Torino, pp 41–53 Valentina Petralia  is Associate Professor of European Union Law at the University of Catania where he teaches International Law, European Union Law and European Migration Law. He holds a degree in law and a PhD in General and International Trial Law at the University of Catania. She taught International Law at Catholic University. She is the author of many monographs, manuals and articles and has edited collective books. She is a member of the teaching staff of the research doctorate ‘Public, comparative and international law’ in the Department of Political Sciences of the La Sapienza University. She is a member of editorial committee of scientific reviews and scientific associations. She participated and coordinated research groups. She is a lawyer and President of the Adrano-Biancavilla Law Association (2020–2022). She organises continuing professional development for lawyers in collaboration with professional orders.

Free Movement of Persons and Religious Freedom Within the EU Alessandra Lang

Abstract  This chapter aims to consider the possible interferences between one of the rights enjoyed by Union citizens—free movement of persons—and religious affiliation. Living according to one’s faith and following the rules of the religion to which one belongs are clearly an expression of religious freedom, protected at both international and EU level. How important is religion when it comes to exercising the right of free movement of persons? Specifically, this chapter seeks to provide answers to the following three questions: (1) how would an asylum application made by a Union citizen who believes that they are not allowed to practise their religion in their country of origin be considered? (2) can a religious marriage form the basis for family reunification? (3) on what basis can a Union citizen who wishes to live in a religious community or who is a minister of religion reside in a different Member State from their country of origin? The answers to these questions will allow to assess whether EU laws assist or obstruct the life plans of Union citizens who wish to exercise free movement and live by their faith and conform to the rules of their religion. Keywords  Free movement of persons in the EU · Citizenship of the Union · Family reunification of EU nationals · Beneficiaries of free movement of persons

A. Lang (*) University of Milan, Milan, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_9

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1 Introduction Over the past 20 years, the Court of Justice has repeatedly stated that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality’.1 Union citizenship overcomes (some of) the differences in treatment that exist in the various Member States between nationals and foreigners, and requires the host State to treat Union citizens on an equal footing with its own nationals. By foreigners is meant third-country nationals, persons who are not nationals of any Member State. Besides nationality, Union citizens differ in many other ways, including religious affiliation. This is very diverse as is the degree to which individuals adhere to the rules of the religion to which they belong (Table 1).2 This chapter aims to consider the possible interferences between one of the rights enjoyed by Union citizens— free movement of persons—and religious affiliation. Living according to one’s faith and following the rules of the religion to which one belongs are clearly an expression of religious freedom, which is a fundamental right protected at the EU level. This right, now codified in Article 10 of the Charter of Fundamental Rights of the European Union, was already part of the EU’s legal system insofar as it derived from the common constitutional traditions of the Member States and is enshrined in Article  9  ECHR.3 The EU is not competent to regulate the exercise of this right because there is no specific legal basis authorising it to do so.4 However, it is clear that EU secondary legislation must be interpreted in the light of the Charter. How important is religion when it comes to exercising the right of free movement of persons? Specifically, this chapter seeks to provide answers to the following three questions: (1) how would an asylum application made by a Union citizen who believes that they are not allowed to practise their religion in their country of origin be considered? (2) can a religious marriage form the basis for family reunification? (3) on what basis can a Union citizen who wishes to live in a religious community or who is a minister of religion reside in a different Member State from their country of origin? Before tackling each question individually, it is worth briefly outlining the content of free movement of persons.

 Case C-184/99 [2001] Grzelczyk, ECLI:EU:C:2001:458, para 31.  See Table 1, attached to this chapter. 3  Cases C-804/18 and C-341/19 [2021] IX and Müller, ECLI:EU:C:2021:594, para 81. On Art. 9 ECHR, see the chapter “Freedom of Thought, Conscience and Religion Under the European Convention on Human Rights. New Approaches” by Núria Reguart-Segarra, María Victoria Camarero-Suárez in this book. 4  On the contrary, the EU can ‘take appropriate action to combat discrimination based on […] religion’ under Art. 19 TFEU. On the EU legislation and case law in this area, see the chapter “Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice” in this book. See also Haverkort-Speekenbrink (2012). 1 2

Austria Belgium Bulgaria Cyprus Czech Republic Germany (East) Germany (West) Denmark Estonia Spain Finland France Greece Croatia Hungary Ireland Italy Lithuania Luxembourg Latvia Malta Netherlands Poland Portugal Romania

Catholic 58.9 53.9 1.4 1.1 23.3 5.2 35.9 1.2 2 59.1 0.7 45 0.6 80.8 63.5 78.4 72 86.9 60 24.8 89.2 18.4 88.6 82.6 6.2

Orthodox Christian 2.2 0.8 80.6 95.8 0.3 0.8 2.7 1.3 20 4 1.6 2 94.9 4.8 0.5 1.5 4.3 3 1.2 21.3 1 1.4 0.8 0.7 88.1

Protestant 6.7 3 0.2 0 1.1 18.8 27.4 68.6 5.6 0.3 64.1 2.5 0.1 0.1 5.6 2.6 0.8 0.3 2.2 19.2 1.2 15.6 0.6 0.8 1.8

Table 1  European Union citizens’ religious affiliation Other Christian 2.6 1.9 0.6 0 3.2 7.5 4.9 4.2 21.7 2.1 9.3 1.6 0.9 0 8.3 2.6 1.7 0.8 3.8 8.6 2.2 5.6 2.2 2.6 1.4

Jewish 0.3 0.4 0 0 0.2 0 0.1 0.2 0.1 0 0 0.6 0 0.2 0.6 0.1 0.6 0.2 0.4 0 0.2 0.5 0.1 0 0.1

Muslim Shia 0.4 2 1.1 0.2 0 0 0.7 0 0.1 0.3 0 0.7 0.1 0 0 0.2 0.3 0 0.4 0 0 0 0 0 0.1

Muslim Sunni 0.8 1.6 4.8 0 0 0.8 2 1 0.1 0.1 0 1.9 0 0.6 0 0.5 0.4 0 0 0 0.2 0.1 0.1 0 0

Other Muslim 0.9 1 4.3 0 0.1 0.4 0.5 0.5 0 0 0 1.9 0.1 0.1 0 0.2 0.6 0 1.2 0 0.6 0.2 0 0 0.1

Sikh 0.2 0 0 0 0 0 0 0 0 0.1 0 0 0 0 0 0 0.1 0 0 0 0 0 0.1 0 0

Hindu 0 0 0 0 0.1 0 0 0.2 0.1 0 0 0.1 0 0 0.1 0.3 0.3 0 0 0.1 0 0.3 0.2 0 0.1 (continued)

Buddhist 0.5 0.4 0 0 0.3 0 0 0.4 0.1 0.4 0 0.6 0 0 0.1 0.1 1.3 0 0.6 0 0 0.6 0 0.2 0

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Catholic 1.1 71.3 74

Orthodox Christian 1.6 4.6 0.9

Protestant 38.7 0.3 8.7

Other Christian 5.5 0.7 2.2

Jewish 0.2 0 0.3

Muslim Shia 0.1 1 0

Muslim Sunni 0.2 0.4 0.1

Other Muslim 0 1.4 0

Sikh 0.1 0 0

Buddhist 0.2 0 0

Hindu 0 0 0.1

Source: Eurobarometer 91.4 (2019), data kindly extracted for this paper by Giancarlo Manzi, associate Professor of Statistics, Department of Economics, Management and Quantitative Methods, University of Milan

Sweden Slovenia Slovakia

Table 1 (continued)

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2 Free Movement of Persons: A Brief Overview Free movement of persons is one of the rights that the Treaty on European Union confers on Union citizens. The principle is now enshrined in Article 21 TFEU and Article  45  CFR, and is regulated by Directive 2004/38,5 but was already present (albeit to a more limited extent and with a different meaning) in the 1957 Treaty of Rome.6 Free movement means that Union citizens have the right to leave their home State and enter and reside in another Member State. Correlatively, Member States are obliged to grant Union citizens rights of exit, entry and residence under the conditions laid down in the EU law. This right is neither unconditional nor unlimited. On the one hand, the EU law itself provides that Union citizens must meet the conditions required to exercise the rights attached to free movement. These conditions are that individuals claiming free movement rights must be Union citizens, proven by an identity document, and must, for periods of residence of longer than 3 months, prove that they fall into one of the following categories: workers or self-employed persons, students with sufficient resources and sickness insurance, persons who are economically self-sufficient (because they have sufficient resources and sickness insurance) or family members of a Union citizen who falls into one of the three categories mentioned above. On the other hand, free movement rights may be restricted by States on grounds of public policy, public security and public health, subject to the safeguards provided for in the EU law. Directive 2004/38 sets out the administrative formalities that the host State may require Union citizens to fulfil. Specifically, a Union citizen who is intending to reside for longer than 3 months may be required to register with the relevant authorities. In this way, the host State can verify that the Union citizen meets the substantive requirements laid down in the EU law. As far as treatment is concerned, the Directive provides that Union citizens are entitled to equal treatment with host State nationals, albeit with certain restrictions.7 After 5 years of legal and continuous residence, Union citizens acquire the right of permanent residence (Art. 16), which sees an improvement in their legal status. For example, the right of permanent residence is no longer conditional on meeting the  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/ EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, O.J. L 158/77 (2004). For a comment, see Morviducci (2017); Guild et al. (2019). 6  Free movement of persons is one of the four freedoms of the internal market. Initially, workers and persons falling within the scope of application of the right of establishment benefitted from it. The freedom of movement was an instrument for establishing the integration process pursued by the Treaty of Rome. On this original design, see Hartley (1978). On the subsequent evolution, see O’Leary and Iglesias Sánchez (2021). 7  Under Article 24 of the Directive, citizens of the Union who are not workers are not entitled to social assistance during the first 3 months of residence, and do not enjoy the right to receive maintenance aid for studies for the first 5 years of residence, until they acquire the right to permanent residence. 5

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criteria for periods of residence of more than 3  months (that is, being a worker, student or economically self-sufficient), equal treatment applies without restrictions of any kind and Union citizens qualify for enhanced protection against expulsion. Looking at the essential elements of free movement of persons, these are a set of legal rules governing admission, treatment and expulsion within the Member States of a particular category of foreigners: Union citizens, i.e. nationals of other EU Member States.8 Family members of Union citizens, regardless of their nationality, also benefit from these special legal rules.9 They enjoy freedom of movement to enable their relative, a Union citizen, to enjoy family unity even if that person moves to another Member State. The right to family reunification (within its broad meaning of the right to accompany a relative or to be reunited with a relative) has, since the very beginning of free movement, been portrayed first and foremost as a right for migrant workers and then as a right for Union citizens. It follows that family members do not enjoy free movement rights independently but only if they are travelling and residing with a Union citizen or they move to reunify with a Union citizen. In these cases, their legal status is equivalent to that of a Union citizen and exempt from the less favourable immigration rules.10 The discriminating factor between applying free movement of persons and immigration law is not a person’s nationality but rather their family ties. For this reason, States want, on the one hand, to exercise a certain control over family members by imposing on them an obligation to apply for a residence card in addition to register for residence,11 and, on the other hand, to counter behaviour such as sham marriages or adoptions as a means of pre-establishing family ties.12

 This minimalist interpretation of free movement of persons is not shared by all legal scholars, because many authors see in the citizenship of the Union the key to the process of constitutionalisation of the European Union. For the reconstruction of the concept and its different interpretations, see Shaw (2021) and Seubert (2020). This reading does not appear entirely satisfactory to the present writer, because it is imbued with an ideal inspiration that is not reflected in the concrete application. 9  On who is a family member for the purpose of free movement, see Milios (2020). 10  On the treatment of third-country nationals who are family members of the citizens of the Union, a subject which attracts the attention of legal scholars, see Berneri (2017). 11  The exercise of the right of residence of family members is subject to the completion of more burdensome administrative formalities than those envisaged for the Union citizen. These formalities consist in requesting and issuing a residence card (and not only in registering with the national authorities), as a tool that allows the State to further check the identity of the person and the danger they may pose. However, the residence card has no constitutive value but it only declares the right of residence: Case C-246/17 Diallo [2018] ECLI:EU:C:2018:499, para 48. 12  Under Article 35 of the Directive, Member States can deny or revoke the right of residence in these cases. See Commission Staff Working Document, Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens, SWD/2014/284. 8

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3 First Question: How Would an Asylum Application Made by a Union Citizen Who Believes That They Are Not Allowed to Practise Their Religion in Their Country of Origin Be Considered? It is not the intention here to assert that religious minorities are persecuted in Member States. The question is provocative but raises the issue of asylum for Union citizens and the applicability of non-refoulement in the EU. Individuals who have been forced to leave their country because they have been persecuted on account of their religion or because they have reason to fear persecution are entitled to refugee status and protection in another State. Individuals who cannot return to their country because they are at risk of inhuman or degrading treatment on account of their religion are entitled to non-refoulement, that is not to be sent to a country where they face the risk of being persecuted, and, where national law so provides, to a right of residence.13 These provisions also apply in the European Union, but only for third-country nationals who come from a third country.14 The right to international protection under the EU law does not actually apply to Union citizens. As far as Union citizens are concerned, they have the right to apply for recognition of refugee status or for international protection in another Member State, under Article 18 of the Charter of Fundamental Rights, which does not impose nationality limits on the application of the Geneva Convention.15 In their examination of the application, which will be carried out according to national law, Member States must take into account Protocol No. 24 on Asylum for Nationals of Member States of the European Union, which has the same legal value as the Treaties. This provides that ‘[g]iven the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters’. There is a clear intention on the part of the States to consider each other as safe countries of origin, i.e. countries that do not persecute their citizens. But the presumption is not absolute insofar as the Sole Article of the Protocol sets out four situations in which it can be rebutted: the first is where the State avails itself of Article 15 ECHR to derogate from its obligations under the Convention; the second and third concern situations where the general context in the State of origin has deteriorated to the point that recourse is required to the procedure under Article 7 TEU;16 the final clause provides that the State’s  On the right to benefit from international protection for reasons related to freedom of religion, see Santini and Spatti (2020). 14  Article 78 TFEU. 15  See Kokott AG’s opinion in case C-804/21 PPU, ECLI:EU:C:2022:182, para 90. 16  The two envisaged situations occur: when the procedure referred to Article 7(1) TEU has been initiated, and when the Council has adopted a decision in accordance with Article 7(1) TEU or when the European Council has adopted a decision in accordance with Article  7(2) TEU.  The 13

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interests in dealing with the application will prevail.17 Even if none of these four cases is applicable, the State has an obligation to examine the asylum application, which it may consider inadmissible or unfounded, in accordance with the parameters of due process. In other words, it must give the applicant the opportunity to demonstrate that the country of origin is not safe for them and allow for judicial review of the rejection decision. The rationale behind the Protocol can be seen, as argued elsewhere,18 by the inclusion of the following sentence in the recitals: ‘wishing to prevent the institution of asylum being resorted to for purposes alien to those for which it is intended’. The Protocol originates from a dispute between Spain and Belgium in the 1990s. Spain requested the extradition of two Spanish nationals to stand trial for terrorism. Belgium refused to surrender them in the first instance because they had applied for asylum and subsequently because it claimed that terrorism was a political offence thus justifying the rejection of the Spanish request. The Protocol can therefore be understood as aimed at preventing the occurrence of similar facts, meaning an application for asylum to evade extradition. The political and legal context has changed since then both because of the different perception of terrorism, which is now regarded by all States as a serious security threat, and because of the entry into force of Framework Decision 2002/584 on the European arrest warrant. Terrorism is one of the offences for which an arrest warrant can be issued and therefore the political offence objection cannot be raised to deny execution of the warrant.19 Furthermore, the Court of Justice has held that the submission of an asylum application, in the case in question by a Union citizen, is not a ground for non-execution of the arrest warrant.20 The residual space that asylum has for Union citizens can be explained by considering the philosophy underlying free movement of persons. Union citizens, unlike foreigners, have a right of residence in all EU Member States.21 In other

Court stated that the procedure under Article 7(1) is triggered by the adoption of the EP resolution on a proposal calling on the Council to determine the existence of a clear risk of a serious breach of the values on which the Union is founded (case C-650/18, Hungary v European Parliament, ECLI:EU:C:2021:426, para 39). The same can be said for the proposal that the Commission or one-third of the Member States can address to the Council under Article 7(1). In the next paragraph, the Court said that the initiation of the procedure ‘has the immediate effect of lifting the prohibition, which is in principle imposed on the Member States, on taking into consideration or declaring admissible to be examined an asylum application made by a […] national’ of the State in question (para 40). In the words of Bobek AG, this State cannot be considered as a safe country of origin by the other Member States any more (ECLI:EU:C:2020:985, para 104). 17  This is an exhaustive list, as the Court stated in paragraph 55 of its judgement in case C-804/21 PPU [2022] C and CD v Syytäjä, ECLI:EU:C:2022:307. The exhaustive character of the list, however, is diminished by the open nature of the last sentence of the list. 18  Lang (2015), pp. 395–398. 19  Article 1(3) and recital no. 12. 20  Case C-804/21 PPU, [2022] C and CD v Syytäjä, ECLI:EU:C:2022:307, para 57. 21  Carlier (2004), p. 7, says that the citizenship of the Union prevents the statement that the person “is outside the country of his nationality” under Article 1 A 2) of the 1951 Geneva Convention.

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words, their position is much more secure than that of a third-country national applying for asylum. So, in the context of free movement of persons, the reasons why a person leaves their country are not particularly important nor are the reasons for staying. Union citizens have a right of long-term residence if they meet the conditions laid down by the EU law.22 Most important is the right of access to work, which is independent from the right of residence. Right of access to work is guaranteed on account of citizenship and the requirement to perform administrative formalities, even if legitimately established by the host State, is not a condition for entering into an employment relationship. Even in the absence of work, Union citizens have a right of residence provided they are economically self-sufficient. Limits do, however, exist as regards access to social benefits. If a Union citizen is persecuted or has just reason to fear persecution on account of their religion, they may need economic and psychological support in the host State. In this case, that person would not, as a Union citizen, be entitled to claim the benefits that the host State guarantees for third-country nationals.23 The option of applying for asylum might then seem more advantageous. The application should be examined even if it is likely to be rejected on the basis that the receiving authorities might, under Protocol No. 24, presume that it is unfounded or inadmissible. The applicant should be allowed to rebut the presumption by proving that they have refugee status. The decision should be appealable in court.24 If the host State imposes an expulsion order on a Union citizen, the EU law offers direct and indirect safeguards that the right to practise one’s religion will be respected. First, a State cannot expel a Union citizen on religious grounds. Generally, expulsion can only be justified if the personal conduct of the individual concerned represents a genuine and effective threat to public policy, public safety or public health. Second, before taking an expulsion decision, the State must assess the impact that the enforcement of the decision may have on the individual concerned, taking into account the links they have built in the host State and in the country of origin, under Article 28(1) of Directive 2004/38. This makes it possible to balance up the various interests at stake: the more established and long-lasting the links created in the host State are, the more serious the reasons for expulsion must be. Third, insofar as the Directive does not consider fundamental rights in the State to which the individual concerned is expelled, it is possible to favour an interpretation consistent

 Religion-neutrality is granted by the EU Charter of Fundamental Rights and the principle of nondiscrimination on the ground of religion, referred to in recital 31 of Directive 2004/38 When it receives and processes an application for residence registration, the State is acting within the scope of application of EU law and therefore it is bound by the Charter. 23  The Court said that citizens of the Union cannot avail themselves of the prohibition of discrimination on the ground of nationality under the now Article 18 TFEU to receive the treatment that the host Member State grants to third-country nationals: Joined Cases C-22/08 and C-23/08 [2009] Vatsouras and Koupatantze, ECLI:EU:C:2009:344, para 52, lastly referred to in Case C-930/19 [2021] X v Belgian State, ECLI:EU:C:2021:657, para 51. 24  Articles 41 and 47 EUCFR. 22

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with the Charter of Fundamental Rights. Indeed, when a State takes a decision on the expulsion of a Union citizen, it is acting within the scope of the EU law and is therefore required to comply with Article 19(1) of the Charter, establishing the principle of non-refoulement. This provision can, in turn, be read in the light of the Geneva Convention and the ECHR. The comments made above assume greater significance if one considers that Directive 2004/38 also applies to family members of Union citizens who are third-­ country nationals, who could be removed to the third country of origin. In this case, a further argument could be added to back up the proposed reasoning, which applies mutatis mutandis: Directive 2004/38 is intended to guarantee better treatment than the treatment received by third-country nationals who are not family members and failing to consider the risk of persecution in the country of origin would expose family members of Union citizens to worse treatment than third-country nationals. In fact, the application of Directive 2008/115 governing the return of illegally staying foreigners is without prejudice to the obligations resulting from the Geneva Convention and from the Charter (recitals 23 and 24). As part of its scope, it compels States to respect the principle of non-refoulement.25 The Directive does not explicitly provide that States must not issue a return decision if there is a risk of violation of the principle of non-refoulement but does not exempt them from complying with their international obligations. Even if the State issues a decision to return a person who is at risk of being subjected to treatment prohibited by the principle of non-refoulement, it cannot enforce that decision. Indeed, Article 9 of Directive 2008/115 provides that the State will postpone removal (i.e. forced return) if this violates the principle of non-refoulement. Article 13 of the same Directive sets out the remedies available and provides that the competent authority has the possibility of temporarily suspending the enforcement of the return decision. Comparing the provisions of Directive 2008/115 with those of Directive 2004/38, it is evident that, in the case of removal of a family member to the country of origin, there is a gap in Directive 2004/38, which can only be filled by interpretation in reference to the Charter. Not affording family members the minimum treatment guaranteed under the Return Directive would run contrary to the aim of improving the rules governing family members of Union citizens compared with the rules on foreigners.

 The principle of non-refoulement in the Directive encompasses both Article  33 of the 1951 Geneva Convention and Article  3 ECHR, as interpreted by the Strasbourg Court, see Schieffer (2010), p. 1529. 25

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4 Second Question: Can a Religious Marriage Form the Basis for Family Reunification? As previously mentioned, free movement of persons also benefits family members of Union citizens. Family members include the spouse, descendants and relatives in the ascending line who join a Union citizen residing in the host State or who move with that Union citizen (Art. 2 of Directive 2004/38). Although the partner and ‘any other family members’ do not enjoy a right of residence, the host State must ‘facilitate’ their entry and residence (Art. 3). The status of family member, and beneficiary of free movement of persons, relies on the existence of an underlying legal or de facto relationship. To answer the question relating to this section, it is necessary to consider whether a religious marriage constitutes a relationship such that the application of Directive 2004/38 can be invoked. The question raised here has received scant attention in case law or by the Commission in its interpretative documents relating to the Directive or by legal scholars. As a qualified interpreter of the EU law, the Court has, in its case law, nonetheless put forward certain principles which can help to frame the question. Particularly, two rulings offer the most interesting insights and these will be briefly mentioned here: Coman and SM. The first judgment (Coman) clarifies the definition of ‘spouse’ in relation to the free movement of persons.26 This concept is not actually defined in the EU law.27 According to the Court of Justice, the status of spouse arises from ‘a marital relationship’. This assertion appears in a 1986 ruling,28 in which the Court was asked whether a cohabiting partner could be considered a spouse for the purposes of determining the right of residence in a country (the Netherlands) where cohabitation and marriage were considered equivalent. The answer was negative: ‘in the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the Regulation [1612/68], it must be held that the term “spouse” in Article 10 of the Regulation refers to a marital relationship only’ (paragraph  15). The concept was taken up again in Coman. The reference for a preliminary ruling concerned the right of residence of the same-sex spouse of a Union citizen. The marriage had been celebrated in one Member State (Belgium) and the status of spouse was claimed in another State (Romania) to which the couple intended to move.29 The Court stated that a

 Case C-673/16 [2018] Coman, ECLI:EU:C:2018:385.  Neither Directive 2004/38 nor the previous acts that the Directive repealed and replaced (among which is Regulation 1612/68) offer a definition of ‘spouse’. 28  Case 59/85 [1986] Reed, ECLI:EU:C:1986:157. 29  In the present case, the couple got married and lived in one Member State and decided to resettled to the State of origin of the citizen of the Union. Therefore, the case falls outside the scope of application of Directive 2004/38: under Article 3(1), the Directive only encompasses EU citizens who move to a Member State of which they are not nationals. The Court applies the Directive by analogy to assess the case. Anyway, for the present purposes this is not relevant. 26 27

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marriage concluded in a Member State in accordance with the law of that State confers the status of spouse for the purposes of free movement of persons (in other words for the purposes of granting a right of residence but not for other purposes, which continue to be governed by national law: paragraph 35), even if the host State does not regulate or allow that type of marriage. The host State could object on public policy grounds but this can only be relied on if there is a genuine and sufficiently serious threat to a fundamental interest of society (paragraph 44). The fact that the host State does not regulate or allow same-sex marriages does not constitute a public policy ground. The second ruling, given in SM, is interesting for the importance it attaches to maintaining the unity of the family.30 The question that had been brought before the Court was whether a child under kafala was classified as a descendant for the purposes of determining a right of residence for that child in the host State. Kafala is an institution for children’s protection regulated by Islamic law. For the present purposes, it can be defined by quoting the words of the Morocco delegation to the Hague Conference at the time of the negotiation of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children: ‘a child in need of protection may be entrusted either by a decision of the guardianship judge or by an administrative commission to a public or social institution or to a Muslim family which care for the child’s person (shelter, maintenance, education) and, if needed, for the property of the child and who, if necessary, would receive delegation of guardianship over the child. The kafala is not an adoption, which would be forbidden by Islamic law, and it produces no effect on the parent-child relationship. The child who benefits from it does not become a member of the family of the kafil’.31 Similar institutions are also established in other countries,32 among which is Algeria. In SM, the reference for a preliminary ruling to the Court of Justice was made by a UK court, which was being asked to decide on the family reunification of a young child, entrusted under kafala to two married French nationals who were long-term residents in the UK. The couple had purposely travelled to Algeria to obtain custody of the child and had stayed there for several months. Specifically, they had lived together for about 6 months after obtaining custody of the child. At that point the husband returned to the UK, while the wife stayed with the child in Algeria for a further 6 months or so, before returning and applying for family reunification. Directive 2004/38 lists descendants among the family members entitled to reunification. Indeed, all descendants under 21 years enjoy an unconditional right of residence. Above that age, they must be ‘dependents’ of the Union citizen or of the spouse. The use of the term ‘descendant’ as opposed to that of ‘child’ is intentional.  Case C-129/18, SM, ECLI:EU:C:2019:248.  Lagarde’s Explanatory Report to the 1996 Hague Convention, para 23. Kafil refers to the adult with which the child is placed. 32  For more details, see Yassari (2015). Interesting information can be drawn from the 2012 judgment of ECtHR in case Harroudj v France, no. 43631/09, para 16. 30 31

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The aim is to cover not only situations in which a parent is reunited with a child but also those in which a grandparent is reunited with a grandchild.33 The Court of Justice makes its own autonomous interpretation of ‘direct descendant’ under Article 2 of Directive 2004/38, based on the parent-child relationship, which may be biological or legal. The legal link which confers on a person the status of being someone’s child, and therefore the status of descendant, comes from adoption.34 Without going into great detail, the Court rules out the possibility that the child can be considered a descendant and places this within Article 3 of the Directive, stating that a child placed in kafala falls under the category of ‘any other family members’ according to Article 3 of the Directive and referring to recital 6 which identifies the purpose of the Directive as being to ‘maintain the unity of the family in a broader sense’. The Court interprets Article 3 from the perspective of fundamental rights to restrict the margin of appreciation that States would have according to the letter of the law. Article 3 of the Directive provides that the State must ‘facilitate’ the reunification of ‘any other family members’. In Rahman, the Court, interpreting the provision literally, had held that States must grant ‘any other family members’ advantageous treatment over foreign nationals in general, but that they are not obliged to grant them entry and residence.35 In contrast, in SM, the Court goes as far as establishing an (albeit conditional) obligation for the State to grant the reunification of a child entrusted under kafala.36 The Court reaches this conclusion precisely by favouring an interpretation of the law from the perspective of fundamental rights. Indeed, when considering an application for reunification, States must be guided by Articles  7 and 24 of the Charter of Fundamental Rights: a family life may have arisen between a child and adults which must be protected from arbitrary action, even if the best interests of the child might mean that the application for reunification is refused. It should be noted that the interests of the child in living with the adults to whom he or she has been entrusted does not seem to be an important factor for the purposes of allowing reunification: the interests of the child are only invoked when opposing reunification. Given these two opposing poles, the Court moved to identify the elements that the national authority must take into consideration when assessing an application for family reunification: on the one hand, the elements  ‘[T]he persons within the scope of Article 2(2)(c) obviously include the children, grandchildren et al of the EU citizen’: Guild et al. (2019), p. 43 (emphasis added). 34  Case C-129/18, SM, ECLI:EU:C:2019:248, paras 52–54. The Court does not dwell on justifying the interpretation it gave, but merely argues that ‘the concept of a “direct descendant” commonly refers to the existence of a direct parent-child relationship’, without quoting any provisions of the EU or national law to support its statement. 35  ‘[T]hat provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence of other nationals of third States, on applications submitted by persons who have a relationship of particular dependence with a Union citizen’ (ECJ case C-83/11 [2012] Rahman, ECLI:EU:C:2012:519, para 21). 36  As Hammje (2019), p. 768 correctly states, the interpretation provided by the Court ends up nullifying the differences between the legal regimes of ‘descendants’ and ‘other members of the family’. 33

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which suggest that there is a family life to be protected (‘the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child’: paragraph 69), and, on the other hand, the opposing elements which suggest that the best interests of the child should prevail (‘it is also necessary to take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking’, risks which cannot be assumed but must be established on a case-by-­ case basis: paragraph 70). Therefore, once the national authorities have analysed the specific circumstances of the case in question, reunification should be allowed if a family life has been formed between the parties and if this is not contrary to the best interests of the child. Having briefly illustrated the Court of Justice’s rulings in Coman and SM, it is an opportune moment to return to the question of whether religious marriage confers the status of family member for the purposes of family reunification. First, of course, it will be necessary to consider whether religious marriage confers the status of spouse. To answer that question, different hypotheses need to be examined. If religious marriage has civil effects in the Member State where it is celebrated, then it clearly confers the status of spouse. Applying, by analogy, the principle that can be inferred from Coman, it can be stated that a religious marriage that produces civil effects in a Member State confers the status of spouse for the purposes of Directive 2004/38 even if that same marriage would not be possible or would not have produced civil effects under the laws of that State. If marriage does not have civil effects in the Member State in which it is celebrated,37 it cannot be considered as capable of conferring the status of spouse, as it is not a marriage contracted in a Member State in accordance with the laws of that State. However, useful insights can be gained from SM. The Directive includes among ‘any other family members’ ‘the partner with whom the Union citizen has a durable relationship, duly attested’,38 although it does not define what a ‘durable relationship’ is and how it can be ‘duly attested’. If the purpose of the provision is to maintain the unity of the family in the broadest sense, as per recital no. 6, and assuming that the family whose unity is to be protected can also exist in a context other than marriage with civil effects, then religious marriage may well give rise to  Whether religious marriage produces civil effects depends on national legal orders and the landscape is very diverse: for a taxonomy of the legal orders of the Member States, see Licastro (2017). It is foreseeable that at least in some Member States, religion marriages can be celebrated but cannot have civil effects. 38  The Directive also mentions partners in Article 2 among family members who are entitled with a right of residence. However, the case we are discussing in this section does not fit within the relevant definition (‘the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State’). 37

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a relationship capable of conferring if not the status of spouse then at least the status of partner. It is therefore for the host State to assess the application for family reunification. In doing so, it will need to consider whether a family life to be maintained has been formed in the State where the marriage was celebrated,39 and, if so, applying by analogy the principles affirmed in SM, it will need to grant a right of residence to the family member. The State may also assess whether there are reasons not to do so, e.g. public policy grounds as mentioned in Coman which pose a genuine and sufficiently serious threat to a fundamental interest of society. In making its assessment, the State must observe the principle of non-discrimination based on religion. Indeed, when examining an application for registration of residence or for a residence card, the State acts within the scope of the EU law and therefore must respect the Charter of Fundamental Rights. Finally, there remains the question of polygamous marriage.40 None of the Member States allows polygamous marriages, in fact polygamy is considered an offence, but the possibility cannot be ruled out that a Union citizen enters into such a marriage in a third country and applies for family reunification in a Member State other than their country of origin,41 under Directive 2004/38. The Directive is silent on this matter, unlike Directive 2003/86, on family reunification of third-country nationals. Its Article  4(4) provides that ‘In the event of a polygamous marriage, where the [third-country national] already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse’. The Commission, in a Communication on the interpretation of Directive 2004/38, states that ‘Member States are not obliged to recognise polygamous marriages, lawfully contracted lawfully in a third country, which may be in conflict with their own legal order’.42 The decision of a Member State not to allow family reunification in that case would not be based so much on grounds of public policy or public security within the meaning of Directive 2004/38, i.e. related to the threat that the personal conduct of the individual concerned poses to society in the host State, but rather on the need to preserve an essential principle of the national constitutional order, namely the monogamous nature of marriage. The Commission’s proposed interpretation of Directive 2004/38 seems much more  In Coman, the Court states that the right to lead a normal family life, together with their family members, both in the host Member State and in the Member State of which they are nationals when they return to that Member State is one of the rights that Article 21(1) TFEU grants to the citizens of the Union (para 32). 40  Monogamy is a fundamental feature of Western marriages. Senigaglia (2014). Mosconi and Campiglio (2019), p. 82 recall the EChHR judgment in case Green and Farhat v Malta (2010) appl. no. 38797/07, in which it considered the State’s choice to protect the monogamous character of marriage as legitimate. 41  The EU law does not regulate family reunification in the State of origin of the citizen of the Union, except for very specific hypothesis. 42  Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2009/313, para 2.1.1. 39

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radical than the solution contained in the Family Reunification Directive. In fact, under Directive 2003/86, a State will refuse reunification in the case of the second spouse, but can authorise reunification in the case of the first spouse. The ‘first’ spouse seems to mean not the spouse married first but, rather, the spouse with whom reunification was authorised first. In the context of Directive 2004/38, a State would appear to be able to refuse reunification for the first spouse, where there is a second spouse, because polygamous marriages themselves are unacceptable. This difference in interpretation may however be tempered if one considers that States do not tolerate situations of polygamy in their territory, but encourage the reunification of a family unit established abroad as long as it remains monogamous. Generally, however, allowing the reunification of just one spouse, essentially leaving the choice of which one—the one married first or the one married subsequently—to the sponsor (a Union citizen in the context of Directive 2004/38 or third-country national in the context of Directive 2003/86), could raise further difficult questions about the difference of treatment between the spouses.

5 Third Question: On What Basis Can a Union Citizen Who Wishes to Live in a Religious Community or Who Is a Minister of Religion Reside in a Different Member State from Their Country of Origin? The immigration laws of many Member States offer a specific channel for the admission of those who wish to live in a religious community or who are ministers of religion (thereinafter called ‘religious people’).43 Directive 2004/38, however, is silent on this matter. So the issue is whether and how the question can be framed and resolved in the context of free movement of persons. If Member States wish to extend the entry channels established for third-country nationals to nationals of Member States or to establish ad hoc entry conditions, they are free to do so.44 Indeed, Article 37 of the Directive allows the application of more favourable national provisions. Where the State does not provide a special channel or does so only for religious people who meet certain conditions, the conditions of residence for religious people who are Union citizens will be governed by Directive 2004/38.  IOM (2009).  Italy can be quoted as an example. The Ministry of the Interior, by circular letter of 2007 no. 39, concerning the implementation of the transposition of Directive 2004/38 into Italian legal system, regulates the case, i.e. lists the documents required for the registration into the population registry of EU nationals who want to reside in Italy for religious reasons. The person concerned must produce a declaration by the head of the religious community, certifying the nature of the office held, the coverage of costs for boarding and lodging, endorsed by the bishop or equivalent religious authority in Italy, as well as a declaration by the head of the religious community certifying the coverage of health care costs, or a health insurance cover. 43 44

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As already stated, Union citizens can reside for more than 3 months is they fall within one of the categories of Art. 7. The categories most relevant for the present purposes are workers or self-employed persons, and those who are economically self-sufficient. The choice is important because enjoying a right of residence as a worker or self-employed person is still more advantageous today than enjoying that right as an economically self-sufficient person since the conditions imposed on residence are less onerous and there are no exceptions to the application of the principle of non-discrimination to host State nationals. So the starting point is to consider whether a religious person can be considered a worker. This concept is not defined in Directive 2004/38 and is not dependent on national law. Instead, it is an autonomous concept of the EU law, defined by the Court of Justice.45 The Court has stated that, in the context of free movement of persons, the concept of ‘worker’ ‘must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship […] is that […] a person performs services of some economic value for and under the direction of another person in return for which he receives remuneration’.46 The activities performed by the worker must be genuine and effective. But the point at which an activity ceases to be genuine and effective remains somewhat unclear. Leaving aside a few borderline cases,47 it seems inferable from an overview of the case law of the Court of Justice that the requirement for activities to be ‘effective and genuine’ is designed to exclude activities that are merely ancillary or even fictitious. In other words, this requirement can be framed as the need to avoid abuse of the right to free movement by pre-creating situations that artificially place the individual concerned within the scope of the EU law.48 A further obstacle to applying the Lawrie-Blum case law to the activities of religious people could come from the requirement for the worker to perform ‘services of some economic value’. However, another ruling of the Court of Justice comes to the rescue. In Steymann,49 the Court was asked to consider whether the activities performed by the plaintiff in the main proceedings—a member of a religious community who performed various activities for that community in exchange for accommodation and living expenses—could be regarded as economic activities and thus fall within the scope of the EU law and, particularly, within the scope of free movement of workers. Taking the view that the activities performed—which were, in principle, mandatory for members of the community and essential for its existence—were genuine and effective and that the benefits in kind that the community  For the definition of worker, see Giubboni (2018) and Kellerbauer and Martine (2019).  ECJ case 66/85 Lawrie-Blum [1986] ECLI:EU:C:1986:284, summary. 47  We refer here to the judgement of the Court, in which it stated that the activities pursued within a social scheme aiming to help persons who, by reason of circumstances relating to their situation, were unable to take up employment under normal conditions, to restore the capacity for work, were not ‘effective and genuine’: case 344/87 [1989] Bettray, ECLI:EU:C:1989:226. 48  See also Iliopoulou-Penot (2013), p. 190. 49  ECJ case 196/87 [1988], ECLI:EU:C:1988:475. 45 46

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provided to its members could be regarded as being an (albeit indirect) quid pro quo for the work performed, the Court recognised the existence of an economic activity. Even the fact that the person does not receive a salary but rather compensation in kind does not, in the Court’s view, constitute an obstacle. In other circumstances, the religious person’s status could be regarded as that of a self-employed person. In the area of free movement and concerning self-employed persons, the ECJ has said that an economic activity is pursued by a self-employed person, ‘where it is established that it is being carried on by the person providing the service: outside any relationship of subordination concerning the choice of that activity, working conditions and conditions of remuneration; under that person’s own responsibility; and, in return for remuneration paid to that person directly and in full’.50 There is very little case law on self-employed persons. Once again, the emphasis is on ‘economic activity’, which, for systematic reasons since workers and self-­ employed persons are placed on the same footing in Directive 2004/38, can be given the same meaning proposed by the Court concerning the activities of workers. So, to state that a Union citizen who wishes to live in a religious community or who is a minister of religion can reside as a worker, it is first necessary to consider whether there is an employment relationship. Where an employment relationship is confirmed to exist, because it is classified as such by the law under which the relationship is established, there is no issue. In contrast, where there is no such employment contract, the person could still reside as a worker or self-employed person if there is a connection between the activity performed and the salary or remuneration. According to the case law mentioned above, the activity must be both ‘economic’, i.e. ‘of some economic value’, and effective and genuine. However, when interpreting this requirement in the light of Article 10 of the Charter of Fundamental Rights, it could be argued that the activity performed by religious persons is a manifestation of their life choices and the source of their livelihood, and is therefore sufficient to satisfy the ratio underlying free movement, namely the ability to live where one works without becoming a burden on the host State. Finally, if the activities performed by the religious person are not sufficient for a Union citizen to be classified as a worker or self-employed person, they may still have a right of residence on account of being economically self-sufficient.51 It is useful to recall here the case law on the concept of sufficient economic resources. As well as stating that States cannot predetermine the level of resources, they consider adequate, the Court has specified that resources must be available to the person concerned but do not necessarily need to be ‘personal’.52 This means that resources can be provided to the person concerned by a third party. It is admittedly true that in  ECJ case C-268/99 Jany [2001] ECLI:EU:C:2001:616.  Italy seems to follow this reading of the provision: see footnote 44. 52  Case C-398/06 [2008] Commission v the Netherlands, ECLI:EU:C:2008:214. The host Member State is entitled to undertake the necessary checks as to the existence, amount and availability of the concerned person’s income: case C-408/03 [2006] Commission v Belgium, ECLI:EU:C:2006:192, para 44. 50 51

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the cases brought before the Court, the third party was a family member or at least had some sentimental ties.53 But it does not appear necessary to limit the application of the case law principles mentioned above to situations where such a relationship exists. Indeed, what matters, according to the Court, is that Union citizens who are economically self-sufficient can call on stable resources.54 The resources must enable the person concerned to avoid becoming ‘a burden on the social assistance system of the host Member State’. The Court of Justice, based on an interpretation of the various language versions of Directive 2004/38, redefined the burden referred to in Article  7(1)(b) as being on the ‘social assistance system’ of the host State.55 The ‘social assistance system’ in question expresses an autonomous concept, interpreted ‘as covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by that State’ (para 61).

6 Concluding Remarks The three questions posed at the start of this chapter can now be answered. The answer to the first question (how would an asylum application made by a Union citizen who believes that they are not allowed to practise their religion in their country of origin be considered?) is that the asylum application would likely be rejected but the fact that the Union citizen has a right of residence means that their presence in the host State is much less uncertain than that of third-country nationals. Moreover, the protection against expulsion that Directive 2004/38 guarantees for Union citizens and their family members means that the restrictions on religious freedom that the person might suffer in the country to which they are returned can be considered. The second question (can a religious marriage form the basis for family reunification?) can be answered in the affirmative, even where religious marriage does not produce civil effects in the State where it was celebrated, although in that case it is necessary to go through the channel of being a partner of a Union citizen.  The parent who is the carer of the child (case C-200/02 [2004] Chen, ECLI:EU:C:2004:639), the non-married partner (case C-408/03 [2006] Commission v Belgium, ECLI:EU:C:2006:192), the spouse (case C-218/14 [2015] Singh et al., ECLI:EU:C:2015:476). 54  The Court said that taking account of the income where it comes from a person connected with the beneficiary by a legal link would only be disproportionate if it went beyond what is necessary to achieve the purpose of the requirement, which is the protection of the public finances in the host Member State: case C-408/03 [2006] Commission v Belgium, ECLI:EU:C:2006:192, paras 46–47. 55  Case C-140/12 [2013] Brey, ECLI:EU:C:2013:565, paras 60 and 73–74. 53

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Finally, on the third question (on what basis can a Union citizen who wishes to live in a religious community or who is a minister of religion reside in a different Member State from their country of origin?), it is possible to identify several available avenues because, beyond the letter of Directive 2004/38, the Court has interpreted in a sufficiently flexible manner the requirements that the Directive lays down, and these may well apply to a religious person. In conclusion, therefore, it seems possible to assert that Union citizens who wish to live by their faith and conform to the rules of their religion may exercise free movement of persons, with the reasonable expectation that the Union’s laws will not obstruct their life plans.

References Berneri C (2017) Family reunification in the EU: the movement and residence rights of third country national family members of EU citizens. Hart, Oxford Carlier J-Y (2004) Le développement d’une politique commune en matière d’asile. In: Dias Urbano De Sousa C, De Bruycker P (eds) The emergence of a European Asylum Policy. Bruylant, Bruxelles Giubboni S (2018) Being a worker in EU law. ELLJ 9:223–235 Guild E, Peers S, Tomkin J (eds) (2019) The EU citizenship directive: a commentary, 2nd edn. Oxford University Press, Oxford Hammje P (2019) Reconnaissance d’une kafala au titre d’une vie familiale effective avec un citoyen européen aux fins d’octroi d’un droit de séjour dérivé. Reve critique de droit international privé: 768 Hartley TC (1978) EEC immigration law. North Holland, Amsterdam Haverkort-Speekenbrink S (2012) European non-discrimination law: a comparison of EU law and the ECHR in the field of non-discrimination and freedom of religion in public employment with an emphasis on the Islamic Headscarf Issue. Intersentia, Cambridge Iliopoulou-Penot A (2013) Libertés de circulation et abus de droit. In: Duboit E, Maitrot de la Motte A (dir) L’unité des libertés de circulation. In varietate concordia. Bruylant, Bruxelles, p 190 IOM (2009) Laws for legal immigration in the 27 EU Member States, Geneva Kellerbauer M, Martine D (2019) Article 45 TFEU.  In: Tomkin J, Klamert M, Kellerbauer M (eds) EU Treaties and the Charter of Fundamental Rights: digital pack: a commentary. Oxford University Press, Oxford Lang A (2015) The protection of vulnerable people and the free movement of persons within the European Union: two world apart? In: Ippolito F, Iglesias Sánchez S (eds) Protecting vulnerable groups. The European Human Rights Framework. Hart, Oxford, pp 291–310 Licastro A (2017) Il diritto statale delle religioni nei paesi dell’Unione europea. Lineamenti di comparazione, 2nd edn. Giuffrè editore, Milano Milios G (2020) Defining “family members” of EU citizens and the circumstances under which they can rely on EU law. YEL 39:293–319 Morviducci C (2017) I diritti dei cittadini europei, 3rd edn. Giappichelli editore, Torino Mosconi F, Campiglio C (2019) Diritto internazionale privato e processuale. II, Statuto personale e diritti reali. 5th edn. Utet, Torino O’Leary S, Iglesias Sánchez S (2021) Free movement of persons and services. In: Craig P, de Búrca G (eds) The evolution of EU law, 3rd edn. Oxford University Press, Oxford, pp 506–545 Santini A, Spatti M (2020) Migration and religious freedom: the legislative and judicial framework at international and European level. In: Zanfrini L (ed) Migrants and religion: paths, issues, and lenses. Brill, Leiden, pp 111–123

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Schieffer M (2010) Directive 2008/115. In: Hailbronner K (ed) EU immigration and asylum law. A commentary. Beck, München Senigaglia R (2014) Il significato del diritto al ricongiungimento familiare nel rapporto tra ordinamenti di diversa “tradizione”: i casi della poligamia e della kafala di diritto islamico. Europa e diritto privato: 554 Seubert S (2020) Shifting boundaries of membership: the politicisation of free movement as a challenge for EU citizenship. ELJ 26:48–60 Shaw J (2021) Citizenship: contrasting dynamics at the interface of integration and constitutionalism. In: Craig P, de Búrca G (eds) The evolution of EU law, 3rd edn. Oxford University Press, Oxford, pp 608–650 Yassari N (2015) Adding by choice: adoption and functional equivalents in Islamic and Middle Eastern law. Am J Comp Law: 927

Alessandra Lang  is Associate Professor of European Union Law in the Department of International, Legal, Historical and Political Studies of the University of Milan (Italy), where she teaches EU law in the undergraduate programme in International Science and European Institutions. Her main fields of research concern free movement of persons and EU citizenship, implementation of EU law on the free movement of persons in Italy, EU migration policy, EU external relations, EU Common Foreign and Security Policy, EU enlargement. She is the author of two monographs, co-editor of four books, and author of about 100 papers, published in legal journals and books.

Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice Fabio Spitaleri

Abstract  The chapter aims to examine the case law on religious discrimination in the workplace, developed by the Court of Justice since the adoption of Directive 2000/78. After an overview of the EU legal framework for combating discrimination on the grounds of religion or belief, the chapter analyses the case law on the ban on wearing religious symbols at work. The chapter seeks to clarify whether an internal rule of an undertaking prohibiting workers to wear visible signs of political, philosophical or religious beliefs constitutes direct, indirect or intersectional discrimination. Furthermore, the chapter identifies the legitimate aims that may justify such a measure and specifies when it may be considered appropriate and necessary within the meaning of Directive 2000/78. Finally, the chapter assesses whether a characteristic related to religion or belief can be regarded as a genuine and determining occupational requirement, in general and in the specific context of the so-­ called faith-based employers. Keywords  Discrimination on the grounds of religion or belief · Directive 2000/78 · General principle of non-discrimination · Ban on wearing religious symbols at work · Islamic headscarf

1 Introduction The fight against discrimination based on religion, in the context of labour relations, has been regulated quite recently by the European Union (EU).1  Alidadi (2017); Doe (2012); Haverkort-Speekenbrink (2012); Howard (2013), p. 360; Lourenço (2019), p. 193. 1

F. Spitaleri (*) University of Trieste, Trieste, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_10

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Until 2000, the EC legal system focused on the prohibition of discrimination that could constitute an obstacle to the functioning of the common market or that could affect the EC social policy. Discrimination on the grounds of nationality and gender discrimination in employment were subject to specific prohibitions. The action of the Communities and the jurisprudence of the Court of Justice (ECJ) concentrated mainly on these forms of discrimination. Already in the late 1970s, however, the ECJ recognised that the EC law includes a general principle of equal treatment.2 The Court held that the prohibitions of discrimination laid down in the Community provisions are merely a specific enunciation of the general principle of equality, which is one of the fundamental principles of Community law. The ECJ added that this principle requires that comparable situations not be treated differently, and different situations not be treated alike, unless such treatment is objectively justified.3 However, the recognition of this principle only partly changed the previous situation. Indeed, the scope of the general principle was (and still is) limited to cases falling within the scope of the EC law. This implies that the regulations and practices of the Member States could only be reviewed, in light of this principle, in cases where they act to implement EC rules and in situations governed by the EC law.4 Before 2000, since there was no EC secondary legislation on combating discrimination on the grounds of religion, the general principle could not be applied to review internal measures concerning these forms of discrimination. The situation changed radically following the adoption of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Under Article 1, the purpose of the Directive is ‘to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.5 The grounds for discrimination covered by the Directive therefore include religion and belief. The adoption of Directive 2000/78 was of paramount importance in the fight against discrimination based on religion, as it brought this new form of discrimination within the situations covered by the EU law. Unlike previously, the Court was able to check—in the light of the aforementioned Directive and the general principle of equality—whether the legislation and practices of the Member States in this field were in conformity with the EU law.6  C-117/76, Ruckdeschel and Others v Hauptzollamt Hamburg-St. Annen, EU:C:1977:160.  C-56/94, SCAC v ASIPO, EU:C:1995:209, para 27; C-15/95, EARL de Kerlast v Unicopa and Coopérative du Trieux, EU:C:1997:196, para 35; C-354/95, National Farmers’ Union and Others, EU:C:1997:379, para 61; and C-292/97, Karlsson and Others, EU:C:2000:202, para 39. 4  C-299/95, Kremzow v Republik Österreich, EU:C:1997:254, paras 15–16; C-617/10, Åkerberg Fransson, EU:C:2013:280, para 19; and C-265/13, Torralbo Marcos, EU:C:2014:187, paras 29–32. 5  Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 6  C-249/96, Grant v South-West Trains, EU:C:1998:63, and C-267/06, Maruko, EU:C:2008:179. 2 3

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The aim of this chapter is precisely to examine the case law on religious discrimination in the workplace, developed by the ECJ since the adoption of Directive 2000/78. The chapter seeks to emphasise that the Court’s approach has been particularly restrictive. It also aims to highlight some gaps in the relevant case law. To achieve these objectives we will divide the chapter into six major sections. After the Introduction, we will provide an overview of the relevant legal framework (Sect. 2). We will then analyse the case law on the ban on wearing religious symbols at work. In the light of the ECJ case law, we will seek to clarify whether this prohibition constitutes direct, indirect or intersectional discrimination (Sect. 3). We will then assess whether a characteristic related to religion can be considered a genuine and determining occupational requirement, in general (Sect. 4) and in the specific context of the so-called faith-based employers (Sect. 5). Finally, we will set out our conclusions (Sect. 6).

2 Legal Framework: Directive 2000/78 and the General Principle of Non-Discrimination Directive 2000/78 is based on Article 13 TEC (now Article 19 TFEU). Originally, the Treaties did not contain this provision. It was introduced into the TEC by the Treaty of Amsterdam, which entered into force on 1 May 1999. Following this revision, Article 13 TEC (now Article 19 TFEU) allows the Council to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.7 On this legal basis, the Council has been able to adopt measures that have regulated new types of discrimination, which were previously not covered by the Treaties and secondary legislation.8 Directive 2000/78 is one such measure.

 C-13/05, Chacòn Navas, EU:C:2006:456, para 55, in which the Court of Justice ruled that Article 13 TEC ‘contain only the rules governing the competencies of the Community’. See also C-236/09, Association Belge des Consommateurs Test-Achats and Others, EU:C:2011:100, para 20, in which the Court of Justice added that ‘it is the EU legislature which, in the light of the task conferred on the European Union by the second subparagraph of Article 3(3) TEU and Article 8 TFEU, determines when it will take action, having regard to the development of economic and social conditions within the European Union’. On Article 19 TFEU, see Bell (1999), p.  5; Dubout (2006); Flynn (1999), p. 1127; Spitaleri (2011), p. 3; Spitaleri (2014), p. 482. 8  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and Directive 2000/78. See also Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. 7

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2.1 Directive 2000/78 and the Fight Against Discrimination Based on Religion and Belief Directive 2000/78 contains several provisions dealing with discrimination based on religion or belief. For the purposes of this analysis, it is important to recall some of them. The first is the one that defines, in a general way, the notion of direct and indirect discrimination. Article  2(2)(a) states that direct discrimination exists ‘where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1’, which includes religion and belief. This definition codifies the ECJ case law.9 In cases where discrimination is direct, the unequal treatment, between similar situations, is explicitly based on a prohibited ground. The element characterising direct discrimination is thus represented by the fact that a difference in treatment is based directly on a ground considered by the Directive. Under Article 2(2)(b), indirect discrimination occurs ‘where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief (…) at a particular disadvantage compared with other persons unless (…) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. This definition also codifies the established ECJ case law.10 In the case of indirect discrimination, the legislation or practice in question may appear neutral, but in concreto it puts persons having a particular protected characteristic (in the case at hand, persons professing a particular religion or following a particular ideology) at a disadvantage compared to others. In summary, direct discrimination implies a provision that blatantly discriminates someone based on a prohibited ground, whereas indirect discrimination requires an apparently neutral provision, but which has a differential and negative impact on an identifiable group. Another difference between direct and indirect discrimination, which is relevant for our analysis, lies in the possibility of justifying the unequal treatment. In the context of direct discrimination, the protection given by the EU law is stronger: there is a blanket prohibition of direct discrimination, subject only to the specific derogations laid down in the legislation.11 By contrast, indirect discrimination may be justified where the measure in question is objectively justified by a legitimate aim and the means for achieving that aim are appropriate

 On the notion of direct discrimination, see Bell (2007), p. 185.  On the notion of indirect discrimination, see Garrone (1994), p. 425; Waddington and Hendriks (2002), p. 403. 11  C-222/84, Johnston, EU:C:1986:206, para 28. See also Opinion of A.G.  Kokott in C-443/15, Parris, EU:C:2016:493, para 140, and Opinion of A.G.  Sharpston in C-188/15, Bougnaoui, EU:C:2016:553, paras 63 and 70. 9

10

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and necessary.12 It is useful to recall, at this point, that Article 2 has been particularly relevant in cases where the Court has considered whether the ban on wearing religious signs in the workplace constitutes discrimination, whether the discrimination is direct or indirect, and under what conditions it may be justified (see Sect. 3). For this work, it is necessary to mention two other provisions of Directive 2000/78, which provide for exceptions to the prohibition of discrimination on the grounds referred to in Article 1. Article 4(1) states that ‘Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’. It follows from the latter provision that the selection or dismissal of an employee based on a characteristic related to religion or personal beliefs is exceptionally permitted when that characteristic constitutes an essential and determining requirement for the employment in question. We will see below that the ECJ has considered this exception in determining whether the dismissal of an employee is justified in the event that a company’s customers ask not to come into contact with a worker wearing an Islamic headscarf (see Sect. 4). Finally, it is worth mentioning Article 4(2), which stipulates that ‘Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’. The latter provision specifically concerns the so-called faith-­ based employers, i.e. public or private organisations (such as churches, religious institutions, political parties and trade unions), the ethos of which is based on religion or belief. Faith-based organisations may enter into employment contracts with persons charged with promoting the ethics of the institution or even just ensuring its functioning. The question that arises in this case is whether the employer can impose its ethics on jobseekers and employees and, if they do not share it, can refuse to hire the former or decide to dismiss the latter (see Sect. 5). Under the cited provision, this can only happen when a person’s religion or belief constitute ‘a genuine, legitimate and justified occupational requirement’.

 C-170/84, Bilka, EU:C:1986:204, para 31; C-184/89, Nimiz, EU:C:1991:50, para 15; C-127/92, Enderby, EU:C:1993:859. See also Opinion of A.G. Elmer in C-249/96, Grant, EU:C:1998:63. 12

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2.2 The Interaction Between Directive 2000/78 and the General Principle of Non-Discrimination The illustration of the legal framework on discrimination on the grounds of religion or belief would not be complete, for the purposes of our analysis, if we did not explain the interaction between Directive 2000/78 and the general principle of non-­ discrimination. The interaction between these two sources of EU law emerged from both the ECJ case law on age discrimination13 and the case law, examined in this chapter, on discrimination based on religion or belief.14 As mentioned above, Directive 2000/78 was of fundamental importance in the evolution of EU anti-discrimination law, as it regulated new forms of discrimination and brought them within the scope of the Treaties. However, the Directive suffers from two limitations, which must be taken into account. The first limitation pertains specifically to Directive 2000/78. The Court emphasised that the latter ‘does not itself establish the principle of equal treatment in the field of employment and occupation, which originates in various international instruments and constitutional traditions common to the Member States, but has the sole purpose of laying down, in that field, a general framework for combating discrimination on various grounds, including religion and belief, as may be seen from its title and from Article 1’.15 In other words, Directive 2000/78 contains several provisions of substantive and procedural nature aimed at strengthening the fight against the forms of discrimination considered. However, the Directive does not itself prohibit such discrimination. The prohibition derives from the general principle of non-discrimination, now codified in Article 21 of the Charter of Fundamental Rights (hereinafter, CFR). In that sense, the Court held that the ‘prohibition of all discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, is therefore a mandatory general principle of EU law’.16 In other words, the EU law source prohibiting the discrimination in question is not Directive 2000/78, but rather Article 21 CFR (and the corresponding general principle). The second limitation, which we wish to emphasise, characterises every directive, and thus also Directive 2000/78. As is well known, directives can only have direct vertical effect. Individuals can only invoke a directive against the State, not also against other individuals. This limitation is very important, as it does not allow employees, discriminated against because of their religion or belief, to invoke Directive 2000/78 against their private employers. The relevance of this limitation becomes even more apparent when one considers that all the cases concerning religion and belief, brought before the ECJ, concerned precisely employment relationships between individuals. In such cases, however, individuals may rely on the  C-144/04, Mangold, EU:C:2005:709, and C-555/07, Kücükdeveci, EU:C:2010:21.  C-414/16, Egenberger, EU:C:2018:257, and C-68/17, IR, EU:C:2018:696. 15  IR, para 67. See also Egenberger, para 75. 16  IR, para 69. 13 14

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general principle of non-discrimination, which, as a general principle codified in Article 21 CFR, is a primary source of the EU law. This general principle is endowed with horizontal direct effect. In this regard, the Court emphasised that it ‘is sufficient in itself to confer on individuals a right that they may actually rely on in disputes between them in a field covered by EU law’. 17 In other words, in cases falling within the scope of the EU law, individuals may invoke the principle prohibiting discrimination on grounds of religion or belief in their relations with any employer, whether public or private. In both cases, a national court may disapply any provision of national legislation that is contrary to this principle.18 In the field of employment and occupation, Directive 2000/78 and the general principle of non-discrimination constitute the two pillars on which the fight against discrimination on the grounds of religion or belief is based. The jurisprudence of the ECJ on this matter revolves around the interpretation of these two sources of EU law.

3 The Ban on Wearing Religious Symbols at Work: Direct, Indirect or Intersectional Discrimination? The ban on wearing political, philosophical or religious symbols in the workplace raises many general questions. The acceptance or rejection of this ban contributes to the overall configuration of a community, either in a direction that better protects individual freedom and pluralism or in a direction that emphasises the secularity of the State and neutrality policies. Moreover, as is often the case when fundamental rights come into play, the issue under consideration poses delicate problems of balancing different principles: the freedom of thought, conscience and religion, which is one of the foundations of a democratic society, is balanced against the freedom to conduct a business and the management power of the employer. The latter may have an interest in limiting the manifestation of religious or personal convictions to maintain a peaceful working environment or to avoid the risk of losing customers who do not share certain beliefs. As is often the case with fundamental rights, the assessment of the proportionality of the limitations imposed on the exercise of rights and freedoms ends up being decisive. This evaluation must be carried out ‘in accordance with the need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance between them’.19 As is well known, the balancing of fundamental rights is a very complex process. The outcome may vary from case to case and may change over time.

 IR, para 69. See also Egenberger, para 76. See Costamagna (2022); Lazzerini (2015), p. 145; Spitaleri (2018), p. 925. 18  IR, para 68. See also C-441/14, DI, EU:C:2016:278, para 35. 19  Joined cases C-804/18 and C-341/19, WABE and MH Müller Handel, EU:C:2021:594, para 84. 17

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In this complex assessment, due weight must be given to the fact that the restrictions in question affect fundamental freedoms, such as the freedom of thought, conscience and religion, and therefore require strict scrutiny. The ECJ case law concerning the ban on wearing religious symbols at work is in line with this restrictive approach. We will see, however, that some aspects of the jurisprudence should be clarified.

3.1 The Islamic Headscarf Ban: Gender Discrimination, Religious Discrimination or Intersectional Discrimination? The cases considered by the ECJ case law particularly concerned the application of the ban on wearing religious symbols to women of the Muslim faith, who wished to wear a headscarf at work. All these cases concerned private employment relationships. The first problem that arises in such cases concerns the identification of the ground on which the discrimination is based. According to a first reconstruction, the causal basis of discrimination could not be understood as linked only to a single ground. On the one hand, the Islamic headscarf ban could not be regarded as discrimination based solely on religion, since it does not affect all persons professing the Islamic faith, but only women. On the other hand, the ban in question could not even be considered as discrimination based solely on gender, since it does not affect female workers per se, but only women who adhere to Islam. In these cases, the discrimination would therefore result from the combination of two grounds, religion and gender, which would be inextricably linked. In this sense, the ban on wearing the Islamic headscarf should be considered as ‘intersectional’ discrimination. However, at present, the concept of intersectional discrimination has no place in the ECJ case law.20 The Court clearly excluded this type of discrimination in the Parris case.21 The case concerned the pension scheme granted by an Irish college to its employees. The scheme excluded the right to a survivor’s pension if the employee had entered into marriage, or a civil partnership, after the age of 60. Mr Parris had not been able to enter into a civil partnership with his partner before this age threshold, because until 2011 Ireland did not allow same-sex civil partnerships. He considered the exclusion of the right to the survivor’s pension to be unlawful, regarding that provision as discrimination based on sexual orientation or age or a combination of those two grounds. In this case, the ECJ ruled out the existence of sexual orientation discrimination and age discrimination. As to the question whether  EU Agency for Fundamental Rights and Council of Europe (2018), p. 63: ‘under EU law, while discrimination may indeed be based on several protected grounds, the CJEU considered that there could be no new category of discrimination consisting of the combination of more than one of those grounds’. 21  C-443/15, Parris, EU:C:2016:897. 20

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discrimination could arise from the interaction of those two factors, the Court held that ‘while discrimination may indeed be based on several of the grounds set out in Article 1 of Directive 2000/78, there is, however, no new category of discrimination resulting from the combination of more than one of those grounds, such as sexual orientation and age, that may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established’. The ECJ added that ‘where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’. 22 At present, the concept of intersectional discrimination is therefore not recognised in the ECJ case law and cannot be applied to the ban on wearing religious symbols. However, the absence of this concept does not create a gap in the protection of individuals, at least in the situations considered here. In fact, the ECJ has always assessed the ban in question as discrimination based on religion, understanding this concept according to the broad sense,23 resulting from the jurisprudence of the Strasbourg Court on Article  9  ECHR and the equivalent interpretation of Article 10(1) CFR.24 The ECJ has clarified that the concept of religion, within the meaning of Article 1 of Directive 2000/78, covers ‘both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public’.25 The ban on wearing religious symbols at work undoubtedly affects this second aspect of religious freedom. The ECJ also made it clear that, for the purposes of the application of Directive 2000/78, the terms religion and beliefs must be analysed ‘as two facets of the same single ground of discrimination’.26 They are therefore not two separate factors, but a single ground of discrimination, in the light of which the prohibition on wearing sign of political, philosophical or religious beliefs in the workplace must be assessed.

3.2 The Ban on Wearing Religious Symbols at Work: Direct or Indirect Discrimination? A further question to consider is whether an internal rule of an undertaking prohibiting workers to wear visible signs of political, philosophical or religious beliefs constitutes direct or indirect discrimination. In its case law, the Court of Justice has dealt with this issue extensively. The answer to this question has important

 Parris, paras 80 and 81.   C-157/15, G4S Secure Solutions, EU:C:2017:203, para 28, and C-188/15, Bougnaoui, EU:C:2017:204, para 30. 24  WABE and MH Müller Handel, para 81. 25  Ibid., para 45. See also G4S Secure Solutions, para 28, and Bougnaoui, para 29. 26  Ibid., para 47. 22 23

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consequences. As mentioned above, direct discrimination can only be justified by particular reasons clearly set out in EU legislation, whereas indirect discrimination can be justified where the measure in question is a proportionate means for achieving a legitimate aim. It must be said at the outset that the answer depends, first, on the way the employer formulates the ban on wearing religious symbols in the workplace. There is no doubt that an internal rule prohibiting only the wearing of the Islamic headscarf would constitute direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78. Such a rule would establish a difference in treatment based on a characteristic related to the Muslim religion and, thus, it would blatantly discriminate against employees professing that faith. However, so far, the ECJ has not been confronted with such blatant situations, which would have been easy to assess. In the cases it examined, the rules in question were formulated in a general way. In one case, the employer had prohibited the wearing of large-sized political, philosophical or religious signs; 27 in other cases, the employer had banned any such signs or symbols.28 Strictly speaking, the Court should have regarded prohibitions based on general categories as indirect discrimination. As seen above, Article  2(2)(b) of Directive 2000/78 concerns provisions, criteria and practices that are formulated in ‘apparently neutral’ terms. Consequently, the ban on wearing any religious symbol or general categories of religious symbols should fall within the definition of indirect discrimination. Instead, the ECJ approach was more rigorous. In WABE the Court ruled that ‘a prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified on the basis of’ Article 2(2)(b) of Directive 2000/78. The Court seems to start from the assumption that only certain religions require the wearing of a large-sized symbol.29 From the Court’s perspective, prohibiting only this category of signs means treating less favourably employees adhering to religions, such as Islam, that require the wearing of a head covering. In these cases, Muslim workers suffer therefore direct discrimination. The ECJ has limited the concept of indirect discrimination to cases where the prohibition imposed by the employer ‘covers all visible forms of expression of political, philosophical or religious beliefs’.30 The ban on wearing religious symbols at work can only be considered indirect discrimination if it is formulated in this general way. In such cases, the practice is apparently neutral, but may in fact entail a particular disadvantage for ‘female workers who wear a headscarf because of their Muslim faith’. Muslim women may be the category of workers most affected

 Ibid., esp. paras 72–78.  See G4S Secure Solutions. 29  WABE and MH Müller Handel, paras 72–73. See also C-344/20, S.C.R.L., EU:C:2022:774, para 31. 30  Ibid., para 78. 27 28

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by a rule prohibiting the use at work of any visible sign of political, philosophical or religious beliefs.31 However, it is for the national court, before which a dispute has been brought, to ascertain whether the rule in question particularly affects women who adhere to Islam.32 It follows from the above considerations that the ECJ followed a restrictive approach in classifying the ban of wearing religious symbols as direct or indirect discrimination. Thus, the limitation of the prohibition to certain categories of signs may be regarded as direct discrimination, whereas the prohibition of any symbol may give rise to indirect discrimination.

3.3 The Requirements of Legitimate Aim and Proportionality The ECJ case law has identified the legitimate aims that may justify an undertaking’s internal rule prohibiting the wearing of any political, philosophical or religious symbol. Furthermore, the Court specified when the measure in question can be considered appropriate and necessary under Article 2(2)(b) of Directive 2000/78. It is interesting to note that the Court has issued several rulings on this point, which have progressively limited the employer’s discretion. Particular mention should be made of the G4S Secure Solutions judgment of 14 March 2017,33 and the WABE judgment of 15 July 2021.34 The requirements set out in the first ruling were clarified, in an even more restrictive sense, in the second one.35 Recently, the ECJ issued the S.C.R.L. judgment, which confirms what the two previous decisions had already established. 36 In G4S Secure Solutions, the Court ruled that the employer’s desire ‘to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality’ is a legitimate aim capable of justifying a difference of treatment indirectly based on religion or belief. The Court emphasised that ‘an employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 CFR and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s

 Ibid., para 59.  Ibid., para 59. 33  G4S Secure Solutions. See Cloots (2018), p.  589; Hennette-Vauchez (2019), p.  105; RobinOlivier (2017), p. 201; Weiler (2019), p. 85. 34  WABE and MH Müller Handel. See Mulder (2022), p. 1501. 35  The WABE ruling clarified the previous position, developed in G4S Secure Solutions, which had been strongly criticized by the doctrine. Many authors have argued that in G4S Secure Solutions the proportionality test was inadequate and too deferential. See e.g. Weiler (2019), pp.  97 and 103-104, and Hennette-Vauchez (2019), p. 105. 36  S.C.R.L. 31 32

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customers’.37 The presentation of a neutral image of the employer vis-à-vis customers is therefore considered a legitimate aim within the meaning of Article 2(2)(b). In the subsequent WABE case, the ECJ identified a second legitimate aim—‘the prevention of social conflicts’ within the undertaking.38 An employer might decide to impose a ban on wearing political, philosophical or religious symbols to maintain a peaceful working environment.39 This last judgment is important in that it significantly limits the employer’s discretion. In fact, the ECJ specified that ‘the mere desire of an employer to pursue a policy of neutrality—while in itself a legitimate aim—is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief, since such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate’. 40 To establish the existence of a ‘genuine need’ account may be taken, on the one hand, of the ‘rights and legitimate wishes of customers or users’ and, on the other hand, of the ‘adverse consequences’ which the employer would suffer ‘in the absence of such a policy’.41 The Court emphasised that the employer’s demonstration of adverse effects is of ‘particular importance’ in assessing whether the ban on wearing religious symbols is justified under Article 2(2)(b).42 It follows from this ruling that a decision to adopt a policy of neutrality must be justified by a genuine need, which the employer must be able to prove. It seems correct to hold that the prohibition of wearing political, philosophical or religious signs is permissible only if the employer proves that, in the absence of such a policy, he would run a specific risk of a loss of income or the risk of specific disturbances within the undertaking. The burden of proof imposed by the WABE judgment is particularly difficult to satisfy. It severely restricts the cases in which the prohibition in question can be considered compatible with the EU law. Moreover, as stated above, the pursuit of a legitimate aim is not sufficient to justify indirect discrimination. Under Article 2(2)(b), the means for achieving that aim must be appropriate and necessary. On appropriateness, in G4S Secure Solutions, the Court ruled that ‘the fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner’. In other words, it must be a ‘general and undifferentiated policy’, established in advance and applied consistently by the employer.43 If applied arbitrarily, a policy of neutrality cannot be considered appropriate under Article 2(2)(b). In WABE, the ECJ reiterated this position.44  G4S Secure Solutions, paras 37 and 38, and WABE and MH Müller Handel, para 63.  WABE and MH Müller Handel, paras 75–76. 39  Opinion of A.G. Sharpston in Bougnaoui and ADDH, para 116. 40  WABE and MH Müller Handel, para 64. 41  Ibid., paras 64–67 and 76. 42  Ibid., para 67. 43  G4S Secure Solutions, paras 40 and 41. 44  WABE and MH Müller Handel, para 77. 37 38

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Finally, on the condition of necessity laid down by Directive 2000/78, the Court made it clear that the prohibition on wearing political, philosophical or religious symbols at work satisfies this condition if the prohibition ‘covers only (…) workers who interact with customers’.45 The ECJ added that if an employee refuses to remove her Islamic headscarf when carrying out her professional duties for customers, the employer must consider whether, ‘taking into account the inherent constraints to which the undertaking is subject, and without [the undertaking] being required to take on an additional burden’, it is possible, ‘faced with such a refusal, to offer her a post not involving any visual contact with those customers, instead of dismissing her’.46 Put it otherwise, if it is possible and does not entail an additional burden, the employer must seek a reasonable accommodation, e.g. by assigning another task to the employee. More generally, it seems correct to hold that the employer and the employee must evaluate the possible options together to find a solution that accommodates both the employee’s right to manifest her religious beliefs and the employer’s right to conduct his business.47 In other words, dismissal represents the last option. In addition, it seems fair to assume that the scope of the duty of reasonable accommodation may vary depending on the size of the undertaking concerned. Indeed, a larger company is likely to have more resources, allowing it to be flexible in allocating the tasks. Thus, ‘an employer in a large undertaking can be expected to take greater steps to make a reasonable accommodation with his workforce than an employer in a small or medium-sized one’.48 It emerges from the above considerations that the approach developed by the ECJ is very restrictive. Indeed, the scope for imposing a ban on wearing political, philosophical or religious symbols in the workplace is very narrow. In summary, the prohibition must be generalised; it must pursue a legitimate aim, such as the presentation of a neutral image of the employer vis-à-vis customers or the prevention of social conflicts within the undertaking; it must be based on a genuine need on the part of that employer, which the latter is obliged to prove; it must be applied in a consistent and systematic manner; if the prohibition is violated and the employee refuses to remove his religious symbol, before the dismissal, the employer must consider whether it is possible to offer him a post that does not involve any visual contact with customers. However, one aspect deserves special attention. It is important to emphasise that sometimes the risk of losing customers or tensions between workers do not result, per se, from the wearing of a religious symbol, but rather from people’s intolerance. In our opinion, the Court should make it clear that, even if applied consistently and systematically, a ban on wearing religious symbols at work can never be justified if the decision to impose it arises from discriminatory requirements on the part of

 G4S Secure Solutions, para 42.  Ibid., para 43. See also WABE and MH Müller Handel, para 68. 47  Opinion of A.G. Sharpston in Bougnaoui, paras 128 and 133. 48  Ibid., para 125. 45 46

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customers or intolerance on the part of other employees. 49 In other words, the ECJ should clearly state that it is the duty of every person, including employers, to contribute to the creation of a society in which, as Article 2 TEU proclaims, ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. Prejudices or discriminatory attitudes cannot be the reason for the introduction of neutrality policies in a company. This should always be kept in mind when assessing the compatibility with the EU law of a ban on wearing religious symbols in the workplace.

4 Exceptions to the Prohibition of Discrimination: Can a Characteristic Related to Religion Be a Genuine and Determining Occupational Requirement? Directive 2000/78 contains numerous exceptions to the prohibition of discrimination on the grounds set out in Article 1. As mentioned above, exceptions are particularly relevant in relation to direct discrimination. Indeed, the only objectives that can be invoked to justify it are those expressly provided for by the EU law. On discrimination on the grounds of religion or belief, it is important to mention two provisions of Directive 2000/78: Article 4(1), which we will consider in this Section, and Article 4(2), which we will examine in the following one. As noted above, Article 4(1) states that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article  1 (which includes religion and belief) will not amount to discrimination ‘where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’. A similar derogation is provided for by other directives concerning gender equality50 and discrimination on grounds of racial and ethnic origin.51 So far, the ECJ case law has considered the derogation of Article 4(1) mainly in cases where the persons concerned complained about discrimination based on age. The Court was called upon to assess the compatibility with the EU law of national legislation setting a maximum age for recruitment in the fire

 WABE and MH Müller Handel, para 66.  See Article 2(2) of Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (no longer in force) and Article 14(2) of Directive 2006/54/ EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). See judgments in Johnston; C-273/97, Sirdar, EU:C:1999:523; C-285/98, Kreil, EU:C:2000:2. 51  Article 4 of Directive 2000/43. 49 50

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brigade,52 municipal police force53 and police force,54 and for the exercise of the profession of pilot.55 In two cases, Article 4(1) was applied to discrimination based on disability.56 Besides that, the Court has interpreted the latter provision in a case concerning discrimination based on religion or belief, namely the Bougnaoui case.57 In this case, a Muslim employee was dismissed because she refused to remove her headscarf when in contact with customers. The dismissal followed a customer’s request not to have services provided by a worker wearing an Islamic headscarf. It was not clear whether the dismissal was based on a general policy of neutrality, previously established by the employer, or on an individual decision concerning Ms Bougnaoui. The Court entrusted the referring court with the task of establishing the facts.58 This assessment was essential to understand whether the employer’s decision constituted indirect or direct discrimination. In the latter case, the question arose whether the dismissal could be justified under Article 4(1) of Directive 2000/78. More precisely, the referring court asked the ECJ ‘whether the willingness of an employer to take account of a customer’s wish no longer to have services provided by a worker who, like Ms Bougnaoui, has been assigned to that customer by the employer and who wears an Islamic headscarf constitutes a genuine and determining occupational requirement’ within the meaning of the aforementioned provision.59 The Court’s answer was negative. It ruled that the concept of a ‘genuine and determining occupational requirement’ refers ‘to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out’. The ECJ added that ‘it cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer’.60 The Court’s decision was very clear. Article 4(1) refers to objective circumstances. Consequently, the employer’s willingness to accommodate the discriminatory demands of the costumers does not constitute a justification under this provision. Moreover, the ECJ provided general guidance on the applicability of Article 4(1) in cases where a person’s right to freedom of religion comes into conflict with the freedom to conduct a business and with the management power of the employer. The Court held that ‘in accordance with recital 23 of Directive 2000/78, it is only in very limited circumstances that a characteristic related, in particular, to religion may

 C-229/08, Wolf, EU:C:2010:3.  C-416/13, Vital Pérez, EU:C:2014:2371. 54  C-258/15, Salaberria, EU:C:2016:873, and C-304/21, Ministero dell’Interno, EU:C:2022:897. 55  C-447/09, Prigge and others, EU:C:2011:573. 56  C-795/19, Tartu Vangla, EU:C:2021:606, and C-824/19, Komisia za zashtita ot diskriminatsia, EU:C:2021:862. 57  See Bougnaoui. 58  Ibid., para 32. 59  Ibid., para 34. 60  Ibid., para 40. 52 53

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constitute a genuine and determining occupational requirement’.61 The ECJ went no further. The question that then arises is when the derogation applies to the prohibition of discrimination based on religion or belief. To start with, there is no doubt that in some cases the protection of the worker health and safety precludes the wearing of certain garments, even if they are of a political, philosophical or religious nature. Thus, for example, an employer might ask an employee, who works on a potentially dangerous factory machinery, not to wear a headscarf, which could raise serious safety concerns; or, again, an employer might ask a Sikh worker to wear a protective helmet, and thus to remove the dastar (or turban) during operations that require this safety device.62 In these cases, however, the provision justifying the action taken by the employer would not be Article 4(1), but rather Article 2(5), which provides that Directive 2000/78 ‘shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others’. In other words, the relevant derogation in these cases is not that of the genuine and determining occupational requirement, but that aimed at protecting health and safety. Thus, the question of what are the ‘very limited circumstances’ in which a characteristic related to religion or belief may be relevant under Article 4(1) remains open. It is not easy to give examples in this regard. In a society characterised by tolerance and non-discrimination, a characteristic related to these factors should not be considered a genuine and determining occupational requirement.63 As a matter of principle, as long as a worker meets the requirements to perform the assigned tasks, the professed faith or ideology should be completely irrelevant. A more complex assessment is however required in the context of organisations, such as churches, religious institutions, political parties and trade unions, that share a particular belief system. In the following section, we will examine Article  4(2), which concerns this issue.

 Ibid., para 38. Recital 23 of Directive 2000/78 states that ‘in very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission’. 62  Opinion of A.G. Sharpston in Bougnaoui, para 99. 63  Ibid., para 99. 61

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5 Religious Freedom and ‘Faith-Based Employers’ Article 4(2) recognises the right of churches and other public or private organisations, the ethos of which is based on religion or belief, to require individuals working for them ‘to act in good faith and with loyalty to the organisation’s ethos’.64 Furthermore, in the case of occupational activities within these organisations, the provision allows Member States to maintain, or enact, rules pursuant to which ‘a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’.65 The objective of this provision is to ensure a ‘fair balance’ between, on the one hand, the ‘right of autonomy’ of churches and other faith-based organisations, recognised by Article 17 TFEU and Article 10 CFR, and, on the other hand, the right of workers not to be discriminated against on grounds of religion or belief. Article 4(2) sets out the criteria to be taken into account to carry out this balancing exercise, in cases where ‘those rights may clash’.66 The ECJ interpreted this provision in the Egenberger and IR cases. The first case concerned a job offer published by a German Evangelical Church to find a person to be employed in the drafting of a study on fundamental rights. The advertisement required membership of a Protestant church. Ms Egenberger’s application, which stated that she did not belong to any religious community, was not considered. The second case originated from the dismissal of a doctor employed by a hospital run by a German Catholic institution. The dismissal took place after the doctor had divorced his first wife and married again in a civil ceremony. First, in Egenberger and IR, the question was whether a faith-based employer could independently assess and balance the right of autonomy, which protects the right of religious institutions to govern themselves (including the right to select their members and choose their employees) with the right of workers not to be discriminated against based on religion or belief. The issue was very sensitive because the case law of the Bundesverfassungsgericht had established a ‘privilege of self-­ determination’ for churches. In other words, they could independently identify ‘activities close to proclamation of the church’s message’, which could be reserved for church members, and ‘activities remote from proclamation of the church’s message’ which were potentially open to everyone without discrimination. In accordance with this case law, the judicial review of church decisions should be limited to a review of plausibility.67

 Article 4(2), second subparagraph, Directive 2000/78.  Ibid., first subparagraph. See also recital 24. 66  Egenberger, para 51. 67  Ibid., para 31. 64 65

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The ECJ’s answer was clear—‘it must be possible for the balancing exercise to be the subject if need be of review by an independent authority, and ultimately by a national court’.68 The Court added that if the review of compliance with the criteria laid down in Article 4(2) were ‘the task not of an independent authority such as a national court but of the church or organisation intending to practise a difference of treatment on grounds of religion or belief, it would be deprived of effect’.69 In the event of a dispute, national courts can therefore review a decision of a faith-based employer, either when it consists, as in the Egenberger case, in rejecting an application for employment or, as in the IR case, in dismissing an employee.70 The judicial review must consider the guidance provided by the ECJ case law. As a preliminary point, the Court ruled that the lawfulness ‘of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned’. The Court added that ‘such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world’.71 This point is very important as it clarifies that autonomy of churches and other faith-based organisations must be graduated according to the work activity in question. What can be imposed on a representative of the organisation is not the same as what can be imposed, for example, on an accountant or cleaner, since the degree to which these workers are involved in determining and proclaiming the organisation’s values is different. Furthermore, it is necessary to consider the context. Private behaviour contrary to the organisation’s ethics may be irrelevant; public statements, on the other hand, may be detrimental to the organisation, particularly if made by employees with representative functions. The power to set requirements, related to the organisation’s ethos, should therefore vary depending on whether they concern the private lives of employees or the statements they may publicly make. The nature of the activity and the context in which it is carried out are decisive factors, which must be assessed on a case-by-case basis. Having said that, the ECJ has interpreted the concept of ‘genuine, legitimate and justified occupational requirement’ enshrined in Article  4(2) in restrictive terms. First, on the genuine nature of the requirement, the Court held that ‘in the mind of the EU legislature, professing the religion or belief on which the ethos of the church or organisation is founded must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise

 Ibid., para 53, and IR, paras 43 and 47.  Egenberger, para 46. 70  IR, paras 43, 45 and 46. 71  Egenberger, para 63, and IR, para 50. 68 69

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by the church or organisation of its right of autonomy’.72 Therefore, the requirement imposed by the employer must be evaluated in light of the employee’s role in the organisation and his or her contribution to determining and promoting the organisation’s values. Here again, the link between the occupational requirement in question and the activity concerned is of great importance in assessing the lawfulness of the employer’s decision. Second, on the legitimate nature of the requirement, the Court ruled that it is necessary to verify that ‘the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy’. 73 The employer cannot therefore use religion or ethics as a pretext to achieve objectives, for instance of an economic nature, that have nothing to do with the organisation’s autonomy. Finally, on the justified nature of the requirement, the Court pointed out that ‘the church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary’. Although Article 4(2) does not expressly mention the principle of proportionality, national courts must ascertain whether the requirement in question is ‘appropriate and does not go beyond what is necessary for attaining the objective pursued’.74 It follows from the ECJ case law that the right of churches and other faith-based organisations to select their employees based on religion and belief is limited. The requirement of professing the religion or belief on which the ethos of the church or organisation is founded may only be imposed if this is necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy. In the event of a dispute, national courts can review a decision of a faith-based employer, either when it consists in rejecting an application for employment or in dismissing an employee.

6 Conclusions The assessment of discrimination in respect of religion and belief, in the context of labour relations, involves a balancing exercise between fundamental rights and principles. The freedom of thought, conscience and religion is balanced against the freedom to conduct a business. The right of autonomy of churches and other faith-­ based organisations is balanced against the principle of non-discrimination.

 Egenberger, para 65, and IR, para 51.  Egenberger, para 66, and IR, para 52. 74  Egenberger, paras 67 and 68, and IR, paras 53 and 54. 72 73

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The outcome of this balancing process may vary from case to case and may change over time. It has an impact on the overall configuration of the system, either in a direction that better protects individual freedom and pluralism or in a direction that emphasises the secularity of the State and neutrality policies. This study showed that, in the ECJ case law, the religious freedom of workers takes priority over the management power of the employer, and so does the principle of equal treatment over the right of religious institutions to govern themselves and choose their employees. The Court followed a restrictive approach in classifying the ban on wearing religious symbols at work as direct or indirect discrimination. Indeed, the Court limited the concept of indirect discrimination to cases where the employer’s prohibition covered all visible forms of expression of political, philosophical or religious beliefs, whilst the limitation of the prohibition to certain categories of signs was considered direct discrimination. The ECJ case law has identified the legitimate aims that may justify an undertaking’s internal rule prohibiting the wearing of any political, philosophical or religious symbol and specified when the measure in question can be considered appropriate and necessary. The scope for imposing such a ban is very narrow. The prohibition must be generalised; it must pursue a legitimate aim, such as the presentation of a neutral image of the employer vis-à-vis customers or the prevention of social conflicts within the undertaking; it must be based on a genuine need on the part of that employer, which the latter is obliged to prove; it must be applied in a consistent and systematic manner; if the prohibition is violated and the employee refuses to remove his religious symbol, before the dismissal, the employer must consider whether it is possible to offer him a post that does not involve any visual contact with customers. However, the Court should make it clear that, even if applied consistently and systematically, a ban on wearing religious symbols at work can never be justified if the decision to impose it arises from discriminatory requirements on the part of customers or intolerance on the part of other employees. The Court did not clarify in which cases a characteristic related to religion can be considered a genuine and determining occupational requirement. It merely stated that this could happen in very limited circumstances. It is not easy to give examples of such situations. In a society characterised by tolerance and non-discrimination, a characteristic related to religion or belief should not be considered a genuine and determining occupational requirement. As a matter of principle, if a worker meets the requirements to perform the assigned tasks, the professed faith or ideology should be completely irrelevant. Finally, it follows from the ECJ case law that the right of churches and other faith-based organisations to select their employees based on religion and belief is limited. The requirement of professing the religion or belief on which the ethos of the church or organisation is founded must be evaluated in light of the employee’s role in the organisation and his or her contribution to determining and promoting the organisation’s values. The link between the occupational requirement in question and the activity concerned is of great importance in assessing the lawfulness of the employer’s decision.

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Law from the University of Trieste. He teaches EU Law at the Specialisation School for Legal Professions in Padua. He is a member of the Academic Board of the PhD in Public Law at the University of Rome ‘Tor Vergata’. He is also a member of the Coordination Committee of the Journal ‘Il Diritto dell’Unione Europea’ of the Executive Council of AISDUE (Italian Association of EU Law Scholars), and of the Scientific Committee of blogDUE. Previously, he worked as a law clerk at the Court of Justice of the European Communities (2002–2007), a lawyer for an Italian law firm (2008–2012), and an expert for the European Committee of the Regions (2019–2020).

Jus Migrandi and Personal Beliefs of Migrants Coming from Third States: Practice from the EU Asylum Policy Francesco Cherubini and Tommaso Pochi

Abstract  The chapter aims to analyse, both from a theoretical and practical point of view, the current situation of the migration and refugee law, in connection with the main issue of religion and personal beliefs, within the EU. To accomplish this task, we use several analytic tools, such as an evolutionary-historical approach, an in-depth introspective look into the main legal sources, expired, reformed and currently in force, and a specific attention on the most important case law on this issue. We also managed to better understand the evolution of law and the position of the main judiciary instrument of the EU—the ECJ—through a comparative analysis with the international and national jurisprudence which, often enough, has shown to influence—or be influenced by—the European one. Keywords  European Union · Refugee law · Migrations · Religious persecution · Personal beliefs · Credibility assessment · Sur place conversion

Paras 1–2 have to be attributed to Francesco Cherubini, while paras 3–6 have to be attributed to Tommaso Pochi. F. Cherubini · T. Pochi (*) LUISS Guido Carli, Roma, Italy e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_11

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1 International Protection Within the EU The Treaty of Rome, establishing the European Economic Community (EEC, 1957), contained no provisions connected to international protection,1 nor did any of secondary law, with just one very marginal exception. 2 A more effective means of tackling the problem of asylum as part of the completion of the single market was only developed some years later, when the dismantling of internal borders made it necessary to harmonise foreign policy, including policy on asylum. The main obstacle to the assignment of such competences to the Community was the firm opposition of some Member States: Ireland and the United Kingdom (later joined by Greece) were particularly against abolishing internal border controls, and so was Denmark, as a member of the Nordic Passport Union. Since the consent of these countries was necessary to revise the Treaty, those Member States willing to further develop their cooperation in asylum matters were obliged to do it outside the framework of the Community law. After the lorry drivers protest in the spring of 1984 against delays caused by border controls, Germany and France used an old pact3 as the basis for the Saarbrücken Agreement progressively dismantling controls at their common borders.4 Shortly afterwards, the Netherlands (with which Germany was in negotiations to facilitate the transportation of goods) joined in the arrangements, along with Belgium and Luxembourg as part of the same economic and customs union (Benelux). The five States then signed on 14 June 1985, at Schengen, a general  International protection includes two possible scenarios: the first one, refugee status, refers to the 1951 Geneva Convention and tends to protect individuals fleeing particularly ‘qualified’ persecutions; the second, subsidiary protection, is based on a more generic risk of serious violations of fundamental rights and due to the case law of the European Court of Human Rights, beginning with the pivotal Soering v. United Kingdom case, 14038/88, 7 July 1989. Today it finds codification in Article 15 of Qualification Directive of the European Parliament and of the Council (2011/95/ EU, 13 December 2011, laying down rules on the conferral, on third-country nationals or stateless persons as beneficiaries of international protection, on a uniform status for refugees or for persons eligible for subsidiary protection, and on the on the content of the protection granted). 2  Article 4(1) of Council Regulation 3/1958 on the application of social security schemes to migrant workers, 16 December 1958, extended its benefits ‘to workers who are or have been subject to the legislation of one or more Member States and who are […] refugees residing within the territory of one of the Member States, as also to the members of their families and their survivors’ (emphasis added). This Regulation was based on Articles 227 and 51 TEEC which entrusted the Council, in matters of social security, with the power to adopt ‘measures required to bring about freedom of movement for workers’. The impact on refugees was however very limited: Regulation No. 3 could not apply to situations that were exclusively national, a circumstance that was bound to arise often as EEC law did not grant, and the Refugee Convention still does not recognise, any right of refugees to freedom of movement as workers in the territory of Member States other than the receiving country. 3  Convention relative aux bureaux de contrôles nationaux juxtaposés aux gares communes ou d’échange à la frontière franco-allemande, adopted in Paris, 18 April 1958. 4  Accord relatif à la suppression graduelle des contrôles à la frontière franco-allemande, adopted in Saarbrücken, 13 July 1984. 1

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agreement to progressively dismantle controls at their common frontiers.5 The Agreement confirmed the connection between the establishment of the single market, an essential element of which was the free movement of people, goods, services and capital, and the harmonisation of controls at external borders, which required a common policy on the entry of third-country nationals, including asylum-seekers.6 The consequences of the commitments entered into under the Agreement were set out in the Schengen Implementation Convention (SIC), again signed in Schengen on 19 June 1990.7 The abolition of these checks determined the creation of a common external border, calling for a system that clearly identified the State that, at least in the common Schengen Area, should take charge of asylum applications. The concern of States party to the Schengen Area was that asylum seekers, abusing the shift in controls to the common external border, would end up moving freely within the Area, repeatedly submitting their applications until finding a more benevolent State. In a word, the fear was founded on so-called secondary movements or ‘asylum shopping’. Thus, Chapter 7 of the SIC (Articles 28–38) laid down the rules for identifying the State responsible for processing asylum applications; and Article 30 particularly prioritised the criterion of the applicant’s proximity to the State issuing the visa or, failing that, to the State that had permitted first illegal entry. These provisions represent the first building block of future Community legislation on asylum. The SIC, as an external instrument, would apply, together with the whole Schengen acquis, until entry into force of the Treaty of Amsterdam (1999), and indeed beyond.8 The ‘communitarized’ rules were then gradually replaced or amended by the developments of the Schengen System, now part of the EU law.9 Asylum rules were the first to cease to apply as a result of the Dublin Convention:  Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, adopted in Schengen, 14 June 1985. 6  See, e.g. its Article 17, which states that ‘the Parties shall endeavour to abolish checks at common borders and transfer them to their external borders’, (emphasis added) and, following on from it, Article 20, according to which the Parties ‘[i]n so far as is necessary, […] shall also prepare the harmonisation of their rules governing certain aspects of the law on aliens in regard to nationals of States that are not members of the European Communities’. Fridegotto (1992), p. 40, recounts the colourful metaphor used by the President of the Executive Committee set up under the Convention Implementing the Schengen Agreement, that the aim was to move the entry checks from the door of the apartment to the door of the building. 7  Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the gradual abolition of checks at their common borders (‘Schengen Implementation Convention’). 8  It should be borne in mind that some of the rules of the Convention still apply as international law (i.e. outside the EU law) to relations between the Schengen States and Denmark: this is laid down in Protocol No. 22 to the Treaties, read in the light of its earlier version annexed to the Treaty of Amsterdam. 9  Unfortunately, there is no consolidated version of the SIC. These should be the provisions still into force, as EU rules: Articles 1, 19, 26, 39, 41–46, 48, 51, 54–58, 67–69, 71–72, 75, 76, 82, 91, 126–130, and 138; while Articles 18–24, 40, 47 and 49 were amended. 5

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Articles 28–38 entered into force, together with the whole SIC, for only a few States10 on 26 March 1995 and only lasted until 1 September 1997.11 From a substantive point of view, the Dublin Convention replicated the reasoning of the SIC, including maintaining the rule of the country of first illegal entry,12 introducing only a timid novelty on the issue of family reunification.13 Even before the ‘Copernican revolution’,14 represented by the ‘communitarization’ of asylum (and immigration) policies which took place with the Treaty of Amsterdam, a very weak intergovernmental cooperation was set up by the Treaty of Maastricht (1993). The latter introduced an asylum policy in the Union’s soft competences (the Third Pillar, ‘Justice and Home Affairs’),15 without producing particularly significant results.16 The lack of decisiveness was due to the persistent opposition of some Member States to deepening EU cooperation in these matters: the recalcitrant countries accepted this however hesitant step only on condition that the Community method was renounced. And indeed, a similar price was destined to be paid with the Treaty of Amsterdam: with it, the said policies were assigned to an (almost17) fully communitarian method, but Member States opposing this choice— always the same ones (Denmark, Ireland and the UK)—were left out with a complex system of differentiated application.

 Belgium, France, Germany, Luxembourg, Netherlands, Portugal and Spain. These two latter States acceded to the Schengen Agreements with the Bonn Convention (25 June 1991). 11  As the Dublin Convention had the same scope as Articles 28–38 of the SIC and not all the States parties to the first were also parties to the second, a Protocol was signed in Bonn (26 April 1995) establishing that the relevant provisions of the Convention would be replaced by those of the Dublin Convention as soon as it came into force. 12  Article 6 reads: ‘[w]hen it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-member State of the European Communities, the Member State this entered shall be responsible for examining the application for asylum. That State shall cease to be responsible, however, if it is proved that the applicant has been living in the Member State where the application for asylum was made at least six months before making his application for asylum. In that case it is the latter Member State which is responsible for examining the application for asylum’. 13  See Article 4. 14  Hailbronner (1998), p. 1047. 15  Article K.1 TEU stated that, ‘[f]or the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest: 1. asylum policy […]’. 16  Council Resolution of 20 June 1995 on minimum guarantees for asylum procedures, 19 September 1996, for its analysis, see Boeles and Terlouw (1997), p. 472, and Joint position 96/196/ JHA of 4 March 1996, defined by the Council based on Article K.3 of the Treaty on European Union on the harmonised application of the definition of the term ‘refugee’ in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees. 17  Especially in terms of procedures for adopting secondary legislation, and a surgical amputation of the competences of the ECJ. See ex multis Steenbergen (1999), Albors-Llorens (1998). 10

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The broader scope of the Union’s new competences was clear in the wording of Article 63(1) TEC,18 which not only included a legal basis for the Dublin rules in the strict sense, but also extended the System to cover the conditions for their application. In fact, the pre-Amsterdam Dublin System offered a single response to asylum applications (that of the Member State responsible), implicitly assuming a certain degree of uniformity of national asylum systems. But this uniformity was clearly almost non-existent, since the only elements capable of ‘tightening the ranks’ were quite distant from national systems and therefore unable to provide an acceptable degree of uniformity.19 In this way, the Dublin System was embedded in the wider Common European Asylum System (CEAS). The post-Amsterdam Package was adopted over the following five years20 and included: the Dublin II Regulation;21 the Eurodac Regulation;22 the Reception Directive;23 the Family Reunification Directive;24 the Long-term Residents Directive;25 and the Qualification Directive.26 The picture would be completed only in 2005, with the adoption of the Procedures Directive, after (more) complicated negotiations.27 The Treaty of Lisbon, which entered into force on 1 December 2009,28 definitively communitarised the field of asylum. Particularly, it introduced some radical  ‘The Council […] shall […] adopt: 1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas: (a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States, (b) minimum standards on the reception of asylum seekers in Member States, (c) minimum standards with respect to the qualification of nationals of third countries as refugees, (d) minimum standards on procedures in Member States for granting or withdrawing refugee status […]’. 19  The 1951 Refugee Convention and its 1967 Protocol, obviously, and, to a certain extent, the ECHR and the case law of its own Court of Strasbourg. 20  The same Article 63 TEC gave to the Council this deadline. 21  Council Regulation (EC) No. 343/2003 (18 February 2003) establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. 22  Council Regulation (EC) No. 2725/2000 (11 December 2000) concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention. 23  Council Directive 2003/9/EC (27 January 2003) laying down minimum standards for the reception of asylum-seekers. 24  Council Directive 2003/86/EC (22 September 2003) on the right to family reunification. 25  Council Directive 2003/109/EC (25 November 2003) concerning the status of third-country nationals who are long-term residents. 26  Council Directive 2004/83/EC (29 April 2004) on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection grants. 27  Council Directive 2005/85/EC (1 December 2005) on minimum standards on procedures in Member States for granting and withdrawing refugee status. 28  Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed Lisbon, 13 December 2007. 18

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changes to the aspects that diverged from the Community method. It also eliminated the Third Pillar (previously Title VI TEU) and incorporated police and judicial cooperation in criminal matters within a new Title V of the Treaty on the Functioning of the European Union (TFEU), uniting these competences with those for visas, asylum and immigration. The new legal basis for asylum measures is Article 78 TFEU.29 The new wording of this provision followed the launch, even before the Treaty of Lisbon, of a second phase of European policy on asylum after the one inaugurated by the European Council of Tampere in the wake of the provisions introduced by the Treaty of Amsterdam. This phase was known as the Hague Programme, which among other things indicated as objective of the second phase the creation of a uniform status for refugees and persons under international protection. The Programme was followed by an Action Plan,30 in which the Commission and the Council set out the objectives already achieved, including the approval of the Procedures Directive,31 and confirmed that the second-phase measures would be adopted by the end of 2010. The Commission then sent a communication to the Council and the Parliament on the implementation of the Programme,32 in which it specified the deadlines for the single activities set out in the Programme and the Action Plan: evaluation of the existing legislative framework resulting from the first phase, and a Green Paper and Policy Plan on asylum policy detailing the steps of the second phase of completion of the Common European Asylum System (CEAS). On  ‘1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising: (a) a uniform status of asylum for nationals of third countries, valid throughout the Union; (b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection; (c) a common system of temporary protection for displaced persons in the event of a massive inflow; (d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status; (e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection; (f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection; (g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection’. Article 78 also has a para 3, which represents the evolution of the then Article 64(2) TEC: ‘[i]n the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament’. 30  Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union, 12 August 2005. 31  See ft. 27. 32  Communication from the Commission to the Council and the European Parliament of 28 June 2006 – Implementing the Hague Programme: The Way Forward, COM (2006) 331 final. 29

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the first activity, the Commission would present general evaluations on the adoption of a common system and some evaluations on the application of individual acts in the Member States. While the findings of the latter evaluations were on balance positive,33 the opinion expressed by the Commission in its various evaluations on the implementation of the Hague Programme was not. In the first report dated 2006,34 the general situation was found to be not entirely satisfactory, although the first phase had been completed with the adoption of the Procedures Directive. In the meantime, the Green Paper on a common asylum system was also adopted. Its enormous political importance resided in the fact that the Commission detailed the work to be carried out in respect of existing legislation by the deadline (at that time) of 2010. After gathering the results, the Commission drew up a policy plan35 containing concrete proposals based on a monitoring of the application of existing legislation. In view of the imminent reform that would be brought about by the Treaty of Lisbon, the Commission decided to postpone adopting the proposals, possibly until 2012;36 they consisted in a partial recasting of existing legislation, especially Directive 2003/9 on reception, Directive 2005/85 on procedures, Directive 2004/83 on qualification, and the Dublin system comprising Dublin II and Eurodac. The Action Plan has been implemented soon after. Given that the Treaty of Lisbon entered into force at the same time, all the measures envisaged are now part of the new system, and hence they have their legal basis in Article 78 TFEU. Thus, the Action Plan has been implemented according to the ordinary legislative procedure, in which the European Parliament plays a much greater role than in the past. Following the adoption of the amendments to the Directive on long-term residence,37 which had long been pending, the Council and the European Parliament have adopted the new Asylum Package, represented by the recast Qualification,38

 See, respectively, the Report from the Commission to the European Parliament and the Council on the evaluation of the Dublin system of 6 June 2007, COM (2007) 299 final, and the Report from the Commission to the Council and the European Parliament on the application of Council Directive 2003/9/EC, COM (2007) 745 final. 34  Communication from the Commission to the Council and the European Parliament of 28 June 2006 – Report on the implementation of the Hague Programme for 2005, COM (2006) 333 final. 35  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 17 June 2008 - Policy Plan on Asylum: an integrated approach to protection across the EU, COM (2008) 360 final. 36  See the European Pact on Immigration and Asylum (Doc. 13440/08) attached to the Conclusions of the Presidency of the Brussels European Council of 15 and 16 October 2008. 37  Directive 2011/51/EU of the European Parliament and the Council of 11 May 2011 amending Council Directive 2003/109/EC extending its scope to beneficiaries of international protection. 38  Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. 33

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Reception,39 Procedures40 Directives and the new Dublin system.41 Precisely, the new Qualification Directive envisages the rules linking religion with international protection.

2 The Relationship Between Religion and International Protection The link between religion and international protection is in Article 2(d) of the Qualification Directive. It reproduces verbatim Article 1(A)(2) of the 1951 Geneva Convention relating to the status of refugees, which identifies the individuals to whom its protection is addressed in ‘any person who: […] [a]s a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, does not wish to owing to such fear, is unwilling to avail himself/herself of the protection of that or who, not having a nationality and being outside the country in which of previous habitual residence as a result of such events, is not able to or, owing to such fear, is unwilling to return to it’. 42 As can be seen, the relevance of religion in the context of one of the two aspects of international protection (the refugee status) is in the grounds of possible persecution: the Convention clearly separates conducts that infringes a person’s fundamental rights by drawing a line beyond which there is no entitlement to status. Therefore, religion has, together with the other four grounds, this function: thanks to this

 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection. 40  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 41  Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (‘Dublin III’), which replaced, from 1 January 2014, Dublin II Regulation. For the Eurodac system, see Regulation (EU) 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) 1077/2011 establishing a European Agency for the operational management of large-scale systems in the area of freedom, security and justice. 42  Emphasis added. In this regard, see also Chapter ‘Personal Beliefs and Risk of Danger in Case of Return to the Origin Country’ of this volume. 39

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so-called nexus clause, it divides potential persecutions, selecting those relevant to the application of the Convention. The so-called racial laws, adopted by Italy from 1938 onwards, are a very good example of persecutions grounded on religious reasons: they introduced clearly discriminatory restrictions, together with more blatant violations of fundamental rights, to the detriment of individuals of the Jewish ‘race’. Such as Royal Decree No. 1728 of 17 November 1938 which linked belonging to the Jewish race to various consequences, including: the prohibition to marry an Italian citizen of the Aryan race (Article 1); the impossibility of taking ownership or management of companies with one hundred or more employees (Article 10C); the deprivation of parental authority over children belonging to a religion other than the Jewish religion (Article 11); the exclusion from any office or employment in schools of all levels, both public and private, attended by Italian pupils—schools where, moreover, no pupils of the Jewish race could be enrolled (Articles 1 and 3 of Royal Decree No. 1779 of 15 November 1938). A further relationship between religion and refugee status is more hidden in the folds of Article 2(d) of the Qualification Directive (and, upstream, in the Geneva Convention): the various fundamental rights subject to grounded persecutions— rights, therefore, deserving of conventional protection—may include those declinations of the religious phenomenon that fall under the name of religious freedom.43 Without prejudice to the fact that the grounds must remain those indicated by the Convention, it would however be possible to imagine that one of the target of persecution in the refugee’s country of origin is precisely religious freedom, with rules and practices varying from country to country: some aimed at preventing or hindering the adoption and/or abandonment of a religious belief;44 some others to limit the manifestation of a religion such as primarily prayer, which includes the display of religious symbols, respect for sacred festivities etc.45 In such cases, anyway, the link between possible persecution and religious freedom must be particularly solid for the Convention to take it into consideration: according to authoritative literature,46 the existence of persecution must be modulated, in fact, based on the target of the possible violation. In other words, while a single act of torture might already  See Goodwin-Gill and McAdam (2007), p. 93. More in general, Grahl-Madsen (1966), p. 193 ss.; Zimmermann and Mahler (2011), p. 353; Hathaway and Foster (2014), p. 262 ff. 44  See Interim Report of the Special Rapporteur on Freedom of Religion or Belief, UN Doc. A/67/303, 13 August 2012. 45  See Human Rights Committee, General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), UN Doc. CCPR/C/21Rev.1/Add.4, 27 September 1993. 46  The question relates to the seriousness of the violation, since not just any potential violation is sufficient to integrate the hypothesis of persecution: according to Zimmermann and Mahler (2011), p. 354, ‘[s]ince […] any human rights violation might, at least as a matter of principle, lead to refugee status, it is the severity of the human rights violation that is of crucial importance. Said severity has to be determined on a case-by-case basis for each different right and with regard to the effect on the particular person. However, it is obvious that violations of some rights might more easily substantiate a refugee claim than others. In particular, much difficulty still arises with regard to social, economic, and cultural rights’. 43

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c­ onstitute persecution, since what is at stake are rights deserving of absolute protection (human dignity and physical integrity),47 a more systematic pattern of violations of religious freedom will be necessary to be persecution. As far as these two intersections between refugee status and religion are concerned, one premise and two observations must be made. Starting from the premise: the potentially harmful conduct tends to converge on its underlying motivations (i.e. persecutions against religious freedom are almost always driven by religious grounds). However, the reverse is not true: not all persecutions based on religious grounds affect religious freedom since they can, as we already said, also affect human dignity, the right to life, the right to property etc., and indeed is more often the case. This implies certain consequences. First of all, possible persecutions against religious freedom that are not based on religious factors (a rare hypothesis) will have to be, for the Qualification Directive’s (and the Convention’s) application, somehow traced back to one of the other grounds envisaged in Article 2(d) (and, respectively, Article 1(A)(2)). Take the example of restrictions on religious freedom of detainees:48 membership to that category could, in some circumstances, be the reason behind illegitimate compressions of religious freedom, such as practices aimed at preventing the reading of sacred texts (the denial of consulting the Bible, or the Koran) or the observance of certain obligations (such as Shabbat, the Eucharist, or Ramadan). It is clear that in such cases we would be outside the conventional framework if the persecution is ‘indiscriminate’ (i.e. if it affects all prisoners as such, in a country or in a single prison institution, regardless of their religion). Indeed, one may succeed in proving that such a persecution is linked to another conventional ground (e.g. the membership of a particular social group, which has a ‘residual’ nature49), thus making the Geneva Convention applicable. But these are hypotheses of marginal practical relevance, perhaps purely academic.50 The second observation has, in this respect, a far more tangible consequence: while possible persecution must be linked to one of the conventional grounds (which are therefore decisive for this purpose), the same have no relevance in ascertaining  Zimmermann and Mahler (2011), p. 348: ‘[w]ith regard to a required duration, it has been argued that a short duration shall, in general, not suffice or that an isolated act is not sufficient, but that there has to be a sustained, persistent, or systematic risk of human rights violations in order to amount to persecution. However, the example of torture proves the contrary. In this case the violation of human dignity is so severe that even a single incident and a short period of time trigger persecution’. 48  Report of the Special Rapporteur of the Commission on Human Rights on Freedom of Religion or Belief, UN Doc. A/60/399, 30 September 2005, esp. para 69 ff. 49  Helton (1983–1984), p. 41. 50  Evidence that unlawful restrictions of religious freedom adopted against the entire prison population are driven by conventional grounds other than religion seems indeed rather difficult. It is, mutatis mutandis, whenever the possible serious violation of religious freedom is related to factors such as, to give just a couple of examples, gender (think of a ban on participation in religious ceremonies affecting only women), nationality (such as a ban on wearing religious symbols that is aimed only at foreign nationals). 47

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whether an individual would face, in his/her country of origin, a persecution. These are two different logical processes: one or more acts of torture constitute persecution regardless of the reasons for which they are put in place; however, to make the Qualification Directive (and the Geneva Convention) applicable it will be necessary to link the risk of such acts to one of the grounds mentioned in Article 2(d) (and, respectively, Article 1(A)(2)). Conversely, acts that restrict religious freedom might not constitute persecution and even be legitimate, rendering vain the search for a link to one of the conventional grounds. In other words, the dimension of a fundamental right, including the possible exceptions, should be measured on the object of persecution, and not on the grounds to which it is linked. An example will help. The prohibition of wearing in certain places or circumstances a clothing that, conversely, is imposed/suggested by one’s religion is not per se excluded by international law: Article 18 of the UN Covenant on Civil and Political Rights (CCPR) permits restrictions on the freedom to manifest one’s belief or religion,51 as does, in different terms, Article 9 of the European Convention on Human Rights (ECHR).52 It is therefore legitimate a conduct that, for whatever reason, impinges, within the limits provided by international law, the freedom to wear certain clothing, as the same European Court of Human Rights (ECtHR) often recognised.53 Where, however, wearing certain clothes, in obedience to the dictates of one’s religion, is coupled to the possible compression of other fundamental rights, the latter must guide the investigation on a (possible) persecution: thus, in principle, there will always be persecution if an individual is tortured because of the clothing he/she wears, since, notoriously, torture is never permitted, even on the level of general exceptions;54 where deprivations of personal freedom are traced to the same circumstance (wearing a certain clothing), the interpreter will have to assess the existence of a persecution based on the corresponding rules (such as Article 9 CCPR55); and identical  Article 18(3): ‘[f]reedom 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’. 52  Article 9(2): ‘[f]reedom 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’. 53  See Cumper and Lewis (2018), p. 61 ff. 54  Article 4 CCPR reads as follows: ‘1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7 [which prohibits torture], 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision […]’. 55  ‘1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges 51

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solution must be adopted for the other fundamental rights concerned on a case-by-­ case basis. In short, the link that most qualifies the religious nature of a persecution is the conventional ground: it cuts across various types of possible gross violations of fundamental rights. The latter, of course, may well include religious freedom; and yet, considering also the breadth of the exceptions normally applicable, a limitation to it can hardly represent a sufficiently serious violation to constitute a persecution. This first result is best clarified taking the perspective of the other side of international protection, i.e. subsidiary protection. The latter arises from an ‘extensive’ interpretation of those ECHR provisions that constitute the hard core of its rights. Unlike the Geneva Convention, the Rome Convention gives no independent relevance to the grounds of ‘persecution’:56 the Court’s prohibition on refoulement rests exclusively on such rights as dignity (Article 3) and human life (Article 2) along with, exceptionally, personal freedom (Article 5) and fair trial (Article 6).57 Applications aimed at induce the Strasbourg Court to reiterate this reasoning to religious freedom have not been successful:58 likely because, as an ‘almost virtual’59 participation in the possible violation to which a removal order might give rise, the Court widens the protection only to the benefit of those rights deemed ‘more’ fundamental in the Convention system.60 This should clarify that the nexus between religious freedom and international protection is almost entirely secondary vis-à-vis the prominence that religion has as a trigger for possible persecutions.

against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation’. 56  This does not prevent the Court of Strasbourg from finding violations grounded on the religion of the applicant, see F.G. v. Sweden, 43611/11, 23 March 2016. 57  ECtHR, Othman (Abu Qatada) v. United Kingdom, 8139/09, 17 January 2012, where the Court affirmed the abstract indirect applicability (par ricochet) also to Articles 5 and 6 (recognising a violation, in the specific case, of Article 6 alone). 58  ECtHR, Z. and T. v. United Kingdom, 27034/05, 28 February 2006. 59  If appropriate, see Cherubini (2016), p. 106 ff. 60  Soering, above fn. 1, para 188, where the ban on torture is defined as ‘one of the fundamental values of the democratic societies making up the Council of Europe’.

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3 The Notion of Religion Since the dawn of civilisation—or even more remotely—human beings have showed at least a propensity to the idea of a metaphysic world transcending the real one. Such an attitude clearly evolved in a disparate range of conceptions and doctrines, which have flourished, diffused, and become extinct over the centuries. The current times require a more than ever careful reflection on this issue, which can prove to be more extended and complex than we usually hypothesise. For our purposes, we should focus on the strictly juridical ‘meaning’ of religion, specifically in an international perspective. It is also evident that the legal notion of religion develops ‘hand in hand’ with the concept of protection (of foreigners), especially in the most ancient times. In many cases, we could even affirm that the second one ‘grew up’ thanks to the first one. Starting from the antiquity—when law and religion often used to coincide—the religious phenomenon, as a faith in an ‘unseen order’61 whose rules to conform to, shows significant links with the legal institution once referred to as asylum, nowadays named international protection, in its two forms of refugee status and subsidiary protection.62 Embryonic concepts of the right of asylum are detectable in the Old Testament, in which the God of the Israelites commands Moses to build up entire cities to be used to welcome foreigners.63 Other passages that could be considered contemplating the protection of the foreigner are contained in the Exodus and in Leviticus.64 In the Western World, specifically in the classic epos, this parallelism is evidenced by the very existence of the term ἄσυλον in the ancient Greek language. In the Hellenic meaning, the term indicated the ‘denial of theft or pillage’ (‘a’ and ‘sylao’, i.e. steal, plunder), hence the deduction of an inviolable place where it is possible to obtain shelter and protection.65 Ovid took up the Hellenic tradition, reporting the myth of Philemon and Baucis, which may prove to be representative to better understand the classical meaning of the concept. The two mentioned poor elders, despite their economic condition, decided to offer refreshment to two unknown travellers, sharing their own food and their straw mattress, depriving themselves of them, in the name of an innate sense of hospitality. They will then be generously rewarded: the two travellers were none other than the gods Zeus and Apollo in disguise. This myth is to show that, in the Hellenic world, the concept of asylum remains profoundly linked to the religious dimension. The main way to

 Taylor (2007), p. 53.  See above, fn. 1. 63  The Bible (Old Testament), Numbers, 35: 9–29. 64  For example, we can mention Exodus 22,20 (‘Do not mistreat and do not oppress the stranger, because you too were strangers in the land of Egypt’); or Leviticus 19: 33–34 (‘When a foreigner dwells with you in your country, you will not wrong him […] you will treat him as one of you, who was born in your country […]’). 65  Plato in the Laws justifies the need for protection towards foreign people who are isolated or marginalised from their own communities. 61 62

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obtain such protection on a practical level is to claim it at temples or sacred places, as the violation of this form of protection was considered a real sacrilege. In fact, the ability of some ‘places’ to protect people from any form of aggression—properly the places of asylum66—was ‘tied to a religious or sacred quality, whereby the person or thing coming into contact with a sacred site somehow also enjoyed the protection that the deity bestowed on that place by taking up residence there’.67 As a result of a sort of subservience to the ‘supernatural’,68 men did not dare to touch anything that insisted on the place of asylum, and consequently subjected to the protection of the divinity. In the Hellenistic tradition there are extraordinary examples of how the religious aspect was indissolubly linked to the protection granted by the places of asylum: as the one starring Athena, Cassandra (daughter of Priam, King of Troy) and Ajax Oilaeus. The story is well known and is placed at the margins of the Homeric poems. Its meaning, from a legal perspective, is well identified by those who, starting from a different point of view, saw in Ajax’s conduct one of the gravest faults according to archaic sensibility.69 After the rise of Christianity, in Europe, the evolving dimension of the concept of asylum deeply connected and intersected with the emerging ecclesiastical order, as the ancient age ended and the Middle Ages advanced. As the religious aspect waned with the birth of nation States, we should still observe that the affirmation of the Christian religion has raised the beneficiary of the protection from a mere object of a transitory property of the place to an autonomous beneficiary, bending the horizon of this legal institute to the principles of charity and penance.70 Only with the birth of the modern constitutional systems this link between religion and law assumed a ‘shape’ closer to the modern one, even if religion continued, in a certain way, to influence the right of asylum. The Enlightenment tradition—and so the affirmation of the concept of ‘human rights’ as inviolable, fundamental—first reverberates on the drafting of the American Declaration of Independence of 1776, and, later, on the Constitution of the United States of America, in 1787. Moreover, the very creation of the United States has clearly a migratory derivation, partly due to religious reasons: the founding peoples and ‘driving force’ of the development of the Thirteen Colonies were largely groups of people who fled from a monarchical Europe still tending to absolutism, albeit affected by internal wars, at least partly religious. In this regard, it is sufficient to remember that the so-called ‘Pilgrim Fathers’ were nothing more than fugitives for religious reasons, landed on the shores of the New World precisely to escape the persecutions carried out against them by James I Stuart, through the Archbishop of Canterbury William Laud—and, to a lesser extent, after the monarchical restoration

 See Giriodi (1896), p. 777.  Crifò (1958), p. 191, trans. added. 68  Lenzerini (2009), p. 8. 69  Mazzoldi (1997), p. 19. 70  Vismara (1958), p. 198. 66 67

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following the Commonwealth by Oliver Cromwell.71 The same could be stated, gradually, for other religious and/or social groups in the following decades. From these roots a sort of new ‘American order’ open to immigration derives—an element that has notoriously disappeared in more recent times. Therefore, the United States could represent the first modern ‘refugee State’, which only partially founded its original law on the liberal principles of Anglo-Saxon derivation, as it is evidently centred on a new model and new conditions completely unique until then. A fundamental starting point, in this sense, comes exactly from the then contemporary Enlightenment, and therefore from the primacy of fundamental individual rights. The right of asylum for religious reasons could be considered an integral part of this concept. Apart from the historical, classical origins, we should clearly stress that the ‘modern’ concept of ‘religion’ in refugee law is very recent. The main source to consider is the already mentioned Article 2(d) of the Qualification Directive, reproducing Article 1(A)(2) of the 1951 Geneva Convention. The nexus clause and its relevance in the definition of the relationship between religion and refugee law have been analysed in the previous paragraph. Now we will focus on certain issues where the link between religion and refugee law may raise very specific problems: the notion of religion; and the credibility assessment. On the first issue, case law represents a very useful tool. The most fruitful field from this point of view is the domestic case law, but it is also essential to recall the interpretative action of the United Nations High Commissioner for Refugees (UNHCR).72 In this view, to determine whether a particular phenomenon has a religious nature it is necessary establishing a clear limit beyond which the Geneva Convention offers no protection (unless the ‘interpreter’ is able to find a link between the feared persecution and one of the other conventional grounds). This is true only on the theoretical level. Nevertheless, we will now show that the notion of religion adopted for our purposes is rather wide, as it is rarely decisive in practice.

 New (1965), pp. 53–59.  The High Commissioner for Refugees has been created by the United Nations General Assembly as a subsidiary organ, based on Article 22 of the Charter of the United Nations, thanks to Resolution 319 of 3 December 1949. The UNHCR mainly took over the functions of the International Refugees Organizations. Initially, the UNHCR was supposed to cease its functions on 31 December 1953. Nevertheless, the UNGA renewed its mandate every five years, since it established ‘to remove the temporal limitation on the continuation of the Office of the High Commissioner contained in its Resolution 57/186 and to continue the Office until the refugee problem is solved’ (Resolution 58/153, 22 December 2003). 71 72

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The UNHCR has developed a notion of religion based on three declinations:73 religion as a belief,74 religion as identity,75 religion as lifestyle.76 This is a notion taken almost entirely from literature.77 Rarely, as mentioned, this has raised problems of inclusion: even when dealing with recent ‘religious’ phenomena, mostly deviations from traditional religions, the internal judges have not even posed the

 See UNHCR Guidelines on International Protection No. 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, UN Doc. HCR/GIP/04/06 del 28 April 2004. 74  ‘Belief’, in this context, should be interpreted so as to include the already mentioned theistic, non-theistic and atheistic beliefs. Beliefs may take the form of convictions or values about the divine or ultimate reality or the spiritual destiny of humankind. Claimants may also be considered heretics, apostates, schismatic, pagans or superstitious, even by other adherents of their religious tradition and be persecuted for that reason. A specific, similar definition is also given by the Human Rights Committee, in its General Comment No. 22 (above fn. 46). 75  ‘Identity’ is less a matter of theological beliefs than membership of a community. that observes or is bound together by common beliefs, rituals, traditions, ethnicity, nationality, or ancestry. A claimant may identify with, or have a sense of belonging to, or be identified by others as belonging to, a particular group or community. In many cases, persecutors are likely to target religious groups that are different from their own because they see that religious identity as part of a threat to their own identity or legitimacy. 76  For some individuals, ‘religion’ is a vital aspect of their ‘way of life’ and how they relate, either completely or partially, to the world. Their religion may manifest itself in such activities as the wearing of distinctive clothing or observance of religious practices, including observing religious holidays or dietary requirements. Such practices may seem trivial to non-adherents but may be at the core of the religion for the adherent concerned. Also, this issue has a more detailed description in the General Comment No. 22 (above fn. 46). 77  See Gunn (2003), p. 189 ff. 73

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problem;78 in practice, the only two controversial cases, both solved in a positive sense, concerned Scientology79 and Falun Gong.80 As it clearly seems to emerge, the notion of religion in international law (and more specifically in refugee law) is very extensive and open to a wide range of interpretations. Apart from the definition given or extrapolated by the Geneva Convention of 1951, the UNHCR interpretative action and the related jurisprudence, there are also other interesting normative sources, from which emerge almost the same conclusion. Roughly, similar definitions can be found in the practice of other, more general, international instruments of fundamental rights. First, we can mention the General Comment No. 22 of the Human Rights Committee (HRC),81 which shows an even more detailed analysis of the notion of religion and its implications. According to its para 1, the notion of religion ‘includes the freedom to hold beliefs’ and the general right established by the article ‘encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others’. Paragraph 4 is even more important for our purposes, since it introduces a more extensive concept subjected to protection, the ‘belief in worship’. It describes in a detailed way several forms of practices, stating that ‘the freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts’. It than adds: ‘the concept of worship extends to ritual and ceremonial  So it is, for example, for some religions born in Sikh predominantly areas, such as Dera Sacha Sauda or Dera Sach Khand: see the judgments of the Australian Refugee Review Tribunal, Case 0806712, 18 March 2009; Case 1113286, 27 April 2012; Case 1210091, 22 May 2013; Case 1314972, 20 March 2014. For Messianic Judaism, see the judgment of the New Zealand Refugee Status Appeals Authority, 19 May 2009, Case 76077. For the Pentecostal movement, see the judgment of the New Zealand Refugee Status Appeals Authority, 13 May 2004, Case 75028; judgment of the Australian Federal Court, 8 December 2004, VSAI v. Minister for Immigration and Multicultural and Indigenous Affairs; judgment of the Canadian Federal Court, 5 May 2011, joined cases Tsegay Kiflay Weldesilassie v. The Minister of Citizenship and Immigration; Henok Aynalem Ghirmatsion v. The Minister of Citizenship and Immigration. For Jehovah’s Witnesses, see judgment of the Australian Administrative Appeals Tribunal, 3 August 2016, Case 1502215. 79  On this phenomenon, the Australian Refugee Review Tribunal has explicitly admitted its inclusion among religions in applying the Geneva Convention. Taking up a famous decision of the Australian High Court (27 October 1983, Church of the New Faith v. Commissioner of Pay-Roll Tax) in which Scientology had gained a tax exemption that the Pay-roll Tax Act of 1971 granted, among other things, to the ‘religious or public benevolent institution[s]’, the Court concluded that ‘Scientology is a religion. The available information about Scientology indicates that it incorporates the relevant belief in the supernatural and involves a consideration of ideas and codes of conduct in its practice. Adherents clearly identify with the group through meetings, discussion and sharing of thoughts and in the tribunal’s view these indicia give it the quality of religion’. For a further discussion of this subject, see Clarke (2005), p. 27 ff. 80  More prolific and significant are the cases involving the Falun Gong movement. The latter is undoubtedly considered a religion, for conventional purposes, by internal jurisprudence; however, it can be deduced from the same jurisprudence that these movements, even if more difficult to classify in the term ‘religion’, could fall within other conventional grounds, such as, mainly, political opinions and belonging to a specific social group. See Clarke (2005), p. 287 ff. 81  General Comment No. 22 (above fn. 46). 78

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acts giving direct expression to belief, as well as various practices integral to such acts, 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 application area of the notion is also extended outside of the strictly religious practices, or those instrumentally connected to the exercise of worship, as it ‘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’. Paragraph 4 also specifies the implications of the act of teaching religious doctrines, providing ‘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’. Furthermore—this point will be useful also for the next paragraphs—para 6 states that ‘the freedom to “have or to adopt” a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief’. A strong protection against persecutions for conversion or any form of ‘change’ in the religious behaviour is clearly established by the Committee. Nevertheless, para 3 poses many limits to the freedom to manifest religion or other beliefs, which are the ones ‘prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others’. As the universality and inclusiveness of the United Nations reverberates on the ‘generality’ of the action of its institutions and organs, these ones may often lend themselves to a wide space for interpretation, which would be favourable to the legal order and the purposes of the single Member States—including the ones which use to limit or contrast many fundamental rights, including religious freedom. But this is clearly an issue, at least, as old as the United Nations. A similar approach—accompanied by a stronger and much more practical system of protection, due to the nature itself of the supranational organisation—is also confirmed in the EU law. The Qualification Directive82 has the purpose to define the standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection to ensure ‘[…] a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted’. Religion is clearly mentioned in recital No. 29—which recalls Article 1 of the Geneva Convention—and in Article 2 between the reasons of persecution qualifying the status of refugee. For our purposes, the most important provision of the Directive is, anyway, given by Article 10, specifying the reasons of persecution. On para 1(b), the Directive states that ‘[…] the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief’.

82

 Above, fn. 38.

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This analysis highlights the existence of a very strong link between religion and asylum (later, international protection). At the beginning, there seems to be no need to give a legal meaning of this concept, as the religion itself was the primary source of the law in general and, specifically, related to the concept of asylum. However, religion showed to be a constant and perhaps a driving force to the evolution of this right. With the raise of modern legal systems and international law, the demand for a real and structured definition of religion become evident, specifically after long decades of persecutions mainly driven by religious reasons. As some of these persecutions—the nature of which will be further analysed—are still perpetrated, the notion of religion become more and more specific and extensive. This is clearly testified by the Geneva Convention of 1951 and, furthermore, by some more sectoral instruments, such as the HRC General Comment No. 22 and the Qualification Directive of the European Union. To better detect the real ‘range’ of the meaning of religion in the international protection, a fundamental role is played by the interpretative action of many institutions and by jurisprudence in general. Many emblematic cases will be better analysed in the following paragraph.

4 The Credibility Assessment in the EU Asylum System An in-depth analysis of more specific aspects of the system of protection for persecutions for religion or personal beliefs is now necessary. In para 3 we mentioned the issue of the credibility assessment: that is crucial when the application is associated with religious persecution. This is even more true when the initial reason that pushed the person to leave the country of origin is completely outside the framework of the Geneva Convention. For reasons such as religion or political opinions, which are no longer immediately evident, unlike nationality, ethnicity or belonging to a particular social group, credibility is a game played almost exclusively on the field of the applicant’s conduct and the effective knowledge he/she has of the religious precepts. Under the first profile, the attendance of places of worship and, in general, the participation in the activities of a religious community has specific relevance. About this issue, to better understand specific contingencies, we can first mention many cases outside of the EU. The first one is about an alleged Catholic Chinese citizen who, during his (partly illegal) stay in Australia, had almost never attended church, claiming to have been deeply devote and practicing in China.83 Another similar case is still concerning a Chinese citizen of Catholic religion, who was baptised after a six-month catechumenal course in his home country and then began to spread the knowledge of the Catholic religion in his own school and, once in Australia, to  See Australian Administrative Appeals Tribunal, judgment of 24 June 2016, Case 1503329, especially para 64: ‘[t]he Tribunal accepts that church attendance, or lack thereof, is not determinative of whether a person is genuine or committed to their faith, however, the Tribunal found the applicant’s evidence when taken as a whole left it completely unconvinced that he has any commitment to Catholicism, or any other religion, for that matter’. 83

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immediately attend the local church, in whose activities he was constantly involved (for example, in the common readings of the Bible).84 In yet another case, two Iranian citizens converted to Christianity already in their homeland, had been refused protection in Malaysia by UNHCR, among other things, because of their failure to produce a baptismal certificate; this one has later been recovered and presented to the authorities of New Zealand, where, finally, they were granted the status.85 The examination of the conduct of the applicants and its consistency with the religious dictates to which they claim to adhere sometimes end up assuming almost comical tones: this happened in the case of a Romanian applicant belonging to the so-called Millenist faith.86 In this judgment, the US Court of Appeals for the Ninth Circuit bitterly criticised the Immigration Judge for drawing completely arbitrary conclusions from the applicant’s conduct regarding the genuineness of her religious faith: as the ‘chastised’ dress she went into the courtroom contrasted with her own ideals of love and friendship of the Millenist faith. This reflection induced the Court of Appeal to state some ironic remarks: ‘[d]oes the fact that a religion promotes love and friendliness mean the adherents cannot wear tailored clothing? What dress would be appropriate—a flowing gown, a tie-dyed shirt, or a suit with soft lines?’.87 From the second point of view, the authorities of many asylum countries tend to test the credibility of the applicants by submitting them to a real religion exam: its outcome should help to certify the truthfulness of their religious affiliation. This model is well represented by an example relating to a Nepalese citizen who converted to Christianity in his home country: again, in front of the Australian authorities, he was unable to answer rather elementary questions about the Holy Scriptures; on this basis, the Refugee Review Tribunal denied him refugee status.88  See Australian Administrative Appeals Tribunal, judgment of 8 October 2015, Case 1500421, especially para 15: ‘[the applicant’s three witnesses] provided consistent and independent evidence of his constant attendance at [the other church], his regular involvement in activities such as bible study, fundraising and social activities for the church. Photographic evidence was also supplied. I note that [the applicant] began attending church soon after his arrival in Australia and approximately five years prior to his Protection visa application. I accept that [the applicant] has regularly attended Catholic church in Australia. […] Further I am satisfied that his attendance at [the other church] and his engagement in [the Catholic Community] related activities was otherwise than for the purpose of strengthening his claim to be a refugee […]’. 85  New Zealand Refugee Status Appeals Authority, judgment of 10 April 1997, Case 70283. 86  US Court of Appeals for the Ninth Circuit, judgment of 15 September 2008, Cosa v. Mukasey. 87  Ibid., para II, 2. 88  Australian Refugee Review Tribunal, Case 0805569, judgment of 2 January 2009, mainly paras 82–83: ‘[s]pecifically, the applicant could not remember the start of the bible and he did not know what the first book of the bible was. The applicant said that the beginning of the English bible is about Jesus Christ. However, as the Tribunal put to the applicant, the beginning of the English bible is the Old Testament, which is about the beginning of the bible and the creation of the world, and Jesus Christ is not mentioned until the New Testament. The applicant could not name any people in the Old Testament. The applicant said that he had not heard of Moses and he only heard of Adam and Eve after he came to Australia but he did not know who they were. The applicant told the Department that he was just learning about the New Testament now. The applicant could not name any books of the New Testament. The applicant did not know which books are the Gospels or what 84

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Turning to the EU law, we should first consider a preliminary ruling concerning two Pakistani citizens, members of the Muslim Ahmadiyya community, whose application for the refugee status was rejected by the German Bundesamt89 as ‘[…] there was insufficient evidence to support the contention that the applicants in question had left their country of origin on account of a well-founded fear of persecution there’.90 In the subsequent internal levels of instances,91 the judgment varied, but the interpretative question was well posed to the ECJ by the Bundesverwaltungsgericht (Constitutional Court), which questioned it about the extent of the protection offered by Article 9 of the (first) Qualification Directive. The Court clearly identified the two typical contingencies in which religious freedom leaves the scene: ‘Acts amounting to limitations on the exercise of the basic right to freedom of religion within the meaning of Article 10(1) of the EU Charter of Fundamental Rights (CFR) which are provided for by law, without any violation of that right arising, are thus automatically excluded as they are covered by Article 52(1) CFR.  Nor can acts which undoubtedly infringe the right conferred by Article 10(1) CFR, but whose gravity is not equivalent to that of an infringement of the basic human rights from which no derogation can be made by virtue of Article 15(2) ECHR, be regarded as constituting persecution within the meaning of Article 9(1) of the Directive and Article 1A of the Geneva Convention’.92 In other words, according to the Court, a persecutory conduct is not only to be excluded in cases of legitimate restriction of the freedom of religion, but also in those where the conduct, albeit illegitimate, does not exceed ‘a certain gravity’. The judge should therefore deal with the derogations that can legitimately affect the religious freedom—specifically, in the EU, with Article 52, para 1—and with the identification of the severity threshold. This last one is very likely to be exceeded when the serious violation of religious freedom is accompanied by violations of more ‘entitled’ rights, through gross violations concerning, for example, a direct violence towards the persecuted. The ECJ itself indeed drew these conclusions precisely in the same judgment, as ‘a violation of the

the message of the Gospels is. When asked by the Department if he is familiar with Jesus and what he did in his life, the applicant stated that he is learning now but he does not know much in depth. The applicant could not name any of the miracles Jesus performed and he could not name any of the stories in the New Testament. The applicant said that he had not heard of the story of the Good Samaritan or Mary Magdalene. When asked where Jesus was born the applicant said that Jesus was born in America and that he did not know where he died. The applicant said that he did not know how many disciples Jesus had. The applicant did not know what happened after Jesus died and he had not heard of the resurrection or the rising from the dead’. For a more recent case in which the negative evaluation, issued by the government official, on the sufficient knowledge of the Jewish religion by a Lebanese citizen was overturned, see Australian Administrative Appeals Tribunal, judgment of 23 June 2016, Case 1418945. 89  C-71/11, Bundesrepublik Deutschland v. Y and Z, 5 September 2012. 90  Ibid., para 33. 91  First, respectively, Y before the Verwaltungsgericht Leipzig (Administrative Court, Leipzig) and Z before the Verwaltungsgericht Dresden (Administrative Court, Dresden), second, before the Sächsisches Oberverwaltungsgericht (Higher Administrative Court of the Land Sachsen). 92  Ibid., paras 60–61.

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right to freedom of religion may constitute persecution within the meaning of Article 9(1)(a) of the Directive where an applicant for asylum, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of the Directive’.93 In a more recent time, the ECJ expressed its position in a preliminary ruling also on a very specific issue.94 In this case, the most relevant points are the capability, for the applicant, to produce documentation suitable to demonstrate the credibility of his account. The case concerns a Syrian citizen, EZ, who applied for the refugee status before the Bundesamt für Migration und Flüchtlinge (the German Federal Office for Migration and Refugees), which first refused to grant it. The Syrian citizen tried to obtain the protection as he fled from his home country to avoid the military service after the outbreak of the civil war, on the grounds that he was not able to perform the conscription duties, including fighting and killing, because of his personal and religious beliefs. The ECJ ruled that EZ had demonstrated the credibility of his position, even if ‘not supported by documentary or other evidence’ and recognised the need for the attribution of the refugee status, among other things levering on ‘the context of all-out civil war characterised by the repeated and systematic commission of the crimes and acts referred to in Article 12(2) of that [Qualification] directive by the army using conscripts’.

5 The Problem of Sur Place Conversions Investigations—which have particular importance and connotations where the conventional ground is represented by religion—are even more intense when the well-­ founded fear of suffering persecution in the home country directly emerges in the country of application: we refer in this case to the problem of sur place conversions. In these cases, the well-founded fear of persecution is not ‘original’ but arises in the new ‘place’ of residence, only after the individual concerned leaves his/her country of origin. Typical hypotheses are represented by a coup d’état, or the outbreak of an armed conflict: in such cases, it is possible that a citizen of the State concerned, already outside its territory, becomes, if repatriated, at risk of suffering the persecutions referred to in Article 2(d) of the Qualification Directive (and 1(A)(2) of the 1951 Geneva Convention). An example of these specific contingencies in the case law is represented by a case decided in 2021 by the ECJ,95 concerning a stateless citizen of Palestinian origins who suffered persecutions for several reasons in Syria, obtained the subsidiary protection first in the Hashemite Kingdom of Jordan, and then applied in Germany. The events—specifically in Jordan—had also involved the

 Ibid., para. 67.  C-238/19, EZ v. Bundesrepublik Deutschland, 19 November 2020. 95  C-507/19, Bundesrepublik Deutschland v. XT, 13 January 2021. 93 94

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UNRWA,96 as the Court sustained the judgment also by mentioning Article 1(D) of the Geneva Convention.97 Generally, the UNRWA presence is a disclaimer to the application of the Convention, as stated by Article 1(D) of the Geneva Convention itself,98 and the jurisdiction of the Agency contributed to the failure to obtain the status by the national authorities. However, as the stateless Palestinian applicant moved from Jordan, he de facto lost the supposed protection of the UNRWA. The Court considered this point, as Article 1(D) also states that ‘[w]hen such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention’, a concept which is also recalled by Article 12(1) (a) of the Qualification Directive,99 granting in such way the protection as the ‘UNRWA was not in a position to provide that individual with protection or assistance’. As the referral to subsidiary protection comes again to our case, and, furthermore, an ongoing change in the ‘situation’ of the applicant and his ‘conditions of protection’ occurred as he moved through the States, this case could be easily adaptable to the sur place conversions contingencies. It is possible that the applicant changes religious beliefs only once out of his/her country of origin and that the fear of persecution emerges because of this conduct. Several cases related to these circumstances have been brought to courts. To better understand, it would be useful mention, once again, many cases outside of the European area. The first one is about an Iranian citizen of Muslim religion who came into contact with the Catholic religion and converted once in another country, where he had arrived with a tourist visa or for work reasons. It is evident that, in such cases, the timing of the conversion may provoke some perplexity, as evidenced by the New Zealand Refugee Status Appeals Authority: ‘[a]lthough it is not possible to lay down specific rules to be applied inflexibly in all cases, as a general rule the Refugee Status Appeals Authority is disinclined to grant refugee status to Iranians who commit apostasy after their departure from Iran, particularly when such conversion to Christianity takes place whilst a refugee application is pending […]. It thus follows that claims by Iranian asylum-seekers of conversion to Christianity are likely to be subjected to close scrutiny, particularly as to the reasons for such

 The United Nations Relief and Works Agency for Palestine Refugees in the Near East.  Which provides that the Convention does not apply to people who are at present receiving protection or assistance ‘[…] from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees’. 98  ‘This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance’. 99  ‘When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, those persons shall ipso facto be entitled to the benefits of this Directive’. 96 97

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conversion’.100 This stricter control is well laid out in the instructions provided from the UK Home Office, which clearly underlines the importance of the applicant’s testimony in relation to the way he or she began and developed the practice of the new religion,101 without going beyond ‘the most basic knowledge questions’.102 Of course, the conversion is not per se an element sufficient to justify the onset of well-founded fear. In other words, the circumstance that individuals convert (in the home country or in the country where they apply for asylum) does not automatically imply that, if they were expelled to the country of origin, they would risk suffering a persecution. In this regard, some specific factors can be detected, while others can be excluded. Starting from the latter, as clarified by Lord Rodger in a case concerning persecution based on sexual orientation, the risk of persecution cannot be excluded from the so-called ‘reasonable tolerability’ test: in other words, the circumstance that a certain conduct is tolerated by the authorities of the country of origin if carried out in a ‘discreet’ manner.103 In the very effective words of the New Zealand Refugee Status Appeals Authority, ‘[b]y requiring the refugee applicant to abandon a core right the refugee decision-maker is requiring of the refugee claimant the same sub missive and compliant behavior, the same denial of a fundamental human right, which the agent of persecution in the country of origin seeks to achieve by persecutory conduct’.104 Such an approach has been also followed by the ECJ, 100  Case 70283, above fn. 85. In literature, see Samahon (2000), p. 2211 ff., and Berlit et al. (2015), p. 649 ff. 101  United Kingdom Home Office, Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015, p. 29: ‘[a]t interview, the claimant should have been able to describe the personal experiences in the faith of his or her origin and of the encounters or contacts with Christianity […]. The interview should also enable an assessment of how, if at all, the individual’s understanding and practice of Christianity began in the country of origin (for example, in a clandestine house church), compared with the particular Christian tradition […] the person now claims to follow in the UK. What is being assessed is primarily whether the claimant has genuinely moved towards a firm decision to leave the faith of their upbringing and become a Christian. To be credible, something so potentially life-changing should not be perfunctory, vague, or ill-thought out. It is likely to include being baptized […], or being instructed and prepared for baptism. It should also include attending worship, being known to the church’s leadership (normally the ordained ministers) and association with fellow-believers’. 102  Ibid., where is also added that: ‘statements of belief or answers to specific questions which are so clearly wrong that no reasonably well-informed person could be expected to take them seriously will call into question the credibility of the conversion’. In another case (United Kingdom Home Office, Considering Asylum Claims and Assessing Credibility, 30 July 2012, p.  29), the Home Office itself underlined that ‘just because somebody claims to have recently converted to Christianity, does not mean they will be able to remember how many books there are in the Bible or to list the twelve disciples. If somebody claims to have attended a Pentecostal or Evangelical Church, this does not mean they will be familiar with Catholic traditions and ceremonies. Decision makers should also be aware that some Biblical terms (e.g. “Trinity”, “Pentecost”, “disciple”) which have been translated into English from Greek will not always have a direct translation in the languages of some Muslim countries’. 103  United Kingdom Supreme Court, judgment of 7 July 2010, HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, especially para 82 ff. 104  New Zealand Refugee Status Appeals Authority, judgment of 7 July 2004, case 74665, para 114.

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especially in the case Y and Z v. Minister voor Immigratie en Asiel.105 In its judgment, the Court adapted its positions to the British and New Zealand approach, mutatis mutandis, also for persecutions of a religious nature: therefore, according to the Court, excluding an applicant from the protection of the Geneva Convention only because in the country of origin the ‘private’ manifestations of the religious beliefs would be tolerated—as the public ones would not be accepted—does comply with the EU law. The present case does not directly comply with a persecution due to religious reasons, as the three asylum applicants in the Netherlands actually alleged to be persecuted by a general religious ‘behavior’ of their home country (specifically Sierra Leone) due to their homosexuality. Nevertheless, on this issue, the Court considered Article 10(1)(d) of the Qualification Directive regarding persecutions towards ‘particular social groups’, considering ‘members [who] have a “distinct identity” because they are “perceived as being different by the surrounding society”’ and stated that ‘a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it’. As a fundamental characteristic of the identity of an individual, this is clearly referable also (even if not only, as there is no claim to compare sexuality to religion if not from the legal perspective) to personal beliefs, particularly if related to a ‘particular social group’ which can easily be referred to any kind of practices and behaviors dictated by personal or collective beliefs, states of mind or attitudes. This is even more true whereas the persecution was related to the intolerance towards ‘public manifestations’ of the applicants’ attitudes, which could be compared to public religious practices. A potentially close situation concerning the relation between religion and homosexuality could be detected in a more recent judgment of the Court.106 The preliminary ruling concerned an Iraqi national of Shiite Muslim faith, who applied for international protection at the Austrian Bundesamt. The applicant ‘[…] claimed that he feared for his life in Iraq because of his sexual orientation, which is prohibited by his country and “by his religion”’. As the first application was rejected, the aforementioned Iraqi national applied again. The Court stated in favour of the re-­ examination of the application; furthermore, it reported the need for a new evaluation due to the ‘new elements or findings’ which ‘have arisen or have been presented by the applicant’.107 These ones may be referable, in a certain way, to the sur place conversion, as they emerged only at a later time, once in the State responsible for processing asylum applications.

 Joined Cases C-199/12 to C-201/12, Minister voor Immigratie en Asiel v. X and Y and Z v. Minister voor Immigratie en Asiel, 7 November 2013, especially paras 70–71: ‘[in] this regard it should be noted that the fact of requiring members of a social group who share the same sexual orientation who hide this orientation is contrary to the recognition of such a fundamental mental characteristic for identity that those concerned should not be forced to give it up. It is therefore not reasonable to expect that, to avoid persecution, an asylum seeker will hide his homosexuality in his country of origin’. 106  C-18/20, XY v. Bundesamt für Fremdenwesen und Asy, 7 September 2021. 107  Ibid., para 15 ff. 105

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An undoubtedly relevant factor is to be found in the reasons of the possible persecutors. This implies two consequences: first, they must be able to reasonably be aware of the conversion; second, it is always fundamental to consider that the applicant, regardless of the ‘genuineness’ of the state of the conversion, can still be perceived as such by his/her potential persecutors. On this last point, in a famous case, the US Court of Appeals for the Seventh Circuit dealt with an asylum application rejected by the Board of Immigration Appeals because the applicant, an Iranian converted to Christianity, had not demonstrated the genuineness of his conversion. According to the Court of Appeals, ‘[t]he opinion does not consider what would count as conversion in the eyes of an Iranian religious judge, which is the only thing that would count so far as the danger to Bastanipour is concerned. The offense in Muslim religious law is apostasy—abandoning Islam for another religion. […] That is what Bastanipour did. He renounced Islam for Christianity. He has not been baptized or joined a church but he has made clear, to the satisfaction of witnesses whom the Board did not deem discredited, that he believes in Christianity rather than in Islam—and that is the apostasy, not compliance with formalities of affiliation. Whether Bastanipour believes the tenets of Christianity in his heart of hearts or, as hinted but not found by the Board, is acting opportunistically (though at great risk to himself) in the hope of staving off deportation would not, we imagine, matter to an Iranian religious judge’.108 The intentions of the persecutors clearly do not represent a prerequisite to establish a link with the religious reason, which can also be deduced from other factors such as ‘the unwillingness or inability, not necessarily intentional, of the country of origin to provide protection, or […] the fear or the predicament of the individual concerned’.109 Nevertheless, it is clear that this position, also shared in literature,110 has now made explicit within the EU by the largely mentioned Qualification Directive, whose Article 10(2) in fact states that ‘[i]n examining whether an applicant has a well-founded fear of being persecuted it is irrelevant that the applicant actually possesses the racial, religious, national, social or political characteristics that provoke

 US Court of Appeals for the Seventh Circuit, Judgment of 7 December 1992, Mohammed Ali Bastanipour v. Immigration and Naturalization Service. 109  Wouters (2009), p. 80. On the issue of the link between religious reasons and ‘unwillingness’ or ‘inability’ of the authorities of the country of origin to provide protection, interesting considerations were made in the judgment of the House of Lords, 25 March 1999, Islam (A.P.) v. Secretary of State for the Home Department; R. v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.). Here is stated that, when the persecutors are private citizens, the reason must in any case be associated with the state authorities ‘suppose that the Nazi government in those early days did not actively organise violence against Jews, but pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew’. 110  See Gunn (2003), p. 198. 108

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the acts of persecution, provided that a this characteristic is attributed to it by the perpetrator of the persecutions’. This shows, on one hand, once again the masterfully relevance of the Directive, on the other the importance of the intersecting of doctrinal and jurisprudential positions not only at the Union level, but also between the EU and the international context. In this respect, as the leitmotif of this discussion, the ECJ intervened with judgments—following the 2011 Qualification Directive—which deserve particular attention. Apart from the aforementioned Y and Z, it is important to recall a very recent ‘hybrid’ case,111 which has been debated if reliable to the sur place conversion circumstance, but it is deeply representative of the question of the credibility assessment. The case involved an Iranian-Kurdish citizen who converted, as he stated in his account before the Bulgarian State Agency for Refugees (DAB), to Christianism in a period he stood in the United Kingdom, but receiving the baptism coming back to Iran, where, for these reasons, he was found guilty of several religious crimes, such as watching a forbidden Christian TV Channel (Nejat TV). After his detention, he illegally fled to Iraq, where he applied for asylum and contacted the UNHCR office, but the procedure was inconclusive. The subsequent application before the Bulgarian authorities, which followed his departure from Iraq, was rejected precisely because the account about the effective profession of faith was found implausible by the director of DAB. In the previous years, Mr. Fathi had also suffered attempts of approach and threats by the Iranian security services. In its judgment, the ECJ, referring to the ECtHR judgment in F.G. v. Sweden,112 stated that ‘[…] where the applicant for asylum relies on a “sur place” conversion, particular credibility concerns tend to arise, and a rigorous and in-depth examination of the circumstances and of the conversion will be necessary. […] In addition, as the ECtHR also pointed out, in such types of cases, the potential actors of persecution tend to attribute less importance to “sur place” conversions, given their often “opportunistic” nature’.113 However, the Court considered the fact that even if Fathi’s path of approach to the Christian faith began in the United Kingdom, his official conversion happened in Iran and, more important, ‘[…] the Iranian authorities were aware of that fact’. Furthermore, the Court mentioned the case Y and Z about the irrelevance of the possibility to avoid the risk of persecution by abstaining from certain practices, stating that ‘[r]eligious belief, identity or way of life, which are all elements of the concept of religion within the meaning of Article 1(A) of the Geneva Convention and, therefore, of Article 10 of Directive 2011/95, must be considered as so fundamental to human identity that one should not be compelled to hide, change or renounce them in order to avoid persecution’. We can also easily find a parallelism with the aforementioned case Bastanipour, on the awareness and the perception of the conversion by the persecutors. Also on these bases, the

 C-56/17, Bahtiyar Fathi v Predsedatel na Darzhavna agentsia za bezhantsite, 28 July 2018.  See above, fn. 57. 113  C-56/17, para 63. 111 112

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preliminary ruling concluded in favour of Mr. Fathi, mainly referring on Articles 9, 10(1)(b), and 10(2) of Directive 2011/95.114

6 Conclusions The analysis carried out allows us to formulate some considerations of a general nature. In the plots of Article 1(A)(2) of the Geneva Convention, the positions dealing with religion provides a rather clear figure about the protection system. This one, in fact, used to be set on the logic to protect individuals by ‘replacing’ the State of origin, as unable to guarantee the protection of fundamental rights or violating them (at least for some categories of individuals), with the reception country. The indication of the conventional grounds had (and still has) the purpose of positively isolating a certain type of migration and consequently discarding others, primarily the ones of economic nature. A first critical observation concerns the legal technique with which this purpose has been realised: the nexus clause tends, in fact, to exclude other reasons, which can also generate serious violations of fundamental rights, and therefore dissolves the centrality that should characterise them, for example, in the Geneva Convention. The setting aside of this ‘totem’ occurs not only thanks to the activity of the judges, but also as a result of a practice that operated outside the

 In the conclusions, the Court states that ‘[…] Article 10(1)(b) and Article 10(2) of Directive 2011/95 of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted are to be interpreted as meaning that an applicant for international protection who in support of his application relies on a risk of persecution for reasons associated with religion does not have to submit statements or produce documents covering all the components of the concept of religion, as defined in Article 10(1)(b) of Directive 2011/95, in order to substantiate his claims regarding his religious beliefs. In particular, such an applicant does not necessarily have to demonstrate the public performance of acts linked to those beliefs or mandated by them or the abstention from acts incompatible with those beliefs, or prove – backed by documentary evidence – the veracity of his claims in that regard, under penalty of his application being rejected. […] The existence of persecution, within the meaning of Article 9 of Directive 2011/95, based on religious grounds is dependent, first, on the severity of the interference with the freedom of religion of the applicant for asylum and, second, on the seriousness of the acts to which that applicant is exposed by virtue of exercising that freedom in his country of origin. The fact that the restrictions on religious freedom imposed in the applicant’s country of origin, as well as the penalties provided for if the prohibitions linked to such restrictions are infringed, are justified by the requirement of maintaining law and order or public security, health or morality in that country does not mean that the existence of persecution within the meaning of Article 9 of Directive 2011/95 may be ruled out automatically. The fact that the law of the country of origin of the applicant for asylum punishes conduct linked to the exercise of the freedom of religion, such as a religious conversion or religious proselytism, by imposing disproportionate or discriminatory penalties, or even by the death penalty, is enough to find there to be persecution within the meaning of Article 9 of Directive 2011/95 if it is shown that such penalties are actually applied and that the applicant runs a proven risk of being subject to them should he return to that country’. 114

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Convention in question, especially in the context of the ECHR. Here, the homonymous Court set free from the narrow literal constraints imposed by the aforementioned Article 1(A)(2), made the principle of non-refoulement (which is also stated in Article 33 of the Geneva Convention, in a more ‘timid’ version) a sort of interpretative rule, depending on the case, of the prohibition of torture, or of the right to life, or finally of the right to a fair trial and personal freedom. This has entailed an unavoidable ‘cut’ to other fundamental, ‘minor’ rights, not included in the interpretation resulting from the Soering case. However, compared to Article 1(A)(2), this constitutes a deminutio only under the abstract profile, and the position of religious freedom in the Geneva Convention clearly demonstrate this. Here the principle of non-refoulement do not operate also for this freedom. The above leads us to a second critical consideration. The understandable pragmatism which denies to the principle of non-refoulement a full role, seems to somehow break the universality of all the fundamental rights. From this point of view, it is hard to distinguish the situation of those who flee from their torturers from the ones born and grow up in a country where any possibility of planning their own lives is denied by economic, climate and other similar reasons, without interrupting the natural interconnections between individual fundamental rights. A possible answer is in the setting of a priority among them, which is not really new in the international system of protection of human rights. Nowadays there is a trend that seems to fuel this idea, breaching the policies of some governments: the tendency to validate an alleged ‘rewarding’ logic of human rights. These last ones seem to be reduced to a sort of ‘surplus’, compressed or even eliminated at will by the democratic society, losing their status of backbone of a system of peaceful coexistence of the members of a community.

References Albors-Llorens A (1998) Changes in the jurisdiction of the European Court of Justice under the Treaty of Amsterdam. CML Rev 35:1273–1294 Berlit U, Doerig H, Storey H (2015) Credibility assessment in claims based on persecution for reasons of religious conversion and homosexuality: a practitioners approach. Int J Refug Law 27:649–666 Boeles P, Terlouw A (1997) Minimum guarantees for asylum procedures. Int J Refug Law 9:472–491 Cherubini F (2016) Asylum law in the European Union. Routledge, London Clarke PB (2005) New religions in global perspective. A study of religious change in the modern world. Routledge, London Crifò G (1958) Asilo (diritto di). a) Premessa storica. 1) Diritti antichi. Enc. dir. II:191–197 Cumper P, Lewis T (2018) Empathy and human rights: the case of religious dress. Hum Rights Law Rev 18:61–87 Fridegotto M (1992) L’Accordo di Schengen: riflessi internazionali ed interni per l’Italia. Franco Angeli, Milano Giriodi M (1896) Asilo (Diritto di) - (Storia del Diritto). Dig. it. IV(1):777–781 Goodwin-Gill G, McAdam J (2007) The refugee in international law, 3rd edn. Oxford University Press, Oxford

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Grahl-Madsen A (1966–1972) The status of refugees in international law, II vv. A.W.  Sijthoff, Leiden Gunn TJ (2003) The complexity of religion and the definition of ‘religion’ in international law. Harv Hum Rights J 16:189–215 Hailbronner K (1998) European immigration and asylum law under the Amsterdam Treaty. CML Rev 35:1047–1067 Hathaway JC, Foster M (2014) The law of refugee status, 2nd edn. Cambridge University Press, Cambridge Helton HC (1983–1984) Persecution on account of membership in a social group as a basis for refugee status. Colum Hum Rights Law 15:39–67 Lenzerini F (2009) Asilo e diritti umani. L’evoluzione del diritto d’asilo nel diritto internazionale. Giuffrè, Milano Mazzoldi S (1997) Cassandra, Aiace e lo ξόανον di Atena. Quaderni Urbinati di Cultura Classica 55:7–22 New JFH (1965) Cromwell and the paradoxes of puritanism. J Br Stud 5:53–59 Samahon T (2000) The religion clauses and political asylum: religious persecution claims and the religious membership-conversion imposter problem. Georget Law J 88:2211–2238 Steenbergen JDM (1999) All the King’s Horses…Probabilities and Possibilities for the Implementation of the New Title IV EC Treaty. Eu J Migr Law 1:29–60 Taylor C (2007) A secular age. Harvard University Press, Harvard Vismara G (1958) Asilo (diritto di). a) Premessa storica. 2) Diritto intermedio. Enc. dir. II:198–203 Wouters CW (2009) International legal standards for the protection from refoulement: a legal analysis of the prohibitions on refoulement contained in the refugee convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture. Intersentia, Antwerpen, Oxford, Portland Zimmermann A, Mahler C (2011) Article 1A, Para. 2. In: Zimmermann A (ed) The 1951 Convention relating to the status of refugees and its 1967 Protocol: a commentary. Oxford University Press, Oxford, pp 280–465 Francesco Cherubini  is Associate Professor of EU Law at the Department of Political Science, Luiss ‘Guido Carli’, Rome, where he also teaches International Organizations and Human Rights. International Chair at the Department of Law of the University of Utrecht in 2017, Visiting Scholar at the School of Law of the University of Durham in 2016, and Visiting Fellow at the Centre for the Study of Human Rights of the London School of Economics and Political Science in 2012. He coordinates the Luiss Master in Art Law. Among his recent publications: Decisions under the Law of European Union: ‘You May Be Six People, but I Love You’, in YEL, 2022, pp. 1–60. Tommaso Pochi  is Adjunct Professor in European Law at the Mercatorum University, Rome, and Assistant Professor and expert in European Union Law and International Organization and Human Rights at the LUISS Guido Carli University since 2018. He is a PhD graduating in Legal and Political Science at the Guglielmo Marconi University, Rome, where he is also Assistant Professor and tutor in International Law, International Organization and International Cooperation Policy. Tommaso Pochi holds lessons in Administrative and Public law at the Master in Public Administration Science. He participated in several seminars as a speaker, mainly on refugee and migration law. In 2019–2020 he has been a Special Research Fellow in European Studies at the Huzhou University, Zhejiang Province, China. Formerly, he served as a parliamentary assistant at the Senate of the Italian Republic and had a three-year experience as international security, political and legal analyst.

The EU and the Status of Churches, Religious Associations, Philosophical and Non-Confessional Organisations Michał Rynkowski

Abstract  This chapter briefly presents the history behind Article 17 TFEU, and comments the three adjectives of the established dialogue with churches, religious associations or communities, philosophical and non-confessional organisations: open, transparent and regular, with the special focus on the Transparency Register. The legal status of the clergy in the EU and a (very unlikely) concordat are mentioned, and a reference to a few judgments of the EU Court of Justice (mainly concerning religious garment and ritual slaughtering) is included. Keywords  European Union · Ecclesiastical law · Freedom of religion and belief · Article 17 TFEU · Religious dialogue

1 Introduction With Robert Schuman, founding father of the European Communities, declared Venerabilis by Pope Francis in June 2021,1 it is again time to ask the famous Gretchen question from Goethe’s Faust: ‘[EU], and how is it with the religion?’. The churches and religious communities have followed the work of the European institutions for many years before any relevant legal provisions had been written and adopted. An apostolic nuncio has been accredited with the European institutions since 1970 (initially, also as a nuncio to the Kingdom of Belgium, since 1999 This chapter represents solely and exclusively personal views of the author.

 Holy See, Bollettino of 19 June 2021, Promulgazione di Decreti della Congregazione delle Cause dei Santi, 19 June 2021. 1

M. Rynkowski (*) European Commission, Brussels, Belgium © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_12

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as a separate diplomatic mission). Under Article 18 of the Vademecum of the diplomatic corps accredited with the European institutions, the Papal Nuncio is ex officio the Dean of the diplomatic corps accredited to the European Union, irrespective of his ancienty.2 The COMECE (The Commission of the Episcopates of the European Community), the main Catholic interlocutor for the European Union (EU), was established in 1980. The Protestant, Orthodox and Old-Catholic churches established their organisation and its offices already in 1959 (still today known and active as Conference of the European Churches). As the areas of the European integration were developing, the European institutions grew, so grew the number of the religious representations following the European integration process. The Treaty of Amsterdam (1997) marked an important step. The Member States agreed jointly to attach such a declaration to the treaty: Declaration on the status of churches and non-confessional organisations. The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. The European Union equally respects the status of philosophical and non-confessional organisations.

This declaration, known as the Declaration No. 11, mentioned for the first time expressis verbis churches, religious associations and communities, philosophical and non-confessional organisations. While politically it was a significant move, its legal value was limited: declarations, even joint declarations of all Member States, do not have the same legal value the protocols have. The Member States seemingly preferred to start with a soft solution. However, this declaration was very much in the interest of the Member States, making sure that the EU would not infringe their rights in the delicate area of their ecclesiastical laws. Back in 1997, the United Kingdom with its very special church-state system was still an EU Member State, while the Church of Sweden was undergoing a transition from a state church to a registered ‘regular’ church.3 Nevertheless, the declaration to the Amsterdam Treaty was a clear sign that further steps could be expected. Moreover, in the 2001 White paper on European Governance4 the Commission stressed out that churches and religious communities have a particular contribution to make. The beginning of years 2000 saw a debate about the Treaty establishing a Constitution for Europe,5 prepared by a special Convention, chaired by V. Giscard d’Estaing. One of the topics discussed was the issue of a potential Invocatio Dei, an issue firmly opposed by some politicians and, more importantly, by some Member  Following the death of Nuncio Archbishop Aldo Giordano on 2 December 2021, this post remained vacant for almost a year until the new appointment on 25 November 2022. The new Nuncio is Msgr Noël Treanor, Bishop of Down and Connor, previous Secretary General and VicePresident of the COMECE. 3  Friedner (2019), p. 644. 4  COM(2001)428 fin, 25 July 2001, 14. 5  In OJ C 310, 16 December 2004, 1. As the Treaty establishing a Constitution for Europe was not ratified, it was published in series C of the Official Journal (Communication). 2

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States, incl. Belgium and France.6 It contained Article I-52 (Status of churches and non-confessional organisations), which resembled Declaration No. 11 and added a paragraph about the dialogue: 1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. 2. The Union equally respects the status of philosophical and non-confessional organisations. 3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations. (emphasis added)

After negative results of the referenda in France and in the Netherlands (2005) the draft Constitution finally was not ratified and has never entered into force. This failed attempt did not mean the legislative work stopped: a new Treaty was prepared, signed in Lisbon in 2007. This treaty, despite preliminary difficulties (negative outcome of the vote in Ireland in 2008, hesitation on the side of British, Czech and Polish authorities) was ratified and since its entry into force on 1 December 2009 is known as the Lisbon Treaty. With the Lisbon Treaty, the provisions relating to religion became a part of the Treaties, as Article 17 of the Treaty on the Functioning of the European Union (TFEU). The text clearly resembles Declaration No. 11, with an addition of a third paragraph concerning the dialogue, hence corresponds to the Article I-52 of the Constitutional Treaty. Article 17 TFEU is placed in the part one ‘Principles’, title II (‘Provisions having general application’) which gives assumption that the dialogue may potentially cover all areas of the EU activities and legislation.7 It states: 1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. 2. The Union equally respects the status under national law of philosophical and non-confessional organisations. 3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.8

The notion of ‘status’ can be discussed: however, it should not overshadow the real importance of this provision. As it was briefly mentioned, the legal status of churches and religious communities varies significantly between the EU Member States. The famous French laicité on the one hand and the Danish system with the Folkekirke and a governmental ministry in charge of this church on the other hand constitute a very broad framework, with most Member States fitting between these two opposite models. This phenomenon of diversity is a subject of extensive studies, the results of which can be found in respective books.9

 Portaru (2017), p. 37.  Łopatowska-Rynkowska (2012), p. 343. 8  For a brief comment, see Klamert (2019), p. 411. 9  Robbers (2019) and Doe (2011). See also the annual proceedings of the European Consortium for Church-State Research: published initially by Peeters in Leuven, then by Comares in Granada (to major extent available online). 6 7

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2 The Article 17 TFEU Dialogue 2.1 Historical Introduction: The Initiative ‘Soul for Europe’ The religious dimension of the European project saw light with ‘Soul for Europe’, launched following a speech given by Jacques Delors, at the time the President of the European Commission.10 This initiative (and that is the word to be used, it was not a programme) functioned between 1994–2005. There were six members, representing various denominations and philosophical organisations: Catholic (represented by COMECE), Protestant (represented by CEC), the Orthodox Liaison Office, the Conference of the European Rabbis, the Muslim Cooperation Council in Europe and the European Humanist Federation. ‘Soul for Europe’ was meant to be a dialogue platform between the EU and the religious and philosophical partners. Some (limited) funding was provided by the Commission. As the interlocutor for the members of the ‘Soul for Europe’, the Commission created a ‘Forward Studies Unit’, which was reporting directly to the President of the Commission. As the years passed and the Presidents of the Commission changed, the activity of the ‘Soul for Europe’ was getting more and more limited. Finally, the members of the Soul decided to dissolve the initiative. Also the Forward Studies Unit went through a significant transformation: it became an entity known as GOPA (Group of Policy Advisers, 2000–2004) and then as BEPA (Bureau of the European Policy Advisors, 2004–2014). Each of them was reporting directly to the President of the European Commission. Within each of this bodies there was a person in charge of contacts with churches and religious communities (initially Mr Thomas Janssen, later on Mr Michael Weninger). This task was later on transferred to Directorate-General for Justice (DG JUST), to the unit Fundamental Rights. The current state of play is presented below, where the actors of the dialogue are discussed.

2.2 The Principles of the Dialogue: Open, Transparent and Regular As many years of contacts between the European institutions and religious entities preceded the legal provisions, the formal organisation of the dialogue had an easy start. At later stage, in 2013, to facilitate the process and to explain certain elements, the European Commission published some guidelines on the implementation of

10

 Rynkowski (2006).

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Article 17 TFEU.11 As the title says, it explains the principles of the dialogue and should help the potential partners to understand what they can expect. Indeed, Article 17 TFEU constitutes also a kind of ‘lex specialis’ as regards religious and non-religious organisations, as the general dialogue with the civil society is anchored in Article 11 of the Treaty on the European Union (TEU).12 2.2.1 Open The European institutions make sure the dialogue is open, transparent and regular. Indeed, the dialogue is open, as many organisations participate in it: this is of course easier for centrally organised churches, which have a clear hierarchy or a special body established for the contacts with the EU institutions. However, there happen to be some bumps: the meetings with churches and religious organisations were the subject of a complaint, brought forward by the European Humanist Federation (EHF) to the European Ombudsman. In 2011, the EHF proposed to the European Commission a seminar within the framework of the Article 17(3) of the TEU on the topic ‘Competing Rights issues in Europe’.13 As it was explained in the motion, the aim of the dialogue seminar was to examine issues of human rights, equality and non-discrimination arising from the exemptions for ‘churches and other public or private organisations the ethos of which is based on religion or belief’ in Article 4 of the Employment Equality Directive 2000/78.14 Yet, the proposal was rejected by the Commission, which claimed it had no competence in religious or philosophical matters. Following a complaint by the EHF, the Ombudsman, Mr Diamandouros concluded that By rejecting the complainant’s proposal for a dialogue seminar, on the grounds that this would go beyond the spirit of Article 17 (1) and (2) TFEU, the Commission failed to properly implement Article 17(3) TFEU, according to which the EU is obliged to ‘maintain an open, transparent and regular dialogue’ with churches, religious associations or communities, philosophical and non-confessional organisations. This constitutes an instance of maladministration.15

 Guidelines on the implementation of Article 17 TFEU by the European Commission, available on line: https://ec.europa.eu/archives/bepa/pdf/dialogues/guidelines-implementation-art-17.pdf. For a comment, see Dančiaková (2017), p. 91 ff. and Pimpurniaux (2020), p. 19 ff. 12  Article 11 (1, 2) TEU states: ‘1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. […]’. 13  The complaint discussed in detail in Annicchino (2013). 14  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 15  Decision of the European Ombudsman in its inquiry into complaint 2097/2011/RA against the European Commission, decision on 25 January 2013. 11

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2.2.2 Transparent The principle of the transparency can be understood in multiple ways. The dialogue is transparent, as the website of the Commission informs (post factum) about all meetings, including a short summary and a complete list of the participants mentioning clearly which organisation they represent. The transparency is assured also by the Transparency Register, which helps to identify the dialogue partners, includes some contact details and in many cases provides very useful information about the meetings that actually have taken place so far (both meetings in person and online). The EP as the first European institution published on its website a Transparency Register, listing all the organisations registered for lobbying purposes. The staff of these organisations, equipped with a special EP-badge, was allowed to meet MEPs and their assistants. For this paper, particularly relevant was section V of the register, listing organisations representing churches and religious communities.16 To give an idea about the numbers, on 14 January 2019, there were 52 such organisations out of a total of 11,892 registered organisations. It is worth highlighting that these are not churches themselves,17 but church offices, representing various Christian, Muslim, Jewish and other smaller denominations, including Bahai.18 All these organisations are registered in the same category of the list: there are no subdivisions or differentiations between organisations, hence smaller denominations are in the same position as bigger churches/organisations. Thus, the formal equality and symmetry between various churches and religious communities is assured. Two remarks may be added: first, what might have discouraged some organisations from registering, is the necessity to declare publicly their annual budget and declare their sources of funding. Second, due to their own choice, some religious entities are represented on various levels: as an example, the Austrian Catholic diocese of Graz-Seckau is registered as an institution (the ‘Welthaus’ of the diocese), as the Austrian Bishop’s Conference and as the European Bishops’ Conference (COMECE). Similarly, the Church of England is represented both by the bishop of diocese for Europe and by the (Anglican) Procathedral of Holy Trinity in Brussels. Currently, rules and principles concerning the transparency register are laid down in the 2021 Interinstitutional Agreement.19 This Interinstitutional Agreement was signed by the President of the Council, President of the European Parliament and the representative of the Commission, Commissioner Jourovà. Being signed by

 The EU Transparency Register is available at http://ec.europa.eu/transparencyregister/public/ consultation/reportControllerPager.do?d-1924860-page=3&d-1924860-sort=&d-1924860-ord er=&action=search&categories=44. 17  Technically, under Article 4 (2)(f), churches and religious communities are not concerned by the Agreement, hence they should not be registered. 18  Bahai was chronologically the first organisation to be registered. 19  Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register, OJ 11 June 2021, 1. 16

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the three main EU institutions, it replaces the 2014 agreement agreed on by the Commission and the Parliament.20 Annex I to this Agreement is the Code of Conduct, which must be signed by all interested organisations. Its Annex II lays out the structure of the register, particularly the information which must be provided such as: a) name of the entity; address of the head office and the office in charge of relations with the Union, if different from the head office; phone number; e-mail address; website; b) form of the entity; c) interests represented; d) confirmation that the applicant operates in accordance with the code of conduct; e) name of the person legally responsible for the entity and of the person in charge of relations with the Union; f) an annual estimate of the full-time equivalents for the persons involved in covered activities according to the following percentages of a full-time activity: 10%, 25%, 50%, 75% or 100%; g) goals, remit, fields of interest and geographical level of engagement; h) organisations of which the registrant is a member and entities with which the registrant is affiliated; i) registrant’s members and/or affiliation with relevant networks and associations. With the 2021 changes, the organisations previously registered remained in the register. However, initially the access to the online transparency register got slightly more complicated, as in its first online version did not list churches/religious communities/ philosophical organisations as a separate search category. The search machine allowed either entering a name or a search within predefined categories, either by category of registration (persons, organisations, companies, think tanks, etc.) or by a field of interest (climate action, consumers, energy, taxation, trade, etc.). This situation has been rectified and a special search category ‘organisations representing churches and religious communities’ was created. As a critical remark, the search category in its name does not refer to philosophical organisations, as provided by Article 17 TFEU. The register currently lists 52 organisations labelled as such, including humanists (Unie Vrijzinnige Verenigingen), and three pagan organisations.21 The transparency register is a genuinely interesting source of information: as an example, the entry on COMECE lists all its seminars, major meetings and contacts with the EU staff. The budget of an organisation must be revealed in the register. While some entities publish their exact data (or at least, plausible data), some other present hardly plausible data. 22 The register lists also grants received (see as example grants received by the Communità religiosa islamica italiana) The transparency is also ensured by the legal requirement of publishing data concerning meetings the Commissioners or members of their teams hold, in  Agreement between the European Parliament and the European Commission on the transparency register for organisations and self-employed individuals engaged in EU policy-making and policy implementation. 21   Germany-based Pagan Federation International Deutschland e.V., the Netherlands-based Stichting Pagan Federation International, and most recently the Italy-based International Wolfsangist Community, registered on 22 July 2022. 22  The European Muslims League presented a rather far-fetched budget (annual budget of 40.000 EUR for 40 staff members). 20

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accordance with the Commission decision of 25 November 2014 on the publication of information on meetings held between Members of the Commission and organisations or self-employed individuals. 23 2.2.3 Regular In 1997, before the entry into force of the Amsterdam Treaty (and hence, before the Declaration No. 11) COMECE and CEC developed a tradition of meeting every new Presidency of the European Council, offering recommendations for people-­ centred policies. This tradition has been pursued by each Council Presidency, every six months. During COVID-19 lockdowns and related restrictions, these meetings took place online. While the dialogue in general should be regular, no frequency was ever set formally.24 In 2005, the then President of the Commission, José Manuel Barroso, took the initiative to organise an annual high-level meeting with European religious leaders.25 The Presidents of the European Parliament and the European Council has been participating since 2007. The meetings between the European institutions and religious/philosophical communities could be informally classified as belonging to certain subcategories. The general meetings usually took place twice a year: as meetings with the religious leaders and (as of 2009) separate meetings with philosophical organisations. Some meetings are devoted to a specific topic, allowing for a in-depth exchange and analysis. As an example, on 14 January 2022 took place an Article 17 TFEU dialogue meeting on the Conference on the Future of Europe, gathering 16 representatives of religious and non-religious organisations. At the virtual table were present major organisations: Catholic, Orthodox and Protestant churches, Jewish communities, and smaller organisations, like the European Buddhist Union. Other previous specific meetings included meetings on the Artificial Intelligence (10 September 2018, 18 June 2018) and on the Green Deal (10 June 2021). These topics are high on the list of the priorities of the European institutions. The religious and philosophical organisations may contribute to the discussion, presenting their point view and their concerns. The website of the Commission include the names of the participating persons and name of the organisations they represent. The Vice-President of the European Commission in charge of the contacts with religious and philosophical organisations holds also occasionally additional meetings, focusing on one denomination only (e.g. Muslim or Jewish). The reasons for that are special anniversaries, events or circumstances, e.g. Holocaust Remembrance Day, celebration of Jewish Hanukkah or Muslim Iftar. As an example can be recalled

 Commission Decision 2014/839/EU, Euratom, 22.  Michl (2017), p. 229. 25  Hatzinger and Schnabel (2009), p. 55. 23 24

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a meeting of the VP Timmermans with European Muslim leaders (on 28 March 2018) or on Engaging Muslim Young People in the Future of Europe Debate (28 September 2017, with a participation of 29 Muslim students from 17 Member States).

2.3 Actors on the Side of the European Institutions As regards the partners on the side of the European institutions, there are persons assuring these contacts at various levels. Within the European Commission, the person in charge is currently Mr Margaritis Schinas, the Vice-president in charge of ‘Promoting our European way of life’. His predecessor was Mr Frans Timmermans, the first Vice-President in charge of the Fundamental Rights. Mr Schinas convenes and presides over the meetings the European Commission organises. The everyday contacts between the Commission and the churches and philosophical organisations are assured by a unit within the DG Justice, and more specifically by a person within this unit: since 2017 Mr Vincent Depaigne. As explained above, historically it has been not always a unit within DG JUST, which was in charge of the dialogue. On top of the general contact person, there also a specific coordinator on combating Anti-Semitism and fostering Jewish Life, Ms Katharina von Schnurbein, and since 2015 a Coordinator on combating anti-Muslim hatred.26 Being par excellence a political body, the European Parliament is vividly interested in the issues of churches and religions. The person in charge of the contacts is the First Vice-President of the European Parliament, currently Austrian MEP Othmar Karas (from the EPP, European People’s Party). Within the Parliament there is also a intergroup on Freedom of Religion and Belief, consisting of MEPs from various parties. This group publishes valuable reports, i.a. listing all EU actions and iniatives in the field of freedom of religion and belief, most recently ‘The EU and freedom of religion or belief, 2017–2021’.27 In between dialogue seminars, the Parliament maintains a regular dialogue with Article 17 TFEU partners at various levels, including the administrative level through its dedicated secretariat.

 This latter post has been vacant since June 2021.  See ‘The EU and freedom of Religion or belief 2017-2021. Presentation of the periodical report’, available at http://www.religiousfreedom.eu/2022/03/23/elementor-1023/. 26 27

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2.4 The External Dimension of the Dialogue 2.4.1 Special Envoy on the Promotion and Protection of Freedom of Religion or Belief Outside of the European Union An overview of the activities of the MEPs in the area of religious freedom reveals very quickly that the MEPs are often interested in the religious issues, particularly in the questions of the religious persecution taking place outside of the European Union. This was one of the reasons why a special post of the EU Envoy for Religious Freedom was established by the President of the European Commission, Jean-­Claude Juncker, in 2014. Slovak Jan Figel’, previous EU Commissioner in charge of education and culture, was entrusted with this task. As the EU Special Envoy on FoRB, Figel’ played an important role in helping Asia Bibi, a Catholic woman unjustly sentenced to death for blasphemy, to leave Pakistan after her acquittal. Mr Figel’ was also involved in the creation of the Punta del Este Declaration on Human Dignity for Everyone Everywhere, which was signed by hundreds of signatories. In December 2019, after the end of the mandate of Jan Figel’, the post was dismantled. Following the ardent critic, the European Commission re-established the post and appointed Ex-Commissioner Christos Stylianides: however, after a few months, in September 2021, he quit the post to take up a positon in the Greek government. Various organisations called upon the Commission to fill in this post again: Mr Frans van Daele, former Belgian diplomat, was appointed in December 2022. 2.4.2 The EU Guidelines EU Guidelines on the promotion and protection of freedom of religion or belief were adopted by the EU Foreign Affairs Council on 24 June 2013.28 As they relate to the actions and activities outside of the EU, they mainly refer to the international legal texts, like the ICCPR (International Covenant on Civic and Political Rights) or to the regional texts (like the African Charter on Human and People’s Rights or Revised Arab Charter on Human Rights). Covering a number of issues (violence, freedom of expression, promotion of respect for diversity and tolerance, discrimination, manifestation of religion or belief, changing or leaving one’s religion or belief, etc.) the Guidelines announce what kind of actions the EU may/ will undertake and what tools it has at its disposal.

28

 Available on line at https://www.eeas.europa.eu/sites/default/files/137585.pdf.

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3 Other EU Religion-Related Provisions It is opportune to remind that the Charter of Fundamental Rights (CFR), at first proclaimed solemnly in 2000, which later became a part of the Treaties, contains a few religion-related rights. As extensively commented in other chapters of this volume,29 the most pertinent are Article 10 CFR (Freedom of thought, conscience and religion),30 Article 14 CFR (Right to education, which provides for the respective rights of parents),31 Article 21 CFR (Non-discrimination principle)32 and, finally, Article 22 CFR (Cultural, religious and linguistic diversity). It must be noted that even Article 22 CFR affirms that ‘The Union shall respect cultural, religious and linguistic diversity’, non-­ religious views (Weltanschaungen) are not explicitly mentioned.33

4 Possibility of a Concordat? The possibility of concluding a concordat between the EU or a kind-of-state-churchtreaty (Staatskirchenvertrag/Intesa) with churches and religious communities seems to be a purely academic discussion. The provisions of the TFEU explain clearly the procedure to follow while negotiating, signing and concluding international agreements (particularly Articles 216 and 218 TFEU).34 The involvement of the Council in the process is beyond any doubt: the Council actually plays the crucial role. Thus, any possible concordat/ agreement would be a subject of a thorough scrutiny of the Member States which would analyse whether the EU was competent to act and whether the rights of the Member States were not infringed. This last word seems to be a key word here: The Article 17 TFEU exactly tells the EU to respect and not to prejudice the status the churches and religious

 Inter alia, see Chapter ‘The Protection of Freedom of Religion in the EU Law’ by Valentina Petralia in this book. 30  ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless frontiers. 2. The freedom and pluralism of the media shall be respected’. Hence, it protects not only people believing, but also atheists, see Thiele (2017a) Article 10, 1146. 31  ‘The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right’. 32  ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’. 33  Thiele (2017b) Article 22, 1146. 34  Heliskoski (2020), p. 79. 29

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communities enjoy under the national law. The EU law, mainly secondary law, is very careful in this respect. The collection of the EU norms relating to the churches and religious communities,35 prepared by Prof. G.  Robbers and his team at the University of Trier provided clear examples in this respect. Nevertheless, the most recent jurisprudence of the EU Court of Justice demonstrates that there are more and more points, where the EU law, the ecclesiastical law and the internal law of churches and religious communities meet, triggering legal conflicts.36 None of the usual, traditional subjects of a concordat/agreement could be relevant for a treaty between the EU and churches/religious communities: the issue of recognition of religious entities, which is a sole competence of the Member States; the issue of the religion classes/teaching in schools, as again it is the competence of the Member States, giving the UE very limited competences in Article 165 TFEU (education, vocational training, youth and sport);37 the issue of spiritual/religious assistance in hospitals and army, as the EU itself does not run any hospitals nor does it have its own army. Additionally, the rights of churches are protected by the declarations, such as the declaration on Mount Athos at the occasion of the Greek Accession to the European Communities, and the Polish Declaration No. 39 (quite circumvented declaration on morality, which was meant to make sure that the Polish provisions concerning abortion could not be changed through the EU law). Having the same idea in mind, the government of Malta opted for a respective protocol,38 which has much higher legal value than a declaration. Formally speaking, only the Catholic Church has the legal instruments to conclude an international treaty (through the Holy See being a subject of the international law). However, a treaty-like agreements are signed by many states across Europe, which does not create legal doubts, nor is it challenged. This formal aspect should not be seen as a serious legal obstacle. G. Robbers underlines that while a Treaty with the Holy See would be fully legitimate, also similar agreements with other churches/religious communities would be possible based on Article 352 TFEU (the so-called flexibility clause) in connection with Articles 216 (EU treaty-making power) and 335 TFEU (EU legal capacity in Member States).39

 Robbers (2010).  Infra, § 6. 37  Under Article 6 TFEU, the EU shall have competence just to carry out actions to support, coordinate or supplement the actions of the Member States in the area of education, vocational training, youth and sport. 38  Protocol No. 7 (on abortion), OJ L 236, 23.9.2003, p. 947. 39  ‘In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation’. See Robbers (2019), p. 685. 35 36

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5 On the Legal Status of the Clergy While discussing the issue of the legal status of churches and other organisations, an important question is usually overseen: the priests, rabbis and imams circulate in the EU (sometimes also from outside of the EU, which is a different subject), but what is their legal situation within the meaning of the TFEU? Are they workers, are they self-employed, or do they provide services? In referring to the analysis carried out in another chapter of this volume,40 in my opinion it is opportune to observe the following. No general definition of who is a priest has been developed, neither on a national level nor on the EU level. The EU law which provides for free movement in the EU distinguishes a few categories: workers, students, pensioners. A person benefitting from the free movement should be eligible to be classified as one of them: however, it would be very difficult to classify a priest (a rabbi, an imam) as a worker, self-­ employed, or a service-provider. Starting with the latter: it would be difficult or impossible to establish a value of a service (celebrating a mass, giving communion, listening to a confession?). The priests, particularly the members of the religious orders, must follow the instructions of their superiors, they should not be qualified as self-employed. On the other hand, they are not workers either, as they are appointed, and do not sign a contract.41 The jurisprudence of the EU Court of Justice in this respect—and let us add, it is not a recent one—does not seem to bring any clear answer. In a case known as van Roosmalen, concerning a Catholic priest, being a missionary in Africa, the Court of Justice opted for a broad understanding of the term ‘self-employed’.42 The Member States and their courts have been for decades avoiding answering a question who is and who is not a priest/minister. The general approach is that the churches/religious communities define who their minister is. The problematic issue arises clearly in situation where a church and a minister disagree in that respect. Leaving the issue in the competence of ecclesiastical courts, whose judges are appointed by a bishop, is not necessarily a guarantee of a fair trial, which was noticed by Strasbourg judges in case of Károly Nagy.43 In Germany, there is a

 See Chapter ‘Free Movement of Persons and Religious Freedom Within the EU’ by Alessandra Lang in this book. 41  These formal aspects were extensively discussed in the ECtHR judgment Károly Nagy, 56665/09, judgment of 14 September 2017. 42  C-300/84, A.  J. M. van Roosmalen v Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen, judgment of 23 October 1986. In para 23, the ECJ stated: ‘[…] the expression “self-employed person” within the meaning of Article 1 (a) (iv) of Regulation No. 1408/71, as amended by Regulation No. 1390/81, applies to persons who are pursuing or have pursued, otherwise than under a contract of employment or by way of self-employment in a trade or profession, an occupation in respect of which they receive income permitting them to meet all or some of their needs, even if that income is supplied by third parties benefiting from the services of a missionary priest’. 43  Karoly Nagy judgment, see supra. 40

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special category of legal disputes before the state courts called Statusklagen (status claims) which are aimed at clarifying the situation of a given person. There is even a sub-category, known as verkappte Statusklagen,44 (hidden status claims), where a trial allegedly focused on other rights must answer the question, whether the person in question is or is not a minister. The state courts, including Federal Constitutional Tribunal (Bundesverfassungsgericht) and Federal Administrative Court (Bundesverwaltungsgericht) have been more than hesitant to answer the questions concerning the legal status of clergy; certain changes in that respect have been noticed only in years 2000. From the perspective of the EU law, the lack of the definition/clarification on the status of clergy is not a problem, as long as they enjoy freedom of movement. If nobody contents this right, no clarifications are needed. However, interesting legal questions would arise if the Member States, EU law or the Luxembourg Court case law would prevent the priests from moving within the EU. The legal answer would require explanation, which freedom the priests/rabbis/imams are denied.

6 A Brief Outlook to the EU Court of Justice Jurisprudence on Religious Issues For decades, the ECJ was barely active in the areas touching upon the religious issues. Van Duyn,45 Prais,46 van Roosmalen47 and Steymann48 were only cases mentioned in that respect. As highlighted in another chapter of this volume,49 the non-discrimination directives, particularly the famous Directive 2000/78, intensified the jurisprudence of the ECJ in the area of labour law, e.g. through the cases linked to wearing a headscarf at the work place, 50 and the most recent judgment of the EU Court of Justice, pronounced on 13 October 2022, referred again to the issue of religious clothing. Particularly, the Luxembourg Court stated that the internal rule of an undertaking prohibiting the visible wearing of religious, philosophical or spiritual signs does not

 BVerfGE 18, 385 and BVerwGE 25,226. Verkappte Statusklage in 2 C 23.92, BVerwGE 95,379.  C-41/74, Yvonne van Duyn v Home Office, judgment of 4 December 1974. 46  C-130/75, Vivien Prais v Council of the European Communities, judgment of 27 October 1976. 47  C-300/84, A.  J. M. van Roosmalen v Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen, judgment of 23 October 1986. 48  C-196/87, Udo Steymann v Staatssecretaris van Justitie, judgment of 5 October 1988. 49  See Chapter ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’ by Fabio Spitalieri in this book. 50  See C-157/15, Samira Achbita e Centrum voor gelijkheid van kansen en voor racismebestrijding contro G4S Secure Solutions NV, judgment of 14 March 2017, and C-188/15, Asma Bougnaoui e Association de défense des droits de l’homme (ADDH) contro Micropole SA, judgment of 14 March 2017. 44 45

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constitute direct discrimination if it is applied to all workers in a general and undifferentiated way.51 Moreover, in recent years, the EU Court of Justice dealt also with other issues of slaughtering of animals according to the religious rites. While these cases are discussed in extenso in another chapter,52 it is worth briefly recalling what was learned from these judgments so far. In case C-426/16,53 the Court confirmed that ritual slaughter without stunning may take place only in an approved slaughterhouse, even in times of increased demand, like before the Muslim Feast of Sacrifice, when the regular slaughterhouses do not have sufficient capacity to carry out religious slaughter and additional temporary slaughter houses were organised. In the next case C-497/17,54 the Luxembourg Court stated that meat resulting from ritual slaughter where the animals were killed without prior stunning may not be labelled with an organic logo, as under Article 3 of Regulation No. 1099/2009, animals shall be spared any avoidable pain, distress or suffering during their killing. Finally, in C-336/19, the Court, acting as Grand Chamber, ruled that the provisions mentioned by the Flemish and Walloon Governments must be interpreted as not precluding legislation of a Member State which requires, in the context of ritual slaughter, a reversible stunning procedure which cannot result in the animal’s death. In conclusion, 13 years after the entry into force of the Lisbon Treaty it seems that the reality corresponds with the provisions of the Article 17 TFEU. However, it can be easily predicted that more cases decided by the EU Court of Justice in the areas where the ecclesiastical law and the internal law of churches and religious communities meet the EU law can be expected.

References Annicchino P (2013) Religion and EU institutions. Ecclesiastical Law J 15:326 Dančiaková VT (2017) Dialogue of the European Union with churches and religious associations or communities. In: Klenka M, Vlková E (eds) Economic, political and legal issues of international relations, Volume of Scientific Papers, Fakulta medzin.rodných vzťahov, Ekonomická univerzita v Bratislave, p 87 ff Doe N (2011) Law and religion in Europe. A comparative introduction. Oxford Friedner L (2019) Church and State in Sweden. In: Robbers G (ed) Church and State in the EU. Baden-Baden, p 644  C-344/20, L.F. v SCRL, judgment of 13 October 2022, para 21.  See Chapter ‘Navigating Between Animal Welfare and Freedom of Religion’ by Costanza di Francesco Maesa in this book. 53  C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, VZW and Others v Vlaams Gewest, judgment of 29 May 2018. While the ECJ judgment is quite enigmatic, the pertinent press release 69/18 (‘The Court confirms that ritual slaughter without stunning may take place only in an approved slaughterhouse’) is succinct and very clear—see the comment by Howard (2019), p. 803. 54  C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs (OABA) v Ministre de l’Agriculture et de l’Alimentation and Others, judgment of 26 February 2019. 51 52

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Hatzinger K, Schnabel PR (2009) Religions and the European Union: a partnership in the making. In: Derecho y Religion, vol IV, p 55 Heliskoski J (2020) The procedural law of international agreements: a thematic journey through Article 218 TFEU. Common Mark Law Rev 57(1):79 Howard E (2019) Ritual slaughter and religious freedom: Liga van Moskeeën. Common Mark Law Rev 56(3):803 Klamert M (2019) Article 17 TFEU.  In: Kellerbauer M, Klamert M, Tomkin J (eds) The EU Treaties and the Charter of Fundamental Rights. A commentary. Oxford, p 411 Łopatowska-Rynkowska J (2012) Art. 17. w: Wróbel A (ed) TFUE. Komentarz, Warszawa, vol 1, p 343 Michl W (2017) Article 17 AEUV.  In: Pechstein M, Nowak C, Häde U (eds) Frankfurter Kommentar, EUV, GRC, AEUV, Frankfurt/Oder, p 229 Pimpurniaux D [avec la collaboration de Sägesser C] (2020) Le dialogue entre l’Union européenne et les organisations religieuses et philosophiques, Courrier hebdomadaire, CRISP Portaru A (2017) Europe: in search of a soul: Article 17 TFUE and its functioning. Nottingham Law J 26:37 Robbers G (ed) (2010) Religion-related norms in the European Union Law. Trier Robbers G (ed) (2019) State and Church in the European Union. Baden-Baden Rynkowski M (2006) New aspects of the European ecclesiastical law. In: Dann Ph, Rynkowski M (eds) The Unity of the European Constitution, 2006, p 350 Thiele C (2017a) Article 10. In: Pechstein M, Nowak C, Häde U (eds) Frankfurter Kommentar EUV, GRC, AEUV. Frankfurt/Oder Thiele C (2017b) Article 22. In: Pechstein M, Nowak C, Häde U (eds) Frankfurter Kommentar, EUV, GRC, AEUV. Frankfurt/Oder Michał Rynkowski  completed law studies at the Faculty of Law and Administration, University of Wrocław (1999), postgradual studies of the European Integration at the Europa-Institut in Saarbruecken (LL.M.Eur. 2002), Doctor of Law 2003 and ‘doktor habilitowany’ 2014, University of Wrocław. He was a former Assistant Professor at the Chair of International and European Law, Faculty of Law, Administration and Economics, University of Wrocław. Since 2006, he is an official of the European Commission, Brussels. His main area of interest is the Ecclesiastical Law. Since 2018, he is a member of the European Consortium of Church and State Research. His main publications include ‘Sądy wyznaniowe we współczesnym europejskim porządku prawnym’ (Religious courts in the contemporary European legal system), Wrocław, 2014 and ‘Religious courts in the jurisprudence of the European Court of Human Rights’, Leiden, 2019.

Navigating Between Animal Welfare and Freedom of Religion Costanza Di Francesco Maesa

Abstract  In December 2020, for the third time, the European Court of Justice pronounced on ritual slaughter, and had the opportunity of seeking a balance between animal welfare, as set out in Article 13 TFEU and reflected in Regulation 1099/2009, and the right to freedom of thought, conscience and religion, enshrined in Article 10 of the EU Charter of Fundamental Rights. To explore the delicate issue of the reconciliation between animal welfare and the freedom to manifest religion, this contribution first analyses the notion of animal welfare in the EU law. In the second place, it examines the ECJ case law on ritual slaughter and third, it investigates the content and the scope of the right to freedom of religion in the EU law taking ritual slaughter as a case study. Finally, before drawing some conclusion, it explores the issue of the Member States’ margin of appreciation and its relationship with the principle of subsidiarity in the light of the Court’s case law previously examined. Keywords  Animal welfare · Freedom of religion · Principle of subsidiarity · Article 13 TFEU · Article 10 CFR · Margin of appreciation · Ritual slaughter

1 Introduction The decision to allow or ban ritual slaughter is one the most problematic issues that European policymakers had to deal with in recent years,1 considering the relevant interests at stake, i.e. animal welfare and the right to freedom of religion.

 See, inter alia, Case (2019).

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C. Di Francesco Maesa (*) University of Siena, Siena, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_13

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On the 17 December 2020, in Centraal Israëlitisch Consistorie van België and Others (hereinafter C-336/19)2 the European Court of Justice (ECJ), for the third time,3 had the opportunity of seeking a balance between animal welfare,4 as set out in Article 13 TFEU and reflected in the Regulation 1099/2009,5 and the right to freedom of thought, conscience and religion enshrined in Article 10 of the EU Charter of Fundamental Rights (hereinafter ‘CRF’). In this case the ECJ was called to decide whether Regulation 1099/2009 gives Member States the power to adopt additional rules which ensure greater protection for animals slaughtered according to religious rites than those provided for by the Regulation itself.6 The interrelationship between animals’ welfare and religious rites includes a vast array of situations, as religious precepts require believers to behave in prescribed ways in relation to animals. In this essay, we do not intend to cover all the cases of conflicts between animals’ welfare and right to freedom of religion. We aim, on the contrary, at examining the case of ritual slaughter, whose performance according to Muslim and Jewish religious precepts may be, according to certain Member States’ rules, incompatible with animals’ welfare. This contribution examines the ECJ judgment in C-336/19 because of the important implications that the decision has on the definition of a fundamental principle of the EU architecture, such as the principle of subsidiarity. This contribution aims at exploring the delicate issue of the reconciliation between animal welfare and the freedom to manifest religion, first, by examining the notion of animal welfare in the EU law. In the second place, by briefly examining the ECJ case law on ritual slaughter and, third, examining the content and the scope of the right to freedom of religion in the EU law taking ritual slaughter as a case study. Lastly, we intend to explore the issue of the scope of Member States’ margin of appreciation and its relationship with the principle of subsidiarity in the light of the Court’s case law previously examined, and, in the end, we draw some conclusions.

2 The Notion of Animal Welfare in the EU In this section, we aim at exploring the meaning and the scope of the notion of animal welfare, as it has evolved in the EU legal framework. Particularly, we are going to examine it through the lens of the ECJ’s case law. Describing the evolution of the  C-336/19, Centraal Israëlitisch Consistorie van België and Others, 17 December 2020.  Previously, the ECJ decided cases C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, 29 May 2018 and C-497/17, Œuvre d’assistance aux bêtes d’abattoirs, 26 February 2019. 4  The ECJ makes reference to animal welfare as an EU value in C-336/19, § 41. 5  Council Regulation 1099/2009 of 24 September 2009 on the protection of animals at the time of killing. 6  C-336/19, §§ 39–48. 2 3

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concept of animal welfare in the EU legal framework, we also aim at investigating which other EU values and principles, i.e. the protection of the environment, the protection of human health, the public confidence in food safety and consumer protection, wanted to be protected by the EU legislator when the EU legislation on animal welfare was adopted. To this end, the ECJ’s considerations on the importance of labelling for animal welfare and consumers’ protection are particularly taken into account. The protection of animal welfare, now enshrined in Article 13 TFEU, according to the ECJ case law,7 is ‘an objective of general interest recognised by the European Union’,8 and an EU value. Article 13 TFEU states in fact that In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage. The ECJ stated that animal welfare is “a value to which contemporary democratic societies have attached increasing importance for a number of years”, and which may “in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter” to help justifying the proportionality of legislation such as that at issue in C-336/19 examined above.9

As highlighted by the ECJ, the concept of animal welfare has evolved over the years in the EU law. It is recently that animal welfare has reached its current normative status, thanks to increased ethical concerns of civil society to animals’ dignity and welfare. At the beginning, from the 1976 Council of Europe Convention for the Protection of Animals kept for Farming Purposes to Directive 98/58/EC on the protection of farm animals,10 the concept of animal sentience was absent in the European legislation and, consequently, the legal protection granted to animal was minimal. Different fields of study, such as applied ethology,11 cognitive science and neuroscience12 made it possible to understand animals’ emotional and cognitive abilities and showed that animals’ welfare is a measurable concept through which it is possible to consider the characteristic of any individual animal and to measure its condition, which can vary from the good or positive to the poor or negative. 13 This is the result of a re-awakening, which took place after the Second World War. The rapid industrialisation of production methods and the quick diffusion of intensive

 See C-37/06 and C-58/06, Viamex Agrar Handel and ZVK, 17 January 2008, § 22; C-219/07, Nationale Raad van Dierenkwekers en Liefhebbers and Andibel, 19 June 2008, § 27; C-100/08, Commission v Belgium, 10 September 2009, § 91; C-424/1, Zuchtvieh-Export, 23 April 2015, § 35. 8  C-336/19, § 63. 9  Ibid., § 77. 10  Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes. 11  Gonyou (1994), p. 2171. 12  Bekoff et al. (2002). 13  See Broom (2014). 7

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method of meat production which were used to answer to the huge demand of cheap food were criticised 14 and gave an impulse to investigate the phenomenon of animals’ suffering from a scientific perspective. For instance, the report adopted following the request by the British Government to investigate the problems of intensive livestock concluded that feelings are an important feature of welfare 15 and, precisely, that ‘[w]elfare is a wide term that embraces both the physical and mental well-being of the animal. Any attempt to evaluate welfare, therefore, must take into account the scientific evidence available concerning the feelings of animals that can be derived from their structure and functions and also from their behaviour’. 16 The inquiry committee suggested, therefore, to adopt the by now well-known ‘Five Freedoms’, which, as lately modified by the Farm Animal Welfare Council, 17 became the starting point for the legitimisation of animal welfare science as conceived in the ‘Innovation Union’. 18 Apart from focusing on the neuroendocrine and behavioural indicators of stress, animal welfare scientists started studying the topic also from another perspective, i.e. considering the interrelationship between animal sentience and welfare.19 Researchers studying animal sentience discovered that animals, like humans, have their own point of view and their own consciousness, which determines their behaviour and make them capable of giving their environment an affective value.20 They do not only react to their environment. As it has been stated, in fact, it is ‘the way in which the animal perceives its environment, and not the environment per se, that determines its welfare’. 21 From a legal perspective, the sentience of animals has been finally recognised in Article 13 TFEU, 22 where we can read that, ‘since animals are sentient beings’, the EU and the Member States shall ‘pay full regard to the welfare requirements of animals’ ‘in formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies’. Thus, as it has been affirmed by the ECJ, Article 13 represents a parameter for the legitimacy of Union acts ‘when formulating and implementing animal welfare

 Harrison (1964).  See Report of the Technical Committee to Enquire into the Welfare of Animals kept under Intensive Livestock Husbandry Systems. Her Majesty’s Stationery Office, London (the so-called ‘Brambell Report’), Command Paper 2836, 1965. 16  Ibid. 17  FAWC (Farm Animal Welfare Council), Farm Animal Welfare in Great Britain: Past, Present and Future, 2009. 18  EU Commission, ‘State of the Innovation Union 2015’, DG for Research and Innovation. 19  Griffin (1976). 20  Mason (1971). 21  See Boissy (2019), p. 29, making reference to ANSES, Avis relatif au bien-être animal : contexte, définition et évaluation, 2018. 22  Article 13 TFEU was introduced with the Lisbon Treaty and entered into force in 2009. 14 15

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policy’.23 The same is true of national laws and practices implementing Union law.24 Besides, Article 13 TFEU considers the necessity of respecting the Member States’ legislative or administrative provisions and customs ‘relating in particular to religious rites, cultural traditions and regional heritage’, while ensuring the protection of animal welfare. 25 Accordingly, Regulation 1099/2009, whose objective is to promote and ensure to the greatest extent possible animal welfare, provided under Article 4(4) an exception in case of ritual slaughter to the general rule of prior stunning of animals at the moment of killing. The ECJ, pronouncing on the interpretation of Articles 4(4) and 26(2)(c) of Regulation 1099/2009, affirmed importantly that animal welfare shall be interpreted in the light of the present-day conditions and of the ideas prevailing in the Member States, especially if we consider that it is a value to which EU citizens and Member States attached increasing importance in the last years.26 Sensitivity towards the protection of farm animal welfare has in fact increased exponentially in the last years, and in certain cases EU citizens have even asked the EU institutions to reduce or eliminate livestock production.27 The extent to which sensitivity towards animal welfare has increased over the years is exemplified by the issue of the import and export of animals’ products. Differently from what was affirmed by the ECJ in case C-1/9628 in relation to protection of health or life of cattle, where the ECJ stated that a Member State could not ‘rely on Article 36 of the Treaty and, in particular, on the grounds of public morality, public policy and/or the protection of the health or life of animals laid down therein, in order to justify restrictions on the export of live calves’,29 in 2009 the EU law banned the import and export of most products made from seals.30 Regulation 1007/2009 banning the import and export of most products made from seals was justified on the ground that the hunting of seals had generated concerns among EU citizens and governments due to the ‘pain, distress, fear and other forms of suffering which the killing and skinning of seals’ impose.31 Similarly, in the WTO dispute  C-336/19, § 41.  See Adinolfi (2016), p. 39. 25  For an analysis of the animal welfare implications in two fields, i.e. the CAP reform and animal welfare labelling, see Leone (2020), pp. 47–84. On Article 13 TFEU, see also Ovie (2017). 26  EU Commission  – DG Health and Food Safety, Special Eurobarometer 442, Attitudes of Europeans towards Animal Welfare (2016). 27  A final report of the first EU-wide citizens’ consultation on future priorities of the EU showed that one out of seven citizens mentioned animal welfare among their hopes for the future EU priorities. 13% of citizens also affirmed that decisions taken at EU level for the welfare of animals would make them prouder to be European. See EU Commission, ‘Online Consultation on the Future of Europe Second Interim Report’ (Kantar Public 2019). 28  C-1/96, The Queen v Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming Limited, 19 March 1998. 29  Ibid. In the case at issue, the Council of Europe Recommendation concerning cattle, adopted by the Standing Committee on 21 October 1988 was taken into consideration. 30  Regulation (EC) 1007/2009 of the European Parliament and of the Council of 16 September 2009 on Trade in Seal Products. 31  Ibid., recital 4. 23 24

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settlement process that arose on this matter (EC-Seal Products),32 Canada and Norway contested the EU Regulation 1007/2009 banning the import and export of most products made from seals as a trade restrictive measure violating WTO law, but the Panel stated that the Regulation was a measure falling within the ambit of public morals under Article XX(a) of the 1994 General Agreement on Tariffs and trade (GATT). 33 According to the Panel, protecting public morals in relation to seal hunting was in fact a legitimate objective according to the TBT Agreement.34 Animal welfare has, thus, made its way into international law35 and has been recognised as a matter of public morals.36 The ethics of animals’ use was investigated in parallel with the scientific renovated interest in animal welfare. A very important book on this topic was written by Peter Singer, an Australian philosopher, who promoted a utilitarian approach to animal welfare and affirmed that using animals for humans’ need is deeply criticisable.37 His reasoning was developed further by Tom Reagan, who is considered the pioneer of Animal Rights. In his opinion, all sentient creatures, including animals, feel things and have an inherent value, and every individual who has an inherent value, has an ‘equal right to be treated with respect’. It is for this reason that ‘we must never harm individuals who have inherent value’,38 and that, in his opinion, animals should not be used at all, be it in biomedical science, to produce and eat meat, in agriculture, for sport or work, nor even as pets. In this case, animal rights are nevertheless considered only from an anthropocentric perspective and only the use of animals for human purposes is considered. All the human activities that may indirectly harm animals’ welfare, such as pollution of the environment, building roads and growing crops, are not considered.39 This anthropocentric focus, i.e. on preserving present and future human interests, rather than affirming and recognising animal dignity, can be found also in the laws on animal welfare that have been enacted at the national and the European level.40 However, despite the anthropocentric approach which characterises it, Article 13 TFEU, as interpreted by the ECJ, for instance, represents an important step in the direction of protecting animals, as, at least at a theoretical level, it represents a shift from the legal classification of animals as ‘agricultural goods’ to their recognition as sentient beings. Generally, however, the European legislation on animal welfare which has been progressively adopted in the last 40 years, from the 1974 onward,  WTO European Communities: Measures Prohibiting the Importation and Marketing of Seal Products – Report of the Appellate Body (2014) § 2.196, 5.138. 33  Ibid., § 7.639. 34  Ibid., § 7.419–7.420. 35  Leone (2020), p. 76. 36  Ibid., recital 4. WTO European Communities, § 2.196, 5.138. Ibid., § 7.639; ibid., § 7.419–420. Fernández-Pons and Lembo (2019). 37  See Singer (2002). 38  Regan (1983). 39  In the same sense, Duncan (2019), p. 18. 40  See Mucci (2022) for an analysis on the anthropocentric nature of international and the EU law. 32

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considered animal welfare from an anthropocentric perspective and concerned mostly farm animals.41 Particularly, the largest part of EU acts on animal welfare covers all the different steps of production, from farming itself to transport and killing of animals.42 Farming activities are regulated by five directives, which impose minimum standards,43 while the transport and killing of animals are covered by regulations.44 EU legislation on animal welfare has been adopted also to protect other key values and principles, namely the protection of the environment, the protection of human health, the public confidence in food safety and consumer protection. In this domain, the bovine spongiform encephalopathy (BSE) crisis,45 for instance, made it clear that animal welfare is one of the essential ‘legitimate factors’ for food safety policy, particularly ‘for the health protection of consumers and the promotion of fair practices in food trade’.46 Animals’ welfare was, thus, considered one of the ‘most stringent farming requirements’ for high quality food products derived from animals. The importance of ensuring consumer protection has been taken into consideration by the ECJ to define further the concept of animal welfare in the EU. In this sense, as it has been shown by the case law of the ECJ, labelling plays a fundamental role in allowing consumers to make an informed purchasing decision.47 The ECJ ruled in fact that, to protect consumers’ informed choice, Halal meat from animals slaughtered in the context of religious rituals without prior stunning could not be labelled as organic. Organic production, as expressly stated by Regulation

 See European Court of Auditors, ‘Animal Welfare in the EU: Closing the Gap between Ambitious Goals and Practical Implementation’ (2018) Special Report 31. 42  The EU has also adopted acts regulating wild animals or animals held in captivity, i.e. confined in zoos and aquaria, and acts restricting the trade of certain animal products, i.e. seal products (Regulation 1007/2009), and the judgment in C-583/11 P, Inuit Tapiirit Kanatami and others v. Parliament and Council, 3 October 2013. However, the welfare of pets, of animals used in experimentation, performing in circuses, or confined in zoos is beyond the scope of this contribution. 43  See the Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes; Directive 2008/119/EC of 18 December 2008 laying down minimum standards for the protection of calves; Directive 2008/120/EC of 18 December 2008 laying down minimum standards for the protection of pigs; Directive 1999/74/EC of 19 July 1999 laying down minimum standards on the protection of laying hens; Directive 2007/43/EC of 28 June 2007 laying down minimum rules for the protection of chickens kept for meat production. 44  Regulation 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products; Regulation 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directive 64/442/EEC and 93/119/EC and Regulation 1255/97; Regulation 1099/2009 of 24 September on the protection of animals at the time of killing. 45  See Ferrari (2009). 46  EU Commission, ‘White Paper on Food Safety’ COM(1999) 719 final, Points 15 and 70. 47  See, on this point, EU Parliament, Resolution of 4 July 2012 on the European Union Strategy for the Protection and Welfare of Animals 2012–2015, 49 and 67. 41

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834/2007,48 is in fact ‘an overall system of farm management and food production, [which] involves “the application of high animal welfare standards”’, where ‘animal welfare is “a priority”’. One of the peculiar features of organic farming is, thus, to ‘[produce] a wide variety of foods and other agricultural products that respond to consumers’ demand for goods produced by the use of processes that do not harm animal welfare’.49 Therefore, according to the ECJ, to observe ‘a high level of ­animal welfare’,50 animal suffering shall be kept to a minimum.51 To maintain consumer confidence in products labelled as organic,52 it is, therefore, important to ‘ensure that consumers are reassured that products bearing the Organic logo of the EU have actually been obtained in observance of the highest standards, in particular in the area of animal welfare’.53 In the end, the judgment of the ECJ54 confirmed the importance of labelling for animal welfare and for consumers, as it allows them to make an informed choice based on their ethical considerations.55 In the context of ritual slaughter, to ensure consumers’ right of choice, it has been suggested to provide EU consumers with information on the methods of slaughter of animals, due to the increased interest of EU citizens in the implementation of animal welfare rules at the time of killing.56 In this regard, also Advocate General (AG) Hogan stated that ‘products derived from animals which have been slaughtered without being previously stunned are destined for consumption by members of the public who, aside from being unaware of this fact’, may ‘have religious, conscientious or moral objections to consuming such products given the avoidable suffering endured by the animals in question’.57 Furthermore, in the AG Opinion, ‘a state of affairs whereby meat produce resulting from the slaughter of animals according to religious rites is simply allowed to enter the general food chain to be consumed by customers who are unaware—and who have not been made aware—of the manner in which the animals came to be slaughtered would not comply with either the spirit or the letter of Article 13 TFEU’.58 It is in this context that the objective of animal welfare pursued by Regulation 1099/2009 has been scrutinised by the ECJ in relation to ritual slaughter. The next

 Regulation 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation 2092/91, repealed and replaced by Regulation 2018/848 of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products. 49  C-497/17, § 36. 50  Ibid., § 36 and Regulation 834/2007, recital 1, recital 10, Article 3(a)(iv)(c), Article 5(h). 51  Ibid., § 37. 52  Regulation 834/2007, recital 3. 53  C-497/17, § 51. For an analysis of the role of animal welfare standards, see Leone (2020), p. 66ff. 54  Ibid. 55  See Leone (2020). 56  See Reg. 1169/2011, recital 50. 57  C-336/19, AG Opinion, § 62. 58  Ibid., § 63. 48

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section is, thus, dedicated to briefly examine the context in which the ECJ ruled on the delicate issue of ritual slaughter.

3 Animal Welfare Versus Freedom of Religion: The Case of Ritual Slaughter In this section, we are going to briefly examine in which occasions the ECJ had the opportunity to pronounce on ritual slaughter. To date, different issues of the same phenomenon, i.e. the slaughter of animals according to religious precepts, have been the object of the ECJ’s rulings on three different occasions. In all the three occasions, the ECJ ended up affirming that the EU and the Member States can adopt national rules aimed at regulating the slaughter of animals in the context of ritual slaughter without infringing the freedom of religion, as guaranteed in Article 10 CFR. Particularly, the ECJ stated that a Member State can ‘organise and manage, from a technical point of view, the freedom to carry out slaughter without prior stunning for religious purposes’59 and that a Member State can adopt national rules requiring in the context of ritual slaughter a reversible stunning procedure not resulting in the animal’s death.60 In the same vein, the ECJ affirmed that the Organic logo of the EU cannot be placed on products derived from animals which have been slaughtered without prior stunning according to religious rites.61 As a result, even in this case, the ECJ stated that the products obtained from ritual slaughter of animals can be regulated at the national and the European level. A similar conclusion was reached in 2000 by the European Court of Human Rights (ECtHR) in the highly criticised judgment62 Cha’are Shalom Ve Tsedek v France.63 In this judgment, the Strasbourg Court held that the refusal of the French Government to give the permit to an Orthodox Jewish religious community to have access to slaughterhouses to perform ‘Glatt’ ritual slaughter64 did not represent an interference with the freedom of religion under Article 9 ECHR. According to the ECtHR, there was no violation of Article 9 or 14 ECHR, since the applicants could obtain ‘glatt’ meat from the neighbouring country, namely Belgium.65 However, we  C-426/16, § 58.  C-336/19, § 81. 61  C-497/17, § 52. 62  See Schouppe (2005), p. 616. 63  ECtHR (GC), Cha’are Shalom Ve Tsedek v France, 27417/95, 27 June 2000. 64  In this case, the Jewish community wanted to obtain an official approval to perform ritual slaughter according to the very strict religious prescriptions of its members in their own slaughterhouses. According to the applicants, the meat should be ‘glatt kosher’, which means that the meat comes from an animal which is ‘without defect’, i.e. an animal whose lungs have been inspected and there is no doubt on its quality. See ECtHR (GC), Cha’are Shalom Ve Tsedek v France, § 32. 65  Ibid., §§ 80–81. However, seven judges issued a dissenting opinion, affirming that, in their opinion, the fact the applicants could import ‘glatt’ meat from Belgium did not justify the fact that there 59 60

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think that it is not correct to draw too many parallels between the ECtHR judgment and the ECJ judgments, at least for two reasons. In the first place, the Cha’are Shalom Ve Tsedek v France case does not concern the issue of stunning of animals and, in the second place, in the ECtHR judgment the right to freedom of religion was not balanced with animal welfare. That does not mean that the similarities between the three judgments66 shall not be considered. The ECtHR, as the ECJ, in fact, considered the practice of ritual slaughter and the possibility to consume ritually slaughtered meat as manifestations of the freedom of religion deserving protection under Article 9 ECHR or Article 10 CFR. Second, the ECtHR, as the ECJ, affirmed that limitations on ritual slaughter practices can be made if religious believers still have the possibility to consume ritually slaughtered meat, even if it is imported from abroad, provided that the core of the practice, namely the consumption of ritually slaughtered meat, remains possible. The possibility for believers to eat ritually slaughtered meat imported from abroad was one of the justifications on the basis of which the ECJ in the case C-366/19 also reached the conclusion that the interference with the freedom to manifest religion resulting from the Flemish decree at issue in the main proceeding was proportionate.67 Particularly, in C-336/19 the ECJ was asked by the Belgian Constitutional Court (Grondwettelijk Hof) to decide on the interpretation of Article 26(2)(c) of Regulation 1099/2009, read in the light of Article 13 TFEU, and on its validity in the light of Articles 10, 20, 21 and 22 CFR. Thus, the ECJ was in substance asked to decide whether Article 26(2)(c) of Regulation 1099/2009 had to be interpreted ‘as precluding the legislation of a Member State which requires, in the context of ritual slaughter, a reversible stunning procedure which cannot result in the animal’s death’.68 The main proceedings before the Belgian Constitutional Court originated by applications lodged in 2018 by the Muslim and Jewish communities and by the representative body of Muslims in Belgium seeking the annulment of the Flemish ‘Law on the protection and welfare of animals, regarding permitted methods of slaughtering animals’ (hereinafter, ‘the decree at issue’).69 The applicants claimed, inter alia, that the decree at issue infringed Article 4(4) and Article 26(2) of Regulation 1099/2009, since it established the obligation to stun animals before

was no violation of Articles 9 and 14 of the ECHR. See the Joint dissenting opinion of judges Bratza, Fischbach, Thomassen, Tsatsa-Nikolovska, Pantîru, Levits and Traja in ECtHR (GC), Cha’are Shalom Ve Tsedek v France, 27 June 2000. 66  The three judgments are: ECtHR, Cha’are Shalom Ve Tsedek v France, and ECJ cases C-426/16 and C-336/19. 67  C-336/19, § 78. See section 4 for an analysis of the other reasons justifying the decision of the ECJ in the case at issue. 68  Ibid., § 39. 69  The ‘Law on the protection and welfare of animals, regarding permitted methods of slaughtering animals’ was amended by the Flemish Government on 7 July 2017 and entered into force on 1 January 2019.

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slaughtering them, even in case of ritual slaughter. 70 According to the Flemish Government, the objective of the decree at issue is to protect animal welfare and eliminate all avoidable animal suffering in Flanders.71 It is in that perspective that the Flemish legislature stated, in the preparatory documents for the decree at issue, that ‘the slaughter of animals without stunning is incompatible with that principle’, and that ‘although other measures, less drastic than a ban on slaughtering without prior stunning, could somewhat limit the negative impact of that method of slaughter on animal welfare, such measures cannot prevent a very serious impairment of that welfare from continuing to exist. The gap between eliminating animal suffering, on the one hand, and slaughtering without prior stunning, on the other, will always be very considerable, even if less radical measures were taken to minimise the impairment of animal welfare’.72 To protect the freedom of religion, the decree at issue nevertheless provides that in case of ritual slaughter prescribed by religious rites, reversible stunning techniques,73 which cannot result in the animal’s death, could be used.74 However, in the applicants’ view, they were prevented from practising their religion, since their religious precepts preclude the application of reversible stunning techniques75 and, they are, consequently, not allowed to obtain meat in accordance with their religious prescriptions. It is for this reason that they lodged an application for the annulment of the decree at issue before the Belgian Constitutional Court. In the applicants’ view, in fact, Article 26(2)(c) of Regulation 1099/2009 could not be used to render meaningless the derogation from the obligation to stun in the context of ritual slaughter, foreseen in Article 4(4) of the Regulation.76 Conversely, the Flemish and Walloon Governments claimed that Article 26(2)(c) of the Regulation clearly empowers Member States to derogate from Article 4(4) of

 The same obligation applies in the Walloon Region, where the Federal law of 1986 has been replaced by the ‘Code wallon du bien-être des animaux’ of 4 October 2018. The latter provided the same as the Flemish legislation, i.e. that animals shall be stunned before being slaughtered in religious slaughter. Therefore, in Belgium only in the Brussels region it is still possible to slaughter animals without stunning. 71  C-366/19, §§ 13, 26–28. 72  Ibid., § 13, 73. 73  On reversible stunning techniques, see Fonda (2020). 74  See Article 15(2) of the Law on the protection and welfare of animals, as amended by Article 3 of the Flemish decree of 7th July 2017. The latter replaced the Federal law of 14 August 1986 on the protection and welfare of animals, which, in the second subparagraph of Article 16(1) stated, on the contrary, that a derogation to the obligation to slaughter animals after stunning was allowed in case of slaughter prescribed by a religious rite. 75  The methods of reversible stunning make it possible to bring animals back to consciousness after stunning. The animal is therefore not killed by the stunning itself, but by the act of slaughtering. 76  Article 4(4) of Regulation 1099/2009 foresees the possibility to derogate to the general rule of prior stunning of animals before slaughtering in case of slaughter of animals carried out according to methods prescribed by religious rites. The possibility to derogate to the general rule foreseen in Article 4(4) of Regulation 1099/2099, according to the Belgian Constitutional Court, corresponds with Article 10 CFR and Article 9 ECHR, that both guarantee the freedom of religion. 70

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the Regulation with a view of promoting animal welfare. In this context, the ECJ was, therefore, asked to clarify whether Article 26(2)(c) of the Regulation can be interpreted as authorising Member States to adopt national rules such as those at issue in the main proceedings, and, in case of the affirmative, whether that provision was compatible with Article 10 CFR.77 In its judgment, the ECJ examined the issue of ritual slaughter and its implications both for animal welfare and for the need to ensure the protection of the right to freedom of religion. To this end, the ECJ investigated whether the Flemish decree, which provided the obligation to stun animals before slaughtering them, fulfilled the conditions laid down in Article 52(1)(3) CFR, read in conjunction with Article 13 TFEU.78 The ECJ sought also to ascertain whether it is the EU legislature or Member States that are competent to strike such a balance between animal welfare and the right to freedom of religion. In the next section, the reasoning behind the ECJ’s decision in C-336/19 is, therefore, analysed, with a view to examining particularly how the content and the scope of the right to freedom of religion and personal belief enshrined in Article 10 CFR has been interpreted by the ECJ.

4 Right to Freedom of Religion and Personal Belief in the ECJ Case Law: Ritual Slaughter as a Case Study This section deals with the interpretation of Article 10 CFR given by the ECJ. It particularly examined the reasoning in C-336/19 in respect of the content and the scope of the right to freedom of religion. In this regard, the ECJ reasoning about the need to balance the right to freedom of religion with animal welfare is also analysed. Under Article 13 TFEU, the ‘legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage’ shall be respected while ensuring the protection of animals welfare needs.79 This formulation of Article 13 TFEU is the consequence of ‘the positive commitment of the EU legislature to ensure effective observance of freedom of religion and the right to manifest religion or beliefs in practice’, in accordance with Article 10(1) CFR.80 The latter provides that everyone has the right to freedom of thought, conscience and religion, which consists in the freedom to change religion or belief and the freedom to manifest religion or belief ‘in worship, teaching, practice and observance’, ‘either alone or in community with others and in public or in private’.81

 C-366/19, § 25; 32(1)(2); 39.  Ibid., § 58 ff. 79  Article 13 TFEU. See Hehemann (2021), p. 116. 80  C-336/19, § 44. 81  Article 10(1) CFR.  See C-157/15, G4S Secure Solutions, 14 March 2017, § 27; C-188/15, Bougnauoi and ADDH, 14 March 2017, § 29; finally, C-426/16, § 43. 77 78

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In its case law, the ECJ further specified the meaning of the word ‘religion’ referred to in Article 10 CFR stating that it shall be interpreted in a broad sense, ‘covering both the forum internum, that is, the fact of having a belief, and the forum externum, that is, the manifestation of religious faith in public’.82 Given that ritual slaughter is a way of manifesting religion in public, the ECJ stated consequently that the specific methods of slaughter prescribed by religious rituals for which a derogation from the rule of prior stunning is allowed by Article 4(4) of Regulation 1099/200983 fall within the scope of Article 10(1) CFR.84 Similarly, the ECJ also affirmed that the national rules adopted from Article 26(2)(c) of Regulation 1099/2009,85 that are aimed at ensuring more extensive protection of animals at the time of killing than those contained in Regulation 1099/2009, such as the Flemish decree at issue, which requires reversible stunning in the context of ritual slaughter, fall within the scope of Article 10(1) CFR.86 The ECJ also affirmed that the freedom of religion enshrined in Article 10(1) CFR corresponds to the freedom of religion guaranteed in Article 9 of the ECHR; as a result, account shall be taken of the corresponding freedom of the ECHR for the purpose of interpreting Article 10(1) CFR. 87 The case law of the ECtHR on Article 9 ECHR is, thus, cited by the ECJ to further define the meaning of Article 10 CFR.  Particularly, the ECJ recalled that also in the EU legal system, freedom of thought, conscience and religion is considered ‘one of the foundations of a “democratic society”’ ‘since pluralism, which is integral to any such society, depends on that freedom’.88 The consequence is that, according to both the ECHR and CFR, any limitation on the exercise to the freedom to manifest one’s religion or beliefs is possible only if is prescribed by law, is necessary in a democratic society, meets the objectives of general interest recognised by the EU and is proportionate. 89 It is in this context that in C-336/19 the ECJ sought a balance between animal welfare and the right to freedom of religion in the context of ritual slaughter.90 As far as the right to freedom of religion and personal belief is concerned, the issue of ritual slaughter is particularly sensitive because it is governed by specific religious precepts requiring, for instance, that Jewish and Muslim believers consume only meat of animals that are not subjected to any procedure which can cause their death before they are slaughtered. Consequently, any limitation on the performance of ritual slaughter may entail a limitation of the right to the freedom of the

 C-336/19, § 52, and previously C-426/16.  The ECJ refers to the derogation referred to in Article 4(4) of Regulation 1099/2009. 84  C-426/16, § 45. 85  Regulation 1099/2009, Article 26(2)(c). 86  C-336/19, § 51. 87  Ibid., § 56. 88  Ibid., § 57 and the case law of the ECtHR cited. 89  Article 52 CFR (see C-336/19, §§ 57–58). 90  For an analysis of the reasoning of the ECJ, see infra in the chap. See also C-336/19, 59 ff and § 80 for the ECJ’s conclusion. 82 83

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believers to manifest their religion, as guaranteed in Article 10 CFR. For Jews and Muslims, dietary laws relating to the slaughter of animals are in fact integral religious mandates, according to which they are compelled to eat meat that has been certified as kosher 91 or halal,92 respectively.93 Both kosher and halal slaughters are performed without previously stunning the animals and consist in cutting the animal’s throat with a sharp knife, causing the animal’s blood to drain out entirely.94 After the cut, the animal does not immediately lose consciousness; the length of the period between the cut and the animal’s unconsciousness depends on different factors, such as the animal itself, the practice of cutting and the way of bleeding out.95 The problems in the Flemish region originated because, on the one side, dietary laws on the slaughter of animals are religious mandates for Jewish and Muslims, and, on the other side, the killing of animals according to these precepts is in contrast with national rules on slaughter, which are aimed at ensuring an adequate protection of animal welfare. In this context, the ECJ was called to determine whether the Flemish Government exceeded its discretion in deciding whether and to what extent a limitation of the right to manifest religion or belief is necessary, justified in principle and proportionate.96 The ECJ sought, therefore, to ascertain whether in substance the Flemish decree entailed a violation of the right to freedom of religion and to what extent. In this regard, it decided to delve deeper into the matter of ritual slaughter, and particularly, into the issue of reversible stunning and its compatibility with Jewish and Muslim religious precepts. It is nevertheless not clear to what extent a secular court can state on this subject. In this respect, Advocate General Hogan expressly affirmed that ‘a secular court cannot choose in relation to the matters of religious orthodoxy’.97 In case of reversible stunning, problems arise from the fact that in the Muslim and Jewish religious communities there are divergent views within both faiths on the matter whether prior reversible stunning, which leads the animal to lose consciousness, but not to the death of the animal, or post-cut stunning, satisfies the religious precepts of both Muslim and Jewish faiths.98 It seems that the animal must be conscious according to the Jewish religion,99 while the association GAIA has  For meat to be certified as kosher, the animal shall be slaughtered according to the method of shechita, i.e. the process of slaughter codified in halkha (Jewish religious law). 92  For meat to be certified as halal, the animal shall be slaughtered according to the method of dhabīḥah, which is prescribed by Islamic law from the Qur’an. 93  See Lerner and Rabello (2006). 94  According to Islamic precepts, the slaughterer shall be a Muslim, while for the Jewish precepts the slaughterer shall be accredited by a religious authority. 95  See Fonda (2020); Royal Dutch Society for Veterinary Medicine, Position Paper, Standpoint on Un-Stunned Slaughter of Animals (2011). 96  C-336/19, § 67ff. 97  AG Opinion in C-336/19, § 47. AG Hogan already made this point in C-243/19, § 5. 98  See Zoethout (2013); AG Opinion in C-336/19, § 47; AG Opinion in C-426/16, §§ 51 to 54; AG Opinion in 497/17, §§ 46–47. 99  See Bergeaud-Blackler (2015). 91

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emphasised that some representatives of the Muslim community believe that reversible stunning has no consequence on the animal’s vital functions, and particularly on blood drainage, and is, thus, compatible with the prescriptions of the Muslim faith.100 However, despite the different views on this topic, as AG Hogan has stated, it could be ‘sufficient to say that there is a significant body of adherents to both the Muslim and Jewish faiths for whom the slaughter of animals without such stunning is regarded by them as an essential aspect of a necessary religious rite’.101 The reasoning of AG Hogan is based on the fact that the ECJ is incompetent to rule on the orthodox aspects of the Jewish or Muslim religions and, therefore, it is not possible for the ECJ or the Flemish Government, which tried to reconcile the objective of promoting animal welfare with the need to respect the right to freedom of religion, to evaluate whether the reversible stunning technique is considered admissible or not in the context of ritual slaughter. As a consequence, if the Flemish decree at issue represents for Muslim and Jewish believers a de facto ban on ritual slaughter, that conclusion cannot be contested by the ECJ.102 Furthermore, Member States may only adopt ‘neutral’ and non-discriminatory ‘technical conditions or specifications’ to minimise the suffering of animals when they are killed and ensure the health of consumers,103 even if they entail some limitations on ritual slaughter without prior stunning.104 In the AG’s view, any different interpretation, which will enable Member States to adopt stricter national rules prohibiting ritual slaughter without stunning, would constitute a limitation on the right to freedom of religion enshrined in Article 10(1) CFR.105 The ECJ agreed on the fact that it is incompetent to rule on orthodox aspects of religious freedom106 and stated clearly that the technical specifications required by the EU law applies in a ‘neutral’ and non-discriminatory manner, ‘irrespective of any connection with a particular religion’.107 However, at the same time, it took a ‘sociological stand’, as it has been highlighted,108 de facto evaluating from a substantial point of view whether the limitation to the right of freedom of religion

 AG Opinion in C-426/16, §§ 51 to 54.  C-336/19, § 47. See also AG Opinion in C-426/16, §§ 51–54, the AG Opinion in C-497/17, §§ 46–47 and 51. 102  The different position of the ECJ on that point is explained below. 103  AG Opinion in C-336/19, §§ 58 and 69, where the AG states that ‘additional rules might, for example, include the requirement of the presence of a qualified veterinarian at all times during the ritual slaughter […] and that the person conducting that particular form of slaughter is appropriately trained, rules on the nature, size and sharpness of the knife used and the requirement of a second knife in the event that the first one becomes damaged during the slaughter’. 104  C-426/16, § 58. 105  AG Opinion in C-336/19, §§ 72–73 and 75. 106  C-336/19, §§ 53–54, in which the ECJ does not object to the applicants’ view, that is based on their specific religious precepts. For an examination of the obligation of neutrality of the State and the principle of separation between Church and State in Belgium, see Wattier (2022), p. 279. 107  C-426/16, § 61. 108  See Hehemann (2021), p. 118. 100 101

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entailed by the Flemish decree was legitimate, necessary and proportionate.109 In its proportionality assessment, the ECJ particularly affirmed that the CFR ‘is a living instrument which must be interpreted in the light of the present-day conditions and of the ideas prevailing in democratic States today, with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States’.110 It is for this reason that, according to the ECJ, animal welfare, a value which is gaining increasing importance in contemporary democratic societies, should be considered ‘to a greater extent’ in the context of ritual slaughter, in light of the changes in society. Thus, according to the ECJ’s reasoning, the fact of considering animal welfare to a greater extent may ‘help to justify the proportionality of legislation such as that at issue in the main proceedings’.111 The ECJ considered, thus, whether the possibility of reversible stunning foreseen in the Flemish decree is a measure which entails a proportionate limitation on the exercise of the right of Jewish and Muslim believers to manifest their religion and concluded that the decree at issue was proportionate.112 As affirmed by the ECJ, the increased awareness of the issue of animal welfare ‘in an evolving societal and legislative context’ entitled in fact the Flemish Government to adopt the decree at issue, whereby a fair balance between animal welfare and the freedom of Jewish and Muslim believers to manifest their religion was achieved.113 The arguments used by the ECJ to assess the proportionality of the decree at issue are, in the first instance, based on scientific research and studies. In its reasoning, first it highlighted that the scientific studies on which the Flemish legislature relied on, demonstrated that electronarcosis is a reversible method of stunning, which ensures that the animal’s death is only due to bleeding. Furthermore, according to the scientific studies mentioned in the preparatory documents of the Flemish decree, the fear that stunning ‘would adversely affect bleeding out’ is also unfounded.114 In the second place, the ECJ relied on the scientific opinions of the European Food Safety Authority (EFSA),115 cited in recital 6 of Regulation 1099/2009,116 where we can read that the objective of Regulation 1099/2009 is to spare animals pain, distress or suffering during the killing process and that prior stunning is, according to a scientific consensus, a good means of reducing the suffering of animals when they are killed.117 In this sense, also the Federation of

 For an analysis of the ECJ test under Article 52(1) CFR, see the last section of the chap.  C-336/19, § 77, and the ECtHR case law cited there. 111  Ibid., § 77. 112  Ibid., § 75ff. 113  Ibid., §§ 79–80. 114  Ibid., § 75. 115  Regulation 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. 116  Regulation 1099/2009, recital 6. 117  C-336/19, § 72. 109 110

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Veterinarians of Europe (FVE)118 affirmed that the practice of slaughtering animals without prior stunning is unacceptable.119 Thus, according to the scientific studies considered by the ECJ, in the context of ritual slaughter, reversible stunning is the most up-to-date method of killing animals which can reduce animals’ suffering at the moment of killing.120 The provision of the Flemish decree at issue, which foresees the possibility of reversible stunning in the context of ritual slaughter seems therefore a proportionate limitation to the right to freedom of religion, and a measure compatible with religious rites ‘in an evolving societal and legislative context’.121 The fundamental right to freedom of religion is, thus, interpreted in an evolutive sense, both from a societal and legislative perspective, in the light of the increased awareness of the issue of animal welfare.122 This sociological standpoint seems, however, to shift to a rather theological stand when the Court affirms that the Flemish decree at issue, foreseeing the possibility of reversible stunning, which does not cause the animal’s death, respects the essence of Article 10 CFR, since it does not prohibit the act of slaughter ‘as such’; the ‘interference resulting from such legislation’ is in fact ‘limited to one aspect of the specific ritual act of slaughter’.123 In this respect, even if the Court does not discuss religious dietary requirements, which are part of the essence of the right to religious freedom, establishes what should be considered and what should not be considered the essence of the right to freedom of religion and, as a consequence, it draws the boundaries of the right and de facto determines the scope and, in a way, the interpretation to be given to religious dietary requirements. The question should thus, be the following: how far can a secular court interpret matters of religious orthodoxy when interpreting Article 10 CFR? In the end, in C-336/19 the ECJ operated a balance between an EU value protected under Article 13 TFEU, i.e. animal welfare, and a fundamental right enshrined in the CFR, the right to freedom of religion. That is particularly interesting because it is now clear that it is possible to limit a fundamental right enshrined in the CFR to ensure the protection of an EU value that is considered an objective of general interest recognised by the EU, such as that of animal welfare.124 The second condition of the test under Article 52(1) CFR, namely the fact that limitations shall ‘genuinely meet objectives of general interest recognised by the European Union’,125 is in fact considered fulfilled by the Court in the case at issue, i.e. in case that a national

 See Federation of Veterinarians of Europe (FVE), Slaughter of Animals without Prior Stunning, 2009. 119  See, on this point, Zoethout (2013), p. 658. 120  C-336/19, § 76. 121  Ibid., §§ 75–80. 122  Hehemann (2021), p. 118. 123  C-336/19, § 61. 124  Ibid., § 63 and the case law cited. 125  Ibid., § 58. 118

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decree limits the right to freedom of religion to ensure an extensive protection of animal welfare. In this case, the ECJ sought also to ascertain whether it is the EU legislature or Member States who are competent to strike a balance between animal welfare and the right to freedom of religion. The next section is, thus, dedicated to the analysis of the answer of the Court to that question.

5 The Principle of Subsidiarity and the Member States’ Margin of Appreciation In this section, we explore the issue of the scope of the Member States’ margin of appreciation and its relationship with the principle of subsidiarity. As far as the Member States’ margin of appreciation and its relationship with the principle of subsidiarity is concerned, the ECJ judgment in C-336/19 represents in fact a very interesting decision for at least three reasons. In the first instance, the Court’s decision is important for its implications on the interpretation of the meaning of the principle of subsidiarity insofar as the competence of Member States to regulate sensitive issues concerning fundamental principles protected under the EU law is concerned. In the case at issue, the ECJ stated in fact that, under Regulation 1099/2009, ‘a certain level of subsidiarity’ shall be left to Member States to allow each of them to adopt national rules aimed at ensuring more extensive protection of animals at the time of killing.126 Accordingly, in the final analysis, the Court left to the Flemish Government the task of achieving a reconciliation between animal welfare and the right to freedom of manifest its own religion.127 That has also been possible because Regulation 1099/2009 provides only a partial, and not full, harmonisation with regard to the methods of slaughter prescribed by religious rites.128 In fact, the Regulation establishes that Members States have the possibility of adopting ‘national rules aimed at ensuring more extensive protection of animals at the time of killing’ than those contained in the Regulation with regard to the ‘slaughtering and related operations of animals’.129 The only condition which shall be respected by Member States is the respect of the free movement of meat obtained from animals slaughtered in other Member States, even if lower standards of animal welfare are applied when animals are slaughtered.130 This condition is expressly provided to ensure that the functioning of  Ibid., § 69.  Ibid., § 47. 128  Regulation 1099/2009, recital 18 and Article 26(2)(c). See Alemanno and de Sadeleer (2020). 129  Ibid., Article 26(2)(c). 130  Some Member States, such as Denmark, Finland, Slovenia and Sweden took this opportunity and banned unstunned slaughter of animals. Austria, Belgium, Estonia, Greece and Latvia adopted legislation allowing religious slaughtering only with pre-stunning or post-cut stunning. See The Law Library of Congress (2018) Report on Legal Restrictions on Religious Slaughter in Europe. 126 127

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the internal market is not compromised, and it is one of the factors that have been specifically taken into consideration by the ECJ to evaluate whether the Flemish decree at issue is proportionate.131 In the end, the Flemish decree was in fact considered proportionate by the ECJ also because it neither prohibited nor impeded the putting into circulation in the Flemish Region of meat obtained from animals which have undergone ritual slaughter without stunning in another Member State or in a non-Member State.132 In this regard, a problem could be that the number of the Member States that prohibit the slaughter of animals without prior stunning or that restrict those kind of exports is rising.133 If more and more Member States adopt stricter legislation prohibiting ritual slaughter or the export of meat obtained from animals ritually slaughtered, it is questionable whether the Court’s reasoning would still be valid. If only the import from third countries remains possible, there could be higher costs because of custom duties, and consequently the access to halal and kosher meat could be limited, as well as the freedom to manifest religion for Jewish and Muslim communities.134 In the second instance, and importantly, the ECJ in that judgment clarified the scope of the principle of subsidiarity by determining when Member States shall act. According to Article 5 TEU, under the principle of subsidiarity, ‘the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level’. In this judgment, the ECJ clarified that from Regulation 1099/2009 we could clearly infer that the objectives pursued by the EU can be better achieved by the Member States every time that there is no ‘consensus’ at the EU level. In the Court’s view, it is in fact the lack of consensus among Member States as to how they perceive ritual slaughter that led to the adoption of Articles 4 and 26 of Regulation 1099/2009,135 which allow Member States to give voice through national legislation to the different national perceptions on animal welfare. Particularly, recalling the ECtHR case law,136 and applying in the case at issue the theory of the margin of appreciation elaborated by the Strasbourg Court,137 the ECJ affirmed that ‘where matters of general policy, such as the determination of relations between the State and religions, are at stake, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight’.138 The Member State should thus, in principle, be afforded ‘[…] a wide margin of  C-336/19, § 78.  Ibid. 133  See the proposal of the Sejm (lower house of Parliament in Poland), which adopted a draft law prohibiting the export of animals from animals killed in the context of ritual slaughter. In this sense, C-336/19, § 34. 134  In the same sense, see Hehemann (2021), p. 117. 135  C-336/19, § 68. 136  The ECJ referred to ECtHR, S.A.S. v. France, 43835/11, 1 July 2014, §§ 129 and 131, and the case law cited. 137  ECtHR, 9 July 2013, Sindicatul ‘Păstorul cel Bun’ v Romania, 2330/09, 9 July 2013, § 171. 138  C-336/19, § 67 ff. 131 132

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appreciation in deciding whether, and to what extent, a limitation of the right to manifest religion or beliefs is “necessary”’.139 In this regard, the ECJ affirmed that the EU legislature, allowing such a degree of subsidiarity to Member States, ‘intended to preserve the specific social context of each Member State in that respect and to give each Member State a broad discretion in the context of the need to reconcile Article 13 TFEU with Article 10 CFR, for the purposes of striking a fair ­balance between, on the one hand, the protection of the welfare of animals when they are killed and, on the other, respect for the freedom to manifest religion’.140 In the case at issue, it is therefore the Flemish Government that has the competence to determine whether the limitations on the right to freedom of religion exceeded or not the limits of what is considered appropriate and necessary to attain the legitimate objective of animal welfare.141 In the third instance, the ECJ affirmed that it still has a role as supervisor of the proportionality and necessity of the measures taken at the national level. In fact, the ECJ stated that Member States shall legislate ‘in the absence of consensus’ at the EU level. However, at the same time, it affirmed that the measures taken at the national level shall be subject to a ‘European supervision consisting in determining’ whether those measures are ‘justified in principle and proportionate’;142 accordingly, in the case at issue the Court sought to ascertain whether the Flemish legislature exceeded the discretion conferred to it. In doing so, the Court de facto assessed the validity of the Flemish decree at issue in the light of the three-pronged test under Article 52(1) CFR. The ‘European supervision’ consisted therefore in a substantial control whether the limitations on the right to religion posed by the Flemish decree were legitimate in the light of Article 52(1) CFR. That led the Court to examine deeper the issue and to ultimately decide on the appropriateness of the reconciliation between the right to religion and animal welfare provided for by the Flemish decree at issue. The question which arises is, thus, the following: can the ECJ invalidate an EU provision because Member States misused their discretion? In the case at issue, the Court answered in the negative because from the test under Article 52 CFR resulted that the Flemish Government did not exceed the limits of its discretion. The question remains nevertheless unanswered in case that from the test under Article 52 CFR results that the Member States exceeded the limits of the discretion conferred to it. In this case, the ECJ shall invalidate the EU act because Member States misused their discretion?

 Ibid., § 67. Italic is ours.  Ibid., § 71. 141  See Article 52(1) CFR, second sentence. 142  C-336/19, § 67. 139 140

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6 Conclusion From the foregoing analysis, we can draw some important conclusion. In the first instance, the case law of the ECJ has shown that animal welfare is an EU value and an objective of general interest recognised by the EU that can be balanced with a fundamental right, such as the right to freedom of religion. However, despite the increasing importance that the protection of animal welfare is assuming in the EU legal context, there is no legislation at the EU level on labelling with regard to the methods of slaughter of animals, so that EU consumers cannot make an informed choice when choosing meat. In the second instance, from the judgement in C-336/19 we infer that it is not so clear how the ECJ can interpret Article 10 CFR without interpreting matters of religious orthodoxy. The Court, by assessing whether the method of reversible stunning foreseen in the Flemish decree is a measure which entails a proportionate limitation on the exercise of the right of Jewish and Muslim believers to manifest their religion, decided in fact in practice what should be considered the essence of the right of freedom of religion. In the third instance, from the ECJ case law we infer that in the context of Regulation 1009/2009, the reconciliation between animal welfare and the right to freedom of manifest one’s own religion must be achieved by the Member States. Fourth, in C-336/19 the ECJ gave an interpretation of the principle of subsidiarity, which de facto widened its scope of application. By referring to the ECtHR theory of the margin of appreciation, the ECJ stated in fact that the objectives pursued by the EU can be better achieved by the Member States every time that there is no ‘consensus’ at the EU level. According to the ECJ reasoning, the EU legislator should allow such a degree of subsidiarity and such a broad discretion to Member States to preserve the specific social context of each Member State. In the last place, from the analysis of the ECJ reasoning in C-336/19 we infer that the national competence to legislate on such matter is nevertheless subject to EU supervision. The ECJ is, thus, competent to assess whether the measures taken at the national level are legitimate in the light of the three-pronged test under Article 52(1) CFR. In this regard, a question arises: if it results from the test under Article 52 CFR that a Member State exceeded the limits of its discretion, can the ECJ invalidate an EU act because of the misuse of discretion by a Member State?

References Adinolfi A (2016) Il trattamento degli animali nel diritto dell’Unione europea tra interessi commerciali, protezione ambientale e “benessere”: verso lo sviluppo di valori condivisi?, Scritti per Luigi Lombardi Vallauri, CEDAM, Padova, pp 19–44 Alemanno A, de Sadeleer N (2020) Amicus Curiae Brief, Submitted on behalf of the Eurogroup for Animals, Case C-336/19, Centraal Israëlitisch Consistorie van België and Others

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Bekoff M, Allen C, Burghardt GM (eds) (2002) The cognitive animal: empirical and theoretical perspectives on animal cognition. MIT Press Bergeaud-Blackler F (ed) (2015) Les sens du Halal: Une norme dans un marché mondial. Ed. CNRS, Paris Boissy A (2019) How to access animal sentience? The close relationship between emotions and cognition. In: Hild S, Schweitzer L (eds) Animal welfare: from science to law. La Fondation Droit Animal, Éthique et Sciences, Paris, pp 21–31 Broom DM (2014) Sentience and animal welfare. CABI Case C (2019) Ritual slaughter and religious freedom: Liga van Moskeen. Common Mark Law Rev 56:803 ff Duncan IJH (2019) Animal welfare: a brief history. In: Hild S, Schweitzer L (eds) Animal welfare: from science to law. La Fondation Droit Animal, Éthique et Sciences, Paris Fernández-Pons X, Lembo C (2019) The Case EC – Seal Products: the WTO dispute settlement system before a “Trilemma” between free trade, animal welfare, and rights of indigenous peoples. In: do Amaral Júnior A, de Oliveira Sá Pires L, Carneiro CL (eds) The WTO dispute settlement mechanism. Springer Ferrari M (2009) Risk perception, culture, and legal change. A comparative study on food safety in the wake of the mad cow crisis. Ashgate Fonda D (2020) Dolore, perdita di coscienza e benessere animale nella macellazione convenzionale e rituale. In: Chizzoniti AG, Tallacchini M (eds) Cibo e religione. Diritto e diritti, Roma, p 225 ff Gonyou HW (1994) Why the study of animal behavior is associated with the animal welfare issue. J Anim Sci 72(8):2171 Griffin D (1976) The question of animal awareness. Rockefeller, New York Harrison R (1964) Animal machines. Vincent Stuart, London Hehemann L (2021) Religious slaughtering, a stunning matter: Centraal Israëlitisch Consistorie van België and Others. Eur Pap 6(1):111 ff Leone L (2020) Farm animal welfare under scrutiny: issues unsolved by the EU legislator. EJLS 12(1):47 ff Lerner P, Rabello AM (2006) The prohibition of ritual slaughtering (Kosher Shechita and Halal) and freedom of religion of minorities. J Law Relig 22(1) Mason JW (1971) A re-evaluation of the concept of “non-specificity” in stress theory. J Psychiatry Res 8:323 ff Mucci F (2022) La tutela degli animali tra diritto europeo, internazionale e costituzionale, Eurojus, 1 Ovie K (2017) Harmonized approaches in intensive livestock production systems in Europe. In: Steier G, Patel KK (eds) International farm animal, wildlife and food safety law. Springer Regan T (1983) The case for animal rights. University of California Press Schouppe JP (2005) La dimension collective et institutionnelle de la liberté religieuse à la lumière de quelques arrêts récents de la Cour européenne des droits de l’homme, Revue trimestrielle des droits de l’homme Singer P (2002) Animal liberation, 3rd edn. Random House, New York Wattier S (2022) Ritual slaughter case: The Court of Justice and the Belgian Constitutional Court put animal welfare first. Eur Const Law Rev 18:264–285 Zoethout CM (2013) Ritual slaughter and the freedom of religion: some reflections on a stunning matter. Hum Rights Q 35(3):651–672 Costanza Di Francesco Maesa  is currently Adjunct Professor in EU Law, with a focus on the regulation of the biotechnology sector at the University of Siena. She graduated in Law at the University of Siena (magna cum laude) and holds a Double Doctoral diploma in European Law, according to the co-tutorship agreement of the PhD thesis between the University of Bologna and the University of Strasbourg. Before joining the University of Siena, she spent a period as a

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Post-­Doctoral researcher in European Law and International Law at the University of Firenze, Law Department and at the University of Torino, Law Department, and she spent research periods as visiting PhD student and Visiting Fellow at the University of Utrecht, Willelm Pompe Institute for Criminal Law and Criminology, at the Queen Mary University of London, Department of Law, and at the Max-Planck-Institut für ausländisches und internationales Strafrecht in Freiburg. She wrote several articles in different European journals; she participated in several European projects and as a speaker in numerous international conferences. Her research encompasses European criminal law, international and European environmental law, European immigration law and human rights law, with a focus on data protection, as well as the European regulation of new technologies and the adoption of adequate accountability mechanisms in the EU.

Part III

Other International Actors in the European Context

Freedom of Religion or Belief: The Role of the Holy See Vincenzo Buonomo

Abstract  The chapter highlights how the Holy See moves in the promotion and protection of religious freedom or belief, identifying the conceptual framework that supports and expresses the interventions and actions developed and undertaken by a non-State subject of international law. International practice identifies two different profiles through which the Holy See manifests and carries out this function: the conclusion of bilateral treaties and its presence in intergovernmental bodies. For both profiles, the reconstruction of a conceptual framework, the objective of this contribution, requires a serious reflection on the articulation of the problems that arise at an international level in terms of freedom of religion and belief. The contribution reveals that the Holy See proposes dialogue between religions or between religions and States to build a coexistence capable of overcoming prejudices, limits and conflicts in matters of religious freedom. Keywords  Catholic Church · Indifference · Interreligious dialogue · Legal system · Religious groups · Community · Believers · Religious freedom

1 A Methodological Overview The reflections that follow seek to identify the conceptual framework in which the international action of the Holy See moves in the promotion and protection of religious freedom or belief. Action that is specific and representative not only of a general interest on the part of the Catholic Church, or that is oriented exclusively to claim and support a right for Christians, but is instead for all those who believe. Therefore, it is not simply a question of pointing out the pronouncements of the

V. Buonomo (*) Pontifical Lateran University (PUL), Rome, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_14

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Holy See in the matter of religious freedom,1 but rather of identifying the conceptual framework that supports and expresses the interventions and actions developed and undertaken by a non-State subject of international law. This is to be found in multilateral and diplomatic activity, especially in the intergovernmental context, where the Holy See, in its of role as the central organ of the Church’s government, exercises its mandate and competence as a sovereign entity in international law.2 The specific and continuous function of the Holy See to guarantee religious freedom can be immediately classified as falling within the activities exercised by each member of the international community.3 Indeed, by delving into the methods and approach followed by the Apostolic See in giving consistency to its specific function in the international institutions, it is possible to identify two diverse profiles through which it manifests and realises such function: the conclusion of treaties and its presence in intergovernmental fora. For both profiles, the reconstruction of a conceptual framework, being the objective of this contribution, requires serious consideration of the articulation of the problems that arise on an international level in terms of freedom of religion and belief. Within this consideration, the possible implications for national legal systems, including canon law, should not be overlooked.

1.1 Agreements Concluded The Holy See concludes bilateral and multilateral agreements in which the right to freedom of religion is not only included, but also declined in its various possibilities, potentialities and sectors. This joint State activity is based on effective needs, determined by context, time and place. An example suffices here: traditionally through ‘concordats’, the freedom of religion was superimposed on the affirmation

 See Permanent Observer Mission of the Holy See to the UN (1987), pp. 86–90; Dupuy (2003), pp. 117–184; Tomasi (2017), pp. 113–187. 2  The issue of the international legal personality of the Holy See (or Apostolic See) is the result of the implications arising from the structural relationship existing between the Holy See, the Catholic Church and the Vatican City State. See among others, Morss (2016), pp.  927–946; Buonomo (2004), pp. 7–40; id. (2007), pp. 1006–1011; Araujo (2001), pp. 291–360; Caveada (2018). More in detail: 1

–– the Catholic Church is a community of persons united by the bond of baptism; –– the Holy See is the central government of the Catholic Church and subject of international law as a sovereign entity with autonomy, power of self-organization, and therefore with the capacity to realise treaties, diplomatic relations, arbitration or mediation and to be the holder of the norms of the international law; –– the Vatican City State established by the Lateran Treaty (1929) is an enclave territory placed under the authority and sovereignty of the Holy See to ensure to the Pope independence and sovereignty in the accomplishment of his worldwide mission. 3  With reference to the topic of religion, the Holy See has been classified as ‘hybrid actor’ in international relations: McLarren and Stahl (2020), pp. 189–201.

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of the existence of a State religion,4 whereas recent agreements link such freedom to human rights as expressed by international law.5 Generally, in concluding bilateral agreements, the Holy See aims at defining the legal status of the Catholic Church and its institutions in a country. This practice, however, also highlights the will to provide an answer through this conventional relationship to some questions connected to the concept of the right to freedom of religion as evolved at the international level: i.e. is it possible to establish a difference between the fundamental rights of the person and those of the citizen? In addition, on the right to freedom of religion, what does it mean to propose a dichotomy between person and citizen? Questions that are difficult to answer given the extent to which human rights have been affirmed and consolidated in recent centuries, with the placing of human dignity and the rights deriving from the same as a core for reflection and action of a juridical, political, cultural and religious nature. From these reflections, there clearly emerges that all fundamental rights are the privileged instrument for guaranteeing the inseparable unity between being a person and being a citizen. If we then refer to the parameters of international human rights law, the answer can be even more concise: a correct reference to the principles, criteria and rules on human rights indicates that a separation between the rights of the person and those of the citizen is impossible. This is also by reason of the fact that fundamental rights are interdependent and interconnected, characteristics that rights relating to intellectual freedoms—thought, conscience and religion—highlight in an immediate way. In fact, the distinction between citizen and believer not only tends to conceal the danger of separating religion from political, institutional and regulatory governance, but also to limit, exclude or mitigate any possible contribution to the governance of a religiously founded ethos. A guideline confirmed in international law by the difficulty in defining the concept of ‘religion’ 6 or, even more so, by the tendency to superimpose freedom of religion and tolerance, thus denying the necessary distinction between the two aspects. Following the juridical profile, the concept of religion is expressed in freedom of religion7 and therefore as a fundamental right, while tolerance remains a general criterion (or principle) called upon to give vitality and coherence to all human rights. Tolerance, in fact, is a criterion to guarantee the protection of the human person, prevent forms of discrimination, also in terms of religious and non-religious choice, and enabling the possibility to change religion or belief.

 It is sufficient here to refer to the concordats with Italy (1929), with Spain (1953), with Colombia (1975) that, albeit with different nuances, presented the Catholic one as the State religion. 5  For example the agreements with Israel (1993), PLO (2000), Latvia (2000), Slovenia (2001), Bosnia and Herzegovina (2006), Brazil (2008), Equatorial Guinea (2012), Chad (2013), Cape Green (2013), Burundi (2014), Benin (2016), Angola (2019), Burkina Faso (2020). 6  See, on this issue, Gunn (2003), pp. 189–215. 7  According to Gunn: ‘Legal definitions do not simply describe the phenomenon of religion, they establish rules for regulating social and legal relations among people who themselves may have sharply different attitudes about what religion is and which manifestations of it are entitled to protection’ (ibid., 195). 4

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Furthermore, within the current framework, the Holy See is well aware in negotiating agreements that the approach towards religious freedom is confronted with the tendency towards a separation between person and citizen. This is found in individual countries, in the forms of integration between States, as well as in more specific areas of the political and institutional debate. A separation that emerges above all when situations arise involving religious belief or vision and/or as a consequence of the orientations derived from the same, as well as when the need for dialogue is invoked and mutual understanding between different convictions is required. The question, then, can also become conflictual, because inasmuch as opinion is concerned, any reference to freedom of religion has always constituted— and still remains—a point of comparison between opposing visions and interpretations. It was so in the contemporary era, at times when claims were made for core rights in autocratic statehood or at times of conflict between different established doctrines (i.e. in cold war conflict). Similarly, it is so today in the face of the emergence of situations not only of a political, but also of a normative and institutional nature that have been brought about by phenomena linked to intolerance, fundamentalism, and terrorism which manipulate religion. This, without forgetting situations connected to an ever-wider human mobility, from which renewed manifestations of intolerance and clear exploitation of the religious element are by no means absent.

1.2 Presence in Intergovernmental Context The second element is given by the relationship of the Holy See with international fora, be they those of a permanent type that express the current international organisations and bodies or those non-permanent institutionalised forms that are international conferences convened on specific topics or situations. The internal dynamics of intergovernmental organisations show that the religious element is one of the constitutive characteristics of the current international framework. Indeed, the debate in the various internal organs often aggregates around religion.8 Some of the many examples may well give greater substance to this perspective. Since 2004, within the United Nations, priority has been given to dialogue between religions,9 as summarised by the General Assembly in Resolution 62/90, on 25 January 2008, relating to the ‘promotion of dialogue, understanding and cooperation between religions and cultures at the service of peace’. This resolution reaffirms the usefulness of dialogue, links mutual understanding and cooperation between religions to respect fundamental rights in their character of universality (see n. 2); and, with reference to the freedom of expression as an essential component of religious freedom, reaffirms the principle that religious freedom can only be subjected to  See, on these questions: Hopkins et  al. (2001). See also the perspective of George (2004), pp. 483–504. 9  Some Resolutions of the General Assembly could be used as normative reference: 59/23 of 2004; the 60/10 of 2006; 61/221 and 61/269 of 2007. 8

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restrictions in the cases provided for by law (see n. 7).10 On a more restricted geopolitical level, in 2007 the Organization for Security and Co-operation in Europe (OSCE) adopted the Toledo Guiding Principles on the Teaching of Religions and Beliefs in Public Schools. The aim, in the face of religious diversity, was to promote not only a greater understanding and dialogue in schools, but also to ‘increase the presence of religion in the public sphere’.11 The Toledo Principles reiterate that religious freedom is a prerequisite for the protection of the rights of others, respect, and mutual understanding; the latter aspects being ordinarily considered as the result of broader civic values and legal obligations.12 Still on the regional level, there is the example of the African Union with their various programmes of action undertaken by the Interfaith Dialogue Forum (IFDF), the Interfaith Dialogue on Violent Extremism (iDove) and the International Partnership on Religion and Sustainable Development (PaRD). These have been operational since 2010 and have recently directed interest and action towards the goal of dialogue as an antidote to religious extremism.13 Relating these considerations to the methodology and legal provision of international human rights law, there are two elements to reflect upon about the viewpoint of the Holy See: the right to freedom of religion and the right to non-discrimination on the grounds of religion or belief. This enables us to effectively grasp the meaning of the believer’s choice of faith and the freedom that this choice presupposes, and likewise requires for continuance. Basically, this is the very concept that the international legal system has always offered, identifying some essential presuppositions of the choice to believe: the free capacity of the person to fulfill the need to rise from human events to rediscover their roots and the possibility to keep this decision alive, operational, and unrestricted. All elements considered as guarantees by the Universal Declaration of Human Rights in the rules adopted precisely for the consideration and protection of religious freedom in its core-structure, and in the faculties or possibilities that are connected to the same. From this perspective, it is possible to read various pronouncements of the Holy See at several international Conferences convened to codify international law in which the theme of freedom to believe, and therefore the protection of the believer, has found space and regulation. Reference can be made, going back in time, to the codification concluded on August 1949 at the Geneva Conference on International Humanitarian Law, which led the Holy See to include the various references to freedom of religion in the specifics of armed conflicts and in the condition of the hors de combat, i.e. the wounded or sick, shipwrecked, prisoners of war and civilians. However, more recently, the World Conference on Human Rights in 1993 and the Conference Against Racism in 2001 specifically committed the Holy See to the  The Resolution established 2010 as the International Year for the Reconciliation of Cultures (No. 8) asking States to organise events aimed at fostering dialogue between religions and cultures to promote effective understanding and cooperation in the service of peace. 11  OSCE (2007), p. 11. 12  See Principle 2. 13  See African Union (2020). 10

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forefront of freedom of religion or belief. In both cases, it was not a question of defending the rights of Christians or Catholics, but supporting the importance of religion or belief at a global level. The position of the Holy See implied that different visions could converge as long as they were animated by the idea of considering religion not as a cause of fragmentation or conflict, but rather as an instrument of cohesion that would contribute to the establishment of a social order and an institutional apparatus within a State. Religion is therefore a factor capable of guaranteeing the believer in the face of fundamentalism or the denial of religious freedom introduced by public authorities, as well as freeing him from discriminatory proceedings and actions.14 Freedom of religion or belief constitutes a part of this doctrinal, juridical and institutional humus, the action of institutions and intergovernmental bodies (from the United Nations to regional or group organisations) competent in matters of human rights or in any case committed to the freedom of religion. An action from which an essential element appears to depart: the choice of faith, this is a fascinating concept in which freedom, spirituality and mystery come together, but it is also a process in continuous evolution that has led today to faith being no longer considered as a religious fact and as an institutional reality; intrinsically conjoined. In fact, the religious aspect, in some cases, is increasingly presented as coming from the State (i.e. State religion, State atheism, old and new forms of interference in the activities of religious experience) or as an aim of intergovernmental institutions (not only the UN, and OSCE, but institutions such as KAICIID15 come to mind). In other cases, religion is considered as being a component of the believer’s private sphere, thereby reducing its public dimension, as if to preserve the life of states and the relations they establish in the wider community of peoples from visions of which religions are bearers. This trend confirms that freedom of religion, in all its articulations, seems to move away from the different forms of conflict both within States and within the international community, as well as from those realities or areas such as dialogue and cooperation. The public dimension of religion returns as a concrete element made up of worship, teaching, training, organisation and relationships, a reality made up of different elements that opens the way to the idea of complexity that revolves around the rights of the human person. A complexity to which the ample content of history, doctrines and proclamations contribute, as well as the changes in ideology, culture, and norms that determine the full enjoyment or limited exercise of these rights that can extend as far as their most complete denial. In this perspective, the example of

 A line expressed in continuity by the ECHR, when it limits the possibility of the State to intervene on the contents of religious belief and its doctrine (see İzzettin Doğan and Others. v. Turkey, 26 April 2016, § 69. 15  The King Abdullah Bin Abdulaziz International Centre for Interreligious and Intercultural Dialogue (KAICIID) is an intergovernmental organisation with a structure that presents a Council composed by States, a Board of Directors representative of religious leaders and an Advisory Forum with the exponents of religions and religious confessions. Currently, member States are Saudi Arabia, Austria and Spain. The Holy See has the status of ‘founder Observer’. 14

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discrimination for religious reasons is illuminating: there is no need to denounce generic discrimination, but it is important to distinguish that suffered by people or communities because of their choice of faith, from discrimination exercised by someone—groups or even States—in the name of a religion. The guarantees necessary to stem the two phenomena are different, as is the limit of the phenomena themselves. Nevertheless, it is difficult, at the moment, to find coherent regulatory responses, both at state and international level, while it is evident that in both cases reference is made to a generic public order: in the first case with emergency legislation, in the second the justification for discrimination is brought back to public order. On this aspect, related to the utilisation of religion or belief in terms of discrimination or specifically—in the case of the OSCE—of ‘phobias’, the Holy See not only supported the idea of positively addressing the phenomenon, but has also given indications to read discrimination as a way to allow internal systems to amend their conduct if discriminatory. This, in addition to activating their own systems for the promotion and protection of human rights for the side linked to religion, belief and therefore to those who believe. Undoubtedly, the changes that have taken place since 1981 when the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief was adopted by the United Nations, have also led the Holy See to work towards keeping the possibility of maintaining activity in relation to religious profile and belief at a public level, and not allowing it to be confined to a strictly private and personal sphere. This is the conceptual framework of reference assumed by the Holy See in concluding bilateral agreements16 with various countries as well as in its presence in intergovernmental fora. In both cases, the reference to religious freedom is oriented towards a dual purpose: on the one hand, the freedom of the Church and its juridical order, on the other, the conviction that all believers, not only Christians, must enjoy this right. A perspective part of the position of the Holy See when it contributes to the debate and to the drafting of international acts relating to the right to religious freedom, considered not only independently, but also as a criterion for identifying the level of protection of other fundamental rights.17

2 Facts, Guidelines and Standards The Holy See is aware that the religious phenomenon, in its integral dimension, has always found a variable consideration and a different regulation on the part of juridical systems, likewise it finds a different interest on the part of international  A tendency emerged clearly after 1993, the year of the Concordat with Poland, the last bilateral agreement concluded by the Holy See with the denomination ‘concordat’. 17  An example of this perspective remains the negotiation carried out by papal diplomacy in the period 1967–1975 up to the formulation of Principle VII of the Final Act of Helsinki. The Principle VII, in fact, constitutes even today a reasoned definition of freedom of religion in its relationship with the corpus of human rights and various forms and modalities of their promotion and protection. 16

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institutions. The so-called religious element or link to the religious dimension becomes the objective of regulation only when it becomes relevant for society or for a group within it, or when it is structured in the institutional dimension. A fact that is not new, but one which stands out today given the not always fluid relationship between choice of faith and the public dimension that this choice can assume. This is demonstrated by the perspectives and positions taken by political and religious authorities, regulatory texts, court rulings, as well as analyses and studies that take their cue from founding principles and specific regulations which determine forms of behaviour and solutions that are not only different, but highlight a fragmentation of vision, decisions and rules. For the Holy See, the decision and the will to believe—and the consequent conduct of the believer—as implemented by the subject person, involve not only the moment of choice, belonging, worship or profession of faith, but lifestyle of the believer and therefore the commitment of individuals and groups in the great challenges that our societies present every day. Following the conceptual framework, this means that freedom of religion is a consequence of the choice of faith, a choice that must be free from constraints and coercions, just as its continuous exercise must be free. As it is easy to guess, this is a complex concept, but only apparently difficult to translate into normative terms in the context of fundamental rights. In fact, considering freedom in the choice of faith can effectively help to fully grasp fully the contents of religious freedom, namely the free capacity of the person to fulfill their need to rise from the mere material dimension and earthly events, and to rediscover their roots and beliefs and/or bring out their aspirations and express their deepest expectations. This vision enables us to answer the question: what assumptions form the basis for a correct vision of religious freedom? First is the ability of the person to freely make the decision to adhere to the principles, doctrine, rites and operational elements proper to a ‘community of believers’. Joining in the knowledge that those elements may directly affect their social life, environment and ‘community in which he lives’. Again, in this case the contrast between believer and citizen is overcome, which can relativise the religious element by equating it, for example, only with rites or paths of spirituality and by giving rise, without effective proportionality, to the most varied forms of limitations.18 This is the context in which the Holy See places the obligation not to make public powers, so that in their action they refrain from preventing or limiting the freedom of the believer by laws, acts of an administrative nature or other forms of limitations: ‘To inform life according to the principles of one’s religion’. 19 For the Holy See, the relationship between religion and liberty must be measured against the need whereby the social dimension does not hinder the exercise of freedom, but rather favours it and interprets it in a coherent way. This implies that public authority must refrain from forms of pressure to force the person to adhere to a religion

 A position that is also constant in ECHR jurisprudence as shown, among others, by the case Association de solidarité avec les témoins de Jéhovah and Others v. Turkey, 17 October 2016, § 98. 19  Second Vatican Council, Declaration (1965a). 18

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contrary to their will, or to prevent, by force, the profession of a religious faith that the person decides to profess. A very topical profile if we think of the trend that considers freedom of religion as purely negative, and solely bound to the concept of discrimination. This, in turn, requires a re-reading of the relationship between freedom of religion and the principle of non-discrimination. The latter, in fact, being a basic principle of international human rights law, must be applied to freedom of religion, but does not replace it. It also becomes a tool for considering the so-called indirect or equivalent effect20 of discriminatory measures. Consider, for example, concepts such as spiritual security, the definition of cult—a cult practiced or admitted—the recognition of legal personality decided by state bodies, which often take the form of methods having a similar effect to that of discrimination.21 The question of security on the side of freedom of religion arose, when, especially after 11 September 2001, the precise concepts of freedom and activity of the individual or community of believers were placed under strict surveillance and control, This being considered in any case subordinate to the objectives of national security as a guarantee of peaceful coexistence within States. A passage that has posed some problems, considering that even consolidated international jurisprudence establishes that national security cannot be a criterion or element for limiting freedom of religion or belief.22 Moreover, this approach, rather than facing challenges that also involve religions, has highlighted how the diversity of religions and beliefs, described as a vehicle for radicalisation and terrorism, can represent a threat to orderly coexistence. That is a way to interpret the relationship between the right to freedom of religion or belief and its effective exercise, which requires specific obligations on the part of domestic legal systems.23 An approach similarly applied to aspects relating to legislative, administrative, and regulatory measures generally adopted by State apparatuses which reflect on the relationship between

 How else to configure attitudes and images aimed at denouncing or ridiculing religious values, or at discrediting religious leaders or religious denominations? 21  See, in the case of ECHR jurisprudence, the well-known sentence concerning the legal personality of the Cathedral Church of Crete to protect its properties (Canea Catholic Church v. Greece, 16 December 1997). 22  In this sense, see the European Court of Human Rights, which states: ‘“national security” is not included among the aims listed in Article 9 § 2. This omission is by no means accidental; on the contrary, the refusal by the drafters of the convention to include this specific ground among the legitimate grounds of interference reflects the fundamental importance of religious pluralism as “one of the foundations of a democratic society” and of the fact that the State cannot dictate what a person believes or take coercive steps to make him change his beliefs (Nolan and K. v. Russia, 12 February 2009, § 73). This means that the State cannot use the need to protect national security as the sole basis for restricting the exercise of the right of a person or a group of persons to manifest their religion’ [ECHR (2020) para 37]. 23  In this aspect, the Guidelines on freedom of religion or belief and security, adopted by the OSCE on 9 September 2019, are contextualised. For a comment, see Fattori (2021). 20

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freedom of religion and non-discrimination,; starting with the consideration of freedom of religion and belief as an integral part of constitutional guarantees.24 These indicators guide the action carried out by the Holy See at international level in the search for the meaning of the right to religious freedom, starting precisely with the issue of the limitation of its content. Limits set not to deprive it of some of its components or to restrict its scope, but exclusively to avoid an erroneous or at least partial interpretation. For this reason, the action of the Holy See, drawing from the patrimony of values and principles proper to the Catholic Church, resorts to an inductive methodology capable of immediately clarifying meaning and significance, thus identifying those elements that are extraneous or that in any case do not constitute the essence and value of religious freedom. A few indicators are enough: the right to religious freedom cannot mean that truth and error can be placed on the same level; that all beliefs or forms of religiosity (or those that proclaim themselves as such) are equivalent; or that religious freedom is the equivalent of that tolerance applied to differences of opinion or to the so-called forms of ‘new religiosity’, even in the face of blatant violations of rights and freedoms. However, such an approach requires not a few reflections when, for example, the international guarantees of the right to freedom of religion unite traditional religions with new forms of religiosity, theistic religions with non-theistic ones,25 with an evident pragmatic approach that leaves little room for other assessments or opinions. Another element lies in the relationship between freedom of religion and freedom of belief or conviction. Until the 1990s, the two elements were in close correlation (rectius: opposition) thereby legitimising the supporters of State atheism and/or classifying behaviours and intolerances not attributable to a religious profile. Today, however, the expression ‘freedom of belief’ is placed as a counterpart to freedom of religion, letting one perceive the idea that the right to freedom of religion or belief is no longer the equivalent of the freedom to profess and propagate atheism, but rather a right not to profess any religion or belief, or to profess one’s ‘own’, personal, and autonomous belief. It is the phenomenon of individual believers in which tendencies converge, all being aimed at legitimising behaviours not only distant

 This aspect involves full respect for the right to freedom of religion or belief, even when constitutional principles seem to limit its scope. This is the case with the principle of secularism addressed several times by the ECHR: The Court emphasizes, however, that it has already approved strict implementation of the principles of secularism (now included among the rights and freedoms safeguarded by the Constitution, see paragraph 24 above) and neutrality, where this involved a fundamental principle of the State, as in France (see, mutatis mutandis, Kurtulmuş, and Dalhab, both cited above). The principles of secularism and neutrality give expression to one of the rules governing the State’s relations with religious bodies, a rule which implies impartiality towards all religious beliefs based on respect for pluralism and diversity. The Court considers that the fact that the domestic courts attached greater weight to this principle and to the State’s interests than to the applicant’s interest in not limiting the expression of her religious beliefs does not give rise to an issue under the Convention (Ebrahimian v. France, 26 February 2016, § 67). 25  The reference is to General Comment No. 22 (48) of the UN Human Rights Committee concerning Article 18 of the International Covenant on Civil and Political Rights, which protects freedom of religion. 24

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from the religious fact, but also from the institutional dimension of religions. This allows us to identify how the religious phenomenon is today pragmatically assimilated to real lifestyles in which there is an unspecified religious component made up of practices, meanings and values of a ‘religious type’, not anchored to a traditionally understood religious/confessional affiliation. These lifestyles claim legitimacy to be protected in the terms and in the manner provided for by the right to religious freedom, otherwise denouncing problems of discrimination. For this reason, individual believers converge their attention to legitimising forms of behaviour distant from the traditionally understood religious fact and, in parallel, from the institutional dimension that pertains to structured religions. The same consideration is also reserved to the dimension of faith (believing), belonging to a specific religious confession (belonging), and to an ethical behavioural orientation which includes elements drawn from religions and religiously founded beliefs (behaving). It is not a question of providing for a right, but of legitimising the private dimension of religion with a new type of subject: the believer not belonging to a religious denomination and therefore without structured ties (believing without belonging), who requires to be protected by legal systems in his right to the freedom of belief.26 In the light of this summary evidence, it is easier to identify how in the conceptual framework within which the Holy See operates in the matter of religious freedom, the latter is understood as the right of every person, group and community to profess their religion, according to the dictates of their own conscience. A right to establish relationships with God in the intimacy of conscience, but at the same time in an individual and community form, free from any possible external coercion including that of an authority which believes it has the right to intervene. The public dimension returns here, since the affirmation of religious freedom as a fundamental right means supporting the autonomy of the person not towards religion, but towards all those who would wish to place constraints on the scope of his religious sentiment. Therefore, for the Holy See to protect religious freedom has the consequence of guaranteeing the relationships between the person and his faith, relationships which, if seen as a juridical relationship, are able to identify ‘duties’ and ‘rights’.

3 Strategical Consideration and Approach In the international context, the Holy See works so that the religious freedom of every believer consists not only in a just proclamation in normative terms, but also in the necessary information and training capable of providing a true contribution to the good of society as a whole, as well as in a formed conscience of believers so that they can contribute to the common good. Therefore, it is not just a question of supporting the juridical status of religions or their ability to express themselves in public and in private, even in the processes of training, but of concern for the human

26

 Reference is made to the classic formulation of Davis (1997), pp. 17–37.

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person. This entails a critical voice in the face of violations and limitations, i.e. determination in announcing the message that is proper to religions, effective freedom in professing, spreading, or changing a person’s beliefs.

3.1 Doctrinal Overview and Foundations Such a perspective is present in the conceptual framework of the Holy See that, by proclaiming religious freedom, does not affirm that human beings are released from obligations deriving from religion, but rather that human freedom is violated if a person is prevented from following their conscience in religious matters. All this has a strong motivation in the very mission of the Catholic Church, in its dimension of the ‘people of God’, which remains anchored to the command received by its Founder to bring the good news to all peoples.27 In fact, all Christians are invited to work towards achieving this purpose, and indeed are called upon to spread the Gospel message to all peoples. In this way the rights of which every person—those to whom the Christian is called to announce the ‘good news’—is the bearer, depositary, and beneficiary may be recognised; including, inter alia, the right to arrive at the knowledge of the truth and to freely adhere to such truth. This approach, adopted by the Holy See, can be seen in the way the Second Vatican Council gives expression in the Declaration Dignitatis Humanae,28 particularly when indicating the ways and means to spread the ‘good news’; specifying that in any form of apostolate or work to make the Christian message known, believers must never make use of coercive means. On the contrary, they are called to work so that every person, created in the image of God, adheres to the Christian faith by manifesting a fully free assent, that is, one that respects their dignity and freedom. An ever-evolving process shows religion as a religious fact and as an institutional reality that concerns not only the private sphere of the believer, but has a relevant public dimension in the context of States and in the wider international community. In addition, it is precisely this latter aspect that highlights the complexity of a right such as that to religious freedom, motivated not only by the broad content of history, doctrines, proclamations, but also by changes in cultures, ideologies, and law. A second area that emerges from the conceptual framework that inspires the international conduct of the Holy See can be summarised in the question: From what assumptions does a correct vision of religious freedom draw its foundation? First, reference can be made to the person’s ability to freely make the choice to adhere to the principles, doctrine, rituality and operational elements of a ‘community of believers’, while being fully aware that such elements are may directly affect his or her social life.

27 28

 See Matthew 16: 9–20.  See footnote 17.

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As some indicators drawn from the context of contemporary international relations indicate, there are others that propose the above in a way that is different from but flank its true nature and content. These elements are not aimed at comparison or opposition, but rather at relativisation of the concept of religion. This is shown by the aforementioned tendency to incorporate religion into the broader concept of culture, as seen in the decision of the institutions of the European Union to proclaim 2008 the European Year of Intercultural Dialogue. Here, reference is made to religions and then mentions ‘creeds’ or ‘beliefs’ present ‘in Europe and elsewhere’ that need to be harmonised:29 the tool to act should be intercultural dialogue, but religion is solely placed in an instrumental position. Similarly, the position of the UN General Assembly to institutionalise, as a specific structure, the dialogue between religions within the organisation, given that ‘mutual understanding and dialogue between religions are important elements in dialogue between civilizations and the culture of peace’.30 Furthermore, interreligious dialogue is conveyed by that between cultures. This creates a situation that leaves uncertainties about the effective competence of an intergovernmental institution, such as the UN, to become the promoter and guarantor of a relationship between religions. Moreover, this is so, at least in terms of subsidiarity, given the presence of organisations operating internationally among religions (the traditional World Religions Conference, the Congress of the Leaders of World and Traditional Religions, the World Council of Churches…). Faced with these increasingly ‘dilated’ limits, the conceptual framework with which the Holy See operates refers to the impact on the action of the religious community and the political community: the former is organised with suitable forms to meet the spiritual needs of its faithful, while the latter has the task of creating rules and institutions in the service of the common good. Traditionally, the relationship between the two communities has been inserted in this vision, including the respect for religious freedom as a guarantee of the space for any necessary action by the Catholic Church which, in its relationship with the State, has sought instrumental considerations or positions that mirror the apparatuses of the State, also in the form of granted privileges. An experience that corresponded to a State which was ready to act in a manner, arguably that of quasi self-protection towards the Catholic Church. This was dictated by the need to preserve control over the religious phenomenon in its entirety, rather than to govern its various manifestations. This approach was modified by the Second Vatican Council in the Constitution Gaudium et Spes,31 which first and foremost was careful to specify certain aspects that were to form the objectives for the realisation of Church-State relations, starting from the assumption that ‘[the] political community and the Church are independent and autonomous from each other in their own field. But both, even if in different ways, are at the service of the personal and social vocation of the same men. They will

 See Decision No. 1983/2006/EC of the European Parliament and of the Council, of 18 December 2006. 30  Resolution 61/221 of 20 December 2006. 31  Second Vatican Council, Pastoral (1965b). 29

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carry out their service for the benefit of all in an all the more effective way, the more they cultivate a healthy collaboration among themselves, according to methods suited to the circumstances of place and time’. 32 What becomes evident is the refusal of opposition, prevalence or even of subjection, due to a lack of balance between the two communities. Such situations have been experienced many times in the past and encountered in the contemporary time, even recently, but they must be replaced by engagement and cooperation capable of outlining a recognition not only of the independence of the two communities, but also of the originality and autonomy of their respective legal systems. The Catholic Church in dealing with the State must recognise the legitimate autonomy of temporal realities ‘by recognizing the method requirements proper to every single science or technique’;33 the State is required to adopt an approach capable of recognising the Church that ‘always and everywhere, and with true freedom, it is his right to preach the faith and teach his social doctrine, to exercise his mission without obstacles among men and to give his own moral judgment, even on matters concerning the political order, when this is required by rights, fundamental of the person and the salvation of souls’.34 From this there follows a vision of religious freedom that implies the aforementioned individual and communitarian dimension. Such freedom contemplates the freedom of expression, the freedom to teach, evangelise, as well as the freedom to worship in public, and to organise and establish their own internal regulations, the freedom of choice, education, appointment and transfer of their ministers, the freedom to build religious buildings and to purchase and possess adequate assets for their business. Finally, this includes the freedom of association for purposes that are not only religious, but also educational, cultural and charitable.35 Today this approach, as Pope Francis indicates, considers it essential that the ‘legal systems, whether State or international, are called […] to recognize, guarantee and protect religious freedom, which is an intrinsically inherent right to human nature, to its dignity, to be free, and it is also an indicator of a healthy democracy and one of the main sources of the legitimacy of the State’.36 This means that if the freedom of religion is incorporated in the constitutions and laws and translated into consistent behaviour, it favours the development of relationships of mutual respect between the different confessions and their healthy collaboration with the State and political society, without confusion of roles and without antagonism. In place of the global conflict of values, a global collaboration in view of the common good is thus made possible, starting from a nucleus of universally shared values.37

 Id., 76.  Id., 36. 34  Id., 76. 35  See John Paul II (1980), p. 4. 36  To participants in the international Conference Religious freedom according to international law and the global conflict of values, 20 June 2014. 37  Id. 32 33

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The traditional approach followed in the international law of human rights formed the basis in reference to the dignity of the person, not distinguishing the right to freedom of religion from other fundamental rights, especially those falling within the sphere of so-called civil rights. Moreover, it is an orientation present in the legal instruments operating at international level whose elaboration is certainly the result of a conception of fundamental rights linked to the Universal Declaration of 1948, with its reference to human dignity as the source of rights. This is an important concept since it removes human rights from the granting of legal systems or institutional systems. This approach held up until the end of the Cold War, that is to say, a model of international relations rather than rights also constituted an element of opposition and a propaganda weapon. A rapid change, in fact, took place in the context of the aforementioned UN World Conference on Human Rights. That meeting allowed the Holy See to highlight the passage which entailed above all an equation of religion with culture, with a pre-eminence of the latter, and then the determination of religious diversity (no longer religious pluralism)38 which in fact also released the right to religious freedom from the institutional dimension, essentially linking the same to an individual reality. This explains why today religious freedom is configured above all in the freedom of the person to profess principles and doctrine proper to a religion or creed, and therefore to manifest those values operating in the ‘community of believers’ which are also able to inspire his conduct in the ‘community in which he lives’. This change of paradigm has inserted another element in the conceptual framework of the Holy See: the relationship between religion and freedom must be measured both with a general and abstract reference to the protection of fundamental rights and with the conviction that social, political and institutional reality cannot hinder its exercise, but rather must protect and promote it. This implies, among other things, that the social context, even before the juridical order, must not exert pressure on the person to adhere to a religion against his will; nor must it forcibly prevent adherence to a religious faith that the person decides to profess. In this way the religious choice becomes an expression of human dignity. Only when the liberty of choice and dignity coincide, can the believer withstand in the face of principles, laws or requests for behaviour issued by public authorities that are in contrast with the voice of his conscience and therefore with the precepts that are proper to the religious doctrine that he professes. According to the vision expressed by the Holy See, this doctrinal line is rooted and motivated in Dignitatis Humanae: ‘A fundamental element of Catholic doctrine, contained in the Word of God and constantly taught by the Fathers, is that the response of faith given by the man to God must be voluntary: consequently, no one must be forced to embrace the faith against his will’.39 And if in considering free will one assumes the perspective of respect for human rights, freedom of thought  A trend consolidated in international practice. Lastly, see Resolution 46/27 of 24 March 2021 of the UN Human Rights Council, which reaffirms the expression that has become customary ‘diversity of religion and belief’ (HRC, Report 2021, Doc. A/76/53, 118). 39  Second Vatican Council (1965a) Declaration, 10. 38

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and conscience cannot be neglected, united by the demand for a ‘composite’ freedom of religion, in which respect for conscience converges, of the believer’s thought, worship, teaching, and public action in civil society.

3.2 The Limits to Protection One of the issues most frequently encountered in the approach to the practice of States and to the tendencies of the international order is that of the limit that can be imposed on religious freedom. A complex aspect as well as for the pure juridical dimension—often conflictual—also for the visions and consequent choices connected with the religious dimension, and with the interreligious dialogue itself. In other words, the choice of faith and not just the possibility of announcing and spreading the religious message can be subject to restrictions.40 Protection and limits are the two poles around which every analysis on this right revolves, which is fundamental not only because it is a direct manifestation of human dignity, but for the strategic function that freedom of religion exercises in evaluating public powers and the consistency of their attention and a guarantee for human dignity. This reading reflects the process of affirmation of human rights that has characterised the history of the last few centuries, favoring the gradual positioning of the human person and his rights at the centre of reflections and actions of a juridical, political, cultural and religious nature. Thoughts and actions, however, have revealed that fundamental rights remain the privileged instrument for guaranteeing not simply the person, but the inseparable unity that the person presents between the material and spiritual dimension, between the individual and the collective one, between being a believer and being a citizen. Moreover, the parameters of international human rights law affirm that a consistent protection of fundamental rights does not allow to ‘dissect’ the person who holds them, even considering, and if necessary specifying, the different situations in which the person operates or is inserted. Of course, even the freedom of religion raises the question of the indivisibility of rights, which has established itself as a guiding principle and an insurmountable presupposition. In fact, if between the categories of human rights, it is possible to establish a diversity in the regulatory and institutional approach or in that linked to justiciability (e.g. to remain on the subject of discrimination for religious reasons, the different judicial protections that exist among fundamental rights of the person and those related to citizenship), it is not so easy to propose such a method when it comes to religious freedom. Just think of the individual and community dimension that this right expresses, its placement among other intellectual freedoms (thought, opinion, and expression), its connection not only with civil and political rights, but also with cultural ones. On everything, then, weighs the different sensitivity that the state legal systems show towards the religious phenomenon by

40

 For specific data, please refer to the PEW Research Center (2019).

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elaborating rules of conduct and programmatic guidelines for different aspects of common living.41 A quick reference to the jurisprudence of the European Court of Human Rights leads to identify how in the matter of protection of fundamental rights the modalities and possibilities of intervention by public authorities must necessarily reflect the three general criteria of the legislative provision, of a legitimate satisfaction and an actual need.42 Criteria that have gradually been subjected to an interpretation, even an extended one, in a limiting function of State action, as in the case of verification of subsidiarity, proportionality and, even more, the need for action. Outside these parameters, there is a violation of rights, including that of freedom of religion. If the right to religious freedom is to be recognised by the legal systems and sanctioned as a fundamental right, just limits can be applied to it in terms of exercise. Limits determined, however, according to the given situation with the necessary discernment, that is, the necessary ‘evaluation’ in accordance with the needs of the common good, by means of norms that correspond to the objective moral order, as demand an ‘effective protection of the rights of all citizens and of their peaceful coexistence, by a sufficient care of that honest public peace which is ordered coexistence in true justice, and by the dutiful safeguarding of public morality’. 43 From the normative activity of the international bodies, it is evident that religious freedom must be recognised for every person by the public powers that preside over the life of every political community. With a single modality of intervention that considers people also ‘when they act in a community form’, solely taking care to set limits so that ‘the just requirements of public order are not violated’. 44 This means an obligation to act that starts from recognising the exercise of worship to religious communities alongside a power of self-organization to be realised in the autonomous choice of religious leaders, clergy, teachers, in the establishment of seminaries and religious schools or training for the religious personnel, in the drafting and distribution of texts and publications of a religious nature, in the freedom to spread a religion freely and by any means, as well as the possibility for believers to contribute by virtue of their religious vision to the social dimension and to the legal order, domestic and international.45 This being carried out without receiving special authorisations that do not fall within the limits ordinarily provided for by

 See, i.e. for the references to the Eweida case placed before the English Courts and then examined by the ECHR (Eweida and Others v. United Kingdom, 27 May 2013). For literature, see Hatzis (2011), pp. 287–305; McCrea (2014), pp. 277–291. 42  The Sunday Times v. United Kingdom, 26 April 1979, § 45. 43  Second Vatican Council (1965a) Declaration, 7. 44  Id., 4. 45  In this sense, see Art. 16 of the International Covenant on Civil and Political Rights, Art. 9 of the European Convention on Human Rights, Art. 12 of the Inter-American Convention on Human Rights, Principle VII of the Helsinki Final Act and Art. 8 of the African Charter of Human and Peoples’ Rights. 41

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international human rights legislation, summarised by expressions such as safety, public order, health, morals and the rights of others.46 The justification of these possible limits, then translated into the concrete actions that state institutions can activate, lies in the fact that each person and each community is required to compose their own religious dimension in accordance with the legal order as well as the precepts that their religion he established. An aspect that often determines uncertainty and opposition in the sphere of consciousness. The vision of the Catholic Church indicates in this regard: ‘in the depths of conscience man discovers a law which he does not give himself, but which he must obey instead’.47 For this reason, the person also has the duty to know the laws with ever greater clarity, using suitable means of information to be able to confront himself freely with his religious belief. The will and design that are perceived through the dictates or the voice of conscience: what still emerges is the right not to be prevented from following one’s conscience. The exact opposite of attitudes which, although not deliberately aimed at discrimination in all its forms, at coercive proselytism or forced conversions, not recognising that ‘religious intolerance is in the highest degree hateful and offensive to the human person; in fact, by it man is deprived of his freedom in following the dictates of his conscience: dictates that he considers supreme and sacred, even when, in good faith, he falls into error’.48 It is therefore conscience, that ‘most secret nucleus and the shrine of man, where he is alone with God, whose voice resounds in intimacy’,49 which stands as an element of comparison and an insurmountable limit for every action concerning the freedom of religion. Certainly, there remain other aspects that indirectly take the form of limits to the exercise of the right, as in the case of traditional historical and cultural ties of a religious community with a particular nation, ties known to the international dimension that has favored its consolidation and respect. 50 These are situations that allow the community itself to receive special recognition from the State, even if this recognition must in no way generate civil or social discrimination for ‘other religious

46  See Art. 18.3 of the Agreement international civil and political rights. For more details, see, lastly, Raza (2020), pp. 435–462. 47  Second Vatican Council (1965b) Pastoral, 16. 48  Second Vatican Council (1963) n. 3 last paragraph. 49  Second Vatican Council (1965b) Pastoral, 16. 50  Already in 1930 the Permanent Court of International Justice (CPJI) in the Advisory Opinion on the case of the Greek-Bulgarian ‘Communities’, defining the term community as ‘the collectivity of people who live in a country or in a given locality and have a race, a religion, a language and traditions of their own’, indicated that these communities ‘are united by the identity of that race, that religion, that language and these traditions in a feeling of solidarity in order to preserve their traditions, to maintain their cult, to ensure the education and upbringing of their children in accordance with the spirit and tradition of their race and to assist each other’ (CPJI, Recueil des avis consultatifs, Série B - N. 17, 1930, 21). More recently, the International Court of Justice has taken up the term ‘community’ with an identifying meaning (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ 3, Order of Jan. 30).

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groups’.51 Nevertheless, situations are still evident in which, even if the relations between the state apparatuses and religious communities correspond to the requirements of the rule of law and the norms of international law, this vision does not find general consent and expression in legal and institutional spheres. Here it suffices to refer to the internal regulations on religious freedom which in many cases prescribe specific procedures for the registration and recognition of religions and creeds, in which the discretionary weight of administrative procedures is strong. Yet the ­conception now structured at the international level indicates that religion or belief, for those who profess them, are a structural element of their conception of life: this requires respect for choice and the guarantees that are proper to freedom of religion.52 When on 18 April 2008, before the UN General Assembly, Benedict XVI, speaking of the contents of the right to freedom of religion, indicated how ‘it is inconceivable that believers should suppress a part of themselves—their faith—in order to be active citizens; it should never be necessary to deny God in order to enjoy one’s rights’,53 it became clear how much it is an essential component of the life of individuals, communities and for international relations and how limits and obstacles converge towards this right. It is a passage that must be prepared, interpreted and developed in a moment in which integration processes, human mobility facilitated by new and different technologies, the wider needs of peace and security, demand ‘that wherever religious freedom be equipped with an effective juridical protection and that the duties and supreme rights of human beings pertaining to the free expression of religious life in society are observed’.54

3.3 Towards New Meanings? The contents detectable in international documents, then, bring out a different meaning of the right to freedom of religion, also by repeatedly referring to the description and narrowly delimiting its content. This is not to deprive this right of some of its components or to restrict its scope, but as a guarantee of its full protection, thus avoiding the possibility of an erroneous or at least partial interpretation from which limits of different types may arise. An inductive methodology is thus used to clarify immediately the meaning and significance of religious freedom, identifying those extraneous elements or those that do not constitute an essential part of it and do not give value to the right that is connected to it: the defamation of a religion,55 for example, it must certainly be condemned as an act in itself (defamation is a crime),  Second Vatican Council (1965a) Declaration, 6.  See Resolution 4/10 of 30 March 2007 of the UN Human Rights Council (HRC, Report 2007, Doc. A / 62/53, 45). 53  Text at https://www.vatican.va/content/benedict-xvi/it/speeches/2008/april/documents/hf_ben-­ xvi_spe_20080418_un-­visit.html (accessed on 13.06.2022). 54  Id. 55  On the question of defamation, see Angeletti (2012). 51 52

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but it can also be considered as a specific violation of the right to freedom of religion when it affects people’s lives and is used as a coercive tool. A different reading, moreover, means admitting that someone is arbitrarily given to establish what one should believe in or even if one can believe, to the point of denying the existence— or the concrete presence—of a religion in a specific territory or space. Denial is often accompanied or followed by an attitude of indifference, with direct consequences in the function of belief and in the contribution of believers to build a social order, which also affects the choice of a religion or belonging to a community of believers, but which produces effects that cannot be determined as to the contents of the faith or the terms of the religious message. Another consideration concerns the exact conception of freedom of religion which cannot be translated into the person’s faculty to place truth and error on the same level, and therefore to hold that all beliefs or forms of religiosity (or those that proclaim themselves as such) are equivalent. In doing so, in fact, the freedom of religion would be only the equivalent of that tolerance applied to the so-called forms of ‘new religiosity or belief’ (i.e. the new age experiences), even in the face of behaviours that are registered as blatant violations of other rights and freedoms (especially for personal rights). This is an essential point in the current debate grappling with a different interpretation of terms such as religion and belief, which requires even more reflection when, for example, the legal guarantees, internal and international, on the right to freedom of religion consider traditional religions and new forms of religiosity alike, as well as theistic and non-theistic religions and atheism.56 Reflection on this point requires discernment, especially when State and intergovernmental bodies believe they can dispose of them in religious matters, forgetting that the choice of belief, individual and community religious practice constitute the contents of a right that is founded on the dignity of the human person and it should certainly not be confused as a concession made by the State or an international institution. Another element contributes to complete this description: the relationship between freedom of religion and freedom of religion or belief in the meaning that the terms religion and belief have assumed in the legal profile. The regulatory context up to the 90s of the twentieth century placed them in close correlation (and better one would say in opposition) to allow supporters of State atheism to justify themselves in omissive behaviours or intolerances towards religion and believers. Examples are all the relevant international acts on the issue, which were summarised in Principle VII of the Final Act of Helsinki (1975), expression of the Conference on Security and Cooperation in Europe, and in the Declaration on the elimination of all forms of intolerance based on religion or belief, adopted by the United Nations. Today, however, the expression ‘freedom of belief’ is increasingly used as an alternative to ‘freedom of religion’, having now abandoned the interpretation that  See the aforementioned General Comment No. 22 (48) of the UN Human Rights Committee on Article 18 of the International Covenant on Civil and Political Rights: ‘Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief’ (para 2).

56

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freedom of belief corresponds to professing and propagating atheism. This implies that the freedom of belief is rather a right not to profess a religion or a creed, as well as to profess a ‘personal’ belief, independent of any link with a religion or a structured belief. On a normative level, this implies that the religious phenomenon is brought back exclusively to the confrontation or clash between different visions. Obviously, a complex theme that raises some questions: is it just one of the signs of the growing indifference that has replaced the already well-known secularization that had shifted consideration from religion to spirituality or to a generic attention to the sacred?57 Furthermore, are the data of a clash of civilisations determined by historical events (e.g. the fall of the Berlin Wall in 1989, the destruction of the Twin Towers in 2001, …) which, for the evaluation of individual or collective behaviour, have introduced Islamophobia and Christianophobia alongside pre-existing anti-­ Semitism in the international law of human rights?

4 Concluding Remarks The conceptual framework in which the Holy See operates, intersects with the doctrinal, juridical and institutional context in which competent institutions and intergovernmental bodies are engaged in matters regarding human rights and the freedom of religion. Such bodies and institutions range from the United Nations to regional and/or group organisations. However, one area of activity from which an essential element appears to depart is the choice of faith; a fascinating perspective in which freedom and mystery not only come together, but one in which there is a process in continuous evolution. A process that today no longer seems to consider the religious fact as being intrinsically linked to the institutional dimension in which the choice of faith is manifested. This perspective raises some questions in relation to present and future situations, starting with an understanding of the consistency with the contents expressed by international human rights law, according to which any conceptions expressed in regulatory acts within a country, can prevent a person from following his religion or belief. All this finds a strong motivation in the very function of international norms and their task of linking internal systems for an erga omnes juridical protection of religious freedom in relation to the behaviour of States, being aimed at guaranteeing such freedom for every person. Indeed, a way to recognise the rights of which every human being is a bearer, custodian, and beneficiary. One such right that stands out is to have access to knowledge of the truth and being able to freely adhere to the same. Here, reference is made again to freedom of religion as freedom of conscience; one that does not impose in any way, even in the choice of professing a religion or a belief, as indicated by international law since the Universal Declaration. Therefore, believers must not resort to coercive means in choosing a religion or

57

 See, in this sense Norris and Inglehart (2011), particularly 3–81.

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belief, in any form of disclosure, or in the work communicating a religious message. On the contrary, they are called to make every effort to ensure that every person adheres to the faith by manifesting a fully free assent, that is, one that is respectful of the self and the dignity and freedom of others. Considering the current reality of international relations, the attempts—not always veiled—to reduce the freedom of religion to that of thought or even opinion remain only too evident. From this there derives the tendency to limit religion to the private (or internal) sphere, perhaps of worship, but in fact stripped of the social dimension in the name of respect for a pluralism of thought and opinion that would characterise contemporary societies. Likewise, another segment of the investigation, that which concerns the limitations to freedom of religion, highlights that this freedom cannot be exhausted in tolerance. In fact, such an approach can lead to the ‘growing marginalization of religion […] which is gaining ground in some areas, even in nations that attach great importance to tolerance’,58 forgetting that the distinction between the exercise of religious freedom and the manifestation of a religion traditionally constitutes the criterion for establishing the possibility of intervention by public authorities in the sphere of the religious to limit its scope.59 Finally, some perspective indicators emerge from the positions that can be detected in the regulatory context, first in relation to one of the issues: the limit that can be imposed on freedom of religion. A complex aspect as well as for the pure juridical dimension—often conflictual—also for the visions and consequent choices connected with the religious dimension, and with the interreligious dialogue itself. In other words, can the possibility of announcing and spreading a religious message also be subject to restrictions? If the right to religious freedom is recognised by legal systems and enshrined as a fundamental right, just limits can be applied on its exercise. Limits determined, however, according to given situations with the discernment required, that is, the necessary political ‘evaluation’ in conformity with the needs of the common good, by means of norms that correspond to the objective moral order, as demands an ‘effective protection of the rights of all citizens and of their peaceful coexistence, by a sufficient care of that honest public peace which is ordered coexistence in true justice, and by the dutiful custody of public morality’.60 Faced with these limits, which are increasingly ‘dilated’, how can the Holy See operate in accordance with the Magisterium of the Catholic Church? The last indicator is the one that links freedom of religion and the regime of fraternity, as shown by the road map drawn by the Abu Dhabi Document on 4 February 2019, summarised in the words of Pope Francis when he states: ‘while promoting the fundamental freedom to profess one’s belief, an intrinsic requirement of the very fulfillment of man, it also ensures that religion is not exploited and risks, by

 Benedict XVI, Address to British society at Westminster Hall, 17 September 2010.  Raza (2020) indicates as limits generally imposed by the conduct of public powers: (a) practices deemed to be against the liberal democratic order; (b) practices that breach the duty of neutrality; (c) practices that do not constitute a core religious belief; (d) the choice of alternatives. 60  Second Vatican Council (1965a) Declaration, 7. 58 59

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admitting violence and terrorism, denying itself’. 61 This is today’s problem of legal systems: the inability to prevent and supervise; veiled indifference towards the religious element as part of the realisation of the person can recompose their contradictions, and consequent contrasts. The Holy See’s commitment to the protection of religious freedom is therefore oriented towards objectives whose significance and value go well beyond the religious, theological and ecclesial profile alone, overflowing into the cultural, political and institutional dimension. Even in the proposal of means such as dialogue between religions or between religions and States, the international action of the Holy See is not limited to promoting coexistence, but proposes the possibility of building a coexistence capable of overcoming prejudices, limitations and conflicts in matters of freedom of religion. This is a commitment carried out according to the modalities provided for by international law and in the competent fora, knowing that where the person and his/her dignity are at stake, the Catholic Church, also in unison with others, has an interest and something to say.

References African Union (2020) Interfaith Dialogue on Violent Extremism-iDove Stocktaking. Report 2017-2019 Angeletti S (2012) Freedom of religion, freedom of expression and the United Nations: recognizing values and rights in the “Defamation of religions” discourse, in Stato, Chiese e pluralismo confessionale, 29/2012 Araujo RJ (2001) The international personality and sovereignty of the Holy See. Cathol Univ Law Rev:291–360 Benedict XVI (2010) Address to British society at Westminster Hall, 17 September 2010 Buonomo V (2004) The Holy See in the contemporary international community: a juridical approach according to the international law and practice. Civitas et Justitia II:7–40 Buonomo V (2007) Vatican. In: Robbers G (ed) Encyclopedia of world constitutions, vol III. New York, pp 1006–1011 Caveada L (2018) Questioni aperte sulla presenza della Santa Sede nel diritto internazionale. Padova Davis G (1997) Believing without belonging. A framework of religious transmission. Recherches sociologiques 3:17–37 Dupuy A (2003) Une parole qui compte. Le Saint-Siège au cœur de la diplomatie multilatérale. The Path to Peace Foundation, New York ECHR (2020) Guide on Article 9 of the Convention – Freedom of thought, conscience and religion. Strasbourg Fattori G (ed) (2021) Libertà religiosa e sicurezza. Pisa Francis (2019) Address at the Founder’s Memorial in Abu Dhabi, 4 February George WP (2004) Looking for a global ethic? Try international law. In: Janis MW, Evans C (eds) Religion and international law. Leiden-Boston, pp 483–504 Gunn TJ (2003) The complexity of religion and the definition of ‘religion’ in international law. Harv Hum Rights J XVI:189–215 Hatzis N (2011) Personal religious beliefs in the workplace: how not to define indirect discrimination. Mod Law Rev 74:287–305 61

 Francis, Address at the Founder’s Memorial in Abu Dhabi, 4 February 2019.

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Hopkins D, Lorentzen LA, Mendieta E, Batstone D (eds) (2001) Religions/globalizations: theories and cases. Duke University Press, Durham John Paul II (1980) Letter to the Heads of State who signed the Helsinki Final Act, 1st September 1980 McCrea R (2014) Religion in the workplace: Eweida and others v. United Kingdom. Mod Law Rev 77:277–291 McLarren K, Stahl B (2020) The Holy See as hybrid actor: religion in international, transnational, and world society. In: Barbato M (ed) The Pope, the public, and international relations. Culture and religion in international relations. Palgrave Macmillan, Cham, pp 189–201 Morss JR (2016) The international legal status of the Vatican/Holy See Complex. Eur J Int Law 26:927–946 Norris P, Inglehart R (eds) (2011) Sacred and secular: religion and politics worldwide. Cambridge OSCE - Office for Democratic Institutions and Human Rights (2007) Toledo Guiding Principles on Teaching about Religions and Beliefs in Public School, Warsaw Permanent Observer Mission of the Holy See to the UN (1987) Paths to Peace: A Contributions. Documents of the Holy See to the International Community, New York PEW Research Center (2019) A Closer Look at How Religious Restrictions Have Risen Around the World Raza F (2020) Limitations to the right to religious freedom: rethinking key approaches. Oxford J Law Relig 9:435–462 Second Vatican Council (1963) Preparatory Outline “De libertate religiosa”, 19. XI. n. 3 Second Vatican Council (1965a) Declaration on Religious Freedom Dignitatis Humanae on the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious, Promulgated by His Holiness Pope Paul VI on December 7, 1965 Second Vatican Council (1965b) Pastoral Constitution on the Church in the Modern World Gaudium et Spes, Promulgated by His Holiness Pope Paul VI on December 7, 1965 Tomasi S (ed) (2017) The Vatican and the family of nations. Cambridge, pp 113–187 Vincenzo Buonomo  is Full Professor of International Law and Organization at the Pontifical Lateran University (PUL), former Dean of the School of Law and Coordinator of Doctorates. He is a Doctor in Utroque Iure at the Pontifical Lateran University. He began teaching at the PUL Civil Law Faculty in 1984, and the author of more than 150 publications including books, edited books and contributions on International Law and Human Rights. Since 1983, he participated in the works of the Holy See’s Representation to the United Nations Organizations and Bodies on Food and Agriculture (FAO, IFAD, WFP) where he was appointed Head of Office in 2007. He represents the Holy See at the Advisory Committee of the UN Human Rights Council and to the Venice Commission for Democracy through the Law (Council of Europe). He was a member of the ODHIR Advisory Panel of Experts on Freedom of Religion or Belief of the Organization for Security and Co-operation in Europe (OSCE). Since 2014, he is Councilor of the Vatican City State. On 2 June 2018, Pope Francis appointed him President of the PUL in Rome.

The International Labour Organisation and Freedom of Religious Belief Djamil Tony Kahale Carrillo

Abstract  The aim of the present study is focused on analysing the role played by the ILO in the freedom of religious belief. More specifically, after presenting this introduction, the second section will study what the ILO is. The third section will provide an analysis of the ILO Conventions and Recommendations; especially the Fundamental Conventions, Governance Conventions and Technical Conventions. In the fourth section, the benefits of the ILO standards will be studied, through: (a) a path to decent work; (b) an international legal framework for a fair and stable globalisation; (c) establishing a level playing field; (d) a medium to improve economic results; (e) a safety net in times of economic crisis; (f) a strategy to reduce poverty; (g) joining experience and international knowledge. Finally, the conclusions and the bibliographical references are given. Keywords  Religion · Labour relations · International Labour Organisation · Conventions · Decent work

1 Introduction Labour relations is a medium that fortunately involves interacting with persons who have different cultural backgrounds, customs, and religions, among other aspects.1 Religious discrimination in the world of labour has been regrettably constant in the rejection of religious practices associated to immigration, in which different

 This work is framed within the result of a research stay carried out by the author at the International Training Centre of the International Labour Organisation (ITC-ILO) in Turin, Italy (2021). Additionally, it has been co-funded by the ERDF 2014–2020 Operative Programme, and by the 1

D. T. K. Carrillo (*) Polytechnic University of Cartagena, Cartagena, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_15

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cultural, political, and economic factors converge. Nevertheless, the gradual influence of other cultures and religious practices leads to a profound reflection, given that both settings—work and religion—are interwoven and affect each other mutually, with the presence of social groups with divergent origins and customs.2 Religious diversity is a reality in most countries. Coexistence between different cultures, between different religions, as has been commented, causes certain confrontation and friction between the different communities within the same society.3 Thus, respect for fundamental rights must be the framework in which dialogue and communications between the different collectives make coexistence and social peace possible.4 Multiculturalism was advocated in the last decade of the twentieth century as the defender of cultural pluralism, coexistence, interculturality, and the dialogue between cultures; as opposed to models such as the assimilationist, segregationist, or communitarian models.5 However, in the twenty-first century, the talk is of interculturality, based on the respect among cultures, communication, and mutual enrichment, in the quest for a meeting in equality.6 Multiculturality and interculturality are very similar concepts, given that they refer to a social fact, the diversity or the cultural and/or religious pluralism present in a society; which raises few doubts or discussions.7 The Spanish Royal Academy defines multiculturality as the quality of being multicultural; meaning, that which is characterised by the coexistence of different cultures. On the other hand, interculturality is defined as the quality of being intercultural. In other words, that which concerns the relationship between cultures or is common to several cultures.8 However, said terms do not refer merely to a social reality, but are in fact political forms. Put differently, ‘they are regulatory concepts that refer to two different ways of managing pluralism or religious diversity. What these two systems of managing pluralism consist of is what provokes most discussion in the doctrine. Additionally, […] that the terms interculturality and interculturalism are often used synonymously’.9 In short, companies are characterised by pluriculturality, given that they have workers who belong to different social groups and beliefs, particularly religious beliefs.10 The right to a cultural identity is inferred from the respect of the dignity of workers, which extends, exclusively, to those cultural patterns or expressions that

Regional Ministry for Economic Transformation, Industry, Knowledge and Universities of the Andalusian Government. Project reference: FEDER-UCA18-105497. 2  Panizo Romo de Arce (2015). 3  Navarro Valls and Martínez Torrón (2012), p. 25. 4  Gutiérrez del Moral (2010), p. 24. 5  Zapata-Barrero (2007), pp. 198–199. 6  Gutiérrez del Moral (2010), p. 24. 7  Gutiérrez del Moral (2010), p. 24. 8  www.rae.es. 9  Gutiérrez del Moral (2010), p. 24. 10   Meseguer Velasco (2012), p. 25.

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are not damaging to human dignity itself.11 For that reason, it is stated that dignity is a ‘transcultural good’,12 in which the International Labour Organisation (ILO) plays a major role. The aim of the present study is focused on analysing the role played by the ILO in the freedom of religious belief. More specifically, after presenting this introduction, the second section will study what the ILO is. The third section will provide an analysis of the ILO Conventions and Recommendations; especially the Fundamental Conventions, Governance Conventions and Technical Conventions. In the fourth section, the benefits of the ILO standards will be studied, through: (a) a path to decent work; (b) an international legal framework for a fair and stable globalisation; (c) establishing a level playing field; (d) a medium to improve economic results; (e) a safety net in times of economic crisis; (f) a strategy to reduce poverty; (g) joining experience and international knowledge. Finally, the conclusions and the bibliographical references are given.

2 The International Labour Organisation The International Labour Organisation is the United Nations (UN) agency for the world of work. It establishes the international standards regarding work, promotes workers’ rights and favours the creation of decent work opportunities, improvements in social protection and the strengthening of the dialogue on matters relating to work.13 It should be noted that the UN was officially founded on 24 October 1945, after most of the 51 member-state signatories to the founding document, the UN Charter,14 ratified said charter. Today the UN has 193 Member States, which are represented in its deliberative body: the General Assembly. Thanks to the faculties conferred on it by the Charter and its specific international nature, the UN can take measures on issues faced by humanity in the twenty-first century, such as peace and security, climate change, sustainable development, human rights, disarmament, terrorism, humanitarian and health emergencies, gender equality, governance, food production, and so on. The UN, in turn, provides a forum for its members to expression their opinions in the General Assembly, the Security Council, the Economic and Social Council as well as other bodies and commissions. By allowing dialogue among its members, and the organisation of negotiations, the UN has become a

 Martínez-Pujalte (1998), pp. 127–128.  Camps Cervera (1991), pp. 67–78. 13  Preparation of this section and the subsequent ones is based on information included in the ILO website: https://www.ilo.org/global/lang%2D%2Des/index.htm. 14  The Charter was signed on 26 June, 1945  in San Francisco, upon termination of the United Nations Conference on International Organisation, and came into force on 24 October of the same year. 11 12

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mechanism so that governments can find areas of agreement and resolve problems together.15 The ILO is the only tripartite agency within the UN, given that governments, employers, and workers from 187 Member States meet together to establish labour standards, formulate policies and prepare agendas promoting decent work for all workers.16 In this context, it guarantees that the opinions of the social interlocuters are faithfully reflected in the standards, policies, and programmes of the international organisation. Likewise, it carries out studies and compiles data on all matters linked to the labour world. It publishes reports and a wide range of labour publications and documents. It has a set of statistical data bases, which are maintained and updated with data on labour markets from the countries. Similarly, it directs a broad range of cooperation projects for development in all the world’s regions. These projects are carried out by means of alliances with countries and donor organisations, with the aim of creating the conditions for the execution of the international organisation’s own decent work agenda. The ILO was created in 1919, as part of the Treaty of Versailles which brought the First World War to an end; it reflected the conviction that social justice is essential to reach a universal permanent peace. Its Constitution was prepared by a Work Commission set up by the Peace Conference in 1919, and which met for the first time in Paris and then in Versailles. The force that pushed the creation of the ILO was driven by security, humanitarian, political and economic considerations. Synthesising them, the Preamble of the ILO Constitution points out the High Contracting Parties were ‘moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world (…)’. The ILO is based in Geneva (Switzerland) and has exterior offices in over 40 countries. The International Work Conference meets once per year to debate pressing issues in the world of work, adopt new international labour standards and approve the ILO’s agenda and budget. The Governing Body, which is the executive organ of the Organisation, meets in Geneva three times per year. The ILO’s mission revolves around four strategic objectives: (a) Promote and comply with the standards and principles and fundamental rights at work: the international labour standards represent the international consensus on the way that concrete labour problems can be approached at global scale and reflect the predominant knowledge and experience in the whole world. Governments, employers and workers organisations, international institutions, multinational companies, and non-governmental organisations can benefit from this knowledge, incorporating the standards into their policies, their operational objectives, and their day-to-day actions. Given their legal nature, the international labour standards can be used in different legal arrangements and in the 15 16

 United Nations, General information, in www.un.org/es.  ILO, Alphabetical list of ILO member countries (187 countries), in www.ilo.org.

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administrative setting at national level as well as being integrated into the body of international law to promote greater integration into the international community. (b) Create greater opportunities so that women and men can have decent jobs and incomes: without productive employment it will be impossible to achieve the objective of reaching decent standards of living, social and economic integration and personal and social development. The promotion of the company and the development of human resources are key to achieving these aims. The ILO carries out analyses and research into employment, it promotes investments that generate jobs, and it supports the forming of policies. Likewise, it backs the development of professional qualifications, the generation of employment positions, entrepreneurial development, and cooperatives. (c) Improve the cover and effectiveness of a Social Security system for everyone: social protection is fundamental to ensure welfare, dignity, and rights of the elderly, as well as to provide support to their families. In addition to the pensions, it is essential to improve access to adequate long-term care to satisfy the needs of elderly persons. (d) Strengthen tripartism and social dialogue: the dialogue between the Government and the two social interlocutors promotes consensus and the democratic participation by the key players in the world of work. The ILO, being the only United Nations tripartite agency, brings representatives of governments, employers, and workers to design work standards, policies, and programmes together. Social dialogue may refer to negotiation, consultation or merely an exchange of information and opinions between representatives of governments, employers, and workers. In short, the main objectives of that international organisation are basically to promote labour rights, foster decent work opportunities, improve social protection, and strengthen dialogue by dealing with matters related to work. In this context, the ILO finds itself at the service of its tripartite constituents—and society in general— through the following aspects: formulating international policies and programmes to promote fundamental human rights, with the purpose of improving work and living conditions and increasing job opportunities; elaborating international labour standards backed by a single system controlling their application; formulating and implementing, in active association with its constituents, a broad agenda of international technical cooperation, to help countries put those policies into practice; performing training, education, and research activities, so that they contribute to the progress of all these efforts. The ILO performs its work through three fundamental organs, which contain representatives of governments, employers, and workers. The International Labour Conference establishes the international labour standards and defines the Organisation’s general policies. The Conference, which is often referred to as the international labour parliament, meets once per year. It is also a place for the discussion of fundamental social and labour matters. Moreover, the Governing Board is the executive organ of the ILO and meets three times per year in its seat in Geneva.

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It is responsible for taking decisions on ILO policies and for establishing the programme and the budget, subsequently submitted to the Conference for adoption. Finally, the International Labour Office is the permanent secretary of the ILO. It is in charge of activities of the ILO as a whole, which it carries out under the supervision of the Governing Board and the management of the Director General. A tripartite commissions dealing with the main economic sectors assists the Governing Board and the Office in their work. Additionally, they receive the support of expert committees in matters pertaining to vocational training, development of administrative capacity, health and safety at work, labour relations, workers’ education and specific problems that affect women and young workers. The ILO organises periodical regional meetings of Member States to analyse matters that are of special interest for the respective regions.

3 Conventions and Recommendations The international labour standards are legal instruments prepared by the ILO constituents (governments, employers, and workers) that set out certain basic principles and rights at work. The standards are divided into Conventions and Recommendations. The former are legally-binding international treaties which may be ratified by Member States. The latter act as non-binding guidelines. In many cases, a Convention establishes the basic principles that countries ratifying it must apply, whereas a related Recommendation complements the convention, providing more detailed guidelines on its application. It may also be autonomous, i.e. not linked to any convention. The Conventions and Recommendations are prepared by representatives of governments, employers, and workers, and are adopted at the ILO International Labour Conference, which meets annually. Once the standards have been adopted, the Member States, by virtue of the ILO Constitution, must submit them to the competent authorities (normally the Parliament) for examination. In the case of the Conventions, it is a matter of examining them with a view to their ratification. If a country decides to ratify a convention, it generally comes into force for that country one year after the ratification date. Countries that ratify a convention are obliged to apply it in their legislation and in their national practices, and must send reports on its application to the Office at regular intervals.

3.1 Fundamental Conventions The ILO Governing Body has established that eight conventions are fundamental. The cover topics considered to be principles and fundamental rights at work are: freedom of association and trade union freedom, and the effective recognition of the right to collective negotiation; the elimination of all forms of forced or compulsory

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labour; the effective abolition of child labour; and the elimination of discrimination in matters of employment and occupation. These principles are also included in the ILO Declaration on Fundamental Principles and Rights at Work (1998). Nowadays, there are over 1367 ratifications of these conventions, which represents 91.4% of the possible number of ratifications. According to the ILO, a total of 129 more ratifications are required to reach the objective of universal ratification of all the fundamental conventions. The Fundamental Conventions are the following: Forced Labour Convention, 1930 (No. 29);17 Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);18 Right to Organise and Collective Bargaining Convention, 1949 (No. 98);19 Equal Remuneration Convention, 1951 (No. 100);20 Abolition of Forced Labour Convention, 1957 (No. 105);21 Discrimination (Employment and Occupation) Convention, 1958 (No. 111);22 Minimum Age Convention, 1973 (No. 138);23 Worst Forms of Child Labour Convention, 1999 (No. 182);24 Occupational Safety and Health Convention, 1981 (No. 155);25 Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187).26 The only one of all these conventions that relates to religion is the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). Article 1.1 sets out: For the purpose of this Convention the term discrimination includes:

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies. 2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. 3. For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.  López Rodríguez (2019), pp. 182–196.  Roldán Martínez (2019), pp. 197–217. 19  Tupinambá (2019), pp. 218–237. 20  Ríos Mestre (2019), pp. 238–249. 21  Arese (2019), pp. 250–270. 22  Maldonado Montoya (2019), pp. 271–296. 23  Cavalcanti Boucinhas (2019), pp. 297–307. 24  Arrieta Idiakez (2019), pp. 308–333. 25  De Franco (2019), pp. 1198–1214. 26  López Insua (2019), pp. 1474–1491. 17 18

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The reference to religion implies that the Convention protects against discrimination based both on a certain religious belief or its absence, as well as on the external expression of said beliefs that signal that precept.27 Consequently, access to education or employment must not be impeded for having or not having certain religious beliefs or for external signs of faith. Discrimination for religious reasons may appear to be linked to discrimination due to race or ethnicity. On the other hand, exceptions can be included here with regard to covering certain work positions in which the religious belief is understood to be necessary to perform the job (for instance, teacher of a specific religion, whose objective is to transmit the faith).28 The flexible concept of discrimination used by ILO is the result of the legislative techniques used by said organisation. In other words, ‘the technique used to elaborate standards has been characterised by the growing concern for giving all the flexibility needed to texts destined for countries whose economic and social conditions and whose legal systems vary considerably (…) to take into account the variety of national situations, great effort has been made in wording the conventions with all the required flexibility, without this depriving them of all meaning’.29 It should be noted that the recent Resolution on the inclusion of a safe and healthy working environment in the ILO framework of fundamental principles and rights at work,30 amends paragraph 2 of the ILO Declaration on Fundamental Principles and Rights at Work to include, after the phrase ‘the elimination of discrimination in respect of employment and occupation’, the words ‘and (e) a safe and healthy working environment’ and to make consequential amendments to the annex to the ILO Declaration on Fundamental Principles and Rights at Work, as well as to the ILO Declaration on Fundamental Principles and Rights at Work, to include, after the phrase ‘the elimination of discrimination in respect of employment and occupation’, the words ‘and (e) a safe and healthy working environment’ and to introduce consequential amendments to the Annex to the ILO Declaration on Fundamental Principles and Rights at Work, as well as to the ILO Declaration on Social Justice for a Fair Globalization and the Global Jobs Pact. It also indicates that the above-mentioned instruments are hereinafter referred to as the ‘ILO Declaration on Fundamental Principles and Rights at Work (1998), as amended in 2022’, the ‘ILO Declaration on Social Justice for a Fair Globalization (2008), as amended in 2022’ and the ‘Global Jobs Pact (2009), as amended in 2022’. In this context, it indicates that the Occupational Safety and Health Convention, 1981 (No. 155) and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) are to be considered fundamental Conventions within the meaning of the ILO Declaration on Fundamental Principles and Rights at Work (1998), as amended in 2022.

 Thomas and Horii (2003), pp. 57–87.  Maldonado Montoya (2019), p. 286. 29  Valticos (1996), pp. 438–439. 30  International Labour Conference – 110th Session, 6 June 2022. 27 28

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3.2 Governance Conventions The ILO has also designated another four conventions as priority instruments, which propel the Member States to ratify them, due to their importance for the working of the system of international labour standards. Since 2008, these conventions have been qualified as Governance Conventions, given that the ILO Declaration on Social Justice for a Fair Globalisation identified them as having the greatest importance on governance. The Governance Conventions are the following: Labour Inspection Convention, 1947 (No. 81);31 Employment Policy Convention, 1964 (No. 122);32 Labour Inspection (Agriculture) Convention, 1969 (No. 129);33 Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).34 The only one of all these conventions which relates to religion is the Employment Policy Convention, 1964 (No. 122). Its Article 1 states: 1. With a view to stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment. 2. The said policy shall aim at ensuring that:

( a) there is work for all who are available for and seeking work; (b) such work is as productive as possible; (c) there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin. Therefore, employment policy must tend to guarantee that there will be work for all the persons available and who seek work, in which said work will be as productive as possible, that there will be freedom to choose employment and that each worker will have all the possibilities of acquiring the required training to occupy the job that suits them and to use this training and the faculties they have in this job, without their race, colour, sex, religion, political opinion, national extraction or social origin being taken into account.35

 Mendizábal Bermúdez (2019), pp. 335–350.  Carrillo López (2019), pp. 351–367. 33  Pagán Martín-Portugués (2019), pp. 368–381. 34  Cuadros Garrido (2019), pp. 382–397. 35  Carrillo López (2019), p. 355. 31 32

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3.3 Technical Conventions The Technical Conventions are neither fundamental nor of governance; the difference is that they are applied as a cycle of six-year reports. Most of the conventions belong to this category. Therefore, they cover diverse topics and include certain categories of workers, minimum salaries, pension and health and safety at work. The only technical conventions that highlight religion in their contents are the following. (a) Migration for Employment Convention, 1949 (No. 97) Article 6.1 states: 1. Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:

(a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities: (i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young persons; (ii) membership of trade unions and enjoyment of the benefits of collective bargaining; (iii) accommodation; (b) social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations: (i) there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition; (ii) national laws or regulations of immigration countries may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension; (c) employment taxes, dues or contributions payable in respect of the person employed; and (d) legal proceedings relating to the matters referred to in this Convention. (b) Maternity Protection Convention, 1952 (No. 103) Article 2 sets out: For the purpose of this Convention, the term woman means any female person, irrespective of age, nationality, race or creed, whether married or unmarried, and the term child means any child whether born of marriage or not.

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The object of the Convention is to protect maternity, not of any woman but obviously of the woman employed in industrial companies and in non-industrial and agricultural jobs whatever her religious belief may be.36 (c) Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) Article 6 states: 1. All persons to whom this Convention applies shall, except as otherwise provided by the following Articles, be entitled to an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days. 2. The weekly rest period shall, wherever possible, be granted simultaneously to all the persons concerned in each establishment. 3. The weekly rest period shall, wherever possible, coincide with the day of the week established as a day of rest by the traditions or customs of the country or district. 4. The traditions and customs of religious minorities shall, as far as possible, be respected. (d) Paid Educational Leave Convention, 1974 (No. 140) Article 8 establishes: Paid educational leave shall not be denied to workers on the ground of race, colour, sex, religion, political opinion, national extraction or social origin.

The leave, generally, seeks to favour the education and ongoing training of the workers and more specifically, seeks to ensure the development and adaptation of the vocational and functional qualifications to foster employment and job security. With the aim of the leave being both to foster employment as well as to improve working conditions, given that it is convincing proof of its relevance in that the traditions and customs of religious minorities must be respected.37 (e) Termination of Employment Convention, 1982 (No. 158) Article 5 states: The following, inter alia, shall not constitute valid reasons for termination:

(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers’ representative; (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e) absence from work during maternity leave. 36 37

 Quintero Lima (2019), p. 867.  Pérez Amorós (2019), pp. 1114–1115.

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In general terms, the Convention states that the work relation of a worker shall not terminate unless there is a justified cause for doing so related with the worker’s capacity or conduct or based on the operational needs of the company, establishment, or service. It is highlighted that religion is not a justified cause. (f) Indigenous and Tribal Peoples Convention, 1989 (No. 169) Article 5 indicates: In applying the provisions of this Convention:

(a) the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals; (b) the integrity of the values, practices and institutions of these peoples shall be respected; (c) policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected. The Convention particularly concerns social, cultural, and economic integrity, as well as the preservation of the inherent ways of life of indigenous communities.38 In this context, it states that governments must take on the responsibility for developing, with the participation of the interested peoples, coordinated and systematic actions with a view to protecting the rights of those peoples and of guaranteeing the respect for their integrity. (g) Private Employment Agencies Convention, 1997 (No. 181) Article 5 states: 1. In order to promote equality of opportunity and treatment in access to employment and to particular occupations, a Member shall ensure that private employment agencies treat workers without discrimination on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, or any other form of discrimination covered by national law and practice, such as age or disability. 2. Paragraph 1 of this Article shall not be implemented in such a way as to prevent private employment agencies from providing special services or targeted programmes designed to assist the most disadvantaged workers in their jobseeking activities.

38

 Guerrero Jareño (2019), p. 1267.

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4 The Benefits of the ILO Standards The challenges of globalisation have meant that the international labour standards are more relevant than ever before, in which the freedom of religious belief has a lot to say, amongst other things; and it is interesting for the reader to consider this. So the ILO reaffirms the benefits commented in the following paragraphs.

4.1 A Route Towards Decent Work The fundamental aim of the international labour standards involves the development of people in their quality as human beings. In the ILO Declaration of Philadelphia, in 1944, the international community recognised that ‘labour is not a commodity’. Labour is not like an apple or like a television set, it is not an inanimate object that can be traded to obtain the greatest profit or obtained at the lowest price. Labour is part of the daily life of everyone and is the determining factor to achieve human dignity, welfare, and development as human beings. Economic development must include the creation of jobs and working conditions that are adequate so that people can work freely and in safe and dignified conditions. In summary, economic development is not an end in itself, but that its goal must be to improve people’s lives. The international labour standards have been established to guarantee that economic development continues to focus on improving human life and dignity.

4.2 An International Legal Framework for a Fair and Stable Globalisation Achieving the goal of decent work in the globalised economy requires measures to be adopted at international level. The international community is responding to this challenge, in part by developing international legal instruments on trade, finance, the environment, human rights, and labour. The ILO contributes to this legal framework by developing and promoting international labour standards that are focused on ensuring that economic growth and development go hand in hand with the creation of decent work. The ILO’s unique tripartite structure ensures that these standards are endorsed by governments, by employers, and by workers. Consequently, international labour standards set the basic minimum social standards agreed upon by all those involved in the global economy.

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4.3 Establishing Conditions of Equality An international legal framework on social standards ensures a level playing field in the global economy. It helps governments and employers to avoid the temptation to lower labour standards in the belief that this might give them a greater comparative advantage in international trade. In the long run, such practices benefit no one. Lowering labour standards can encourage the spread of low wages, poor training, and high staff turnover in industries, thus stopping a country from creating jobs that are more stable and skilled. At the same time, such practices make it difficult for trading partners to develop their economies. As the international labour standards are minimum standards adopted by governments and social partners, it should be in everyone’s interest for these standards to be applied across the board, so that those who fail to do so do not undermine the efforts of those who do apply them.

4.4 A Medium for the Improvement of Economic Results International labour standards are sometimes perceived as being costly and therefore as an obstacle to economic development. However, a growing body of research indicates that respect for international labour standards often goes hand in hand with improved productivity and economic results. Higher wages, better working-­ time standards and respect for equality can lead to better and more satisfied workers and to lower staff turnover. Investments in vocational training can lead to a better trained workforce and to higher levels of employment. Safety standards can reduce the costs incurred as a result of accidents and health expenses. Employment protection can lead workers who feel secure to move out of their comfort zone and be more innovative. The social protection provided by unemployment schemes and active labour market policies, for example, can facilitate labour market flexibility by making liberalisation and privatisation sustainable and more acceptable to people. Freedom of association and collective bargaining can lead to better consultation and more collaborative labour management, thereby reducing the number of costly industrial disputes and giving greater social stability. The beneficial effects of labour standards do not go unnoticed to foreign investors. Studies have shown that, in the criteria for choosing countries in which to invest, foreign investors value the quality of the workforce and political and social stability higher than low labour costs. There is also insufficient evidence to show that countries which fail to respect labour standards are more competitive in the global economy.

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4.5 A Network of Protection Against Economic Crises Even economies that grow rapidly and possess a highly skilled labour force can face unforeseen economic downturns. The Asian financial crisis of 1997, the bursting of the technology bubble in 2000, and the economic and financial crisis of 2008 underlined how decades of economic growth can collapse due to severe currency devaluations and falling market prices. For instance, during the 1997 Asian crisis, as well as during the 2008 crisis, unemployment increased significantly in many of the affected countries. The disastrous effects that these crises had on workers were compounded by the fact that, in many of those countries, the social protection systems (especially unemployment benefit and health insurance), active labour market policies and social dialogue were absent or put under great strain. Adopting a balanced approach that includes the achievement of macroeconomic and employment goals, while also considering the social impact, can be useful for addressing these challenges.

4.6 A Strategy to Reduce Poverty Economic development has always depended on accepting the rules. Existing laws and legal institutions ensure property rights, compliance with contracts, respect for procedures and protection against crime. These are legal elements of good governance, without which no economy can function. A market governed by fair rules and institutions is more efficient and beneficial to all. The labour market is no different. Fair labour practices established by international labour standards and applied through national legal systems ensure an efficient and stable labour market for both the workers as well as the employers. In many economies that are developing and in transition, a large proportion of the labour force works in the informal sector. In addition, those countries often lack the capacity to deliver effective social justice. However, the international labour standards can also be effective tools in these situations. Most standards are applicable to all workers, not only to those working under formal labour agreements. Some standards, such as those dealing with homeworkers, migrant and rural workers, and indigenous and tribal peoples, do in fact specifically deal with some areas of the informal economy. The extension of freedom of association, social protection, health and safety at work, vocational training, and other measures required by the international labour standards constitute an effective strategy for determining a decrease in poverty and for driving workers into the formal economy. Furthermore, the international labour standards demand the creation of institutions and mechanisms that can strengthen labour rights. In combination with a defined set of rights and standards, existing legal institutions can help formalise the economy and create a climate of trust and order that is essential for economic growth and development.

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4.7 Bringing Together International Experience and Expertise The international labour standards are the result of discussion between governments, employers, and workers in consultation with experts from all around the world. They represent the international consensus on how specific labour problems can be addressed on a global scale, and reflect knowledge and experience from all over the world. Governments, employers’ and workers’ organisations, international institutions, multinational companies and other non-governmental organisations can all benefit from this knowledge by incorporating the standards into their policies, into their operational objectives and into their day-to-day actions. The legal character of the standards enables them to be used in the legal system and administrations at national level, and as part of the body of international law that can lead the international community to greater integration.

5 Conclusions The ILO General Conference, which is often called the labour parliament, sets and adopts international labour standards and is a forum for the discussion of fundamental social and labour matters. Additionally, it adopts the organisation’s budget and elects the Governing Board. Each Member State is represented by a delegation consisting of two government delegates, one employers’ delegate and one workers’ delegate, and their respective advisers. Many government representatives are ministers responsible for labour affairs in their respective countries. The employers’ and workers’ delegates are appointed in agreement with the most representative national employers’ and workers’ organisations. Each delegate has the same rights, and they can all express themselves freely and vote as they see fit. So, it may happen that the workers’ and employers’ delegates vote in the opposite direction, or that their vote is against that of their government’s representatives. However, this diversity of points of view does not prevent decisions from often being voted for by a large majority of votes, or even unanimously. The ILO General Conference, meeting in Philadelphia at its 26th Session, adopted the present Declaration of the ILO aims and purposes and of the principles which should inspire the policy of its members. That document states that ‘all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’ (II.a). This reflects its commitment to social justice, articulating its values and objectives with greater force. Likewise, it firmly reaffirms the following statements: labour is not a commodity; freedom of expression and of association are essential to sustained progress; poverty anywhere constitutes a danger to prosperity everywhere; the war against want requires to be carried on with unrelenting vigour within each nation, and by

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continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare. The Preamble of the Declaration defines the following basic requisites of labour: The regulation of the hours of work, including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of equal ­remuneration for work of equal value, recognition of the principle of freedom of association, the organisation of vocational and technical education and other measures.

The organisation is not alone in its definition of labour rights and human dignity. Most of the rights enshrined in the Declaration of Philadelphia and subsequent declarations of the organisation are consistent with religious texts and commentaries, which point to work as a fundamental right that contributes to personal fulfilment and guarantees independence. In this context, the ILO published the study ‘Convergences: Decent Work and Social Justice in Religious Traditions’.39 It is a very interesting and pioneering document, since it coincides with many of the values defended by the ILO throughout its history, and particularly in recent times with its decent work agenda, and those defended by the different religions and spiritual traditions that are analysed in the publication (Protestant, Catholic, Islamic, Jewish, and Buddhist), so that ‘human dignity, solidarity and above all the connection between work, social justice and peace put us on common ground’.40 The work is the result of several years of meetings held by that international organisation with different religious organisations and communities. The discussion and debate focused on the values enshrined in the ILO’s Decent Work Agenda, such as human dignity, solidarity and security, peace, and social justice. These values are detailed in four strategic objectives: creating employment; guaranteeing workers’ rights; extending social protection; and promoting social dialogue. The meetings began in 2002 with a seminar jointly organised by the ILO and the World Council of Churches on the religious and spiritual perspectives of decent work; this was subsequently published, and other meetings on that topic have followed. Those drafting the work note that the meetings have been a process of mutual enrichment for the participants, highlighting the importance of dialogue, as well as recognising its limits. The importance of work in most people’s lives is emphasised and recognised by the different religious communities, with particular concern for the future of young people. Many points of convergence and philosophical

 h t t p : / / w w w. i u s t i t i a e t p a x . va / c o n t e n t / g i u s t i z i a e p a c e / i t / a r c h iv i o / n ew s / 2 0 1 2 / _ convergences%2D%2Ddecent-work-and-social-justice-in-religious-tradi.html. 40  Oficina Internacional del Trabajo (2012), p. preface. 39

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differences were identified on issues of common concern, such as child labour, minimum wages, forced labour, and maternity rights.41 The study approaches a better understanding of the value of work in the Bible, the Protestant world conferences, the Papal Encyclicals and the social doctrine of the Church, the Koran with the Sunnah and the Hadith, the Torah and its five books of Genesis, Exodus, Leviticus, Numbers and Deuteronomy, and Buddhism and its three Yanas (Mahayana, Hinayana and Vajrayana). It also analyses how, and in what way, the ILO fundamental values are reflected in religious traditions, starting from human dignity and noting that all religions, from their different approaches have ‘unstated agreement that work is a fundamental right for all. In granting this right, individuals can derive a sense of dignity through labour and the potential to support themselves and their families. This general agreement lends implicit support to the ILO’s guiding principle of full and productive employment for all and opens the way for building mutual support between social and religious actors and the ILO’.42 In the analysis of solidarity among nations and workers’ safety, which the ILO qualifies as crucial for the welfare of everybody, the study stresses that social dialogue, in its various and plural manifestations, is valued and promoted in religious circles. Social justice, as already mentioned, plays an important role given that its adoption in the different policy fields enables the improvement of living conditions for all people and helps to shape a fair globalisation, and here the document is of particular interest for its analysis of how each religious tradition has formulated its own interpretation of social justice: ‘made evident through their definitions of human dignity, commentaries on personal and community responsibilities and establishment of rights and regulations in the world of work. These religious formulations are often based on hundreds, sometimes thousands, of years of textual reinterpretation. However, like the ILO, these faiths also continue to evolve by reflecting on current conditions and reworking their respective positions on issues of social justice and rethinking their place in the world’.43 The document examines how the ILO’s Decent Work Agenda relates to, and engages in dialogue with religious traditions, especially: job creation, maintaining and supporting rights at work, social protection and security for all, and building social dialogue, with gender equality as a transversal value. Moreover, it analyses the role of fundamental rights at work in religious faiths and traditions, through the way in which the rights to freedom of association and collective bargaining, the prohibition of forced labour, the abolition of child labour, and the elimination of discrimination in matters of employment and occupation are reflected in religious texts. In short, the ILO standards take freedom of religious belief into account. As has been noted, the word ‘religion’ appears in one Fundamental Convention, in one Governance Convention and in seven Technical Conventions. For a better understanding, Table 1 provides a schematic overview of the distribution and content of

 Ibid., p. 3.  Ibid., p. 23. 43  Ibid., p. 28. 41 42

Governance Convention

Employment Policy Convention, 1964 (No. 122)

Standard Title Fundamental Discrimination Convention (Employment and Occupation) Convention, 1958 (No. 111)

Contents Article 1: For the purpose of this Convention the term discrimination includes: (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies. 2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. 3. For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. Article 1: 1. With a view to stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment. 2. The said policy shall aim at ensuring that:  (a) there is work for all who are available for and seeking work;  (b) such work is as productive as possible;  (c) there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin.

Table 1  ILO regulations referring to religion

(continued)

Employment policy

Specific area Discrimination in employment and occupation

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Maternity Protection Convention, 1952 (No. 103)

Table 1 (continued) Standard Title Technical Migration for Conventions Employment Convention, 1949 (No. 97)

Contents Article 6.1: 1. Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters: (a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities:  (i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young persons;  (ii) membership of trade unions and enjoyment of the benefits of collective bargaining;  (iii) accommodation; (b) social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:  (i) there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;  (ii) national laws or regulations of immigration countries may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension; (c) employment taxes, dues or contributions payable in respect of the person employed; and (d) legal proceedings relating to the matters referred to in this Convention. Article 2: For the purpose of this Convention, the term woman means any female person, irrespective of age, nationality, race or creed, whether married or unmarried, and the term child means any child whether born of marriage or not. Maternity protection

Specific area Migrant workers

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Article 6: 1. All persons to whom this Convention applies shall, except as otherwise provided by the following Articles, be entitled to an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days. 2. The weekly rest period shall, wherever possible, be granted simultaneously to all the persons concerned in each establishment. 3. The weekly rest period shall, wherever possible, coincide with the day of the week established as a day of rest by the traditions or customs of the country or district. 4. The traditions and customs of religious minorities shall, as far as possible, be respected. Paid Educational Article 8: Paid educational leave shall not be denied to workers on the ground of race, colour, sex, religion, Leave political opinion, national extraction or social origin. Convention, 1974 (No. 140) Article 5: Termination of The following, inter alia, shall not constitute valid reasons for termination: Employment Convention,  (a) union membership or participation in union activities outside working hours or, with the 1982 (No. 158) consent of the employer, within working hours;  (b) seeking office as, or acting or having acted in the capacity of, a workers’ representative;  (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;  (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;  (e) absence from work during maternity leave. Indigenous and Article 5: In applying the provisions of this Convention: Tribal Peoples Convention,  (a) the social, cultural, religious and spiritual values and practices of these peoples shall be 1989 (No. 169) recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;  (b) the integrity of the values, practices and institutions of these peoples shall be respected;  (c) policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected

Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106)

(continued)

Indigenous and tribal peoples

Termination of employment

Paid educational leave

Weekly rest in commerce and offices

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Private Employment Agencies Convention, 1997 (No. 181)

Table 1 (continued) Standard Title Specific area Private employment agencies

Contents

Article 5: 1. In order to promote equality of opportunity and treatment in access to employment and to particular occupations, a Member shall ensure that private employment agencies treat workers without discrimination on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, or any other form of discrimination covered by national law and practice, such as age or disability. 2. Paragraph 1 of this Article shall not be implemented in such a way as to prevent private employment agencies from providing special services or targeted programmes designed to assist the most disadvantaged workers in their jobseeking activities.

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the standards which refer to ‘religion’. As can be seen, the areas where the ILO refers to ‘religion’ in its conventions are: (a) Discrimination (Employment and Occupation); (b) Employment Policy; (c) Migration for Employment; (d) Maternity Protection; (e) Weekly Rest (Commerce and Offices); (f) Paid Educational Leave; (g) Termination of Employment; (h) Indigenous and Tribal Peoples; and (i) Private Employment Agencies. This does not mean that in other areas the ILO has no interest in this matter. All of them are important, the fact is that the conventions must be broadly interpreted, where, as a matter of social justice, freedom of religious belief, among others, takes precedence.

References Arese C (2019) Convenio sobre la abolición del trabajo forzoso, 1957 (núm. 105). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 250–270 Arrieta Idiakez F (2019) Convenio sobre las peores formas de trabajo infantil 1999 (núm. 182). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 308–333 Camps Cervera V (1991) El derecho a la diferencia. In: AA.VV. (Coords) Rodríguez Aramayo R, Muguerza Carpintier J y Quesada Castro F, Ética día tras día homenaje al profesor Aranguren en su ochenta cumpleaños, Trotta, Madrid, pp 67–78 Carrillo López A (2019) Convenio sobre la política del empleo 1964 (núm. 122). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 351–367 Cavalcanti Boucinhas J (2019) Convenio sobre la edad mínima 1973 (núm. 138). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 297–307 Cuadros Garrido M (2019) Convenio sobre la consulta tripartita (normas internacionales del trabajo) 1976 (núm. 144). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 382–397 De Franco M (2019) Convenio sobre seguridad y salud laboral (núm. 155) y Convenio sobre los servicios de salud en el trabajo, 1985 (núm. 161). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 1198–1214 Guerrero Jareño R (2019) Convenio sobre pueblos indígenas y tribales 1989 (núm. 169). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, p 1267 Gutiérrez del Moral M (2010) A propósito del velo islámico ¿es posible una solución intercultural?. Revista General de Derecho Canónico y Derecho Eclesiástico del Estado, p 24 López Insua B (2019) Convenio sobre el marco promocional para la seguridad y salud en el trabajo 2006 (núm. 187), Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 1474–1491 López Rodríguez J (2019) Convenio sobre el trabajo forzoso 1930 (núm. 29). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 182–196 Maldonado Montoya J (2019) Convenio sobre la discriminación (empleo y ocupación) 1958 (núm. 111), Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 271–296

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Martínez-Pujalte A (1998) Derechos humanos e identidad cultural una posible conciliación entre interculturalidad y universalidad. Persona y Derecho: Revista de fundamentación de las Instituciones Jurídicas y de Derechos Humanos 38:127–128 Mendizábal Bermúdez G (2019) Convenio sobre la inspección del trabajo 1947 (núm. 81). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 335–350 Meseguer Velasco S (2012) La integración de la diversidad religiosa en el ámbito de las relaciones laborales. Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 28:25 Navarro Valls R, Martínez Torrón J (2012) Conflictos entre conciencia y ley. Las objeciones de conciencia, Iustel, Madrid, p 419 Oficina Internacional del Trabajo (2012) Convergencias: el trabajo decente y la justicia social en las tradiciones religiosas, Ginebra Pagán Martín-Portugués F (2019) Convenio sobre la inspección del trabajo (agricultura) 1969 (núm. 129). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 368–381 Panizo Romo de Arce A (2015) Relación laboral y discriminación religiosa. Revista Española de Derecho del Trabajo 177 Pérez Amorós F (2019) Convenio sobre la licencia pagada de estudios 1974 (núm. 140). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 1114–1115 Quintero Lima M (2019) Convenio sobre la protección de la maternidad (revisado) 1952 (núm. 103). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, p 867 Ríos Mestre J (2019) Convenio sobre igualdad de remuneración 1951 (núm. 100). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 238–249 Roldán Martínez A (2019) Convenio sobre la libertad sindical y la protección del derecho de sindicación 1948 (núm. 87). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 197–217 Thomas C, Horii Y (2003) Equality of opportunity and treatment in employment and occupation. In: International Labour Organization, Fundamental Rights at Work and International Labour Standars, Geneva, pp 57–87 Tupinambá C (2019) Convenio sobre el derecho de sindicación y de negociación colectiva 1949 (núm. 98). Revista Internacional y Comparada de Relaciones Laborales y Derecho del Empleo 7, número especial de conmemoración del Centenario de la OIT, pp 218–237 Valticos N (1996) La Organización Internacional del Trabajo: cincuenta años de actividades normativas. Revista Internacional del Trabajo 115(3–4):438–439 Zapata-Barrero R (2007) Multiculturalidad. In Conceptos políticos en el contexto español, Síntesis, Madrid, pp 198–199 Djamil Tony Kahale Carrillo  is Professor of Labour and Social Security Law at the Polytechnic University of Cartagena. He has published several monographs and book chapters in prestigious publishing houses, as well as articles in journals with a high impact index. He has been awarded several prizes, both nationally and internationally, for his research. He holds three sexenios of research and the I3 Certificate. One of his main lines of research, among others, is gender equality. Currently, he is the principal investigator of different research groups in which, on the one hand, the project 20976/PI/18: The impact of Industry 4.0 in the workplace: An interdisciplinary vision, financed by the Seneca Foundation-Agency of Science and Technology of the Region of Murcia, stands out. On the other hand, as representative in Spain of the Bargaining upfront in the digital age (BargainUP) consortium [VS/2019/0280] funded by the European Commission. He is also the Academic Director of the School of Labour Practice of the Polytechnic University of Cartagena.

Promoting Diversity, Combating Hate Speech and Broadening Intercultural Dialogue: The Council of Europe’s Actions in Favour of Personal Beliefs José Ramón Intxaurbe Vitorica

Abstract  Both the European Convention on Human Rights and other normative texts promoted by the Council of Europe give freedom of thought, conscience and religion a decisive condition for preserving the pluralist character of liberal democracies. In the course of this chapter we will see how the various bodies of the Council of Europe have worked intensively towards the recognition, protection and promotion of the rights related to personal beliefs. Our analysis will focus on three areas: first, on the political leadership marked through the resolutions of the Parliamentary Assembly and the Committee of Ministers; second, in the regular safeguard and promotion activities carried out by several Council of Europe bodies; and third, in the account of various initiatives that have been taken to promote dialogue between different creeds as well as to raise awareness and warn about intolerant attitudes towards the diversity of faiths and sensitivities in Europe. Keywords  Council of Europe · Freedom of thought, conscience and religion · Religious pluralism · Promotion of diversity

1 Introduction The Council of Europe (CoE) is the leading organisation for the defence and promotion of human rights, democracy and the rule of law on the European continent. These objectives have been translated into international treaties, the most important of which is the European Convention on Human Rights (ECHR). They have also been incorporated into non-binding instruments (such as recommendations, J. R. Intxaurbe Vitorica (*) Pedro Arrupe Human Rights Institute, Deusto Law School, Bilbao, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_16

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guidelines, and declarations) which have set the standards for the protection and promotion of human rights in Europe. The various chapters in this volume discuss the meaning and scope of freedom of thought, conscience and religion as protected by Article 9 ECHR, which has a privileged place among the foundations of a pluralistic and democratic society.1 The Council of Europe’s system comprehensively provides for the protection of these rights in various documents.2 The main body charged with safeguarding and guaranteeing these rights is the European Court of Human Rights (ECtHR), which has solid case law on the application of Article 9, both independently and in conjunction with Article 14 ECHR.3 This chapter seeks to evaluate other initiatives that have been taken within the Council of Europe to defend, promote and protect freedom of thought, conscience and religion. The chapter is divided into three parts. The first will examine the main Resolutions and Recommendations issued by the two bodies of the Council of Europe responsible for directly expressing the will of the member states: the Parliamentary Assembly and the Committee of Ministers. The second part deals with other CoE bodies directly or indirectly set up to monitor, safeguard and promote the rights related to personal beliefs. The third part will analyse other initiatives taken within the Council of Europe that have an impact on the promotion of the freedoms being discussed, and will deliver a warning against intolerant attitudes and the protection of the diversity of faiths on the European continent.

2 Pronouncements Made by the Parliamentary Assembly and the Committee of Ministers of the CoE to Defend Freedom of Thought, Conscience and Religion Although the documents issued by the Parliamentary Assembly of the Council of Europe (PACE) are not legally binding, they have been a source of inspiration for the Committee of Ministers and have often been used as a starting point for important CoE treaties and conventions. It is therefore worth addressing the work of this deliberative organ, whose resolutions, recommendations and opinions have repeatedly discussed the freedoms covered in this chapter. One of the main concerns expressed by the PACE about freedom of conscience and religion are those Resolutions and Recommendations aimed at warning or raising awareness about the discrimination, if not persecution, suffered by religious

 Tulkens (2014), pp. 509–513; Murdoch (2012), pp. 12–41; Renucci (2005), pp. 6–25.  Hordecki (2014), pp. 35–44; Steering Committee for Human Rights (2015), pp. 7–15. 3  European Court of Human Rights (2022), pp.  23–52; Martínez Torrón (2014), pp.  123–146; Evans (2010), pp. 339–343. 1 2

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communities or faiths, with special emphasis on anti-Semitism,4 Islamophobia5 and anti-Christian attitudes.6 Resolution 2106 (2016) called on the CoE’s member States to complement their legal systems to combat discrimination and hate speech in relation to anti-Semitic attitudes, by making incitement to violence, threats, the desecration of Jewish property and monuments, and the public denial, trivialisation, justification, or praise of the Holocaust (Shoah) criminal offences.7 Resolution 1743 (2010) cautioned that national parliaments that were considering imposing legal restrictions to the wearing of certain religiously-inspired garments (such as the burqa or the niqab) in public spaces should justify these limitations where necessary in a democratic society. These general prohibitions may have the adverse effect of increasing community and family pressure on Muslim women who wear these garments and lead them to confine themselves and avoid contact with others, thus increasing their isolation. Member States were therefore encouraged to implement measures to raise these women’s self-awareness, increase their knowledge of their rights, and provide them with equal opportunities for access to a professional life and to economic and social independence.8 Resolution 2036 (2015) called on member States to promote a culture of tolerance and ‘living together’ to present religious diversity in a positive light and show how religious faiths have made a constructive contribution to the formation of a democratic and pluralistic society in Europe. It also urged them to implement of reasonable accommodation measures to prevent indirect discrimination and promote the integration of all people in employment and education, as well as their full participation in the public sphere, with special reference to the Christian community.9 As gender issues and their scope in the exercise of religious freedom are also within the PACE’s remit, the Parliamentary Assembly has expressed its position on these issues. Resolution 1464 (2005) urged that where religious education is provided in schools, it should be consistent with the principles of gender equality. For its part, Resolution 1887 (2012) urged the inclusion of the concept of multiple discrimination into the legal systems of the member States. On the implementation of integration policies and the promotion of respect, it called upon the CoE’s member  Resolution 885 (1987) on Jewish contribution to European culture.; Resolution 1563 (2007) on Combating anti-Semitism in Europe; Resolution 2106 (2016) on Renewed commitment in the fight against antisemitism in Europe. 5  Recommendation 1162 (1991) on the contribution of the Islamic civilisation to European culture; Resolution 1605 (2008) and Recommendation 1831 (2008) on European Muslim communities confronted with extremism; Resolution 1743 (2010) and Recommendation 1927 (2010) on Islam, Islamism and Islamophobia in Europe. 6  Recommendation 1957 (2011) on violence against Christians in the Middle East; Recommendation 2055 (2014) on Threats against humanity posed by the terrorist group known as ‘IS’: violence against Christians and other religious or ethnic communities; Resolution 2036 (2015) on tackling intolerance and discrimination in Europe with a special focus on Christians. 7  Resolution 2106 (2016) 7.1. 8  Resolution 1743 (2010), §16–17. 9  Resolution 2036 (2015), 6.1 and 6.2. 4

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States to implement actions for the empowerment of Muslim women by establishing incentives for their active participation in society through the creation of networks that give visibility to women who have been successful in European society.10 As mentioned above, the promotion of the diversity of faiths and sensitivities in Europe, and its conception as a value to be preserved by democratic and pluralistic societies is at the core of PACE’s understanding of freedom of conscience and religion. In this regard, several Resolutions and Recommendations have emphasised the support of intercultural dialogue and coexistence as a basis for deepening the democratic experience.11 Recommendation 1396 (1999) encouraged the Committee of Ministers to implement a regular dialogue with religious and humanist leaders on the major problems facing modern societies to consider the main cultural and religious perspectives of the population, and to involve them in upholding democratic values and promoting innovative ideas.12 Recommendation 1962 (2011) underlined member States’ obligation to ensure that all religious faiths that have accepted shared fundamental values can enjoy legal status for the full exercise of religious freedom.13 Resolution 2076 (2015) addressed two practices that often generate difficulties in reconciling the different sensitivities present in society, as well as doubts that the public authorities may have about balancing conflicting rights and protected legal rights at stake, such as the circumcision of young boys, and the ritual slaughter of animals for consumption. On male circumcision, the concern for the rights of young people was highlighted and the interests of minors were the main priority. The Resolution recommended that these practices should not be permitted unless they are carried out by trained personnel under appropriate medical and health conditions. Families should be informed of any potential risks of the intervention and possible contraindications when assessing what is best for their child. In its assessment of the ritual slaughter of animals, the PACE was not convinced that legislation providing for general bans is desirable and would most effectively ensure animal protection. In its view, there is a need for legislation that strikes the right balance between the legitimate concern to protect animals and prevent them from unjustified suffering on the one hand, and respect for religious freedom on the other. In this sense, the strict legislation that France and Germany have adopted was seen as an example of good practice.14

 Resolution 1464 (2005) on women and religion in Europe, 7.5; Resolution 1887 (2012) on multiple discrimination against Muslim women in Europe: for equal opportunities, 7.1.2 and 7.2.2. 11  Recommendation 1396 (1999) on religion and democracy; Recommendation 1556 (2002) on Religion and change in central and eastern Europe; Resolution 1510 (2006) on freedom of expression and respect for religious beliefs; Recommendation 1804 (2007) on State, religion, secularity and human rights; Recommendation 1975 (2011) on living together in 21st-century Europe; Recommendation 1962 (2011) on the religious dimension of intercultural dialogue; Resolution 2076 (2015) on freedom of religion and living together in a democratic society. 12  Recommendation 1396 (1999), 13.3 (a). 13  Recommendation 1962 (2011), §10. 14  Resolution 2076 (2015), §9–10. 10

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The more controversial or obscure aspects of freedom of conscience and religion have also been dealt with by the PACE in different texts. These have addressed both how they conflict with other fundamental rights (mainly with freedom of expression), and the discriminatory or xenophobic practices that occur based on people’s beliefs, to the extent of involving violence.15 Resolution 1510 (2006) stressed that freedom of expression, as enshrined in Article 10 ECHR, should not be restricted to accommodating the growing sensitivities of different religious groups. However, it argued that it is legitimate for religious faiths to seek protection from excessive criticism or ridicule under human rights law in a democratic society. State authorities should therefore foster critical awareness among citizens and increase social, judicial and legal strategies to combat discrimination and intolerance.16 Resolution 1846 (2011) encouraged CoE member States to enact legislation to make hate speech and the use of violence against members of religious communities and their leaders a criminal offence, as directed by the European Commission against Racism and Intolerance (ECRI). This legislation should provide effective remedies for victims.17 Resolution 1928 (2013) called on member States to take note of the particular status of women and girls in traditional religious settings to protect them and ensure that invoking religion does not entail violence against women, such as honour killings, bride burning, forced marriages and female genital mutilation, including violent practices perpetrated by members of the community.18 The specific challenges posed by freedom of conscience and religion in specific areas such as education and the workplace have been a source of interest for the Parliamentary Assembly.19 Recommendation 1720 (2005) advised the Committee of Ministers to encourage member States to introduce religious studies in primary and secondary levels of State education to make students aware of religious pluralism, raise awareness of everyone’s right to hold their own beliefs, and that the fact of having different religions, or none at all, is not important in assessing individuals. Such education should be provided in an impartial manner, both in relation to different religious views and to the choice not to profess any religion.20 In Resolution 1580 (2007), the PACE expressed its concern about the advance of creationist ideas and its ‘intelligent design’ variant in Europe. At the time, attention was drawn to the  Recommendation 1222 (1993) on the fight against racism, xenophobia and intolerance; Resolution 1345 (2003) on racist, xenophobic and intolerant discourse in politics; Resolution 1510 (2006) on freedom of expression and respect for religious beliefs; Recommendation 1805 (2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion; Resolution 1846 (2011) on combating all forms of discrimination based on religion; Resolution 1928 (2013) on safeguarding human rights in relation to religion and belief, and protecting religious communities from violence. 16  Resolution 1510 (2006), §8 and 12. 17  Resolution 1846 (2011), 5.6. 18  Resolution 1928 (2013), 9.6. 19  Recommendation 1720 (2005) on education and religion; Resolution 1580 (2007) on the dangers of creationism in education; Resolution 2318 (2020) on the protection of freedom of religion or belief in the workplace. 20  Recommendation 1720 (2005), 14.1 and 14.2. 15

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danger that such positions could have on social development. It was noted that advances in medical research into certain infectious diseases such as AIDS, understanding the decline of biodiversity and climate change would be impossible if the principle of evolution were denied. Hence, while the CoE has always stressed the importance of cultures and religions in education, in the name of freedom of expression and freedom of belief, it has proposed that creationist ideas, like any other theological idea, be presented in the educational curriculum as an existing option, but in no case could they claim scientific rigour and respectability for themselves.21 Resolution 2318 (2020) noted that there is evidence to suggest that the workplace is where many people spend most of their day. Maintaining an environment free of discrimination is therefore crucial. Certain situations arising from the external aspects of faith (freedom to manifest one’s religious beliefs) can generate conflicts in the workplace. These may often attempt to be resolved by employers by establishing apparently neutral rules or standards of behaviour (relating to dress codes, menu offerings, holidays or work practices), but in practice these have an adverse effect on people who profess certain religious beliefs. This could lead, even unintentionally, to indirect discrimination practices. It was proposed that CoE member countries should promote cultures of understanding and ‘living together’ characteristic of pluralist societies, as well as strengthen relevant anti-discrimination regulations.22 Notably no reference was made in this text to reasonable accommodation practices such as those implemented in Canada or those which generated a heated debate in the United States. The Committee of Ministers (CM) is made up of the ministers of foreign affairs of each member State or their permanent representatives in Strasbourg. It is the decision-making body of the Council of Europe. The CM stated its position itself on the role of religious and non-religious beliefs in education for democratic citizenship in Recommendation CM/Rec(2008).23 It recommended that member State authorities take initiatives within intercultural education regarding the diversity of religious and non-religious convictions to promote tolerance and ‘living together’. From CM’s response to Recommendation 1987 (2011), a decision was made to prepare a roadmap to assist national authorities in implementing Recommendation CM/Rec (2008) on the dimension of religions and non-religious convictions within intercultural education.24 After years of work and preparation, the CM adopted Recommendation CM/ Rec(2022)5 on 17 March 2022. It was intended to be a point of reference by providing the most comprehensive and up-to-date approach on how to implement  Resolution 1580 (2007), §16.  Resolution 2318 (2020), § 6–9. 23  Recommendation CM/Rec(2008)12 of the Committee of Ministers to member States on the dimension of religions and non-religious convictions within intercultural education (Adopted by the Committee of Ministers on 10 December 2008 at the 1044th meeting of the Ministers’ Deputies). 24  Combating all forms of discrimination based on religion. Reply to Recommendation 1987 (2011) Adopted at the 1151st meeting of the Ministers’ Deputies (18–19 September 2012). 21 22

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Holocaust remembrance in an era when there are increasingly fewer survivors who were direct witnesses. This Recommendation was a reminder of the CoE’s ongoing commitment to promote remembrance and education on the Holocaust in Europe, while constituting a fundamental framework for combating anti-Semitism and securing the lives of the Jewish population in Europe.25

3 Other Bodies of the CoE Involved in the Promotion and Defence of the Freedom of Thought, Conscience and Religion The Secretary General of the CoE has overall responsibility for the strategic management of the Organisation. She issues annual reports on the human rights situation, democratic strength and the rule of law in Europe. Her concerns are often centred on people’s freedom of thought. In the recent annual report presented in 2022 by Marija Pejčinović Burić, fighting inequality, racism, xenophobia and discrimination on grounds of religion was identified as strategic priority number 5. It reiterated the priority status of combating religious intolerance, particularly anti-­ Semitism, as well as the promotion of interreligious dialogue, especially among young people.26 The Commissioner for Human Rights was created in 1999 under a Resolution of the Committee of Ministers. It is an independent and impartial non-judicial institution whose role is to promote education in, awareness of, and respect for human rights as embodied in the Council of Europe’s human rights instruments.27 Its mandate spans across several areas: country monitoring work to raise the standard of human rights protection in each CoE member State, providing advice, and raising awareness of human rights issues by publishing thematic papers and organising seminars and events. One of its most important tasks is to provide advice and information for human rights protection and for the prevention of human rights violations. The opinions and comments of the Commissioner for Human Rights have addressed issues that are relevant to the freedom of conscience and religion, for example, by warning against the rise of anti-Semitism in Europe, denouncing how prejudice hinders the integration of the Muslim community, and calling for

 Recommendation CM/Rec(2022)5 of the Committee of Ministers to member States on passing on remembrance of the Holocaust and preventing crimes against humanity (Adopted by the Committee of Ministers on 17 March 2022 at the 1429th meeting of the Ministers’ Deputies). 26  Council of Europe. Moving Forward 2022. Annual report of the Secretary General of the Council of Europe. Strasbourg: Council of Europe, 2022, p. 30. 27  Resolution (99) 50 on the Council of Europe Commissioner for Human Rights (Adopted by the Committee of Ministers on 7 May 1999, at its 104th Session, Budapest) CM(99)78. 25

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conscientious objection to compulsory military service to be guaranteed in all European countries.28 The 129th session of the Helsinki Committee of Ministers, held on 17 May 2017, highlighted ‘the need to address increasing inequality, racism, xenophobia, hate speech and discrimination on grounds of religion or belief or any other ground…’.29 To satisfy this need, the Secretary General of the CoE, Marija Pejčinović Burić, used the powers granted in her mandate to entrust a special representative with various tasks and appointed Daniel Holtgen as Special Representative of the Secretary General on antisemitic, anti-Muslim and other forms of religious intolerance and hate crimes. His tasks included the following functions: ‘(1) raise awareness and visibility by actively communicating the Organisation’s work and the Secretary General’s priorities to governments, relevant international organisations, religious organisations in the member States (…); (2) develop a comprehensive response of the Council of Europe to antisemitic, anti-Muslim and other forms of hate crimes by working closely with all relevant structures…. including the CDADI and ECRI; (3) put forward specific proposals to the Secretary General on ways to strengthen Council of Europe assistance and advice to member States on how to combat antisemitic, anti-Muslim and other forms of religious hatred and hate crimes’.30 The Special Representative represents the CoE at SECCA (Special Envoys and Co-ordinators Combating Antisemitism) meetings and enables regular cooperation with other organisations such as the OSCE (Organisation for Security and Co-operation in Europe), the United Nations (UN) and the European Union (EU). In response to several outbreaks of anti-Semitic violence in Europe in May 2021, the Special Representative published an article encouraging member States to combat hate speech on the internet and to promote education about the Holocaust.31 Violence rooted in religious intolerance prompted informal Councils of Ministers under the German and Hungarian presidencies to identify strategies to counter it. Reference was also made in these sessions to the attacks against the Christian

 Dunja Mijatović, Ethnic profiling: a persisting practice in Europe. Human Rights Comment, Strasbourg 09/05/2019; Nils Muižnieks, Why remembering the Holocaust is a human rights imperative. Human Rights Comment, Strasbourg 18/10/2016; Nils Muižnieks, Europe still haunted by anti-Semitism. Human Rights Comment, Strasbourg 23/1/2014; Nils Muižnieks, Anti-Muslim prejudice hinders integration. Human Rights Comment, Strasbourg 24/07/2012; Thomas Hammarberg, The right to conscientious objection to military service should be guaranteed in all parts of Europe. Human Rights Comment, Strasbourg 02/02/2012. 29  129th Session of the Committee of Ministers (Helsinki, 17 May 2019) CM/Del/Dec(2019)129/2a. 30  Mandate of the Special Representative of the Secretary General on Antisemitic, Anti-Muslim and other forms of religious intolerance and hate crimes. https://rm.coe.int/07102020-mandate-srsgon-antisemitic-and-anti-muslim-hatred-and-hate-c/16809fdc58 (accessed on 13 July 2022). 31  Special Representative of the Secretary General on antisemitic, anti-Muslim and other forms of religious intolerance and hate crimes. Recent escalation of antisemitic attacks needs Europe-wide response. 11 June 2021. https://www.coe.int/en/web/antisemitic-anti-muslim-hatred-hatecrimes/-/the-recent-escalation-of-antisemitic-attacks-requires-a-europe-wide-response-governments-should-join-forces-to-prevent-new-waves-of-antisemitism-by-co (accessed on 27 July 2022). 28

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population. While these are not a common occurrence in CoE member countries, they have emerged as a potential concern.32 In 2019, the Committee of Ministers established the Steering Committee on Anti-­ Discrimination, Diversity and Inclusion (CDADI) to prevent and eliminate hate crimes, hate speech and discrimination on the grounds protected by the ECRI, focusing on intercultural integration, among other aspects. Initially, the CDADI’s mandate spans from 1 January 2022 to 31 December 2025. Its purview includes following up on decisions taken at both the 129th session of the Committee of Ministers (Helsinki, 17 May 2019) on anti-discrimination, diversity and inclusion, and intergovernmental cooperation; and the 131st session of the Committee of Ministers (Hamburg, 21 May 2021). It has also been tasked with responding to the key findings and challenges set out by the Secretary General in 2021 in the Report on the state of democracy, human rights and rule of law entitled ‘A democratic renewal for Europe’. Its functions also include following up on the Declaration by the Committee of Ministers on the occasion of the 70th anniversary of the Council of Europe, which reaffirmed ‘the importance of anti-discrimination and equality policies in a democratic society characterised by pluralism, tolerance and broadmindedness’.33 Its tasks include, among others to ‘promote and facilitate awareness raising of Council of Europe standards in relation to (…) national minorities, regional or minority languages, intercultural integration, combatting discrimination and intolerance on any ground covered by Article 14 of the European Convention on Human Rights, amongst others religion or belief, sexual orientation or gender identity’.34 European Commission against Racism and Intolerance (ECRI). The first summit of Heads of State and Government of the CoE member countries held in Vienna concluded with a declaration which expressed that they were ‘alarmed by the present resurgence of racism, xenophobia and anti-Semitism, the development of a climate of intolerance, the increase in acts of violence…’. The result of this was for the Action Plan to provide for the creation of this commission with a mandate to ‘review member States’ legislation, policies and other measures to combat racism, xenophobia, anti-Semitism and intolerance, and their effectiveness’.35  Informal meeting of Ministers’ Deputies. Conclusions by the Special Representative 26 March 2021, https://www.coe.int/en/web/antisemitic-anti-muslim-hatred-hate-crimes/-/informal-meeting-of-ministers-deputies-25-march-2021-conclusions-by-the-special-representative (accessed on 27 July 2022); Informal meeting of Ministers’ Deputies under the Hungarian Presidency on ‘Combating and preventing antisemitism in Europe: challenges and perspectives’. The Council of Europe stands united in the fight against antisemitism, 24 September 2021, https://www.coe.int/ en/web/antisemitic-anti-muslim-hatred-hate-crimes/-/the-council-of-europe-stands-united-in-thefight-against-antisemitism- (accessed on 27 July 2022). 33  Declaration by the Committee of Ministers on the occasion of the 70th anniversary of the Council of Europe (Adopted by the Committee of Ministers on 17 May 2019 at the 129th Session of the Committee of Ministers) Decl(17/05/2019). 34  Committee of Ministers documents, 24 November 2021, CM(2021)131-addfinal. 35  Council of Europe Summit (1993) Vienna Declaration, adopted on 9 October 1993 https://rm. coe.int/0900001680536c83 (accessed on 13 July 2022). 32

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The ECRI has produced several General Policy Recommendations (GPRs) for member States that set standards and provide guidelines for implementing public policies and national strategies. The GPRs that are most relevant to the protection of religious freedom include GPR No. 5 on preventing and combating anti-Muslim racism and discrimination and GPR No. 9 on preventing and combating anti-­ Semitism. Both were revised in 2021.36 They included a number of recommendations to avoid discrimination in the external expression of religious beliefs and encouraged the implementation of reasonable accommodation measures to avoid indirect discrimination.37 Other measures equally relevant to the defence and promotion of freedom of conscience can be found in GPR No. 1 on combating racism, xenophobia, antisemitism and intolerance; GPR No. 6 on combating the dissemination of racist, xenophobic and antisemitic material via the internet and GPR No. 15 on combating hate speech.38 It is worth noting ECRI’s monitoring work to examine manifestations of intolerance and racism in the 46 CoE member States.39 A report is published for each country following on-site visits where meetings were held with national authorities and public and private organisations. These reports outline the findings of the monitoring cycle and provide a diagnosis of the situation and recommendations to address the problems identified. Each monitoring cycle is valid for five years. The sixth monitoring cycle started in 2019. Some recommendations are often related to religious freedom. For example, in the third monitoring cycle, a recommendation was issued to Spain whereby the authorities should ensure that the Spanish legal system make provision for Muslim pupils to receive religious education in public schools. This recommendation was reiterated in the fourth monitoring cycle.40   European Commission against Racism and Intolerance (2000) ECRI General Policy Recommendation No. 5 (revised) on preventing and combating anti-Muslim racism and discrimination, adopted on 16 March 2000 and revised on 8 December 2021; European Commission against Racism and Intolerance (2004) ECRI General Policy Recommendation No. 9 (revised) on preventing and combating anti-Semitism, adopted on 25 June 2004 and revised on 1 July 2021. 37  GPR no. 5 (C-30) ‘In this context, ECRI considers that member States should pursue the more integrating aims of pluralism, tolerance and broad mindedness and to seek for measures that would highlight the diversity of societies where Muslims constitute an integral part. In ECRI’s view, where appropriate, the reasonable accommodation of religious requirements may also ensure that Muslims exercise their right to freedom of religion without discrimination and has a positive impact in terms of integration and social cohesion’. A similar formulation can be found in GPR No. 9 (III, B-31). 38   European Commission against Racism and Intolerance (1996) ECRI General Policy Recommendation No. 1 on combating racism, xenophobia, antisemitism and intolerance, adopted on 4 October 1996; European Commission against Racism and Intolerance (2000) ECRI General Policy Recommendation N°6 on Combating the dissemination of racist, xenophobic and antisemitic materiel via the internet, adopted on 15 December 2000; European Commission against Racism and Intolerance (2015) ECRI General Policy Recommendation N°15 on Combating Hate Speech, adopted on 8 December 2015. 39  Following the exclusion of the Russian Federation in March 2022. 40  European Commission against Racism and Intolerance (2005) Third report on Spain. Adopted on 24 June 2005, (§80): The ECRI has encouraged the Spanish authorities in their efforts to ensure 36

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The Vienna Declaration, which resulted from the first CoE Summit in 1993, gave instructions for the drafting of a Framework Convention whereby contracting States Parties would undertake to respect and ensure the protection of national minorities. Consequently, the Framework Convention for the Protection of National Minorities was adopted by the Committee of Ministers on 10 November 1994, with the aim of creating the necessary conditions for persons belonging to national minorities to develop their culture while preserving their religion, traditions and customs, particularly by avoiding assimilationist practices.41 The Advisory Committee on the Framework Convention on the Protection of National Minorities (ACFCPNM) is aimed at monitoring the evolution of the rights of persons belonging to national minorities through an independent mechanism that produces periodic reports for each State. Religious diversity issues and the external aspects of faith and conscience practices often feature prominently among the ACFCPNM’s recommendations. Within the third monitoring cycle, an Opinion on Spain recommended that the authorities should maintain contact with the Muslim community representation to address the shortcomings in terms of Islamic religious education in public schools and the lack of places of worship.42 In the fourth monitoring cycle, an Opinion on Spain recommended that the authorities combat forms of racism, intolerance, Islamophobia and anti-Semitism, while urging them to continue their dialogue with the representatives of the Muslim community to find solutions to the practical problems they face.43 In the second monitoring cycle, an Opinion on Italy advised the authorities (and especially the media) to take responsibility for their role in promoting tolerance, preventing xenophobia and intolerance, and avoiding the propagation of stereotypes about people belonging to different ethnic and religious groups.44 Within the third cycle, an Opinion on Italy reported the ACFCPNM’s satisfaction about noting the peaceful coexistence between different religious communities in Trieste, where there are different centres of worship (the Catholic Church, the Serbian Orthodox Church, the German-speaking Catholic Church and the Romanian Church).45 The European Commission for Democracy through Law, known as the Venice Commission (VC), is the CoE’s advisory body on constitutional matters. It provides

that the right granted by Spanish law to Muslim pupils to receive religious instruction based on Islam in public schools is implemented in practice. See also European Commission against Racism and Intolerance (2010) ECRI Report on Spain (fourth monitoring cycle). Adopted on 7 December 2010 (§137). 41  Article 5 Framework Convention for the Protection of National Minorities. 42  Advisory Committee on the Framework Convention on the Protection of National Minorities Third Opinion on Spain, adopted on 22 March 2012. ACFC/OP/III(2012)003. §83. 43  Advisory Committee on the Framework Convention on the Protection of National Minorities Fourth Opinion on Spain, adopted on 3 December 2014. ACFC/OP/IV(2014)003. §48–50. 44  Advisory Committee on the Framework Convention on the Protection of National Minorities Second Opinion on Italy, adopted on 24 February 2005. ACFC/INF/OP/II(2005)003. §82. 45  Advisory Committee on the Framework Convention on the Protection of National Minorities Third Opinion on Italy, adopted on 15 October 2010. ACFC/OP/III(2010)008. §77.

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advice in the form of expert legal opinion for member States on draft legislation or on existing legislation that is sent to it for consideration. These legislative matters often affect fundamental rights, including freedom of thought conscience and religion.46 Its opinions on freedom of conscience have included, among other criteria: that it is necessary to make a broad interpretation of the concepts of conscience and religion, beyond institutionalised religious creeds;47 a warning about the fact that requiring States to be religiously neutral would prevent them from establishing requirements on the legitimacy of religious beliefs;48 a clarification of the reconciliation between freedom of expression and freedom of religion in legislation regulating blasphemy and incitement to religious hatred; and49 that it is not legitimate to discriminate between religious faiths when guaranteeing conscientious objection to military service if military service is irreconcilable with the beliefs or religion of individuals.50

 CDL-PI(2021)001 Compilation of the Venice Commission opinions and reports concerning freedom of religion and belief. Strasbourg, 8 January 2021 (revised in November 2020). 47  ‘To be compatible with international human rights standards the term belief must have a broad scope and not be limited to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The term belief must be detached from religion so that it is clear that the law protects freedom of religion and belief in a very broad sense, i.e. also theistic, non-theistic, atheistic and agnostic beliefs’. CDL-AD(2012)022, Joint Opinion on the Law on Freedom of Religious Belief of the Republic of Azerbaijan by the Venice Commission and the OSCE/ODIHR, Strasbourg, Warsaw, 15 October 2012, §34. 48  ‘In exercising their regulatory power, authorities in relations with various religions, denominations and beliefs, have a duty to remain neutral and impartial. The neutrality requirement co-exists with the principle of equality and non-discrimination, making it mandatory for authorities not to make the exercise of freedom of religion under domestic law subject to strict criteria, which is tantamount to prior authorization. In legislation dealing with the structuring of religious communities, the neutrality requirement “excludes assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed”’. CDL-AD(2010)054, Interim joint opinion on the law on making amendments and supplements to the law on freedom of conscience and religious organisations and on the laws on amending the criminal code; the administrative offences code and the law on charity of the Republic of Armenia by the Venice Commission and OSCE/ ODIHR, Strasbourg, 22 December 2010, §54. 49  ‘It would only be legitimate for the law to prohibit “incitement of religious hatred,” and this should be understood to cover only extreme cases such as physical risks to persons and property and not theological disagreements or disputes. Practically all Council of Europe member States provide for an offence of “incitement to hatred” and religious hatred is treated within this offence as a subset of incitement to hatred generally’. CDL-AD(2009)036, Joint Opinion on the Law on Making Amendments and Addenda to the Law on the Freedom of Conscience and on Religious Organizations and on the Law on Amending the Criminal Code of the Republic of Armenia, Strasbourg, 23 June 2009, §25. 50  ‘Applicable legislation should be amended to guarantee to all an exception to the compulsory character of military service where such service cannot be reconciled with an individual’s religion or belief, irrespective of the registration status of the religious or belief community, and to provide possible alternatives of a non-combatant or civilian nature that are not burdensome, punitive nor discriminatory’. CDL-AD(2020)002-e, Uzbekistan - Joint opinion of the Venice Commission and OSCE/ODIHR on the draft Law ‘On freedom of conscience and religious organisations’, Strasbourg/Warsaw, 12 October 2020, §70. 46

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The Venice Commission has provided guidelines for the review of laws regulating freedom of conscience and religion.51 They address various substantive issues that appear in the legislation (circumstances that limit the fundamental right, proselytism, financing of religious faiths, education, self-determination of religious organisations…),52 as well as other controversial aspects (family law, religion in the workplace, cemeteries, political activity of religious faiths…).53 In 2006, the CoE’s Parliamentary Assembly addressed the extent to which freedom of expression should be limited by the sensitivities raised by certain religious groups, while also considering that the growing hate speech towards certain religious communities is incompatible with ECHR mandates. This tension was reported to the VC, which issued a report on the relationship between freedom of religion and freedom of expression.54 Together with the OSCE’s Office for Democratic Institutions and Human Rights, the Joint Guidelines on the Legal Personality of Religious or Belief Communities55 were adopted.

 CDL (2004) 061 Guidelines for Legislative Reviews of Laws Affecting Religion or Belief, adopted by the Venice Commission at its 59th Plenary Session (Venice, 18–19 June 2004). 52  For example, on the prohibition of coercion to adopt or abandon a creed, it was stated that ‘although it may be permissible for a State to enact a law preventing bribes or other extreme material inducements, legislation should be reviewed to ensure that the proposed measures are designed to protect people from unwarranted pressures on people to change religions rather than unwarranted State pressures on people not to change religions. The non-coercion requirement also extends to legal requirements such as oath taking, flag salute requirements, or other State-mandated activities which force an individual to express or adopt beliefs inconsistent with those held by the individual’ (p. 8). 53  In addressing the issue of religious practice in the workplace, ‘to the extent that State laws prohibit discrimination on the basis of religion or belief, religious and belief organisations will likely seek exemptions for their own hiring practices so that they may hire and retain people whose sympathies correspond to the interests of the associations. A variety of legal approaches are possible. With regard to private (non-religious) enterprises, the typical standard will be to prohibit discrimination in such matters such as hiring. Employers may be allowed to restrict some manifestations of belief. States should not discriminate in personnel practices, though some States prohibit officials from wearing religious insignia’ (p. 20). 54  CDL-AD(2008)02 Report on the relationship between Freedom of Expression and Freedom of Religion: the issue of regulation and prosecution of Blasphemy, Religious Insult and Incitement to Religious Hatred, adopted by the Venice Commission at its 76th Plenary session (Venice, 17–18 October 2008). 55  CDL-AD(2014)023 Joint Guidelines on the Legal Personality of Religious or Belief Communities, prepared by OSCE/ODIHR in consultation with the Venice Commission, adopted by the Venice Commission at its 99th Plenary Session (Venice, 13–14 June 2014). 51

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4 Other Measures Adopted by the CoE to Promote Freedom of Thought, Conscience and Religion In 2005, the third CoE Summit of Heads of State and Government culminated in the so-called Warsaw Declaration, which strongly condemned all forms of intolerance and discrimination, particularly those on the grounds of sex, race and religion, with particular reference to anti-Semitism and Islamophobia. The Declaration included a firm commitment to develop legislation and an institutional system to prevent and eradicate them.56 Consequently, the democratic and inclusive management of European cultural diversity has been one of the main axes around which the CoE57 policy has revolved since then, with the aim of preventing conflicts and achieving a pluralistic, inclusive and cohesive society. In September 2006, under Russia’s rotating presidency of the CM, an international conference on intercultural and interfaith dialogue was held in the city of Nizhny Novgorod, which yielded the so-called Volga Declaration. It reiterated the CoE’s commitment to promoting intercultural and interreligious dialogue and anticipated the forthcoming publication of a white paper on intercultural dialogue.58 The conclusions reached in the Volga Declaration served to continue the debate further in April 2007, this time at the international conference on ‘the religious dimension of intercultural dialogue’ under the rotating presidency of San Marino. As a result of this meeting, the San Marino Declaration was issued, in which concern was expressed about the violent acts inspired by religious intolerance reported to date. However, the Declaration welcomed the existing tendency among member States to create spaces for interaction between public authorities, religious organisations and civil society. Accordingly, conference participants suggested that examples of good practice produced so far should also be publicised. Additionally, the creation of a regular institutional framework to promote intercultural dialogue, particularly in its religious dimension, was proposed to the CoE, with special reference to the need to encourage the participation of women and their views in these forums.59

 Council of Europe. Warsaw Declaration. Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16–17 May 2005). § 9. 57  The idea of promoting intercultural and interreligious dialogue through active instruments can be explicitly found in earlier CoE documents related to the European Cultural Convention (Paris, 1954) such as the Wroclaw Declaration on fifty years of European Cultural Convention (9–10 December 2004) and the European Conference entitled ‘The religious dimension of intercultural education’, which took place in Oslo on 6–8 June 2004 and brought together senior education officials from most of the member countries of the European Cultural Convention, together with CoE observer States, education professionals and representatives of civil society working in the field of intercultural education. 58  Council of Europe. Volga Forum Declaration: in favour of regular dialogue between the Council of Europe and religious communities. Nizhniy Novgorod, 08.09.2006. 59  Council of Europe. San Marino Declaration Final Declaration of the European Conference on ‘The religious dimension of intercultural dialogue’ DD(2007)260. San Marino, 23–24 April 2007. § 5–6 and 11. 56

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Inspired by these reflections, the CM made the decision in 2008 to provisionally convene the first Council of Europe Exchange on the religious dimension of intercultural dialogue in France. In view of the positive results of that first experience, it continued to be convened on an annual basis until 2017.60 The aim of these exchanges was to promote mutual respect, awareness, tolerance, and mutual understanding within European societies by engaging the religious faiths traditionally present in Europe, representatives of non-religious beliefs and other civil society actors in active dialogue. In May 2022, under the rotating presidency of Italy, the Conference on ‘Inter-religious dialogue on religion and peace, religion and human rights’61 was held in Strasbourg. In 2008, the CoE’s member countries published the White Paper on intercultural dialogue, as they considered that the intercultural approach was a decisive tool to manage cultural diversity, and guarantee and develop human rights, and promote democratic values and the rule of law in the years to come. Preventing ethnic, linguistic, cultural and religious divisions can be achieved through a constructive and democratic understanding of the different identities that coalesce around European societies, based on the shared universal values. Advancing intercultural dialogue will require democratic governance of cultural diversity, participation in the public space as democratic citizens, and strengthened intercultural competences through teaching and learning, creating and expanding skilled spaces for intercultural dialogue, including at the international level.62 The CoE has several programmes currently in place that develop these principles to address discrimination, inequality and exclusion, strengthen inclusion and foster cohesive societies. The Intercultural Cities programme supports local and regional authorities to review their public policies using an intercultural and intersectional approach. It also offers support to develop comprehensive intercultural strategies that contribute to the positive management of diversity, as well as to the positive perception of the advantages of pluralism.63 Another aspect that has been furthered by based on the principles set out above is the identification, combating, and prevention of exclusionary and hate speech, both online and offline. Several programmes have been implemented to this effect to date. In 2012, the No Hate Speech Movement youth campaign was launched to mobilise young people to combat hate speech and promote human rights. Numerous online contents have been generated and open channels are maintained on the main

 DGIV-RD(2008) Exchange 2008 on the religious dimension of intercultural dialogue ‘Teaching religious and convictional facts—A tool for acquiring knowledge about religions and beliefs in education; a contribution to education for democratic citizenship, human rights and intercultural dialogue’ Strasbourg, 8 April 2008. 61  For more information on all these initiatives, see https://www.coe.int/en/web/cm/exchanges. 62  Council of Europe. White Paper on Intercultural Dialogue ‘Living Together As Equals in Dignity’. Launched by the Council of Europe Ministers of Foreign Affairs at their 118th Ministerial Session (Strasbourg, 7 May 2008). 63  https://www.coe.int/en/web/interculturalcities. 60

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social networks.64 The project entitled WE CAN for human rights speech is currently underway. It aims to support organisations and young human rights activists to fight hate speech more effectively by providing them with friendly materials and training. This is intended to strengthen cooperation between organisations and activists Europe-wide, helping them to consolidate new partnerships with social networking companies, NGOs and national authorities.65 The third CoE summit held in Warsaw in 2005 established an action plan to step up the efforts for empowering young people to actively participate in the democratic process and contribute to the promotion of the core values of the CoE (specifically, in (point III, ‘Building a more human and inclusive Europe’, paragraph (4) ‘Developing youth co-operation’ The ‘All different - All equal’ campaign ran from 2007 to 2008 and provided recommendations and action plans to promote interfaith dialogue among European youth. Two milestones are worth highlighting within this initiative. First, the Istanbul Youth Declaration on Inter-Religious and Intercultural Dialogue in Youth Work, which, among other recommendations, proposed supporting the creation of international youth media networks to promote cooperation and the exchange of knowledge, experiences and opinions through the prism of respect for human rights and democracy.66 The second was the Kazan Action Plan, which resulted from an international youth forum aimed to initiate and develop interreligious dialogue and cooperation with and by young people.67 As mentioned above, intercultural and interreligious dialogue plays an extremely important role in forging the common values that underpin the coexistence and cohesion of European societies. An international seminar entitled ‘Young people facing hate speech today: impact and solutions’ was held on 15 December 2021 to ensure that young people took a leading role in this dialogue. It stressed the importance of early education in forging common values and of the interreligious dimension of intercultural dialogue between young people. It was proposed to continue these exchanges in the coming years.68 One of the three priorities of the Irish presidency of the Committee of Ministers is ‘Fáilte: Fostering a Europe of welcome, inclusion, and diversity’. The Seminar on

 https://www.coe.int/en/web/no-hate-campaign https://www.facebook.com/groups/combatinghatespeech/ https://www.youtube.com/user/NohatespeechMovement. 65  https://www.coe.int/en/web/inclusion-and-antidiscrimination/wecan4hrs. 66  Istanbul Youth Declaration on Inter-Religious and Intercultural Dialogue in Youth Work. DJS/ EYCB/camp/IRD/2007/18. Istanbul, Turkey, 27–31 March 2007. 67  Kazan Action Plan. International Youth Forum on ‘Intercultural Dialogue and its Interreligious Dimension’, held in Kazan, Russian Federation, 30 November–4 December 2008. 68  Youth and inter-cultural dialogue: building Europe based on common values, human dignity and mutual respect 15 December 2021, https://www.coe.int/en/web/antisemitic-anti-muslim-hatredhate-crimes/-/youth-and-inter-cultural-dialogue-building-europe-based-on-common-valueshuman-dignity-and-mutual-respect (accessed on 27 July 2022). 64

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preventing and combating anti-Muslim racism and discrimination: Challenges and solutions was held in Strasbourg on 7 June 2022 with this purpose in mind.69 In 2010, an independent group of eminent individuals, convened by the Secretary General of the CoE, undertook the task of preparing a report entitled Living together. Combining diversity and freedom in 21st century Europe, on the challenges emerging in Europe upon the rise of intolerance and discrimination. The report was divided into two parts. The first identified a few threats in the form of eight specific risks (growing support for populist and xenophobic parties; rising intolerance; the presence of a population virtually without rights; discrimination; Islamic extremism; loss of democratic freedoms; and the potential clash between freedom of religion and freedom of expression). The second part set out 17 principles that should guide the European response to the challenges identified. The report went on to identify the main actors that could lead changes in the public sphere, and was completed with 59 proposals for action, classified into Strategic Recommendations (17 of them) and Specific Recommendations (the rest), which addressed the CoE, the European Union and their respective member States.70 In the field of education, the CoE jointly published the Guidelines for Educators on Countering Intolerance and Discrimination against Muslims in 2011 with the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and UNESCO. This document held that tensions in the coexistence of different faiths often emerge in the sphere of education (for example, in the use of religious symbols in the classroom or in the provision of menus appropriate to religious requirements in school canteens). At the same time, it argued that education is where stereotypes and prejudices must be combated first and foremost. These guidelines offer support to teachers, teacher trainers, NGOs and public education authorities to counter discrimination and exclusion caused by Islamophobia.71

5 By Way of Conclusion In conclusion, we can highlight that the affirmation that freedom of thought, conscience and religion is at the very core of a pluralist and democratic society has not remained a mere rhetorical statement in the course of the various CoE bodies analysed, but has constituted one of its main concerns and lines of effective action over

 Seminar on preventing and combating anti-Muslim racism and discrimination Challenges and solutions, 7 June 2022. https://www.coe.int/en/web/antisemitic-anti-muslim-hatred-hate-crimes/-/ save-the-date-expert-seminar-on-anti-muslim-racism-and-discrimination (accessed on 27 July 2022). 70  Report of the Group of Eminent Persons of the Council of Europe. Living together. Combining diversity and freedom in 21st century Europe. Strasbourg: Council of Europe, 2011. 71  OSCE/ODIHR, Council of Europe, UNESCO. Guidelines for Educators on Countering Intolerance and Discrimination against Muslims. Warsaw: OSCE Office for Democratic Institutions and Human Rights. 2011. 69

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the last 35 years, and even more so since the Warsaw Declaration. The promotion of diversity, in the sense of fostering a self-understanding of European societies as inherently pluralistic and conscious of the need to protect a common heritage of diversity of religious beliefs and moral conceptions of life, represents a cultural focus of the Resolutions, Recommendations and policy measures undertaken in recent decades. On a more practical level, a strong commitment has also been detected, both from institutional leadership and from specific initiatives aimed at citizens, to increase early detection and combat hate speech directed against different religious groups. The initiatives undertaken among the young population and among users of social networks have been particularly intense. Equally committed have been the initiatives aimed at promoting inter-religious dialogue, with a special focus on memory and reconciliation, a matter of particular relevance in a continent with countless experiences of religious misunderstandings and persecution. This leads to a series of consistent, pro-active and supportive positions in relation to the promotion of diversity of faiths and sensitivities by several bodies of the CoE. As pending tasks that it would be desirable to undertake in future lines of action, we could cite the effective implementation of measures for the recognition of plurality of beliefs in the public space. As we have seen, in the monitoring work carried out among member States, the need has emerged to implement measures aimed at the manifestation of beliefs in an equitable manner by the different religious faiths and moral options that coexist in the public space of contemporary societies. In this sense, the role played in the fight against discriminatory practices by the measures of reasonable accommodation or concerted adjustments carried out in Canada might be a precedent that we in Europe can possibly look to in order to face the imminent challenges raised by the diversity of personal beliefs. As the Canadian experience illustrates, managing plurality from paradigms coherent with liberal democracies is not easy, but it is essential to encourage further progress in this direction if we want to advance in the self-understanding of our contemporary societies as diverse ecosystems, in which the free development of personality is consistent with belonging to democratic communities built on a healthy constitutional patriotism, as proposed by Jürgen Habermas.

References European Court of Human Rights (2022) Guide on Article 9 of the European Convention on Human Rights. Updated on 30 April 2022. Council of Europe/European Court of Human Rights, Strasbourg Evans C (2010) Individual and group religious freedom in the European Court of Human Rights: cracks in the intellectual architecture. J Law Relig 26(1):321–343 Hordecki B (2014) Freedom of conscience and religion in the documents of the Council of Europe – selected issues. Public Policy Econ Dev 2:35–46 Martínez Torrón FJ (2014) Religious pluralism: the case of the European Court of Human Rights. In: Requejo J, Ungureanu C (eds) Democracy, law and religious pluralism in Europe: secularism and post-secularism. Routledge, Oxon, pp 123–146

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Murdoch J (2012) Protecting the right to freedom of thought, conscience and religion under the European Convention on Human Rights. Council of Europe, Strasbourg Renucci J-F (2005) Article 9 of the European Convention on Human Rights. Freedom of thought, conscience and religion. Council of Europe, Strasbourg Steering Committee for Human Rights (2015) Compilation of Council of Europe standards relating to the principles of freedom of thought, conscience and religion and links to other human rights. Council of Europe, Strasbourg Tulkens F (2014) Freedom of religion under the European Convention on Human Rights: a precious asset. Brigham Young Univ Law Rev 3:509–530 José Ramón Intxaurbe Vitorica  who holds a PhD in Law, is Assistant Professor in Constitutional Law and History of Law, as well as Researcher at the Pedro Arrupe Institute of Human Rights at the University of Deusto. His publications and main research areas are related to the legal challenges posed by the management of sociocultural diversity in contemporary democracies—particularly religious diversity and law—related to equality and non-discrimination policies or EU migration and asylum policies. As part of the Basque Government’s Peace and Coexistence Plan, he is a co-author of several reports on strategies and actions for peace and coexistence, and on the attention to victims of terrorism and violence.

The Organization for Security and Cooperation in Europe and the Promotion and Assistance to Member States in the Field of Freedom of Religion and Belief Rubén Miranda Gonçalves Abstract  The Organization for Security and Cooperation in Europe (OSCE) has some very specific tasks toward its Participant States. One of these tasks is to reduce the nature of disparities that may arise within nations and to cooperate in ensuring respect for human rights and fundamental freedoms, including freedom of thought, conscience, religion or belief, which is the main focus of this research article. Peace and security are closely linked to respect for human rights. Today, it is not difficult to observe that intolerance is a source of conflict that prevents peaceful coexistence. The OSCE, created at a very particular moment in our history, has once again shown that the dimension of security is unavoidably linked to respect for human rights. Thus, this chapter aims to highlight the work it carries out in favour of a basic right such as freedom of belief, a right whose protection is nowadays essential in the face of phenomena linked to intolerance, and where we find that one of the solutions is a deep knowledge of the different beliefs, education to respect the ‘other’ and the different cultures, an area in which the OSCE has done a very special job. Keywords  OSCE · Freedom of religion or beliefs · Peace security

1 Introduction In this chapter, we will discuss the relationship between security, cooperation, and freedom of religion in the context of the Organisation for Security and Cooperation activities in Europe (hereinafter OSCE). It requires, first, a brief consideration of the connexion between them and, thus, why an organisation that is established for a specific purpose—to serve as a European forum in the areas that its name R. Miranda Gonçalves (*) University of Las Palmas de Gran Canaria, Las Palmas, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_17

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describes—acts in the field of one of the fundamental freedoms of every person, freedom of religion or beliefs. The San Francisco Charter, which established the current international order, sets out in its preamble the primary objective of maintaining international peace and security—through cooperation—while simultaneously affirming faith in the rights of the individuals. Certainly, its authors knew that international peace could not be achieved without respect for these rights. Although its articles do not contain provisions in this regard, this is because its drafting was postponed to develop a universal text, which was achieved with the Universal Declaration of Human Rights of 1948. Article 18 of this Declaration establishes religious freedom as a fundamental human right.1 Ultimately, peace, security and cooperation are inextricably linked to respect for human rights. The understanding between the victorious powers of WWII had led to the drafting of an agreement which, of course, served their interests and the distribution of their influences in the two blocs formed, which, geographically, established borders that turned the nationals of a State into minorities, similar to what happened after the first world war. Thus, it is not difficult to understand why the ‘house of cards’ collapsed. Soon after the San Francisco understanding, another type of war was established: the Cold War, which would necessarily lead to meetings to force a new balance, of which the OSCE, with the Helsinki Final Act of 1975, is a good example. It is not—nor can it be—our purpose to analyse the political aspect of this organisation, but neither can we avoid to mention Brezhnev’s Detente or German Chancellor Willy Brandt’s Ostpolitik, since this will put us in a better position to understand that the founding act of the OSCE contains this specific right of religious freedom, a matter that we consider essential to question: what relationship could there be between the search for a new balance and the invocation of this right? As part of the process of institutionalisation, the Conference on Security and Co-operation in Europe (CSCE) was renamed as OSCE by a decision of the Budapest Summit of Heads of State or Government in December 1994. Thus, after a necessary look at the background of the organisation that leads to an understanding of the inclusion of Freedom of Religion and Beliefs, we will analyse the work of the OSCE in promoting and defending the freedom of belief, identifying the most complex areas and the limitations set in practice by the organisation’s Participant States. After this analysis, we will round up with some conclusions to highlight the most important ideas expressed in this study.

 UDHR, Article 18: ‘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’. 1

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2 Helsinki Final Act and Human Rights Like the San Francisco Charter, the final Helsinki text shows us the necessary link between ‘peace, security and human rights’. ‘Human rights, and the human dimension, are seen as constituting an essential component of security and stability. The OSCE’s three facets of security—the politico-military, the economic and environmental and the human dimensions—are interlinked’.2 The Final Act of the CSCE, also known as the Helsinki Act, was the beginning of the creation of the OSCE. Once the Helsinki Act was signed in 1975 in Finland, the CSCE Participant States undertook to adhere to the principles contained therein, respecting and implementing them. Among these principles, to which we will refer later when we mention the decalogue, Principle VII deserves special attention. This principle is entitled ‘Respect for human rights and fundamental freedoms, including freedom of thought, conscience, religion or belief’, and as such, does not mention any kind of limitation or discrimination in freely expressing one’s faith or belief as dictated by one’s morality. This ‘respect for human rights and fundamental freedoms, including freedom of thought, conscience, religion or belief’ is a free form of belief in the faith of one’s choice, which must be respected, in any case, by each one of the States that took an active part in the signing of the document and also to systematically carry out the fulfilment of this great commitment, becoming the foundation for the achievement of the objectives set by the CSCE. The Helsinki Final Act was also the result of a series of meetings within the framework of the ‘European Security Conference’ which could only be launched after Stalin’s death. The new leader, Khrushchev, tried to get rid of the policy of his predecessor in a sort of de-Stalinization ‘thaw policy’ what provoke some revolts and uprisings (in Poland and Hungary). He had to deal with ‘the lack of international acknowledgement and legitimacy concerning the territorial gains of the Soviet Union’.3 Brezhnev’s succession of Krushchev would once again shake the idea of a possible rapprochement. In his attempt of achieve ‘the legitimation and official acknowledgment over their territorial dominance in Eastern Europe’ that ‘was still one of the primary objectives of the Soviet leadership’4 Breznev wanted a continental solution (not including the US in negotiations) but he had to give up this ‘European-continental solution’5 not only having to accept the US negotiations but also making some concessions on negotiations with NATO regarding disarmament and control of conventional arms. He was then able to begin negotiating a ‘peaceful  Council of Europe. European Commission for Democracy Through Law (Venice Commission), The Role of OSCE in the Protection of Human Rights (Report by F.  Javier Leon-Diaz, 21–22 November 2002), Doc. (CDL-JU (2002) 44), 10. 3  On this matter, see Ströhm (2019), pp.  5 et  seq. ‘For the West, Khrushchev’s rejection of the Stalinistic policies in the Soviet Union was also a sign that the new regime wanted to improve its relationship towards the west and marked an important shift in the self-perception of the new regime, which quite contrary to Stalin’. 4  Ibid., p. 7. 5  Ibid., p. 8. 2

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conduct of the Cold War’,6 and here is one of the big successes of the conference that took place seating on the same table the US, the USSR (of course, together with other European countries), the Conference on Security and Cooperation in Europe. ‘The consensus was that the USSR had scored a major diplomatic victory. It had achieved its goal of legitimising its de facto control of Eastern Europe while making human rights concessions no one expected it to honour’.7 The CSCE was established, in the 1970s, as a multilateral forum for (the very necessary) dialogue and negotiation between East and West. It took several meetings over 2 years for a grand bargain to come to fruition. Indeed, after meeting for 2 years in Helsinki and Geneva, the CSCE agreed on the Helsinki Final Act, which was signed on 1 August 1975: the Helsinki Final Act that is considered the OSCE’s founding document.8 The Helsinki Act, in its Preamble, declares ten ‘Principles Guiding Relations between Participating States’: I. Sovereign equality, respect for the rights inherent in sovereignty II.  Refraining from the threat or use of force; III.  Inviolability of frontiers; IV.  Territorial integrity of States; V.  Peaceful settlement of disputes: VI. Non-intervention in internal affairs; VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief; VIII. Equal rights and self-determination of peoples; IX. Co-operation among States and X. Fulfilment in good faith of obligations under international law. Following the above-mentioned idea of the concept of peace and security being inextricably linked to that of human respect, the document proclaims: Recognizing the close link between peace and security in Europe and in the world as a whole and conscious of the need for each of them to make its contribution to the strengthening of world peace and security and to the promotion of fundamental rights, economic and social progress and well-being for all peoples.

According to the commitments made in the Finnish capital, ‘respect for human rights and the elimination of all forms of intolerance and discrimination among people have been considered by the States participating in the Conference as an integral part of the concept of security pursued at the European regional level’.9 The countries that make up the CSCE committed themselves to peace and respect for people to be able to express their convictions and beliefs freely. It was pointed out that the special and main purpose of this body was to be an institutional pillar for the benefit of all States in the Eurasian-Atlantic area. In this way, the CSCE  Ibid., p. 8.  Slezkine (2014), p. 347. 8  As we will see later, this conference would become an organisation, from CSCE to OSCE. Gibson and Lord (2004) note that ‘The origin of the OSCE can be traced to the early 1950s, with a proposal from the Soviet Union to create an all- European security conference Finland offered Helsinki as a venue for the conference in 1969, inviting all European countries, the United States, and Canada. In 1972, the thirty-five States agreed to enter into multilateral consultations concerned with preparations for the conference, and the stage was set for the preparatory talks in Helsinki with the original thirty-five nations’. 9  Motilla (2014), p. 667. 6 7

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would provide a place for unique dialogue for cooperation in many contexts and would provide tools for the prevention and management of conflicts of various kinds in its sphere of action. In the Helsinki Final Act and in the resolutions issued in the current OSCE framework, any kind of attack on the dignity of the individual is rejected, as is any offence against others because of their religion or belief, including national minorities, who also have their religious identity recognised and their right to freely express, preserve and develop their identity in equality and without any kind of discrimination. Professor Luis Prieto Sanchís explains what should be understood by minorities. In this sense, he points out that ‘they are, therefore, “the other confessions” and, in general, any person or group whose religious attitude is separated from the Catholic Church’.10

3 Principle VII of the Helsinki Act and Its Insertion in Subsequent Key Documents Principle VII of the Helsinki Final Act proclaims respect, in general, for human rights and, in particular, for freedom of thought, conscience and religion, in one word, for freedom of belief, beginning with the statement that: ‘the participating States will recognize and respect the freedom of the individual to profess and practice, alone or in community with others, religion or belief acting in accordance with the dictates of his own conscience’.11  Prieto Sanchís (1993), p. 158.  Helsinki Final Act, 1975, Principle VII—Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief: ‘The participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion. They will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development. Within this framework the participating States will recognize and respect the freedom of the individual to profess and practice, alone or in community with others, religion or belief acting in accordance with the dictates of his own conscience. The participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere. The participating States recognize the universal significance of human rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and wellbeing necessary to ensure the development of friendly relations and co-operation among themselves as among all States. They will constantly respect these rights and freedoms in their mutual relations and will endeavour jointly and separately, including in co-operation with the United Nations, to promote universal and effective respect for them. They confirm the right of the individual to know and act upon his rights and duties in this field. In the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. They will also fulfil their obligations as set forth in the international declarations and agreements 10 11

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The principle addresses the individual or group exercise of this freedom. As the text further States, this is in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and the International Covenants of 1966. The Act, in section I, includes Principle VII: ‘Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief’, but taking into account the needs of minorities, we must understand this principle in conjunction with others, such as principle VIII, ‘Equal rights and self-determination of peoples, which will have a notable influence over time, as both principles address the due respect of certain groups, which implies respect for a specific culture, respect for the other’.12 Benjamin Ferencz, who suffered in his own life from the consequences of border (and thus nationality) movements, suggests that ‘Almost all countries have large cultural, religious or ethnic minorities […] If they were all to assert a right of self-­ determination, no national boundary would be secure and the prevailing anarchy in international affairs would be further aggravated’. 13 The insertion of human rights into the Act would then result in the creation of organisations such as Human Right Watch, originally founded in 1978 as the U.S.  Helsinki Watch Committee in whose formation Moscow dissidents collaborated.14 Respect for human rights, particularly freedom of belief, is also to be found in subsequent documents arising from the various meetings of this organisation, such as the Madrid Document of 1983,15 in which the participating States reaffirmed that they would recognise and respect the freedom of the individual to profess and practise his religion or belief individually or in the community; furthermore, in the Vienna Document 1989,16 the OSCE is committed to respecting human rights and fundamental freedoms and, of course, these include freedom of thought, conscience and religion or belief. The 1990 Copenhagen Document17 recognises the right to freedom of thought, conscience, and religion, understanding that any person may change his or her in this field, including inter alia the International Covenants on Human Rights, by which they may be bound’. 12  The principle of self-determination was defined in Resolution 1514 (XV) as not implying any right to independence but rather the right to an author’s organisation according to a particular culture. 13  Ferencz (1985), p. 45. 14  Slezkine (2014), p. 346. 15  Concluding Document of The Madrid Meeting 1980 of Representatives of The Participating States of The Conference on Security and Cooperation In Europe, held on the basis of the Provisions of The Final Act Relating to the Follow-Up To The Conference Madrid, 1983. 16  Third Follow-up Meeting, Vienna, 4 November 1986 to 19 January 1989. 17  Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE. 1990. The Charter states: ‘Europe is liberating itself from the legacy of the past. The courage of men and women, the strength of the will of the peoples and the power of the ideas of the Helsinki Final Act have opened a new era of democracy, peace and unity in Europe’. See Derr, E., and Kampelman M. at OSCE website.

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religion or belief without limitations other than those provided by law and compatible with international standards. In the 1990s, the international community witnessed a period described as a time of profound change and historic hope in which ‘the era of confrontation and division in Europe had ended’18 and in which the power of the ideas of the Helsinki Final Act have ushered in a new era of democracy, peace and unity in Europe. These affirmations, reflected in the Charter of Paris for a new Europe,19 place at the heart of the fundamental aims of the Conference the promotion of the human dimension, consisting of the values of the protection of human rights and fundamental freedoms, the promotion of democratic institutions and the rule of law. Again, this reaffirms the right of everyone to freedom of thought, conscience and religion or belief. In the same line, the countries participating in the OSCE committed themselves in the Budapest Document of 199420 not to use ‘armed forces to restrict the peaceful and lawful exercise of human and civil rights of persons, individually or as representatives of groups, or to deprive them of their religious identity’ and to guarantee freedom of conscience and religion, favouring a climate of tolerance and respect among believers from different communities. It was in 1994 that the CSCE changed its name to the current OSCE. Although the period of optimism was not to last long, a delicate friendly order had been shaped that seemed to have left the Cold War behind. At the beginning of the 1990s, with the fall of the Berlin Wall and the new Russian policy pointing to a peaceful order of world relations, the still CSCE set up permanent structures and began to establish ‘field missions’ as an effective way of working to promote the ideals born of Helsinki. Among these, the work carried out in the Balkan conflict following the dismemberment of the former Yugoslavia stands out. It is no secret that in this conflict, the ethnic confrontation was of enormous importance. The genocide in Srebrenica, and the confrontation between religions such as Christians and Muslims led to a bloody scene in Europe. The OSCE could not remain on the side lines. Intolerance and discrimination based on belief led to one of the most tragic episodes since the Second World War. The Istanbul Charter for European Security of 199921 strengthened the Organization’s ability to prevent conflicts, settle them peacefully, and rehabilitate societies ravaged by war and conflict. In this document, the religious question appears to be connected to the multi-ethnic question because of what was happening in the Balkan area.

 ‘OSCE Call for Action: Reaffirming a Common Purpose’. Document of the Parliamentary Assembly, p. 2. 19  Adopted by the Meeting of the Heads of State or Government of the participating States of the Conference on Security and Co-operation in Europe (CSCE), Paris 19–21 November 1990. 20  Forum for Security Co-operation in Budapest on 3 December 1994, DOC.FSC/1/95. 3 December 1994. 21  Sixth OSCE Summit of Heads of State or Government, Istanbul, 18–19 November 1999. 18

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OSCE stresses the importance of freedom of thought, conscience, religion, or belief with the 2003 Maastricht Document, which also raises awareness of the possible causes of discrimination or intolerance on religious issues. In this regard, the OSCE is committed to establishing harmonious relations between the various existing religious groups and is always looking for full respect for human rights. OSCE participating countries stated in the OSCE Strategy to Address Threats to Stability and Security in the twenty-first century that ‘discrimination and intolerance are among the factors that can lead to conflicts that undermine security and stability’.22 To find a possible solution, ‘it calls for intensified dialogue within religions and beliefs, as well as between religions and beliefs and other public or private institutions, addressing issues such as religious extremism and violence, and discrimination against women and other vulnerable people based on their religion or belief’,23 further it encourages the development of a ‘dialogue between religions and beliefs and between religions and beliefs and other public or private institutions, including on religious extremism and violence, and discrimination against women and other vulnerable people on the basis of their religion or belief’,24 further it is promoting the rights of man as a free being, without making any exclusion of religion; that is to say, that respect should continue to be encouraged as a universal guarantee of human rights, emphasising the principle of equity and equality, as all human beings are equal, regardless of the religion they profess. Human rights, unsurprisingly and in accordance with international standards, guarantee protection for all such religious associations, even when they do not have a legal identity. The idea put forward by the OSCE is consistent with human rights, hence ensuring that such organisations enjoy the same rights and freedoms as all other organisations. The Astana Commemorative Declaration: Towards a Security Community25 reaffirms the participating States’ commitments and adherence to OSCE principles. The religious issue is mentioned only once: Greater efforts should be made to promote freedom of religion or belief and to combat intolerance and discrimination.26 Helsinki, Paris, Istanbul and Astana are the key OSCE documents, according to the OSCE itself.27 Alongside these, we should consider those that have been drawn up following the annual conferences held mentioned above.

 Final Document of the Eleventh Meeting of the OSCE Ministerial Council, Maastricht, 1–2 December 2003, para 16. 23  Motilla (2014), p. 633. 24  Ibid., 633. 25  Chairperson-in-Office, Astana Commemorative Declaration: Towards a Security Community, 1 December 2010. 26  Astana Declaration, para 7, p. 3. 27  In any case, the Toledo Guiding Principles (discussed below) provide on p. 87 a useful ‘Selection of OSCE human dimension commitments related to freedom of religion or belief and tolerance and 22

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From Helsinki to Astana, the scope of the OSCE had ceased to be only Euro-­ Atlantic and became Eurasian as well.28 With this expansion, the issues to be addressed undoubtedly increased and with it, the organisation’s efforts to ensure that the Helsinki principles were complied with. The protection of religious freedom was also extended to a large part of the international community with different understandings of its concept and limits. As the document states … ‘freedom of religion or belief is a multifaceted human right encompassing individual, collective, institutional, educational and communicative dimensions, and is expressly recognised in OSCE commitments’.

4 Legal Status of the OSCE and the Legal Force of Its Decisions There is much debate about the OSCE as an international organisation. Although it has been framed in under Chapter VIII of the UN Charter, this does not mean per se that it has the character of an international organisation in the sense, ad ex., of the International Law Commission, due to the absence of compliance with the criteria set by the latter.29 ‘More than 40 years after the Helsinki Accords, the OSCE is still “in a sort of limbo, outside the realm of international law”’.30 Its members are not ‘States parties’ but ‘participant States’, which is of enormous legal significance. ‘The OSCE legal status remains unsettled until today due to a political stalemate, leading to a patchwork of legal regimes under which the Organization operates in the participating States.’ Certainly, the Act of 1975 contains a provision under which it is ‘not eligible for registration under Article 102 of the Charter of the United Nations’. In this sense, Tomuschat says: ‘This provision was intended to announce publicly that the CSCE was not founded on the general regime of public international law, the rights and duties enshrined in the Final Act being anchored in “political commitments”’. A possible breach by one of the participant States of, for example, OSCE Recommendations, does not entail international responsibility. Neither the Vienna

non-discrimination’, pointing to Helsinki 1975, Madrid 1983, Vienna 1989, Copenhagen 1990, Budapest 1994, Porto 2002, Maastricht 2003, Sofia 2004, Ljubljana 2005, Brussels 2006, 87–94. 28  Today there are 57 participating States from the Americas, Europe and Asia (the list can be found in the OSCE official website). 29  International Law Commission, Draft articles on the responsibility of international organisations, Doc. A/66/10, para 8. Supplement. 10, 2009 (A/64/10), 44–45. ‘The Final Act expressly states that such a document cannot be registered under Article 102 of the Charter of the United Nations’, but neither has it subsequently succeeded in getting the participating states to commit themselves under a legally binding agreement, Charter or Statute. In this respect, see Rubio Plo (2001). 30  Simonet and Lüber (2017), p. 312.

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Convention on the Law of Treaties nor the ARSIWA are applicable to a violation of them. Then, they ‘remain within the category of an unfriendly act’.31 The decisions taken within its conferences and by its bodies are not of a legal but of a political nature. This seems relevant to us because the protection of religious freedom needs to be provided with effective, legally binding instruments of guarantee. This is one of the weaknesses that must be highlighted when discussing the OSCE and the protection of the FoRB. We neither doubt nor detract from this intergovernmental organisation’s work in the security and cooperation field. Still, we would point out that the decisions taken within the OSCE lack what the protection of a fundamental right requires, not so much politically as legally, which is not desirable. We neither doubt nor detract from this intergovernmental organisation’s work in the security and cooperation field. Still, we would point out that the decisions taken within the OSCE lack what protecting a fundamental right require, not so much politically as legally, which is not desirable. In 1993, the Office for Democratic Institutions and Human Rights (ODIHR) established the Freedom of Religion or Belief Programme, ‘assisting participating States in implementing their OSCE commitments in this field. It has been active in this area since 1997’.32 The tasks are to provide opinions, elaborate and disseminate guidance to assist States in implementing their commitments and monitor developments that may affect the scope of the FoRB through the panel of experts. With this structural support, the scope of action has been strengthened. With this structural support, the scope of action has been strengthened. As we pointed out earlier, one of the principles enshrined in the Helsinki Act, which all OSCE Participant States undertook to obey, is that of respect for human rights and fundamental freedoms, including freedom of thought, conscience, religion, or belief, making it one of the fundamental principles governing mutual relations between the countries participating in the OSCE. This respect for human rights and fundamental freedoms has become essential to the OSCE’s concept of comprehensive security. The OSCE monitors Member States’ respect for human rights by providing support and advice through the ODIHR. Some of the issues on which the OSCE has acted and provided advice and assistance to OSCE countries include, for example, fundamental freedoms of religion, association, and movement, as well as the abolition of the death penalty. On these issues, the OSCE has specifically implemented several operations, such as: providing technical assistance on human rights issues; reviewing existing legislation to ensure that all OSCE commitments are implemented according to international human rights standards; monitoring and assisting in the strengthening of executive, legislative and judicial institutions; ensuring the training of judges and magistrates in accordance with international best practices in the field of human rights; etc.

31 32

 Tomuschat (2016).  See OSCE’s website ‘Freedom of Religion or Belief’.

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To achieve all these goals in so many different scenarios, the OSCE offers the advantage of its flexibility, as Tomuschat affirms.33 But it is unavoidable to recall that the Court of Arbitration of the OSCE, instituted in 1992, cannot correctly work unless it is set up by a treaty. Some question could arise about whether such OSCE need an international legal personality and why. The response of Bogush is ‘the more realistic and more productive way would be just to continue with the core OSCE mission, and leave the OSCE as a forum for negotiations, while international lawyers will concentrate on the practical solutions for the OSCE on a national level’.34 This is probably a political answer that would not satisfy jurists, but, still very interesting. Consequently, the OSCE lacks a true guaranteed mechanism, so in the event of any possible violation of the right to freedom of religion or belief, the most relevant instance for lodging any complaint in Europe is the European Court of Human Rights35 created by one of the most relevant instruments for the protection of human rights and fundamental freedoms, the European Convention on Human Rights: its Article 9 guarantees freedom of thought, conscience and religion.

5 The OSCE’s Normative Standards for Religious Freedom Given the heterogeneity of the OSCE’s participating States, it is worth mentioning under which legal parameters the OSCE acts or is inspired by, given that ‘Europe’ appears in its name: do those of the European framework exist? This is a question that seems relevant to us since if we talk about religious freedom, it seems that we will have consider different cultures. Trying to find common values was an arduous but feasible task, which the preparatory work for the Universal Declaration of Human Rights demonstrates, particularly on the right or freedom we are referring to in this paper. Trying to give guidance to States in this matter implies considering cultural diversity. We could answer the question posed by referring to the ODIHR’s working documents, such as, for example, Guidelines for Review of Legislation pertaining to Religion or Belief, which we will mention later. This document includes as international sources: the UDHR, the International Covenants of 1966, ‘Relevant obligations from other international conventions’, UNCR Committee General Comment 22 of the Council of Europe, the Convention, other work from the CoE, ECHR jurisprudence, Commitments and Concluding Documents of the OSCE process (particularly the Vienna Concluding Document of 1989), ‘Freedom of Religion or  Tomuschat (2016), ibid.  Gleb Bogush, ‘OSCE: Do we really need an international legal personality and why?’, Völkerrechtsblog, 15 August 2016, doi: 10.17176/20180412-220855. 35  In the more specific area of the European Union, the Court of Justice of the European Union protects possible human rights violations because of the adoption and incorporation into EU law of the Charter of Fundamental Rights of the European Union. 33 34

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Belief: Laws affecting the structuring of religious communities’, Previous Panel Legislative analyses, Recommendations by the OSCE High Commissioner on National Minorities, other OSCE documents, State practice and doctrine.36 In short, we find that they are closer to the Western standard, and, as we will see later, the case law of the ECHR is often invoked, although not all participating States are party to the European Convention.

6 Security Versus Religious Freedom The security versus religious freedom dilemma has led to this being one of the main issues studied by the OSCE.  Generally, it has been suggested that discourse that seeks to sacrifice some aspects of this freedom to achieve security contradicts the OSCE’s overall approach. We are of the opinion that we should respect this freedom to the fullest extent. Security and freedom of belief should not be seen in the same balance, but yet they are. In the Kyiv Ministerial Council Decision on freedom of thought, conscience, religion or belief, the OSCE emphasises ‘the link between security and full respect for freedom of thought, conscience, religion or belief’ without diminishing the latter in favour of the former. Therefore, it does not hesitate to invoke that this freedom protects all individually and collectively. The only limitations are those that the ECHR has stated:37 ‘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’.38 This matter of ‘security vs. freedom of religion’ has led the OSCE to issue certain guidelines for action to participating States in the document ‘Freedom of Religion or Belief and Security. Guidelines’ of 202039 in which, starting from the (re)affirmation that the exercise of freedom of religion or belief by human beings,

 Guidelines for Review of Legislation pertaining to Religion or Belief. prepared by the OSCE/ ODIHR Advisory panel of experts on freedom of religion or belief in consultation with the European Commission for Democracy through Law (Venice Commission), adopted by the Venice Commission at its 59th plenary session (Venice, 18–19 June 2004). Welcomed by the OSCE Parliamentary Assembly at its annual session (Edinburgh, 5–9 July 2004), 6 ff. 37  On legal limitations, see the document HDIM. ODIHR/029/12 of 1 October 2012 Limitations to freedom to manifest the religion. When they are ‘prescribed by the law?’. This states ‘prescribed by the law’ means: (a) the relevant law should be accessible to the concerned person, (b) this person should also be capable of foreseeing the consequences, and for that, (c) the law should be compatible with the principle of the rule of law. To leave this condition to the discretion of the existence of law could lead to arbitrariness since a certain political tinge could make the legal unjust. The ECHR had the opportunity to establish its doctrine in this regard in the case of Kokkinakis el Hasan and Chaush, which is mentioned in the following document. 38  See ECHR, Guide on Article 9 of the Convention—Freedom of thought, conscience and religion. 31 August 2022, p. 7. 39  OSCE, Freedom of Religion or Belief and Security: Policy Guidance. 9 September 2019. 36

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whether individually or in community with others, in public or in private, is an inalienable right, it understands that, as such, it cannot be conditioned on State authorisation.40 In affirming this, it again invokes the ECHR (particularly the Besaravia v Moldova case)41 or the UN Doc A/HRC/19/60, 22 December 2011.42 Moreover, it recalls that it is a freedom that protects individuals and communities on an equal position with the dominant ones in a given society. Understanding that there are issues that raise overlap between the two, the OSCE identifies four areas that are likely to provoke confrontation and on which it points out directions. These are (a) the registration and deregistration of religious communities, (b) ‘extremist’ discourse and literature, (c) the registration of places of worship, and (d) restrictions on conversion.43 In them, a factor to be highlighted that is common to all four and which permeates the guidelines is extremism. The aforementioned document makes a series of recommendations addressed to participating States, communities (religious or belief), civil society, and the media, the assessment of which we will examine below. On the first recommendation, the OSCE opined that the granting of legal personality or not, access to registration or refusal of registration should be based on behaviour (objective facts) and not on opinions or beliefs ‘Moreover, they should refrain from attacking “extremism” if they do not have evidence indicating a connection with acts of violence or incitement’.44 The issue is also that extremism and violence appear to be linked without any precision as to what constitutes ‘extremism’, which leads to ‘arbitrary’ opinions. The registration of religious communities, as associations—if we are to classify them in any legal category—is not generally obligatory to be constituted, but it is obligatory to have legal effects vis-à-vis third parties. The importance of a community not having been granted legal personality has an impact on its access, ad ex., to certain State grants (e.g. tax benefits). In speech and literature, we can also highlight another potential collision of rights: security versus ‘freedom of expression freedom of religion’. The OSCE refers to the Rabat Plan of Action that can help to determine whether the threshold of incitement to hatred is reached.45 Religious texts are part of religious freedom,  Ibid., 15.  Metropolitan Church of Bessarabia and Others v. Moldova, 45701/99, Judgment of 13 December 2001. 42  United Nations, General Assembly. Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt. Doc. A/HRC/19/60 de 22 de December de 2011, paras 25 and 41. 43  In this regard, OSCE, Freedom of Religion or Belief and Security, 3–4. 44  Ibid., 35. 45  The Scheme, developed by the United Nations High Commissioner for Human Rights, is based on Article 20, 2 of the 1966 ICCPR, and offers a high threshold test from considering ‘(1) the social and political context, (2) the speaker’s position or status in the society, (3) the intention to incite the audience against a particular group, (4) the content and form of the speech, (5) Extent of the speech act, y (6) Likelihood, including imminence’. In terms of literature and freedom of expression-freedom of religion, the Charlie Hebdo affair (January 2015) or, previously, Ahmed Salman Rushdie, are examples that illustrate this issue, although they are not mentioned in the 40 41

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Aware that in some States ‘experts’ have been set up to rule on whether religious texts are extremist or not, the view of the OSCE is that ‘the opinions of these experts do not constitute a sufficiently sound basis for measures to censor or ban sacred texts or doctrinal works’.46 This is a complex and sensitive issue: it is an established fact that the perception of the attack on belief is often subjective. On the other hand, we believe that it should not be regulated by law, given the danger of political contamination. About places of worship, indeed, as the document notes, ‘Places of worship and places of assembly of religious or belief communities are sometimes seen as environments of radicalisation conducive to terrorism and the recruitment of groups that advocate violence’.47 We must not forget that, in the external manifestation of this freedom and the (sometimes necessary) exercise of it collectively, they are essential places, and the criminal conduct of an individual must not affect the community. Gutiérrez points out that ‘any restriction or limitation of the right to assembly on religious grounds or the right to attend places of worship, for example, will undoubtedly be a limitation of freedom of worship and religious freedom’.48 Finally, on restrictions on conversion and limitations on activities with a foreign connection, the document calls for objectivity, for non-discrimination, which in fact permeates the OSCE’s considerations on the four issues addressed: while State laws pertaining to national security and religious terrorism may well be appropriate, it is important that such laws not be used to target religious organizations that objectively do not engage in criminal or violent acts. Laws against terrorism should not be used as a pretext to limit legitimate religious activity.49

Our general consideration regarding the recommendations made is that they are very general and, even from the so-called Western perspective, too obvious, and they follow the line of the United Nations and the doctrine of the ECHR and do not bring anything new to the table. In any case, it is easier to understand how far the OSCE can go in its Recommendations when their legal value is verified, which is the subject of express attention in this work. And, of course, just because they are logical from one point of view does not mean that they lack value. Any insistence on objectivity in terms of qualifications, any calls for non-discrimination or respect for religious texts and places are welcome.

document although they were the subject of attention by the OSCE: HDIM.NGO/0264/15 de 30 de September 2015. Hate Crime is the Product of their society or community which is not tolerance, against European values. 46  OSCE, Freedom of Religion or Belief and Security, 45. 47  Ibid., 56. On the phenomenon of radicalisation, see Lobato (2019), pp. 107–125; Priego (2018), pp. 261–272. 48  Gutiérrez del Moral (2021), p. 107. 49  Venezia doc, p. 24.

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7 Religious Freedom and Domestic State Laws Another one of the issues is discussed in OSCE studies to establish principles and recommendations to participating States: certain domestic laws that regulate the exercise of freedom of religion, either directly or indirectly. The result of these studies is the 2004 document Guidelines for Review of Legislation Pertaining to Religion or Belief.50 This document is, a priori, of great value, as it affirms the ‘Broad consensus has emerged within the OSCE region on the contours of the right to freedom of religion or belief as formulated in the applicable international human rights’,51 referring to the acceptance of the two sides of this freedom to the internal and external forums, a principle to be applied between confessions in a State; to the principle of equality and non-discrimination; to the, we would say, desirable neutrality and impartiality of the State and to the non-coercion of individuals or collectives, to the right of parents or guardians to decide matters related to the education of their children, to tolerance and respect, to the right of association, and to the right to effective remedies. The document begins with an interesting reflection on whether or not it is necessary to implement laws affecting freedom of belief, a complex issue as the regulation may conceal limitations or discrimination. In this sense, the document is valuable. It also devotes a brief but important paragraph on the margin of appreciation of States, so well-known in the case law of the ECHR,52 as this will lead the States to the conviction of the need to legislate according to its particular culture, which will logically differ from one State to another. The issues addressed in this document are divided into two groups: (a) the legislation that is ‘most likely to arise in a review of a general law regulating religious and belief activities’ and (b) legislation that ‘may arise, depending on the context and the type of law introduced’. In the first group, the paper pays attention to legislative review on important (and sensitive) issues such as those related to education, identifying the right of parents to choose their children’s education, and related issues, such as who teaches religious subjects in schools and the possible intervention of the State in this matter. It also addresses legislation on the financing (and tax exemption) of religious entities;  Guidelines for Review of Legislation Pertaining to Religion or Belief. OSCE/OIDDH, 2004. Document prepared by the members of the Advisory Panel of Experts on Freedom of Religion and Belief (Panel) of the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) in consultation with the European Commission for Democracy through Law (the Venice Commission) of the Council of Europe y endorsed at the 59th plenary session of the European Commission for Democracy through Law on 18 June 2004 and were welcomed by the OSCE Parliamentary Assembly at its Annual Session in July 2004. 51  Ibid. Guidelines, 2004, p. 7. 52  Applied to the Freedom of Religion enshrined in Article 9 ECHR, see Kokkinakis v. Greece, 14307/88, judgement of 26 September 1996. In general, see Greer (2000), p. 5. 50

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their internal organisation and activities, including proselytism or the foreign element; the election of religious leaders of the different religious communities; their registration; limitations on the exercise of the right and freedom of belief; and, finally, another issue of particular interest as they are carried out in public institutions. As for the second group, it discusses the matter of imposing penalties for violations of law; national security and terrorism; property and its use, as well as disputes that may arise; political activities of religious organisations; family law; labour law; media; and cemeteries. In the 2004 Guidelines there are many, too many, issues for a single document so we cannot discuss all of them in depth in this paper. Generally, they highlight the importance of the freedom that the State must offer to parents and educational centres (public or private), as well as to organisations with regard to their internal administration, bearing in mind the principle of non-discrimination and not favouring one belief over another without just cause, leaving the choice of those who teach it to the discretion of the particular believes. In short, freedom, equality, and non-­ discrimination. And so, based on these principles, a guideline is offered to the relevant State authority (government or parliament) to help identify the areas that may be affected by a legislative amendment, always taking into account the standards of international law and the principles of the OSCE. We believe that the value of this document lies in the fact that it is not easy to identify so many areas, which, in turn, helps us to understand the scope of this right and freedom in practice. On other occasions, we have already argued that there are no absolute nor unlimited rights.53 This is also defended by Professor Ara Pinilla when he argues that ‘all subjective rights are inscribed in the legal universe, characterised by the constant collision of some with others, which makes them necessarily limited, or at least limitable’.54 Limits on FoRB imply that the space of others must be respected in all cases without creating prejudice and in conditions of freedom and equality. ‘Acceptable limitations on expressions of freedom of belief are those that are intended for all equally’.55 According to García, in Spain, for example, the limits of the rights to freedom of religion and worship are protected by the legal system.56 Article 16.1 of the Spanish Constitution guarantees ideological, religious freedom and freedom of worship, and Article 16.2 states that no one may be forced to declare their ideology, religion or beliefs. Furthermore, in the Organic Law 7/1980, of 5 July 1980, on Religious Freedom, specifically in Article 3, it is established that there is only one limit to the exercise of the rights deriving from religious freedom and worship, which is, in this case, ‘the protection of the right of others to exercise their public freedoms and fundamental rights, as well as the safeguarding of security, health and public

 Miranda Gonçalves (2021), p. 5.  Ara Pinilla (2005), p. 397. 55  Viejo Ximénez (2021), p. 318. 56  García Costa (2007), p. 202. 53 54

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morality, constituent elements of public order protected by law in the context of a democratic society’.

8 Public Education and Religious Freedom Education, especially when it focuses on human rights and respect for the dignity of the person, is of vital importance in fighting intolerance and discrimination that may occur in relation to religion or belief. In this sense, any awareness-raising programme that can be implemented necessarily contributes to training raising the consciousness of civil society. The OSCE participating States are aware of this and have recognised that establishing an open and transparent inter-faith and inter-religious dialogue is important to encourage individuals of different religions to understand and respect each other. This is the only way to fight discrimination and rejection based on religion or belief, and, inevitably, this will contribute to greater security, which is another objective. The right to education is conceived as a necessary element for the integral development of the individual. Moreover, the intercultural society of the OSCE participating States, particularly marked in Europe and America, requires a high degree of tolerance and respect for the sake of peaceful coexistence. To this, we must add the diversity of educational systems, whether public, private, state-subsidised, religious or secular. The ECHR has repeatedly recalled that pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’.57 Only pluralism in education enables pupils to develop a critical sense of religion within the framework of freedom of thought. The Leyla Sahin judgment states that ‘States must respect the convictions, both religious and philosophical, of parents in the public education curriculum as a whole’. However, it must be borne in mind that it is the responsibility of the State to create the general educational framework. In this respect, ‘even parents cannot object to the integration of such teaching into the school curriculum because, in that case, any institutionalised teaching would run the risk of becoming impracticable’.58 Durham, Ferrari, and Santoro point out that the challenges facing society in the twenty-first century, which include the ‘persistence of discrimination, racism, intolerance, including violent manifestations of hate, based inter alia on the national, ethnic, and religious bias’.59 The heterogeneity of cultures and systems requires the creation of a framework of principles to serve that necessary peaceful coexistence under which the individual can develop to his or her fullest potential, as we have noted above. These authors recall the initiative of the governments of Spain and Turkey, the ‘Alliance of Civilisations’, which ‘identified teaching about religions  ECHR, Şahin v. Turkey, 44774/98, judgement of 10 November 2005, para 108.  Relaño Pastor (2008), p. 245. 59  Durham Jr et al. (2008), p. 230. 57 58

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and beliefs as one of the major fields of action to counter the phenomenon of polarisation between societies and cultures’.60 Recognising these threats, which undoubtedly have an impact on security, the OSCE has been working in this area of religious freedom/education, with abundant documents showing this. Understanding that a field prone to interference (especially political) is the public sphere, we can point to The Toledo Guiding Principles on Teaching about Religion and Beliefs in Public Schools of 27 November 200761 as a document of extraordinary importance. The Guiding Principles are justified by the consensus that knowledge of religions and beliefs contributes to the tolerance and peaceful coexistence sought in a multicultural society, ‘can reduce misunderstandings and harmful stereotypes’62 and is therefore closely linked to the idea of security. The importance given to the knowledge of different beliefs permeates so many pages of the document, that the OSCE States that ‘no education system can afford to ignore the role of religions and beliefs in history and culture’.63 The idea that it is desirable (and necessary) to get closer to other cultures is the main objective, without positioning oneself in favour of any one belief.64 The history of this organisation and its goals of conciliation brought up in the Guiding Principles places the OSCE in an ideal forum to promote this in-depth knowledge of other people’s ideas or beliefs as the best form of understanding that will resolve conflicts. We find that the reference to minorities is very important when dealing with the cultural question, an issue we have referred to in this work.65 The OSCE Recommendations in these Guiding Principles are based on a previous work, not only of an educational nature but also of a legal and theological nature, eight of which we highlight now, that of evaluating the content of the teaching given to check the impartiality or adequacy and before the above, to evaluate the same procedure for drawing up educational plans, checking to what extent sufficient knowledge of Human Rights is transmitted by the educational centres.66

 Ibid., 232.  www.osce.org 62  Toledo Guiding Principles, p. 20. 63  Ibid. 64  The Conclusions of the document revolve around the importance of this approach through knowledge and due objectivity and neutrality in teaching, if it is compulsory and extends to the teacher. 65  The Commission on the Rights of Indigenous Peoples was born out of the work of the UN SubCommission on Minorities. Recommendation number 1 of the Hague Recommendations mentioned on p. 42 calls for respect for the right of persons belonging to national minorities to preserve their collective identity. (The Hague Recommendations on the Educational Rights of National Minorities and Explanatory Note, 1 October 1996, 42). 66  Toledo Guiding Principles, 85 and 86. 60 61

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9 Concluding Remarks The OSCE is a mediating body that has a very particular role to play among its Participant States, as it is responsible for diminishing the disparities that arise between nations, making it ‘the world’s largest security organisation’ as highlighted by Romero et al.67 Among the trajectories in which the presence of this body has been most notorious is the practice of policies that have made it possible to suppress religious and racial exclusion. Not without reason, Monzonís-Vilallonga68 states that the OSCE ended the twentieth century earning its prestige and that ‘it was undoubtedly one of the great diplomatic achievements of a century that was otherwise dubiously constructive, crossed by two Balkan Wars, two world wars and an endless Cold War that condemned half of the continent to poverty and despair’. We should not forget that the OSCE works in very distinct areas, such as political-military matters, economic-­ environmental issues, and human rights. OSCE participating countries have stated in the OSCE Strategy to Address Threats to Stability and Security in the twenty-first century that ‘discrimination (if not hatred and hate speech) and intolerance are among the factors that can provoke conflicts that undermine security and stability’.69 As a possible solution, OSCE ‘calls for intensified dialogue within religions and beliefs, as well as between religions and beliefs and other public or private institutions, addressing issues such as religious extremism and violence, and discrimination against women and other vulnerable people based on their religion or belief’.70 Furthermore, the OSCE promotes the rights of humans as free beings without excluding people based on religion, in other words, reviving this respect as a universal guarantee of human rights, emphasising the principle of fairness and equality since all human beings are equal, regardless of their religion. Human rights, inevitably and in accordance with international standards, guarantee protection for all such religious associations, even when they do not have a legal identity. This is consistent with the OSCE’s human rights approach, which ensures that such organisations enjoy the same rights and freedoms as all other organisations. This respect for human rights and fundamental freedoms has become one of the key features of the OSCE’s concept of comprehensive security, as the OSCE itself supervises and monitors Participant States’ respect for human rights. It provides support and advice through the ODIHR. Some of the topics on which the OSCE has worked include, for example, fundamental freedoms of religion, association, and movement, as well as the abolition of the death penalty.

 Romero et al. (2009), p. 135.  Monzonís-Vilallonga (2005), p. 2. 69  OSCE, 2003, ap. 16. 70  Motilla (2014), p. 633. 67 68

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On these issues, the OSCE has specifically implemented some operations, such as: providing technical assistance on human rights issues; reviewing existing legislation to ensure that all OSCE commitments are implemented following international human rights standards; monitoring and assisting in the strengthening of executive, legislative and judicial institutions; ensuring the training of judges and magistrates in accordance with international best practices in the field of human rights; and so on. We are left with the question of the value of its Principles and Recommendations, which are more political than legal. But even so, the work of the OSCE, in propagating its efforts in different forums, contributes to respect for the law and freedom of belief. This is without discussion.

References Ara Pinilla I (2005) Teoría del Derecho, II edn. Madrid Durham Jr WC, Ferrari S, Santoro S (2008) The Toledo guiding principles on teaching about religion and beliefs in public schools. Secur Hum Rights, 3, 229 ff. Ferencz B (1985) A common sense guide to world peace. New York, p 45 García Costa FM (2007) Los Límites de la Libertad Religiosa en el derecho español. Dikaion 21(16):195 ff. Gibson U, Lord KS (2004) Advancements in standard setting: religious liberty and OSCE commitments. In: Lindholm T, Durham Jr WC, Tahzib-Lie B (eds) Facilitating freedom of religion or belief: a deskbook. Brill, pp 239 ff. Greer S (2000) The margin of appreciation: interpretation and discretion under the European Convention on Human Rights, Council of Europe, 2000, pp 5 ff. Gutiérrez del Moral MJ (2021) Libertad religiosa en época de Covid-19 en España: normativa estatal y Normativa autonómica, Anuario de Derecho Eclesiástico del Estado, XXXVII Lobato RM (2019) En busca de los extremos: tres modelos para comprender la radicalización. Revista de Estudios en Seguridad Internacional 5(2):107 ff. Miranda Gonçalves R (2021) Consideraciones sobre el principio de proporcionalidad en los derechos fundamentales: mención especial a la videovigilancia masiva. Revista de Direito da Faculdade Guanambi, 8(2):1 ff. Monzonís-Vilallonga J (2005) Una OSCE para el siglo XXI, Europa 123/2005 Motilla A (2014) La Protección de la Libertad Religiosa y la Lucha contra la Discriminación por razón de religión o convicciones en los organismos internacionales. Anuario de Derecho Eclesiástico del Estado XXX:667 ff. Priego A (2018) Fundamentalismo, extremismo, fanatismo y terrorismo religioso. Una clarificación de conceptos, Miscelánea Comillas, 261 ff. Prieto Sanchís L (1993) Las minorías religiosas. Anuario de Derecho Eclesiástico del Estado, 153 ff. Relaño Pastor E (2008) El pluralismo educativo y la libertad religiosa en el tribunal europeo de derechos humanos: Folgerø y Zengin. IUS Revista del Instituto de Ciencias Jurídicas de Puebla A.C., 245 ff. Romero A, Alonso M, Blanco F (2009) La Seguridad en Europa: evolución histórica y mecanismos supranacionales. Revista Universitaria Europea 11:117 ff. Rubio Plo A (2001) El estatuto jurídico de la OSCE: percepciones opuestas de Washington y Moscú (ARI). Real Instituto Elcano Simonet L, Lüber HG (2017) The OSCE and its legal status: revisiting the myth of Sisyphus. In: IFSH (ed) OSCE Yearbook 2016. Baden-Baden, pp 277 ff.

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Slezkine P (2014) From Helsinki to human rights watch: how an American cold war monitoring group became an international human rights institution. Hum J Ströhm BC (2019) The “Helsinki Final Act” and its influence on the decline of the Soviet Empire, Diplomatic Academy of Vienna, MAIS Programme 2018/19 Tomuschat C (2016) Legalization of the OSCE? Völkerrechtsblog. https://doi.org/10.1717 6/20180412-­215253 Viejo Ximénez JM (2021) Restricciones de la libertad de religión: estado de alarma, libertad de culto y autonomía de las confesiones. Revista Española de Derecho Canónico 78:299 ff. Rubén Miranda Gonçalves  is a Post-Doctor in Law from Universidade do Estado do Rio de Janeiro (UERJ), Doctor in Law with international mention, Master in Law of Public Administrations and Institutions and Bachelor in Law, from Universidad de Santiago de Compostela, Spain. He also holds a Diploma in Security and National Defense Studies from the University of Santiago de Compostela  - CESEDEN.  He is Associate Professor at the University of Las Palmas de Gran Canaria and is the author of more than 40 scientific papers published in national and international journals, some of which are published in SCOPUS journals. He has coordinated more than twenty books published in Spain, Portugal, Italy, Poland and Brazil. He has recently published a monograph entitled ‘El régimen jurídico del patrimonio cultural subacuático: especial referencia al ordenamiento jurídico español’, published by Tirant lo Blanch. Finally, he has attended and participated in more than thirty national and international seminars and congresses, giving lectures in different universities in Spain, Portugal, Italy, Poland, Chile, Brazil, Peru, Paraguay, Mexico, Colombia, Costa Rica and Uruguay.

Freedom of Religions and Beliefs in the European Context: Concluding (Quo Usque Tolerantia Nostra Nos Ducit) Maria del Ángel Iglesias Vázquez and Luca Paladini

Abstract  Beyond merely extracting the most important ideas that the authors have pointed out in their contributions, this final chapter crosses those of the different sections that make up this book. It shows how there are differences in the interpretation of this freedom and right in the ECJ or in the ECHR, in the narrower scope of the European Union or in the broader range of Europe to which this work extends. This chapter shows that the FoRB is part of the most intimate sphere of the person and that it has a complex development, especially concerning its external subjective aspect, the external manifestation, whether individual or collective and the objective aspect, which concerns the different positions of the States. In the same geographical region, that of Europe, there are divergences in terms of the policy followed by the States, even if all of them, later on, point out that tolerance—the acceptance of the different identity of the other, of a particular and distinct culture—is an indispensable factor for the correct exercise of the FoRB, without this being equivalent to the renunciation of European values and traditions. This last work aims to bring this personal character that the two European courts imprint in their interpretations. Along with this, the most relevant lines that the International Labor Organization has been carrying out in favour of the peaceful enjoyment of this right and freedom are highlighted: it is verified that in the labour sphere, whether public or private,

This chapter is the result of the two co-editors joint thinking and work. Nevertheless, editing requirements made it necessary to share the sections to write. Thus, sections from 1 to 4 and from 6 to 9 have been written by María del Ángel Iglesias Vázquez, while section 5 and subsections from 5.1 to 5.4 have been written by Luca Paladini. M. d. Á. Iglesias Vázquez International Law, Universidad Internacional de La Rioja, Logroño, Spain e-mail: [email protected] L. Paladini (*) Dipartimento di studi umanistici, University for Foreigners of Siena, Siena, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_18

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possible conflicts are intensified. In this European scenario, the positive contribution of the Holy See, as significant as it is unknown, is demonstrated. Keywords  FoRB · Tolerance · ECHR · EU · International organisations · Holy See · Case law on FoRB · Promotion of FoRB

1  Quo Usque Tolerantia Nostra Nos Ducit This final chapter aims to bring together the authors’ main ideas of the previous chapters under the umbrella of tolerance, which is essential to the Freedom of Religions and Beliefs. In these Conclusions, we address the evolution and different notions of tolerance when dealing with the Protection and Promotion of FoRB in the European Context. In approaching what tolerance means, we find a certain indeterminacy. We need clarity of the concept which has varied over the centuries, from its appearance in the sixteenth and seventeenth centuries to the modern conception.1 We believe that it is worth bringing to this debate the current notion of tolerance, a key element in the construction of a plural society, which ‘is not possible without the recognition of difference and the demand for mutual respect under conditions of equality for all’. 2 It is a value linked to the idea of personal freedom related to the recognition of unalterable rules of the game, which consist of mutual respect for the universal rights inherent to every human being and, hence, inalienable and inviolable. And, of course, tolerance is a ‘means to peace and, therefore, a useful instrument for the State’.3 Relaño states that ‘the current debate on tolerance is the result of modern history and the European environment of religious divisions and wars, in which the term “tolerance” penetrates with its origin in Latin and French’.4 According to Martínez de Pisón, ‘first there was tolerance, then religious freedom was claimed and, finally, the first formulations of human rights emerged, in their version of natural rights’.5  Not for no reason, we have referred to what the Mayflower entailed in our Introduction. In 1649, the Maryland Act of Toleration was passed as a pragmatic solution to a severe problem. 2  Martínez de Pisón (2014), § 24. Original Spanish passage: ‘Ésta no es posible sin el reconocimiento de la diferencia y la exigencia de un mutuo respeto en condiciones de igualdad para todos’. 3  Ibid. (2014), §15. Original Spanish passage: ‘La tolerancia es así un medio para la paz y, por tanto, un instrumento útil para el Estado’. 4  Original Spanish passage: ‘El debate actual sobre la tolerancia es fruto de la historia moderna y del entorno europeo de las divisiones y guerras religiosas, en las que irrumpe el término “tolerancia” importado del latín y del francés’. Relaño affirms that ‘in this historical context, the concept became a tool to combat religious intransigence, clearly adopting a pragmatic approach’ Original Spanish passage ‘En este contexto histórico, el concepto se convirtió en la herramienta para combatir las intransigencias religiosas, adoptando claramente un enfoque pragmático’. Relaño Pastor (2003), p. 150. 5  Martínez de Pisón (2014), § 22. Original Spanish passage: ‘Primero fue la tolerancia, de ahí se reivindicó la libertad religiosa y, finalmente, surgieron las primeras formulaciones acerca de los 1

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The most current conception, which was born, as we have seen, in the liberal world, is based on the principles of pluralism, neutrality and reciprocity. Relaño argues that ‘what is relevant is to consider religious tolerance as an inspiring principle of a plural society and multiculturalism as a principle of coexistence with equal rights of different forms of religious life’.6 European society is a pluralistic society in which new beliefs and religions increasingly claim their right to exist and not to be impeded in their external manifestation, for which certain limits can be imposed. The different cultures called to a Vivre ensemble have generated an important and necessary interpretation of Article 9 ECHR. This text has demonstrated its evolutionary character while being based on consensus.

2 Blue Sky Law ‘If a norm that recognises human rights is not backed by a corresponding judicial structure, it is hardly anything other than a blue sky law’, states Martínez-Torrón. 7 Indeed, for interpreting this right and freedom included in Article  9  ECHR, one must necessarily turn to the Strasbourg doctrine, developed from the daily practice of FoRB. We are dealing with a right that is ‘an essential and independent component of treating human beings as autonomous persons deserving of dignity and respect’, as Victoria Camarero and Núria Reguart point out, citing Evans.8 This appeal should be respected when in a society such as the European one, eminently intercultural, there are various religions and beliefs called to this Vivre ensemble. From the notable (late9) development of Article 9 ECtHR, we can see the breadth of this freedom by analysing the different aspects of this right and this freedom: subjective10 (internal and external) and objective (individual and collective) and, for both, negative. This is considering the limitations referred to in Article 9 and the difficulties that arise in defining when we are faced with a situation that endangers derechos humanos, en su versión, de derechos naturales’. 6  Original Spanish passage: ‘lo relevante es considerar la tolerancia religiosa como principio inspirador de una sociedad plural y el multiculturalismo como principio de coexistencia en igualdad de derechos de diferentes formas de vida religiosa’. Relaño Pastor (2003), p. 157. 7  Martínez-Torrón (1986), p. 405. Original Spanish passage: ‘si una norma en la que se reconocen derechos humanos no se apoya en la correlativa estructura judicial, apenas sería otra cosa que una blue sky law’. 8  Evans (2001). 9  The authors state, following Evans, that the first case related to Article 9 (Johnson) was invoked as secondary, and the precept seemed to remain a dead letter. Let us recall that the Kokkinakis case represents the first decision of the ECHR in this matter, from which it develops exponentially but not without leaving a discontinuous line of thought. It marks the beginning of a significant number of judicial pronouncements until today in multiple matters related to religious freedom. 10  The external subjective aspect also relates to this right to freedom of expression in Article 10 ECHR.

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public order or security and when there is a possibility of using the margin of appreciation of the States.11 Limitations that operate in the external forum, in the outward manifestation of a particular belief or religion. Indeed, Palomino reminds us that ‘the external dimension can be limited by the conditions of Art. 9, para 2, ECHR, while the internal dimension of religious freedom is absolute’.12 Article 9 ECtHR is not a watertight compartment. It is a provision that must be understood in conjunction with others, such as in Article 14 ECHR (equality and non-discrimination), without which freedom of belief cannot be fully understood. The ECtHR has interpreted this freedom in conjunction with other precepts, such as Article 8 ECHR (respect for private and family life) or Article 2 of Protocol I to the Convention (the right of parents to bring up their children following their convictions) and has not exhausted itself in those mentioned above. The Council of Europe considers the Convention as a changing instrument, the interpretation of which requires the consensus of the States party to it, and from this consensus, it gives rise to the principle of the above-mentioned margin of appreciation of the States as an interpretative principle of the provisions; a principle which, as relative and changing as it is, leads us, in the opinion of Victoria Camarero and Núria Reguart, to a versatile use of this margin. The authors state that ‘the right to freedom of religion or belief, critical in the realisation and development of all the other freedoms, cannot be left to the discretion of political opportunism and positions of rejection of the other, which are incompatible with the values and demands of multicultural societies like those that principally exist in the European context. Specific and insurmountable “red lines” should be determined so that this core freedom would not end up being devoured by the excessive use of this doctrine’. The ECtHR has neither offered a concept nor a conceptual approximation of the meaning of religion or belief in Article  9  ECHR.13 Nor has it defined ‘religious symbols’ or ‘public space’. Instead, the Court makes ad hoc definitions for the application of this Convention. In Europe (where the ECtHR operates), the Judeo-­ Christian tradition leads us to a similar notion of religion but also new or relatively new religious or spiritual practices, such as the Unification Church, Mormonism. or the Jehovah’s Witnesses, and several coherent and sincerely held philosophical

 ‘As the Convention is primarily a system for the protection of human rights, the Court must consider changing conditions in the Contracting States and respond, for example, to an emerging consensus on what standards should be attained. One of the relevant factors in determining the extent of the margin of appreciation by the authorities may be the existence or non-existence of common ground between the legislations of the Contracting States’ (Glor v Switzerland, 3444/04, 30 April 2009, § 75). 12  Palomino Lozano (2020), p. 42. Original Spanish passage: ‘La dimensión externa es limitable, conforme a las condiciones del art. 9.2 CEDH, mientras que la dimensión interna de la libertad religiosa es absoluta’. 13  Which equally protects both religious and non-religious beliefs, comprising traditional, longestablished denominations and new or relatively new religious movements, as well as coherent and sincerely held philosophical or ethical beliefs. The key is that such beliefs represent the highest standards of personal behaviour. 11

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beliefs, including pacifism, veganism or secularism, regardless of the official recognition they might enjoy in the respondent state. The distinction Arrowsmith v. Great Britain makes between ‘acts merely inspired or motivated by belief’ and ‘acts required and compelled by religions or convictions’ will be the basis for the ECtHR to dismiss a large number of claims brought as manifestations of religion, as acts only permitted but not compelled by the various beliefs, are not protected by Article 9 ECHR, which will undoubtedly result in a lower degree of protection of the right to freedom of thought, conscience and religion. This decision establishes the doctrine of non-protection of acts permitted but not compelled by religious denominations.14 The ECtHR has made timid progress in overcoming the principle laid down in this decision, distinguishing between acts merely motivated by belief and those necessary and compelled by conviction. However, as Victoria Camarero and Núria Reguart indicate, there are still spaces to be explored (not everything has been said) given the appearance or reappearance of new beliefs that may be considered religious in the (not distant) future by the ECtHR, to which we will refer later. And finally, another area to be explored relates to the limits of the freedom of religion that, under Article 9 ECHR, may be subject to certain restrictions provided by law and necessary in a democratic society if the objective of interference is proportional to the legitimate aim pursued. What is required is the existence of a real, serious threat that affects a fundamental interest of society, as pointed out by Victoria Camarero and Núria Reguart in their contribution ‘Freedom of Thought, Conscience and Religion Under the European Convention on Human Rights’. New approaches, affirmations and ideas are illustrated in the chapters by Professors Isabel Cano and Silvia Meseguer, in which we can see how the daily life of individuals encounters difficulties in specific external manifestations of freedom of belief: food and its origin, clothing, symbols or the use of transport, especially when this is part of the work environment.

3  Vivre Ensemble In this working place scenario, where there is an inevitable (and logical) Vivre ensemble, the ECtHR has often had the opportunity to rule on the appropriateness of the prohibition of a specific dress of a particular belief or the possibility of enjoying a weekly day dedicated to a religious rite. It should be emphasised that the daily work has been shaping the court’s doctrine on the scope of Article 9 ECHR and the variety of cultures existing in European society from other geographical areas. The cases analysed by Isabel Cano highlight the difference in treatment between the public and private working space, and the difference between the European states  See in this volume Isabel Cano Ruiz, ‘Clothing, Symbology and Religious Prescriptions: The Perspective of the European Court of Human Rights’, Sect. 4, who mentions Motilla (2016), pp. 28–29. 14

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concerning the regulation of clothing, remarking that ‘wearing of religious symbols is not regulated in most member countries of the Council of Europe’. The reasoning of the judgment of the Court in Sessa v. Italy related to food is a clear example of how to deal with the right to religious freedom holistically or integrally or how to interpret the alleged violation in cases of religious holidays and their enjoyment. Isabel Cano is concerned about the line of action being followed by the ECJ on the use of clothing and symbols of a religious nature in the workplace. This line can be summarised in one sentence: the neutral model must be subordinated to the legitimate requirements of the clients or beneficiaries of the productive or work activity. In such a delicate area as the external manifestation of the right to religious freedom, it is impossible to resort to the binomial ‘direct discrimination v. indirect discrimination’. Instead, one must assess the values at stake for each case. In the Part II, Fabio Spitaleri also makes some interesting remarks on this issue.15 After analysing the pronouncements of the ECJ, the author argues that the opposite effect to that sought by the ECtHR is taking place: the ECJ is giving priority or preponderance to the right to freedom of the enterprise rather than to freedom of religion. Although in most judgments, the ECJ denies the existence of direct discrimination, it is not inclined to affirm the existence of indirect discrimination. The internal rules of the companies concerning the non-wearing of symbols that demonstrate convictions in the workplace cause clear and direct prejudice to persons of certain religious denominations, as in the case of Muslim women wearing headscarves. These actions should only be prevented on objective grounds that justify the refusal, either because they directly impede the work or prevent it from being carried out correctly. In other words: the ECJ, despite trying to balance the right to freedom of belief and business autonomy, has a reductionist vision where it homogeneously interprets all convictions and religions. But not all convictions and religions are the same. Isabel Cano is not advocating the establishment of more practical measures for some over others. Still, she thinks it is necessary to establish a framework of standards and, with them, an interpretation according to the specific case so that it can be adapted to different circumstances starting from the same principle. We cannot equate the wearing of a Christian cross with the wearing of an Islamic veil because although both are external manifestations of a religious belief, the latter is an ostensible, visible symbol, and it is not possible to turn it into a discreet sign, as can happen with a Christian cross. The workplace should invite plurality and ensure that through impartiality—not neutrality—the right to religious freedom is not denatured without adequate justification. Also, Silvia Meseguer’s contribution deserves a careful reading. In the common framework of rights and duties between the State and the citizens, there is the safeguard of public security that allows the State, in certain situations, to impose limitations on their fundamental rights. Restricting or eliminating the exercise of the right

 See in this volume Fabio Spitaleri, ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’, Sects. 3 and ff. 15

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to religious freedom can only be performed based on objective aspects of possible behaviours. The author highlights the (significant) differences between States that exist, in general, and specifically in Europe, regarding the construction of another element of the external manifestation of the FoRB, such as the opening of chapels in airports, but also highlights the question related to one of the limits of this freedom, concerning public safety, which, it seems to us, has been addressed by the ECtHR in a clear, clean way, bearing in mind the proportionality of the measure, its adequacy with the principle of equality and non-discrimination and, of course, the common interest. The air transport sector has been the medium and scene of terrorist attacks, which lead to the development and use of anti-terrorism measures, such as scanners at airports, which can conflict with FoRB and thus have become the subject of treatment by the ECtHR. It is worth emphasising that one of the issues pointed out by Silvia Meseguer is related to the PNR directive,16 which has been criticised, and not without reason. Also, we could add that the new framework for the adequacy of transferable passenger data in the future US-EU agreement includes some provisions that dubiously fit with the protection of the FoRB.17 We have already mentioned above the connection of Article 9 with other provisions. The study of the cases of the European Court of Human Rights concerning the religious freedom of the child makes it possible to visualise the close interconnection between the right to private and family life (Article 8 ECHR), the right to freedom of thought, conscience and religion (Article 9 ECHR) and the right to education, which includes the right of parents to ensure that their children receive an education in conformity with their religious or philosophical convictions (Article 2 of Additional Protocol I ECHR). Miguel Rodríguez addresses this issue in his chapter from which the following ideas can be drawn. The Strasbourg Court affirms the need to consider these three rights to resolve issues such as the type of education received at school, compulsory schooling, the administration of vaccines, the guardianship, custody and adoption of minors or the exercise of religious freedom by children in the event of the breakdown of their parents’ partnership. The Court is correct to adopt this approach, as it allows it to weigh up all the legal interests involved and not to tilt the balance towards solutions that ignore vital dimensions of particular relevance for many people.

 PNR Directive (2016) (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. 17  ‘Travel Information. a. Airline passenger reservation and other travel information, such as … meals to meet religious requirements or physical assistance, may be transferred to organizations located outside the EU in several different circumstances…’. Commission Implementing Decision of XXX ?? pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate level of protection of personal data under the EU-US Data Privacy Framework, 2022, 28. 16

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However, an analysis of the Court’s reasoning, and its contrast with the parties’ submissions, reveals a lack of argumentation on specific contentious issues. It does not go into the application to the specific case of all the rights mentioned. Having resolved the problem raised in the context of one of the freedoms concerned, the Court chooses not to go into the substance of the considerations put forward by the applicants and leaves unclarified transcendental aspects which should not be left to the discretion of the States parties. Particularly, no emphasis is placed on the best interests and the maturational development of the child, which are the guiding principles of all juvenile law under the Convention on the Rights of the Child. Generally, an approach based on the rights of parents is adopted concerning the powers and competences of public authorities. On the contrary, the most appropriate starting point would place the child’s dignity and the free development of his or her personality at the centre of the debate. Several questions in its judgments have not yet been answered: ‘Can parents invoke their beliefs or convictions to refuse to administer compulsory vaccinations to their children? Can child protection measures, such as adoption, be taken contrary to the religious beliefs of their natural parents? To what extent does the child’s cultural and religious tradition influence child protection decisions? Does raising a child in the context of a particular belief preclude a parent from discussing other religious options with the child? What exactly is the scope of the right of parents to bring up their children according to their convictions in child custody and guardianship situations?’. Undoubtedly, we are faced with a wide range of issues that the Court will have to resolve over time. So far, we have pointed out aspects concerning the subjective dimension of the FoRB, either in terms of the internal forum or agere licere. In the objective extent of FoRB, which refers to the attitude of the public authorities, Diego Aboy distinguishes between positive and negative individual and collective obligations. Indeed, the State must govern its actions under the principle of neutrality (different from passivity, analysed in the Metropolitan Church of Bessarabia case or the Zagubnya case) and under the principle of non-interference in the internal affairs of a particular confession, which is connected with the principle of equality and non-­ discrimination between religions or beliefs, and which must be differentiated from the duty of collaboration with those confessions that are in the majority in its jurisdiction. The interventionism of the public authorities, as guarantors of the principle of material equality, is necessary for the Social and Democratic State. The focus of equality requires prohibiting any difference in treatment that lacks objective and reasonable justification. The obligations of the State are predicated as much in a secular society as in a confessional or non-confessional community. The first obligation of the State is to respect the different convictions or religions. It must accept that the manifestations of individuals and groups can be made in freedom and equal treatment. In the Airey case, analysed by Diego Aboy, the Court affirmed that rights are not only theories or illusions but that the individual must also be provided with the necessary conditions

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to make his rights effective. In this way, the State better guarantees religious freedom, pluralism, and mutual tolerance; thus, we return to the idea that gives title to these conclusions: tolerance. Insofar as it is a matter of State action, of compliance with the rule of customary international law, with a jus cogens character, the principle of nonrefoulement is the subject of study by Yanitza Giraldo. Let us consider that each State may establish criteria for the admission and expulsion of non-nationals. Theoretically, there is an open door for States to apply the margin of appreciation. The ECHR does not contain any provision on extradition or, in general, on the right to asylum or refuge. However, an extradition decision may affect the exercise of a right protected by the Convention. In that case, certain obligations may be imposed on the State party to prevent the infringement of the provision in question.18 Thus, from the doctrine of the ECtHR, we would extract that: (1) we are before a norm of ius cogens, a rule of international customary law; (2) we are before particular situations derived from a particular religious belief in which there is a specific personal risk of physical punishment; (3) although the expulsion of an alien would not be unlawful itself, it would be prohibited if it violates Articles 2, 3 or 8 ECHR, as the Court held in Soering v the United Kingdom. Extradition in such circumstances contradicts European standards of justice and European public policy (vote from judge Meyer).

4 No, Not Everything Is Said Reference has been made to, and insistence has been placed on, the dynamic and necessarily evolving nature of the ECHR and, with it, of the Court’s case law. One issue mentioned by Victoria Camarero and Núria Reguart is that of the ceremonies and rites of minorities or indigenous peoples, on which they highlight—in addressing the collective facet of this freedom—the rights of their particular beliefs. Although there are some rulings related to cultural practices (Druids) or certain rights of indigenous peoples, they have not yet invoked the religious element similarly as they have before other regional courts. It remains to be seen how Strasbourg would interpret the right to religious practices of the aforementioned groups: we are inclined to believe that it would do so in a similar way to the Inter-American Court of Human Rights or the African Court on Peoples and Human Rights, whether or not resorting to inter-court dialogue or other international law texts protecting human rights, such as the 1966 International Covenant on Civil and Political Rights. We are before a right and freedom whose exercise, in Europe, has also been marked by the intercultural phenomenon resulting from the migratory phenomena that have led to a multicultural scenario. Numerous beliefs must coexist under different legislations and interpretations of this freedom, although we are referring to

18

 Soering v UK, 1/1989/161/217; 7 July 1989, para 85.

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an Unum, Europe. In the words of Silvia Meseguer: ‘The immigration phenomenon of recent decades, globalisation, and the secularisation of European societies, together with the remarkable emergence of new religious groups, are the factors commonly pointed out to explain how the religious factor has erupted forcefully in all areas of society—school, family, institutions, and public services in general— with the inevitable consequences of what has been called the “juridification” of religion’. Because of COVID-19, new situations have arisen that need to be clarified as an example of the broad scope of this freedom, such as the cases Spînu v Romania (no.  29443/20: no violation of Article  9), Association of orthodox ecclesiastical obedience v Greece (no.  52104/20, Communicated Case) or Magdić v Croatia (no. 17578/20, inadmissible).

5 EU-Specific Issues In our introductory chapter to this book, we pointed out, among other things, the differences between the ECHR and EU systems, which stem from the new legal order created by the Treaties establishing the European Communities and ‘certified’, so to speak, by the ECJ in (or rather, since) its Van Gend and Loos judgment.19 As noted by Valentina Petralia with regard, for instance, to the direct effect and primacy of EU law, those differences are specificities of the EU’s legal order.20 She also mentions the ‘EU non-competence on religion’,21 a factor that emerges also in other chapters from Part II. Said non-competence—it must be emphasised—does not prevent the EU from legislating on FoRB-related matters within its competence, or the ECJ from taking FoRB aspects into account when exercising its jurisdiction, provided that the case falls within an area where the EU has some competence, such as social policy22 or tax matters.23 In light of the above, the sections that follow will be devoted to EU-specific issues relating to the protection and promotion of FoRB.  We will bring together various threads from the chapters in Part II and add some further observations.

 C-26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, 5 February 1963. 20  See in this volume Valentina Petralia, ‘The Protection of Freedom of Religion in the EU Law’, Sect. 4. 21  Ventura (2015), p. 99. See also McCrea (2020), pp. 52 and 54. 22  See in this volume Fabio Spitaleri, ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’. 23  For example, see C-74/16, Congregación de Escuelas Pías Provincia Betania v Ayuntamiento de Getafe, 27 June 2017. The request for a preliminary ruling from the internal judge regarded the meaning of ‘State aid’ in relation to the exemption, for buildings belonging to the Catholic Church to pay tax on construction, installations and works. 19

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Section 5.1 discusses the promotion of FoRB undertaken by the EU in its external action. Internally, the EU ensures the legal and judicial protection of fundamental rights, including FoRB, provided that one of the competences conferred on it is at issue. Externally, however, EU actions in favour of human rights have a different basis. As noted by Valentina Petralia, solidarity, mutual respect among peoples and the protection of human rights are both founding values of the Union (under Article 2 TEU) and objectives to be promoted outside of its borders (under Articles 3 and 21 TEU). Parenthetically, Sect. 5.1 will allow us to remedy, at least in part, the fact that the book has no specific chapter on the EU’s FoRB promotion actions. Since the topic would have fit well into both Part II and Part III, we eventually decided to address it here, in our conclusions, so as to provide something of a (short, alas!) compendium to Parts II and III. Section 5.2 will then offer additional observations on Article 17 TFEU, while Sect. 5.3 will investigate whether the EU can be regarded as a ‘Free FoRB Area’. Finally, Sect. 5.4 will briefly but specifically discuss the margin of appreciation in the EU with regard to FoRB.

5.1 External Promotion of FoRB Democracy, tolerance and vivre ensemble are the keywords of the activities undertaken by the EU to promote FoRB in its external relations. This is in accordance with Articles 2, 3 and 21 TEU. Particularly, paragraph 1 of Article 21 TEU states that the EU’s external action ‘shall be guided by the principles which have inspired [the Union’s] own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’.24 Paragraph 2 of the same Article adds that ‘[t]he Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph’, giving us a clear hint about the necessary precondition for the EU’s external relations (i.e. that the parties involved share the founding values of the EU), as well as about one of the ways in which the promotion of FoRB can be implemented. While the EU’s external action on FoRB is not limited to building relations and partnerships with external actors, these are certainly an important means to promote FoRB in the wider world. This is especially true when they are formalised via soft law instruments—particularly memorandums of understanding, which the EU has often used to establish long-term relationships with international

24

 Article 21, para 1, TEU.

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organisations25—or by concluding international treaties in areas where the EU has competence.26 In this regard, it is worth remembering that when the EU enters into international agreements with third countries, a clause is often included in the agreement to ensure respect for human rights, democratic principles and the rule of law. This ‘human rights/democracy clause’ enshrines the parties’ commitment to those rights and principles and, due to its importance, constitutes an essential element of the agreement. Thus, under Article 60, para 1, of the Vienna Convention on the Law of Treaties, its breach ‘by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part’. Practice shows that EU action in favour of (human rights, including) FoRB has also taken the form of public diplomacy (i.e. declarations, statements, speeches, etc.) and participation in international fora. On the occasion of the 2022 International Day Commemorating the Victims of Acts of Violence based on Religion or Belief, for instance, the High Representative of the Union for Foreign Affairs and Security Policy, issued a declaration on behalf of the EU, stating the EU’s position with regard to persecution and discrimination based on religion or belief, and briefly outlining how the EU has and will continue to protect FoRB.27 As an example of participation in international fora, we may mention the 77th Session of the UN General Assembly – Third Committee, where the EU promoted the adoption of a cross-regional joint statement between the EU itself, its Member States and several third countries calling for the respect of FoRB.28 One year earlier, in the same forum, the EU promoted the adoption of a ‘FoRB resolution’ in support of this human freedom and, in general, to promote tolerance and equality in the UN Member States.29 A key role in the EU’s external promotion of FoRB is played by the EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief (hereinafter, the ‘Guidelines’), adopted by the Foreign Affairs Council on 24 June 2013. The Guidelines aim to reaffirm the EU’s determination to promote and protect FoRB in its external human rights policy and through its external policy instruments. To this end, they provide definitions of the international human rights standards on FoRB and ‘give clear political lines to officials of EU institutions and EU Member States, to be used in contacts with third countries and with international and civil society organisations’.30 In addition, the operational part of the Guidelines

 See, for instance: the Joint Statement on UN-EU cooperation in crisis management of 24 September 2003 and that of 7 June 2007; the EU-NATO Berlin plus agreement of 16 December 2002; the AU-EU Memorandum of Understanding of 24 May 2018. 26  See Title V TEU and Part V TFEU. 27  ‘International Day Commemorating the Victims of Acts of Violence based on Religion or Belief (22 August 2022): Declaration by the High Representative on behalf of the EU’, Strasbourg, 22 August 2022. 28  ‘Cross-Regional Joint Statement – UN General Assembly 3rd Committee: Freedom of Religion or Belief’, New York, 19 October 2022. 29  ‘EU leads the way for safeguarding of Freedom of Religion or Belief at UNGA’, New York, 29 11 2021. 30  Guidelines, para 8. 25

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‘provide[s] officials with practical guidance on how to seek to prevent violations of freedom of religion or belief, to analyse cases, and to react effectively to violations wherever they occur, in order to promote and protect freedom of religion or belief in the EU’s external action’.31 Following an overview of priority areas for EU action on FoRB (violence, freedom of expression, promotion of respect for diversity and tolerance, discrimination, and more),32 the Guidelines set out the range of tools that the EU uses to promote this key human right,33 before concluding with a section on implementation and evaluation.34 The aforesaid range of tools is wider than we have sketched so far. In fact, in addition to concluding international agreements, participating in multilateral fora and making use of public diplomacy, the EU also: (1) monitors respect for FoRB in third countries (mainly through EU Delegations) to identify situations of concern and take appropriate measures;35 (2) in its political dialogue with partner countries, the EU regularly encourages the latter to accede to and implement relevant human rights treaties;36 (3) uses financial instruments to promote FoRB and may decide to suspend cooperation and financial assistance under the human rights/ democracy clauses in agreements with third countries;37 and (4) develops training materials on FoRB in co-operation with churches, religious associations, philosophical and non-confessional organisations (hereinafter, ‘FoRB actors’), making said materials available to Member States and EU institutions.38 The Guidelines certainly provide a comprehensive overview of the EU’s external promotion of FoRB, the effectiveness of which seems to be paving the way for increased respect for this individual freedom within the international community. Having said that, we find it necessary to make a few additional comments. First, on FoRB promotion actions, there is clearly a difference between the EU and the international organisations considered in Part III of this book.39 In fact, the latter promote respect for FoRB internally, addressing recommendations and programs to their Member States, and in the case of the ILO encouraging them to  Ibid.  Ibid., paras 28–46. 33  Ibid., paras 47–67. 34  Ibid., paras from 68–71. 35  Ibid., paras 47–48 and 53. 36  Ibid., paras 51–52. 37  Ibid., paras 54–57. The Guidelines mention the Financing Instrument for Democracy and Human Rights Worldwide (Regulation 235/2014) and the geographic and thematic funding instruments, which have been replaced by the ‘Neighbourhood, Development and International Cooperation Instrument – Global Europe’ (Regulation 2021/947) for the period 2021–2027. 38  Ibid., para 67. 39  See in this volume Djamil Tony Kahale Carrillo, ‘The International Labour Organisation and Freedom of Religious Belief’; José Ramón Intxaurbe Vitorica, ‘Promoting Diversity, Combating Hate Speech and Broadening Intercultural Dialogue: The Council of Europe’s Actions in Favour of Personal Beliefs’; finally, Rubén Miranda Gonçalves, ‘The Organization for Security and Cooperation in Europe and the Promotion of, and Assistance to Member States in the Field of Freedom of Religion and Belief’. 31 32

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assume treaty obligations by ratifying its conventions on labour standards. Therefore, the EU’s promotion of FoRB seems more similar, mutatis mutandis, to the one honourably undertaken by the Holy See in the international community.40 Second, while the Guidelines deal with the EU’s external action, there is one point where the focus briefly shifts to the internal promotion of FoRB. In the section titled ‘Purpose and Scope’, we find a passage that reads: ‘[i]n line with universal and European human rights standards, the EU and its Member States are committed to respecting, protecting and promoting freedom of religion or belief within their borders’.41 Since there are no other passages of this kind in the Guidelines, we may regard it as the exception that proves the rule—the EU promotes FoRB through its external action, because internally it protects this right mainly through its legislation and its Court. Also, the passage seems to serve as an introduction before getting to the actual purpose of the Guidelines: to set out the actions that the EU is to undertake almost exclusively in its external relations. But while the passage aims to imply that there is a consistency between the EU’s internal and external action, its mere presence in the text does not, in fact, make the EU a consistent actor. As already noted, there is a clear difference between protecting FoRB internally and promoting it externally. In 2015 Ventura observed that ‘coherent internal and external policies on religion and belief will legitimize the EU as a global player’.42 We agree with his position. The EU’s external action is vigilant and rigorous—for example, violations of the right to FoRB on the part of a partner country can result in the suspension of the international agreement with that country and, therefore, of the related cooperation and financial assistance. On the other hand, the EU seems less rigorous in its internal action on FoRB, since restrictions of this right can be admitted, for instance, in the case of employment issues43 or, as we will see, where religious persecution is of significance in relation to the grant of international protection to third-country nationals.44 For sure, this dichotomy represents a weak point in the EU’s external promotion of FoRB.

 See in this volume Vincenzo Buonomo, ‘Freedom of Religion or Belief: The Role of the Holy See’. 41  Guidelines, para 5. 42  Ventura (2015), p. 100. 43  Fabio Spitaleri, ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’. 44  Infra, Sect. 5.3. 40

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5.2 More on Article 17 TFEU and Its Nature In this book, Article 17 TFEU has been discussed, first, by Valentina Petralia45 and, then, by Michał Rynkowski (who examines it in relation with the open, transparent and regular dialogue that the EU must maintain with FoRB actors).46 Although most of the literature views the meaning and relevance of Article 17 TFEU as unclear,47 we will try to outline the distinguishing features of this provision of EU primary law. First of all, it must be observed that its structure suggests a dual nature. While paragraphs 1 and 2 provide that the EU must respect and not prejudice the status under national law of FoRB actors in the Member States, paragraph 3 imposes a legal obligation on the EU to conduct an open, transparent and regular dialogue with said FoRB actors. This means that Article 17 TFEU: (1) protects national competence on matters of religion and belief (as well as on relations with religious denominations and associations); and, at the same time, (2) imposes a duty on the EU to maintain a neutral dialogue with FoRB actors, ‘[r]ecognising their identity and their specific contribution’ to the EU integration process. Let us begin with the first aspect. According to Valentina Petralia, Article 17 TFEU is a clear expression of the desire of Member States to ensure the protection and ‘intangibility’ of national prerogatives. Indeed, paragraphs 1 and 2 are pretty clear in this regard, just as the parallel provision to Article  17  TFEU in the Treaty on European Union, Article 4(2) TEU, is clear on the matter of national identities (‘The Union shall respect the equality of Member States before the Treaties as well as their national identities …’). Therefore, the EU is not granted the competence to harmonise the relations between states and religious or non-religious communities. Michał Rynkowski addresses whether the conclusion of a concordat or a ‘kind-of-state-church-treaty’ between the EU and churches and religious communities—as well as non-religious ones—is possible, but concludes that the discussion seems ‘purely academic’.48 We cannot but agree with this conclusion. In the first place, because an international agreement of that kind would be contrary to Article 17 TFUE, in that its subject matter is within the competence of the Member States. In the second place, because that international agreement would have to be concluded in accordance with Articles 216 and 218 TFEU, and could be entered into solely with the only subject of international law among FoRB actors, i.e. the Holy See.49 According to Michał

 See in this volume Valentina Petralia, ‘The Protection of Freedom of Religion in the EU Law’, Sect. 5.1. 46  See in this volume Michał Rynkowski, ‘The EU and the Status of Churches, Religious Associations, Philosophical and Non-Confessional Organisations’. 47  Klamert (2019), p. 411. 48  See in this volume Michał Rynkowski, ‘The EU and the Status of Churches, Religious Associations, Philosophical and Non-Confessional Organisations’, Sect. 4. 49  See in this volume Vincenzo Buonomo, ‘Freedom of Religion or Belief: The Role of the Holy See’. 45

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Rynkowski, should the EU need to formalise its relations with FoRB actors, a solution could be to conclude an agreement based ‘on Article 352 TFEU (the so-called flexibility clause) in connection with Articles 216 (EU treaty-making power) and 335 TFEU (EU legal capacity in Member States)’. As an alternative, the EU could make use of soft law instruments, which, as mentioned in the previous section, have enabled it to establish, and provide a framework for, its relationships with other international organisations—that is, other subjects of international law. Turning to the obligation imposed on the EU by Article 17 TFEU, paragraph 3 seems to express the ‘internal effect’ of this provision. This is because Article  17  TFEU (1) enshrines the neutrality of the EU towards religions and beliefs, (2) represents the founding principle of the dialogue with FoRB actors, and (3) serves as a guideline for the adoption of secondary law in areas of EU competence. Indeed, since Article 17 TFEU is one of the ‘provisions having general application’ set out in Title II TFEU, the EU must consider the aforesaid neutrality when adopting secondary legislation that, due to the area it regulates, has an impact on matters of religion or belief. A case in point is Directive 2000/78/EC on equal treatment in employment, whose recital 24 refers to Declaration No. 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty and subsequently incorporated by the Lisbon Treaty into Article 17 TFEU. Now, as emphasised by the ECJ, this means that ‘the EU legislature must have taken that declaration into account when adopting the directive’.50 All of the above leads us to the question as to what the dialogue covers and which EU bodies are involved in it. Now, as a preliminary remark, we would like to quote Michał Rynkowski, who notes that Article 17 TFEU ‘constitutes also a kind of ‘lex specialis’ for religious and non-religious organisations, as the general dialogue with the civil society is anchored in Article 11 of the Treaty on the European Union’. Indeed, Article  11(1)  TEU provides that ‘[t]he institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’. To that end— Article 11(2) TEU continues—an open, transparent and regular dialogue with civil society must be maintained. So, Article 11 TEU seems to define in a general way an aspect that Article 17 TFEU regulates more specifically concerning FoRB actors. We can thus say that, since Article  11  TEU enables civil society (including, of course, FoRB actors) to take part in the debate on EU action and contribute to shaping future legislation, Article 17 TFEU confirms the important, specialised role of FoRB actors on matters of religion or belief (after all, the EU must ‘recognis[e] their identity and their specific contribution’). While Article 17 TFEU mentions ‘the EU’ in connection with the task of conducting the dialogue with FoRB actors, Article  11  TEU is more specific in  C-282/19, YT and Others v Ministero dell’Istruzione, dell’Università e della Ricerca—MIUR and Ufficio Scolastico Regionale per la Campania, 13 January 2022, § 49; C-193/17, Cresco Investigation GmbH v Markus Achatzi, 22 January 2019, § 32; C-68/17, IR v JQ, 11 September 2018, § 48; C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V., 17 April 2018, § 57. 50

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attributing that task to the EU institutions, which must maintain a dialogue with civil society. Practice shows that three EU institutions in particular conduct the dialogue referred to in Article  17  TFEU: the Commission, the Parliament and the Council. There is no doubt that the Commission, due to its power of legislative initiative, is a leading actor in the EU’s relations with FoRB actors, as well as in the dialogue with civil society under Article  11  TEU.  The Parliament implements Article  17  TFEU organising study sessions and workshops in cooperation with FoRB actors, often on topics related to or impacting on important aspects of the European integration process, such as, for example, the Conference on the Future of Europe. Finally, the Council takes action to implement Article 17 TFEU in accordance with the agenda set by its 6-month rotating presidency. For sure, one of the important actions taken by the Council has been the adoption of the Guidelines, which we discussed above. As for the content of the aforementioned dialogue, it clearly depends on what specific issues the parties involved are interested in, as well as on contingent circumstances. The Parliament, for example, has conducted sessions on ethical aspects of Artificial Intelligence, the European Green Deal, and the implications of the COVID-19 pandemic. The subjects addressed by the Commission in its dialogue with FoRB actors have changed since the early 80s, when that dialogue began, but recent topics have been the impact of religions on civil society and the integration of migrants (including faith communities) in the context of the migration crisis, religious fundamentalism and the fight against radicalisation.51 Turning now to the ECJ, although the Court has never established a direct dialogue with FoRB actors, it has had the chance to clarify a number of issues relating to Article 17 TFUE in a small but important corpus of judgments, all of which are preliminary rulings requested by national courts. In all of them, the ECJ found that it was competent to examine the questions raised by the national judge, despite the fact that under Article 17 TFEU the relationships between Member States and FoRB actors remain within the scope of national sovereignty—which means that what was actually at issue was not Article 17 TFEU per se, but, rather, its being a possible obstacle to the ECJ’s jurisdiction. As a consequence, in most of these judgments the Court reiterated that Article 17 TFEU provides that the EU respects and does not prejudice the status of FoRB actors under national law, and that the Article itself expresses the EU’s neutrality towards the way in which Member States organise their relations with religious denominations and non-confessional organisations.52 Only in its judgment in case C-25/17 did the Court specify that the principle of organisational autonomy of religious communities derives from Article 17 TFEU.53 As mentioned earlier, however, Article 17 TFEU does not prevent the EU from legislating on FoRB-related matters, or the ECJ from taking FoRB aspects into

 Pimpurniaux [and Sägesser] (2020), 40 ff.  See C-282/19, § 46; C-193/17, § 30; C-68/17, § 48; finally, C-414/16, § 58. 53  See C-25/17, Jehovan todistajat, 10 July 2018, § 74. 51 52

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account when exercising its jurisdiction to ‘ensure that in the interpretation and application of the Treaties the law is observed’.54 In its judgment in case C-25/17, after mentioning the principle of organisational autonomy of religious communities that derives from Article  17  TFEU, the ECJ added that ‘[t]he obligation for every person to comply with the rules of EU law on the protection of personal data cannot be regarded as an interference in the organisational autonomy of those communities’.55 In its famous judgment in the Egenberger case (C-414/16), the Court stated that Article  17  TFEU ‘does not exempt compliance with the criteria set out in Article  4(2) of Directive 2000/78 from effective judicial review’.56 In a similar way, in cases C-68/17, C-193/17 and C-282/19—which also concerned EU social policy—the ECJ confirmed that Article  17  TFEU cannot serve as an ‘immunity clause’ in favour of religious or personal belief factors where what is at issue is a competence of the EU and, therefore, the correct application of the EU Law. It is not surprising that most of the case law discussed above concerns employment issues. With only one exception (C-25/17, on the interpretation of Directive 95/46/EC on the protection of personal data), all cases bring the EU’s social policy to the forefront, particularly Directive 2000/78 on equal treatment in employment and (in case C-282/19 only) Directive 1999/70 concerning fixed-term workers.57 The disputes in the main proceedings—and, therefore, the questions referred to the ECJ—concerned issues such as religious education teachers with fixed-term contracts (C-282/19), the grant to certain employees of a public holiday for the celebration of a religious festival (C-193/17), and the difficult issue of occupational requirements for working in churches and other organisations whose ethos is based on religion or belief58 (C-68/17 and C-414/16). From a purely factual point of view, this case law confirms once again that the workplace is a tricky place where FoRB issues and discrimination are particularly likely to occur.59 The literature that views the meaning and relevance of Article  17  TFEU as unclear regards as equally unclear the relationship between this provision and Article 10 CFR.60 Let us mention as an example the autonomy of churches and other organisations whose ethos is based on religion or belief. In a couple of cases, the ECJ has explained that ‘[w]hile Directive 2000/78 thus aims to protect the fundamental right of  Article 19 TEU.  See § 74. 56  C-414/16, para 58. 57  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixedterm work concluded by ETUC, UNICE and CEEP. 58  See in this volume Fabio Spitaleri, ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’, Sect. 5. 59  See in this volume Isabel Cano Ruiz, ‘Clothing, Symbology and Religious Prescriptions: The Perspective of the European Court of Human Rights’ and Fabio Spitaleri, ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’. 60  Klamert (2019), p. 411. 54 55

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workers not to be discriminated against on grounds of their religion or belief, the fact remains that, by means of Article  4(2), that directive also aims to take into account the right of autonomy of churches and other public or private organisations whose ethos is based on religion or belief, as recognised by Article 17 TFEU and Article 10 of the Charter, which corresponds to Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950’.61 The explanation, however, does not fully clarify whether the right of autonomy derives from both Article 17 TFEU and Article 10 CFR taken together, or from either one of them. In its judgment in case C-25/17 the Court regarded the principle of organisational autonomy of religious communities as deriving from Article 17 TFEU,62 which in theory would seem to suggest that, perhaps, said autonomy derives solely from Article 17 TFEU. The more one looks into this, however, the more one agrees with the doubts expressed in the literature. On the other hand, the difference between Article 10 CFR and Article 17 TFEU seems pretty clear. Article 10 CFR has the purpose of recognising to individuals and groups a right that must be guaranteed by the EU in the exercise of its competences, and by the Member States when implementing the EU law. In contrast, Article 17 TFEU places an obligation on the EU to respect and not prejudice national sovereignty of state-religion relationships (paras 1 and 2), as well as to maintain a constructive dialogue with FoRB actors (para  3). In a way, as noted above, Article 17 TFEU and Article 4, para 2, TEU confer on the Member States the right to have their identities respected. In addition, Article 17 TFEU seems to be structurally similar to Article 22 CFR, which provides that ‘[t]he Union shall respect cultural, religious and linguistic diversity’. Both provisions are binding only on the EU, which has a ‘duty to respect’ (a) national choices in the organisation of relations with FoRB actors, and (b) cultural, religious and linguistic diversity. Once again, no duty is imposed on the Member States.63 The unceasing tension between the neutrality of the EU and the Member States’ protectiveness towards their identity does not, however, diminish the significance of Article 17 TFEU and Article 22 CFR as provisions that aim to promote vivre ensemble. Indeed, since the EU must have an open approach to religions, beliefs, diversities and the groups who practice or represent them, the rationale behind these two provisions of EU primary law seems to be the exercise of maximum possible tolerance as a form of accommodation that enables people to live together in a democratic context—which the EU certainly is.

 See C-414/16, § 50 and C-68/17, § 51. On this point, see also O’Boyle and Lafferty (2013), 194 ss.  See C-25/17, Jehovan todistajat, 10 July 2018, § 74. 63  Lock (2019), p. 2168. 61 62

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5.3 Is the EU a ‘Free FoRB Area’? The title of this section, while deliberately provocative, tries to capture the essence of an issue that we feel needs to be examined more closely, due to important aspects that have emerged from previous chapters and from part of these conclusions. First, it must be noted that Ventura raised a similar issue in 2015. In discussing the credibility of EU external action on FoRB, he called for ‘more equal conditions in the circulation of religions’.64 With these words he was not, of course, arguing the existence of a fifth freedom in addition to the four freedoms of movement (of goods, persons, services and capital) that are the foundations of the EU single market. Rather, he was placing emphasis on how to preserve the ‘rich diversity of the continent’.65 Following this line of thought, we can ask ourselves whether the EU can be considered a ‘Free FoRB Area’. The notion is being proposed provocatively, so it has no corresponding content. But it could be posited as follows: if the EU is a democratic context where vivre ensemble and human rights protection are ‘taken seriously’, then the EU is a ‘Free FoRB Area’ if one is free to enter, move and reside wihin its territory being certain that FoRB is adequately protected and that religions or beliefs are in no way an obstacle to one’s presence there. On the rights to enter, move and reside in the EU, as is well known there is distinct legislation for EU citizens and for third-country nationals. While EU treaties recognise these rights for European citizens,66 that is not the case with third-country nationals,67 although Article  45(2)  CFR states that ‘[f]reedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State’. Articles 77 and 79 TFEU, on the other hand, give the Parliament and the Council the competence to adopt measures concerning (1) ‘the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period’68 and (2) ‘the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States’.69 Now, the EU has adopted secondary legislation on (a) short stays and movement in the Schengen Area (maximum 90 days),70 (b) longer stays of certain categories of third-country nationals (e.g. highly qualified workers, researchers and students)  Ventura (2015), pp. 101–102.  Ibid., 102. 66  See in this volume Alessandra Lang, ‘Free Movement of Persons and Religious Freedom Within the EU’. 67  See Amadeo and Spitaleri (2022), pp. 344 ff. 68  Article 77, para 2(c), TFEU. 69  Article 79, para 2(b), TFEU. 70  Regulation 2016/399 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). 64 65

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granting them limited mobility rights,71 and (c) long-term residents, that is, third-­ country nationals who, following 5 years of residence in a Member State, can ask a residence permit in another Member State, where to move and reside.72 Moreover, the EU’s migration policy includes legislation on third-country nationals and stateless persons coming to the EU to apply for international protection, in the form of refugee status or subsidiary protection. In this regard, it is enough to mention the Qualification Directive73 and the Return Directive (the latter with regard to cases of refusal of international protection).74 The aforesaid secondary legislation considers the right to freedom of religion or belief. In the case of directives, Member States are usually reminded in one of the recitals that they should implement the legislation without discrimination on any grounds, including religion or belief.75 Furthermore, Article  11 of Directive 2003/109 on long-term residents grants to third-country nationals equal treatment with nationals in various areas, such as employment and tax benefits, while Article 7 of Regulation 2016/399 (Schengen Borders Code) stipulates that border checks must fully respect human dignity and border guards must not discriminate against persons on any grounds, including religion or belief. Finally, Article  10 of the Qualification Directive specifies that, when assessing the reasons for persecution, Member States must consider, among other things, religion as a concept that includes ‘the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief’. It seems fair to say that this secondary legislation is encouraging with respect to the possibility of considering the EU a ‘Free FoRB Area’. Other factors that seem to support that possibility can be found in some of the previous chapters. Valentina Petralia notes that, considering ‘the references to the religious dimension and to the values of freedom, equality, pluralism, tolerance and non-discrimination’ in EU primary law, one can detect a tendency towards a model of pluralism that is based on the recognition of multiple religious beliefs ‘and on the

 Directive 2021/1883 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment; Directive 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing. 72  Directive 2003/109 concerning the status of third-country nationals who are long-term residents. 73  Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. 74  Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals. 75  The formula normally reads: ‘In implementing this Directive, Member States are not to discriminate on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’. 71

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individual freedom to worship freely’.76 This tendency is reflected in EU secondary legislation and in the ECJ case law, but, since it is a tendency, there are deviations from it. Valentina Petralia also observes that EU legislation and ECJ case law have both at times not only acknowledged a significant connection between the religious element of a case and national identities and traditions, but also, as a consequence, left the power to decide on the case in the hands of the national courts, thus allowing for derogations from the EU law. This approach—which Ventura has termed ‘the protectionist model’—has been adopted for example with regard to certain provisions of Directive 2000/78 on equal treatment in employment, as well as in the ECJ’s employment case law discussed by Fabio Spitaleri.77 Precisely in light of the case law, however, Valentina Petralia comes to the conclusion that the ECJ’s most recent practice appears to indicate a preference not for the protectionist model, but for ‘the competitive model’ (again, a term used by Ventura)—that is, an approach where the religious elements of a case are given the same weight as any other elements that are relevant for the purpose of applying the EU law. And, as we have seen above, Article 17 TFUE too plays a role in promoting vivre ensemble. Even where silent on the matter, EU law ends up ensuring adequate protection of religions and beliefs in specific circumstances. With regard to EU citizens, Alessandra Lang examines three possible scenarios to establish whether freedom of religion may create obstacles to freedom of movement: (1) an asylum application is submitted by an EU citizen, (2) religious marriage is invoked as grounds for family reunification, and (3) religious people wish to move freely within the EU.78 In the first scenario, while the asylum application would probably be rejected, the right of residence and the protection against expulsion under Directive 2004/38 would still allow the EU citizen to remain in the Member State where they are currently located. As regards the second scenario, a religious marriage can provide grounds for family reunification, even where it does not produce civil effects in the State of celebration. Finally, Directive 2004/38, as interpreted by the ECJ, can apply to religious persons.79 Alessandra Lang thus concludes that ‘it seems possible to assert that Union citizens who wish to live by their faith and conform to the rules of their religion may exercise free movement of persons, with the reasonable expectation that the Union’s  See in this volume Valentina Petralia, ‘The Protection of Freedom of Religion in the EU Law’, Sect. 2. 77  See in this volume Fabio Spitaleri, ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’. 78  See in this volume Alessandra Lang, ‘Free Movement of Persons and Religious Freedom Within the EU’, Sects. 3 and ff. The expression ‘religious people’ refers to both people who wish to live in a religious community and to ecclesiastics. 79  See in this volume Michał Rynkowski, ‘The EU and the Status of Churches, Religious Associations, Philosophical and Non-Confessional Organisations’, Sect. 5. He deals with the topic. After pointing out issues such as whether the notion of ‘worker’, ‘self-employed person’ or ‘provider of a public service’ can be applied to an ecclesiastic, or the difficulty of assigning an economic value to religious services (e.g. celebrating mass, giving communion, or listening to a confession), Michał Rynkowski essentially comes to the same conclusion as Alessandra Lang, noting that religious persons can rely on freedom of movement. 76

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laws will not obstruct their life plans’. And it is worth noting that Alessandra Lang’s excellent analysis of this little studied topic, too, supports the hypothesis that the EU is a ‘Free FoRB Area’. By contrast, that hypothesis does not seem supported by certain aspects that emerge from an analysis of EU migration policy. Naturally, we have no intention to dispute the difference in legal status beween EU citizens and third-country nationals legally residing in the EU.  Besides, as noted above, the fact that third-country nationals can be granted long-term resident status seems to support the idea of the EU as a ‘Free FoRB Area’. But if ‘Free FoRB Area’ means an area where one is free to enter, move and reside while being certain that FoRB is adequately protected and that religions or beliefs are in no way an obstacle to one’s presence there, perhaps entering that area and finding a legal home there is not always possible. For sure, if third-country nationals enter the EU legally, they will find a legal home there. And if they are granted long-term resident status, they will be able to move and reside freely in the EU Member States, taking with them their identity and culture, including religious and non-religious beliefs, and knowing that they will not be discriminated against. But what happens when third-country nationals who are victims of religious persecution, or at risk of persecution, arrive in Europe without a visa, seeking refugee status or subsidiary protection? In this case, what role do religion and belief play in getting protection and entering the ‘Free FoRB Area’? Francesco Cherubini and Tommaso Pochi tackle precisely this question, and their accurate analysis shows that FoRB is not always a self-standing ground for international protection purposes.80 Under the 1951 Refugee Convention (and its 1967 Protocol) and the Qualification Directive, acts of persecution for reasons of religion or belief must be sufficiently serious to be qualified as such; in other words, there needs to be a repeated, systematic violation of the right to FoRB. They, however, emphasise that a single act of torture may constitute persecution and determine eligibility for protection. For example, the prohibition on wearing religious clothing in certain places or situations is not in itself excluded from the limitations referred to in Article 9, para 2, ECHR. However, if there is a connection between that prohibition and the violation of other fundamental rights, the latter become relevant for the purpose of determining whether religious persecution has occurred. Thus, where a person has been tortured due to wearing a certain item of clothing, there is a finding of religious persecution because torture is prohibited. In short, gross violations of fundamental rights can include persecution for reasons of religion or belief, whereas illegitimate restrictions on FoRB cannot in themselves justify a finding of persecution. As for the subsidiary protection granted to third-country nationals who are not eligible for refugee status, FoRB is not featured among the ECHR’s core rights referred to in recital 16 of the Qualification Directive. It is given only secondary importance, as if it were ‘less fundamental’ than other rights.

 See in this volume Francesco Cherubini and Tommaso Pochi, ‘Jus Migrandi and Personal Beliefs of Migrants Coming from Third States: Practice from the EU Asylum Policy’, Sects. 4 and ff. 80

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In this context, the assessment of credibility clearly plays a significant role in deciding whether to grant international protection to applicants claiming persecution on account of their religion or belief. The applicant must provide evidence of their religious or belief practice and demonstrate knowledge of the corresponding rules and principles. Although ECJ case law is not consistent in this regard, it seems to confirm the secondary importance of FoRB.  In a case concerning a Syrian national who refused to perform military service for personal and religious reasons, for instance, the ECJ established the credibility of the applicant although his statements were ‘not supported by documentary or other evidence’, concluding in favour of granting him refugee status. It should be added, however, that the Court made reference to the crimes and acts listed in Article  12, para  2, of the Qualification Directive (e.g. war crimes), which might suggest that it found a connection between the applicant’s personal and religious reasons and gross violations of human rights. Moreover, in a case concerning a sur place conversion, the ECJ, relying on ECHR case law, stated that an in-depth examination of the circumstances of the conversion, which had taken place after the applicant’s arrival in the EU, was necessary. On the other hand, the Court seems to have become more inclined to regard external manifestations of religion or belief as possible grounds for persecution, since it has stated that the forum externum is intrinsic to human dignity and nobody should be compelled to hide, change or renounce this freedom to avoid persecution. Francesco Cherubini and Tommaso Pochi have shed light on a problematic issue in EU migration policy, one which, in the case of FoRB, may make it difficult, if not impossible, for persons who suffered persecution or are at risk of persecution to enter the EU and, therefore, access a possible ‘Free FoRB Area’. Unless, as we have seen, there is a connection between said persecution and gross violations of human rights—which, in fact, is not always the case. We must thus conclude that the EU is only in part a ‘Free FoRB Area’. If an individual is already within the territory of the EU, he/she lives in a ‘Free FoRB Area’. If an individual requests entry into the EU seeking protection due to persecution on grounds of religion or belief, there is no certainty that he/she will find a legal home there. In short, tolerance and vivre ensemble characterise the EU internally as a ‘Free FoRB Area’, whereas the same cannot be said with regard to its external interactions (if you will pardon the term). Moreover, this seems pretty contradictory when we consider that, as noted above, the EU’s approach is rigorous with respect to its external relations, so much so that where a partner country fails to comply with the ‘human rights/democracy clause’, the EU has the ultimate right to suspend cooperation with that partner country. Now, besides having effects on the EU’s international relations, this rigour should also be applied to receiving those who flee religious persecution.

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5.4 The issue of the Margin of Appreciation The continuous oscillation of EU legislation and case law between competitive and protectionist approaches to (human rights and especially) FoRB issues is a sign of the presence of the doctrine of the margin of appreciation in the EU’s legal system.81 Limiting our discussion to the studies in this volume, some authors make reference to Directive 2000/78 on equal treatment in employment, which allows Member States, in certain situations, to derogate from the general anti-discrimination legislation, including where FoRB is at issue. An example is the situation where religion is a genuine and determining occupational requirement, which is covered by Article  4 of Directive 2000/78 and carefully examined in this book by Fabio Spitaleri,82 especially with regard to the ECJ’s interpretation in Bougnaoui.83 The occupational requirement means that churches or other religious entities, as well as non-confessional or philosophical organisations, can require their employees to adhere and be loyal to the ethos on which said organisations are based. The requirement cannot be absolute, however, since a difference of treatment between employees according to their faith or lack of faith is in accordance with Directive 2000/78 only where, in light of the nature of the occupational activities in question or of the context in which they are carried out, a person’s religion or belief constitutes an occupational requirement that is (a) genuine, legitimate and justified with respect to the employer’s ethos and (b) consistent with the principle of proportionality. Thus, the differential treatment must be subject to effective judicial review to ensure that it fulfils the above criteria—a matter which is ultimately for the national courts to determine.84 More in general, Valentina Petralia rightly notes that, when the EU law allows derogation, ‘[w]hat is at stake is the balancing between, on one side, the State’s margin of appreciation and its national identity and, on the other side, the EU’s interest in creating a harmonised system’, since all derogations must still comply with the EU’s fundamental values and objectives.85 Turning to the case law of the ECJ,86 of particular interest with regard to the application of the margin of appreciation in relation to FoRB issues is Costanza di Francesco Maesa’s chapter on animal welfare, part of which contains a discussion of ritual slaughter.87 She decided to address this topic because of the important  See in this volume Valentina Petralia, ‘The Protection of Freedom of Religion in the EU Law’, Sect. 6. 82  See in this volume Fabio Spitaleri, ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’, Sect. 4. 83  C-188/15, Bougnaoui and ADDH, 14 March 2017. 84  C-68/17, IR v JQ, 11 September 2018. 85  See in this volume Valentina Petralia, ‘The Protection of Freedom of Religion in the EU Law’, Sect. 6. 86  It is not possible analyse the relevant case law here. In the recent literature, see Gutiérrez-Fons (2021), pp. 231 ff. 87  See in this volume Costanza di Francesco Maesa, ‘Navigating Between Animal Welfare and Freedom of Religion’. 81

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aspects of EU law involved in the Court’s judgment in Centraal Israëlitisch Consistorie.88 Among these, we will focus, of course, on the margin of appreciation enjoyed by Member States and its interplay with the principle of subsidiarity enshrined in Article 5 TEU. The judgment in question is a preliminary ruling on the interpretation of Regulation 1099/2009 on the protection of animals at the time of killing, which provides a partial harmonisation of the rules on animal slaughter methods prescribed by religious rites, allowing Member States a certain flexibility to maintain or adopt national rules to increase the welfare of animals and, therefore, avoid unnecessary suffering on their part. In granting this legislative discretion, the Regulation acknowledges a lack of consensus among the Member States with regard to the transposition of EU provisions applicable to religious slaughter. Quite meaningfully, this is reflected in the judgment rendered by the ECJ. After making reference to the case law of the ECtHR and the margin of appreciation ‘afforded to the Member States in the absence of a consensus at EU level’, the Court concluded that ‘in an evolving societal and legislative context, which is characterised […] by an increasing awareness of the issue of animal welfare, the Flemish legislature was entitled to adopt, following a wide-ranging debate organised at the level of the Flemish Region, the decree at issue in the main proceedings, without exceeding the discretion which EU law confers on Member States as regards the need to reconcile Article 10(1) of the Charter with Article 13 TFEU’.89 So, the ECJ regards national legislation that improves the welfare of animals destined for slaughter as legitimate, provided that it complies with FoRB and that, thanks to the free movement of goods, meat from ritually slaughtered animals becomes available in other Member States that, quite clearly, have lower animal welfare standards. Now, this approach is viable only as long as that meat can actually be imported. As noted by Costanza di Francesco Maesa, should the number of Member States adopting rules to improve animal welfare increase, getting halal or kosher meat might become harder, and more expensive, which would result in a limitation of FoRB that could not be fixed as easily as in Centraal Israëlitisch Consistorie. We conclude this section with some brief remarks on the balancing between animal welfare as set out in Article  13  TFEU and FoRB as enshrined in Article 10 CFR, and the ambivalence that seems to emerge from it, referring the reader to the chapter “Navigating Between Animal Welfare and Freedom of Religion” by Costanza di Francesco Maesa for a more in-depth discussion of animal welfare. According to the ECJ, the protection of animal welfare is not only ‘an objective of general interest recognised by the European Union’,90 but it can also be balanced

 C-336/19, Centraal Israëlitisch Consistorie van België e.a. and Others, 17 December 2020.  Ibid., § 79. 90  Ibid., § 63. 88 89

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against FoRB.91 Striking a fair balance between two interests that are recognised as meriting protection is not an easy or immediate task, but, as we have seen, the single market offered a solution by making it possible to get meat from ritually slaughtered animals in all Member States. We cannot help but wonder, however, whether in this case the balancing of interests concerns two sides of the same coin. Article 13 TFEU enshrines a value about which there is growing awareness and interest in contemporary society, so much so that, perhaps, it may even be considered, like veganism, a belief.92 In this perspective, the balancing between animal welfare and FoRB is not simply a matter of reconciling the criteria contained in two separate provisions (Article 13 TFEU and Article 10 CFR), but is also an axiological clash between two aspects of the same individual freedom—religion and belief, which are both protected by Article 10 CFR.

6 Beyond the Jurisprudence: The Promotion Activities in Favour of FoRB ‘Life and law stand side by side and progress together’.93 The dicta of the ECtHR or the ECJ do not stop with the extension of FoRB in the European context. Beyond the CJEU and the application of EU primary and secondary law, beyond the aspects of the ECHR interpreted by the ECtHR, new scenarios appear in which action by both the EU and the Council of Europe is needed to promote and guarantee this freedom and right. In this line of work, the CoE has had to address situations that require action, such as (ad ex.) the increasingly worrying phenomenon of hate speech, which clashes head-on with the idea of tolerance we have been referring to as a common thread in the FoRB. Similarly, another organisation, the OSCE, has carried out important work, focusing (among others) on the education issue, which is so fundamental for the present and future of our society. Within the OSCE, we find the Holy See as a participant maintaining, also, close links with the EU, the CoE and several other States. This is not the time now to discuss the question of the international subjectivity of the latter or to mark the differences with the Vatican State, but to bring up the actions of the Holy See in favour of the promotion of our freedom in the European context, which we will do next, but not without first recalling that, when we speak of Europe, of today’s Europe, we are referring to a plural society which needs, in its line of action towards tolerance, to commit itself firmly to international bodies such as the ILO. In this field of work, we have seen how numerous situations arise in which the FoRB has been the subject of analysis and on which the courts mentioned above

 Ibid., § 65.  W. v the United Kingdom, Commission decision of 10 February 1993. 93  Brown Scott (1928), p. 5. Original Spanish passage: ‘La vida y el Derecho guardan compañía y progresan juntos’. 91 92

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have pronounced themselves on multiple occasions. See, ad ex., the chapters by Isabel Cano94 or by Fabio Spitaleri.95 With a necessary alignment and due interaction with other international organisations, Europe is enriched by maintaining comprehensive cooperation, promoting its values and objectives, and producing a convergence between the EU law and international labour standards in the more restricted sphere of the EU. Thus, the EU aims to encourage Member States to ratify all the ILO conventions.96

7 On the Role of the Holy See Part III of this book contains four works on FoRB that highlight the work of the ILO, the Council of Europe or the OSCE in promoting and respecting religious freedom so that—we believe—the panorama of FoRB in the European context can be studied from a better and more complete perspective. However, in addition to those mentioned, in this part of the book devoted to international bodies/organisations dedicated to the international protection of human rights, it has been considered appropriate to include that of the Holy See. In this respect, Prof. Vincenzo Buonomo offers us a chapter dedicated to this issue. The international legal personality of the Holy See and its membership in the most relevant organisations created to promote and protect the rights inherent to the dignity of the human being is well known. As noted above, it is a member of the Organization for Security and Cooperation in Europe (OSCE). It has supported the creation of the former Conference on Security and Cooperation in Europe (CSCE) since the Helsinki Conference in 1975. The Holy See enjoys observer status at the United Nations at the International Labour Organization (ILO). The CoE has associated the Holy See in its work from the beginning of its labour and subsequently granted it a unique status with diverse legal and practical effects. Giraudeau states in a comparison of the Holy See’s position on the CoE and the EECC that ‘It was logical that the Holy See, presented itself as a ‘defender of human and religious freedom’, would resort to this form of cooperation (that of the CoE), which it considered would play a much better role than it could in the context of an economic integration project carried out by the European Communities—even if community building received many messages of support from the Church’.97

 See in this volume Isabel Cano Ruiz, ‘Clothing, Symbology and Religious Prescriptions: The Perspective of the European Court of Human Rights’. 95  See in this volume Fabio Spitaleri, ‘Religious Freedom and Employment Discrimination in the Case Law of the European Court of Justice’. 96  De Baere (2018), pp. 1262 ff.; Delarue and Pichot (2019), pp. 101 ff. 97  Giradeau (2018), p. 213. Original Spanish passage: ‘Era lógico, pues, para la Santa Sede, presentada como “defensora de la libertad humana y religiosa” 20, dirigirse hacia esa forma de cooperación, que le parecía desempeñar un papel mucho mejor que en el ámbito de un proyecto de 94

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Since the proclamation of the conciliar Declaration Dignitatis Humanae,98 its effort in defence of religious freedom has been of the utmost importance, which it has also been doing through the concordats signed with States in different geographical areas, all of which take freedom of conscience as the principle inspiring the clauses. The Holy See’s contribution to the international community is always to awake its conscience to defend and respect freedom of thought, conscience and religion. It does so, given its spiritual mission to help public authorities to act to promote the common good, safeguarding the dignity of the human person. Cooperation with the different religious confessions takes the form of agreements or internal norms of the states that favours—as Vincenzo Buonomo and Rubén Miranda recall in their respective chapters99—(necessary) inter-religious dialogue, which they note when referring, ad ex., to the OSCE Toledo Principles, which insist on the need for a more profound knowledge of the different beliefs, for a better understanding among all of them. It is worth recalling that State neutrality, which is distinct from the (necessary) cooperation between the State and the various religions, is an external expression of religious freedom. Neutrality ‘excludes any confusion between religious and State functions’ and prevents ‘religious values or interests from being set up as parameters for measuring the legitimacy or justice of the norms and acts of the public authorities’. Neutrality is not opposed to cooperation. From this perspective, it is necessary to understand why international organisations and European states maintain agreements with the Holy See as the head of the Catholic religion (or pass laws on cooperation between the different faiths in each society). ‘The Holy See proposes a integración económica llevado a cabo por las Comunidades Europeas – aunque la construcción comunitaria recibiera muchos mensajes de apoyo por parte de la Iglesia’. 98  Document Paul VI’s Declaration of 7 December 1965. The Encyclical, defining what this freedom means, tells us that: ‘It consists in the fact that all men are to be free from coercion, whether by individuals or by social groups or by any human authority, and this in such a way that, in religious matters, no one is obliged to act against his conscience, nor is he prevented from acting by it in private and in public, alone or in association with others, within due limits. It further declares that the right to religious freedom is indeed founded on the very dignity of the human person’ (para 2). Moreover, it adds that civil society has the right to protect itself against abuses that may occur under the pretext of religion freedom, civil authority primarily must provide this protection which should not be carried out arbitrarily or in a discriminatory manner “but according to juridical norms in conformity with the objective moral order” which “are required for the adequate protection of these rights in favour of all citizens and the peaceful composition of such rights, for the proper promotion of that honest public peace which is the orderly coexistence in true justice, and for the due guardianship of public morality. All this constitutes a fundamental part of the common good and is included in public order. Moreover, the rule of complete freedom must be observed in society, according to which liberty must be accorded to man as broadly as possible. It must not be restricted except when necessary and to the extent required. Education for the Exercise of Freedom”’ (para 7). 99  See in this volume respectively Vincenzo Buonomo, ‘Freedom of Religion or Belief: The Role of the Holy See’ and Rubén Miranda Gonçalves, ‘The Organization for Security and Cooperation in Europe and the Promotion of, and Assistance to Member States in the field of Freedom of Religion and Belief’.

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dialogue between religions and States to build a coexistence capable of overcoming prejudices, limits and conflicts in religious freedom’, says Vincenzo Buonomo. The author provides the conceptual framework for the Holy See’s orientation in the conclusion of bilateral agreements,100 which not only aims to define the legal status of the Catholic Church and its institutions in a country but also serves to underline ‘the desire to provide an answer through this conventional relationship to some questions linked to the concept of the right to religious freedom as it has evolved at the international level: i.e. is it possible to differentiate between the fundamental rights of the individual and those of the citizen?’. The Holy See’s commitment to protecting religious freedom is oriented towards objectives whose significance and value go well beyond the spiritual, theological, and ecclesial profile alone, overflowing into the cultural, political, and institutional dimensions, and from this point of view, with the work of many of those institutions discussed in the present book. We must bear in mind that ‘behind a religion, there is a culture, a philosophy and a model of society that permeates everything, from art to gastronomy, politics, economics and commerce’,101 in short, a way of life that may differ to a greater or lesser extent, and in whose non-acceptance and intolerance we find problems. And, of course, society and the State can be secular. Still, we cannot ignore that ‘religions exist, that religious feelings move man, condition him, and that even we and the civilisations we have built have much religious heritage, a confessional substratum’.102 Therefore, the religious phenomenon must be considered, ‘and perhaps this is the first objective to be tackled: the awareness on the part of the public authorities that the confessional realities of the peoples that make up the Union must always be taken into account, among other reasons because they are pre-existing’.103 This would justify a particular duty of the State to cooperate with the various confessions to promote a high degree of tolerance, which is, as Vincenzo Buonomo points out, ‘a criterion to guarantee the protection of the human person, prevent forms of discrimination, also in terms of religious and non-religious choice, and enabling the possibility to change religion or belief’, and a task that should be considered by the public authorities. A need for horizontal and vertical tolerance permeates much of the work of the OSCE, aware that peace cannot be established without due respect for human rights,

 A tendency emerged clearly after 1993, the year of the Concordat with Poland, the last bilateral agreement concluded by the Holy See with the denomination ‘concordat’. 101  Catalá Rubio (2004). Original Spanish passage: ‘Detrás de una religión se encuentra una cultura, una filosofía y un modelo de sociedad que lo impregna todo, desde el arte a la gastronomía pasando por la política, la economía o el comercio’. Separata, 7. 102  Original Spanish passage: ‘las religiones existen, de que los sentimientos religiosos mueven al hombre, le condicionan y hasta nosotros mismos y las civilizaciones que hemos edificado tienen mucho de herencia religiosa, de substrato confesional’. Ibid., 7. 103  Original Spanish passage: ‘tal vez sea éste el primer objetivo a acometer: la concienciación por parte de los poderes públicos de que las realidades confesionales de los pueblos que componen la Unión deben tenerse siempre en cuenta, entre otros motivos porque le son preexistentes’. Ibid., 7. 100

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and this is what—as Prof. Rubén Miranda points out—the new world order forged in San Francisco took into consideration in two moments and texts: the Charter of 1945 and the Universal Declaration of Human Rights of 1948 (in the travaux préparatoires of which we find innumerable references to religious freedom). Respect for human rights and fundamental freedoms are key to the OSCE’s comprehensive security concept, affirms the OSCE. It was in this context of redressing situations that endangered peace, such as that provoked by the Cold War, that the Conference on Security and Cooperation in Europe (later the Organization for Security and Cooperation in Europe, OSCE) emerged, establishing, in the Helsinki Act, a principle of action for States, principle VII, which is directly related to the right and freedom that we are dealing with in this work. Indeed, the principle mentioned above refers to: ‘Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief’. And in this task, among others, an Advisory Panel of Experts on Freedom of Religion or Belief was created.

8 Synergies in Promoting FoRB The implementation of this principle has been given a concrete form in numerous OSCE documents, such as the Madrid Document of 1983, the Vienna Document of 1989, the Copenhagen Document of 1990, the Budapest Document of 1994, and so many others we cannot list here. Let us now underline that in the Strategy to Address Threats to Stability and Security in the 21st Century, the OSCE states that ‘discrimination and intolerance are among the factors that can lead to conflicts that undermine security and stability’,104 and therefore it calls for the intensification of dialogue within religions and beliefs, as well as between religions and beliefs and other public or private institutions. Tolerance, non-discrimination,105 and knowledge of others106 are values underlying the Guiding Principles (Toledo Principles) that recognise that the knowledge of religions and beliefs contributes to the tolerance and peaceful coexistence sought in a multicultural society and ‘can reduce misunderstandings and harmful stereotypes, including through education. The OSCE recommended in this document to assess

 Final Document of the Eleventh Meeting of the OSCE Ministerial Council, Maastricht, 1–2 December 2003, para 16. 105  See OSCE.  Human Dimension Commitments, particularly epigraph 5.3.5 Promotion of Tolerance, Understanding, and Respect, Including Remembrance. PART II Commitments Related to Equality, Tolerance and Non-discrimination o epigraph 3.1.8 Freedom of Thought, Conscience, Religion, or Belief (pp. 118 et seq.). OSCE Human Dimension Commitments: Volume 1, Thematic Compilation (third edition) Publisher Organization for Security and Co-operation in Europe, 12 November 2012. 106  The Helsinki Act refers to the benefits derived from increased mutual knowledge. 104

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the impartiality or appropriateness of teaching content and curricula on human rights and respect for human rights to promote greater understanding and dialogue in schools. It will contribute to an “improved understanding of the world’s increasing religious diversity and the growing presence of religion in the public sphere”’.107 Moreover, the debate and adoption of the Toledo Guiding Principles, which Rubén Miranda defines as a ‘document of extraordinary importance’, benefited from the qualified contribution of the Holy See, whose participation in international forums, which Vincenzo Buonomo comments on in extenso, allows it to express its position when the person and his dignity are at stake, also in the field of education. As Rubén Miranda reminds us, the OSCE states that no education system can ignore the role of religions and beliefs in history and culture. This idea connects with Catalá’s opinion expressed above. Alongside this, let us recall the ‘Alliance of Civilizations’, which ‘identified teaching about religions and beliefs as one of the main fields of action to counter the phenomenon of polarisation between societies and cultures’. The OSCE has been working in this area of religious freedom/education, with abundant documents mentioned in its contribution. Paying specific attention to synergies amongst international organisations in the promotion of FoRB in education, a document deserves special mention: the ‘Guidelines for Educators on Countering Intolerance and Discrimination against Muslims’, jointly published by CoE, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and UNESCO. The Guidelines offer practical support to teachers, teacher trainers, NGO and public education authorities to counter discrimination and exclusion caused by Islamophobia.108 Despite the discussed value of the statements of the OSCE, of his actions in general, we would reaffirm the sentence with which Rubén Miranda concludes his work: ‘the work of the OSCE, in propagating its efforts in different forums, contributes to respect for law and freedom of belief. This is without discussion’. Indeed, the work of the Organization in implementing norms in the legal systems of the participating States to eliminate discriminatory laws (or policies or practices), in supporting civil society, human rights advocacy groups and the judiciary in their efforts, in promoting human rights and freedom of belief, should be highlighted. Thus, we would return to the close link between peace and human rights. One of the issues that the OSCE has analysed is the so-called ‘hate speech’.109 Regarding this problem, this work includes the work of José Ramón Intxaurbe on the Council of Europe’s actions in favour of personal beliefs, ‘Promoting diversity, combating hate speech and broadening intercultural dialogue’. In this respect, he recalls the creation of bodies such as the European Commission for Democracy  See Toledo’s Principles, p. 11.  OSCE/ODIHR, Council of Europe, UNESCO.  Guidelines for Educators on Countering Intolerance and Discrimination against Muslims. Warsaw: OSCE Office for Democratic Institutions and Human Rights (2011). 109  In addressing this issue, we cannot but recall that, in the context of the Rwandan genocide, the International Tribunal established to try the events of 1994 handed down the first conviction for incitement to hatred in the media in the Radio Télévision Libre des Mille Collines Case. 107 108

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through Law, known as the Venice Commission, the European Commission against Racism and Intolerance, the Steering Committee on Anti-Discrimination, Diversity and Inclusion, among others, or special representatives such as the Special Representative of the Secretary-General on antisemitic, anti-Muslim and other forms of religious intolerance and hate crimes. All this shows the efforts to face a threat to the Vivre ensemble in Europe. Tolerance is the solution (as easy to say as it is sometimes difficult to implement). This work also underlines the importance of education and the special attention that non-discriminatory conditions in the workplace deserve. He argues, ‘the specific challenges posed by freedom of conscience and religion in specific areas such as education and the workplace have been a source of interest for the Parliamentary Assembly’. Thus, he notes that ‘Recommendation 1720 (2005) advised the Committee of Ministers to encourage Member States to introduce religious studies at primary and secondary levels of state education, to raise students’ awareness of religious pluralism, to sensitise them to the right of everyone to have their own beliefs and that having different religions, or none at all, is not important in assessing individuals’. Resolution 2318 (2020) stated that there is evidence to suggest that the workplace is where many people spend most of their day. This area connects with Professor Isabel Cano’s work discussed above. Indeed, the external manifestation of FoRB may lead to conflicts (and numerous ECtHR jurisprudence portray this problem). According to the author, the solution of employers establishing what he calls ‘apparently neutral rules or standards of behaviour (relating to dress codes, menu offerings, holidays or working practices)’ has a flip side, and that is the implementation of establishing, albeit unintentionally, practices of indirect discrimination, which has to be studied on a case-by-case basis. After reading it, we return to the idea that an intercultural and interreligious dialogue plays a vital role in establishing the common values underpinning European societies’ coexistence and cohesion, i.e. a better knowledge of the particularities of each one and the acceptance of this difference without impositions is a perfect way to work towards respect for freedom of thought, conscience and religion, towards tolerance.

9 Raising the Bar: The ILO Standard-Setting Activity And finally, as we said before, European bodies must consider international standards as necessary feedback. And since the field of labour has been discussed at length in this work, it is essential to look at the ILO,110 the (international) labour parliament, whose work since 1919 is commendable in general and about the FoRB in particular.

110

 On ILO, see Zanobetti (2021).

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In its work, the word ‘religion’ appears in one Fundamental Convention, one Governance Convention and seven Technical Conventions.111 The ILO’s study ‘Convergences: Decent Work and Social Justice in Religious Traditions’ defends many of the values for which the ILO has worked throughout its history, such as those supported by the different religions and spiritual traditions. This document serves for a better understanding of the value of work in the holy books of various faiths and beliefs. Social justice, as Djamil Tony Kahale says, plays a vital role in improving the living conditions of all people and contributes to shaping fair globalisation.112 But what is different is that the concept of social justice in religions ‘as manifested through their definitions of human dignity, their commentaries on personal and communal responsibilities and the establishment of rights and standards in the world of work’113 can differ. In this divergence, better understanding through dialogue is crucial, as the CoE, the OSCE, the Holy See and the ILO have pointed out. Indeed, ILO’s Decent Work Agenda relates to and engages in dialogue with religious traditions, especially job creation, maintaining and supporting rights at work, social protection and security for all, and building social dialogue, with gender equality as a transversal value. We can conclude from this and previous chapters of this book that labour relation is an area that implies interacting with persons who have different cultural backgrounds, customs, and religions, among other aspects. In the world of labour, religious discrimination has been regrettably constant in the rejection of religious practices associated with immigration, in which different cultural, political, and economic factors converge, as Djamil Tony Kahale affirms. Finally, we can close these lines with the idea of the need for tolerance as a personal attitude translated into an openness to the opinions or behaviour of others, respecting them, even if they are not shared. It is a value manifested in respect for the other and, by the other, necessary for this vivre ensemble. FoRB, freedom and right, has demonstrated in its essential external manifestation, practical problems, especially in an increasingly culturally diverse society. This difficulty can be overcome when society—individuals and States—understand that tolerance is ‘a precious principle, necessary for peace and the economic and social progress of all peoples’. ‘Consistent with respect for human rights, the practice of tolerance does not mean toleration of social injustice or the abandonment or weakening of one’s convictions. It means that one is free to adhere to one’s own convictions and accepts that others adhere to theirs. It means accepting the fact that human beings, naturally diverse in their appearance, situation, speech, behaviour and values, have the right

 ILO Conventions have been the basis of law in constitutional court rulings, such as Spain’s 19/1985 of 5 March 1985 on Convention 106 on Sunday rest. 112  The ILO’s motto is ‘advancing social justice, promoting decent work’. 113  See Galambos (2008) or Jenkins (2013). 111

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to live in peace and to be as they are. It also means that one’s views are not to be imposed on others’.114

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 Article 1.4 of Declaration of Principles on Tolerance, UNESCO, Paris, 16 November 1995.

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Pimpurniaux D [avec la collaboration de Sägesser C] (2020) Le dialogue entre l’Union européenne et les organisations religieuses et philosophiques, Courrier hebdomadaire, CRISP Relaño Pastor E (2003) La tolerancia religiosa y el multiculturalismo religioso integrador, Cuestiones actuales de Derecho comparado Ventura M (2015) Balancing convergence an divergence: the challenge for European law and religion. In: Lugato M (ed) International religious freedom and the global clash of values. Giappichelli, Torino Zanobetti A (2021) Diritto internazionale del lavoro, 2nd edn. Milano, Giuffrè Maria del Ángel Iglesias Vázquez  is Professor Doctor of International Law and Human Rights since 1999. She is a member of the Royal Academy of Jurisprudence and Legislation (Spain), the Bar Association of Valencia and the Spanish Association of Professors of International Law and International Relations (AEPDIRI). She is the author of several publications (books, book chapters, reviews, forewords and papers) on human rights, the most recent with a special focus on the rights of indigenous peoples (and freedom of beliefs). She has actively participated in several research groups (among others on culture, religion and human rights, and global law) and she is currently the lead researcher (director) of the group ‘Relevance of the status and condition of indigenous peoples’. She has supervised several doctoral theses and has been a member of doctoral and master’s thesis tribunals. She has taught and lectured in several countries in Europe and America. In 2008 and 2019 she was a Visiting Scholar at the Lauterpacht Centre for International Law (University of Cambridge). Luca Paladini  is Senior Lecturer  of European Union Law at the University for Foreigners of Siena (Unistrasi), and qualified as Associate Professor. He graduated in Political Sciences and specialised in EU Law at the University of Milan. He holds a PhD in EU Law from the University of Bologna. He was Jean Monnet Fellow (2008–2009) and then Visiting Fellow (2009–2011) at the European University Institute (Florence). His research interests include the EU external action, the human rights international protection, and the domestic legal order conformity with international law and the EU Law. Luca Paladini is a co-editor of an edited book, author of a book and about 50 contributions on EU Law and International Law. He is a member of the editorial team of the Legal Journals ‘DPCEonline’, ‘Giurisprudenza italiana’, ‘GenIUS’, and ‘Revista Hispanoamericana de derechos humanos’. Since 2022, he is the Unistrasi Rector’s Delegate for ‘students’ traineeships and job placement’.

Correction to: Protection and Promotion of Freedom of Religions and Beliefs in the European Context Luca Paladini and Maria del Ángel Iglesias Vázquez

Correction to: L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-­3-­031-­34503-­6 The last name of authors Miguel Rodríguez Blanco in Chapter 5 and Diego Aboy Rubio in Chapter 6 was unfortunately published with an error. The initially published version has now been corrected.

The updated version of these chapters can be found at https://doi.org/10.1007/978-­3-­031-­34503-­6_5 https://doi.org/10.1007/978-­3-­031-­34503-­6_6 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Paladini, M. d. Á. Iglesias Vázquez (eds.), Protection and Promotion of Freedom of Religions and Beliefs in the European Context, https://doi.org/10.1007/978-3-031-34503-6_19

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