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 activi