Conference of European Churches Church & Society Commission TRAINING ON FREEDOM OF RELIGION OR BELIEF csc.ceceurope.org

Conference of European ChurchesChurch & Society Commission

TRAINING ON FREEDOM OF

RELIGION OR BELIEF

csc.ceceurope.org


csc.ceceurope.org

Table of contents

1.Explanation of concepts and definitions

2.Overview of different relevant issues (for example parents, children, education, states and churches, terrorism and religious property

3.Overview of position and role of the most important international organisations (UN, OSCE, EU, Council of Europe)


csc.ceceurope.org

About the Human Rights Concept* History of development of Human Rights* Universal Declaration of Human Rights* Freedom of Religion or Belief as a fundamental human right


csc.ceceurope.org

Sharing SessionDo you have personal experiences related to (limitations of) freedom of religion or belief?Are you aware of events or cases of other persons or religious organisations related to this issue?Which issues play a role in discussions in your society in which the wish to restrict or defend this freedom is at stake?


csc.ceceurope.org

Theological reflection on the issue on Freedom of Religion or Belief

• General idea of freedom in the bible: “For Freedom Christ has set us free” (Gal 5:1,13-25)• Centre of Churches’ advocacy for Human Rights, because:• only a free belief is true belief• dignity of human beings• core of churches‘ freedom

The Christian Martyrs' Last Prayer, by Jean-Léon Gérôme (1883).


csc.ceceurope.org

What are the present challenges related to Freedom of Religion or Belief in society?• Persecution of Religious Minorities • Limitation of freedom of religious expression • Anti-Semitism, Islamophobia, Christianophobia• Majority/ Minority


csc.ceceurope.org

Content of the right of Freedom of Religion or Belief (ar. 18 UDHR)

Right to freedom of thought, conscience and religion;

Right to freedom to change his/her religion or belief;

Freedom to exercise religion or belief alone or in community with others and in public or private sphere;

Freedom to manifest his/her religion or belief in teaching, practice, worship and observance.


csc.ceceurope.org

Definitions and Key concepts

The definition of the term ‘religion’

Religion or belief

Inter-relationship of human rights norms

The margin of appreciation

Internal freedom (forum internum)

External freedom (forum externum)


csc.ceceurope.org

Religion or Belief

What is the difference between religion and belief?

Belief: “Deeply held conscientious beliefs that are fundamental about the human condition and the world”.

Belief includes: atheism, agnosticism, pacifism, communism and veganism.


csc.ceceurope.org

The Definition of ‘Religion’

Difficulties:No internationally accepted definition;How to define a religious concept in legal terms?;Whatis considered a religion (think of Buddhism)?;terms “sect” and “cult”;

Criteria: A certain level of cogency, seriousness, cohesion and importance

(Campbell and Cosans, 25 February 1982, par. 36).


csc.ceceurope.org

Internal Freedom (forum internum)

The key element of the right is that:

“[e]veryone has the right to freedom of thought, conscience and religion”.

This freedom is - in contrast to manifestations of religion - an absolute right and may not be subjected to limitations of any kind.

The right to “change” or “to have or adopt” a religion or belief falls within the domain of the absolute internal freedom right.


csc.ceceurope.org

External Freedom (forum externum)

Everyone has the freedom, either alone or in community with others, in public or private “to manifest his [or her] religion or belief in worship, observance, practice, and teaching” (ICCPR, Art. 18.1.);

The scope of protected manifestations is broad;

The manifestations of an individual’s beliefs and those of a community are protected.


csc.ceceurope.org

Limitations - Role and position of the State

The scope of the possible limitations

Equality and non-discrimination

Neutrality and impartiality

Non-coercion

Rights of parents and guardians

Right to association

Right to effective remedies.


csc.ceceurope.org

Rights of parents and guardians

Key elements of the right are:

Parents have the liberty to ensure the moral education of their children in conformity with their own convictions;

Protection for the rights of each child to freedom of religion or belief consistent with the evolving capacities of the child.


csc.ceceurope.org

Equality and non-discrimination

Neutrality and impartiality

Non-coercion.


csc.ceceurope.org

Right to effective remedies

The ECHR provides:

Protection of fundamental human rights provided by Articles 1-12;

Protection on the national level by ensuring that ‘effective remedies’ offer protection against violations by the State or others;

Article 6 and 13 of ECHR require fair trial and effective remedies, extending the human rights protection also to ‘procedural rights’ on the national level.

For example the right of a religious community to acquire legal personality on the basis of ECHR article 9, construed “in light of” article 6 (Metropolitan Church of Bessarabia v. Moldova, § 118 (ECtHR 2001); Canea Catholic Church v. Greece (ECtHR 1997)).


csc.ceceurope.org

Children, parents, education

Parental rights related to the education of their children;

Religious, ethical, or humanist education in State and community schools;

Religious symbols (and attire) in State schools.


csc.ceceurope.org

Parental rights related to the education

of their children

It is generally recognised that parents have the right to determine the religious education of their children;

(See for example General Comment 22 § 6; ECHR protocol 2 art. 2; 1981 Declaration art. 5; Vienna Concluding Document 16.7).


csc.ceceurope.org

Religious, ethical, or humanist education in

state

and community schools

This is the obligation for the State to respect and to ensure to all individuals subject to their jurisdiction the right to freedom of religion or belief without distinction of any kind, such as race, colour, sex, language, religion or belief, political or other opinion, national or other origin, property, birth or other status.


csc.ceceurope.org

Religious symbols (and attire) in state schools

In exercising its regulatory power in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial;

Lautsi and others v. Italy, 18 March 2011 on crucifixes in classrooms;

Sahin v. Turkey, 10 November 2005 on religious clothing;

(Metropolitan Church of Bessarabia v. Moldova, § 116 (ECtHR 2001).


csc.ceceurope.org

Religious Autonomy

The influence of States on religion range from State authority over doctrines and churches to States which are very reluctant to involve themselves in any ‘internal’ or ‘doctrinal’ matter.

Issues/questions:

Under which circumstances would State involvement be necessary?

How to balance the interests of society versus, for example, religious dominance/interference with the fundamental morals and values of society by certain religious groups/communities/churches?


csc.ceceurope.org

States and churches; Autonomy, administration, financing

Religious autonomy

Registration of religious/belief organisations

Proselyting/missionary activity

State financing.


csc.ceceurope.org

Registration of religious/belief organisations

The major problem areas that may be addressed regarding registration and acquisition of egal personality by religious organisations:

Registration of religious organisations should not be mandatory, although it is appropriate to require registration for the purposes of obtaining legal personality and similar benefits.

Individuals and groups should be free to practice their religion without registration if they so desire.

High minimum membership requirements should not be allowed with respect to obtaining legal personality.

Other excessively burdensome constraints or time delays prior to obtaining legal personality should be questioned.


csc.ceceurope.org

State financing

States provide:

Direct financing;

Indirect financing, for example, tax exemptions and tax deductions;

State funding systems, for example, paying salaries for clergy subsidising schools, donating property.


csc.ceceurope.org

Proselyting and missionary activity

The core element of freedom of religion is the right to express one’s religious convictions and to share them with others;

There is a line between the right to engage in religious persuasion and coercive persuasion;

Protection of door-to-door proselytising; protection of the right to refuse to be proselytised.


csc.ceceurope.org

Military service

Conscientious objection to military service;

Other issues.


csc.ceceurope.org

Conscientious objection to military service

Conscientious objection is allowed in most democratic states;

To be replaced by alternative (non-military) service;

No controlling international standard on this issue.


csc.ceceurope.org

Other places in which objections may rise:

Refusal to take oaths

Refusal to perform jury service


csc.ceceurope.org

Terrorism and Human Rights

Can terrorists who do not respect the most fundamental human rights (right to life) enjoy full protection of their own human rights?

Can human rights be balanced? For example: is it possible give priority to protect the life of a large number of innocent people (from a terrorist attack) and accept that the suspected terrorist’s rights might be violated?

European Court of Human Rights: Grand Chamber Saadi v. Italy of 29 January 2008


csc.ceceurope.org

Right to ask for protection as refugee for persecution for reasons of religion

Protects the right to freedom of religion or belief;

Comprises:

the freedom of a person to change his/her religion and.

freedom to manifest it in public or private.


csc.ceceurope.org

National security and terrorism

Terrorism and human rights

Religious terrorism


csc.ceceurope.org

Religious Terrorism

Measures to protect people against (religious) terrorism;

Clear distinction between organiszations that do or do not engage in criminal or violent acts.


csc.ceceurope.org

Religious property disputes Two types of disputes:

Disputed ownership as a result of prior State action that seized the property and transferred it to others (for example in former communist/socialist countries);Dispute within a religious community leading to groups contesting ownership rights.


csc.ceceurope.org

Political activities of religious organisations

STATE APPROACH TO POLITICAL ACTIVITIES OF RELIGIOUS ORGANISATIONS.States have a variety of approaches, for example:

Prohibition of religious-political parties Preventing religious groups from engaging in political activities Eliminating tax exemptions for religious groups engaging in political activities.


csc.ceceurope.org

Labour

Three of the principal issues regarding the relationship between labour (employment practices) and religion or belief involve the hiring and other personnel practices of religious or belief groups, private enterprises, State offices;

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.

Legal approaches: Private (non-religious) enterprises, the standard will be to prohibit discrimination. Employers may be allowed to restrict some manifestations of belief. States should not discriminate in personnel practices (some States prohibit officials from wearing religious insignia).


csc.ceceurope.org

Right to association and assembly

Freedom of association is the right for everybody to join with others without State interference;

Freedom of (peaceful) assembly is, for example, the freedom to have processions;

Thereby both rights are closely connected with the right to freedom of (manifestation) of religion or belief.

Limitations should not be unreasonable and inconsistent with the substance of the right.

States have a positive obligation to regulate and protect the application of this right.


csc.ceceurope.org

Tolerance

Freedom of religion or belief - the rights of others to have a different religion or belief or no religion or belief.

How to respect different ways of life?

Where to limit the rights of others, coming from a different cultural/religious background, manifesting religious traditions conflicting with our own moral and religious standards (which may be translated into law and policy).


csc.ceceurope.org

Religious freedom and foreign affairs

How is freedom of religion or belief monitored by your national government?

For example: policy to monitor the issue within the scope of national foreign policy;

How could you cooperate with the national authorities?


csc.ceceurope.org

Important articles related to the Freedom of Religion or Belief

Universal Declaration of Human Rights: art. 18

International Covenant on Civil and Political Rights (1966) (ICCPR): ar. 18 ar. 27

International Covenant on Economic, Social and Cultural Rights (1966): ar. 13

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR): art. 9

European Charter on Fundamental Rights: art. 10

Commitments and Concluding Documents of the OSCE process (particularly the 1989 Vienna 1989 Concluding Document)

Framework Convention for the protection of national Minorities: ar. 5, ar. 7, ar. 8

UN Declaration on the Elimination of All forms of Intolerance and of Discrimination Based on Religion or Belief: ar. 1, ar. 6


csc.ceceurope.org

UN - Human Rights Instruments

Universal Declaration of Human Rights (1948) (UDHR) see ar.18

International Covenant on Civil and Political Rights (1966) (ICCPR)

International Covenant on Economic, Social and Cultural Rights (1966)

Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981)

United Nations Human Rights Committee General Comment 22

Reports of United Nations Special Rapporteurs

(in the left column go to 'Mandates', choose thematic or country mandates - from there you can choose your country/topic and have access to the page of the Special Rapporteur)


csc.ceceurope.org

UN Special Rapporteurs, UPR, OUNHR

The Special Rapporteur on Freedom of Religion or Belief (since1986);

The Special Rapporteur on Promotion and Protection of Freedom of Opinion and Expression also can be contacted for violations or limitation of religious expression;

The Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance has the task of dealing with Anti-Semitism, Christianophobia and Islamophobia;

Universal Periodical Review (UPR);

You can get in touch with the Office of the UN High Commissioner for Human Rights (OUNHR).


csc.ceceurope.org

Council of Europe Human Rights

Instruments

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) see ar.9

Decisions and judgments of the European Court of Human Rights

Commissioner for Human Rights


csc.ceceurope.org

OSCE Instruments

Commitments and Concluding Documents of the OSCE process (particularly 1989 Vienna 1989 Concluding Document)

OSCE/ODIHR Guidelines for Review of Legislation Pertaining to Religion or Belief (2004)


csc.ceceurope.org

EU Instruments

The most important EU Human Rights Instruments:

EU Lisbon Treaty see : ar. 11. Ar 17

European Charter on Fundamental Rights see: ar. 10


csc.ceceurope.org

EU Institutions dealing with Freedom of Religion or Belief / Mechanisms:

European Commission

Commissioners for justice, fundamental rights and citizenship

The Commissioner for Enlargement (Turkey, Western Balkans)

The High Representative for External Affairs and Security Policy (Neighborhood Policies, Eastern partnerships)

BEPA also organises a yearly meeting of Religious Leaders


csc.ceceurope.org