On the evolution of Religion in Europe: a case-law study on new religions, ancient spirituality and unexpected philosophies (pt. I)

by Giovanni Morselli

Essays
With regard to Article 9 of the ECHR on freedom of religion or belief, the European Court of Human Rights has repeatedly clarified (in cases such as Otto Preminger Istitut v. Austria or Leyla Sahin v. Turkey) that, in light of the differences between national legal systems – based on cultural traditions and religious presence – states must be granted a certain discretion on how to effectively tackle questions of religious. Article 9 is often interpreted in conjunction with Article 14 of the Convention, which prohibits discrimination based on, among other things, religion and personal opinions (as stated by the Court in the landmark case of İzzettin Doğan and Others v. Turkey). As pointed out by Marchei, the Court requires all states in the system of the Council of Europe to respect everyone’s freedom of religion or belief and to act impartially vis-à-vis all religions in its territory, even in those cases in which a state religion is established or a clear religious majority is represented in the population (Manoussakis v. Greece). Article 9, thus, can also be used to draw a non-exhaustive list of conducts states are prevented from putting in place, such as acting directly in favour or against any religion or thought, indoctrinating students in public schools (Folgerø and Others v. Norway), forcing anyone to reveal any religious belief or thought, discriminating any religious group as to their capacity to exercise their religious freedom (Jehovah Witnesses v. Austria), making the establishment of places of worship unreasonably difficult (Manoussakis v. Greece), or interfering with the internal organization of places of worship (Serif v. Greece). It is worth underscoring that this reading of Article 9 applies not only to millenary religions, but also to new or newly established religions, philosophical movements and belief systems.

It is also worth noting that neither article 9 of the ECHR includes a definition of “religion”, nor this term has been defined in the case-law. This is hardly surprising, as a definition of religion would necessarily exclude some denominations, and this carry extreme dangers in terms of protection of human rights in general and religious rights more specifically: the Court’s findings in Leela Förderkreis e. V. and Others v. Germany show what a strict definition can cause. The rights granted by article 9 are thus broad and it would be ‘illusory if the degree of discretion granted to States allowed them to interpret the notion of religious denomination so restrictively as to deprive a non-traditional and minority form of a religion of legal protection’ (Guide on Article 9 of the Convention – Freedom of thought, conscience and religion, p. 8). In the remainder of this post, the term “movement” will be used to include any belief of new formation that may fall under the umbrella of terms such as “new religion”, “cult” or “sect”. The term “movement” – however faulty like any other human construct – is an open term that does not entail a numerus clausus, and is instead meant to constitute a hopefully inclusive anti-definition.

The aforementioned article 9 of the ECHR indirectly states that all religions, practices, philosophies and beliefs are to be treated as equals, and not be restricted unless very specific requirements occur (i.e. public safety and risks for other human rights). The rights in the Convention can and must be applied also to people who, in the past or presently, face or have faced violence or discrimination because of their views. The same people who had to hide in the past, can now enjoy a certain extent of freedom (with the caveat of the different socio-economic situations in parts of the world) and practice (relatively) openly what they were previously forced to do covertly: this principle can be applied to most of the known new – or newly established – movements.

If one looks at the 1692 Salem Trials, it is immediate to imagine that the fear instilled in the “witches” must have been so great that it led to the extinction of every pagan movement. And yet, people who could have been called “witches” in the Salem Trials are currently alive and well. Perhaps the most famous are the Wiccans: even Lisa Simpson gave them a try and, as always, saved the day. The protection given by article 9 to Wiccans is applied to many more non-traditional philosophies and movements, such asThe Reverend Sun Myung Moon’s Unification Church, or Amuism of Mandarom, many others few have ever heard of, and even movements which sparked controversy, namely Satanism.
Writing about these apparently strange philosophies and groups may be interesting and could be the source of many fables. We do not live a world of fables, though, but rather in a real and mean one, and issues regarding any type of human right must be treated with the utmost respect: this is the reason why, in this series, the main focus shall be on the ECHR case law, and the strength that lies within it and the strength of the stare decisis principle.

Bibliography: Otto Preminger Istitut v. Austria, 20 September 1994; Leyla Sahin v. Turkey, GC, 10 November 2005; İzzettin Doğan and Others v. Turkey, 26 April 2016; Natascia Marchei, “La libertà religiosa nella Giurisprudenza delle Corti europee”, Natascia Marchei; Manoussakis v. Greece, 26 September 1996; Folghero and Others v. Norway, GC, 29 June 2007; Jehovah Witnesses v. Austria, 31 July 2008; Serif v. Greece, 14 December 1999; Leela Förderkreis e. V. and Others v. Germany, 06/11/2008; Guide on Article 9 of the Convention – Freedom of thought, conscience and religion, last updated 31 August 2021.