Relevant case-law 2022

Art 14 (+ Art 8 read in light of Art 9) • Discrimination • Family life • Manifest religion or belief • Order prohibiting a Jehovah’s Witness from actively involving his young child, brought up in Catholicism, in his religious practice • No difference in treatment vis-à-vis child’s mother • No restrictions on applicant’s custody and visiting rights or on use of educational principles • Measure in child’s best interests and aimed solely at preserving its freedom of choice • Order revocable and reviewable

1.  The case concerns searches in the flats of Jehovah’s Witnesses and in the prayer hall owned by a local religious organisation of Jehovah’s Witnesses.

2.  The applicants are individual Jehovah’s Witnesses and the Kostomuksha local religious organisation of Jehovah’s Witnesses (the “Kostomuksha LRO”). On various dates between 2010 and 2012, the Russian courts authorised searches and inspections in the applicants’ flats on the basis that, as Jehovah’s Witnesses, they might be involved in extremist activities and distribution of extremist literature. The Federal Security Service (the “FSB”) also issued an inspection order for the prayer hall owned by the Kostomuksha LRO.

3.  The authorities searched the applicants’ flats and seized the religious literature they had found, including Bibles, magazines and books, and other personal items, such as computers, video-recordings, writing pads and notebooks. Domestic courts dismissed the applicants’ complaints about the searches, finding that they had been duly authorised by judicial decisions and carried out in accordance with the law (see the Appendix).

4.  Following an inspection in her flat and seizure of religious brochures, Ms Chavychalova (application no. 74329/10) was found guilty of “unlawful possession of extremist material with the aim of mass distributing”, an offence under Article 20.29 of the Code of Administrative Offences (CAO), and fined 1,500 Russian roubles.

5.  The applicants complained that the searches in their flats and seizure of their religious literature and personal belongings were neither lawful, nor “necessary in a democratic society”, and thus, violated their rights guaranteed by the Articles 8, 9, 10, and 14 of the Convention. Some of the applicants also relied on Articles 6, 11 and 13 of the Convention, and Article 1 of Protocol No. 1 in this respect.

1.  The case concerns the apprehension of the applicant, a Jehovah’s Witness, while preaching door-to-door, her subsequent conveyance to the police station, where she was questioned, searched, and had her religious literature seized.

2.  On 17 March 2011 the applicant was preaching door-to-door and talking about the Bible with local residents in her home town. She was approached by two police officers who, after checking her identity documents, took her to a police station. While at the station, the officers photocopied her passport and interviewed her for two hours. They also seized her personal belongings and religious literature. After four and a half hours, she was released.

3.  The applicant complained to a court of her unlawful detention and seizure of her possessions. By judgment of 19 August 2011, as upheld on appeal on 20 September 2011, the Ivanteyevka Town Court in the Moscow Region dismissed the complaint, finding that the police had lawfully sought to uncover an administrative offence and stop her unlawful activities.

4.  Relying on Articles 9 and 10, taken alone and in conjunction with Article 14, and on Articles 3 and 5 of the Convention, the applicant complains of the disruption of her religious activity, followed by her detention at the police station, and the seizure of her personal belongings.

Relevant case-law 2021

Case Abdi Ibrahim v. Norway, No. 15379/16, ECtHR (Grand Chamber), 10 December 2021

  1. Article 8 of the European Convention on Human Rights, interpreted also in the light of Article 9, states that finding a foster family corresponding to the biological mother’s cultural and religious origins is not the only way to ensure respect for her rights, since the national authorities are bound by an obligation of means and not of result.
  1. In the decision-making process leading to the division of the mother and the child, the competent authorities must give sufficient weight to the applicant’s right to respect for family life and to the best interests of the child to maintain a link with his or her family of origin. Family ties may only be severed in very exceptional circumstances and an attempt must be made to preserve personal relationships and, if and when appropriate, to “rebuild” the family.

The case arose from the decision of the Norwegian authorities to proceed with the adoption of a child without the consent of the mother, a Somali refugee, who, although not contesting the decision to entrust her son to another family, requested that the child’s religious identity be taken into consideration when choosing a foster family. The mother asked that the child be placed with a Muslim family or maintain contact with his culture and faith. In spite of this request, the child was placed in the care of a Christian family and finally adopted by the Supreme Court.

Case de Wilde v. the Netherlands, IV Sect., N. 9476/19, 9 November 2021

  1. Pastafarianism lacks seriousness and cohesion, characteristics necessary to attract the protection of Art. 9 ECHR.
  2. Pastafarianism is not a “religion” or “belief” within the meaning of Article 9 ECHR. The wearing of a colander by adherents of Pastafarianism cannot be considered a manifestation of a “religion” or “belief” within the meaning of Article 9, even if the person concerned claims that he or she chooses to do so out of genuine and sincere conviction.

Case Polat v. Austria, No. 12886/16, ECtHR (Fourth Section), 20 July 2021

  1. The exercise of Article 8 rights concerning family and private life pertains, predominantly, to relationships between living human beings. However, the possibility cannot be excluded that respect for family and private life extends to certain situations after death. the removal of a deceased relative’s organs or tissues without consent falls within the scope of the “private life” of the surviving family members.
  2. The manner of burying the dead represents an essential aspect of religious practice and falls under the right to manifest one’s religion within the meaning of Article 9 § 2 of the Convention. Article 9 is therefore applicable to the applicant’s complaint that the post-mortem had been carried out against her declared religious convictions, as she submitted that it had prevented her from burying her son in accordance with her beliefs.
  3. The domestic authorities are called to proportionally balance, on the one hand, the protection of the health of others through the conduct of the post-mortem examination and, on the other, the protection right to respect for her private and family life and the right to manifest one’s religion.
    (In the present case, the removal of the organs of the applicant’s son had prevented the latter from guaranteeing the child a religious funeral. According to the Court, the hospital’s staff would not have checked whether the intervention was necessary for the pursuit a scientific interest)

Case Ancient Baltic religious association “Romuva” v. Lithuania, No. 48329/19, ECtHR (Second Section), 8 June 2021

  1. The applicant association (a pagan association) was in a situation similar to that of other non-traditional religious associations which had obtained a positive assessment from the Ministry of Justice. In the present case, it appeared from the statements made by the various members of the Lithuanian Parliamentary Assembly during the debates, as well as from the Government’s submissions before the Court, that the refusal to recognise had been largely motivated by arguments relating to the substance of the association’s religious convictions. The differential treatment had thus been based on religious grounds.
  2. In the present case, the scope of the States’ margin of appreciation could not be wider or narrower, depending on the nature of the religious beliefs of the associations seeking recognition. Thus, the difference in treatment of the applicant association compared with that of other religious associations in a similar situation could not be justified by the nature of its faith.In the light of all this, the State authorities had not provided a reasonable and objective justification for treating the applicant differently from other religious associations in a similar situation, and the Members of Parliament who had voted against recognition had not remained neutral and impartial in the exercise of their regulatory powers.
    (A non-traditional religious association established under Lithuanian law and comprising several religious communities following the ancient Baltic pagan faith applied for the status of a religious association recognised by the State. However, this recognition did not take place because the Lithuanian Parliamentary Assembly voted against).

Case Gachechiladze v. Georgia , application no. 2591/19, 22 July 2021

The applicant is an entrepreneur who produces condoms with sarcastic design. In 2007 she proposed 4 designs making reference to cartoons depiction. 10 years later, the chairman of a conservative civil-political movement complained to the local Municipal Inspectorate that the brand’s designs insulted the religious feelings of Georgia. Lately, the authority served the applicant an offence report stating that the advertising of her product was breaching the rules of production and dissemination of advertising. In an oral hearing which then took place on the one hand, the Inspectorate supported its thesis; on the other hand, the applicant stated that the authority did not provide sufficient justification for its claim, in relation both to the accusation against images and limitation to her right of freedom of expression. However the judge concluded that the 4 designs constituted unethical advertising and that the right of the entrepreneur’s freedom of expression could be subjected to lawful and necessary restrictions according to provisions contained in the Constitution and the European Convention, since it caused offence to another individual and that the nature of speech of the applicant’s case did not contribute to a democratic debate. A definition of morality did not exist, so the decision of the Court was based on the perceptions and moral consideration of society prevailing at the time of deciding the case. Moreover, the Court decided on the product recall order (redundant, as the entire batch featuring these design condoms had already sold out) and the ban on the future use of the 4 designs.

The entrepreneur complains of unjustified interference with her right to freedom of expression, contrary to art.10 of the Convention, in relation to the proceedings against her and consequent sanctions.

The Court refuses the domestic courts’ justifications, considering them insufficient in restricting the applicants’ freedom of expression and as a matter of fact violating art.10, concerning the individual’s right of freedom of thought as mentioned before. The court disagrees with domestic courts’ decisions which imply that views on ethics of the members of the national Church prevail over the values protected by the Convention and the national Constitution. Indeed, according to the Constitutional Court, it was not possible to impose norms of a specific group through State institutions, i.e. courts, because incompatible with the pluralistic view which supports that people who exercise the freedom to manifest their religion must tolerate and accept that others do not share their convictions and beliefs as well as the propagation by others of doctrines different to their own faith.
The Court declares the application admissible and that the domestic courts proposed insufficient justifications to dispute 3 of the 4 designs, committing a mere violation of art.10 of the Convention.

Relevant case-law 2020

Case Neagu v. Romania, No. 21969/15, ECtHR (Fourth Section), 10 November 2020

A prisoner was required to give evidence of his religious conversion during detention in order to be allowed to receive meals compatible with his faith. This approach violates art. 9 ECHR, since it constitutes an illegitimate interference with the right of the individual to freely manifest his own religion.

Case The Religious Denomination of Jehovah’s Witnesses in Bulgaria v. Bulgaria, No. 5301/11, ECtHR (Fourth Section), 10 November 2020

  1. While the Convention does not guarantee the right to be given by the authorities a place of worship as such, restrictions on establishment of places of worship may constitute an interference with the right guaranteed by Article 9. In facts, the possibility of using buildings as places of worship is important for the participation in the life of the religious community and thus for the right to manifestation of religion.
  2. Even the enforcement of generally applicable neutral provisions, such as urban planning regulations, can in some cases amount to an interference with the exercise of religious freedom. Any such interference can only be justified if the obtaining limitations may be considered as having been “prescribed by law” and “necessary in a democratic society” for one or more of the purposes set out in the second paragraph of Article 9.
    (In the present case, the construction of a religious building had been interrupted due to the violation of certain urban planning regulations. Following the elimination of all the incompatibilities, the organization concerned had requested to be authorized to resume the construction. The competent authority, which at first did not provide an answer, later rejected the request. Furthermore, the mayor of the municipality had elsewhere expressed his opposition to the authorization for the construction of such a place of worship. These circumstances constitute a violation of art. 9 of the ECHR, interpreted in the light of art. 11)