Minority Specific Rights_A Protection of Religious Minorities Going Beyond the Freedom of Religion

Electronic copy available at: http://ssrn.com/abstract=1973041

Part IArticles

Electronic copy available at: http://ssrn.com/abstract=1973041

A. GENERAL ARTICLES SECTION

European Yearbook of Minority Issues Vol 8, 2009, ISBN 978 90 04 19521 9, 5-44. 2011 Koninklijke Brill NV. Printed in Th e Netherlands.

Kristin Henrard *

Minority Specifi c Rights: A Protection of Religious Minorities Going Beyond the Freedom of Religion?

I. Introduction What comes to mind when one considers the protection of religious minorities? Not all religious minorities are confronted with the same hurdles (at least not equally prominently) concerning the expression, protection and promotion of their religious identity.1 Nevertheless, recurring problems for religious minorities span a broad range, including the recognition of a persons religion; the registration of a religion; the pos-sibility of organizing a group of adherents as a religious organization; being entitled to establish and maintain places of worship; the accommodation of religious diversity at work (working schedule, religious holidays, dietary requirements, notably rules con-cerning slaughter, and dress codes); religious diversity and education (religious educa-tion and similar issues, as with work); and broader questions pertaining to a religious way of life, including burial customs etc. Central to all this is the right not to be discriminated against on the basis of religion (and related intolerance) the arguably intrinsically related point of churchstate relations and obligations of state neutrality.

When evaluating whether protection of religious minorities is adequate, the benchmarks are the founding principles and goals of minority protection; in other words, the right to identity on the one hand and the principle of real or substantive

* Kristin Henrard is Professor of Minority Protection and Associate Professor of Constitu-tional Law at the Erasmus University of Rotterdam, the Netherlands.

1 In the Framework for communications devised by the Special Rapporteur on Religion and Belief (E/CN.4/2006/5, paras. 28-35). She highlights inter alia the following as rel-evant in terms of the freedom to manifest ones religion:

Freedom to worship, places of worship, religious symbols, observance of holidays and days of rest, appointing clergy, teaching and disseminating materials, the rights of parents to ensure the religious and moral education of their children, registration of religious associations.

She also recognizes that the freedom to manifest ones religion can be hindered by par-ticular uses of the freedom of expression, more particularly expression which can be con-sidered as inciting religious hatred and intolerance.

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equality on the other.2 In terms of adequate protection there is an ongoing debate as to whether there is a need for minority-specifi c rights, in addition to general human rights (and non-minority-specifi c rights in the broad sense).3 Even though minority-specifi c rights or special minority rights are generally accepted as part and parcel of human rights, diff erent opinions exist with regard to their relative need and impor-tance (in comparison with the minority-neutral norms). Th ere are still states that are reluctant to accept the obligations of minority-specifi c rights, including in Europe, as manifested by ongoing resistance on the part of several countries to ratifying the Framework Convention for the Protection of National Minorities (FCNM).4

As will be expanded infra, the interesting point in relation to religious minori-ties is that existing minority-specifi c standards reveal that not that much attention is actually paid to the religious dimension of the minority right to identity. Furthermore the standards in place do not seem to go beyond a general freedom of religion (in any signifi cant way). However, as is the case for human rights, the meaning of minor-ity-specifi c rights is as much determined by the interpretation of the texts as by the texts themselves. Here teleological and evolutive interpretation methods can (and are likely to) be used, extending the reach and strength of fundamental rights. Hence, it is important to check whether the supervisory practice of the standards concerned reveals more explicit attention to religious issues.

Th e concept of supervisory practice is used here in a broad sense, to refer to all practice by competent bodies that refl ects interpretation of the norms concerned. Th is means having regard to explanatory memoranda, thematic comments and recommen-dations, supervision of periodic state reports, as well as the outcome of judicial and quasi-judicial procedures.

In terms of the relative importance of and need for minority-specifi c rights, the outcome of this supervisory practice should then be compared to the supervisory prac-tice in relation to freedom of religion in non-minority-specifi c instruments. Th e non-minority-specifi c freedom of religion has an obvious focus on religious issues, but the question is how minority conscious its interpretation and application is. By contrast, although minority-specifi c provisions by defi nition have a clear focus on minorities, their implications for religious issues are hardly visible in the text and thus greatly depend on interpretation of the norms concerned.

Since the FCNM has the most elaborate supervisory practice for minority-spe-cifi c rights, the substance of its opinions will make up a large part of the coming analy-sis. Of course, attention will also be paid to relevant practice at the UN and OSCE

2 Patrick Th ornberry, International Law and the Rights of Minorities, (Clarendon Press, Oxford, 1991), 392. See also Report UN Secretary General, Protection of Minorities: Possibly Ways and Means of Facilitating the Peaceful and Constructive Solution of Prob-lems Involving Minorities, 14 June 1995, UN Doc. E/CN.4/Sub.2/1995/33, 3.

3 See inter alia the book edited by Juha Rakk, Do We Need Minority Rights? Conceptual Issues (Martinus Nijhoff , Th e Hague, 1996). Th ere is a broad understanding and agreement that minority-specifi c rights would be part and parcel of the broader human rights para-digm, see inter alia Art. 1 of the Framework Convention for the Protection of National Minorities (hereinafter, FCNM).

4 Belgium, France and Greece are notorious examples.

7A Protection of Religious Minorities Going Beyond the Freedom of Religion?

levels, even if this does not have the same status as FCNM supervision, which is a legally binding convention.

Notwithstanding the lack of a standard setting mandate for the OSCEs High Commissioner on National Minorities (HCNM), he has instigated and subsequently endorsed the elaboration of substantial thematic recommendations and guidelines pertaining to typical minority issues with which he is confronted in practice. Similarly the UN Forum on Minority Issues also produces recommendations that merit consid-eration. While the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities is not legally binding, and hence is devoid of a typical supervision mechanism, the now defunct UN Working Group on Minorities published a commentary interpreting its provisions.

Th e non-minority-specifi c counterpart is mainly the relevant jurisprudence of the European Court of Human Rights (ECtHR). Other minority-neutral documents that need to be included in the analysis concern notably recommendations by the European Centre against Racism and Intolerance (ECRI), and the OSCEs Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, promulgated by the OSCE Offi ce for Democratic Institutions and Human Rights (ODIHR).5 ECRIs work, and more particularly its recommendations, is certainly relevant for religious minorities given the substantial overlap between race and religion. Issues of religious intolerance also form part of the ECRI mandate.6

Th is thematically structured comparative analysis will culminate in a fi nal assess-ment of the relative importance of (and thus need for) minority-specifi c rights con-cerning religion, religious diversity and respect for religious identity. Importantly, the evaluation will not disregard substantial diff erences in the type of supervisory mecha-nisms involved.

II. Adequate Protection of Religious Minorities?Evaluating whether religious minorities can benefi t from adequate protection presup-poses an understanding of the concepts minority, religious minority and adequate protection.

Despite the absence of a formal legal defi nition of the terms minority and reli-gious minority it is broadly acknowledged that it concerns non-dominant groups with a distinct religious identity, that are a numerical minority within a given territory, and that wish to hold on to that identity.7 While not all states have fully embraced the idea,

5 Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, ODIHR 2007. At times reference is made in footnotes to similar stances noted in reports of the UN Special Rapporteur on Religion.

6 Th ere is an overlap between the concept of race (in the broad sense) and religion, while diff erentiations on the basis of religion could amount to indirect discrimination on the basis of race. Th e link between combating racism on the one hand and promoting inter-religious dialogue on the other is also recognized at the EU level and more particularly in Council Resolution on the Response of Educational Systems to the problem of Racism.

7 See inter alia Kristin Henrard, Devising an Adequate System of Minority Protection: Indi-vidual Human Rights, Minority Rights and the Right to Self-Determination (Martinus

8Kristin Henrard

there is a general trend towards accepting that non-nationals and people that are not traditionally living in a particular country, notably immigrants, can still be considered minorities. In this respect it is equally noticeable that an inclusive position concerning the qualifi cation of minority does not exclude diff erentiation in terms of the actual rights to which groups are entitled, measured along a sliding scale.8 Th e inclusion of immigrants among religious minorities is especially relevant in this context, since immigrants have considerably enhanced religious diversity in their countries of resi-dence.

Religious identity refers to adherence to a particular religion. Th e concept religion should not be defi ned too narrowly, certainly not to the exclusion of non-traditional and new religious movements. As correctly underscored by the Special Rapporteur on Freedom of Religion in her latest report: the terms religion and belief are to be interpreted in a broad sense and [that] human rights protection is not limited to mem-bers of traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.9

Whether the protection provided to religious minorities is adequate depends on the extent to which their religious identity is accommodated and substantive or real equality is furthered (in this regard), noting in particular that the right to identity and substantive equality are foundational principles and goals of minority protection.10

III. The Text of Minority-Specific Instruments:What Can Be Found in Terms of Religion/Religious

Minorities?When considering minority-specifi c standards, it is striking that most documents do not actually have provisions that refer explicitly to the right to religious identity, pro-visions that might explain what the terse statement of Article 27 ICCPRthe right to practice their own religioncould mean. Th e UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities not only reiterates that terse statement (Art. 2(1)) but explicitly recognizes the duty of states to protect and (encourage conditions to) promote the religious identity of minor-ities living in their territory (Art. 1(1)). Furthermore, Article 4(2) obliges states to take measures to create favourable conditions to enable [] to express [] and to develop their [] religion. Th ese three phrases only consider religion as one of the relevant characteristics without providing any further information regarding what religious minority rights might be. Article 4(1), which obliges states to take measures to ensure

Nijhoff , Th e Hague, 2000), 30-31. See also the discussion and references at ibid. 30-48.8 European Commission for Democracy Th rough Law (Venice Commission), Report on

Non-Citizens and Minority Rights, CDL-AD(2007)001, 18 January 2007. See also inter alia Asbjrn Eide, Th e Rights of Old versus New Minorities, 4 European Yearbook on Minority Issues (2004), 365-379; Fernand De Varennes, Language, Minorities and Human Rights (Proefschrift Rijksuniversiteit Limburg, Maastricht, 1996), 169.

9 A/64/159, para. 31.10 Substantive equality and the right to identity can be considered the guiding principles of

minority protection. See Henrard, op.cit. note 7, 11-13.

9A Protection of Religious Minorities Going Beyond the Freedom of Religion?

that persons belonging to minorities may exercise their human rights in full, confi rms the importance of general human rights for adequate minority protection but does not specify what religious minority rights would add to that.

Th e declaration does contain general state obligations in relation to minorities, which would also benefi t religious minorities, like the obligation to take measures to enable minorities to participate in the economic progress of their country (Art. 4(5)) and to plan and implement national policies with due regard for the legitimate inter-est of persons belonging to minorities (Art. 5(1)). However, once again one obtains no deeper insight into the substance of religious minority rights. What is striking, though, is the absence of minority religions as a subject to be encouraged in the fi eld of education (in Art. 4(4)).

Th e OSCE Copenhagen document on the Human Dimension similarly contains an obligation on states to protect and (create the conditions to) promote the religious identity of minorities (para. 33), and acknowledges the right of persons belonging to minorities to express, preserve and develop their religious identity (para. 32). Two clarifi cations are made under paragraph 32, namely the right to establish and maintain their own religious institutions, organizations or associations (para. 32(2)) and the right to acquire, possess and use religious materials (para. 32(3)). While these rights can convincingly be argued to be part and parcel of the general freedom of religion, as recognized in the jurisprudence of the European Court of Human Rights (ECtHR),11 making this explicit is benefi cial as it reduces contestation.

As in case of the UN Declaration the Copenhagen document also includes par-ticular duties of states towards minorities in their territory, like eff ective participation in aff airs pertaining to the protection and promotion of their identity (para. 35), which again contributes indirectly to the protection of religious minorities.

Th e Copenhagen document contains an interesting elucidation of measures that could promote the religious identity of minorities in this respect, namely the establish-ment of local or autonomous administrations corresponding to the particular histori-cal and territorial circumstances of minorities (para. 35 in fi ne). Nevertheless, all in all there does not seem to be any outspoken eff ort to clarify the content of religious minority rights.

Th e Council of Europes Framework Convention for the Protection of National Minorities12 is remarkable because it takes up general human rights, explicitly enumer-ating the most relevant ones, and articulates them as rights of persons belonging to national minorities.13 Th eir formulation is thus specifi cally attuned to special minority

11 See infra for further elaboration and references. It should be reminded that para. 31 already recognizes the right to fully exercise human rights, including the freedom of religion.

12 Th e other minority instrument of the Council of Europe, the 1992 European Charter on Regional or Minority Languages, does not contain any reference to religion.

13 For more information on the relationship between arts. 7 and 8 FCNM and Art. 9 Euro-pean Convention on Human Rights (ECHR), because of the principles in arts. 19 (limita-tion) and 23 (interpretation) FCNM, see the chapters by Lauri Hannikainen, Article 19, and Peter Hilpold, Article 23, in Marc Weller (ed.), Th e Rights of Minorities: A Commen-tary on the European Framework Convention on the Protection of National Minorities (OUP, Oxford, 2005).

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Kristin Henrard

needs, in the sense that dimensions that are particularly important for minorities are made explicit. It should be highlighted, however, that several of these extra state-ments, like the freedom to establish religious institutions and organizations, are not really substantive additions as they refl ect the current understanding of the general human rights concerned. However, what the jurisprudence of the supervisory bodies of of human rights conventions has added through interpretation is taken up explicitly here. In other words: the formulation of the FCNM arguably acknowledges that the eff ective protection of individual human rights is an essential component of adequate minority protection, and that certain minority-sensitive applications are called for.

Nevertheless, it is striking that in contrast to general human rights conventions, the forum internum (the freedom to have a belief, conviction etc.) and the forum exter-num (the right to manifest ones religion or belief) are split between diff erent articles, with Article 7 a restatement of the general freedom of religion limited to the forum internum,14 and Article 8 pertaining to the forum externum. Admittedly, diff erential treatment between these two fora can also be found in general human rights law: the forum internum is absolutely protected while legitimate limitations can be imposed with regard to the forum externum.15 But be that as it may, the structure of the FCNM and more particularly the use of a general limitations clause, makes it less likely that this diff erence explains the split,16 especially as Article 19 explicitly refers back to the European Convention on Human Rights (ECHR) as providing the basis17 and deter-mining the confi nes of possible limitations.18

Concerning the relationship between the ECHR and the FCNM a possible danger seems inherent in articles 19 and 23 FCNM,19 as the latter determines that [t]he rights and freedoms fl owing from the principles enshrined in the present frame-work Convention, in so far as they are the subject of a corresponding provision in the ECHR or in the protocols thereto, shall be understood so as to conform to the latter provisions. Eventually there was an explicit choice by the drafters not to include ref-erences to the case law of the ECtHR in Article 23. Nevertheless, it has been argued that it is also the general spirit of the ECHR, as expressed by the European Court of

14 See the contribution by Zdenka Machnyikova, Article 7, in Weller, op.cit. note 13, 181.15 Karl Hanson, Vrijheid van gedachte, geweten en godsdienst, in Johan Vande Lanotte

and Yves Haeck (eds.), Handboek EVRMDeel 2: Artikelsgewijze Commentaar (Antwerp, Intersentia, 2005), 813-814.

16 According to Machnyikova the special, separate attention given to the right to manifest ones religion can be explained by the history of state suppression to which many religious minorities have been subjected: Machnyikova, op.cit. note 14, 232.

17 It seems to incorporate the limitation clauses of the ECHR in the corresponding provi-sions of the FCNM: Hannikainen, op.cit. note 13, 528. See also Zdenka Machnyikova, Article 8, in ibid., 242.

18 Art. 19 acknowledges that it is nevertheless possible to impose limitations, but only those which are provided for in international legal instruments, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, in so far as they are relevant to the rights and freedoms fl owing from the said principles.

19 Hilpold, op.cit. note 13, 565; Tove Malloy, Th e Title and the Preamble, in Weller, op.cit. note 13, 71-72.

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A Protection of Religious Minorities Going Beyond the Freedom of Religion?

Human Rights, which has to be taken into consideration in the interpretation of the provision of the Framework Convention.20 In any event, in view of the broad wording of the ECHR rights, it would be incongruous not to take account of how these provi-sions have been interpreted and made more concrete by its supervisory body.21 In this respect, it is remarkable that there are so few (at most a handful of)22 explicit references in the supervisory practice relating to the ECHR. Still it has been maintained that the monitoring bodies of the FCNM draw heavily on ECtHR jurisprudence.23

While in principle this reference to the ECHR is positive, confi rming the close interrelation between general human rights and minority specifi c rights, it would be a pity if the provision were to imply that the supervisory mechanism of the FCNM is unable to disregard particular ECtHR jurisprudential lines that had been criticized for not suffi ciently accommodating religious diversity and protection of religious minori-ties. If that were the case the FCNM would not be able to go beyond the protection off ered by the ECHR, and hence would not be able to provide the additional protection it is meant to off er.24 In this respect, the reference in Article 19 to possible legitimate

20 Hilpold, op.cit. note 13, 569. Emphasis added.21 Patrick Th ornberry and Maria Amor Martin-Estbanez, Minority Rights in Europe

(Council of Europe Publishing, Strasbourg, 2004), 91; Johan Vande Lanotte and Yves Haeck (eds.), Handboek EVRM: Deel I: Algemene Beginselsen (Antwerp, Intersentia, 2005), 186-195.

22 Having checked the PDF fi les of the published opinions of the Advisory Committee (AC), I was only able to detect three explicit references to the case law of the European Court of Human Rights (ECtHR): Advisory Committee, First Opinion on Bulgaria, 5 April 2006, ACFC/INF/OP/I (2006) 001, para. 58 (reference to Stankov and Nachova); Advisory Committee, Second Opinion on Croatia, 13 April 2005, ACFC/INF/OP/II (2004)002, para. 52; Advisory Committee, First Opinion on Germany, 1 March 2002, ACFC/INF/OP/ I (2002) 008, para. 31 (right to traditional way of life). It was further-more striking that they were confi ned to arts. 7-9 FCNM (as if no case law of the ECtHR. is relevant to arts. 4 (equality) or 5 (identity) FCNM). Th e few references that were made only concerned cases held against the state under review. Th is seems to disregard the fact that clear lines of jurisprudence have been established, so that cases under review that are not against the state are also important and relevant for that state (and its policy and legislative development)

23 Hilpold, op.cit. note 13, 568.24 An example would be that the special protection of the forum interim under the ECHR

has been said to be compromised because the ECtHR fails to recognize that at some point burdening external manifestations of belief (by penalizing a refusal to act because of a religious persuasion or by prohibiting an act which is felt to be mandated by ones religion) have serious repercussions for the forum internum. See Carolyn Evans, Freedom of Religion under the ECHR (OUP, Oxford, 2001), 76-78. It can be argued that obliging someone to take the oath on the holy bible actually requiring him to swear allegiance to a particular religion amounts for those who have a diff erent religion (or none), to an interference with the forum internum, which concerns a lack of accommodation of their religious beliefs (see also Arcot Krishnaswami (Special Rapporteur on the freedom of religion), Study of Discrimination in the matter of Religious Rights and Practices, UN Doc. E/CN.4/Sub.2/200/Rev.1, UN Sales No. 60.XIV.2 (UN, New York, 1960), 42-43. However, the Grand Chamber decided diff erently in Buscarini et al. v. San Marino, since

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Kristin Henrard

limitations of ECHR rights, could also be read in a way that did not hinder broader, more generous interpretations, providing no other human rights were restricted in the process.25 Article 19 would merely imply that non-minority-specifi c rights are the baseline upon which minority rights are built, a baseline that must be respected.26

As in case of the other minority-specifi c instruments, the FCNM does contain state obligations in relation to minorities generally which would also benefi t religious minorities. Article 4, the equality provision, stipulates for example that the state par-ties undertake to adopt, where necessary, adequate measures to promote, in all areas of economic, social, political and cultural life, full and eff ective equality between per-sons belonging to a national minority and those belonging to the majority. In addi-tion to this provision aimed at realizing substantive equality, Article 5 identifi es state obligations aimed at protecting and promoting minority identity, which refers explic-itly to religion as a relevant factor.27

Article 6 is also relevant as it obliges states to promote mutual respect and under-standing among all persons living on their territory, and to encourage a spirit of toler-ance and intercultural dialogue. An explicit reference is also made here, inter alia, to peoples religious identity. Th e important role of education in this respect is taken up in Article 12.

Th e preceding analysis has confi rmed that minority-specifi c provisions do not in themselves reveal how or to what extent religious minority rights go beyond freedom of religion as a general human right. Hence, one needs to have a closer look at the respective supervisory practices.

IV. Further Clarification in Terms of Supervisory PracticeIt is important to explain the supervisory practice of the main instruments relied upon in the subsequent analysis. Th e extensive diff erences between them should also be taken into consideration when evaluating the depth and the breadth of their respective outcome.

Supervision of the ECHR is realized through complaints procedures, which result in binding judgments. Most of the complaints are submitted by individuals, with interstate complaints extremely rare. Consequently the clarifi cation of religious rights through jurisprudence is contingent on the kinds of complaints brought for-

it assumed that it was dealing with a case of manifestation of a religion. Even though the Court still concluded to a violation of Art. 9 ECtHR (Grand Chamber), Appl. 24645/94, Buscarini et al. v San Marino, 18 February 1999, para. 34, it remains a pity that the link with the forum internum was not touched upon.

25 Th e Human Rights Committee recognizes a similar hierarchy between general human rights and special minority rights in its General Comment 23 on Art. 27, para. 8. See also Gaetano Pentassuglia, Minorities in International Law: An Introductory Study (Council of Europe Publishing, Strasbourg, 2002), 108-109.

26 Hannikainen, op.cit. note 13, 520.27 In terms of Art. 5 states undertake to promote the conditions necessary for persons

belonging to national minorities [] to preserve the essential elements of their identity, namely their religion [] traditions and cultural heritage.

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ward. Obviously a judgment against a state has implications for all its residents, as in the event of a violation the state concerned will make the necessary changes to legislation, policy and practice. Furthermore, the Courts judgments will also resonate in other states parties to the Convention since it refl ects the highest interpretation of the Convention. On the other hand, while the judgments are legally binding, there remains concern about their actual implementation. Furthermore, the Court is careful not to be too radical, notwithstanding its autonomous and evolving interpretation of the Convention.28

Th is is evidenced by the fact that the Court grants a wide margin of apprecia-tion to states in the absence of a common European consensus, which tends to occur in relation to controversial issues. Th e granting of a margin of appreciation to states by an international supervisory body is justifi ed at least to some extent by considera-tions of subsidiarity.29 Nevertheless, there are cogent arguments which suggest that the emphasis should be on supervision by the ECtHR, with the margin of appre-ciation (and judicial self restraint) constituting the exception and meriting narrow construction.30 In any event, however extensive the states margin of appreciation, the international control exercised should still be meaningful.31 In this respect, it has been persuasively argued that from the point of view of human rights protection it is exactly in circumstances where there is no consensus that the international supervisory mech-anism should give direction and oblige dissenters to follow suit.

In terms of non-minority-specifi c rights, other supervisory practice by independ-ent experts32 can also be relied upon. Especially where this practice is not restricted by the nature and number of complaints submitted, it has the potential to cover (broader)

28 Alastair Mowbray, Th e Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart, Oxford, 2004). See also Kristin Henrard, Mensenrechten van uit Internationaal en Nationaal Perspectief (BJU, Th e Hague, 2008), 161-163.

29 See inter alia Yutaka Arai-Takahashi, Th e Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the European Court of Human Rights (Intersentia, Antwerp, 2002), 3; Eyal Benvenisti, Margin of Appreciation, Consensus, and Univer-sal Standards, 31(4) New York University Journal of International Law and Politics (1999), 843-854, at 846; Janneke H. Gerards, Kroniek oordelen Commissie gelijke behandeling 2000-2003, Multiculturaliteit en botsing van grondrechten, NJCM-Bulletin (2004), 166; Van de Lanotte and Haeck (eds.), op.cit. note 21, 205.

30 James A. Sweeney, Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post Cold War Era, 54(2) International and Comparative Law Quarterly (2005), 459-474, at 474.

31 Th is limited role for subsidiarity is arguably also supported by Greer when he consid-ers subsidiarity as an interpretative device subordinate to the principle that fundamental rights should be eff ectively protected: Steven Greer, Th e European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, Cambridge, 2006), 213. See also ibid., 225.

32 Indeed members of ECRI and UN special rapporteurs are meant to be independent. Sim-ilarly, the Toledo Guiding Principles were developed by the Advisory Council of Experts on Freedom of Religion and Educational Experts, op.cit. note 5.

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Kristin Henrard

issues that are considered relevant and important. Th e question is then always to what extent these documents and their implementation is minority-conscious.

Th e supervisory practice of the FCNM is confi ned to a review of periodic state reports. Th is has the advantage of theoretically addressing implementation of all articles. However, the absence of individual complaints has the drawback, or at least the risk, that particular issues of concern will be disregarded in the review process. Nevertheless, in addition to state reports, this supervisory practice also takes into account other sources of information, including shadow reports of non-governmental organizations (NGOs) as well as data emerging from the country visits undertaken by the Advisory Committee of independent experts (AC) itself. Th e latter seem to ensure that problems experienced by persons belonging to minorities are communicated to the supervisors.33

Th e review process of the FCNM leads to a non-binding opinion of the AC, which forms the basis of a non-binding recommendation by the Committee of Ministers. Fortunately, and notwithstanding the political motivations of members of the Committee of Ministers, the opinions of the AC have been confi rmed in these recommendations (in summary form) from the beginning. In other words the often rather daring positions of the experts are decisive to the outcome of the supervisory process. Still, the non-binding nature of the mechanism is constraining as the rec-ommendations need to be persuasive to the governments concerned, and are usually negotiated through so-called constructive dialogue.

V. Thematic Analysis and ComparisonAt fi rst sight the ECHR and the jurisprudence of its Court seem to provide robust protection for the freedom of religion, especially in relation to accommodation of reli-gious diversity.34 Th e ECtHR tends to underscore that freedom of thought, conscience and religion is one of the foundations of a democratic society and that the pluralism inherent in a democratic society depends on it.35 Since the ECHR is formulated in terms of rights for everyone, by defi nition it includes non-nationals, as well as immi-grants.

Th ere is even a steady line of jurisprudence that states have a positive duty to ensure religious pluralism36. Th us, a confl ict between religions should not be solved by removing one of the confl icting parties but rather by promoting mutual understanding

33 In this respect one would have expected more issues concerning head scarves to feature in the opinions of the Advisory Committee. So far there is only one, and even then in rela-tion to one of the most accommodating countries in this respect the UK.

34 Machnyikova, Article 7, op.cit. note 14, 179.35 ECtHR, Appl. 14307/88, Kokkinakis v. Greece, 25 May 1993; and EctHR, Appl. 12875/87,

Hoff mann v. Austria, 23 June 1993. See also ECtHR, Appl. 24645/94 Buscarini and others v. San Marino, 18 February 1999, and ECtHR, Appl. 18748/91, Manoussakis v. Greece, 26 September 1996. See also the discussion in Henrard, op.cit. note 7, 110-114.

36 Th is is in line with the position of the HRC that morals should be defi ned from several religious traditions standpoint: General Comment no 22, para. 8.

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and tolerance.37 Th e Court has not shied away from identifying an obligation on the part of states to take measures to reduce religious tensions and improve interreligious relations. 38

Th e foundations on which the Court operates seem to bode well for the protec-tion of religious freedom in relation to religious minorities.39 However, closer scrutiny of the jurisprudence of the Court reveals sub-optimal accommodation of religious diversity and (potential) protection of religious minorities. In this respect, it is impor-tant to examine how the supervisory mechanism of the FCNM interprets and applies articles 7 and 8 FCNM as well as articles 4 (equality), 5 (identity), 6 (tolerance and understanding) and 12 (education).

A. Non-Discrimination on the Basis of Religion and StateChurch Relations

It should be recalled that the prohibition of discrimination40 enshrined in ECHR Article 14 concerns accessory protection, implying that all Convention rights, including free-dom of religion in Article 9, are supported by a guarantee of non-discrimination. Overall the Court is rather hesitant to fi nd a violation of Article 14, and accords states a broad margin of appreciation when evaluating whether or not diff erential treat-ment is reasonably and objectively justifi ed.41 Marginal scrutiny of alleged instances of discrimination is particularly problematic for persons belonging to minorities.42 Consequently, the development of heightened scrutiny for certain suspect grounds of diff erentiation is to be welcomed, especially as these concern typical minority charac-teristics, such as religion.43

37 ECtHR, Appl. 38178, Serif v. Greece, 14 December 1999, para. 53; ECtHR, Appl. 71156/01, 97 Members of the Gldani Congregation of Jehovahs Witnesses and 4 others v. Georgia, 3 May 2007, para. 132.

38 See also Evans, op.cit. note 24, 155.39 See inter alia ECtHR, Appl. 952/03, Biserica Adevarat Ortodoxa din Moldova and others v.

Moldova, 27 February 2007, para. 34. Th is is also buttressed by the several cases against Greece which often pertained to Jehovahs Witnesses or other religious minorities: see infra.

40 For a remark and brief assessment of the Courts jurisprudence on indirect discrimination, see infra under IV.F.

41 See also Alexander E. Morawa , Th e Evolving Right to Equality, 1 European Yearbook of Minority Issues (2001), 168-171; Dajo de Prins, Stefan Sottiaux and Jogchum Vrielink, Handboek Discriminatierecht (Intersentia, Antwerp, 2005), 23-25.

42 Olivier de Schutter, Observations: Le Droit au Mode de Vie Tsigane devant la Cour Europenne des Droits de lHomme, 29 Revue Trimestrielle des Droits de l Homme (1997), 47-93, at 89-90. See also Marc-Andr Eissen, Le Principe de Proportionalit dans la Jurisprudence de la Cour Europenne des Droits de lHomme, in Luis Pettiti et al. (eds.), La Convention Europenne des Droits de l Homme: Commentaire Article para Article (Bruy-lant, Brusssels, 1995), 80.

43 Aalt Willem Heringa, Standards of Review for Discrimination: Th e Scope of Review by the Courts, in Titia Loenen and Peter R. Rodriguez (eds.), Non-Discrimination Law:

16

Kristin Henrard

While the Court seemed to accept religion as triggering heightened scrutiny in the 1993 Hoff mann v. Austria case44, this was not explicitly confi rmed since, even in cases in which discrimination on the basis of religion is a key component.45 Th ere are actually several cases in which the Court grants states a wide margin of appreciation in relation to diff erentiation in terms of religion,46 which are de facto diffi cult to reconcile (as regards their practical outcome) with the state duty towards religious pluralism.47 Striking examples can be found in the educational sphere, and more generally in the line of jurisprudence which grants states wide discretion when determining the appro-priate relationship between church and state under Article 9.

Interferences with the freedom of religion are in principle strictly scrutinized,48 However, as soon as churchstate relations are (perceived to be) in play, the Court grants states a wide margin of appreciation due to the lack of a common European standard in this regard.49

Overall, the jurisprudence relating freedom of religion in itself and to the pro-hibition of discrimination is arguably burdened by ambivalence and a high degree of indeterminacy resulting from seemingly contradictory positions. In terms of Article 9 the Court identifi es a duty of state neutrality towards the various religions in its territory but does not prohibit state churches as such, which is hardly suggestive of a

Comparative Perspectives (Nijhoff , Th e Hague, 1999), 29-31. However, see infra for other formulations that also express or point to heightened scrutiny.

44 ECtHR, Appl. 12875/87, Hoff mann v. Austria, 23 June 1993, para. 36, by indicating that a distinction based essentially on a diff erence in religion is not acceptable.

45 de Prins, Sottiaux and Vrielink, op.cit. note 41, 30-31. Th ere was not even a hint at this special status of religion as grounds of diff erentiation in the more recent Gldani case where discriminatory aspects were key. Op.cit. note 38.

46 Samantha Knights, Freedom of Religion, Minorities and the Law (OUP, Oxford, 2007), 63.47 It needs to be acknowledged that state obligations are not easily divided into two camps,

but run gradually along a continuum. Nevertheless, in relation to the Courts scrutiny of limitations to the exercise of human rights, it can be noted that states tend to be accorded a wide margin of appreciation in relation to questions of general policy with substantial fi nancial repercussions.

48 See supra, the discussion of ECtHR, Appl. 952/03, Biserica Adevarat Ortodoxa din Moldova, 27 February 2007. See also ECtHR, Appl. 184/02, Kuznetsov and others v. Russia, 11 January 2007 concerning the disturbance by police authorities of a meeting of a religious community without basis in national law and obviously breaking the state offi cials duty to be neutral and impartial.

49 ECtHR, Appl. 27417/95, Chaare Shalom ve Tsedek v. France, 27 June 2000, para. 84; ECtHR, Manoussakis, op.cit. note 35, para. 44. See also Niraj Nathwani, Islamic Head-scarves and Human Rights: A Critical Analysis of the Relevant Case Law of the ECHR, 25(2) Netherlands Quarterly of Human Rights (2007), 221-254, at 234. It should be noted that the tendency to grant states a very wide margin of appreciation to decide on par-ticular churchstate relations is widespread. It is indeed also visible in Declaration no. 11 annexed to Treaty of Amsterdam which states that the EU respects and does not preju-dice the status under national law of churches and religious associations or communities in Member States.

17


neutral approach.50 Th is also translates into de facto lenient scrutiny of diff erentiations between religions in so far as this would be linked to (decisions about) churchstate relations. Th e Court does underscore that there are limits to which a state can promote one particular religion. However, it does not provide clear guidance on where that line is drawn, on how much support a state can give to a particular religion without it resulting in inappropriate pressure on others to join that religion, or on what con-stitutes an in appropriate disadvantage for non-adherents.51 Th e bottom line seems to be the rather vague criteria that the freedom to manifest ones religion should be enjoyed by adherents to all religions present in the state52 or the necessary guarantees should be in place to ensure that the freedom of others to have or change a religion is respected.53 Th e wide margin of appreciation granted to states in this respect ulti-mately leads to a low level of protection for religious minorities.54

Th e lack of meaningful Article 14 jurisprudence is arguably also related to the practice of the Court to consider it unnecessary to assess a discrimination complaint where it has found a violation of the substantive right.55 While the Court initially added the proviso that this would be diff erent if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case,56 this was absent from later cases. Unfortunately, the Court does seem to abdicate an assessment in terms of Article 14 even where a diff erential treatment is a key element of the case,

50 To the extent that states gives greater weight to a particular religion (calling it a state religion, the traditional religion of state etc.), this is bound to have repercussions for other religions. Th e dominant religion will of course be promoted as the religion that is con-sidered part and parcel of society. In this respect, see inter alia the Inan judgment by the Hoge Raad of the Netherlands in relation to religious days with the status of offi cial holiday.

Th e fact that there seems to be a decline in state churches and systems based on a constitu-tionally dominant religion arguably confi rms that they are not appropriate for religiously diverse societies. For a more detailed analysis of this decline see Silvio Ferrari, State Regulation of Religion in the European Democracies: Th e Decline of Old Patterns, in Gabriel Motzkin and Yochi Fischer (eds.), Religion and Democracy in Contemporary Europe (Alliance Publishing Trust, London, 2008), 107-108.

51 Evans, op.cit. note 24, 81. See also Krishnaswami, op.cit. note 24, 46-47.52 ECtHR, Appl. 11581/85, Darby v. Sweden, 23 October 1990, para. 45. See also ECtHR,

Appl.14307/88, Kokkinakis v. Greece, 25 May 1993. paras. 46-50; ECtHR, Massounakis v. Greece, para. 36.

It cannot be denied that having a state church carries risks for minorities and religious freedom in general.

53 Evans, op.cit. note 24, 50.54 Generally the ECtHR grants states a broad margin of appreciation, especially where

churchstate relations are concerned: Evans, op.cit. note 24, 43 and Knights, op.cit. note 46, 55 (because of the lack of a common European standard) but also where it concerns neutral laws that incidentally restrict the freedom to exercise ones religion.

55 See also Knights, op.cit. note 46, 56.56 ECtHR, Appl. 6289/73, Airey v. Ireland, 9 October 1979, Series A no. 32, 16.

18

Kristin Henrard

as is often the case when religious minorities are implicated.57 In this way another important avenue for an enhanced protection of religious minorities can be seen to have been disregarded.58

Within the law and theory pertaining to the equality principle, the duty of rea-sonable accommodation is gradually but surely taking shape.59 Th e underlying ratio for duties relating to reasonable accommodation is closely connected to the goal of real, substantive equality, including equal opportunities60 for persons belonging to particular groups that are unable to enjoy true equal and eff ective access to a particular service, to eff ectively take up a particular function, and more generally to participate fully in society.61

57 See inter alia ECtHR, Appl. 2512/04, Nolan and K v Russia, 12 February 2009, where a missionary of the Unifi cation Church was prevented from returning to Russia because his activities would have been contrary to national security. While the Court accepted that Russia was de facto preventing him from returning in order to stifl e the spreading of the teaching of the Unifi cation Church (para. 66), and that the Russian concept of national security in particular opposed the negative infl uence of foreign religious missionaries (para. 65), it did not consider it necessary to consider the complaints under Art. 14 (para. 79).

Th is is also clearly visible in two recent cases: ECtHR, Appl. 76836/01, Kimlya and others v. Russia, 1 October 2009, about the problem that only religious groups that had existed for 15 years in Russia could be accorded legal status (violation of Art. 9 in light of Art. 11); and ECtHR, Appl. 30814/06, Lautsi v. Italy, 3 November 2009, concerning the lack of respect of the religious and philosophical convictions of the parents in the education sphere (violation of Art. 2 prot. 1 read in conjunction with Art. 9).

58 Henrard, op.cit. note 7, 78.59 See the enumeration of countries and legislation in the UN Enable document on the

UN website. In some countries, like the US and Canada, this is actually long and well established, while in others, like South Africa, New Zealand and Israel, it is a relatively new phenomenon. Th e terminology used varies: reasonable accommodation, reasonable adjustments, adaptations or measures, eff ective or suitable modifi cations: see document of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabili-ties, Th e Concept of Reasonable Accommodation in Selected National Disability Legislation, A/AC.265.2006/CRP.1, 2005, 2.

60 Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination and Reason-able Accommodation, 46(1) Duke Law Journal (1996), 1-72, at 25; Lisa Waddington, Th e New Equality Directives: Missed Blessings, in Cathryn Costello and Ellis Barry (eds.), Equality in Diversity. Th e New Equality Directives (Irish Centre for European Law, Dublin, 2004), 46.

61 David L. Hosking, Great Expectations: Protection from Discrimination because of Dis-ability in Community Law, 31 European Law Review (2006), 667-689, at 682. See also Jenny Goldschmidt, Reasonable Accommodation in EU Equality Law in a Broader Per-spective?, ERA Forum, 2007, 45.

It should be noted that the UN Convention on the Rights of People with Disabilities clearly shows that their rights are now conceived from the perspective of full participa-tion in society, equal to people without a handicap. It is thus clearly aimed at substantive equality, the equal enjoyment of fundamental rights (Art. 2).

19


Th e concept of reasonable accommodation has yet to be fully and explicitly recog-nized in relation to all grounds of diff erentiation.62 In most jurisdictions it focuses on measures for disabled persons. However, its origins lay in the US and Canada where it was conceptualized63 in reaction to increased religious diversity due to immigration fl ows.64 In current norms and practice about reasonable accommodation duties, dis-ability and religion feature most prominently.65

At the level of the ECHR the concept reasonable accommodation has yet to feature explicitly in Article 14 jurisprudence. However, duties of reasonable accom-modation are intrinsically related to the more general duty to diff erential treatment of persons in signifi cantly diff erent situations,66 recognized in the Courts seminal case Th limmenos v. Greece of 6 April 2000.67

In Th limmenos, the Court agreed that a person convicted of conscientious objec-tion, exercising their freedom to manifest their religion, could not be treated in the same way as someone who had committed a crime unrelated to the exercise of funda-mental rights. However, to the extent that the Court has used the Th limmenos rational in other minorities cases, the results have been rather modest.68 Th e main achievement

62 Th e exception being Canada, where in the follow-up to the generous interpretation in the O Malley v. Simpsons Sears case of 1985, Section 15 of the Canadian Charter of Rights and Freedoms was interpreted as including duties of reasonable accommodation in relation to all 14 of the enumerated and analogous grounds of prohibited diff erentiation: Pierre Bosset, Refl ections on the Scope and Limits of the Duty of Reasonable Accommodation in the Field of Religion, Commission des droits de la personne et des droits de la jeunesse 2005, 2. See also Employment Equity Act para. 5(b).

63 See also Lisa Waddington and Marc Bell, More Equal than Others: Distinguishing Euro-pean Union Equality Directives, 38 Common Market Law Review (2001), 587-611, at 597.

64 See also Jeff Cromwell, Cultural Discrimination: Th e Reasonable Accommodation of Religion in the Workplace, 10(2) Employee Responsibilities and Rights Journal (1997), 155-172, at 156-159. In Canada the reasonable accommodation jurisprudence is still mainly concerned with religion: see inter alia Autobus Legault v. Commission des droits de la per-sonne et des droits de la jeunesse [1998] RJQ 3022 (CA).

65 See also the UN Enable document which shows that, for example, in New Zealand duties of reasonable accommodation exist in relation to both handicap and religion.

66 Furthermore, there is a close parallel to indirect discrimination and positive action: Kris-tin Henrard, Equal Rights versus Special Rights: Minority Protection and the Prohibition of Discrimination, EC 2007, 25-31.

67 ECtHR, Appl. 34369/97, Th limmenos v. Greece, 6 June 2000, para. 44: Th e Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat diff erently persons in analogous situations without providing an objective and reason-able justifi cation [] However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. Th e right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justifi cation fail to treat diff erently persons whose situations are signifi cantly diff erent. Emphasis added.

68 See also Lauren Baillie, Protection of Religious Minorities in Europe: Th e Council of Europes Successes and Failures, 23(3) American University International Law Review (2008), 617-645, at 620.

20

Kristin Henrard

to date is the recognition of the special duties of state authorities to take all reason-able steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events.69 However, in its judgment in the 97 members of the Gldani Congregation of Jehovah Witnesses and 4 others v. Georgia case, the Court missed the opportunity to extend this line of jurisprudence to instances of violence inspired by religious discrimination.70

In terms of minority neutral documents ECRI Recommendation 5 also deserves special attention here. It focuses explicitly on combating discrimination and intol-erance against a particular religious minority in European countries: Muslims.71 Interestingly, the recommendation links the state duty of ensuring freedom of reli-gious practice to (de facto) duties of reasonable accommodation towards all religious faiths in their territory. Specifi c examples concern being entitled to erect and maintain adequate places of worship, and the absence of obstacles to particular funeral rites. Th ere is even a call to public institutions to be aware of the need to make provisions in everyday life for legitimate requirements arising from the multi-faith nature of society. While this is not translated into more concrete measures (e.g. in terms of catering for dietary requirements, religious worship and religious holidays), it undoubtedly quali-fi es as a duty of reasonable accommodation.

When one evaluates this theme in the context of minority-specifi c instruments, it should be noted that in the case of the FCNM there is no outspoken criticism either of systems with state religions or traditional religions of state in terms of Article 8 (freedom of religion) or Article 4 (equality). It is noted in Article 4 that such systems might be problematic in terms of the prohibition of discrimination on the basis of reli-gion and/or that this does not accommodate religious diversity (not complying with the duty of state neutrality) in terms of Article 8.

Sometimes, the AC seems to follow the ECtHRs approach when it shifts the focus of its assessment of state(-like) churches to whether or not the freedom of reli-gion is respected. However, that freedom is then understood as not having intrinsic requirements of neutrality and related duties of treating diff erent religions similarly. A good example is its opinion on Croatia, where it stipulated that diff erential treatment is acceptable as long as special attention is paid to ensuring that religious minorities can exercise their religious rights.72

Other opinions acknowledge that a state church system amounts to diff erential treatment that might be problematic in terms of Article 4, or Article 4 and Article 8. For example the AC highlights a potential problem in the case of Norway, where

69 While this principle was fi rst articulated in ECtHR, Appl. 43577/98, Nachova v. Bulgaria, 26 February 2004, para. 158, it has been confi rmed many times since: inter alia ECtHR, Appl. 15250/02, Bekos and Koutropoulos v Greece, 13 December 2005, para. 73; ECtHR, Appl. 46317/99, Ognyanova and Choban v. Bulgaria, 23 February 2006, para. 148.

70 Op.cit. note 38.71 CRI (2000) 21, ECRI General Policy Recommendation No. 5: Combating Intolerance

and Discrimination against Muslims.72 Advisory Committee, First Opinion on Croatia, 5 April 2006, ACFC/INF/

OP/I(2002)003, para. 38; Advisory Committee, First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001, paras. 90-93.

21


the state church system gives a number of benefi ts to just one particular religion.73 Similarly, it urges the Russian Federation to be careful to respect the principle of equality when it acknowledges the special contribution of a particular religion to the historical heritage of the country.74 Unfortunately there are no further assessments of this potential problem.

However, practice does seem to indicate that particular kinds of preferential treatment for dominant (state) religions/churches are not acceptable at all. For exam-ple in Eastern European countries the AC fi nds it problematic that the restitution of church properties confi scated during the communist regime is said to be easier for the dominant (state) church in comparison to other churches.75

Some of the AC opinions actually appear to indicate that for a state church system (or a traditional religion of the state) to be acceptable it is vital that there is not a single (legal) advantage for that religion. Even where that requirement is satisfi ed, special care should be taken by the government to secure the rights of religious minorities, possibly by drafting a new law on religious denominations.76

Hence, there does not appear to be a consistent approach to the question of churchstate relations and how these should be evaluated (in terms of arts. 4 and/or 8).77 Th e AC does appear willing to explicitly identify a possible problem in terms of the prohibition of discrimination,78 and sometimes even hints at rather strict scrutiny.

73 Advisory Committee, First Opinion on Norway, 12 September 2002, ACFC/INF/OP/I(2003)003, para. 39:

74 Advisory Committee, Second Opinion on the Russian Federation, 11 May 2006, ACFC/OP/II(2006)004, paras. 165-167.

75 Advisory Committee, First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001, para. 96.

76 Advisory Committee, First Opinion on Bulgaria, ACFC/OP/I(2006)001, para. 65.77 Th is question of acceptable statechurch relations also has repercussions in relation to

other articles. Th e AC seems to take more outspoken positions there. For example, it clarifi ed that a duty to register the name of ones children with the state church, a matter under Art. 1(1), might raise problems of conscience with religious minorities. Th e AC arguably considers such regulation a serious threat to these minorities and suggests (in its typical non-obligatory language) that a change of law is realized to allow persons to register the names of their children with public authorities instead of the state church (Advisory Committee, First Opinion on Denmark, 22 September 2000, ACFC/INF/OP/I(2001)005, para. 32).

78 Note that in its opinion in Finland it criticizes the discriminatory system of funding (which only happens automatically for the two dominant churches concerned). While in the fi rst round the AC merely noted that diff erential funding merits review (22 Septem-ber 2000, ACFC/INF/OP/I(2001)002, para. 29), in the second round it concluded that the (ongoing diff erential funding) does not fully accommodate the current situation as regards religious diversity (20 April 2006, ACFC/OP/II(2006)003, para. 91).

Similarly In relation to Denmark, the Church of Denmark, as the state church, is not criticized, but the fact that this is the only religion in Denmark receiving state support is said to raise questions about the compatibility with the equality principle (22 Septem-ber 2000, ACFC/INF/OP/I(2001)005, para. 29 and ACFC/INF/OP/II(2004)005, para. 110).

22

Kristin Henrard

However, in the end, it fails to provide further (clear) criteria for evaluation (which could potentially identify a prohibited discrimination on the basis of religion).

Practice relating to the prohibition of discrimination on the basis of religion does warrant further comment. For example, the AC deems it important that a legislative framework is in place which guards explicitly against religious discrimination.79

Although the supervisory practice of the FCNM does not articulate duties of rea-sonable accommodation as a dimension of the equality principle, it does identify posi-tive obligations on states in relation to minorities and minority protection. In other words, in terms of all substantive articles, the AC de facto identifi es what can be quali-fi ed as duties of reasonable accommodation (this will be clarifi ed infra).

Th ere is an interesting discrimination point addressed under Article 8, concern-ing the fact that the UK blasphemy laws only protect Christian faiths. While the European Court of Human Rights, in its judgment in Wingrove v. UK of 25 November 1996, chose not to assess the discriminatory nature of the UK legislation,80 the AC provided additional protection to religious minorities by addressing the issue of ille-gitimate diff erentiation between religions directly.

Actually, this example demonstrates both a pro and con of the Advisory Committee. On the one hand, the mechanism tends to give broader attention (and be more sensitive to) minority-specifi c issues. However, on the other hand, the limits of this non-legally binding supervisory mechanism were clearly demonstrated by the rather stubborn position of the UK, which indicated in response to the fi rst round of criticism that it would keep its options on blasphemy under review but had no current plans to change the law. However, the AC maintained its position in the second opin-ion, and even appeared more insistent when it stipulated that the government should remedy the situation as a matter of priority so as to provide full and eff ective equality and guarantees.81

B. Defi nitions of Religion and the Scope of Application of the Freedom of Religion

In principle, the European Court of Human Rights adopts a broad defi nition of reli-gion, which is not limited to traditional beliefs.82 However it does impose a require-ment that seems reasonable at fi rst sight, but which raises considerable uncertainty in its application. Th e Court requires a certain level of cogency, seriousness and cohesion in order to qualify as a religion or belief.83 Th e problem is that it is unclear what evi-

79 Advisory Committee, First Opinion on the United Kingdom, ACFC/INF/OP/I(2002)006, paras. 57-58.

80 ECtHR, Appl. 17419/90, Wingrove v. UK, 25 November 1996, para. 57.81 Advisory Committee, Second Opinion on the United Kingdom, 26 October 2007,

ACFC/OP/II(2007)003, paras. 152-154.82 Various non-traditional religions were accepted as religions: druidism (Appl. 10461/83,

Chappell v. UK, 30 March 1988), divine light zentrum (Omakarande and Divine Light Zen-trum v. Switzerland, 1981), Church of Scientology (X and Church of Scientology v. Sweden, DR 16, 68) and so on. See also Hanson, op.cit. note 15, 803.

83 ECtHR, Appl. 7511/76; 7743/76, Campbell and Cosans v. UK, 22 March 1983, para. 36.

23


dence is required to establish a belief, and from whose perspective this is to be judged.84 Th is uncertainty is particularly problematic for adherents of lesser known religions, and where there is a lack of a common European standard the Court tends to defer to decisions of domestic courts and national authorities.85

In relation to the duty to divulge ones religious conviction, the Court has for a long time not taken an explicit position. However, in its Grand Chamber judgment in the Folgero case pertaining to religion in education, the Court held that such a duty could be incompatible with the requirements of the ECHR.86 It is noticeable that the Court was once again hesitant to take an outright position on this issue. In view of the vulnerable position of religious minorities, it would have been preferable for the Court to adopt the position of the Human Rights Committee (HRC), namely the freedom of religion and the right to privacy taken together imply a right to religious privacy which would be violated in the event of pressure to divulge religious conviction.87

According to the AC, states should take care that any defi nitions they adopt con-cerning religion do not lead to unjustifi ed distinctions.88 Arguably this entails a call for an inclusive approach. Th is is confi rmed by the Committees practice of underscoring the importance of the protection of religious communities, particularly when they belong to non-traditional religions.89 Th e Committee also considers it an important element of the protection of the freedom of religion of persons belonging to minorities that they should not be obliged to divulge their religious convictions to the authori-ties.90

Th is unequivocal protection of non-traditional religions, including in practice, arguably constitutes an advance on the position of the European Court of Human Rights.

84 Knights, op.cit. note 46, 41.85 Ibid., 42. See also Danchin and Forman who claim that the case law of the ECtHR

reveals a bias toward protecting traditional and established religions and a corresponding failure to protect the rights of minority, nontraditional or unpopular religious groups: Peter G. Danchin and Lisa Forman, Th e Evolving Jurisprudence of the European Court of Human Rights and the Protection of Religious Minorities, in Peter G. Danchin and Elizabeth A. Cole (eds.), Protecting the Human Rights of Religious Minorities in Eastern Europe (Columbia University Press, New York, 2002), 204.

86 ECtHR, Appl. 15472/02, Folgero a.a. v. Norway, 29 June 2007, paras. 75-76 and 98.87 Human Rights Committee, General Comment No. 22, para. 3.88 Advisory Committee, Second Opinion on Albania, 29 May 2008, ACFC/OP/

II(2008)003, para. 125.89 Advisory Committee, Second Opinion on Azerbaijan, 9 November 2007, ACFC/OP/

II(2007)007, para. 99 concerning conversion and wanting to change the name.90 Advisory Committee, Second Opinion on Cyprus, 7 June 2006, ACFC/OP/II(2007)004,

para. 30.

24

Kristin Henrard

C. Th e Protection of Religious Minorities in Relation to Various Manifestations of their Religion

Th e case law reveals that the ECtHR is overall rather demanding and strict in its assessment of the negative obligations of non-interference, especially with common manifestations of religion. Th is is nicely exemplifi ed by the recent judgment Kimlya and others v. Russia, in which the Court underscored that, at a minimum, states should not interfere with the establishment of places of worship, the creation of educational institutions, and the right to hold religious services in places accessible to the public.91 In view of the particular facts of the case, the Court also engaged with the issue of religious literature: Article 8 implied the right to make and distribute such literature.92

A general feature of the Courts jurisprudence on freedom of religion which is particularly positive for minorities and the accommodation of their special needs is the explicit protection of the group aspect of the freedom to manifest ones religion. As minority identity is inherently a group identity, the Courts protection of the com-munity aspect of manifestation as an essential dimension of that right93 is surely to be welcomed. A related point, which is important for the eff ective protection of the freedom of religion, is the fact that churches and other religious organizations are acknowledged to themselves have rights under Article 9.94 Th e disadvantaged, vulner-able position of persons belonging to minorities is to some extent countered when they are able to unite and bring action as a collectivity.

Th e Court has not shied away from concluding that the protection of the collec-tive manifestation may require that a particular religious community is granted legal personality, as this is an important precondition for many activities based on collective manifestation.95 In relation to registration procedures for religious bodies the Court is justly critical of procedures that are prone to abuse by authorities, which restrict the activities of religions96 other than the offi cial faith.97

91 See supra on ECRI Recommendation No. 5, which also appears to refer to this kind of state obligation.

92 ECtHR, Appl. 76836/01, 32782/03, Kimlya and others v. Russia, 1 October 2009, paras. 85-86.

93 ECommHR, Appl. 8160/78, X v. UK, DR 27 (1981), at 34; ECtHR, Appl. 30985/96, Hasan and Chaush v. Bulgaria, 26 October 2000, para. 62.

94 ECtHR, Appl. 25528/94, Canea Catholic Church v. Greece, 16 December 1997; ECtHR, Appl. 45701/99, Metropolitan Church of Bessarabia v. Moldova, 13 December 2001; ECtHR, Appl. 30985/96, Hasan and Chaush v. Bulgaria, 26 October 2000).

95 ECtHR, Appl. 45701/99, Metropolitan Church of Bessarabia and others v. Moldova, 13 December 2001, para. 118.

96 Th is can also be read in terms of eff ective protection, which is of particular importance to disadvantaged, vulnerable communities, like minorities. See also Tarlach McGonagle, Minority Rights and Freedom of Expression: A Dynamic Interface (Proefschrift University of Amsterdam, Amsterdam, 2008), 145.

97 See inter alia ECtHR, Appl. 30985/96, Hasan and Chaush v. Bulgaria, 26 October 2000, para. 77.

25


It was already pointed out that, for the protection of religious minorities, the Court has pursued several rather promising lines of jurisprudence concerning the need to protect and promote religious pluralism. Where states are required to protect and promote religious pluralism arguably this would also concern positive state obliga-tions, not only to ensure that religious communities in the territory respect and tol-erate one another, but also that the various religions are reasonably accommodated, potentially to the point of receiving (some) fi nancial support. However, in contrast to the practice of the AC, the Court has not yet identifi ed positive obligations with con-siderable fi nancial implications. Th is is due in part to the fact that the Court has not yet had the opportunity to deal with these more specifi c issues, and arguably in part to the extensive margin of appreciation granted to states by the Court when statechurch relations are in play.

Th e supervisory practice of the FCNM is generally outspoken about the various obligations of states, and especially so in the context of non-traditional religions.98 Th is encompasses duties of abstention, like abstention from imposing strict controls on importing of religious literature.99 Th e positive state obligations identifi ed are varied in nature and often rather specifi c, not only in terms of Article 8 but also articles 5 and 6.

Concerning Article 8, an important, almost preliminary, question for the exer-cise of the community (group) dimension of freedom of religion concerns unhindered registration100 of religious communities.101 Th e AC is very critical of problems of regis-tration experienced by minority religious institutions, especially where these hurdles appear to be arbitrary,102 and/or disproportionately aff ect new religious groups or par-ticular sub-streams within the same denomination.103

98 Advisory Committee, Second Opinion on Azerbaijan, 9 November 2007, ACFC/OP/II(2007)007, para. 95.

99 Ibid., para. 98.100 Problems with registration are especially problematic when that is the gateway to the

exercise of rights that are essential to the adequate manifestation of ones religion, like the possibility to establish churches: Advisory Committee, Second Opinion on the Former Yugoslav Republic of Macedonia, 23 February 2007, ACFC/OP/II(2007)002, paras. 102-103.

101 In the UN Minorities Declaration the focus is on the right to have ones own minority association (Art. 2(4)), rather than on registration issues. Th is is also not taken up in the Commentary to the Declaration (para. 51 focusing on the right to set up religious institu-tions). Nevertheless, having the right to establish these institutions is rather meaningless when lack of registration would deprive you of (several of the) essential means to enjoy this right with its inherent group dimension.

102 Advisory Committee, First Opinion on Estonia, 14 September 2001, ACFC/INF/OP/I(2002)005, para. 34; Advisory Committee, Second Opinion on Estonia, 24 Febru-ary 2005, ACFC/INF/OP/II(2005)001, para. 79; Advisory Committee, Second Opinion on Moldova, 9 December 2004, ACFC/INF/OP/II(2004)004, paras. 78-81.

103 Advisory Committee, Second Opinion on the Russian Federation, 11 May 2006, ACFC/OP/II(2006)004, paras. 170-173. See also Advisory Committee, First Opinion on the Former Yugoslav Republic of Macedonia, 27 May 2004, ACFC/INF/OP/I(2005)001, para. 60.

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Th e (remaining) supervisory practice under Article 8 often concerns duties of active protection and promotion. Th e AC takes up the jurisprudence of the European Court, and refi nes it further by incorporating dimensions of participatory rights that are central to the FCNM.104 Indeed, active duties of protection are identifi ed that include the obligation to protect against religious intolerance, and to take eff ective action to counter tensions between religious denominations.105 In addition states have an obligation to ensure and promote adequate dialogue, not only between minorities and public authorities, but also between religious communities.106

Regarding the former, the AC deems it important that no religious minority experiences diffi culties when establishing dialogue with the government.107 Dialogue between minorities and the authorities is of course intertwined with state obligations of consultation under Article 15. Indeed, the AC often points out that states need to involve minorities in decision-making when it concerns religious issues.108

Furthermore, the AC calls for various forms of accommodation of religious diversity, like the need to respect burial customs of particular religious communities,109 and to allow the construction of religiously specifi c cemeteries when that is considered important by the religious group concerned.110 Duties in relation to Article 8 would also have implications for the education system and, more particularly, for the place of religion and religious instruction.111

Several of these positive obligations actually have fi nancial implications. For example, states would need to provide adequate fi nancial support to preserve the reli-gious heritage of a country (in all its diversity)112 and more generally need to take all

104 Kristin Henrard, Participation, Representation and Autonomy in the Lund Recom-mendations and their Refl ections in the Supervision of the FCNM and several Human Rights Conventions, 12(2-3) International Journal on Minority and Group Rights (2005), 133-168, at 152-154.

105 Advisory Committee, First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001, paras. 94 and 183.

106 Advisory Committee, First Opinion on Montenegro, 28 February 2008, ACFC/OP/I(2008)001 para. 65; Advisory Committee, Second Opinion on Spain, 22 February 2007, ACFC/OP/II(2007)001, para. 111.

107 Advisory Committee, Second Opinion on the United Kingdom, 6 June 2007, ACFC/OP/II(2007)003, para. 253.

108 Advisory Committee, Second Opinion on Azerbaijan, 9 November 2007, ACFC/OP/II(2007)007; Advisory Committee, Second Opinion on Denmark, 9 December 2004, ACFC/INF/OP/II(2004)005, para. 156.

109 Advisory Committee, First Opinion on Montenegro, 28 February 2008, ACFC/OP/I(2008)001, para. 65-66.

110 Advisory Committee, Second Opinion on Moldova, 9 December 2004, ACFC/INF/OP/II(2004)004, para. 82.

111 See infra, e.g. Advisory Committee, Second Opinion on Denmark, 9 December 2004, ACFC/INF/OP/II(2004)005, para. 146.

112 Advisory Committee, First Opinion on Poland, 7 November 2003, ACFC/INF/OP/I(2004)005, para. 592.

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necessary steps to ensure the respect for and preservation of that religious heritage.113 At times the AC even recommends the increase of fi nancial support to foster and pre-serve the religious identity of minorities.114

With the accession of numerous Eastern European states, the FCNM supervi-sory system is also confronted by problems typical to countries in full transformation, having to remedy the consequences of civil strife and violent confl ict that resulted in the destruction of religious property as well as the injustices of the conquered commu-nist regime. Th e AC underscores not only the importance of reconstructing the reli-gious buildings destroyed in the war,115 but also the restitution of property confi scated under communism to religious communities.116

It is especially in terms of other, non-religious provisions of the FCNM that the greatest advances (compared with the ECtHR) can be found in the protection of reli-gious minorities, often in the form of far-reaching positive obligations with fi nancial implications.

Article 5 and its duty to protect and promote minority identity, including its religious dimension, has elicited the identifi cation of a duty to protect against attacks on religious property. According to the AC, it also gives rise to a duty to revitalize the religious heritage of particular minorities.117 Article 5 practice further strengthens the theme touched upon under Article 8: authorities should not only be sympathetic to the desire of religious communities to have their own cemeteries, but should provide the necessary fi nancial support.118 It is important to note that the AC extends protective coverage under (at least) Article 6 to non-nationals, arguably including immigrants, by urging states to protect foreigners against religious intolerance because of their adher-ence to an unusual religion.119

Most of the positive state obligations under Article 6 logically concern the improvement of religious dialogue and tolerance. Th is also entails the need for public

113 Advisory Committee, First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001, para. 97.

114 Advisory Committee, Second Opinion on Slovenia, 26 May 2005, ACFC/INF/OP/II(2005)005, para. 192; Advisory Committee, Second Opinion on Moldova, 9 December 2004, ACFC/INF/OP/II(2004)004, para. 50.

115 Advisory Committee, First Opinion on Bosnia and Herzegovina, 27 May 2004, ACFC/INF/OP/I(2005)003, paras. 74-75.

116 Advisory Committee, Second Opinion on Croatia, 1 October 2004, ACFC/INF/OP/II(2004)002, paras. 102-103; Advisory Committee, Second Opinion on Romania, 24 November 2005, ACFC/OP/II(2005)007, para. 75.

117 Advisory Committee, Second Opinion on Cyprus, 7 June 2006, ACFC/OP/II(2007)004, para. 73.

118 Advisory Committee, First Opinion on Poland, 7 November 2003, ACFC/INF/OP/I(2004)005, para. 44; Advisory Committee, First Opinion on the Czech Republic, 12 September 2002, ACFC/INF/OP/I(2002)002, para. 48.

119 Advisory Committee, First Opinion on Montenegro, 28 February 2008, ACFC/OP/I(2008)001, para. 48.

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authorities to emphasize the positive contribution of (immigrant) minorities.120 In view of the important role of the media in infl uencing public perceptions of minorities, and thus increasing levels of tolerance, the AC invites states to encourage the entry of persons belonging to religious minorities in the media.121

Th e FCNM is not the only minority-specifi c instrument in which far-reaching positive obligations are identifi ed for religious minorities. Indeed, the Commentary to the UN Declaration on Minorities also identifi es duties to respect and protect the reli-gious heritage of religious minorities (including buildings and sites such as churches, mosques, temples and synagogues).122

D. Th e Protection of Religious Minorities and Accommodation of Religious Diversity at Work

Th e jurisprudence of the ECtHR (taking up the jurisprudence of the now defunct European Commission on Human Rights123) has been reluctant to identify a state duty to accommodate religious diversity at work.124 In any event it has explicitly dealt with several of the issues concerned.

While the Court does not rely explicitly on its margin of appreciation doctrine in this respect, its reluctance might very well be explained by the lack of consensus among European states about the proper nature and extent of the necessary accom-modation of religious exercise in employment relations, especially in a military set-ting.125 Arguably, this reluctance is in line with (and confi rms) the Courts permissive approach to choices in churchstate relations (and the limits of its supervision there).

Th e Commission on Human Rights had a steady line of jurisprudence revealing that it was unwilling to provide protection for persons who were dismissed because they regularly came to work late or left early for religious reasons. While several cases concerned Jews or Muslims, they were not confi ned to those religions, and included

120 Advisory Committee, Second Opinion on Armenia, 12 May 2006, ACFC/OP/II(2006)005, para. 56; Advisory Committee, First Opinion on Bosnia and Herzegovina, 27 May 2004, para. 61; Advisory Committee, Second Opinion on Denmark, 9 December 2004, ACFC/INF/OP/II(2004)005, paras. 20, 84-85.

121 Advisory Committee, First Opinion on Denmark, 22 September 2000, ACFC/INF/OP/I(2001)005, para . 102.

122 UN Declaration on Minorities, para. 24, in relation to Art. 1 duty to protect existence of minorities.

123 See infra on the Kosteski judgment; ECtHR, Appl. 55170/00 Kosteski. v the Former Yugo-slav Republic of Macedonia, 13 April 2006.

124 Th is can be nicely contrasted with the older judgment of the European Court of Justice in Vivien Prais v. Council, 1976 ECR 1589 10, Case 234/82 concerning the complaint that the date for written tests of the competition to enter the service of the EU was set for a day when she could not take the tests because of religious reasons. Th e Court held that, inso-far as a candidate informs the appointing authority in good time about religious reasons which make particular dates impossible for him/her, this should be taken into account. While there would not be an absolute obligation to avoid such dates, it should in any event be endeavored (paras. 16-18).

125 Renta Uitz, Freedom of Religion (Council of Europe Publishing, Strasbourg, 2007), 138.

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also the Seventh Day Adventist Church or mainstream Christians.126 According to the Commission a refusal to respect working hours, even if it is motivated by religious conviction, cannot be protected by Article 9(1). Th e dismissal would thus not be due to the religious convictions themselves but to the refusal to respect working hours.127 By this logic, the Commission arguably strengthens the dominant norm and does not even invite contracting states to adopt a more pluralistic approach. Furthermore, it can be argued that by denying that a particular act is a manifestation of religion, the Commission (and later also the Court) substitutes its own assessment for that of adherents of the religion. Th is is diffi cult to reconcile with the essential object of Article 9, namely to protect individuals most private convictions.128

Alternatively, the Commission holds that dismissal as a consequence of absentee-ism resulting from religious observance does not amount to interference because the person concerned accepted the position in full knowledge that the working schedule would be incompatible with particular religious observance.129

Th e Commission also considered manifestly ill-founded the complaint under Article 14 that a country that adopts the Sabbath day of a particular religion as the offi -cial Sabbath day disadvantages adherers to other religions. Instead of focusing on the relationship between the dominant and minority religions, the Commission totally bypassed the issue of indirect discrimination, and merely stated that national legisla-tion did not provide an absolute right for members of a religious community to have a particular day set aside as their holy day. Hence, [a]ssuming that the applicant could be considered to be in a situation comparable to that of members of other religious communities, the Commission therefore fi nds that he has not been treated diff er-ently in comparison with such members. In this way, the Commission ignored the diff erential treatment resulting from the apparently neutral rule of having one weekly day of rest for all, irrespective of religious persuasion and hence not accommodating religious commitments to the Sabbath. Arguably this was another manifestation of the limited protection against discrimination on religious grounds whenever churchstate relations are concerned.

126 ECommHR, Konttinen v. Finland, Appl. 24949/94 (1996) 87 D&R 68, concerned a man working at the state railways who joined the Seventh Day Adventist Church. Th at religion has Sabbath duty from sunset on Friday to Saturday. Th is meant that on a few Fridays in winter he had to leave work early. His dismissal for these unauthorized absences did not even raise issues under Art. 9(1), as these absences were not accepted as manifestations of his religion.

In Stedman v. UK (1997) 23 EHRR CD 168, a private sector employer dismissed an employee who did not want to work on Sundays. Th e Commission relied on its Kontinnen reasoning and concluded that a fortiori unauthorized absences from work for religions rea-sons are not protected in relations between private persons (there would not be a positive obligation for the state to ensure that private employers would accept this behavior from their employees).

127 Inter alia, ECommHR, Konttinen v. Finland, Appl. 24949/94 (1996) 87 D&R 68.128 Dissenting Opinion of judges Bratza, Fischbach, Th omassen, Tsatsa-Nikolovska, Pantiru,

Levits en Traja in Appl. 27417/95, Chaare Shalom Ve Tsedek v. France, 27 June 2000. See also Evans, op.cit. note 24, 120.

129 ECommHR, Ahmad v. UK, (1982) 4 EHRR 126.

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Th e Court confi rmed in Kosteski v. the Former Yugoslav Republic of Macedonia,130 that it, like the former European Commission, was not willing to establish an explicit duty of reasonable accommodation of religious diff erence which would require the state to take reasonable measures to ensure eff ective enjoyment of the freedom to manifest ones religion, also for members of religious minorities.131 Unfortunately, the Court was not called upon to investigate whether a lack of diff erential treatment (for someone who fi nds themselves in a substantively diff erent situation) amounted to a violation of Article 14 under the Th limmenos principle.

In the earlier case of Kala v. Turkey,132 the Court had already emphasized that in exercising the freedom to manifest ones religion, an individual may need to take account of their specifi c situation, especially if that involves a system of military disci-pline that was accepted at the point of choosing a military career. In casu the Court fol-lowed the arguments of the government that the Turkish Air Force employee had been dismissed because of alleged unlawful fundamentalist tendencies and not because of his religious convictions. Furthermore, the Court seemed to accept very vague accusa-tions, without reference to any particular activities that were problematic in terms of military discipline, in order to conclude to the absence of interference.133 In the absence of convincing arguments to buttress the allegations of problematic activities, it is dif-fi cult to ignore that the main problems of the Turkish authorities seemed to be the complainants adherence to the Suleyman (religious) community. Th e fact that, since then, similar complaints have been declared inadmissible because they are manifestly ill-founded does not augur well for adequate protection of religious minorities in the working environment.134

Notwithstanding the broad reach ratione materiae of the supervision by the Advisory Committee, its supervisory practice has not (yet?) clarifi ed what th

Minority Specific Rights_A Protection of Religious Minorities Going Beyond the Freedom of Religion

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