As we will see, in both cases, the effect of those lines of decision is the unequal treatment of people with religious convictions in comparison with people with non-religious convictions, and of religious minorities in comparison with religious majorities. The former occurs when the public space is designed in such a way that it fulfils completely the aspirations of atheists or agnostics, or simply of people that do not care much about the expression of their religious ideas, but does not correspond to the expectations of religious believers who remain actively engaged with their respective religions. The latter occurs because the laws considered ‘neutral’ usually conform—as does any law—to the ethical values that are dominant in a determined social environment at a certain moment. Neutral laws will rarely conflict with the morals or life practices of the major churches, but they can more often cause conflicts with minority religious groups that engage in conduct that is socially atypical. To hold that a neutral law must automatically prevail and that the state is under no obligation to justify denial of exemptions from the general application of the law as a measure ‘necessary in a democratic society’ would constitute, in practice, a risk for the rights of minorities, and generally for those whose conscientious beliefs are threatened. [...]
In any event, more than thirty years later, the ECtHR’s interpretation of Article 2 of the First Protocol was reaffirmed in the decisions Folgerø and Zengin. And, prior to them, in 1996, the twin decisions Efstratiou and Valsamis, dealing with a relatively similar problem, held on to the Court’s doctrine on the automatic subjection to neutral rules. These cases had their origin in the applications of two Greek secondary school students, both Jehovah’s Witnesses, who refused, for religious reasons, to participate in the school parades organized during the national festival to commemorate the outbreak of war between Greece and Fascist Italy in 1940. They argued that their conscience prohibited them from being present in a civic celebration in which a war was remembered and in which military and ecclesiastical authorities took part. The two students were denied permission to be absent from the parade, and their failure to attend was punished by one day’s suspension from school. The European Court decided the case in the light both of Article 9 of the Convention and of Article 2 of the First Protocol (as interpreted in Kjeldsen). The decision sustained the Greek government’s position, especially considering two facts. One was the moderate punishment imposed to the students, which could not amount to a deprivation of the right to education. The other was that the Court could ‘discern nothing, either in the purpose of the parade or in the arrangements for it, which could offend the applicants’ pacifist convictions’. The Court noted additionally—without any further comment—that the European Commission considered, in its report on the case, that ‘article 9 did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner and that, in the instant case, there had been no interference with the applicant’s right to freedom to manifest her religion or belief ’.
In my opinion, the Commission’s interpretation of Article 9 ECHR inverts the logical order of concepts in this matter. It is universally accepted that human rights must be construed broadly. Therefore, in order to understand the exact meaning of the freedom to manifest one’s religion or belief in practice, it seems that we should approach the question in the following sequence: (i) according to Article 9.1 ECHR, freedom to practice one’s religion or belief must be understood as protecting, in principle, every act of the individual when he obeys the dictates of his own conscience; but (ii) Article 9.2 ECHR—limitations on religious liberty—shall be utilized, when necessary, as a corrective element for a freedom that, by its own nature, tends to be exercised in an undefined and unpredictable way.
Thus, we manage to reconcile two paramount interests that are inclined to conflict with each other: the maximum degree of initial protection of the freedom of belief and the security that the legal order demands. Furthermore, we introduce an important assumption: the State has the burden of proof with regard to the necessity of a restrictive measure, ie, it must affirmatively prove that, in a particular case of conflict, it is ‘necessary in a democratic society’ to restrict the exercise of religious freedom. Following this approach would obstruct the development of policies that ignore the needs of religious freedom and are harmful not only to individuals but also to minority groups and, in general, to groups with distinctive beliefs.
In any event, it should be remarked that the Court neither subscribed to nor rejected explicitly the Commission’s interpretation of Article 9 ECHR in Efstratiou and Valsamis. The Commission’s view might be expressive of a certain state of mind in the Strasbourg jurisdiction, in a line of continuity with Kjeldsen. However, we might as well infer from other decisions that the Court is hesitating about which path it should follow beyond the strict borders of the educational environment. In this regard, we should remember that the Commission’s restrictive interpretation of freedom of conscience seems to contradict the Court’s own words in the Hasan and Chaush case: ‘[. . .] but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.’ And, certainly, behaviour in accordance with the dictates of one’s own conscience in daily life is an evident, and most important, expression of freedom of religion and belief.
There is another aspect in the ECtHR’s reasoning in Efstratiou and Valsamis that is problematic and not easy to reconcile with State neutrality in religious matters. When the Court examined the arguments of the applicants, it declared that the parades that the Jehovah’s Witnesses morally disapproved of were merely civic acts without any particular political or ideological connotation and, consequently, they could not offend the pacifist convictions of the students. Thus, the Court, in effect, substituted its judgment for the conscience of the persons involved, defining what was ‘reasonable’ for them to believe with regard to their participation in a national commemorative ceremony. In my opinion, this is a gross mistake. In assessing claims arising from individual conscience, it is unacceptable for a secular court to determine which beliefs are ‘reasonable’ and which are not. Naturally, it is necessary to verify—as far as possible—that parties are sincere, that they are not deceitfully alleging moral convictions they do not actually or genuinely hold in order to avoid fulfilling a legal duty. But this does not mean that a secular court is competent to elucidate when the beliefs of a person are sufficiently consistent from an ‘objective’ point of view. Religious viewpoints do not need to meet a reasonableness threshold in order to qualify as a basis for asserting Article 9 rights. This is in contradiction with what the ECtHR affirmed, the very same year of Efstratiou and Valsamis, reflecting a deeply rooted notion of Western legal culture, about the incompetence of public authorities to pronounce on the truth or falsity of a religious dogma or a moral belief. In the above-mentioned decisions, the European Court did not seem to be fully aware of the fundamental philosophy underlying the protection of religious liberty. The reason why the freedom of each individual conscience must be respected is not that it is objectively correct. Freedom of conscience must be respected because it is considered a fundamental area of the individual’s autonomy in democratic societies and, consequently, nobody may interfere with the individual’s conscience as long as other prevailing juridical interests are not endangered. This applies also to those cases in which the moral position held by individuals is stricter than the official doctrine of the religion to which they belong. What freedom of religion or belief protects is, precisely, the right to choose the truth(s) in which one is willing to believe. Hence, Article 9.2 ECHR provides that the state may restrict the exercise of that freedom only when it is ‘necessary in a democratic society’.
In other words, States are not obliged to respect and protect religious freedom because they deem the convictions of their citizens to be correct, or even convenient. They are obliged to protect the freedom to believe and to act accordingly because this freedom constitutes an essential element of a democratic system. The protection of that freedom is a paramount public interest and not merely a private interest of individuals and groups. This is something that is easily understood with regard to other liberties—for instance, the freedom of expression or the freedom of association—but is sometimes inexplicably ignored when dealing with religious liberty.
* Javier Martínez-Torrón,
"The (Un)protection of Individual Religious Identity in the Strasbourg Case Law"
["Η (Μη) Προστασία της Ατομικής Θρησκευτικής Ταυτότητας στη Νομολογία του Στρασβούργου"],
Oxford Journal of Law and Religion, Oxford University Press, 2012, pp./σσ. 7, 11-14 (1–25).