ECHR: Article 9 Thought, conscience and religion

ECHR:‭ ‬freedom of thought conscience and religion Latest Update 14‭ ‬August‭ ‬2016 Author(s‭) Dr Andreas Yiannaros - University of Bedfordshire The right to freedom of thought,‭ ‬conscience and religion encompasses a wide range of religious and non-religious beliefs as well as philosophical and ethical convictions.‭ ‬The legal recognition of the right to freedom of thought,‭ ‬conscience and religion,‭ ‬which is protected under‭ ‬art.9‭ ‬of the European Convention of Human Rights‭ (‬ECHR‭) ‬is often met with scepticism by religious traditionalists,‭ ‬in fear that it can undermine the role of religion‭ ‬by recognising pluralism and equating religious with other beliefs.‭ ‬The more liberal have displayed similar doubts as to the implications of embracing religious freedom in secular European societies‭ (‬Heiner Bielefeldt,‭ "‬Freedom of religion or belief:‭ ‬Anachronistic in Europe‭?" ‬in Marie-Claire Foblets,‭ ‬K.‭ ‬Alidadi,‭ ‬J.‭ ‬S.‭ ‬Nielsen and Z.‭ ‬Yanasmayan‭ (‬eds‭)‬,‭ ‬Belief,‭ ‬Law and Politics:‭ ‬What future for a secular Europe‭? (‬Ashgate,‭ ‬2014‭)‬,‭ ‬p‭ ‬55‭)‬.‭ ‬The right to freedom of thought,‭ ‬conscience and religion is perhaps one of‭ ‬the most controversial rights in international human rights law and has divided scholars and practitioners alike for years.‭ ‬This article does not delve into the depths of scholarly debate on the controversial aspects of‭ ‬art.9‭ ‬ECHR,‭ ‬but it rather aims to outline the current position of the European Court of Human Rights,‭ ‬the Council of Europe's primary judicial organ,‭ ‬that has explored through its jurisprudence some of the most provocative social issues that relate to thought,‭ ‬conscience and religion. Overview of Topic The right to freedom of thought,‭ ‬conscience and religion is recognised and protected by the European Convention on Human Rights,‭ ‬under‭ ‬art.9‭ ‬ECHR,‭ ‬which provides that‭ "(‬1‭) ‬everyone has the right to freedom of thought,‭ ‬conscience and religion‭; ‬this right includes freedom to change his religion or belief and freedom,‭ ‬either alone or in community with others and in public or private,‭ ‬to manifest his religion or belief,‭ ‬in worship,‭ ‬teaching,‭ ‬practice and observance‭"‬.‭ ‬Although a positive right,‭ ‬art.9‭ ‬is not absolute,‭ ‬but subject to certain limitations.‭ ‬These can be found under‭ ‬art.9‭(‬2‭)‬,‭ ‬according to which‭ "(‬2‭) ‬freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety,‭ ‬for the protection of public order,‭ ‬health or morals,‭ ‬or for the protection of the rights and freedoms of others‭"‬.‭ ‬This means that any interference with an applicant's‭ ‬art.9‭ ‬rights must have a legal basis within domestic law‭ ("‬prescribed by law‭") ‬and must pursue a‭ "‬legitimate aim‭"‬,‭ ‬the aims being the protection of‭ "‬public safety,‭ ‬the protection of public order,‭ ‬health or morals and the protection of the rights and freedoms of others‭")‬. As noted above,‭ ‬art.9‭(‬2‭) ‬ECHR contains some important permissible limitations that may justify interference with an individual's right to manifest their beliefs.‭ ‬These are based on the distinction between‭ ‬two components:‭ ‬the‭ "‬forum internum‭" (‬internal freedom of thought,‭ ‬conscience and religion‭) ‬and the‭ "‬forum externum‭" (‬externally manifested freedom of thought,‭ ‬conscience and religion‭)‬.‭ ‬The term‭ "‬forum internum‭" ‬is used to denote the right to have a religion or belief as recognised in‭ ‬art.9‭(‬1‭)‬,‭ ‬whereas the term‭ "‬forum externum‭" ‬refers to the right to manifest a religion,‭ ‬as reflected in‭ ‬art.9‭(‬2‭) ‬ECHR.‭ In the European context,‭ ‬one of the first cases that tested the scope of‭ ‬art.9‭(‬1‭) ‬ECHR was‭ ‬Arrowsmith v United Kingdom‭ (‬7050/75‭) (‬1981‭) ‬3‭ ‬E.H.R.R.‭ ‬218,‭ ‬a case concerning proselytising and attempting to spread a belief amongst others.‭ ‬The complaint was examined by the former European Commission on Human Rights and concerned a pacifist convicted of distributing pamphlets urging soldiers to avoid military service in Northern Ireland.‭ ‬Pacifism,‭ ‬which is the belief that war and armed violence cannot be justified by any means,‭ ‬was recognised by the Commission as a belief‭; ‬however,‭ ‬the Commission dismissed the‭ ‬art.9‭ ‬claim on the basis that the act of distributing pamphlets was not a‭ ‬manifestation of pacifism.‭ ‬What needs to be shown,‭ ‬according to the test established by Arrowsmith,‭ ‬is that the manifestation is mandated by the person's belief or religion.‭ ‬This argument would be dismissed by the European court in‭ ‬Eweida v United Kingdom‭ (‬48420/10‭) [‬2013‭] ‬I.R.L.R.‭ ‬231‭ ‬where the European court stated that‭ "‬there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question‭"‬,‭ ‬but the act in question‭ "‬must be intimately linked to the religion or belief‭"‬.‭ (‬para‭ ‬82‭)‬. Kokkinakis v Greece‭ (‬A/260-A‭) (‬1994‭) ‬17‭ ‬E.H.R.R.‭ ‬397‭ ‬was the first case of the Strasbourg court finding a violation of‭ ‬art.9‭ ‬ECHR by six votes to three.‭ ‬The case concerned the conviction of a Greek Jehovah's Witness for proselytism.‭ ‬The court found that in sentencing the applicant,‭ ‬the State had interfered with the exercise of his right to manifest his beliefs.‭ ‬Although it was acknowledged by the court that the measure‭ (‬criminalisation of proselytism‭) ‬was prescribed by law and pursued a legitimate aim under‭ ‬art.9‭(‬2‭) ‬ECHR,‭ ‬his conviction was not justified by a pressing social need and the measures taken by the State were not justified within the meaning of‭ ‬art.9‭(‬2‭) ‬ECHR.‭ Religious beliefs:‭ ‬The European Court has accepted different religious belief systems such as Islam in‭ ‬Ahmad v United Kingdom‭ (‬8160/78‭) (‬1982‭) ‬4‭ ‬E.H.R.R.‭ ‬126,‭ ‬Krishna Consciousness in ISKCON v United Kingdom‭ (‬1994‭) ‬76A DR‭ ‬90,‭ ‬Jehovah's Witnesses in‭ ‬Kokkinakis v Greece‭ (‬A/260-A‭) (‬1994‭) ‬17‭ ‬E.H.R.R.‭ ‬397,‭ ‬the Divine Light Zentrum in Omkarananda and the Divine Light Zentrum v Sweden‭ (‬1981‭) ‬25‭ ‬DR‭ ‬105‭ ‬and the Church of Scientology in X and Church of Scientology v Sweden‭ (‬1976‭) ‬16‭ ‬DR‭ ‬68.‭ Philosophical beliefs:‭ ‬In addition to religious beliefs,‭ ‬the court has also recognised that some philosophical beliefs fall within the scope of‭ ‬art.9‭(‬1‭) ‬ECHR.‭ ‬Such beliefs include opposition to abortion‭ (‬Knudsen v Norway‭ (‬11045/84‭) (‬1986‭) ‬8‭ ‬E.H.R.R.‭ ‬CD63‭) ‬and pacifism‭ (‬Arrowsmith v United Kingdom‭ (‬7050/75‭) (‬1981‭) ‬3‭ ‬E.H.R.R.‭ ‬218‭)‬.‭ Other belief systems:‭ ‬The European Court has gone as far as to recognise vegetarianism and veganism as belief systems capable of attracting the protection of‭ ‬art.9‭(‬1‭) ‬ECHR.‭ ‬In‭ ‬Jakobski v Poland‭ (‬18429/06‭) (‬2012‭) ‬55‭ ‬E.H.R.R.‭ ‬8,‭ ‬the applicant,‭ ‬a practising Buddhist serving a prison sentence,‭ ‬submitted a complaint on the basis that the prison in which he was held would not provide him a meat-free diet.‭ ‬The applicant submitted that the refusal of the prison to provide him a vegetarian diet interfered with his right to freedom of thought,‭ ‬conscience and religion,‭ ‬as his beliefs stemmed from his religion‭ (‬Buddhism‭) ‬within the scope of‭ ‬art.9‭ ‬ECHR.‭ ‬The European court held that the authorities had failed to strike a fair balance between‭ ‬the interests of the applicant and the authorities,‭ ‬finding a violation of‭ ‬art.9‭ ‬ECHR unanimously.‭ ‬In‭ ‬CW v United Kingdom‭ (‬18187/91‭) (‬1993‭) ‬16‭ ‬E.H.R.R.‭ ‬CD44‭ ‬the former European Commission on Human Rights held that vegan convictions in relation to animal products fell within the ambit of‭ ‬art.9‭(‬1‭) ‬ECHR.‭ ‬In‭ ‬2000,‭ ‬the European court further acknowledged that observing dietary or similar prohibitions,‭ ‬including ritual slaughter fell within the scope of‭ ‬art.9‭(‬1‭) ‬ECHR‭ (‬Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France‭ (‬27417/95‭) ‬9‭ ‬B.H.R.C.‭ ‬27.‭ (‬Note:‭ ‬The European Commission on Human Rights ceased to exist in‭ ‬1998‭ ‬and was replaced by a single full-time European Court of Human Rights to reduce the length of the complaints procedure‭; ‬see‭ ‬Protocol‭ ‬11‭ ‬ECHR‭)‬. The question of what constitutes a‭ "‬belief‭" ‬is particularly difficult one to answer.‭ ‬The European Court was confronted with this question when it considered the case of‭ ‬Pretty v United Kingdom‭ (‬2346/02‭) [‬2002‭] ‬2‭ ‬F.L.R.‭ ‬45,‭ ‬concerning a complaint by a motor neurone disease sufferer with severe paralysis whose husband was prevented from assisting her in committing suicide.‭ ‬Ms Pretty complained,‭ ‬inter alia,‭ ‬that the State had failed to protect her sincere belief in the virtue of assisted suicide.‭ ‬The Court dismissed her argument that this particular belief fell within the scope of‭ ‬art.9‭(‬1‭)‬,‭ ‬stating that: ‭"‬The Court does not doubt the firmness of the applicant's views concerning assisted suicide but would observe that not all opinions or convictions constitute beliefs in the sense protected by‭ ‬Article‭ ‬9‭(‬1‭)‬ of the Convention.‭ ‬Her claims do not involve a form of manifestation of a religion or belief,‭ ‬through worship,‭ ‬teaching,‭ ‬practice or observance as described in the second sentence of the first paragraph.‭ ‬As found by the Commission,‭ ‬the term‭ "‬practice‭" ‬as employed in‭ ‬Article‭ ‬9‭(‬1‭)‬ does not cover each act which is motivated or influenced by a religion or belief.‭ (‬para‭ ‬82‭)‬.‭" The court has clarified in its jurisprudence that for a belief to be accepted as falling within the scope of‭ ‬art.9‭(‬1‭) ‬ECHR,‭ ‬the belief must attain a certain level of cogency,‭ ‬seriousness,‭ ‬cohesion and importance‭ (‬Campbell v United Kingdom‭ (‬7511/76‭) (‬1982‭) ‬4‭ ‬E.H.R.R.‭ ‬293‭)‬.‭ ‬There must also be a sufficiently close and direct nexus between the act and the underlying belief.‭ (‬Eweida v United Kingdom‭ (‬48420/10‭) [‬2013‭] ‬I.R.L.R.‭ ‬231,‭ ‬para.82‭)‬.‭ In addition to the aforementioned forms of religious,‭ ‬philosophical and ethical beliefs,‭ ‬the applicability of‭ ‬art.9‭(‬1‭) ‬ECHR extends to those without any beliefs.‭ ‬According to the European court in‭ ‬Kokkinakis,‭ "[‬art.9‭] ‬is one of the most vital elements that go to make up the identity of believers and their conception of life,‭ ‬but it is also a precious asset for atheists,‭ ‬agnostics,‭ ‬sceptics and the unconcerned‭" (‬Kokkinakis v Greece‭ (‬A/260-A‭) (‬1994‭) ‬17‭ ‬E.H.R.R.‭ ‬397,‭ ‬para‭ ‬31‭)‬.‭ ‬The European court in‭ ‬Bayatyan v Armenia‭ (‬23459/03‭) (‬2012‭) ‬54‭ ‬E.H.R.R.‭ ‬15,‭ ‬a case concerning conscientious objection to military service,‭ ‬went a step further to add that this‭ "‬freedom entails,‭ ‬inter alia,‭ ‬freedom to hold or not to hold religious beliefs and to practise or not to practise a religion‭" (‬para.118‭)‬. Buscarini v San Marino‭ (‬24645/94‭) (‬2000‭) ‬30‭ ‬E.H.R.R.‭ ‬208‭ ‬concerned the refusal of the San Marino authorities to exempt the applicants from taking a religious oath after being elected to the Parliament of San Marino.‭ ‬The failure of the authorities to exempt them from taking a religious oath was,‭ ‬according to the claimants,‭ ‬a‭ "‬premeditated act of coercion‭"‬.‭ ‬It was held unanimously by the European Commission that in refusing to exempt them from taking a religious oath,‭ ‬the government was in violation of‭ ‬art.9‭ ‬ECHR.‭ ‬The Commission emphasised that requiring the applicants to take the oath on the Gospels was equivalent to requiring them to swear allegiance to a particular religion with the risk of losing their parliamentary seats‭ ‬if they refused to do so.‭ ‬According to the Commission,‭ ‬the requirement was incompatible with‭ ‬art.9‭ ‬of the Convention.‭ ‬The Commission went a step further to suggest that the wording of the oath in question should be changed to comply with the requirements of‭ ‬art.9‭ ‬ECHR.‭ ‬Buscarini v San Marino‭ (‬24645/94‭) (‬2000‭) ‬30‭ ‬E.H.R.R.‭ ‬208,‭ ‬para‭ ‬36.‭ ‬See also‭ ‬Dimitras and Others v.‭ ‬Greece‭ [‬2010‭] ‬app nos‭ ‬42837/06,‭ ‬3269/07,‭ ‬35793/07‭ ‬and‭ ‬6099/08. Indoctrination by the State:‭ ‬Some further questions that the Strasbourg Court was required to address in its jurisprudence was with regard to participation in religious knowledge classes and the display of religious symbols in public spaces,‭ ‬and whether these actions may constitute indoctrination by the State.‭ ‬The Strasbourg Court has dismissed both arguments categorically,‭ ‬albeit without a convincing reasoning for its decisions.‭ ‬In‭ ‬1988,‭ ‬the European Commission dismissed a‭ ‬claim where a mother complained that her daughter was being indoctrinated because of an obligation to participate in the instruction of religious knowledge‭ (‬Angelini v Sweden‭ (‬1988‭) ‬10‭ ‬EHRR‭ ‬123‭)‬.‭ ‬In‭ ‬2011,‭ ‬the European Court considered‭ ‬Lautsi v Italy‭ (‬30814/06‭) (‬2012‭) ‬54‭ ‬E.H.R.R.‭ ‬3,‭ ‬a decision received with mixed reactions from scholars highlighting flaws in the judgment's reasoning‭ (‬see further readings‭)‬.‭ ‬In Lautsi,‭ ‬a parent complained about the display of crucifixes in State-school classrooms arguing that the display of the crucifix in her sons‭' ‬school constituted violation of their‭ ‬art.9‭ ‬ECHR rights and infringed the principle of secularism.‭ ‬The Strasbourg Court ruled that the display of crucifixes in classrooms was a matter falling within the margin of appreciation of the respondent State.‭ ‬More interestingly,‭ ‬the court opined that‭ "‬a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view,‭ ‬particularly having regard‭ ‬to the principle of neutrality.‭" (‬para.72‭)‬.‭ The decision in‭ ‬Lautsi is in sharp contrast with the earlier decision of the European Court in‭ ‬Sahin v Turkey‭ (‬44774/98‭) (‬2007‭) ‬44‭ ‬E.H.R.R.‭ ‬5,‭ ‬which concerned the prohibition to wear the Islamic headscarf at university in Turkey.‭ ‬The court,‭ ‬finding no violation of‭ ‬art.9,‭ ‬justified its decision by arguing that the notion of secularism was consistent with the values underpinning the Convention and upholding that principle could be considered necessary to protect the democratic system in Turkey.‭ ‬The court referred to its previous decision in‭ ‬Dahlab v Switzerland‭ [‬2001‭] ‬ECHR‭ ‬899‭ ‬stating,‭ ‬inter alia: ‭"‬In Dahlab,‭ ‬which concerned the teacher of a class of small children,‭ ‬the Court stressed among other matters the‭ "‬powerful external symbol‭" ‬which her wearing a headscarf represented and questioned whether it might have some kind of proselytising effect,‭ ‬seeing that it appeared to be imposed on women by a religious precept that was hard to reconcile with the principle of gender equality.‭" Judge Tulkens,‭ ‬in her dissenting opinion,‭ ‬acknowledged the lack of a European consensus on the issue of regulating the wearing of religious symbols in educational institutions and the diversity of practice between States.‭ Religious manifestations and associative freedom:‭ ‬The right to manifest a religion or belief is‭ ‬not limited to the personal and individual sphere.‭ ‬Cases concerning religious associative freedom have also been examined by the European Court.‭ ‬For example,‭ ‬in‭ ‬Metropolitan Church of Bessarabia v Moldova‭ (‬45701/99‭) (‬2002‭) ‬35‭ ‬E.H.R.R.‭ ‬13,‭ ‬the court,‭ ‬relying on the wide margin of appreciation afforded to state parties,‭ ‬declared that the refusal to register a religious association was justified on the basis of protecting public order and safety.‭ ‬Similarly,‭ ‬in‭ ‬Refah Partisi‭ (‬Welfare Party‭) ‬v Turkey‭ (‬41340/98‭) (‬No.2‭) (‬2003‭) ‬37‭ ‬E.H.R.R.‭ ‬1,‭ ‬the court found that the dissolution by the Turkish government of a political party in Turkey aspiring to establish a theocratic‭ ‬regime in the country,‭ ‬was justified on the basis that the restriction was prescribed by law‭ (‬prohibiting and preventing anti-secular activities‭)‬.‭ ‬The restriction was also deemed necessary for the protection of national security and public safety,‭ ‬for the‭ ‬prevention of disorder or crime and for the protection of the rights and freedoms of others,‭ ‬and necessary in a democratic society within the meaning of‭ ‬art.11‭(‬2‭)‬.‭ However,‭ ‬in the‭ ‬Holy Synod of the Bulgarian Orthodox Church‭ (‬Metropolitan Inokentiy‭) ‬v Bulgaria‭ (‬412/03‭) (‬2011‭) ‬52‭ ‬E.H.R.R.‭ ‬SE1,‭ ‬the court did not use the margin of appreciation approach and found that interference was disproportionate and in violation of‭ ‬art.9‭ ‬ECHR.‭ ‬The applicants complained that the State had interfered in a dispute within the Bulgarian Orthodox Church which allegedly forced all clergy and believers to accept the leadership of Patriarch Maxim.‭ ‬The applicants complained that the measures taken by authorities were unlawful and unnecessary.‭ ‬The court,‭ ‬dismissing the government's argument that the measure was necessary to preserve the unity of the Bulgarian Orthodox Church,‭ ‬held: ‭"‬149.‭ ‬It follows that the unity of the Bulgarian Orthodox Church,‭ ‬while it is a matter of the utmost importance for its adherents and believers and for Bulgarian society in general,‭ ‬cannot justify State action imposing such unity by force in a deeply divided religious community.‭ ‬159.‭ ‬The Court finds that while the leadership dispute in the Bulgarian Orthodox Church was a source of legitimate concern for the State authorities,‭ ‬their intervention was disproportionate.160.‭ ‬It follows that there has been a violation of‭ ‬Article‭ ‬9‭ ‬of the Convention,‭ ‬interpreted in the light of‭ ‬Article‭ ‬11.‭" The European Court displayed a similar line of reasoning in‭ ‬Izzettin Doğan and Others v.‭ ‬Turkey,‭ ‬app no‭ ‬62649/10,‭ ‬a case concerning the failure to provide a religious public service for followers of the Alevi faith in Turkey.‭ ‬The court found a violation of‭ ‬art.14‭ ‬ECHR in conjunction with‭ ‬art.9‭ ‬ECHR,‭ ‬emphasising that‭ "[‬t]he failure of the Turkish authorities to recognise the Alevi faith as a religion,‭ ‬and consequently the failure to recognise the Alevi cemevis as‭ "‬places of worship‭" ‬within the meaning of the domestic legislation,‭ ‬will,‭ ‬depending on the specific circumstances of the case,‭ ‬amount to discrimination in violation of the Convention‭" (‬para.17‭)‬.‭ ‬See further commentary below under Further Reading.‭ ‬See also‭ ‬Jehovah's Witnesses of Moscow v Russia‭ (‬302/02‭) (‬2011‭) ‬53‭ ‬E.H.R.R.‭ ‬4,‭ ‬where the court found a violation of‭ ‬art.9‭ ‬ECHR read in the light of‭ ‬art.11‭ ‬ECHR‭ (‬freedom of assembly and association‭) ‬due to the Russian authorities‭' ‬refusal to re-register the religious community of Jehovah's Witnesses of Moscow. In‭ ‬Hasan v Bulgaria‭ (‬30985/96‭) (‬2002‭) ‬34‭ ‬E.H.R.R.‭ ‬55‭ ‬the Grand Chamber of the European Court of Human Rights reiterated that restrictions are often necessary to avoid the division of religious communities,‭ ‬and suggested,‭ ‬inter alia,‭ ‬that‭ "‬religious communities traditionally and universally exist in the form of organised structures‭"‬.‭ ‬However,‭ ‬the court in Hasan and Chaush found a violation of‭ ‬art.9‭ ‬ECHR as a result of the unlawful and arbitrary interference of the State with the internal organisation of the Muslim religious community and the applicants‭' ‬freedom of religion. Reasonable adjustments:‭ ‬One of the most controversial aspects of the right to freedom of thought,‭ ‬conscience and religion concerns the notion of reasonable adjustment to accommodate religious manifestations in the workplace.‭ ‬The impact of secularism on religious manifestations has been considerably visible in most‭ ‬secular European States as reflected in the jurisprudence of the European Court of Human Rights.‭ ‬The cases presented below can be useful in understanding why secularism is often perceived as a barrier to religious expression,‭ ‬particularly in countries which are,‭ ‬by virtue of their constitution,‭ ‬secular societies.‭ ‬In those societies,‭ ‬restrictions can be placed on civil servants who are expected to manifest their beliefs in a way that does not hamper their professional duties.‭ In‭ ‬Ahmad v United Kingdom‭ (‬8160/78‭) (‬1982‭) ‬4‭ ‬E.H.R.R.‭ ‬126,‭ ‬a Muslim teacher requested extra time to pray on Fridays,‭ ‬a request that was accommodated by some of his employers,‭ ‬but not all.‭ ‬The applicant was forced to resign from his full-time position as a result of his last employer's refusal to accommodate his request.‭ ‬It was held by the European Commission of Human Rights that there was no interference with the applicant's freedom of religion under‭ ‬art.9‭(‬1‭)‬ and that the State had not failed to consider better working arrangements for the applicant.‭ ‬The Commission added that‭ "‬freedom of religion is not absolute‭" ‬and‭ "‬it may as regards the modality of a particular religious manifestation,‭ ‬be influenced by the situation of the person claiming that freedom‭" (‬para.11‭)‬.‭ ‬This was further elucidated in‭ ‬Kosteski v Macedonia‭ (‬55170/00‭) (‬2007‭) ‬45‭ ‬E.H.R.R.‭ ‬31,‭ ‬where the court found no violation of‭ ‬art.9‭ ‬ECHR in respect of an‭ ‬applicant taking a day's holiday without permission to celebrate a Muslim religious festival.‭ ‬The court added that‭ "‬with contracts setting out specific obligations and rights between employer and employee,‭ ‬the Court does not find it unreasonable that an employer may regard absence without permission or apparent justification as a disciplinary matter‭"‬.‭ (‬para.39‭) In‭ ‬Stedman v United Kingdom‭ (‬Admissibility‭) (‬29107/95‭) (‬1997‭) ‬23‭ ‬E.H.R.R.‭ ‬CD168,‭ ‬a Christian worker was dismissed from employment having refused to work on Sundays.‭ ‬She complained that her dismissal gave rise to a violation of‭ ‬art.9‭ ‬ECHR.‭ ‬The European Commission of Human Rights dismissed the application as manifestly ill-founded as Stedman was employed by a private employer.‭ ‬The Commission pointed out,‭ ‬however,‭ ‬that even if the applicant been employed by the State and dismissed in similar circumstances,‭ ‬her dismissal would not have amounted to an interference with her rights under‭ ‬art.9‭(‬2‭) ‬ECHR.‭ ‬The case echoes the‭ "‬freedom to resign‭" ‬doctrine,‭ ‬according to which,‭ ‬if an individual can avoid the restriction by resigning from their job,‭ ‬then no interference with their right to religion would arise.‭ ‬This doctrine originated in Konttinen v Finland‭ (‬1996‭) ‬87‭ ‬DR‭ ‬68,‭ ‬where the Commission stated that the freedom to resign is‭ "‬the ultimate guarantee of his‭ [‬the applicant's‭] ‬right to freedom of religion‭"‬.‭ In Siebenhaar v Germany app no.‭ ‬18136/02‭ [‬2011‭] ‬ECHR,‭ ‬the applicant was dismissed from her employment in a Protestant school due to her participation in the activities of another religious group that was different from her employer's.‭ ‬The Court held that‭ ‬in dismissing the applicant from her employment,‭ ‬a fair balance had been struck between the interests of both the applicant and her employer.‭ ‬In Obst v Germany app no‭ ‬425/03,‭ ‬judgment of‭ ‬23‭ ‬September‭ ‬2010,‭ ‬the court considered whether‭ ‬art.8‭ (‬right to private and family life‭) ‬may be at stake when measures taken by an employer affect an applicant's religious freedom.‭ ‬The court held that the dismissal by the Church of Jesus Christ of Latter-day‭ ‬Saints of its Director of Public Relations for Europe after admitting to an extra-marital affair had not breached‭ ‬art.8‭ ‬ECHR‭ (‬private and family life‭)‬.‭ ‬In‭ ‬Schuth v Germany‭ (‬1620/03‭) (‬2011‭) ‬52‭ ‬E.H.R.R.‭ ‬32,‭ ‬however,‭ ‬the court held that the dismissal of Roman Catholic organist and choirmaster on the grounds of adultery and bigamy had breached his rights under‭ ‬art.8‭ ‬ECHR,‭ ‬with the court clarifying that‭ "‬his‭ [‬Mr Schüth's‭] ‬contractual agreement could not be interpreted as an unequivocal undertaking to live a life of abstinence in the event of separation or divorce‭"‬.‭ ‬The European Court's jurisprudence indicates that the court will often be in favour of a duty-based approach when considering cases of this nature,‭ ‬i.e.‭ ‬contractual duties as opposed to religious duties‭ (‬Saila Quald Chaib,‭ "‬Religious Accommodation in the Workplace:‭ ‬Improving the Legal Reasoning of the European Court of Human Rights‭" ‬in Kayayoun Alidadi,‭ ‬Marie-Claire Foblets and Jogchum Vrielink‭ (‬eds.‭)‬,‭ ‬A Test of Faith‭? ‬Religious Diversity and Accommodation in the European Workplace‭ (‬Religare,‭ ‬2016‭)‬,‭ ‬p.‭ ‬41‭)‬. Discrimination on religious grounds:‭ ‬A question that follows from the reluctance of States to provide reasonable adjustments to religious employees is whether refusals to reasonably accommodate religious beliefs and practices may constitute discrimination on the grounds of religion and belief.‭ ‬This is a significant litigation issue that has engaged the European Court in recent times.‭ ‬In‭ ‬2013,‭ ‬the‭ ‬European Court of Human Rights delivered its long-awaited judgment in‭ ‬Eweida v United Kingdom‭ (‬48420/10‭) [‬2013‭] ‬I.R.L.R.‭ ‬231.‭ ‬This case illustrates the European court's attempt to balance religious rights in the workplace with the prohibition of discrimination.‭ ‬In Eweida,‭ ‬the Strasbourg court considered four different claims from individuals who were dismissed because of their failure to comply with their employers‭' ‬policies,‭ ‬insofar as those policies were allegedly incompatible with their religious beliefs.‭ ‬Two of the applicants,‭ ‬Ms Eweida and Ms Chaplin,‭ ‬were Christians who refused‭ ‬to conceal their cross and decided to wear them visibly during working hours.‭ ‬The first applicant,‭ ‬Ms Eweida,‭ ‬was a British Airways employee who disagreed with the company's new uniform policy preventing the wearing of religious symbols at work,‭ ‬claiming that this placed Christians in a more disadvantageous position than those of other faiths.‭ ‬The second applicant,‭ ‬Ms Chaplin,‭ ‬worked with the Royal Devon and Exeter NHS Foundation Trust and refused to comply with the guidance of the Department of Health which required staff not to wear necklaces in order to reduce the risk of injury when treating patients.‭ ‬They both submitted that their beliefs required them to wear a small cross on a chain visibly around their neck.‭ ‬In both cases,‭ ‬the employers refused to allow them to work unless they removed or concealed their crosses.‭ ‬The other two applicants,‭ ‬Mr MacFarlane and Ms Ladele were Christians who disapproved same-sex relationships.‭ ‬Mr MacFarlane refused to provide relationship counselling to same-sex couples,‭ ‬whereas Ms Ladele avoided conducting civil partnerships for same-sex couples by making informal arrangements with her colleagues.‭ ‬Ladele and McFarlane were dismissed from their employment as that they failed to comply with their employers‭' ‬equality and diversity policies requiring them to carry out their responsibilities without discrimination.‭ ‬The applicants complained that their treatment constituted breach of‭ ‬art.9‭ ‬ECHR and‭ ‬art.14‭ ‬in conjunction with‭ ‬art.9‭ ‬ECHR.‭ ‬Given the obvious differences between the four complaints,‭ ‬the court considered the claims separately.‭ ‬The court found a violation of‭ ‬art.9‭ ‬ECHR in respect of Ms Eweida,‭ ‬so far as the State denied protection under national law for her entirely sincere and orthodox desire to manifest her faith by wearing a cross.‭ ‬However,‭ ‬the court found no violation of‭ ‬art.9‭ ‬ECHR in respect of Ms Chaplin,‭ ‬Mr McFarlane and Ms Ladele's complaints.‭ ‬With regard to Ms Chaplin's complaint,‭ ‬the court held that‭ "‬the protection of health and safety on a hospital ward was inherently of a greater magnitude than that which applied in respect of Ms Eweida‭"‬,‭ ‬therefore the measures of which Ms Chaplin complained were not disproportionate to the aims pursued by her employer.‭ ‬In finding no violation of Ms Ladele's convention rights,‭ ‬the Strasbourg court held that‭ "‬regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community‭ ‬as a whole,‭ ‬subject in any event to the margin of appreciation enjoyed by the State‭" (‬para.84‭) ‬and consequently,‭ ‬the aim pursued by the local authority was legitimate‭ (‬para.105‭) ‬as the local authority's policy aimed to secure the rights of others‭ (‬para.106‭)‬.‭ ‬In relation to Mr McFarlane's claim,‭ ‬the European court noted that‭ "‬the employer's action was intended to secure the implementation of its policy of providing a service without discrimination‭" (‬para.109‭)‬. In‭ ‬Eweida above,‭ ‬the court reiterated the principle previously expressed in‭ ‬Schalk v Austria‭ (‬30141/04‭) [‬2011‭] ‬2‭ ‬F.C.R.‭ ‬650,‭ ‬that‭ "‬same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship,‭ ‬although since practice in this regard is still evolving across Europe,‭ ‬the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order‭'‬.‭ ‬This means that the State can exercise its discretion and use all means it deems appropriate to enforce its equality laws,‭ ‬including taking steps to ensure that employees perform their duties without discriminating against others. The interpretation of‭ ‬art.9‭ ‬ECHR by the European Court of Human Rights is often met with criticism.‭ ‬The multi-dimensional construction of‭ ‬art.9‭ ‬ECHR protects religious,‭ ‬philosophical,‭ ‬ethical,‭ ‬conscientious and other belief systems on an equal footing,‭ ‬prompting the court to examine,‭ ‬each time,‭ ‬the justifiability and lawfulness of restrictive measures against the manifestation of such beliefs.‭ ‬Despite the disparity in academic and judicial opinion as to how religious and other rights may be balanced,‭ ‬the wide scope of‭ ‬art.9‭ ‬ECHR allows the European court to be flexible when interpreting the European Convention as a living instrument that adapts to the needs of a changing society.‭ ‬The scope of‭ ‬art.9‭ ‬ECHR can never be fully settled but will inevitably continue to evolve with the progressive adaptation of the Strasbourg court to societal changes and growing consensus amongst the Council of Europe's Member States.‭ Key Acts None. Key Subordinate Legislation None. Key Quasi-legislation None. Key European Union Legislation European Convention on Human Rights Key Cases Arrowsmith v United Kingdom‭ (‬7050/75‭) (‬1981‭) ‬3‭ ‬E.H.R.R.‭ ‬218 Kokkinakis v Greece‭ (‬A/260-A‭) (‬1994‭) ‬17‭ ‬E.H.R.R.‭ ‬397 Ahmad v United Kingdom‭ (‬8160/78‭) (‬1982‭) ‬4‭ ‬E.H.R.R.‭ ‬126 Krishna Consciousness in ISKCON v United Kingdom‭ (‬1994‭) ‬76A DR‭ ‬90 Omkarananda and the Divine Light Zentrum v Sweden‭ (‬1981‭) ‬25‭ ‬DR‭ ‬105 X and Church of Scientology v Sweden‭ (‬1976‭) ‬16‭ ‬DR‭ ‬68 Knudsen v Norway‭ (‬11045/84‭) (‬1986‭) ‬8‭ ‬E.H.R.R.‭ ‬CD63 Jakobski v Poland‭ (‬18429/06‭) (‬2012‭) ‬55‭ ‬E.H.R.R.‭ ‬8 CW v United Kingdom‭ (‬18187/91‭) (‬1993‭) ‬16‭ ‬E.H.R.R.‭ ‬CD44 Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France‭ (‬27417/95‭) ‬9‭ ‬B.H.R.C.‭ ‬27 Pretty v United Kingdom‭ (‬2346/02‭) [‬2002‭] ‬2‭ ‬F.L.R.‭ ‬45 Campbell‭ ‬v United Kingdom‭ (‬7511/76‭) (‬1982‭) ‬4‭ ‬E.H.R.R.‭ ‬293 Eweida v United Kingdom‭ (‬48420/10‭) [‬2013‭] ‬I.R.L.R.‭ ‬231 Bayatyan v Armenia‭ (‬23459/03‭) (‬2012‭) ‬54‭ ‬E.H.R.R.‭ ‬15 Buscarini v San Marino‭ (‬24645/94‭) (‬2000‭) ‬30‭ ‬E.H.R.R.‭ ‬208 Dimitras and Others v.‭ ‬Greece‭ [‬2010‭] ‬app nos‭ ‬42837/06,‭ ‬3269/07,‭ ‬35793/07‭ ‬and‭ ‬6099/08 Angelini v Sweden‭ (‬1988‭) ‬10‭ ‬EHRR‭ ‬12 Lautsi v Italy‭ (‬30814/06‭) (‬2012‭) ‬54‭ ‬E.H.R.R.‭ ‬3 Sahin v Turkey‭ (‬44774/98‭) (‬2007‭) ‬44‭ ‬E.H.R.R.‭ ‬5 Dahlab v Switzerland‭ [‬2001‭] ‬ECHR‭ ‬899 Metropolitan Church of Bessarabia v Moldova‭ (‬45701/99‭) (‬2002‭) ‬35‭ ‬E.H.R.R.‭ ‬13 Refah Partisi‭ (‬Welfare Party‭) ‬v Turkey‭ (‬41340/98‭) (‬No.2‭) (‬2003‭) ‬37‭ ‬E.H.R.R.‭ ‬1 Holy Synod of the Bulgarian Orthodox Church‭ (‬Metropolitan Inokentiy‭) ‬v Bulgaria‭ (‬412/03‭) (‬2011‭) ‬52‭ ‬E.H.R.R.‭ ‬SE1 Izzettin Doğan and Others v.‭ ‬Turkey,‭ ‬app no‭ ‬62649/10,‭ ‬decision of‭ ‬26‭ ‬April‭ ‬2016 Jehovah's Witnesses of Moscow v Russia‭ (‬302/02‭) (‬2011‭) ‬53‭ ‬E.H.R.R.‭ ‬4 Hasan v Bulgaria‭ (‬30985/96‭) (‬2002‭) ‬34‭ ‬E.H.R.R.‭ ‬55 Ahmad v United Kingdom‭ (‬8160/78‭) (‬1982‭) ‬4‭ ‬E.H.R.R.‭ ‬126 Kosteski v Macedonia‭ (‬55170/00‭) (‬2007‭) ‬45‭ ‬E.H.R.R.‭ ‬31 Stedman v United Kingdom‭ (‬Admissibility‭) (‬29107/95‭) (‬1997‭) ‬23‭ ‬E.H.R.R.‭ ‬CD168 Konttinen v Finland‭ (‬1996‭) ‬87‭ ‬DR‭ ‬68 Siebenhaar v Germany app no.‭ ‬18136/02‭ [‬2011‭] ‬ECHR Obst v Germany app no‭ ‬425/03,‭ ‬judgment of‭ ‬23‭ ‬September‭ ‬2010 Schüth v.‭ ‬Germany‭ [‬2010‭] ‬ECHR‭ ‬1620/03 Key Texts None. Analysis KEY AREAS OF‭ ‬COMPLEXITY OR UNCERTAINTY None. LATEST DEVELOPMENTS None. POSSIBLE FUTURE DEVELOPMENTS None. HUMAN RIGHTS None. EUROPEAN UNION ASPECTS None. Further Reading S.‭ ‬Smet,‭ ‬Lautsi v.‭ ‬Italy:‭ ‬the Argument from Neutrality,‭ ‬22‭ ‬March‭ ‬2011 L.‭ ‬Zucca,‭ ‬A Comment on Lautsi,‭ ‬19‭ ‬March‭ ‬201 N.‭ ‬Hervieu,‭ ‬Crucifix dans les salles de classe‭ ‬:‭ ‬la capitulation de la Cour européenne des droits de l'homme‭ (‬Cour EDH,‭ ‬G.C.‭ ‬18‭ ‬mars‭ ‬2011,‭ ‬Lautsi c.‭ ‬Italie‭)‬,‭ ‬11‭ ‬March‭ ‬2011 M.‭ ‬Yildirim,‭ ‬Grand Chamber Judgment in Izzettin Doğan and Others v.‭ ‬Turkey:‭ ‬More Than a Typical Religious Discrimination Case,‭ ‬18‭ ‬July‭ ‬2016 Why appearances matter.‭ ‬State endorsement of religious symbols in state schools in Europe after Lautsi UCL J.L.‭ ‬and J.‭ ‬2014,‭ ‬3‭(‬1‭)‬,‭ ‬262-272 ‭©‬ 2016‭ ‬Sweet‭ & ‬Maxwell Ltd     Page ‭ 11