2. INTERNATIONAL STANDARDS PROTECTING THE FREEDOM OF RELIGION OR BELIEF AND RIGHTS OF RELIGIOUS COMMUNITIES TO LEGAL ENTITY STATUS
As one of the oldest and most pre-eminent of the internationally recognized human rights, the right to freedom of religion or belief is addressed in key provisions of every major international human rights instrument.10These provisions have significant implications for the rights of religious communities to be able to avail themselves of legal forms and structures in arranging their affairs. It is important to bear in mind, however, that a variety of other international human rights norms have significant implications for the rights with respect to laws that affect the structuring of belief communities. This makes the task of spelling out the relevant international norms more complex than might at first be expected. In this Chapter, relevant international norms are identified. With respect to the familiar norms that directly address freedom of religion or belief, the aim is to highlight those aspects of these norms that have particular relevance to legal entity issues. Other norms that have particular ramifications for the legal structures that religious communities need to structure their affairs are then addressed.
2.1. Universal Declaration of Human Rights
For our purposes, the key international provisions dealing with freedom of religion or belief begin with Article 18 the Universal Declaration of Human Rights, which provides:
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 teaching, practice, worship and observance. (Emphasis added.)
The Universal Declaration also affirms rights to freedom of association and non-discrimination that bear on laws affecting the structuring of religious communities. Thus, "[e]veryone has the right to freedom of peaceful assembly and association" (Article 20). Moreover, "[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of ... religion" (Article 2), and "[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law" (Article 7).
2.2. International Covenant on Civil and Political Rights
2.2.1 The substantive right to freedom of religion or belief
The Universal Declaration's commitment to the fundamental right of freedom of religion or belief was embodied in Article 18 of the International Covenant on Civil and Political Rights (ICCPR). Because this Covenant is a legally binding treaty obligation for States Parties to it which include most of the OSCE participating States, it is both somewhat more concrete, and more careful to note the limitations on freedom of religion or belief. Article 18 of the Covenant provides:
2.2.2 The right to freedom of association
- 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
- 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
- 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. (Emphasis added.)
Because the substantive right to freedom of religion so clearly covers the right of individuals to associate with others and to assert their religious freedom "in community with others", whether in "public or private", it is sometimes forgotten that religious groups are also protected by freedom of association. The special prominence and historically vindicated importance of freedom of religion implies that if anything the right to freedom of religion affords greater protection to religiously-motivated association; surely it does not provide less. This consideration is particularly important when one focuses on the issue of laws affecting the structuring of religious communities. With this in mind, it is important to note Article 22 of the International Covenant, which addresses freedom of association:
The Universal Declaration and the Civil and Political Covenant address the full scope of the rights to freedom of religion or belief. But it is worth noting at the outset that they clearly recognize and protect the communal dimension of religious life. While religion can be an intensely private matter for some, it is fair to say that most religions cannot be practiced in isolation. Thus, the instruments stress that the right involves freedom "either alone [or individually] or in community with others and in public or private" to manifest one's religion in four broad areas vital to religious experience, namely "worship, observance, practice and teaching." Implicit in these norms is that one should be able to engage in religious life in authentic community with others of like beliefs, and that the type of communal experience should be determined in accordance with religious beliefs, and should not be dictated, monitored or otherwise "impaired" by coercive requirements of the state. Stated differently, many aspects of religious life have an associational dimension, but if anything, they deserve far stronger protection than other associational rights, because of the intimate connection between religiously motivated association and core religious beliefs and practices.
- 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
- 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
It is also important to emphasize that while some restrictions on manifestations of belief are permissible, such restrictions must be consistent with the rule of law, and must meet the rigorous "necessary in a democratic society" test. That is, it is not enough to justify burdensome registration rules to claim that they contribute in some general sense to public order (or to one of the other legitimating grounds for imposing limitations on manifestations of religion or belief). Only when limitations further a legitimating objective and are genuinely "necessary" can negating a religious freedom claim be justified.
2.2.3 Non-discrimination on the basis of religion or belief
The ICCPR reinforces the substantive protections of freedom of religion by making it very clear that State Parties are obligated "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Article 2(1))(emphasis added). Moreover, the Covenant does more than articulate a recommended ideal. It obligates State Parties "to take the necessary steps ... to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant" (Article 2(2)) and to make certain that persons whose rights or freedoms are violated shall have effective remedies (Article 2(3)). Further, Article 26 provides:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (Emphasis added).
The United Nations Human Rights Committee (the body officially charged with monitoring compliance with the Covenant) has underscored the importance of non-discrimination in its General Comment No. 18 (37), which interprets the equality provisions of the ICCPR.11In its view, "[n]on-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights". While the Covenant itself does not define discrimination, the Human Rights Committee believes, consistent with the general usage of this term in international law, that
"discrimination" as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.
General Comment No. 18 (37) also stresses that the Covenant is not limited in its reach to discrimination with respect to the protection of the substantive rights it enunciates.
While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State Party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant. (Emphasis added.)
The Committee recognizes that "not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant". Laws governing the ways that religious associations are recognized and allowed to structure themselves as legal entities must thus be doubly sensitive. To the extent they are used as a control mechanism (as opposed to a vehicle for facilitating the structuring of religious life), they run the risk of burdening and impairing substantive norms of freedom of religion and association. In addition, they can constitute action by "public authorities" leading to discrimination in law or in fact, resulting in violations of the non-discrimination obligations imposed by the Covenant on "States parties in regard to their legislation and the application thereof".
Article 27 affords particular protection against discrimination where "ethnic, religious or linguistic minorities exist". It provides that "persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language". The term "minorities" is not clearly defined in the Covenant. Statistically speaking, there is at most one majority religion in any given country, and all others constitute minority religions. In many countries, no single group is in a majority position. There is a tendency to think of minorities as an identifiable cultural group, tied together by common language, traditions, ethnicity and so forth. But the use of the word "or" in the Covenant suggests that there may be religious minorities that are not necessarily also part of ethnic or linguistic minorities. The U.N. Human Rights Committee's General Comment No. 23 (50) on Article 27 indicates that "the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party". The General Comment goes on to note that
Article 27 confers rights on persons belonging to minorities which "exist" in a State party. Given the nature and scope of the rights envisaged under the article, it is not relevant to determine the degree of permanence that the term "exist" connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practice their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents.
This is not the place to probe the difficult question of the extent to which smaller religious groups that are religiously distinct but not necessarily culturally or ethnically different from the surrounding population constitute "minorities" within the meaning of Article 27. It suffices to note that to the extent religious minorities do exist in a country, they have an added layer of protection against religious discrimination under Article 27, and that lack of citizenship or relative permanence in the country does not disqualify a group from eligibility for this heightened protection.
2.3. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief
The United Nation's 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, though not formally binding as a treaty obligation, distills many of the principles articulated in the ICCPR. A plausible case can be made that it articulates what has now become international customary law, even in the absence of a binding convention, but no position is being taken on that issue here. The connections between the 1981 Declaration and the ICCPR are clear. Article 1 of the 1981 Declaration merely repeats, verbatim, the language of the first three paragraphs of Article 18 of the ICCPR.
Articles 2 and 3 of the 1981 Declaration reaffirm the ICCPR's anti-discrimination norms. Paragraph 1 of Article 2 states that "No one shall be subject to discrimination by any State, institution, group of persons or person on the grounds of religion or other beliefs". This language goes beyond the language of the ICCPR in that it extends to private as well as state action, but since the focus of this background report is on statutory schemes dealing with the grant of entity status to religious organizations by states, the aspects of paragraph 1 relevant here correspond with binding treaty obligations.
Paragraph 2 of Article 2 defines "intolerance and discrimination based on religion or belief" as:
Any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.
This definition is clearly consonant with that which the UN Human Rights Committee's interpretation of the meaning of discrimination in its General Comment No. 18 (37) (see Chapter 2.2.3, page ??). If anything, it is narrower, because it addresses only "nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis", whereas the Human Rights Committee's definition applies to "all rights and freedoms".
Article 3 of the 1981 Declaration underscores the significance of the anti-discrimination norm established by Article 2, noting that "Discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedom proclaimed in the Universal Declaration of Human Rights..." In short, for purposes of applications envisaged by this background report, there is nothing in the 1981 Declaration's anti-discrimination provisions that goes beyond pre-existing treaty obligations.
Article 4, echoing language of Article 2(3) of the ICCPR, indicates that "States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief", and "shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter". Article 4 thus merely restates and makes concrete with respect to religious freedom matters general Covenant obligations to afford effective remedies for violation or impairment of human rights. The same may be said of Article 7 of the 1981 Declaration.
Article 5 addresses in greater detail the rights of parents and children that are addressed in Paragraph 4 of Article 18 of the ICCPR. It is also consistent with relevant provisions of the widely ratified Convention on the Rights of the Child.12Laws dealing with freedom of conscience and religious associations in many OSCE participating States often address these parent-child issues, but these matters go beyond the focus of this report on the legal structures available to religious communities. Again, however, the substance of the 1981 Declaration is backed by treaty law that has been accepted by and is binding on most OSCE participating States.
Article 6 of the 1981 Declaration spells out the implications of the foregoing religious freedom norms for a variety of recurrent and practical contexts that are vital to religious freedom. The broad phrases of the Universal Declaration and the ICCPR obviously do not go into the same level of detail, but the concrete practices identified by Article 6 are clearly a reasonable and sensitive interpretation of the general norms as they apply to concrete realities of religious life. Article 6 provides:
In accordance with article 1 of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms:
The opening paragraph of Article 6 makes it clear that the specific examples of "freedom of thought, conscience, religion or belief" that follow are conceived as following from and being subject to the limitations of Article 1 of the 1981 Declaration, which, as explained above, merely recites verbatim the first three paragraphs of Article 18 of the ICCPR. The opening paragraph also stresses that the examples do not exhaust the notion of religious freedom.
- (a) To worship or assemble in connexion with a religion or belief, and to establish and maintain places for these purposes;
- (b) To establish and maintain appropriate charitable or humanitarian institutions;
- (c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;
- (d) To write, issue and disseminate relevant publications in these areas;
- (e) To teach a religion or belief in places suitable for these purposes;
- (f) To solicit and receive voluntary financial and other contributions from individuals and institutions;
- (g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;
- (h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;
- (i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.
For purposes of this background report, it is vital to note how many of the examples advanced by Article 6 presuppose as a practical matter ability to obtain juridical personality: to legal entities through which religious associations can carry out their affairs.
Consider the "right to worship or assemble" and to "establish and maintain places for these purposes" mentioned in paragraph (a). Historically, there have been countries where it has been illegal for a religious organization to acquire or own property. Clearly, an absolute bar of this type would impair the right of affected religious groups to worship and establish places of worship that are recognized by paragraph (a). Even without an absolute bar, however, it is extremely difficult and inconvenient to acquire or rent a building or space where worship can occur without legal personality. Theoretically, a group of religious believers could meet and worship in facilities owned by one of the members, using literature and other articles owned by one or more individuals in the group, and so forth. But even if the group in question is small and manageable, the potential problems are serious. If the member who owns the facility dies, the place of worship passes to his heirs, who may or may not be sympathetic to the worship of the other believers. If the owner is at fault in a traffic accident or some other legal matter, he or she can be sued, and may lose the worship facility as a result of the litigation. Often many of the individuals in the group will have contributed funds needed to purchase or rent the facilities. Placing the property in one person's name has certain risks, because that individual may leave the religious community, or may begin using the property in ways that others find objectionable.
Alternatively, the group might try to hold the property as an informal association. But then, it may be necessary to obtain the consent of all members of the association (and their heirs) before the religious facility can be sold, and this may be difficult or impossible, particularly if some members object to a proposed transaction. The rules that govern how decisions are made by informal associations may not correspond to the ways that are consonant with the beliefs of the religious group. There may be other practical obstacles. Landlords may be reluctant to lease facilities if they do not know the exact entity they are dealing with. Entering into contracts for maintaining facilities may be complex. Moreover, there may be times that a religious group needs to be able to sue for legal remedies, either against private parties or against the State. And so forth.
There are to this day some groups that have such deep conscientious scruples about avoiding dependence on and interaction with the state that they prefer the perils of proceeding without entity status. Surely, the wishes of such rare groups should be accommodated. But the overwhelming number of groups would prefer to avoid such problems. In contemporary legal settings, it is extremely important that for a religious organization to be able to establish and control a legal entity with juridical personality that is capable of owning property, entering into contracts, and in general, having the capacity to manage and carry out the association's temporal affairs. This concern applies as clearly to the immovable (real) property needed for teaching a religion or belief (paragraph (e)), and may well apply with respect to property needed for carrying out charitable, humanitarian, and publication aspects of religious work (paragraphs (b), (d) and (i)). Similar concerns can also apply to movable (personal) property, including books, clothing, vehicles, telephones and other means of communication, sacred artifacts, and so forth, that may be involved in paragraphs (a)-(f), and (i). It is for this reason that every legal system within the OSCE area has developed mechanisms for at least some religious groups to use in possessing, acquiring and owning property. The structures that have developed are diverse, including trusts, corporations, registered associations, public corporations (Körperschaften des öffentlichen Rechts), recognized churches, and so forth. But those that comply with Article 6 and the religious freedom norms it embodies make it possible for religious organizations to carry out the full range of religious activities in which they are privileged to engage under international instruments such as the ICCPR.
Article 6 rightly recognizes the practical importance of soliciting and receiving voluntary contributions. Just as a religious organization cannot carry out its temporal affairs without adequate legal structures, so it cannot function without adequate funding. The need to manage funds and make certain they are used in accordance with the beliefs of the religious community also makes it vital as a practical matter to have a legal entity with capacity to receive and manage financial resources, with authority to do so in a manner that is consistent with the religious beliefs of the religious organization in question (within the constitutional framework and legitimate legal structures of the relevant State).
The training, appointment, election and designation of religious leaders addressed by paragraph (g) goes to the core of a religious organization's internal affairs. Ecclesiastical structure is itself a deep, and sometimes deeply contested, matter of conscientious belief. In order to afford adequate respect to these religious beliefs, laws governing religious associations must be sufficiently flexible to respect the differing ecclesiologies of different religious communities, provided they do not pose a fundamental and imminent threat to the relevant legal order.13
The range of entities needed is not restricted to religious entities per se, but must also be sufficiently flexible for religious organizations to carry out activities that go considerably beyond standard worship activities. There have been times in the past, for example, when religious organizations have been precluded from carrying out charitable or educational activities. Such constraints clearly impair the rights of religious organizations which have religiously-based beliefs about the importance of engaging in charitable, humanitarian or educational efforts. The law of associations of a particular state accordingly should not hamper such efforts, and on the contrary, should facilitate religiously motivated work in these areas, by making appropriate legal structures available.
The types of legal entities made available to various groups often carry with them differential access to a variety of benefits, including direct or indirect financial assistance, rights to perform rites with legal implications, such as marriage, rights to serve subgroups of their members who are in restricted settings, and the symbolic prestige that is associated with some types of recognition. Multi-tiered structures of available entities reflecting a variety of historical and cultural background considerations are common in Europe. While there is a margin of appreciation for cultural differences in this area, the types of legal structures made available should not be manipulated in discriminatory ways that make it possible for some but not other religious groups to carry out their activities, particularly where this interferes unreasonably with normal religious ministry. For example, smaller religious groups have the same interests and rights as larger groups to train their clergy, educate their members, visit their sick in hospitals, visit their prisoners, and care for their members in the military as mainline denominations. Multi-tiered religious association laws should not preclude those on lower "tiers" from engaging in activities in these areas.
Article 6 does not exhaust the range of situations in which religious liberty questions arise, but it clearly captures many of the most significant contexts in which the legally binding treaty provisions dealing with freedom of religion or belief arise. While Article 6 does not directly articulate a right to entity status as such, the foregoing comments help make it clear why the ability to obtain such status is necessarily presupposed by the 1981 Declaration.
2.3.1 UN Human Rights Committee's General Comment interpreting Article 18
In 1993, the UN Human Rights Committee issued its General Comment No. 22 (48), which provides a detailed official interpretation of the meaning of Article 18.14The General Comment addresses many aspects of freedom of religion or belief, only some of which can be mentioned here. It begins by noting that "[t]he right to freedom of thought, conscience and religion ... is far reaching and profound; it encompasses freedom of thoughts on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others". It notes that "the fundamental character of these freedoms is ... reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4(2)."
The General Comment further notes that limitations on freedom of religion, to the extent permissible at all, are only allowed with respect to manifestations of religion.
Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one's choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19(1). No one can be compelled to reveal his thoughts or adherence to a religion or belief.
Similarly, "[t]he freedom from coercion to have or to adopt a religion or belief and the liberty of parents and guardians to ensure religious and moral education cannot be restricted". This is consistent with the notion that internal beliefs themselves may not be regulated, and also follows from the fact that these matters are addressed separately in Article 18(2).
The General Comment pays particular attention to the permissible restrictions on manifestations of religion.
In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination ... Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. ... [P]aragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. (Emphasis added.)
Laws governing the ways that religious communities acquire legal personality and organize their temporal affairs constitute limitations on the organizational manifestations of religion or belief. Like any other limitation on freedom of religion, they must be justifiable under the exacting standards set forth in General Comment No. 22. It is not enough to suggest that laws governing religious associations are important for public order, protection of health and other such legitimating purposes. In addition, it must be clear that the restrictions are proportionate to the ends pursued and that they are not applied with discriminatory purpose or in a discriminatory manner.
2.4 The European Convention on the Protection of Human Rights and Fundamental Freedoms
2.4.1 The substantive right to religious freedom
Article 9 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereafter European Convention on Human Rights or ECHR), which contains the Convention's key substantive provision on freedom of religion or belief, closely parallels the language of the Universal Declaration and was drafted soon after the Universal Declaration:
The first paragraph of Article 9 tracks Article 18 of the Universal Declaration word for word. The second paragraph is virtually identical to the limitations clause of Article 18 of the ICCPR, except that the necessity requirement is elaborated by the phrase "in a democratic society". In practice, the "necessary in a democratic society" constraint has imposed the sharpest limitations on permissible justifications for overriding religious freedom rights. As in other international instruments, the importance of protecting communal dimensions of religious life is stressed.
- 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.
- 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.
2.4.2 Authoritative interpretation of Article 9
A growing number of cases from the European Court of Human rights have construed Article 9. These cases have dealt with issues such as the right to engage in religious persuasion,15the right to issuance of a house of prayer permit,16limitations on parental rights to veto involvement of their children in patriotic activities,17the power of the a government to force the retirement of a Muslim fundamentalist from its military,18and the impermissibility of requiring a religious oath.19Moreover, if one considers the jurisprudence of the Commission, the case law interpreting Article 9 is much more extensive.20
As with Article 18 of the ICCPR, the starting point for analysis of Article 9 is to recognize that the limitations paragraph applies only to manifestations of religion. The "right to freedom of thought, conscience and religion" guaranteed by paragraph 1 is absolute, to the extent that it has not entered the realm of manifestation.21This distinction has numerous practical implications. As van Dijk and van Hoof have commented,
the freedom of thought . . . implies that one cannot be subjected to a treatment intended to change the process of thinking, that any form of compulsion to express thoughts, to change an opinion, or to divulge a religious conviction is prohibited, and that no sanction may be imposed either on the holding of any view whatever or on the change of a religion or conviction.22
Note that beliefs regarding structure are often themselves matters of conscientious belief. Whether a church should be governed by bishops, by a priesthood of all believers, by local congregations, or in some other manner is often a question of religious belief. As implemented in the life of a religious community, such ecclesiastical structures obviously manifest beliefs. But at the point where a religious community is submitting documents as part of an application for legal entity status, the situation is more ambiguous. In some participating States, religious affairs officials have been known to recommend changes in such structures, to dispute the qualifications for particular offices, and to withhold approval of entity documents until changes have been made. In some cases, this operates as state compulsion to change a view or opinion about a matter of belief. Whether because such beliefs are absolutely protected, or because it is not "necessary in a democratic society" to intervene in this area, it is clear that encroachments of this nature are inconsistent with fundamental religious freedom norms. Better practice is suggested by the German Constitutional Court, which required that civil law conditions for entity status be adjusted to meet the religious requirements of a particular religious community.23
This leads to the second basic feature of Article 9: permissible limitations on religious freedom. The second paragraph of Article 9 establishes three tests that a limitation on a manifestation of religion must pass in order to justify overriding the right to freedom of religion or belief. First, the limitation must be "prescribed by law". The European Court of Human rights has held that this phrase "does not merely refer back to domestic law but also relates to the quality of law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention".24Accordingly, this test can be referred to as the "rule of law constraint". Arbitrary bureaucratic fiat is not sufficient to pass this test. Similarly, rules that are impermissibly vague may fail to meet this test. Too often, standards for eligibility for acquiring entity status or for involuntary dissolution are unduly vague and may leave room for arbitrary official discretion.
The second constraint is the limited set of permissible justifications: limitations must be "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". While this list narrows somewhat the range of state interests that can justify overriding religious freedom (national security interests, for example, are not alone sufficient), this set of objectives is in fact extremely broad. There are relatively few limitations that a State might want to impose on a religious group that cannot be fit into one or another of these categories.
Not surprisingly, then, in all of the cases in which the European Court of Human Rights has found that a limitation violates Article 9, it has been the third constraint-the "necessary in a democratic society" requirement - that has been the critical constraint. In the Court's view, democratic society necessarily presupposes religious pluralism. In articulating the importance of freedom of religion or belief, the European Court has noted that it 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, sceptis and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it".25Similarly, the Court has acknowledged the significance of the "pluralism, tolerance and broadmindedness without which there is no democratic society".26The Court has, of course, recognized the importance of a margin of appreciation of cultural difference in this area. This is vital to the gradual process of European integration while maintaining respect for difference in relation to religious and cultural matters. Nonetheless, the Court has made it clear that in delimiting the margin of appreciation that applies to religious freedom issues, it "must have regard to what is at stake, namely the need to secure true religious pluralism, an inherent feature of the notion of a democratic society".27With this background in mind, the Court has construed the "necessary in a democratic society" requirement to mean that the limitation in question must be "justified in the circumstances of the case by a pressing social need" and that the contested measure must be "proportionate to the legitimate aim pursued".28Moreover, in assessing whether a restriction is proportionate to the legitimate aim pursued, "very strict scrutiny" must be applied.29
The Manoussakis case has particular relevance to typical statutes that address legal entity issues. That case involved a challenge by Jehovah's Witnesses to criminal convictions for use of facilities for worship without obtaining a house of prayer permit. In fact, efforts had been made for years to obtain such a permit, but the relevant government officials year after year continued to maintain that they were not "in a position to grant them the authorization requested".30 The Court found it unnecessary to determine whether the limitations in question were "prescribed by law" or legitimately furthered state objectives such as public order, since the state conduct in failing to grant the house of prayer permit could not pass the "necessary in a democratic society" test. In the Court's words,
[m]ore particularly, their conviction had been persecutory, unjustified and not necessary in a democratic society as it had been "manufactured" by the State. The State had compelled the applicants to commit an offence and to bear the consequences solely because of their religious beliefs. The apparently innocent requirement of an authorization to operate a place of worship had been transformed from a mere formality into a lethal weapon against the right to freedom of religion. The term "dilatory" used by the Commission to describe the conduct of the Minister of Education and Religious Affairs in relation to their application for an authorization was euphemistic. ... [The Court noted] a climate of interference and oppression by the State and the dominant church as a result of which Article 9 of the Convention had become a dead letter.31(Emphasis added.)
In holding that the convictions violated Article 9, the Court noted several features of the house of prayer permit scheme that were objectionable. These are noteworthy in that they have more general implications for other regulatory schemes, such as religious association laws, that have the potential to interfere with religious life. Already evident from the above passage is that the State may not manufacture violations by manipulating seemingly innocent formalities to obstruct religious practices. The Court further objected to the fact that a certain national law allowed "far-reaching interference by the political, administrative and ecclesiastical authorities with the exercise of religious freedom", and vested officials with "very wide discretion".32Also objectionable was the fact that the officials could postpone indefinitely decision on the house of prayer permit.33Some of the criteria for granting the permit were substantively objectionable. For example, state officials were allowed "to assess whether there is a `real need' for the religious community in question to set up a church".34In criticizing the discretion left to officials, the Court held that "[t]he 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".35The Court accordingly concluded that the house of prayer authorization requirement could be squared with Article 9 "only in so far as it is intended to allow the Minister to verify whether the formal conditions laid down . . . are satisfied".36The analogue with respect to religious entity laws would be that formal review of statutes, charters, articles of incorporation, and so forth may be permissible, but only if there is no substantive assessment of the beliefs and practices involved. The Court also noted that conditioning permit approval on favorable review by clergy of another Church (technically required by the law, but not enforced) would clearly be impermissible.37
2.4.3 Freedom of association
Article 11 of the ECHR, dealing with freedom of association, is also germane:
2.4.4 Case law construing Article 11
- 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
- 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
The European Court's 1998 decisions in United Communist Party of Turkey v. Turkey38 and Sidiropoulos & Others v. Greece39 are landmarks in freedom of association that have significant implications for the law of religious associations. In the Sidiropoulos case the Court stated categorically that "the right to form an association is an inherent part" of the right to freedom of association and that
citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which the right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association's aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions.40
As with limitations on manifestations of religion, the Court emphasized that in assessing the right to association, exceptions in Article 11(2)
are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts.41
In the Communist Party case, the Court held that freedom of association
would be largely theoretical and illusory if it were limited to the founding of an association, since the national authorities could immediately disband the association without having to comply with the Convention. It follows that the protection afforded by Article 11 lasts for an association's entire life and that dissolution of an association by a country's authorities must accordingly satisfy the requirements of paragraph 2 of that provision.42
Taken together, the two recent rulings support a strong right to association that covers both the right to acquire and to maintain legal entity status. If citizens have a right to form a legal entity for the politically controversial type of cultural or political organizations involved in the Sidiropoulos and Communist Party cases under Article 11, they should a fortiori have the right to a legal entity for a religious association that can claim protection under both Articles 9 and 11. Both the laws of religious associations and the application of those laws in particular countries should be subject to the strict scrutiny required under both articles.
2.4.5 Other relevant standards under the ECHR
Several other provisions of the ECHR can no doubt be brought into play in analyzing religious association laws of participating States. Laws which do not allow appeal to independent judicial institutions from denial or termination of entity status would appear to violate the right of access to court established under Article 6(1) and, to the extent that such actions violate Articles 9 or 11, the right to an effective remedy under Article 13.
Depending on their structure, religious association laws may violate non-discrimination provisions of the ECHR (Articles 1, 14). Given that many European countries have Church-State systems with complex Church finance schemes that tend to benefit dominant religions more than smaller or newer groups, and that such schemes antedated the Convention, it seems unlikely that the diverse financing schemes that have evolved will be struck down by the Court, provided that there are reasonable and objective criteria for differential treatment, that particularly blatant or targeted discrimination is avoided, and that less favored groups are at least accorded full freedom to carry out their perceived religious objectives and activities.
One recent case under Article 6(1) has particular relevance. In Canea Catholic Church v. Greece,43a Roman Catholic Church in Canea brought suit against two neighbours for destruction of one of the walls around the church building. The neighbors claimed that the Church had no legal personality and thus had no right to institute legal proceedings. The case report contains rather extensive treatment of the various arguments as to whether the church had legal personality, and who within the church might assert it, but in the last analysis, the European Court of Human Rights held that deprivation of the right to sue would result in an impermissible deprivation of the right of access to court under Article 6(1). The Church maintained that
a church, of whatever denomination, should enjoy protection appropriate to its nature and to the purpose for which it was intended. By virtue of the the act of its foundation according to the rules of the religion to which it was dedicated, a church like the applicant church had the continuity which the law normally ascribed to legal persons; it therefore did not need to produce a document proving that it had acquired legal personality in accordance with the formalities laid down by law ...44
Greece in contrast maintained that while religious groups were free to determine their own internal management, they had to comply with national legislation in relations with the State.45Noting that the legal personality of the church in question had not been called into question for an extended period, the Court concluded that the gravamen of the claim was that access to a court was being denied. The church was entitled to rely on settled case law and administrative practice that had never previously questioned its legal personality. In effect, the Court held that as a functional matter, a church had at least sufficient legal personality to sue, simply because of its right of access to a court; denying its capacity to sue would violate its right to a court under Article 6(1).
In addition, the Greek court's denial of legal personality violated Article 14 taken together with Article 6(1). Under Greek law, both the Greek Orthodox Church and Greece's Jewish community apparently had functionally automatic access to entity status, and did not have to formally apply for such status as the Catholic Church was being required to do. The Court took no position as to whether the Church in question would be entitled to personality in public law or in private law,46which might entail some difference in status. It simply noted the unfairness that the applicant Church "has been prevented from taking legal proceedings to protect [its property], whereas the Orthodox Church or the Jewish community can do so ... without any formality or required procedure".47
The Canea case involves fairly unique facts. The Church in question had a history dating back centuries, and had in effect been treated for years as though it had legal personality. It is not clear to what extent the same analysis would hold for a newer religion that did not have the same history of transactions and reliance on having entity status for many transactions. Still, the case suggests that there may be aspects of legal personality to which a church is entitled even without complying with any formalities. Taken together with the freedom of association cases, it helps establish a fairly strong right to entity status under the ECHR.