Seminar 4 - Religion and Human Rights Flashcards
(27 cards)
Main Legislation
UDHR - Article 18 - Everyone shall have the right to freedom of thought, conscience and religion. Includes freedom to have belief, individually or community. Manifest in worship, observance, practice and teaching.
ICCPR - Article 18
ECHR - Article 9
Two points that come out of the legislation
1) Freedom to have religion or belief of choice
2) Freedom to manifest religion
Structure of protection (ECHR)
Art 9(1) Absolute protection in belief Art 10 Qualified protection in expression Art 9(2) Qualified protection in Action
Article 9(2) ECHR
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and necessary in a democratic society in the interests of public safety, protection of public order, health or morals, protection of the rights and freedoms of others.
However not all acts motivated by religious beliefs qualify as manifestation. If you have a choice and can avoid the restriction, it is not interference.
Framework to test this
1) Does the matter relate to a protected belief?
2) If so, does the individuals act constitute a manifestation of that belief
3) If so, does the act complained of constitute a limitation on, or interference with that individuals manifestation of his or her belief
4) If so, is that interference justified?
a) Prescribed by law
b) Undertaken in pursuance of the stipulated objectives
c) Necessary for, and proportionate in scope to those objectives
What is a protected belief?
Must be consistent with basic standards of human dignity, worthy of a democratic society
Relate to matters more than merely trivial
Must be coherent in the sense of being intelligible and being understood
Genuinely held
They are modest, but they are important to religious beliefs.
Four legal challenges
1) Protecting religious practices from state interference
2) Manifesting religion in the public sphere
3) Accommodation of religious belief
4) Respect for religious sensitivity
Protecting religious practices from state interference
Dogan v Turkey -
In relation to autonomy for religious communities, only the highest spiritual authorities of a religious community, and not the State may determine to which faith that community belongs
Manifesting religion in the public sphere
There are different models within Europe based on this. (Separation, existence of a state church, concordat-type arrangements)
France and Turkey - Assertive secularism
Whether the individual or state can display religious symbols. There is a public and private distinction.
What belongs in public sphere? SAS, Eweida
Public institutions? Dahlab, Sahin, Doğru, Eweida, Begum
Margin of appreciation - There is a subsidiary role of the convention mechanism. Court has held on many occasions that national authorities are in principle better placed than international ones to evaluate local needs and conditions. HR has more than one reasonable interpretation.
Reasons for restriction in public sphere
Public order argument Health and Safety Putting pressure on others Argument about gender equality Argument from secularism and margin of appreciation
Leyla sahin v Turkey
Secularism considers it paramount to ban wearing of religious symbols in unis, as where values of pluralism are respecting women, and men equally, would contradict with allowing religious attire.
S.A.S v France
2011 law banning all face-coverings in public places. Criminalised wearing of niqab and burka.
2 legitimate aims argued by France -
Public safety (Identity fraud)
Respect for the minimum set of values of an open and democratic society
Court accepted public safety aim, but the second is not in the exhaustive list in Art 9(2)
France then gave 3 sub arguments about values -
1) Gender Equality (Rejected) How when some women choose to wear it
2) Human Dignity - (Rejected) Clothing may be seen as strange but expression of cultural identity, no evidence those who wear it intend to offend
3) Respect for the minimum requirements for life in society (Accepted) Link to protecting rights of others
They stated they accept that France believed it breaches ‘the right of others to live in a space of socialisation which makes living together easier’
Dissents - Criticise reliance on abstract living together principle
Concrete individual rights are being sacrificed to abstract principle
GC did not identify concrete rights of others
Thus didn’t meet legitimate aim of Art 9(2)
It is disproportionate instead of criminalising it should educate and raise awareness
Begum v Governors of Denbigh High School
School uniform policy banned jilbab (full length) but permitted headscarves etc. Begum suspended for wearing jilbab. Headteacher argued policy was carefully designed to serve needs to diverse student community.
Split in judges
Bingham, Hoffman and Scott - Art 9 engaged, her belief is protected, and it qualifies as a manifestation, but no interference with her Art 9 rights
Hale and Nicholls - Art 9 engaged and possible interference with her rights, if so interference is justified under Art 9(2)
Accommodation of religious beliefs
Under what conditions should the state grant exemption from generally application rules.
Amish parents wanting exemption from compulsory education
Flight attendant not serving alcohol
Protection of religious sensibility - Otto-Preminger Institut v Austria
Those who choose to exercise the freedom to manifest their religion, cannot reasonably expect to be exempt from all criticism. Must tolerate and accept the denial by others of their religious beliefs and even propagation by others of doctrines hostile to their faith. The way which they oppose or deny is a matter for the state as they must ensure peaceful enjoyment of the right of Art 9.
IA v Turkey
Issue was about whether individual could impart to the public his views on religious doctrine, and the right of others to respect their freedom of thought.
Not only comments that offend or shock, but also abusive attack on the Prophet of Islam
Human Rights Council Resolution 7/19 (2008)
Combating Defamation of Religions
Recognises that in context of fight against terrorism it becomes aggravating factor, that contributes to the dental of fundamental rights of targeted groups
Urges states to take actions to prohibit dissemination, including through political institutions, racist ideas, material aimed to constitute incitement to racial hatred
Emphasizes that everyone has right to freedom of expression but it has special duties and responsibilities
Cases for protecting religious groups from the state
Hassan v Bulgaria - Election of leader interfered with
Manoussakis v Greece - Jehovah Witnesses held to have breached local law, in making worship room but no
Dogan v Turkey - Alevis sec of Islam, halted from building worships place, civil servants, budget, Government claimed it was within Islam no need held to breach
Cases for manifesting religion
Boodoo v Trinidad and Tobago - Shaved his beard, didn’t allow him to pray took prayer book, not allowed
General Comment No 22 1993 - Can believe in any religion but manifesting it is different, restrictions on it (war, threatening)
Dahlab v Switzerland - Primary School teacher told that being banned from wearing a headscarf did not interfere with her Art 9
Eweida v UK - Wearing religious necklace, held that it did interfere with Art 9 due to BA trying to stop this
S.A.S v France - Burqa Ban
Sahin v Turkey - Traditional family, couldn’t wear in med school, no interference as necessary for democratic society
R v Denbigh - School girl full length niqab, held not to b
Cases for freedom of expression and religious sensibility
Muller v Switzerland - Unreasonbel to take away artists work depicting sexual acts
Otto-Preminger-Institut v Austria - Satirical performance that contained trivial imagery of Christianity. Seized the film. ECtHR did not find it to be violation of Freedom of Expression
Wingrove v UK - Nun having erotic fantasy’s with Christ. State is in a better position to analysis this.
IA v Turkey - Did not violate freedom of expression by convicting book publisher.
OHCHR on France’s ban
United Nations Human Rights Committee held that France have violated the two women who wore niqabs. They found that the general criminal ban on wearing niqab in public is disproportionately harmed their right to manifest their religious beliefs, and French has not adequately said why they banned it. Not persuaded by needed for living together. Also is rather marginalised the women.
Idriss
Burqa Ban - MPs have called for it but it would contradict the UK’s ideal of diversity.
SAS - Government is attempting to erase differences that exist, by not wearing face coverings may cause guilt etc for women. By okaying it allows for this to become European wide, which would make them invisible. Undermines the autonomy for those who choose to wear it
Begum - A lot of effort when into to come up with dress code
Steinback
The ban doesn’t protect legitimate aims, rather it protects a socio-economic norm that interests the public.
Vakulenko
Leader of HoL sparked controversy in saying finds it uncomfortable talking to women in face coverings.
Begum - It was overturned by HoL as local knowledge was classed as knowing more. Bingham reiterated there is a difference between having and manifesting a belief. Davies claimed relying on the teacher was too much
