Author: Tomix
Company: Seta

2007 Reports

Right to life (Article 2) 
 
An applicant complained that British legislation authorised her ex-partner to withdraw his 
consent to the storage and use of jointly created embryos. In her opinion, this amounted to an 
infringement of the embryos’ right to life, in breach of Article 2. Under British law, an embryo does not have independent rights or interests and cannot claim – or have claimed on its behalf – a right to life under Article 2. The Grand Chamber found that the issue of when the right to life begins comes within the margin of appreciation the Court generally considers that States should enjoy, and that the embryos created in this way did not have a right to life and there had not, accordingly, been a violation of Article 2 (Evans v. the United Kingdom9).
[GC], no. 6339/05, to be reported in ECHR 2007

Medical issues  
 
The case in Evans 42, cited above, undoubtedly raised issues of a morally and ethically delicate 
nature, since it concerned the removal of ova for the purpose of in vitro fertilisation (IVF). The 
Grand Chamber emphasised that the decision to use IVF treatment gave rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, which touched on areas where there was no clear common ground amongst the member States of the Council of Europe. The margin of appreciation to be afforded to the respondent State had therefore to be a wide one, and this margin must in principle extend both to the State’s decision whether or not to enact legislation governing the use of IVF treatment and, once having intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests. The Court did not consider the legal obligation to obtain the father’s consent to store and implant the fertilised eggs to be contrary to Article 8, given the lack of European consensus on this point, the fact that the domestic rules were clear and had been brought to the attention of the applicant, and that they struck a fair balance between the competing interests.  
 
In contrast, in the case of Dickson v. the United Kingdom43[GC], no. 44362/04, to be reported in ECHR 2007, the Grand Chamber held that there had been a breach of Article 8 on account of the refusal of a request for artificial insemination facilities, submitted by a prisoner whose wife was at liberty, since a fair balance had not been struck between the competing public and private interests involved.  
 
In the case of Tysiąc v. Poland44No. 5410/03, to be reported in ECHR 2007, which concerned a refusal to carry out a therapeutic abortion despite the risk that the mother’s eyesight would deteriorate seriously if she continued with the pregnancy, the Court examined how the legal framework governing the use of therapeutic abortion in Poland had been applied in the applicant’s case and how it had addressed her concerns about the possible negative impact of pregnancy and birth on her health. It concluded that the State had failed to comply with the positive obligation to safeguard the applicant’s right to respect for her private life within the context of a dispute concerning her entitlement to a therapeutic abortion. 

Right to education (Article 2 of Protocol No. 1) 
 
Religious education classes 
 
The case of Folgerø and Others v. Norway 58[GC], no. 15472/02, to be reported in ECHR 2007. 
 concerned the refusal to grant total exemption to pupils in State primary schools and the first level of secondary education from lessons in Christianity, religion and philosophy. Non-Christian parents alleged that the obligation on their children to follow these lessons had entailed an unjustified interference with the exercise of their right to freedom of conscience and religion, and had been in breach of their right to ensure that their children received an education in conformity with their religious and philosophical convictions. The Grand Chamber considered that the parents’ complaint, based on Article 9 of the Convention and Article 2 of Protocol No. 1, fell to be examined under the latter provision, which was the lex specialis in the area of education. In the Court’s view, the system of partial exemption was capable of subjecting the parents concerned to a heavy burden with a risk of undue exposure of their private life and that the potential for conflict was likely to deter them from requesting such exemptions. In certain instances, notably with regard to activities of a religious character, the scope of a partial exemption might even be substantially reduced. This could hardly be considered consistent with the parents’ right to respect for their convictions for the purposes of Article 2 of Protocol No. 1, as interpreted in the light of Articles 8 and 9 of the Convention. The Court found that the State had not taken sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner.  

- 73 - 
Freedom of religion (Article 9) 
 
In the case of Ivanova v. Bulgaria49 No. 52435/99, to be reported in ECHR 2007, an employee who was also a member of a religious community that was not officially recognised and in relation to which various events hinted at a policy of intolerance on the part of the authorities, had been dismissed on the ground that she no longer met the requirements for her post. The domestic courts had considered that her employer had both a need and the right to change the roster of posts and the requirements for the applicant’s post and to dismiss her because she did not meet those requirements. However, considering the sequence of events in their entirety, the Court reached the conclusion that the applicant’s employment had in reality been terminated because of her religious beliefs and affiliation with the community in question. The fact that her employment had been terminated in accordance with the applicable labour legislation – by introducing new requirements for her post which she failed to meet – did not eliminate the substantive motive for her dismissal. The right to freedom of religion had been violated because the applicant’s employment had been terminated on account of her religious beliefs.  

The judgment in Perry v. Latvia50No. 30273/03, 8 November 2007 dealt with the politically sensitive issue of the direct implications of Article 9 in the area of immigration. A foreign missionary who had held a residence permit which implied authorisation to organise public activities of a religious nature had subsequently been refused a renewal of his residence permit under the same conditions and rules. A different type of permit which did not entitle him to continue to perform religious activities was issued. He was thus compelled to stand down as pastor of his parish and to become an ordinary member. The main reason for his move to Latvia had been the creation of a community of his faith and preaching within that community. The withdrawal of permission to organise religious activities when renewing his residence permit, although he wished to continue those activities, represented an “interference” within the meaning of Article 9. In his capacity as a pastor, his freedom to manifest his religion had been affected, although he could continue to take part in the spiritual life of his parish as an ordinary member. No provision of Latvian law in force at the material time had entitled the Nationality and Migration Directorate to use the renewal of a residence permit as a pretext for prohibiting a foreign national from performing religious activities: the interference had not therefore been “prescribed by law”. 
 
The case of Carlo Spampinato v. Italy51 (dec.), no. 23123/04, to be reported in ECHR 2007.  raised the issue of the legal obligation to allocate part of one’s income tax to the State, the Catholic Church or an institution representing another religion. The applicant complained that he was obliged to manifest his religious beliefs when submitting his tax declaration. The complaint was declared inadmissible. As taxpayers had the option of expressing no choice – in which case the amount was divided on a pro rata basis – this system entailed no obligation to manifest one’s religious beliefs in a way that could be considered contrary to the Convention. 
HOLY SYNOD OF THE BULGARIAN ORTHODOX CHURCH (REPRESENTED BY METROPOLITAN INOKENTII) and Others/et autres - Bulgaria/Bulgarie (Nos 412/03 and/et 35677/04) Decision/Décision 22.5.2007 [Section V] - No 97 
 
 97 MEMBERS OF THE GLDANI CONGREGATION OF JEHOVAH'S WITNESSES AND 4 OTHERS - Georgia (No 71156/01)
Violent assault on a congregation of Jehovah's Witnesses by a group purporting to support the Orthodox Church and lack of an effective investigation: violation.

GRZELAK - Poland/Pologne (N 7710/02) [Section IV] - No 97 

Lack of suitable alternative arrangements for pupils opting out of religious instruction in state primary schools: communicated. 

SVYATO-MYKHAYLIVSKA PARAFIYA v. Ukraine (No 77703/01) Judgment/Arrêt 14.6.2007 [Section V] - No 98
Authorities' refusal to register amendments to the statute of an Orthodox parish which decided to change canonical jurisdiction: violation. 

Authorities' refusal to register a religious organisation and eviction of its members from a mosque: communicated.
JUMA MOSQUE CONGREGATION and Others/et autres - Azerbaijan/Azerbaïdjan (N 15405/04) [Section I] - No 98 

Conviction for publications inciting hatred towards the Jewish people: inadmissible. 
IVANOV - Russia/Russie (No 35222/04) Decision/Décision 20.2.2007 [Section I] - No 94

Ship prevented from entering territorial waters to protest against Portuguese abortion laws: 
communicated. 
WOMEN ON WAVES et autres/and Others - Portugal (No 31276/05) [Section II] - No 94 

Minority church prevented from worshipping in public: violation. 
BARANKEVICH/BARANKEVITCH - Russia/Russie (No 10519/03) Judgment/Arrêt 26.7.2000[Section I] - No 99

Bad-faith denial of re-registration, resulting in the applicant association's loss of legal status: violation. 
CHURCH OF SCIENTOLOGY MOSCOW / EGLISE DE SCIENTOLOGIE DE MOSCOU -Russia/Russie (No 18147/02) Judgment/Arrêt 5.4.2007 [Section I] - No 96

Unlawful refusal to grant permission for a march and meetings to protest against homophobia: violation.
BĄCZKOWSKI and Others/et autres - Poland/Pologne (No 1543/06) Judgment/Arrêt 3.5.2007[Section IV] - No 97

Return of a child to its father in the United States under the Hague Convention on the Civil Aspects of International Child Abduction: no violation. 
 MAUMOUSSEAU et/and WASHINGTON - France (No 39388/05) Arrêt/Judgment 6.12.2007 [Section III] - No 103

Refusal to enforce a full adoption order by a foreign court in favour of a single woman:violation. 
 WAGNER et/and J.M.W.L. - Luxembourg (No 76240/01) Arrêt/Judgment 28.6.2007 [Section I] - No 98

Prohibition under domestic law on the use of ova and sperm from donors for in vitro fertilisation: admissible
HALLER and Others/et autres - Austria/Autriche (No 57813/00) Decision/Décision 15.11.2007 [Section I] - No 102

Failure to introduce implementing legislation to enable a transsexual to undergo gender reassignment surgery and change his gender identification in official documents: violation.
L. - Lithuania/Lituanie (No 27527/03) Judgment/Arrêt 11.9.2007 [Section II] - No 100

Ban on bringing fresh divorce proceedings within three years of the dismissal of an initial petition no longer applicable owing to the expiry of the relevant period: inadmissible. 
KARAKAYA (YALÇIN) - Turquie/Turkey (No 29586/03) Décision/Decision 5.6.2007 [Section II] - No 98

Prohibition of long-term family visits to detained applicant and his subsequent deportation: violation. ESTRIKH - Latvia/Lettonie (No 73819/01) Judgment/Arrêt 18.1.2007 [Section III] - No 93

Failure to perform timely prenatal tests, barring access to abortion and resulting in birth of a child  suffering from genetic illness: communicated.
R.R. - Poland/Pologne (No 27617/04) [Section IV] - No 97 

2006 Reports

Husbands undergo gender reassignment surgery following their marriage but are barred by law from obtaining full gender recognition since they wish to remain married: inadmissible.
 R. and/et F. - United Kingdom/Royaume-Uni (No 35748/05) PARRY - United Kingdom/Royaume-Uni (No 42971/05) Decisions/Décisions 28.11.2006 [Section IV] - No 91

Article 8 (private and Family life)

Refusal to allow foreign mother to remain in the Netherlands, where she has been staying without holding a residence permit, in order to share in the care of Dutch child born there: violation.
RODRIGUES DA SILVA AND/ET HOOGKAMER - Netherlands/Pays-Bas (N 50435/99) Judgment/Arrêt 31.1.2006 [Former Section II] - No 82

Refusal to permit widow to transfer her late husband's urn to a family burial plot in a different city: no violation. 
ELLI POLUHAS DÖDSBO - Sweden/Suède (N 61564/00) Judgment/Arrêt 17.1.2006 [Section II] - No 82

Withdrawal of residence permit and imposition of ten-year exclusion order, resulting in the applicant's separation from his partner and two children: no violation.
ÜNER - Netherlands/Pays-Bas (No 46410/99) Judgment/Arrêt 18.10.2006 [GC] - No 90

Detention in a transit centre in Belgium and removal to the Democratic Republic of Congo of an unaccompanied 5-year-old foreign minor whose mother is a refugee in Canada: admissible 
 MUBILANZILA MAYEKA et/and Tabitha KANIKI MITUNGA - Belgique/Belgium (No 
13178/03) Décision/Decision 26.1.2006 [Section I] - No 84

Granting by the Supreme Court of custody over two children to person with whom they were living, instead of the father, given the preference expressed by the children to stay with this person: violation. 
C. - Finland/Finlande (N 18249/02) Judgment/Arrêt 9.5.2006 [Section IV] - No 86

Taking into care of children from a large family on the sole ground that the family's housing was inadequate: violation. 
 WALLOVÁ et/and WALLA - République tchèque/Czech Republic (No 23848/04) Arrêt/Judgment 26.10.2006 [Section V] - No 90 

Applicant banned from entering country in which proceedings leading to deprivation of his parental rights ended without his having been heard: violation
HUNT - Ukraine (No 31111/04) Judgment/Arrêt 7.12.2006 [Section V] - No 92

Article 9 
 
Freedom of religion 
 
Denial in bad faith of re-registration, resulting in applicant association’s loss of legal status: 
violation 
The Moscow Branch of the Salvation Army v. Russia, no. 72881/01, no. 90 

Article 10 
 
Freedom of expression

Conviction for defamation of the Christian community: violation 
Giniewski v. France, no. 64016/00, no. 82 

Conviction for defamation of Catholic archbishop: violation 
Klein v. Slovakia, no. 72208/01, no. 90

Freedom of association 
 
Temporary ban on political party on account of unauthorised gatherings: violation 
Christian Democratic People’s Party v. Moldova, no. 28793/02, no. 83

Lack of legislation allowing a transsexual to complete gender reassignment surgery and to marry as a male: admissible. 
L. - Lithuania/Lituanie (No 27527/03) Decision/Décision 6.7.2006 [Section II] - No 88

Abortion laws obliging applicant to have an abortion abroad despite accepted fatal foetal abnormality: inadmissible (non-exhaustion of domestic remedies).  
D. - Ireland/Irlande (No 26499/02) Decision/Décision 27.6.2006 [Section IV] - No 88

Husbands undergo gender reassignment surgery following their marriage but are barred by law from obtaining full gender recognition since they wish to remain married: inadmissible. 
R. and/et F. - United Kingdom/Royaume-Uni (No 35748/05) PARRY - United Kingdom/Royaume-Uni (No 42971/05) Decisions/Décisions 28.11.2006 [Section IV] - No 91

 

2005 Reports

Insufficient efforts seeking to reunite child and parent with sole custody under foreign law: violation. 
KARADŽIĆ - Croatia/Croatie (No 35030/04) Judgment/Arrêt 15.12.2005 [Section I] - N° 81

Applicant who criticises the measures taken after his divorce concerning his son, who was abducted abroad by the mother: admissible.
KOONS - Italie/Italy (No 68183/01) Décision/Decision 7.6.2005 [Section IV] – N° 76 

Obligation to remove turban when going through the security screen of an airport: inadmissible. 
 PHULL - France (N° 35753/03) Décision/Decision 11.1.2005 [Section II] – N° 7

Use of an apartment for religious gatherings subject to agreement of neighbours, and imposition of fine for having organised such a gathering in an apartment: inadmissible. 
 TANYAR et autres/and Others - Turquie/Turkey (No 74242/01) Décision/Decision 7.6.2005 [Section II] – N° 76

Obligation for the applicant to return to the State a church where it practised its religious cult for many years, following an inter-church conflict: communicated. 
 GRIECHISCHE KIRCHENGEMEINDE MÜNCHEN UND BAYERN E. - Allemagne/Germany (No 52336/99) [Section III] – N° 76

Conviction of a publisher to pay a fine for having published an insulting novel to the muslim religion: no violation. 
 I.A. – Turquie/Turkey (No 71525/01) Arrêt/Judgment 13.9.2005 [Section II] - N° 78

Conviction for defamation of the Christian community: violation. 
 GINIEWSKI - France (No 64016/00) Arrêt/Judgment 31.1.2006 [Section II] - N° 82

 80 
Freedom of religion (Article 9) 
 
One of the most emotive issues dealt with by the Court in 2005 concerned the wearing of the Islamic headscarf by Muslim women. The European Commission of Human Rights had a number of years ago declared inadmissible two applications brought against Turkey by young women students who had objected to being obliged to provide their university with identity photographs showing them with their heads uncovered, and the Court itself had previously rejected an application by a schoolteacher in Switzerland who had complained about not being allowed to wear the headscarf in school. In that respect, the Court had emphasised a teacher’s position of authority and influence, especially in the primary school context. 
The case of Leyla Şahin v. Turkey concerned a different aspect of the matter, namely the prohibition issued by Istanbul University on wearing the headscarf at lectures, courses and tutorials. The applicant, a medical student, was refused access to lectures and examinations and was later suspended for participating in a demonstration against the instruction. Her attempts to challenge the rules in the administrative courts were unsuccessful. 
 
In its judgment, the Grand Chamber placed great emphasis on the importance of secularism in the Turkish constitutional system in reaching the conclusion that there had been no violation of either Article 9 of the Convention or of Article 3 of Protocol No. 1. It affirmed that the “notion of secularism [is] consistent with the values underpinning the Convention” and accepted that “upholding that principle, which is undoubtedly one of the fundamental principles of the Turkish State which are in harmony with the rule of law and respect for human rights, may be considered necessary to protect the democratic system in Turkey”.

Referring to the judgment in Refah Partisi (the Welfare Party) and Others v. Turkey3, which concerned the banning of a pro-Islamic political party, the Grand Chamber stated: “An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention.” The Grand Chamber furthermore endorsed the Chamber’s reference to the importance of gender equality, stressing that “there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it”, as well as to the political significance the headscarf had taken on in Turkey and the existence of extremist political movements there. Indeed, the very specific Turkish context was an important factor in the Court’s consideration of the case. As to the proportionality of the measure, the Court took into account the fact that practising Muslim students were free, “within the limits imposed by the constraints of educational organisation”, to manifest their religion in accordance with habitual forms of Islamic observance, as well as the fact that the university authorities had sought through continued dialogue to avoid barring access to the university to students wearing the Islamic headscarf. On that basis, it found that the interference was justified and proportionate. It may be noted that this approach has subsequently been extended to a prohibition on the wearing of the Islamic headscarf by both pupils in secondary schools and university teachers. 
 
Freedom of expression (Article 10)
 82 
(ii)  Freedom of expression and religious sensibilities 
 
Another topical issue was raised in İ.A. v. Turkey, which concerned the conviction of a publisher in 1996 for blasphemy. The domestic court had relied on a report submitted by a panel of experts in finding that the book in question, The Forbidden Verses, contained  passages blasphemous of Allah, Islam, Mohammed and the Koran. It had sentenced the applicant to two years’ imprisonment and payment of a fine but had commuted the sentence to a global fine of approximately 16 United States dollars. The European Court, while repeateing its case-law that the protection offered by Article 10 extends to information and ideas which shock, offend or disturb and that those who choose to manifest their religious beliefs “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith”2, also reiterated that “the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines” and that the duties and responsibilities inherent in the exercise of freedom of expression include “an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs”. On that basis, it observed that the statements in the book in issue were not merely insulting but constituted a slanderous attack on Mohammed which, notwithstanding Turkey’s strong attachment to secularism, practising Muslims could legitimately regard as an unjustified and offensive attack on them. Noting that the copies of the book had not been seized and that the sanction imposed on the applicant was very modest, the Court concluded, by four votes to three, that his conviction was not a disproportionate measure. 
 
A different situation arose in Paturel v. France, in which the applicant had been convicted of defaming an anti-sect association in his book, Sectes, religions et libertés publiques. The Court, disagreeing with the assessment made by the domestic courts, considered that the passages in question were value judgments rather than factual assertions and that there was a sufficient factual basis for them, despite the domestic courts having taken the view that the numerous documents submitted by the applicant were not relevant. The Court moreover rejected the domestic courts’ reliance on the applicant’s own membership of the Jehovah’s Witnesses – which they had regarded as underlying his personal animosity towards the anti-sect association – as an important element. It concluded that the approach of the domestic courts, requiring that the applicant prove his allegations while refusing to admit as evidence the documents he had produced, together 
with the reference to his supposed partiality on account of his own loyalties, fell outside the margin of appreciation, so that there had been a violation of Article 10 of the Convention. 

2004 Reports

Failure to hand over legally adopted children to adoptive parents: no violation  . 
PINI et/and BERTANI, et/and MANERA et/and   ATRIPALDI -   Roumanie/Romania  (N° 78028/01 et/and N° 78030/01) Arrêt/Judgment 22.6.2004 [Section II] – No 65

Refusal to allow access of two elder sisters to their biological sister: inadmissible
I. and/et U. - Norway/Norvège (N 75531/01) Decision/Décision 21.10.2004 [Section III] – No 68

Taking of children into care and imposition of restrictions on visiting rights and residential 
access; measures taken by the authorities to reunite parent and children: no violation. 
COUILLARD MAUGERY - France (N° 64796/01) Arrêt/Judgment 1.7.2004 [Section I] – No 66

Withdrawal of parental rights as automatic consequence of imposition of prison sentence: violation. 
SABOU et/and PIRCALAB - Roumanie/Romania (No 46572/99) Arrêt/Judgment 28.9.2004 [Section II] – No 67 

Withdrawal of parental rights and prohibition on access to children:    violation  . 
HAASE - Germany/Allemagne (N 11057/02) Judgment/Arrêt 8.4.2004 [Section III] – No 63

Refusal to allow use of local church for worship:   admissible  . 
PAROISSE GRECO CATHOLIQUE SÂMBĂTA BIHOR   - Roumanie/Romania  (N° 48107/99) Décision/Decision 25.5.2004 [Section II] – No 64

Administration of drugs to disabled child despite mother’s opposition:    violation  .
GLASS - United Kingdom/Royaume Uni (N 61827/00) Judgement/Arrêt 9.3.2004 [ Section IV] – No 62 

Freedom of thought, conscience and religion was in issue in only a handful of 
judgments, the most significant of which was Leyla Şahin v. Turkey164, another case which 
has been referred to the Grand Chamber. It concerns restrictions on the wearing of the 
Muslim headscarf in Turkish universities and thus raises issues which are of contemporary 
interest in other countries, notably France, which has adopted legislation regulating the 
wearing of religious symbols in State schools. In concluding that there had been no 
violation of Article 9, the Chamber accepted that the “notion of secularism appears ... to be 
consistent with the values underpinning the Convention” and that “upholding that principle 
may be regarded as necessary for the protection of the democratic system in Turkey”165. 
 
The case of Supreme Holy Council of the Muslim Community v. Bulgaria related to 
the same factual background as the earlier case of Hasan and Chaush v. Bulgaria, 
decided in 2000, namely a dispute between two rival leaderships of the Muslim community. The cases were brought by or on behalf of the two individuals who had successively been recognised by the State authorities. While in Hasan and Chaush the Court had concluded that the interference had not been “prescribed by law”, it held in the more recent case that “the relevant law and practice and the authorities’ actions in October 1997 had the effect of compelling the divided community to have a single leadership against the will of one of the two rival leaderships”. The interference in the affairs of a religious community had therefore constituted a violation of Article 9. 
 
Other cases of note under Article 9 include two applications declared admissible by the 
Court, one in which it joined to the merits the question of the applicability of that provision 
to conscientious objection168 and one concerning an attack on a meeting of Jehovah’s 
Witnesses in Georgia169.

 
The right to life was raised in three Grand Chamber judgments, each of which dealt with very different aspects of that right. In Vo v. France27, the applicant, who had had to undergo a therapeutic abortion as a result of medical negligence, had lodged a criminal complaint concerning both the damage she herself had suffered (an offence which later benefited from an amnesty) and the homicide of her unborn child. The Court of Cassation had held, however, that causing the death by medical negligence of a human foetus in utero which was not yet viable did not constitute the offence of involuntary homicide, since under French law the foetus was not a person entitled to the protection of the criminal law. The Grand Chamber did not rule on the question whether the unborn child was protected by Article 2 of the Convention but, noting that the interests of the foetus and the mother overlapped, it concluded that the availability of a civil action for damages against the authorities on account of medical negligence was sufficient to satisfy the State’s positive obligations, even assuming that Article 2 did apply.

2003 Reports

Refusal to order private insurance company to reimburse costs of gender re-assignment surgery:  violation.
VAN K‹CK - Germany/Allemagne (NJudgment/ArrÍt 12.6.2003 [Section III] - N

Failure to involve parents in proceedings concerning their rights with regard to their children: violation. 
 COVEZZI et/and MORSELLI - Italie/Italy (NArrÍt/Judgment 9.5.2003 [Section I] - N

Refusal of permanent residence permit for children who joined their mother in the 
Netherlands after 5 yearsí absence:  inadmissible
CHANDRA - Netherlands/Pays-Bas (NDecision/DÈcision 13.5.2003 [Section II] - N

59 
The same observation may be made in relation to two other judgments, both concerning discrimination. Karner v. Austria101 concerned the refusal of the Austrian courts to recognise the right of the homosexual partner of a deceased tenant to take over the lease. The case incidentally raised a procedural issue, namely whether the Court should continue to examine the matter after the applicant himself had died and in the absence of any expressed desire on the part of an heir to pursue the application. The Court considered that 
the issues were of such general interest that it should continue its examination and it 
reached the conclusion that there had been a violation of Article 14 taken in conjunction 
with Article 8102, the Government having failed to offer convincing and weighty reasons to 
justify the narrow interpretation which the Supreme Court had given to the term “life 
companion” in the Rent Act. Reiterating that differences based on sexual orientation 
require particularly serious reasons by way of justification, the Court considered that it was not sufficient in such cases that the measure be proportionate; it also had to be shown that it 
was necessary in order to achieve the aim pursued, namely the protection of the family in 
the traditional sense103. 

65 
While no major issues of freedom of religion were addressed in judgments delivered in 
2003, religious beliefs formed the background to several important cases. In 
Palau-Martinez v. France No. 64927/01, judgment of 16 December 2003, to be reported in ECHR 2003-XII, the court of appeal, in deciding that the applicant’s children should live with her former husband, had relied on the fact that the applicant was a Jehovah’s Witness, considering that it was not in the children’s interest to be brought up in the environment which that implied. However, the Strasbourg Court found that by failing to obtain a social inquiry report and by referring only to general considerations rather than specific adverse effects of the mother’s beliefs on the children, the court of appeal had not given sufficient reasons and had therefore violated Article 14 taken in conjunction with Article 8151. 

In Murphy v. Ireland No. 44179/98, judgment of 10 July 2003, to be reported in ECHR 2003-IX (extracts).
the Court was faced with a statutory prohibition on the broadcasting of political or religious advertising. It took the view that the matter fell more properly to be examined under Article 10. The “advertisement” at issue was a public notice about the screening of a video on the Resurrection, which a pastor wished to have announced on a local radio station. The Court observed that “it is not to be excluded that an expression, which is not on its face offensive, could have an offensive impact in certain circumstances” and accepted the Government’s submission that a total prohibition was justified, taking into account the particular religious sensitivities in Ireland. As in Appleby and Others, the Court noted that the applicant had other options available, since the prohibition related only to the broadcast media – the immediate, invasive and powerful impact of which was an important consideration – and only to advertisements. 
 
The expression of religious views was also an important feature of Gündüz v. Turkey  No. 35071/97, judgment of 4 December 2003, to be reported in ECHR 2003-XI. 
The applicant, the leader of an Islamic sect, had participated in a television programme, during which he had described democracy and secularism as “impious”, promoted Islamic law (sharia) and referred in pejorative terms to children born outside a Muslim religious marriage. As a result, he was convicted of openly inciting to hatred and hostility based on religious affiliation. The Court, which again took into account the immediacy of television broadcast as a relevant factor, did not consider that the applicant’s comments, on a matter of general interest, could be interpreted as an incitement to the use of violence – the crucial criterion in its case-law in this area – and that the mere defence of sharia could not be regarded as “hate speech”See, as the most recent example, Gökçeli v. Turkey, nos. 27215/95 and 36194/97, judgment of 4 March 2003.

In that respect, the case differed from the Grand Chamber judgment in Refah Partisi (The Welfare Party) and Others v. Turkey156, one of a series of cases concerning the dissolution of political parties by the Turkish Constitutional Court. In all of the other cases, the Court had concluded that there had been a violation of Article 11 of the Convention but in Refah Partisi the Grand Chamber, agreeing with the Chamber’s analysis, concluded unanimously that there had been no violation. It relied essentially on the incompatibility of a fundamentalist Islamic view of society with the underlying principles of democracy and with the values of the Convention itself. The Court found that the acts and statements made by the party’s leaders, which could be imputed to the party as a whole, proposed a form of society based on sharia or at least on a plurality of legal systems which could not be regarded as in conformity with the rights and freedoms guaranteed by the Convention. There were moreover indications that the use of force was not excluded and, taking into account that the party’s election results had put it in a position where there was a real and imminent threat of it being able to implement its policies, its dissolution could be regarded as necessary in a democratic society(The conflictbetween religious beliefs and a secular society also arises in two admissible applications concerning the wearing of headscarves by Muslim women: Zeynep Tekin v. Turkey (dec.), no. 41556/98, and Leyla Şahin v. Turkey (dec.), no. 44774/98, both of 2 July 2002). 

Expulsion of Jehovahís Witnesses:  admissible
LOTTER - Bulgaria/Bulgarie (NDecision/DÈcision 6.2.2003 [Section I] - N

Refusal to register religious association on the ground it had not existed for at least 15 years:  
communicated.
KIMLYA - Russia/Russie (N [Section I] - N

Refusal to register religious association:  communicated. 
JEHOVAHíS WITNESSES OF MOSCOW and others/et autres - Russia/Russie (N[Section I] - N

Conviction of leader of an Islamic sect for public incitement to commit a crime:  inadmissible. 
 G‹ND‹Z -Turquie/Turkey (No 59745/00) DÈcision/Decision 13.11.2003 [Section I] ñ N

Conviction for insulting a religion :  admissible. 
 ARSLAN -Turquie/Turkey (No 42571/98) DÈcision/Decision 13.11.2003 [Section III] ñ N

Award of damages against a journalist for defamation of a religious official:  inadmissible. 
 HARLANOVA - Lettonie/Latvia (N DÈcision/Decision 3.4.2003 [Section I] - N

2002 Reports
A number of novel issues under Articles 2 and 3 of the Convention were brought 
before the Court in 2002. For the first time, the Court was required to address the difficult 
matter of euthanasia, in Pretty v. the United Kingdom, no. 2346/02, to be reported in ECHR 2002-III. . The case concerned the wish of a woman suffering from motor neurone disease to be able to determine the time of her death. To that end, her husband had unsuccessfully sought an undertaking from the Director of Public Prosecutions that he would not be prosecuted if he assisted the applicant to commit suicide. As the applicant was in the final stages of the illness, the Court accorded priority to the case, which was introduced in December 2001. A hearing was held in March 2002 and judgment was delivered at the end of April, the Court having opted to deal with admissibility and merits together (Article 29 § 3 of the Convention). The Court concluded that no right to die could be derived from either Article 2 or Article 3 of the Convention and that a blanket prohibition on assisted suicide was not a disproportionate interference with the right to respect for private life under Article 8 of the Convention. Pretty, already referred to in the context of the right to life, was also examined in the light of the right to respect for private life under Article 8 and freedom of thought and belief under Article 9. The Court, while accepting that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 and that it is under that provision that “notions of the quality of life take on significance”, concluded that the interference could be regarded as necessary in a democratic society for the protection of the rights of others. It also found no violation of Article 9. 

BOSO - Italie/Italy (N° 50490/99) Décision/Decision 5.9.2002 [Section I] - No 46
Mention may also be made of a case concerning the unsuccessful attempts by a husband to stop his wife having an abortion. The applicant’s complaints under Articles 2, 8 and 12 of the Convention were declared inadmissible. Under Article 2, the Court considered, without taking a stand on the question whether a foetus could have rights under that provision, that the terms of the applicable law, which permitted abortion in order to protect the health of the woman, secured a fair balance between the protection of the foetus and the interests of the mother. It concluded that the State had not, in the circumstances of the case, exceeded its margin of appreciation.

Refusal of application for prior approval as a prospective adopter presented by an unmarried homosexual man, on the ground of his “choice of lifestyle”:  no violation. 
 FRETTE - France (N° 36515/97) Arrêt/Judgment 26.2.2002 [Section III (ancienne composition/former composition)] - No 39 

Placement under the administration of a trust, following the reunification of Germany, of a gift made to a religious association:  inadmissible. 
 ISLAMISCHE RELIGIONSGEMEINSCHAFT e.V.- Allemagne/Germany (N° 53871/00)Décision/Decision 5.12.2002 [Section III]

Prohibition on nurse wearing Islamic shawl during practical exercises in nursing school:  admissible. 
TEKİN - Turquie/Turkey  (N° 41556/98) Décision/Decision 2.7.2002  [Section IV] - No 44

Refusal to grant a building permit for place of worship :  admissible. 
VERGOS - Grèce/Greece  (N° 65501/01) Décision/Decision 21.11.2002 [Section I] - No 47

Dropping of mention of religion on identity cards:  inadmissible. 
 SOFIANOPOULOS, SPAÏDIOTIS, METALLINOS et/and KONTOGIANNIS - Grèce/Greece (Nos 1988/02, 1997/02 et/and 1977/02) Décision/Decision 12.12.2002 [Section I] - no 48

Evacuation by the police of a church occupied for two months by a group of illegal immigrants:  no violation. 
 CISSE - France (N° 51346/99) Arrêt/Judgment 9.4.2002 [Section II] - No 41

2001 Reports

Dismissal on account of political and ideological activities in the exercise of duties and membership of extreme left group: communicated. 
G‹NER «ORUM ñ Turquie/Turkey (N° 59739/00) AKSOY ñ Turquie/Turkey (N° 59741/00)[Section IV] – No 34

Absence of limit to number of convictions imposed on conscientious objector for persistently 
refusing to wear uniform during compulsory military service: communicated. 
ULKE ñ Turkey/Turquie (N° 39437/98) [Section II] – No 36

Deportation for having taught Islam allegedly without due authorisation: admissible
AL-NASHIF and Others/et autres ñ Bulgaria/Bulgarie (N° 50963/99) Decision/Décision 25.1/15.2.2001 [Section IV] – No 27

Confiscation of the means of communication used by an asylum seeker for political propaganda on behalf of an Islamic group: inadmissible. 
ZAOUI ñ Suisse/Switzerland (N° 41615/98) Décision/Decision 18.1.2001 [Section II] – No 26

Conviction of Jehovah’s Witness for refusing to do military service: friendly settlement.
STEFANOV ñ Bulgaria/Bulgarie (No 32438/96) Judgment/Arrêt 3.5.2001 [Section IV] – No 30

Refusal of permission to build a cemetery: inadmissible. 
JOHANNISCHE KIRCHE et/and PETERS ñ Allemagne/Germany (N° 41754/98) Décision/Decision 10.7.2001 [Section IV] – No 32

Refusal to grant a building permit for a house of prayer: communicated. 
VERGOS ñ GrËce/Greece (N° 65501/01) [Section I] – No 37

Conviction of pharmacists for refusing, on religious grounds, to sell the contraceptive pill: inadmissible. 
PICHON et/and SAJOUS ñ France (N° 49853/99) Décision/Decision 2.10.2001 [Section III] –No 35

Conviction for having published a critical study on a religion: communicated. 
AYDIN TATLAV ñ Turquie/Turkey (N° 50692/99) [Section IV] – No 27

Dissolution of political party of Islamic persuasion, on the ground that it constituted a centre of activities against secularism and thus undermined democracy: no violation. 
REFAH PARTISI et autres/and Others ñ Turquie/Turkey (N° 41340/98, 41342-44/98) Arrêt/Judgment 31.7.2001 [Section III] – No 32

Various decisions from past
Kokkinakis v Greece (A/260-A)
(ECHR) European Court of Human Rights
25 May 1993
 
Where Reported

(1994) 17 E.H.R.R. 397
Times, June 11, 1993
Independent, June 16, 1993
Guardian, June 14, 1993

Summary

Subject: Human rights

Keywords: Freedom of religion

Catchphrases: Freedom of religion; expression; proselytism

Abstract: K, a Jehovah's witness, was invited into an Orthodox Christian home and discussed religion there. K was arrested and fined for proselytism contrary to Greek law. K claimed that his right to freedom of thought, conscience and religion had been infringed contrary to the European Convention on Human Rights Art. 9 . He also alleged breaches of Arts. 10, 14 and 7 of the Convention.
Summary: Held, that (1) Art. 9 had been violated. Freedom of religion implied the right to try and convince one's neighbour. There was a margin of appreciation left to contracting states to allow them to ensure peaceful enjoyment of freedom for all and to protect others from improper proselytism. Nevertheless, K's proselytism had not been improper. K's conviction and sentence were not proportionate to the legitimate aim pursued or necessary in a democratic society; (2) Art. 7 was not infringed; and (3) it was unnecessary to consider possible infringements of Arts. 10 and 14 taken together with Art. 9 in the light of the decision on Art. 9.
 

Various cases

The Queen on the Application of Ullah v. Special Adjudicator
3. The claimant appealed against the Secretary of State's decision to refuse him asylum. He also appealed under section 65 of the 1999 Act, on the ground that his return to Pakistan would be contrary to a number of Articles of the European Convention on Human Rights, including Article 9. When dismissing his appeals, the adjudicator upheld the Secretary of State's certificate so that there was no further right of appeal to the Immigration Appeal Tribunal. It is therefore the adjudicator's decision which the claimant seeks to impugn. 4. In her determination the adjudicator recorded that the claimant is a member of the Ahmadi faith, that he has been an Ahmadi since birth and that his family are Ahmadis. He had no difficulties until December 1998 when he started to preach to others about the faith. 5. In paragraphs 22 to 26 of her determination, the adjudicator summarized the problems faced by Ahmadis in Pakistan by reference to the background material, particularly the CIPU report and a press release from Amnesty International. Mr Soorjoo, who appeared on behalf of the claimant, referred me to the US State Department Report for 2000, which was also before the adjudicator. That document refers to the Government's insertion of section 298 (C) into the Penal Code , prohibiting Ahmadis from calling themselves Muslim and banning them from using Islamic words, phrases and greetings. The US State Department Report states that Government and anti-Ahmadi religious groups have used that government and Ahmadi religious groups have used that provision extensively to harass Ahmadis, who suffer from various restrictions on religious freedom, freedom and widespread societal discrimination.

22. He pointed to the special importance given to the freedom of religion by section 13(1) of the Human Rights Act 1998 which provides:  "If a court's determination of any question arising under this Act might effect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right." 23. Mr Soorjoo also drew attention to paragraph 31 of the judgment of the European Court of Human Rights in Kokkinakis v Greece (1993) 17 EHRR 397, which was not an expulsion case. It stated:"As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" with in the meaning of the Convention. It is, in its religious dimension, 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. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.
28. The claimant is not complaining of any limitation by the United Kingdom on the right of freedom of manifestation of religion. He is, in effect, claiming that he has a positive right of protection by the United Kingdom against limitation on the right of freedom of manifestation of religion in Pakistan. The primary purpose of the Convention is to protection individuals from arbitrary intervention by the signatory States. Any positive obligation to provide protection from interference by third parties is, in my view, far more limited than the obligation of a signatory State not to interfere with the individual's rights and freedoms. 29. Furthermore, as Pakistan are not party to these proceedings, the court would otherwise have to determine whether there would be a breach of Article 9in Pakistan without that country's assistance and by applying the standard of a signatory State which may turn out to be higher than would be appropriate in the particular circumstances in Pakistan. 30. I accept the submission that the court should not engage itself in deciding whether Pakistan would be in breach of Article 9 if it were a signatory State. In my judgment, the most that can be expected of the court in an expulsion case such as this, involving an alleged breach of Article 9 in the receiving state, is to consider whether there would be a flagrant denial of the right of manifestation of religion, in the same way as the court has to consider whether there would be a flagrant denial of the relevant right by the receiving state in Article 6 cases.
34. It follows from my conclusions that I agree with the submission that the adjudicator was being over-generous when deciding whether there would be a breach of Article 9 by adopting the three stage test that she did in paragraph 40 of her determination. That is no criticism of the adjudicator, because she did not have the assistance of a Home Office representative at the hearing, nor, more importantly, did she have the assistance of the Tribunal's decision in Devaseelan. 35. It is not therefore strictly necessary for me to decide the point raised by Mr Soorjoo as to whether the adjudicator erred in considering immigration control as a permissible legitimate aim under Article 9(2). However, as this case may go further, it may be helpful if I express my view that I do not consider that the absence of the criterion of "the economic well-being of the country" in Article 9(2), compared to its presence in Article 8(2), means that immigration control is not a permissible legitimate aim under Article 9(2). I would have thought that the maintenance of an effective immigration control could equally be said to be necessary in a democratic society "for the protection of public order" or "for the protection of the rights and freedoms of others." It is not however necessary for me to decide that point, in view of my conclusions relating to the flagrant denial test. 36. It follows that, for the reasons that I have given, this application must be dismissed.

2004 WL 2246283
Mohisin Khan v. Royal Air Force Summary Appeal Court
High Court of Justice Divisional Court
Date: Thursday, 7 October 2004

Manifestation and interference  61. Even on the assumption that Mr Blake is right to submit that a claim to conscientious objection is entitled to protection under article 9, there still remain the issues under that article's first paragraph of whether there has been any manifestation of belief entitled to protection and whether there has been any interference with the manifestation of the belief in question: see Regina (Williamson and others) v. Secretary of State for Education and Employment [2002] EWCA 1926, [2003] 2B 1300. 62. The first question under this heading, although it was not really the subject of discussion before us, is, we think, the identification of the belief in question. This is because any examination of manifestation or interference has to start with the belief. For instance, a reservist or serviceman in the appellant's position who believes that it is contrary to his religion "to fight against members of his own religion" or "to kill his brothers" (findings of fact at paras 11 and 13) may well have no objection to serving in some non-combatant role, especially in a medical one at home. There is some evidence that this may have been the appellant's own view, since there is a specific finding that he told the summary appeal court that he did not realise that in his medical role he was a non-combatant (finding of fact para 29). In the end the summary appeal court's finding was that he had a genuine belief that "to be in any way a participant in [the impending invasion] would be contrary to his belief", but the dimensions of that belief are not clear and, on the court's view, did not have to be defined further. In any event, this belief, whatever its ramifications, was only clarified at the appeal hearing itself, for the appellant had never made any application for discharge on the ground of his objection. 63. The next question is when the appellant manifested his belief. This is not an easy question, and again was not much explored. In one sense, the appellant may have manifested his belief at any rate to his family at some early time, even before call-out. In another sense, it might be said that he manifested his belief when he went absent without leave, if at that time his belief was at any rate a material part of his genuine motivation. There is however a line of Strasbourg jurisprudence, discussed in Williamson, which differentiates between the motivation and the manifestation of a belief. In yet a third sense, he did not manifest his belief until he told the RAF about it as the reason for his absence. 64. In our judgment, whatever the position might be in other circumstances, and we think this is a fact sensitive question, it should not be said that a conscientious objector has manifested his belief until he has expressed it in some way to his service. In some circumstances, we can conceive that the mere act of absence or desertion could be such an expression. For instance, where there is no procedure for conscientious objection at all, or one that is insufficiently knowable. Where, however, as here, the basic background is one of volunteer service, the call-out is on a basis that there may be exemption on compassionate grounds, the recalled reservist is given repeated opportunities to voice any concerns, as a former serviceman he is familiar or at any rate required to be familiar with the Queen's Regulations and as a recalled serviceman he has, as is conceded, access to those Regulations and to the Leaflet, we do not think that it makes sense to say that the appellant has manifested his belief until he has informed his service of it, and has done so in a formal way. Even Mr Blake at one point accepted that the manifestation was the act of refusing to play any part in the service -- which on the facts could not have occurred until he had explained his absence as such a refusal. 65. As for interference, we think that for similar reasons and in any event there can be no material interference (see Williamson) until the recalled reservist in the appellant's position has formally applied for discharge (or some other status) as a conscientious objector. In effect, a volunteer cannot say that his conscience or religion has been interfered with by the state until he has made it clear in some appropriate and suitably formal way that he is no longer a volunteer.  Conscientious objection as a right protected under article 9(1)  66. We come finally to an issue which was debated at length before us and which, as we have said, is logically the first to arise, and that is whether there is any right at all under article 9(1) for the protection of the conscientious objector. Mr Havers says that there is not, Mr Blake says that there is. The competing submissions, which were essentially a matter of conflicting interpretations of existing jurisprudence, became so refined that we have preferred to approach this case primarily on the basis of its own facts, reversing the logical priority. 67. Prima facie one might think intuitively that a matter of conscience, whether or not dictated by religious beliefs, but a fortiori if so motivated, lies well within the ambit of article 9. However, a difficulty is immediately raised by the terms of article 4 of the Convention. Article 4(1) prohibits slavery and article 4(2) says "No one shall be required to perform forced or compulsory labour". Article 4(3) then immediately excludes certain categories of work from the ambit of article 4(2), thus --  "For the purpose of this Article the term "forced or compulsory labour" shall not include:  ...  (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service ..." 68. Mr Havers submits that article 4(3)(b) has been used as the foundation for construing article 9(1) as being subject to the necessary implication that it be read down so as to exclude conscientious objection to compulsory military service. Thus he points to a line of Strasbourg jurisprudence among which two decisions may stand as examples. In X v. Federal Republic of Germany (unreported, 5 July 1977) the Commission ruled on a complaint brought by a Jehovah's witness who objected not only to military service but also to compulsory civilian substitute service. The complaint was ruled inadmissible. The Commission referred to article 4(3)(b) and continued --  "Since this text expressly recognises that conscientious objectors may be required to perform civilian service in substitution for compulsory military service it must be inferred that according to the Convention conscientious objection does not imply a right to be exempted from substitute civilian service (cf. Commission's opinion in application No. 2299/66, Grandrath v/FRG -- Report dated 12.12.1968 para. 32). It does not prevent a state from imposing sanctions on those who refuse such service (cf. mutatis mutandis, decision on application No. 5591/72, v./Austria, Collection 43, p. 161)."  Similarly, in Johansen v. Norway (unreported, 14 October 1985) a pacifist objected to civilian substitute service on the ground that it tended to uphold respect for military service. The Commission again held the complaint inadmissible, referring to article 4(3)(b) and saying:  "The Convention does not prevent a state from taking measures to enforce performance of civilian service, or from imposing sanctions on those who refuse such service." 69. Mr Havers goes on to submit that this jurisprudence was extensively considered both in the court of appeal and in the House of Lords in Sepet. That was a case about two Kurdish asylum applicants from Turkey. They claimed asylum on the ground that if returned to Turkey they would be liable to compulsory military service on pain of imprisonment if they refused. Rather like the appellant in this case, they did not claim conscientious objection to military service per se, but objected to being required to take part in Turkey's military policies against fellow Kurds. Rejecting their appeal, the House of Lords held that on the facts the applicants had failed to show a case that they would be persecuted if returned to Turkey on the ground of their objection. 70. Our case is not concerned with a claim by applicants to asylum status on the ground of persecution in their home country. What then is the relevance of Sepet to the appellant's claim? It arises out of the Sepet applicants' difficulty of showing on the facts that they would suffer persecution in Turkey. They could not claim that if returned they would be compelled to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community (cf Krotov v. Secretary of State for the Home Department [2004] EWCA Civ 69, [2004] 1 WLR 1825), nor that they would receive grossly disproportionate or excessive punishment. All they could say, described by Lord Bingham of Cornhill (at para 9) as their key submission, was that --  "There exists a fundamental right, which is internationally recognised, to refuse to undertake military service on grounds of conscience"  so that the non-recognition of the right and consequential punishment would amount by itself to persecution. At para 38 Lord Hoffmann put the same issue as "whether punishing conscientious objectors is an infringement of their fundamental human rights to freedom of conscience and opinion." 71. In considering for the purpose of this submission a range of international human rights materials and texts, Lord Bingham turned (at para 17) to the line of Strasbourg jurisprudence and said --  "There are undoubtedly authorities on which [the applicants] can undoubtedly rely ... But ... They can scarcely be said to constitute a settled body of judicial opinion. Against them must be set a line of decisions of the European Commission of Human Rights which have, at least until recently, held the right asserted by the applicants to be excluded by article 4(3)(b) of the European Convention ... The applicants drew support from ... a dissent which was repeated and elaborated, with a greater body of support, in the report of the Commission adopted on 4 December 1998 in the case of Thlimmenos v Greece ... This dissenting view was not however adopted by the court when the case came before it: (2000) 31 EHRR 411. Whether the imposition of sanctions on conscientious objectors to compulsory military service might, notwithstanding article 4(3)(b) of the European Convention, infringe the right to freedom of thought, conscience and religion guaranteed by article 9(1) was a point which the court expressly left open, at pp 424-426, paras 43 and 53 of its judgment.
92. There has been no submission that domestic legal principles outside the Convention as brought within domestic law by the Human Rights Act 1998 are relevant to answering this question. We therefore confine ourselves to the Convention. On the basis we have accepted above, in the light of Sepet, we do not consider that article 9 can, as submitted, provide a defence to the appellant's charge of being absent without leave. We prefer to limit our answer to the case under consideration.  (2) "Whether, in the particular circumstances of Leading Aircraftsman Khan's case, the Royal Air Force authorities acted in breach of either domestic legal principles or the European Convention of Human Rights by omitting to bring to his attention at the time he was recalled for service the fact that if he had a genuine conscientious objection to renewed service he had a right to claim exemption to recall as a conscientious objector." 93. We again confine our answer to the Convention, because no separate reliance has been placed on domestic legal principles. The question is itself confined to the moment of recall. For the reasons we have given in this judgment, we conclude that, although the appellant's recall papers did not expressly refer to conscientious objection as a ground for claiming exemption, it did sufficiently identify a relevant ground, namely "any other grounds ... for compassionate reasons". We also consider that even if there had been any contingent possibility of engaging article 9(1) of the Convention by reason of any deficiency in the information given to the appellant in his recall papers, nevertheless for the reasons set out in this judgment, there was no relevant manifestation of conscientious objection and no interference with any such manifestation by reason of the appellant's recall, arrest, prosecution or conviction. 94. It follows that this appeal by way of case stated fails. 95. We would add this thought, for it arises out of the authorities which have been presented before us on this appeal. In earlier years the Commission in particular has often appeared to take a rather formal approach to article 9(1): on the question, for instance, of interference itself, there appears to have been some unwillingness to allow for the possibility of the engagement of article 9(1) and thus to get into the question of justification under article 9(2). It may be that this is in part a reflection of the state parties' own reluctance to get into the question of justification. We would refer in this connection to Williamson at paras 113/116 and 196/198, where Kalaç is discussed. We would detect in Thlimmenos a new preparedness to allow for possibilities that state interference under article 9(1) may have to be justified. We would view the very recent case of Sahin v. Turkey (see at para 51 above) in just this light. There the Court was prepared at any rate to "assume", even if not to decide, that the banning at the University of Istanbul of the applicant's wearing of an Islamic headscarf was an interference with her right to manifest her religion (at para 71). Therefore the question of justification had to be entered upon. Consideration was then given to the requirements of "prescribed by law", legitimate aim, and "necessary in a democratic society", especially the latter. It was accepted that in such a context the margin of appreciation "is particularly appropriate ... since rules on the subject vary from one country to another depending on national traditions" (at para 102). Ultimately, the Court concluded that there had been no breach of article 9, since the assumed interference had been justified. We can well understand that in this context there need be no shyness about testing rights of conscience and the requirements of a democratic and pluralist society in the dispassionate context of a court and in the light of reasoned argument.
2007 WL 2024853
The Queen on the application of Lydia Playfoot (a  dot.gif ¨
High Court of Justice Queen's Bench Division  1__#$!@%!#__dot.gif ¨
Date: 16/07/2007
1 The Claimant, Lydia Playfoot, is now aged 16 and was until very recently a pupil at Millais School in Horsham, West Sussex ("the School"). She left the School at the end of the Summer Term after the completion of her GCSE examinations. Her departure from the School does not affect the outcome of these proceedings. 2 The Claimant, who brings this claim fay her father and litigation friend, seeks judicial review of the decision of the Defendant, the Governors of the School, not to permit her to wear a "purity" ring as a symbol of her commitment to celibacy before marriage. She contends that this decision unlawfully interferes with her right to manifest her religion or beliefs, contrary to Article 9(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and unlawfully discriminates against her in breach of Article 14 of the Convention. 3 On 8 May 2007 Goldring J. refused permission to apply for judicial review on the papers. He ordered that if the application be renewed it should immediately be followed by the substantive hearing in the event of it succeeding. At the outset of the hearing before me I indicated that I would hear full argument from the parties and thereafter give my decision on both the renewed application for permission and the substantive application, if I granted permission. I also made an order under Section 39 of the Children & Young Persons Act 1933 preventing the disclosure of, amongst other things, the name of any child or young person concerned with these proceedings other than the Claimant herself.
manifestation  20 Mr Auburn submitted that only those practices which are necessary or required by the belief are protected. I accept that there is some support for this submission in decisions of the Commission. For example in X v UK (App. No. 5442/72, 1 Eur. Comm'n HR. Dec and Rep 41 (1974)) a Buddhist prisoner was not permitted to send out material for publication in a Buddhist magazine. He produced statements to the effect that communication with other Buddhists is an important part of his religious practice. However the Commission held the complaint to be manifestly ill-founded because he failed to prove that it was a necessary part of this practice that he should publish articles in a religious magazine. (See also Xv Austria (App. No. 8652/79, 26 Eur. Comm'n HR. Dec and Rep 89 (1981) ; and cases referred to in C Evans, Freedom of Religion Under the European Convention on Human Rights (OUP, 2001), pp. 115-117). However it is far from clear that there was ever a consistent body of Strasbourg case-law to the effect that only practices which are necessary or required by the belief are protected. (See, for example, App. No. 10295/82 v United Kingdom (1983) 6 EHRR 558 ; Hasan and Chaush v Bulgaria [2002] 34 EHRR 1339 at p.1358, para 60; and Sahin v Turkey (Application No. 44774/98) (unreported) 29 June 2004 , para 66 ). 21 Guidance as to what amounts to manifestation is now to be found in the House of Lords' decisions of R(Begum) v Governors of Denbigh High School [2007] 1 AC 100 and Williamson . The relevant principles can be summarised as follows:  (1) Article 9 does not require that one should be allowed to manifest one's religion at any time and place of one's own choosing. ( Begum at para 50, (Lord Hoffmann)).  (2) Article 9 does not protect every act motivated or inspired by a religion or belief ( Williamson at para 30, (Lord Nicholls); and Sahin v Turkey at para 66).  (3) In deciding whether a person's conduct constitutes manifesting a belief and practice for the purposes of Article 9 one must first identify the nature and scope of the belief. ( Williamson at para 32, ( Lord Nicholls)).  (4) If the belief takes the form of a perceived obligation to act in a specific way, then, in principle doing that act pursuant to that belief is itself a manifestation of that belief in practice. In such cases the act is "intimately linked" to the belief, in the Strasbourg phraseology: see Application 10295/92 v United Kingdom [1983] 6 EHHR 558 ; and Hasan and Chaush v Bulgaria [2002] 34 EHRR 1339 , 1358, para 60. ( Williamson at paras 32 (Lord Nicholls) and 63 (Lord Walker)).  (5) By the time that the Court has reached the stage of considering the manifestation of the belief, it must have regard to the implicit (and not over-demanding) threshold requirements of seriousness, coherence and consistency with human dignity ( Williamson at paras 23 (Lord Nicholls) and 64 (Lord Walker)).  36 In my judgment the uniform policy serves a number of important functions. These are identified by Mr Nettley at paras 10-17 of his first Witness Statement. First, it fosters the School identity and an atmosphere of allegiance, discipline, equality and cohesion. Second, it allows children to learn in an environment which minimises the pressures which result from marking differences on grounds of wealth and status. Third, it reduces the risk of bullying at school, which may arise where social pressures develop around clothes and jewellery through peer expectations. Fourth, it assists in promoting the highest standards of achievement in all aspects of a young girl's life, including her attitudes and conduct. In addition there are health and safety reasons for not allowing the wearing of jewellery (see letters dated 16 December 2005 and 10 February 2006 from Mrs Barnes to Mr and Mrs Playfoot). 37 I note that the first and second of these functions are in similar terms to those upheld as legitimate and proportionate in the Y School case at paras 73-76. Further all four functions form part of the recommendations to Schools when setting their uniform and appearance policies (see draft DfES Guidance to Schools on School Uniform Related Policies issued on 20 March 2007, at para 1.2). 38 In my judgment the School was fully justified in acting as it did. The School recognises exceptions to its general ban on jewellery where the imposition of the strict rule would impose a disproportionately harsh result on a pupil. These fall into three categories (see Mr Nettleys first witness statement, paras 38-45):  (i) firsts on health and safety grounds, in particular where there is a specific medical need. This exception has no application in the present case.  (ii) second, where enforcing the policy would be likely to result in an unlawful breach of the pupil's human rights. The School has permitted a Muslim girl to wear a headscarf where it was considered by her to be a requirement of her faith; two Sikh girls have been allowed to wear a Kara bangle on a similar basis; and a pupil was allowed to wear a headscarf as it was believed that this form of dress was required as part of her faith as a member of the Plymouth Brethren. By contrast there is no evidence in the present case that the Claimants religious belief required her to wear the ring and she did not suggest that it did;  (iii) third, where there are exceptional and compelling grounds. There are no such grounds in the present case. The Claimant was not obliged by her religious faith to wear the ring and the School offered her other means by which she could express her belief (see para 30 (i-iii) above). 
Conclusion  46 I have heard full argument from the parties. In my judgment the threshold for the grant of permission is crossed (albeit only by a narrow margin). Accordingly I grant permission to apply for judicial review. However for the reasons which I have explained, this claim must be dismissed. The decision of the Defendant not to permit the Claimant to wear a "purity" ring as a symbol of her commitment to celibacy before marriage was not unlawful. The decision does not breach Article 9 or Article 14 of the Convention.
Prais v. Council of the European Communities (1976)

Freedom of religion under Article 9 of the European Convention on Human Rights and selection without reference to creed under Article 27 of the E.C. Staff Regulations do not require the Community, when fixing a date for examinations for candidates for civil service posts, to ensure of its own initiative that such dates are not holy days for any potential candidate adhering to any creed anywhere in the Community. However, if a candidate informs the appointing authority in good time that religious reasons make certain dates impossible for him or her, that should be taken into account in fixing the examination dates and the impossible days should be avoided if possible. The same would apply if the appointing authority has been informed in a general way (e.g. by a religious organisation) of dates which might be unsuitable for religious reasons. In default of such prior notification, the appointing authority is not obliged to alter a date already fixed, or to make special arrangements for an individual candidate, when such candidate only informs it of the religious difficulties after notification of the date of the examination to him. [11], [14]-[18]
The Court held that freedom of religion forms part of the fundamental rights in Community law and that holy days should be taken into account by Community organs when fixing dates for civil service examinations, if they have been informed of such religious days in advance.
The court made statements in its opinion to the effect of considering a dispensation to one individual at the expense of many (even for a religious observance) was not conducive to the ideas of fairness.  Excuses for non-attendance due to secular reasons were not argued and would not be tolerated.  Freedom of religion does not seem to pertain special advantage here
Article 14 of the European Convention, which provides that: 'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.'
But here there is no discrimination, at least not facially.  THose with absences due to illness or a preference to another non-religious activity will be equally without accommodation and religiosity is not especially discriminated.
There are some member-States where recruitment to the public service is by interview only; there are no written tests. This seems to be so in Denmark, in the Netherlands and in the Federal Republic of Germany, except Bavaria. I infer that in these countries the convenience of candidates is taken into account when fixing interviews. I understand that in Bavaria, where competitive examinations are held, the problem illustrated by the present case has never yet been encountered. In Ireland the Civil Service Commission has no set practice of seeking to avoid particular dates, but, if it receives in good time from a candidate notice that he will be unable to compete on a particular date, it tries to accommodate him by, so far as practicable, not fixing examinations for that date. It seems that in Belgium no account is taken of religious festivals in fixing the dates of written tests for entry into the public service. *716 Some tests even take place on Saturdays and on Sundays. On no ground is the date fixed for a test ever departed from. Candidates' wishes are taken into account in arranging oral tests, though even for this purpose those wishes are not considered to be overriding. The position appears to be much the same in France, Italy and Luxembourg, with, at all events in the case of France, perhaps a lesser readiness to take account of candidates' wishes in fixing dates for oral tests.
other countries follow thi
to interpret the Convention in the way Mrs. Prais would wish might involve foisting on those States too obligations that they never meant to undertake
for the sake of the burden of making someone else bear a right is not to sacrifice a right to a states comfort, but to acknowledge tat it does not constitute a right under the common conception of the countries together
The action will have established that such difficulties may be taken into account and, indeed, that they may not be deliberately or wantonly ignored.
From here one might say that the court acknowledges something "special" about freedom of religion that trumps freedom to be sick or skip a test for the worship of soccer

The Queen in the Application of Peace ORU v. Immigration Appeal Tribunal (2000)
The applicant is an illegal overstayer from Nigeria. She entered the United Kingdom on 11th April 1988 when she was aged a little over 10 years. She entered with her mother. She was granted leave to enter for six months as a visitor. She is now aged 22. Her mother, who was arrested at the same time as she was in January 1996, has been deported.
From the bundles and evidence before the Special Adjudicator, of which there were at least three bundles and other evidence, the following circumstances were urged in support of the appeal. I take them from paragraph 1 of the outline submissions which were prepared in writing by Miss Jegarajah for the purpose of the hearing:  "Having regard to paragraph 364 of the applicable rules, it is submitted that deportation would not be the right course on the merits for the following reasons: (i) The applicant's ability to further her education would be hindered significantly. (ii) The applicant's right to freedom of religion, expressed by her involvement in her church and her evangelism, would be curtailed in Nigeria. (iii) The applicant would find it impossible to adapt to life in Lagos leading to serious hardship. (iv) Deportation would lead to the severance of close family ties in the United Kingdom". 7. The challenge in this court has focussed upon, firstly, the applicant's right to freedom of religion and her evangelism, which it was said would be curtailed in Nigeria
 Special Adjudicator concluded as follows:  "Although there may be differences in the style of Christian worship in Nigeria as compared with the United Kingdom, I am satisfied that she will enjoy freedom to express her religious beliefs in Nigeria and she will be able to fulfil her pastoral ambitions within the Christian community of Nigeria". 12. Miss Jegarajah submitted, in relation to the ability of the applicant to practise her religion in Nigeria, that on the facts the applicant's commitment to Christianity, to the gospel, to the teachings of Jesus Christ and her desire to impart and encourage by evangelism others who might be persuaded to follow her in her faith should be accepted as sincere and genuine. That has not been contentious in this application. I regard all of that as established.
 Against that non-contentious background, Miss Jegarajah submitted that the Tribunal and the Special Adjudicator had failed to address adequately the fact that the applicant is an evangelical Christian. She submitted that the fact that the applicant will be free to follow any religion and respond to any call in Nigeria, which was the conclusion reached by the Tribunal, was not the question. She submitted that the specific question is whether the applicant can continue to practise her faith, as an evangelist bearing Christian witness, by preaching and teaching the gospel in public places in community with others. This, she submitted, is how the applicant manifests her faith, and that both the Special Adjudicator and the Tribunal had not recognised or identified this as the critical question. The specific question being, having regard to the particular way in which it was said that the applicant practised her faith, whether if she was returned to Nigeria she would have the freedom to so practise her faith.
The report does not support a suggestion that there is any ban upon proselytizing. Again, to the contrary, the report says distribution of religious publications remain generally unrestricted. So far as concerns proselytizing, it is stated that while it did not outlaw the practice it discouraged proselytizing in the belief that it stirs up religious tension. Mr Underwood also submitted that on a proper view of the case, as it was presented to the Special Adjudicator, and as it appeared from the evidence and in particular the applicant's own evidence before the Special Adjudicator, the case was put not so much on the basis of a denial of freedom to practise her religion but on the basis that she would not be able to continue to practise her religion in the particular respects in which she has, over recent years, been practising her religion here.
"I prefer the style of worship and the ethos behind the church that I attend here."
She relied upon the case of Kokkinakis v Greece [1994] 17 EHRR 126. She also drew attention to the case of Otto-Preminger Institute v Austria A/295-A [1995] 19 EHRR 1. The statements of the court in Kokkinakis v Greece merit attention having regard to her argument. The court stated that:  "Bearing witness in words and deeds is bound up with the existence of religious convictions". 
the Special Adjudicator did go on to say:
"The appellant has in my view had scant regard for the immigration law and rules of the United Kingdom and has cynically manipulated them to her own advantage".
As the Adjudicator noted, she will be free to follow the Christian religion and to respond to any Call in Nigeria. The Adjudicator was neither bound nor entitled to take into account the European Convention on Human Rights".
It is a matter of necessity.  To practice or manifest religion is a right.  To practice or manifest it in one's preferred location and preferred circumstances is a luxury and not a right.

The Queen on the Application of Amicus - MSF Section, National Association of Teachers in Further and Higher Education, Unison, NASUWT, Public & Commercial Services Union, National Union of Rail, Maritime and Transport Workers, National Union of Teachers v. Secretary of State for Trade and Industry,Christian Action Research Education, Evangelical Alliance, Christian Schools Alliance
 The court has before it six separate claims seeking the annulment of certain provisions of the Employment Equality (Sexual Orientation) Regulations 2003 establishing a general framework for equal treatment in employment and occupation ("the Directive") so far as it relates to discrimination on grounds of sexual orientation.
Pursuant to permission granted by Elias J, there are also three interveners before the court, all represented by Mr James Dingemans QC and Mr Paul Diamond. The interveners are all evangelical Christian organisations: CARE (Christian Action Research Education), the Evangelical Alliance and the Christian Schools Trust. They and their members hold to the biblical teaching that monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons. They support the Secretary of State's position with regard to the validity of the Regulations, submitting in particular that the exceptions in regulation 7 as regards occupational requirements represent an appropriate and lawful balance between the rights and freedoms of followers of organised religions and the right not to be discriminated against on grounds of sexual orientation. Although concentrating on their own factual position, they stress that their submissions are not intended to assist just one religious group.
(17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.  ...  (22) This Directive is without prejudice to national laws on marital status and the benefits dependent thereon.  (23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate ....  (24) The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.  ...  (28) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State .... 
legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.  Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos. 
Through the rights granted to its members under article 9 , a church is protected in its right to manifest its religion, to organise and carry out worship, teaching practice and observance, and is free to act out and enforce uniformity in these matters: see the admissibility decision of the European Commission of Human Rights in X v. Denmark (application 7374/76, decision dated 8 March 1976) . In Hasan v. Bulgaria (2002) 34 EHRR 55 the Strasbourg Court stated (at page 1359 para 62):  "Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the Convention which safeguards associative life against unjustified State interference. Seen in this perspective, the believer's right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members ...."    43. Mr Dingemans submits that the impugned regulations plainly affect the organisation of religious communities, which is protected by article 9 . Employment is an aspect of a religion's organisation; it engages the right to bear witness and the right to associate with those who have a uniformity of views. The closer one gets to the organisation and its essential values, the more difficult it is to justify an interference. These points lead to the submission that there is no question of the claimants' rights outranking those of the interveners. The Directive covers both, and they are ranked equally for the purposes of protection against discrimination. The Directive confronts the tension between them, and the Secretary of State had proper regard to both in striking the balance in the implementing Regulations. The provisions of regulation 7 are justified by the terms of the Directive and are carefully drafted to ensure as much certainty in the law as is consistent with preserving the rights and freedoms of the claimants' members and of the interveners and others
So there are laws in the U that allow for religiously affiliated employers to exclude employees on the basis of sexual orientation.  This authorized exclusion was contested by   union representatives of homosexual employees.  It seems there is a contest here about sharing a blanket of protection.  How does one weigh the right to sexual orientation to the right to practice the tenants of a certain faith.  If one were to apply the necessity standard employed in earlier cases, then the necessity to be employyed by particular religious employers does not and cannot trump the freedom of religion and the freedom of association.
The Amicus claimants have a separate argument, as ground 2 of their claim, that the impugned regulations are in breach of the common law principle of legality. The argument runs along the lines that the courts will presume that Parliament did not intend a statutory power to be used so as to interfere unjustifiably with a fundamental right; and if subordinate legislation cannot be construed in a way that makes it compatible with fundamental rights, it will be declared ultra vires (see e.g. R v. Lord Chancellor, ex parte Witham [1998] QB 575 ). The matters relied on as establishing such incompatibility with fundamental rights are the same as those considered above in the context of the Convention. 201. It appears that this line of argument was developed in order to meet any possible submission on behalf of the Secretary of State or interested parties that for present purposes the claimants are not themselves "victims" within s.7(1) of the Human Rights Act 1998 are therefore unable to rely on s.6 of the Act and the provisions of the Convention engaged by that section. In the event no such submission has been made. It is therefore unnecessary for me to consider the alternative line of argument any further.  Conclusion  202. I have found against the claimants on each of the grounds of challenge that they have pursued. Accordingly all the claims will be dismissed.
Crown Copyright.
2004 WL 741919
High Court of Justice Queen's Bench Division  2__#$!@%!#__dot.gif ¨
Monday, 25th July 2005
This application for judicial review is brought by a body of claimants who are a group known as the "Peace Tax Seven". They describe themselves in this way:  "We are a group of seven tax-paying citizens. We want to make a positive contribution to society by paying our tax in full. We object in conscience to paying others to kill on our behalf. The current tax policy forces us to do just that. We have each tried to direct our income taxes to the use of peaceful, non-military purposes. In each case we were denied the right and each of us have faced a dilemma: either to pay our taxes and so become complicit in killing, or to follow our conscience and break the law by withholding payment of a portion of our taxes. Following our consciences has led us to court or the threat of prosecution. We object in conscience to this financial conscription, and believe that its legal basis is questionable. We are seeking a judicial review of current UK tax policy on this issue."

What is suggested is that the Treasury should set up a fund into which those who have a conscientious objection, such as the claimants have, could require that the proportion of their taxes which otherwise would go to military purposes be put into a special account so that it would only be used for non-military purposes.
It is plain that there will be problems, if Mr Fordham's case succeeds, in deciding how a line should be drawn.
 They accept that they are required to pay tax and they have no desire in any way to avoid the payment of all that is due from them by way of taxation. But, it is contrary to their beliefs and their consciences to pay any money which they know would go towards military purposes.
 The claim is based upon Article 9 of the European Convention on Human Rights. Article 9 has essentially two effective parts to it. It establishes not only the freedom of religion, thought and conscience but also the freedom of their manifestation. It is in these terms:  "(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 or 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." 7 The right to freedom of thought, conscience and religion is not in issue. There is no interference with that right in the requirement to pay tax, or indeed in the payments that are made out of those taxes. The question that arises is whether it contravenes and interferes with the right and freedom to manifest the belief in practice (I am isolating the relevant words of Article 9(1)). In the case of many of the claimants, their pacifist beliefs are part of religious beliefs. But that link is not necessary to attract the protection of Article 9. Arrowsmith v United Kingdom [1978] EHRR 218 decided that pacifism as a philosophy is a belief within the scope of Article 9(1) and is therefore protected by the right to freedom of thought and conscience. Indeed, that was given the stamp of approval by the House of Lords in the recent case of R v Secretary of State for Education and Employment and Others ex parte Williamson, decided on 24th February of this year under the title [2005] UKHL 15.
(32) Thus, in deciding whether the claimants' conduct constitutes manifesting a belief in practice for the purposes of Article 9 one must first identify the nature and scope of the belief. If, as here, the belief takes the form of a perceived obligation to act in a specific way, then, in principle, doing that act pursuant to that belief is itself a manifestation of that belief in practice. In such cases the act is 'intimately linked' to the belief in the Strasbourg phraseology: see Application 10295/82 v United Kingdom [1983] 6 EHRR 558. This is so whether the perceived obligation is of a religious, ethical or social character. If this were not so, and if acting pursuant to such a perceived obligation did not suffice to constitute manifestation of that belief in practice, it would be difficult to see what in principle suffices to constitute manifestation of such a belief in practice.