Limits To the Freedom of Religion in International Context

Typically, our behavior is an expression of our beliefs. But not all our actions come under the protection of religion or belief. Therefore, when a person complains that their right to practice a religion is limited, the court first examines whether the particular behaviour is a practice of religion or belief and examines the relationship between the actions and thoughts and how closely they are related.

Freedom of religion is a fundamental component of the first generation of human rights. At the same time, this right is one of the most contested. In the EU member states and the EU in general, when the question of restricting freedom of religion arises, The European Convention on Human Rights(ECHR) is a sort of guardian, setting the boundaries of freedom of religion in these states. Therefore, the focus of this paper is narrowed to the ECHR’s opinions and a critical understanding of limitations on freedom of religion.

The basic rules for restricting freedom of religion and how are they applied

International human rights standards stipulate that the right to have a religion or belief, choose it, change it, or abandon it, is absolute and cannot be limited. On the other hand, under paragraph 3 of Art. 18 of the International Covenant on Civil and Political Rights, paragraph 2 of Art. 9 of the European Convention on Human Rights, and paragraph 3 of Art. 12 of the American Convention on Human Rights, provisions restricting freedom of religion, can be applied to freedom of religion and the demonstration of religious beliefs. Also important is the fact; no derogation from freedom of thought, conscience, religion, or idea is allowed, even in the event of hostilities or in extraordinary circumstances.

Based on these provisions, we can emphasize that the freedom to practice religion or belief can be limited if the following conditions are satiated:

   • Any restriction on freedom of religion must be prescribed by law. It is necessary to prevent arbitrary and selective government agencies, police, courts, and public services.

   • Restrictions should be introduced to ensure public safety, public order, public health or morals, and protect the rights and freedoms of others. It is essential as restrictions are imposed; because of the need to protect the population. In another situation, it may be an abuse of legal grounds, for example, when restrictions have been set to gain more support from electoral seekers.

   • Restrictions on religion should not be discriminatory for both people who practice a particular religion and those who are not adherents to it. Thus, for example, a person cannot require freedom of religion to carry out human sacrifice. Or a doctor who is a Muslim cannot refuse medical treatment to a Christian patient.

   • Any restrictions imposed must be commensurate with the problem that has arisen from the religious practice.

Restrictions are an extreme measure, not an instrument of state control, and the conditions described are fundamental. Without them, governments can freely restrict any religious group or practice that they dislike.

In some states, any manifestation of religious activity outside specially designated premises or without registration with a religious organization is prohibited. This practice was developed based on the law that existed in Kazakhstan. According to the regulation, any activity, even general prayer and the performance of rituals in private homes, was considered illegal and could lead to severe administrative penalties.

These measures were applied in practice and sometimes led to significant fines, which disproportionately affected non-traditional communities, thereby violating the principle of proportionality.

Typically, our behavior is an expression of our beliefs. But not all our actions come under the protection of religion or belief. Therefore, when a person complains that their right to practice a religion is limited, the court first examines whether the particular behaviour is a practice of religion or belief and examines the relationship between the actions and thoughts and how closely they are related.

Sometimes this connection is easy to understand. But there are also situations where a believer wearing a cross or a Star of David is not essential. For another, it is a true expression of religious identity, and atheists, in general, may perceive this as containment in their personal space, the right to freedom of religion, or even a manifestation of secularism. An excellent example of this situation is the ECHR case Lautsi v. Italy. The case was about the crucifixes displayed in Italian schools that derogate Article 9 and Article 14 to the European Convention on Human Rights and Article 2 of Protocol No. 1 and violate the principle of secularism.

In this regard, the ECHR judged that “whether or not crucifix has a secular symbolic value, it undoubtedly refers to Christianity. But even in these circumstances – a crucifix on the wall is an essentially passive symbol. It cannot be deemed to influence pupils comparable to that of didactic speech or participation in religious activities.”

But, if we look deeply, we find that this judgment was also a political decision. Because, if the ECHR turns on the applicant’s side and recognizes that the crucifix on the public-school wall is a violation of the provisions of the European Convention on Human Rights and the principle of secularism – it would create a precedent and follow-up a new wave of trials. And all the member states of the European Union would be obliged to reject the use of crucifix in public schools or even other public places.

It is also necessary to point out that the courts should not decide whose beliefs are correct. If they choose what to regard as a religious practice, they make judgments about a doctrine that favours one theological interpretation at the expense of others. Human rights belong to people, so the courts should pay more attention to the person whose religious practice is in question and not engage in doctrinal judgments.

II. Legal grounds for restriction of the freedom of religion or beliefs

Under international law, the only legal grounds for restricting freedom of religion or belief are the protection of public safety, public order, health and morals of the population, or the rights and freedoms of others.

To show a clear connection between the prevention of caste-based discrimination and the protection of the rights and freedoms of others, let’s take an example, the Hindu caste system, where people have been divided into higher and lower castes, as well as into non-caste groups – untouchable. Out-of-caste groups are subject to colossal discrimination, namely: marriage and labour restrictions, debt bondage and slavery, socio-economic disparities, limitations in access to education and land, inequality in political representation, and political rights; they are targets to physical and economic retaliation, gender inequality.

Until 1949, some temples even refused access to non-caste Hindus. But, as the caste system was abolished in India in 1949, temples are no longer allowed to deny access to non-caste Hindus.

Also, a very significant part of restrictions on freedom of religion or belief is protecting and maintaining public order. National laws on public order contain provisions on preventing threats, attacks, incitement to violence, and sometimes blasphemy.

For the most part, these are justified measures that the state government resorts to protect citizens. This restriction policy is evident since 2001 when the right to freedom of religion became also inherently linked in one way or another to the trend of limiting human rights, which has arisen in connection with the increased number of terrorism manifestations.

Citing an example of the restrictions introduced against the background of these events, the attempt by local France authorities to impose restrictions on the wearing of ‘burkini’ on the beaches is worth mentioning. The Paris officials justified this ban with the argument that “that it is not appropriate … respectful of good morals and secularism… and respectful of the rules of hygiene and security of bathers on public beaches” as well as a public security measure.

But, the Council of State (France’s highest administrative court) revived this case and found a violation of civil liberties, including freedom of movement and religious freedom, and stated that officials had failed to prove that the bathing suit posed a threat to public order.

It is vital to recall that this case caused a wave of criticism worldwide, including human rights organizations, feminists, and publicity. One of the main battle cries of this criticism was that Europe again poses discrimination against Muslim citizens. Even the France Socialist Party stated that law enforcement put the state and the whole European society in a “perilous downward spiral.”

Law enforcement should not stigmatize people or adjust them against each other. Therefore, the restriction of freedom of religion in the general context most often has the opposite effect and is only a catalyst and fuel for terrorist manifestations and does not benefit general security.

III. Restrictions on the dissemination of one’s beliefs concerning religion

Freedom to profess a religion or belief inherently includes the right to express what a person considers to be true for himself. Undoubtedly, opinions can be expressed peacefully or by calling for violence. And unfortunately, some people feel so offended by the peaceful expression of someone else’s beliefs that are different from their own that they respond with violence and aggression.

For example, in some countries, the expression of certain beliefs is prohibited; under the pretext of the danger of riots that could disrupt public order. Because of these possibilities in Indonesia, there is a ban on the public expression of beliefs of Ahmadiyya adherents or atheists.

These kinds of laws and state policies do not help reduce violence. On the contrary, they reinforce the view that people who have “wrong” religious beliefs should be restricted in their expression or even should be punished, in the opinion of the state.

An excellent example of applying the right to freedom of expression of the will of religion is the European Court of Human Rights case Sekmadienis Ltd. v. Lithuania. The case was that clothing company Sekmadienis Ltd. published a series of advertisements with the image of Jesus and Blessed Mary depicting them not in a canonical way. Some citizens and local authorities took this “wrong” religious perception as offensive against public morals.

The ECHR, in its judgment, stated – “…that despite several complaints of the territorial authority of the Roman Catholic Church in Lithuania, the advertisements were considered as not gratuitously offensive, and did not incite hatred”.

We are all free to express our opinion on how we imagine the religious images of God. But, of course, without overstepping the grave of blasphemy. Therefore, a person is free to picture Jesus in jeans or dark skin colour.

But also, one of the main problems of this case is public morality. The question is, do all members of society have the same morality? And whose morality is considered public? The definition of public morality should come from various social, philosophical, and religious traditions. In other words, the restrictions cannot be justified only by the moral ideals of the majority.

IV. Legal confirmation of the need to restrict freedom of religion. Indirect discrimination issue

Of course, certain restrictions are necessary. For example, in one of their resolutions, the United Nations General Assembly has clearly stated that harmful religious practices should be prohibited. An example of this is the initiation rituals of women – “female genital mutilation, which includes all procedures involving partial or total removal of the external female genitalia or other damage to the female genital organs for non-medical reasons.”

And these barbaric rituals are not uncommon today. For example, in Egypt, female circumcision operations were even legalized in the late 90s of the last century. In this country, you can have surgery in a hospital with a professional surgeon. According to statistics, 87% of Egyptian women undergo circumcision.

It is appalling because female genital mutilation is a manifestation of gender inequality and constitutes society’s control over women. And this horrific religious practice, deeply rooted in social, economic, and political structures, has not yet been eradicated.

As for indirect discrimination, in the courts, it should be considered as a problem of practice, and acceptable solutions should be found. In many countries, it is illegal to carry knives in public places. As far as is known, more than one religious group is not affected, except for the Sikhs. Sikh men, by their beliefs, are required to wear a kirpan – a ceremonial knife, under a shirt. Thus, the law banning the carrying of edged weapons limits the ability of Sikh men to fulfill their religious duty.

An example of this is the Italian Supreme Court’s decision against a Sikh migrant who wanted to carry a ceremonial knife with him publicly. The court stated that: “…migrants who choose to live in Italy must respect Italian laws prohibiting the carrying of weapons even though many Sikhs regard ceremonial knives as sacred…”

At the same time, the courts note that it is not always possible to find a practical solution. Indirect discrimination can be legitimate if proven that there are sufficient reasons for it an objective justification.

For example, following infection control regulations, restaurants prohibit employees from wearing jewelry; so it does not end up in food for visitors. Both cases affect certain groups of believers. However, it is a legitimate public health concern.

V. Extent to which expression of religion or belief should be restricted

Freedom of discretion. The world is diverse, and human rights standards; can be applied differently based on the national context.

Therefore, international courts apply a margin of appreciation; that is, they proceed because the authorities at the national level best understand the national context and can better formulate state law. Therefore, they are given a certain freedom of action.

But this rule does not always work. An example of this is the European Court of Human Rights case Maestri v. Italy. The case concerned the La Spezia District Court judge and president, who was a member of the Masonic lodge and a Freemason member. In this regard, he was reprimanded. Therefore, the judge decided to dispute this decision at the ECHR with claims according to articles 9, 10, and 11 of the European Convention on Human Rights.

The ECHR sided with the applicant and recognized that sanctions imposed on him are illegal in the scope of domestic legislation.

Did the court act correctly in this situation? Undoubtedly correct, to the full extent of the law. But, the right to freedom of religion in such a manifestation as participation in such religious organizations as Freemasonry; should be prohibited for officials so that their work is intact. Because in Freemasonry, as in any spiritual and non-religious organization – is a hierarchy and ongoing obligations, its own pursued interests and principles, laws. And returning to the situation with the judge, as a result of this hierarchy, other Masonic lodge members can influence his professional duties.

Conclusion

Considering the practice of the European Court of Human Rights reviewed in this research paper, it is visible that the solution of cases on the protection of the right to freedom of religion is a complicated task. All sensitive and most important aspects of religious freedom must be taken into account, along with the features of other inalienable human rights, and the solution of these issues should end in national legislation.

It can also be stated that political motives, rather than true justice, begin to prevail in the decisions of the ECHR. Most of these political decisions are justified by the needs of the entire European community.

From the cases described in this work, it is possible to single out such basic criteria-questions, giving answers to which we can define whether restrictions are permissible in a particular situation that interests us:

  • Does the law restrict the absolute right to have or change or practice a religion or belief?
  • Are the activities subject to restriction protected by religious practice?
  • Does a legal basis for the limits exist?
  • To what extent does spiritual practice threaten legal grounds of restraint, such as the rights and freedoms of others?
  • Are rules have direct or indirect discrimination nature?
  • Are restrictions on the right to freedom of religion proportionate to the threat?

When we understand the arguments that courts must use to uphold human rights, we can more effectively assert them.

REFERENCES

“Untouchability” and Segregation / CASTE DISCRIMINATION: A GLOBAL CONCERN // A Report by Human Rights Watch for the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance. — Durban, South Africa. — September 2001. — https://www.hrw.org/reports/2001/globalcaste/caste0801-03.htm#P133_16342.

Art. 374-1 and Art. 375 of the Code of the Republic of Kazakhstan on Administrative Offences. https://online.zakon.kz/Document/?doc_id=31582991&pos=2766%3B-45.

Caste divisions remain an obstacle to India’s progress / The Irish Times. — 2010. — https://www.irishtimes.com/news/caste-divisions-remain-an-obstacle-to-india-s-progress-1.66038.

French ‘Burkini’ Bans Provoke Backlash as Armed Police Confront Beachgoers / Alissa J. Rubin // The New York Times. — 2016. — https://www.nytimes.com/2016/08/25/world/europe/france- burkini.html

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Prevalence of female genital cutting among Egyptian girls / Mohammed A Tag-Eldin, Mohsen A Gadallah, Mahmoud N Al-Tayeb, Mostafa Abdel-Aty, Esmat Mansour, Mona Salem // Bulletin of the World Health Organization. — 2008.https://www.who.int/bulletin/volumes/86/4/07-042093/en/.

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The French Council of State on the Burkini – Part 2: Upholding Religious Freedom / Rim-Sarah Alouane // Oxford Human Rights Hub. — 2016. — [Electronic access mode]: http://ohrh.law.ox.ac.uk/the-french-council-of-state-on-the-burkini-part-2-upholding-religious-freedom/

United Nations: Resolution on Ending Genital Mutilation Passed / Constance Johnson // United Nations. — 2012. https://www.loc.gov/item/global-legal-monitor/2012-12-31/united-nations-resolution-on-ending-genital-mutilation-passed/#%3A~%3Atext%3D

Mykyta Pobiehun is a young but experienced lawyer. As a master's student at Vilnius University, a participant in the Jessup International Moot Court Competition, different national moot courts, models of the United Nations and legal competitions, he possesses in-depth knowledge of International and European law and has excellent oral pleading and research skills. Due to his internship at the Ministry of Justice of Ukraine, he has already worked on legislation drafting and admires making it concise and transparent. Into the bargain, during his internship at the Independent Defence Anti-Corruption Committee, he was assisting in the creation of the primary draft of the Ukrainian National Security Strategy. Accordingly, Mykyta is acquainted with the legislation reviewing procedures, policy-making and legal drafting. In his scope of professional interests are indigenous people rights, International Humanitarian Law and Copyright issues.

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