European Court Upholds Removal of Children From Home Schooling

In Wunderlich v. Germany, (ECHR, Jan. 10, 2019), the European Court of Human Rights in a Chamber Judgment upheld Germany's three-week removal of four children from their parents' home after the parents insisted on home schooling them and refused to send them to state schools.  The court held that there was no violation of Art. 8 of the European Convention on Human Rights (Right to Respect for Private and Family Life). the Court said in part:

The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system.

ADF issued a press release announcing the decision.

European Court:Says Greece Should Not Have Applied Sharia Law In Will Contest

In Molla Sali v. Greece, (ECHR, Dec. 19, 2018), the European Court of Human Rights in a Grand Chamber judgment held that Greece had violated Art. 14 of the European Convention on Human Rights which bans discrimination on the basis of religion when it insisted that Sharia law be applied to a wife's inheritance rights. As summarized in part by a press release issued by the Court:

On the death of her husband, Ms Molla Sali inherited her husband’s whole estate under a will drawn up by her husband before a notary. Subsequently, the deceased’s two sisters challenged the validity of the will, arguing that their brother had belonged to the Thrace Muslim community and that any question relating to inheritance in that community was subject to Islamic law and the jurisdiction of the “mufti” and not to the provisions of the Greek Civil Code. They relied, in particular, on the 1920 Treaty of Sèvres and the 1923 Treaty of Lausanne, which provided for the application of Muslim customs and Islamic religious law to Greek nationals of Muslim faith....

Owing to the application of Muslim inheritance law to her husband’s estate – which law in Greece applied specifically to Greeks of Muslim faith – Ms Molla Sali had been deprived of the benefit of the will drawn up in accordance with the Civil Code by her husband, and had therefore been deprived of three-quarters of the inheritance. The fact is that if her husband, the testator, had not been of Muslim faith, Ms Molla Sali would have inherited the whole estate. As the beneficiary of a will drawn up under the Civil Code by a testator of Muslim faith, Ms Molla Sali had therefore been in a situation comparable to that of a beneficiary of a will established under the Civil Code by a testator who was not of Muslim faith, but she had been treated differently on the grounds of the testator’s religion.

European Court Finds Russia's Ban On Public LGBT Events A Convention Violation

In Alekseyev v. Russia, (ECHR, Nov. 27, 2018), the European Court of Human Rights in a chamber judgment by a panel of 7 judges held that Russia violated the protections on freedom of assembly (Art. 11) and the prohibition against discrimination (Art. 14) in the European Convention on Human Rights when it banned the holding of public LGBT events. It also found a violation of Art. 13's guarantee of a remedy in national courts for Convention violations. The Court emphasized that it had rendered a similar opinion in a 2010 case against Russia.  Judge Keller dissenting in part argued that damages should have been awarded in the case, rather than just entering a finding of violations of the Convention.  AP reports on the decision.

European Court Upholds Conviction For Calling Muhammad A Pedophile

As reported by the Daily Mail, in E.S. v. Austria, (ECHR, Oct. 25, 2018) the European Court of Human Rights ruled unanimously in a Chamber Judgment that Austria did not violate free speech protections of the European Convention on Human Rights, Sec. 10, when it convicted a speaker of disparaging religious precepts.  The speaker, a woman identified as E.S., made a statement disparaging Muhammad at a seminar titled “Basic information on Islam” presented at the right-wing Freedom Party Education Institute. Her presentation labelled Muhammad's marriage to Aisha as pedophilia  As summarized by the Court's Information Note on the decision, the Court held:

The applicant’s statements had been capable of arousing justified indignation given that they had not been made in an objective manner aimed at contributing to a debate of public interest, but could only have been understood as aimed at demonstrating that Muhammad was not a worthy subject of worship.... Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society....

The applicant had subjectively labelled Muhammad with paedophilia as his general sexual preference, while failing to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue, and had thus made a value judgement without sufficient factual basis.... As to the applicant’s argument that a few individual statements had to be tolerated during a lively discussion, it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements, exceeding the permissible limits of freedom of expression, passable. Moreover, the applicant had been wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts.

Chamber judgments may be appealed to the Grand Chamber. [Updated to provide link to full text of decision. Thanks to Seth Tillman for the link.]

European Court of Human Rights OKs Injunctions Against Anti-Abortion Activist

In four related Chamber Judgments issued on Sept. 20, the European Court of Human rights upheld injunctions and the award of damages in the cases that doctors brought against an anti-abortion activist for calling doctors who performed abortions aggravated murderers and comparing abortion to the Holocaust. The court issued a press release summarizing the holdings in Annen v. Germany (No. 2 to 5):

The cases concerned a series of complaints by an anti-abortion activist, Klaus Günter Annen, over civil court injunctions on various actions he had taken as part of an anti-abortion campaign. The plaintiffs in the domestic proceedings were four doctors who performed abortions.

The Court held in particular that the injunctions had interfered with Mr Annen’s freedom of expression, but had been necessary in a democratic society. When examining whether there had been a need for such interferences in the interests of the “protection of the reputation or rights of others”, namely of the doctors, the Court’s role was only to ascertain whether the domestic courts had struck a fair balance when protecting the freedom of expression guaranteed by Article 10 and the right to respect for private life protected by Article 8 of the [European] Convention [on Human Rights].

The press release contains links to the full text of each of the four decisions. [Thanks to Paul deMello Jr. for the lead.]

European Court Says Hijab Must Be Allowed In Courtroom

In Lachiri v. Belgium, (ECHR, Sept. 18, 2018) (full text in French), the European court of Human Rights in a Chamber Judgment held that a Belgian court's excluding an ordinary citizen-- not a state employee-- from the courtroom because she refused to remove her hijab infringed her right to freedom of religion guaranteed by Art. 9 of the European Convention on Human Rights. One member of the 7 judge panel dissented and two judges filed a concurring opinion.  A press release from the Court in English provides more details. [Thanks to Paul de Mello Jr. for the lead.]

European Human Rights Court Can Now Issue Advisory Opinions

The European Court of Human Rights announced last week that Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (full text) has come into force after France became the tenth nation to ratify it. The Protocol allows courts in each European nation to request advisory opinions on the interpretation or application of the European Convention on Human Rights.  Requests for advisory opinions are limited to cases pending before the national court when the request is made.

European Court Says Bektashi Community Should Have Been Recognized

In Bektashi Community v. The former Yugoslav Republic of Macedonia, (ECHR, April 12, 2018), the European Court of Human Rights, in a Chamber Judgment, held that the Bektashi Community had wrongfully been denied registration as an officially recognized religious organization under Macedonia's 2007 Legal Status of Churches, Religious Communities and Religious Groups Act.  The Court held in part:

[T]he ground for refusing re-registration of the applicant association was purely formal, notably that it had not been registered by the Commission as a religious entity prior to 1998, but only listed in 2000. The Government omitted to indicate any legitimate aim which this formal restriction may have pursued....

After the registration court refused to re-register the applicant association under section 35 of the 2007 Act, the applicant association launched new proceedings for its registration under the name "Bektashi Religious Community of the Republic of Macedonia"....

The Court also rejected a name-confusion argument, finding that the name is "sufficiently specific to distinguish it from the 'Ehlibeyt Bektashi Religious Group of Macedonia'".  The Court went on:

The other ground relied on by the domestic courts concerned the doctrinal sources of the applicant association, which they found to be identical to the doctrinal sources of the already registered "Islamic Religious Community". That conclusion was made on the basis of an assessment by the domestic courts of the applicant association's fundamental precepts and their comparison with the precepts of the "Islamic Religious Community" .... In the Court's view, such an assessment and interpretation of the applicant association's basic tenets of creed was incompatible with the State's role as a neutral and impartial organiser of the exercise of various religions, faiths and beliefs, which excludes, save for very exceptional cases, any discretion on the part of the State to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed....

 Law & Religion UK has more on the decision.

European Court Upholds Germany's Removal of Children From Religious Sect Parents

Last week in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany, (ECHR, March 22, 2018), the European Court of Human Rights in Chamber Judgments upheld the action of a German Family Court against claims by four families asserting their Article 8 Convention right to respect for private and family life.  A press release from the European Court described last week's decisions:

The cases concerned the partial withdrawal of parental authority and the taking into care of children belonging to the Twelve Tribes Church (Zwölf Stämme), living in two communities in Bavaria (Germany). In 2012 the press reported that church members punished their children by caning. The reports were subsequently corroborated by video footage of caning filmed with a hidden camera in one of the communities. Based on these press reports, as well as statements by former members of the church, the children living in the communities were taken into care in September 2013 by court order. The proceedings before the European Court have been brought by four families who are members of the Twelve Tribes Church. They complain about the German courts’ partial withdrawal of their parental authority and the splitting up of their families.

The Court agreed with the German courts that the risk of systematic and regular caning of children justified withdrawing parts of the parents’ authority and taking the children into care. Their decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in absolute terms under the European Convention.

Chamber judgments may be appealed to the Grand Chamber.

European Court Says Psychiatric Patient's Religious Rights Were Infringed

In a Chamber Judgment in Mockute v. Lithuania, (ECHR, Feb. 27, 2018), the European Court of Human Rights held that a Lithuanian woman's privacy and religious exercise rights were violated by the psychiatric hospital to which she had been admitted.  The facts were summarized by the dissenting opinion:

In 2003 the applicant, who at the time was 30 years old and had a long history of mental problems, after a mental breakdown was forcibly placed in a psychiatric hospital, where she spent 52 days. While being held there, psychiatrists disclosed information about the applicant's health and private life to a journalist as well as information about her health and treatment to her mother. In a subsequent television programme, parts of this information were released. The applicant furthermore claimed that the regime at the psychiatric hospital did not allow her to practise the religion of the Ojas Meditation Centre, the Lithuanian branch of the Osho religious movement, and that the psychiatrists had worked on her to convince her to be critical of her non-traditional religion.

The court held by a unanimous vote that her privacy rights under the European Convention on Human Rights were violated, and by a vote of 5-2 that her religious exercise rights were infringed.  The Court's press release on the case describes the holding on religious freedom:

[T]wo factors were decisive in concluding that there had been an interference with her right to freedom of religion. First, she had been held unlawfully at the hospital for more than 50 days and had for the most part been under a very strict regime, such that she had been unable either to practise meditation or to visit the Osjo Meditation Centre. Second, the doctors had tried to “correct” her to persuade her to abandon her religion, which they considered as “fictitious”, and she had felt constrained to obey them, even on pain of receiving a diagnosis which would have made her unemployable.

Law & Religion UK has more on the decision.

European Court Upholds Conviction For Inciting Hatred

In Smajić v. Bosnia and Herzegovina, (ECHR, Jan. 16, 2018), a 3-judge panel of the European Court of Human Rights rejected a claim by a a citizen of Bosnia and Herzegovina that his free expression rights were infringed when he was convicted of inciting national, racial and religious hatred, discord or intolerance.  Applicant had posted online action that should be taken by Bosniac citizens of the Brčko District in the event of war and secession of  Republika Srpska (one of the two constituent entities of Bosnia and Herzegovina).  According to the court:

The applicant had used expressions which were highly insulting to members of an ethnic group, such as “this stinking Christmas”, “get rid of the danger behind our backs”, “the city centre should then be slowly cleansed” and “Serbs who came from different shitholes live there”.

Rejecting applicant's argument that his conviction violated Art. 10 of the European Convention on Human Rights, the court said in part:

31. The Court notes that the applicant’s conviction amounted to an “interference” with his right to freedom of expression. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims.

32. The interference in the present case was prescribed by law; namely, it was based on Article 160 § 1 of the 2003 BD Criminal Code... Furthermore, the Court is satisfied that it pursued at least one of the legitimate aims referred to in Article 10 § 2 – namely the protection of the reputation and rights of others.

33. The Court reiterates that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, but these must be construed strictly, and the need for any restrictions must be established convincingly....

European Court Upholds Company's Religiously Objectionable Ads

In Case of Sekmadienis Ltd. v. Lithuania, (ECHR, Jan. 30, 2018), the European Court of Human Rights in a Chamber Judgment held that Lithuania's State Consumer Rights Protection Authority violated a clothing company's freedom of expression when it imposed a fine because of a series of the company's ads that were seen as offending Christians. The Economist, reporting on the decision, described the ads:

The case refers to a Kalinkin campaign in 2012 which featured a bare-chested young man and a woman, both with halos: the man was sporting jeans and tattoos, and the female figure wore a white dress with a string of beads. The captions consisted of lines such as: “Jesus, what trousers!”, “Dear Mary, what a dress!” and “Jesus, Mary, what are you wearing?”

The European Court concluded that Lithuanian courts "failed to strike a fair balance between, on the one hand, the protection of public morals and the rights of religious people, and, on the other hand, the applicant company’s right to freedom of expression."  The Court issued a press release summarizing the decision. Chamber judgments may be appealed to the Grand Chamber.

European Court Vindicates Critic of Anti-Muslim Political Remarks

In Case of GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland,  (ECHR, Jan. 9, 2018), the European Court of Human Rights in a Chamber Judgment held that the free speech rights of a civil rights organization were infringed when Swiss courts sanctioned it for a web posting calling remarks of a youth leader of a right wing party "verbal racism." The remarks were made in the context of a referendum on banning the building of minarets. A Swiss appellate court found that the web posting infringed the party leader's personality rights.  It required the organization to remove its web posting and replace it by the court's opinion. It also was required to pay legal and court costs. The ECHR held in part:

When assessing the impugned statements in the present case, it is first of all important to bear in mind the general background of the ongoing political debate in which both statements were made.

... Both B.K.’s speech and the applicant organisation’s article concerned a topic of intense public debate in Switzerland at the material time, which was the popular initiative against the construction of minarets, which was widely reported on in national and international media. The initiative, calling for a ban on the construction of minarets, was ultimately accepted by a referendum on 29 November 2009 and such a ban was included in the Swiss Constitution....

The Court reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures.... 

... B.K. had willingly exposed himself to public scrutiny by stating his political views and therefore had to show a higher degree of tolerance towards potential criticism of his statements by persons or organisations which did not share his views.

A Chamber Judgment may be appealed to the Grand Chamber.  the Court issued a press release summarizing the decision.  Law & Religion UK has more on the case.

European Court Says Countries Must Recognize Same-Sex Unions Entered Abroad

In Orlandi and Others v. Italy, (ECHR, Dec. 14, 2017), the European Court of Human Rights in a Chamber Judgment, by a vote of 5-2, held that Italy violated the rights of same-sex couples by refusing to register their marriages.  The Court summarized the decision on its website as follows:

the Court has found a violation of the right to respect for private and family life. [Art. 8, European Convention on Human Rights.]  In this case 6 homosexual couples complained that they had been unable to have their marriages, which had been entered into abroad, registered or recognised in Italy.

The Court observed in particular that States were free only to authorise heterosexual couples to marry, but that homosexual couples needed to be legally recognised and to ensure the protection of their relationship. It also noted that the situation in Italy had changed in 2016 with the enactment of new legislation on homosexual civil partnerships.

European Court: Muslim Witness Should Be Allowed To Wear Skullcap While Testifying

In Hamidović v. Bosnia and Herzegovina, (ECHR, Dec. 5, 2017), the European Court of Human Rights held that the courts of Bosnia and Herzegovina infringed the religious freedom rights protected by Art. 9 of the European Convention on Human Rights when it held a Muslim man in contempt for refusing on religious grounds to remove a head covering while testifying in a criminal trial.  As summarized in the Court's press release on the case:

In 2012 Mr Hamidović, a witness in a criminal trial, was expelled from the courtroom, convicted of contempt of court and fined for refusing to remove his skullcap. 

The Court found that there had been nothing to indicate that Mr Hamidović had been disrespectful during the trial. Punishing him with contempt of court on the sole ground that he had refused to remove his skullcap, a religious symbol, had not therefore been necessary in a democratic society and had breached his fundamental right to manifest his religion.

The Court pointed out in particular that Mr Hamidović’s case had to be distinguished from cases concerning the wearing of religious symbols and clothing at the workplace, notably by public officials. Public officials, unlike private citizens such as Mr Hamidović, could be put under a duty of discretion, neutrality and impartiality, including a duty not to wear religious symbols and clothing while exercising official authority.

Two judges filed concurring opinions and one judge dissented.

European Court Affirms Jurisdiction of Ecclesiastical Courts

In Nagy v. Hungary, (ECHR, Sept. 14, 2017), the Grand Chamber of the European Court of Human Rights, by a vote of 10-7, upheld the exclusive jurisdiction of ecclesiastical courts over contractual disputes that are matters of ecclesiastical law.  In the case, a pastor in the Reformed Church of Hungary was suspended, and ultimately removed, from his position through church disciplinary proceedings because of statements he had made in a local newspaper.  He then sued in civil courts for compensation that he says he was owed for the periods prior to his termination.  When lower courts dismissed his claims, he argued that this violated his right under Article 6(1) of the European Convention on Human Rights to a fair trial by an independent and impartial tribunal established by law in determining his civil rights.  The European Court's majority opinion held in part:

... [A]pplicant’s claim ... concerned an assertion that a pecuniary claim stemming from his ecclesiastical service, governed by ecclesiastical law, was actually to be regarded as falling under the civil law.... Given the overall legal and jurisprudential framework existing in Hungary ..., the domestic courts’ conclusion that the applicant’s pastoral service had been governed by ecclesiastical law and their decision to discontinue the proceedings cannot be deemed arbitrary or manifestly unreasonable.... [This] Court cannot but conclude that the applicant had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which had no legal basis in the respondent State.

Four separate dissenting opinions were also filed. ADF issued a press release regarding the decision.

European Court Upholds Defamation Judgment For False Charges of Anti-Muslim Statements

In Case of Medzlis Islamske Zajednice Brcko and Others v. Bosnia and Herzegovina, (ECHR, June 27, 2017), the European Court of Human Rights Grand Chamber by a vote of 11-6 held that the free expression rights of a Muslim religious community and three non-governmental organizations representing ethnic Bosnian Muslims were not infringed by a defamation judgment entered against them.  The suit grew out of a letter sent to authorities of the Brčko District's multi-ethnic radio station objecting to the appointment of "Ms. M.S." as director of the station.  Among other things, the letter claimed that M.S.:

(1) stated in an interview ... commenting on the destruction of mosques in Brčko, that Muslims were not a people ..., that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments,

(2) as an employee of the BD radio demonstratively tore to pieces on the radio’s premises ... the calendar showing the schedule of religious services during the month of Ramadan...

These statements were inaccurate.  The majority concluded:

the authorities of the respondent State struck a fair balance between the applicants’ interest in free speech, on the one hand, and M.S.’s interest in protection of her reputation on the other hand, thus acting within their margin of appreciation....

The Court's press release on the decision summarizes the Court's reasoning.

European Court Finds Bulgaria Violated Convention In Refusing To Recognize Ahmadiyya Group

In Metodiev and Others v. Bulgaria, (ECHR, June 15, 2017), (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Bulgaria had violated the European Convention on Human Rights Art. 9 (freedom of religion) in refusing to register the new Ahmadiyya Muslim Community as a denomination under Bulgaria's Religions Act.  According to the Court's press release summarizing the decision:

the sole reason given by the Supreme Court of Cassation for the refusal was the lack of a sufficiently precise and clear indication of the beliefs and rites of the Ahmadi religion in the association’s constitution. The domestic court had concluded that the constitution did not meet the statutory requirements of the Religions Act, which sought to distinguish between the various religions and to avoid confrontation between religious communities....

The Court took the view that the approach adopted by the Court of Cassation would lead in practice to refusing registration of any new religious association having the same doctrine as an existing religion. That approach could result in allowing the existence of only one religious association for each religious movement and in requiring all followers to adhere to it.

A Chamber Judgment may be appealed to the Grand Chamber.

European Court Says German Church Taxes Do Not Violate Religious Freedom

In Case of Klein and Others v. Germany, (ECHR, April 6. 2017), the European Court of Human Rights in a Chamber Judgment held that Germany's church taxes do not violate Article 9 (freedom of religion) of the European Convention on Human Rights.  The holding is summarized in the press release on the case issued by the Court:

[I]n these cases the taxes/fees had been levied not by the State, but by the applicants’ churches – which the applicants were free to leave under German law. As such, in most of the cases the levying and calculation of the taxes/fees had been an autonomous church activity, which could not be attributed to the German State.

However, in one case the State had been involved in levying a special church fee on an applicant who was not a member of the relevant church. This was because the fee which had been levied on the applicant’s wife had been subtracted directly from the applicant’s tax reimbursement claim by way of an off-set – therefore subjecting the applicant to his wife’s financial obligations towards her church. However, this off-set had arisen because the couple themselves had chosen to file a joint tax assessment....

European Court Rejects Muslim Parents' Complaints About Mixed Swim Lessons In Schools

In Osmanoğlu and Kocabaş v. Switzerland, (ECHR, Jan. 10. 2017) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment rejected a challenge by Muslim parents to a Swiss educational requirement that their young daughters attend mixed swim lessons.  The Court's press release summarized the decision:

The Court ... observed that the authorities’ refusal to grant ... an exemption from swimming lessons had been an interference with the freedom of religion, that interference being prescribed by law and pursuing a legitimate aim (protection of foreign pupils from any form of social exclusion).

The Court emphasised, however, that school played a special role in the process of social integration, particularly where children of foreign origin were concerned. It observed that the children’s interest in a full education, facilitating their successful social integration according to local customs and mores, took precedence over the parents’ wish to have their daughters exempted from mixed swimming lessons and that the children’s interest in attending swimming lessons was not just to learn to swim, but above all to take part in that activity with all the other pupils, with no exception on account of the children’s origin or their parents’ religious or philosophical convictions.

The Court also noted that the authorities had offered the applicants very flexible arrangements ... such as allowing their daughters to wear a burkini.... The Court accordingly found that by giving precedence to the children’s obligation to follow the full school curriculum and their successful integration over the applicants’ private interest in obtaining an exemption from mixed swimming lessons for their daughters on religious grounds, the domestic authorities had not exceeded the considerable margin of appreciation afforded to them ... which concerned compulsory education.

A Chamber Judgment may be appealed to the Grand Chamber. [Thanks to Law & Religion UK for the lead.]