British Court Says Husband May Use IVF Embryo for Surrogate Pregnancy After Wife's Death

In EF v. Human Fertilisation and Embryology Authority, (EWHC, Nov. 22, 2024), the England and Wales High Court (Family Division) held that Article 8 (Right to respect for private and family life) of the European Convention on Human Rights gives a court discretion to look outside of written consent forms to determine a wife's wishes regarding use of embryos created with her eggs and her husband's sperm.  In the case, when the wife unexpectedly died, the husband sought access to their embryo for implantation in a surrogate. Standard consent forms signed by the parties did not contemplate this situation. The court said in part:

They are each active members of the J religion which has as one of its core beliefs the sanctity of life and the divine purpose of all life forms. A priest from J religion has filed a detailed statement describing the couples’ deep faith, in particular in the context of conceiving and raising a family evidenced by her reaction when she had an earlier miscarriage. AB believed every living being has a soul and in the J religion’s belief in reincarnation, and considered the divine soul enters the embryos at the point of conception....

EF’s evidence sets out why he is certain that AB’s wish was that their jointly created embryo be used posthumously with a surrogate in the event of her death, if she had been given the chance to do so....

I am satisfied Sch 3 HFEA 1990 should be read down to introduce an implied discretion for the court to accept evidence of consent provided other than in writing where a failure to do so would result in a breach of Art 8. This conclusion does not go against the grain of the legislation, it supports the fundamental principle that the wishes of gamete providers should be paramount. It does not dispense with the requirement of consent, it provides for the possibility of it being provided other than in writing in circumstances where there is clear evidence of the gamete providers wishes and the only reason written consent was not given was due to the lack of opportunity to do so. There is nothing in the legislative history that suggests this situation was considered by Parliament.

While the court relied only on Article 8 in its decision, Applicant also argued:

In the context of Article 9 [Freedom of thought, conscience and religion]: (1) EF would be deprived of being able to honour or fulfil AB’s religious wishes for the embryo to be used in accordance with her beliefs to give the life form a chance.  (2) If unused the embryo would be left to perish which is contrary to both EF and AB’s strongly held religious beliefs....

Law & Religion UK reports on the decision, as does UK Human Rights Blog.

European Court Says Spain Violated Rights of Jehovah's Witness in Authorizing Blood Transfusion

In Case of Pindo Mulla v. Spain, (ECHR, Sept. 17, 2024), the European Court of Human Rights held that Article 8 of the European Convention on Human Rights was violated by Spanish courts when they authorized a blood transfusion for a critically ill woman who, because of her beliefs as a Jehovah's Witness, had refused all blood transfusions. The court said in part:

181.  The Court fully appreciates that the actions taken in relation to the applicant on the day in question by the staff of both hospitals were motivated by the overriding concern to ensure the effective treatment of a patient who was under their care, in keeping with the most fundamental norm of the medical profession. It does not question their assessments regarding the severity of the applicant’s condition at the time, the urgency of the need to treat her, the medical options available in the circumstances, or that the applicant’s life was saved that day.

182.  However, the authorisation by the duty judge to proceed with whatever treatment was considered necessary resulted from a decision-making process that was affected by the omission of essential information about the documenting of the applicant’s wishes, which had been recorded in various forms and at various times in writing. Since neither the applicant nor anyone connected with her was aware of the decision taken by the duty judge, it was not possible, even in theory, to make good that omission. Neither this issue, nor the issue of her capacity to take a decision, were addressed in an adequate manner in the subsequent proceedings. In light of this, it cannot be said that the domestic system adequately responded to the applicant’s complaint that her wishes had been wrongly overruled....

183.  In the Court’s view, the shortcomings identified above ... indicate that the interference complained of was the result of a decision-making process which, as it operated in this case, did not afford sufficient respect for the applicant’s autonomy as protected by Article 8, which autonomy she wished to exercise in order to observe an important teaching of her religion.

Eight of the 17 judges dissented as to the damages awarded by the majority. Courthouse News Service reports on the decision.

European Court: Romania Violated European Convention When It Reversed Conviction of 2 Nazi War Criminals

In Zăicescu and Fălticineanu v. Romania, (ECHR, April 23, 2024), the European Court of Human Rights in a Chamber Judgment held that Romania had violated the European Convention on Human Rights when, in the late 1990's, it reopened the conviction of two Nazi war criminals and acquitted them of war crimes.  As summarized in a press release issued by the Court:

The applicants stated that they felt humiliated and traumatised because of the revision of historically and judicially established facts that, in their opinion, had amounted to a denial of the ethnically motivated violence of which they had been victims during the Holocaust.

The Court held that that the findings of the Supreme Court of Justice – specifically that only German troops had carried out on the territory of Romania actions against Jews and that R.D. had only followed orders issued by a superior – in the acquittal decisions of 1998 and 1999 had been excuses or efforts to blur responsibility and put blame on another nation for the Holocaust contrary to well established historical facts – all elements of Holocaust denial and distortion.

States that had experienced Nazi horrors could be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis. This obligation formed part of the case at issue, where alleged discriminatory acts had been performed by State authorities.  

As matters of public interest, the authorities should have publicised the retrial proceedings and their outcome. The Court found that, owing to that failure, the applicants had found out about them by accident, which could have caused them to feel vulnerable and humiliated. 

The Court was satisfied that the Government had not provided relevant and sufficient reasons for the revision of historical convictions for crimes connected with the Holocaust. The acquittals had therefore been “excessive” and “not necessary in a democratic society”, leading to a violation of Article 8 read in conjunction with Article 14.

In its opinion, the Court quoted findings of the International Commission on the Holocaust in Romania which concluded in part:

Of all the allies of Nazi Germany, Romania bears the responsibility for the greatest contribution to the extermination of the Jews, outside of Germany itself.

The Court's majority refused however to find violations of Article 3's prohibition on torture and inhuman or degrading treatment because these actions occurred before Romania became a party to the European Convention and indeed before the Convention came into existence. A partially dissenting opinion by two judges argued against this part of the majority's decision.

The two survivors who filed suit had not requested damages.  The Court said in part:

[The applicants] contended that the issue in this case was a matter of principle and that no financial compensation could correlate to the mental harm, humiliation and psychological suffering endured as result of the State’s actions. Under these circumstances, the Court considers that there is no call to award any sum in respect of damage.

The Court did award costs and expenses.

Northern Ireland Appeals Court Rejects Challenge To Religious Education In Schools

In re an Application by JR87, (NI CA, April 30, 2024), is an appeal in a challenge to the legality of religious education and collective worship practices in schools in Northern Ireland. In the case, parents who are humanists and are not raising their daughter in any religious tradition object to the Christian religious education and collective worship in their daughter's school. Among other things, they rely on Article 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion) and Article 2 of Protocol 1 to the Convention which provides in part:

Education that is provided, whether public or private, must respect parents' religious and philosophical convictions. But so long as the curriculum and tuition are objective and pluralistic, the fact that it may conflict with some parents' convictions is not a breach.

The Northern Ireland Court of Appeal said in part:

In contrast to the secular reform of the education system in England and Wales facilitated through the 1870 and 1902 Education Acts, the Irish churches retained their ties to the school system.  In Northern Ireland, the 1923 Education Act introduced by the first Belfast government maintained the influence of the main churches in our education system.

A hundred years later, the provision of mandatory Christian education as standard in controlled schools was challenged by way of judicial review in these proceedings.  In the court below the applicants contended that the mandatory Christian religious education (“RE”) and collective worship (“CW”) currently provided in controlled primary schools in Northern Ireland is contrary to the religious freedom protections guaranteed by the European Convention on Human Rights (“ECHR”)....

... [W]e uphold the trial judge’s finding that the curriculum at issue in the present case is not conveyed in an objective, critical and pluralistic manner.  However, we hold that no breach of A2P1 has been established because of the existence of the unqualified statutory right of the parents to have their child excused wholly or partly from attendance at religious education or collective worship, or both in accordance with their request.

The Court's Communications Office also issued a summary of the decision. Law & Religion UK reports on the case.

British Court Upholds School's Ban on Student Prayer

In The King (On the application of TTT) v. Michaela Community Schools Trust, (High Ct., Kings Bench, April 16, 2024), a British trial court in an 83-page opinion rejected a Muslim student's challenge to a secular secondary school's Prayer Ritual Policy (PRP) that prevented the student from using part of her lunch break to perform her Duhr prayer. The policy was adopted by the high-performing school, in which half of the students were Muslim, after prayer by some students led to divisions within the student body and to threatening social media posts.

The court said in part:

It seems to me that this is a case ... where the Claimant at the very least impliedly accepted, when she enrolled at the School, that she would be subject to restrictions on her ability to manifest her religion. She knew that the School is secular and her own evidence is that her mother wished her to go there because it was known to be strict....

... [W]hilst accepting that her belief is that she should perform Duhr during the relevant 25 minutes of the lunch break in the winter months, and that this belief falls within Article 9 [of the European Convention on Human Rights], the evidence indicates that the effect of the PRP is that Qada is available to mitigate the failure to pray within the allotted window....

... [B]alancing the adverse effects of the PRP on the rights of Muslim pupils at the School with the aims of the PRP and the extent to which it is likely to achieve those aims, I have concluded that the latter outweighs the former and that the PRP is proportionate....

The court also rejected the claim that the prayer policy violated Britain's Equality Act. The court also issued a press release summarizing the decision. The Guardian reports on the decision. [Thanks to Scott Mange for the lead.]

European Court: Failure To Consider Antisemitic Nature of Threats Violated Woman's Rights Under European Convention

In Allouche v. France, (ECHR, April 11, 2024) (full text in French), the European Court of Human Rights in a Chamber Judgment awarded damages of 15,000 Euros plus costs and expenses to a Jewish woman for violation of her right to respect for her private life. As explained by the Court in an English language summary:

Criminal proceedings were conducted following a complaint lodged by the applicant concerning antisemitic insults and threats she had received by email from B....

The applicant’s complaint concerned the fact that the authorities, which had failed to take into account the antisemitic aspect of the offender’s remarks, had failed to provide her with effective protection against antisemitic acts of violence, threats and insults. Some of B.’s statements had been extremely violent, had contained direct threats and had been directed at the applicant as a member of the Jewish community.

The Court reiterated that the national authorities had a duty to implement an appropriate legal framework to protect against discriminatory acts and to take all reasonable steps to determine whether there had been any racist or, more broadly, discriminatory motive for the impugned acts.... Violent incidents with allegedly discriminatory motives, in particular racist motives, should not be treated on an equal footing with offences lacking such motives....

In the light of the above considerations, the domestic authorities had disregarded their positive obligations under Articles 8 and 14 of the Convention, which had consisted in providing the applicant with effective and adequate criminal-law protection against the statements made by the offender. The authorities’ failure to take into account the antisemitic component of the present case had undermined their ability to provide an appropriate response.

[Thanks to Law & Religion UK for the lead.]

European Court: Turkey Violated Rights of Conscientious Objector

In Kanatli v. Turkey, (ECHR, March 12, 2024) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Turkey had violated Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights when it convicted a military reservist who had subsequently become a conscientious objector for refusing to serve a one-day reserve duty call-up. The reservist, who had become an activist on the European Bureau for Conscientious Objection, was convicted of violating Turkey's Mobilization Act and fined the equivalent of 167 Euros. He refused to pay the fine and was therefore sentenced to ten days in prison. An English language press release from the Court summarizes its holding, saying in part:

The relevant national legislation – which provided for compulsory military service in the armed forces, including as a reservist – made no provision for potential conscientious objectors to perform an alternative form of service....

The Court had previously found that a system which provided for no alternative service or any effective and accessible procedure for the examination of a claim of conscientious objection could not be seen as having struck a fair balance between the general interest of society and that of conscientious objectors. No convincing arguments having been put forward by the Government, the Court saw no reason to depart from its case-law in the present case....

The Court held that Türkiye was to pay the applicant 9,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,363 in respect of costs and expenses.

European Court Says Ban on Halal and Kosher Slaughter Does Not Violate Human Rights Convention

 In Affaire Executife van de Moslims van Belgie et Autres c. Belgique, (ECHR, Feb. 13, 2024) [full opinion available only in French], the European Court of Human Rights, in a Chamber Judgment, held that Belgium had not violated Article 9 (freedom of religion) or Article 14 (prohibition of discrimination) of the European Convention on Human Rights when two regions in the country eliminated the exemption permitting ritual slaughter of animals without stunning. The decrees had the effect of prohibiting Halal and kosher slaughter of animals in the two regions. An English language press release from the Court describes the Court's opinion, in part, as follows:

The Court found that there had been an interference with the applicants’ freedom of religion and that this was prescribed by legislation, namely the Flemish and Walloon decrees. 

As to whether the interference pursued a legitimate aim, the Court observed that this was the first time that it had had to rule on the question whether the protection of animal welfare could be linked to one of the aims referred to in Article 9 of the Convention.

Article 9 of the Convention did not contain an explicit reference to the protection of animal welfare in the exhaustive list of legitimate aims that might justify an interference with the freedom to manifest one’s religion.

However, the Court considered that the protection of public morals, to which Article 9 of the Convention referred, could not be understood as being intended solely to protect human dignity in the sphere of inter-personal relations. The Convention was not indifferent to the living environment of individuals covered by its protection and in particular to animals, whose protection had already been considered by the Court. Accordingly, the Convention could not be interpreted as promoting the absolute upholding of the rights and freedoms it enshrined without regard to animal suffering. 

Emphasising that the concept of “morals” was inherently evolutive, the Court did not see any reason to contradict the CJEU and the Constitutional Court, which had both found that the protection of animal welfare was an ethical value to which contemporary democratic societies attached growing importance....

The Court noted that both decrees were based on a scientific consensus that prior stunning was the optimum means of reducing the animal’s suffering at the time of slaughter. It saw no serious reason to call this finding into question.

The Court further observed that the Flemish and Walloon legislatures had sought a proportionate alternative to the obligation of prior stunning, as the decrees provided that, if the animals were slaughtered according to special methods required by religious rites, the stunning process used would be reversible, without causing the animal’s death....

European Court: Azerbaijan's Ban on Foreign Educated Imams Violates European Convention

In Babayev v. Azerbaijan, (ECHR, Feb. 1, 2024), the European Court of Human Rights held that Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) is violated by Azerbaijan's law prohibiting citizens of the country who obtained their religious education abroad from conducting Islamic religious rites and rituals in Azerbaijan. In awarding petitioner, who had been sentenced to three years in prison for violating the law, damages of 6000 Euros, plus costs and expenses, the court said in part:

75.... The Court notes that there is no indication whatsoever that the Islamic religious rites and rituals that the applicant conducted contained any expressions or constituted any actions, such as, for example, seeking to spread, incite or justify hatred, discrimination or intolerance, or otherwise undermine the ideals and values of a democratic society....

76.... The Court is aware of the fundamental importance of secularism in Azerbaijani statehood and the respondent State’s attachment to religious tolerance. However, it cannot accept the Government’s argument that the applicant’s criminal conviction was necessary in a democratic society on account of the State’s fight against religious extremism and its protection of democratic values....

78.... [I]t is apparent that in so far as the restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from religious extremism or any other forms of intolerance...

European Court Advisory Opinion: Security Clearance May Be Withdrawn for Supporter of Religion That Is Threat to the State

In a Grand Chamber advisory opinion, the European Court of Human Rights has concluded that Belgium many deny a person the right to work as a security guard because he belongs to a religious movement that poses a threat to the state.  In Requested by the Conseil d’État of Belgium, (ECHR, Dec. 14, 2023), the Belgian Ministry of Interior had withdrawn the identification card of a security guard who was a supporter of the scientific branch of Salafism. The Ministry gave the following justifications:

... [S]cientific Salafism represents a threat to our model of society and to our country. Any security guard or officer must display conduct that is respectful of the fundamental rights of his or her fellow citizens and must respect democratic values....

Even though you have stated that you reject any violence in the name of Islam, the State Security Service has nevertheless indicated that you are a supporter of an ideology which, in particular, questions the legitimacy of Belgian law, advocates community sectarianism, fosters a backward view of the role of women and takes positions which threaten the fundamental rights and freedoms of citizens by a reactionary vision seeking to rid Islam of all its non-Islamic evolutions and influences.

The Court in its Advisory Opinion concluded:

The established fact that an individual belongs to a religious movement that, in view of its characteristics, is considered by the competent administrative authority to represent a threat to the State may justify a refusal to authorise that individual to work as a security guard or officer, provided that the measure in question: (1) has an accessible and foreseeable legal basis; (2) is adopted in the light of the conduct or acts of the individual concerned; (3) is taken, having regard to the individual’s occupational activity, for the purpose of averting a real and serious risk for democratic society, and pursues one or more of the legitimate aims under Article 9 § 2 of the Convention; (4) is proportionate to the risk that it seeks to avert and to the legitimate aim or aims that it pursues; and (5) may be referred to a judicial authority for a review that is independent, effective and surrounded by appropriate procedural safeguards, such as to ensure compliance with the requirements listed above.

British Court Rejects Muslim Mother's Objections to Child's Routine Vaccinations

 In WSP (A Child), Re (Vaccination: Religious Objection, (EWHC (Family), Oct. 23, 2023), a British trial court rejected a claim by a Muslim mother that her rights under Article 9 of the European Convention on Human Rights were being violating when the state insisted on routine vaccinations for her 9-month old son who, because of the mother's mental health condition, was in custody of the state. According to the court, the mother contended:

 ... [T]he use of animal products or animal testing in the production of the vaccines means that some (but not all) Muslims consider their use to be 'haram' (forbidden).... She is concerned that, if vaccinated, WSP would suffer emotional or psychological harm. If he does something haram without repenting, 'this would take him out of the fold of Islam, as he would not have adhered to the rulings of God made for people'. It would be harmful for him to have to repent for something he had no control over.... He may feel guilty and confused. He may question why his mother or grandparents did not stop the immunisations. He may also question his religion and his place within the family and/ or community if he has not allowed the same religious observances as others....

The court concluded in part:

... [I]n the absence of cogent, objective evidence of harm to his welfare, the mother's objections on religious grounds do not otherwise outweigh WSP's welfare interests in receiving the vaccinations....  Her religious objections must be given respect.... However, those religious views do not carry more weight the more strongly they are held or the more forcefully they are expressed.... Given my conclusion that the welfare reasons the mother has put forward do not outweigh WSP's interests in receiving the vaccines, the fact of her objection, even on well-founded religious grounds and however strongly expressed, takes the matter no further. WSP's welfare is the paramount consideration and the mother's objection is inconsistent with his welfare. The fact her objection is founded on her religious beliefs does not constitute a trump card that overrides what is otherwise in his best interests.

Law & Religion UK has more on the decision.                                                                                                              

European Court Says Homophobic Posting Was Not Protected by Human Rights Convention

 In Lenis v. Greece, (ECHR, Aug. 31, 2023), the European Court of Human Rights declared inadmissible an application filed by a former Metropolitan of the Greek Orthodox Church who contended that his Freedom of Expression protected by Article 10 of the European Convention on Human Rights was infringed when he was convicted by Greek courts of public incitement to violence or hatred against people because of their sexual orientation.  The European Court pointed out that:

Speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention.... The decisive points when assessing whether statements, verbal or non-verbal, are removed from the protection of Article 10 by Article 17 are whether the statements are directed against the Convention’s underlying values.... 

At issue was a homophobic article that the Metropolitan posted on his personal blog as Parliament was about to debate civil unions for same-sex couples. He titled the article "The Scum of Society Have Reared Their Heads! Let's Be Honest! Spit on Them". The Court said in part:

54.  ... [C]riticism of certain lifestyles on moral or religious grounds is not in itself exempt from protection under Article 10 of the Convention. However, when the impugned remarks go as far as denying LGBTI people their human nature, as in the present case, and are coupled with incitement to violence, then engagement of Article 17 of the Convention should be considered.

55.  ... [T]aking account firstly of the nature of the disputed article, which included incitement to violence and dehumanising hate speech ...; secondly, of the applicant’s position as a senior official of the Church who could influence many people; thirdly, of the fact that the views expressed in the article were disseminated to a wide audience through the Internet; and, fourthly, of the fact that they related directly to an issue which is of high importance in modern European society – protection of people’s dignity and human value irrespective of their sexual orientation – the applicant’s complaint does not, in the light of Article 17 of the Convention, attract the protection afforded by Article 10.

Bulgaria Violates European Convention by Failing to Recognize Same-Sex Married Couple

In Koilova and Babulkova v. Bulgaria, (ECHR, Sept 5, 2023) (full text of decision in French) (Court's English Summary of decision), the European Court of Human Rights ruled that Bulgaria violated Article 8 of the European Convention on Human Rights (Respect for private and family life) by failing to have a procedure for recognizing or registering a same-sex marriage entered in another country. According to the English language summary of the decision, the Court said in part:

... [I]n the absence of official recognition, same-sex couples were nothing more than de facto unions for the purposes of national law, even where a marriage had been validly contracted abroad. The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, family matters and inheritance, except as private individuals entering into contracts under the ordinary law, where possible, rather than as an officially recognised couple. They were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities or with third parties. Even assuming that national law had allowed the applicants to apply to the domestic courts for protection of their basic needs as a couple, the necessity of taking such a step would have constituted in itself a hindrance to respect for their private and family life.

[Thanks to Law & Religion UK for the lead.]

European Court: Ukraine Violates Human Rights Convention by Denying Legal Recognition to Same-Sex Couples

In Maymulakhin & Markiv v. Ukraine, (ECHR, June 1, 2023), the European Court of Human Rights in a Chamber Judgment held that Ukraine violated Article 14 (prohibition of discrimination) of the European Convention on Human Rights taken in conjunction with Article 8 (right to respect for private and family life) by denying any form of legal recognition to same-sex couples. The Court said in part:

While the Court has to date not interpreted Article 8 of the Convention as imposing a positive obligation on the States Parties to make marriage available to same-sex couples, it has confirmed that in accordance with their positive obligations under that provision, the member States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship.... The Court has also held that Contracting States enjoy a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same sex couples....

The Court ordered Ukraine to pay the two petitioners 5032 Euros each as damages and to pay 4000 Euros for costs and attorney's fees.

The Court also issued a press release (PDF download link) summarizing its decision.

British Court: Humanist Eligible to Sit on Advisory Council for Religious Education

In R (on the Application of Bowen) v. Kent County Council, (EWHC (Admin), May 26, 2023), a British High Court justice rejected a ruling of the Kent Conty Council regarding who is eligible for appointment to an advisory body on religious education in the county's schools. The court explained:

Mr Bowen sought to be appointed to join Group A of the Standing Advisory Council for Religious Education (‘SACRE’) of Kent County Council (‘KCC’). Pursuant to section 390(4)(a) of the Education Act 1996 (‘the 1996 Act’) ..., Group A is required to be ‘a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area.’ KCC refused to appoint Mr Bowen because, as a humanist, Mr Bowen does not represent ‘a religion or a denomination of a religion’....

 ... [T]he ability to be a representative of a particular relevant belief on a SACRE is (at the very least) more than tenuously connected with that core value, so as to bring the alleged discrimination through the prevention of membership of SACRE within the ambit of article 9 [of the European Convention on Human Rights]..

... [A] religious education curriculum must, in order to be compliant with the HRA [Human Rights Act] 1998, cover more than religious faith teaching. The content of religious education teaching must include, at least to some degree, the teaching of non-religious beliefs (such as humanism).... 

The court concluded in part:

Analysed properly, when looking at membership of a group the purpose of which is to advise upon the content of a religious education syllabus, it is obvious that all people who are holders of belief systems appropriate to be included within that syllabus are in an analogous position. It is in my view clearly discriminatory to exclude someone from SACRE Group A solely by reference to the fact that their belief, whilst appropriate to be included within the agreed syllabus for religious education, is a non-religious, rather than a religious, belief.

Law & Religion UK has a lengthier analysis of the decision.

European Court Upholds Politician's Conviction for Failing to Remove Third Party Hate Speech from His Facebook Page

In Sanchez v. France, (ECHR, May 15, 2023), the European Court of Human Rights by a vote of 13-4 in a Grand Chamber judgment upheld France's conviction of a candidate for election to Parliament who was convicted of inciting violence against Muslims when he failed to promptly remove anti-Muslim postings by third parties placed on his Facebook page. The authors of the comments were convicted as accomplices. The majority concluded that the conviction did not violate Article 10, §1 of the European Convention on Human Rights since that section permits an interference with free expression when "necessary in a democratic society."  The majority said in part:

148.  While political speech calls for an elevated level of protection, the freedom of political debate is not absolute in nature....

149.  Since tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society, it follows that, in principle, it may be considered necessary in certain democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued.... 

176.  ... [I]n an election context, the impact of racist and xenophobic discourse becomes greater and more harmful.... That is particularly true in the present circumstances where the political and social climate was troubled, especially at the local level with “clear tensions within the population, which were evident in particular from the comments at issue, but also between the protagonists”.... 

209.  ... [T]he Court finds that the decisions of the domestic courts were based on relevant and sufficient reasons, both as to the liability attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the run-up to an election on his Facebook “wall” by third parties, who themselves were identified and prosecuted as accomplices, and as to his criminal conviction. The impugned interference can therefore be considered to have been “necessary in a democratic society”.

The Court also posted a Legal Summary of the decision.

European Court: Finland May Require Jehovah's Witnesses to Obtain Consent Before Taking Notes on Those They Visit

In Jehovah's Witnesses v. Finland, (ECHR, May 9, 2023), the European Court of Human Rights held that Finland's data collection regulations did not infringe the religious freedom protected by Article 9 of the European Convention on Human Rights of Jehovah's Witnesses who proselytized door-to-door.  At issue was notes taken by Jehovah's Witnesses in the course of their door-to-door preaching identifying those who did not wish to be visited again, and those who are deaf or spoke a foreign language so Witnesses who knew sign language or the relevant foreign language could visit in the future. Finland's Data Protection Ombudsman had held that this personal data could not be collected without the explicit consent of the person in question. Upholding that determination, the court said in part:

The relevant order had been based on the Personal Data Act in force at the time of the proceedings. That law was formulated with sufficient precision and aimed to protect the rights and freedoms of others. The Supreme Administrative Court had taken into account the fact that individuals whose personal data had been collected were entitled to trust that their data were not collected without their knowledge and consent. They also had a legitimate expectation, guaranteed by law, that they would have access to the data and, if necessary, the right to require that the data be corrected or deleted. Ensuring the rights of data subjects therefore inspired confidence rather than distrust in the applicant community’s activities. The consent requirement and the fact that it did not interfere with the core areas of the applicant community’s freedom of religion or freedom of expression had thus been proportionate.

Courthouse News Service reports on the decision.

European Court Says Russian Regulation of Proselytizing Violated Human Rights Convention

In Ossewaarde v. Russia, (ECHR, March 7, 2023), the European Court of Human Rights held that legal restrictions imposed by Russia in 2016 on religious proselytizing violated the rights of a Baptist pastor who was a U.S. national living in Russia.  The court found violations of Articles 9 (freedom religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights.  The court said in part:

By requiring prior authorisation from a duly constituted religious association and excluding private homes from the list of places where the right to impart information about religion may be exercised, the new regulation has left no room for people in the applicant’s situation who were engaged in individual evangelism. The requirement of prior authorisation also eliminated the possibility of spontaneous religious discussion among members and non-members of one’s religion and burdened religious expression with restrictions greater than those applicable to other types of expression.

...  [S]o long as the new restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from “hate speech” or to shield vulnerable persons from improper methods of proselytism which ... could have been legitimate aims for the regulation of missionary activities.... [T]he Court finds that the need for such new restrictions, in respect of which the applicant was sanctioned for non-compliance, has not been convincingly established. Accordingly, the interference with the applicant’s right to freedom of religion on account of his missionary activities has not been shown to pursue any “pressing social need”....

While the application of the additional penalty of expulsion exclusively to non-nationals may be objectively justified by the fact that it cannot be applied to nationals, the Court finds no justification for the considerably higher minimum fines applicable to non‑nationals in respect of the same offence. The difference in treatment also appears hard to reconcile with the provisions of Russia’s Religions Act which posits that non-nationals lawfully present in Russia may exercise the right to freedom of religion on the same conditions as Russian nationals.

The court also issued a press release summarizing the decision.

European Court Says Russia Violated Rights of Same Sex Couples Who Were Denied Marriage Registration

In Fedotova and Others v. Russia, (ECHR, Jan. 17, 2023), the Grand Chamber of the European Court of Human Rights held that Russia violated the rights of three same-sex couples when it refused to permit them to marry. The court said in part:

 206.  The Government argued, firstly, that it was necessary to preserve the traditional institutions of marriage and the family, these being fundamental values of Russian society that were protected by the Constitution.... 

209.  Given that the Convention is a living instrument which must be interpreted in the light of present-day conditions, the State, in its choice of means designed to protect the family and secure respect for family life as required by Article 8, must necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life....

212.  In the present case, there is no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity..... Indeed, the recognition of same-sex couples does not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term. More broadly, securing rights to same-sex couples does not in itself entail weakening the rights secured to other people or other couples. The Government have been unable to prove the contrary.

213.  Having regard to the foregoing, the Court considers that the protection of the traditional family cannot justify the absence of any form of legal recognition and protection for same-sex couples in the present case....

219.  ... [T]he allegedly negative, or even hostile, attitude on the part of the heterosexual majority in Russia cannot be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law....

Law & Religion UK reports in greater detail on the decision.

European Court Again Holds That Flying Spaghetti Monster Church Is Not a Protected "Religion"

In two recent Chamber Judgments, the European Court of Human Rights reaffirmed its prior holding in a 2021 case that the Church of the Flying Spaghetti Monster, whose adherents are also known as Pastafarians, does not qualify as a "religion" or "belief" protected by Article 9 of the European Convention on Human Rights. In Sager v. Austria, (ECHR, Dec. 15, 2022), Austria's Office for Religious Affairs refused to recognize the Church as a religious community. The European Court rejected petitioner's challenge to that decision, saying in part:

[B]y holding that Pastafarianism perceived itself as an ironical and critical movement with educational, scientific and political aims, and lacked religious rites, duties and an active following in Austria, the Office for Religious Affairs and the Federal Administrative Court duly applied the above‑mentioned standards requiring a certain level of cogency, seriousness, cohesion and importance.

In ALM v. Austria, (ECHR, Dec. 15, 2022), Austrian authorities refused to issue petitioner an identity card with a photograph showing him wearing a crown made of pasta.  Again, the European Court rejected petitioner's challenge to that decision. Law & Religion UK reports on the decisions.