CHANCHARADE

Article 9 ECHR forms a basic point of reference for this research:

Article 9 . Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief and freedom,
either alone or in community with others and in public or private, to
manifest his religion or belief, in worship, teaching, practice and
observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to
such limitations as are prescribed by law and are necessary in a
democratic society in the interests of public safety, for the protection of
public order, health or morals, or for the protection of the rights and
freedoms of others.

Other regulations show a similar approach. The text of the English Human Rights Act 1998 is identical to that of the ECHR. The first paragraph of article 9 was copied from the Universal Declaration on Human Rights, while the latter lacks a provision similar to the second paragraph. The more basic nature of the Declaration fits its non-binding nature, which would make more explicit provisions on limitations pointless. The French Déclaration des droits de l'Homme et du citoyen states: « Nul ne doit être inquiété pour ses opinions, mêmes religieuses, pourvu que leur manifestation ne trouble pas l'ordre public établi par la loi ».

The Dutch constitution too has a comparable structure, although it does not explicitly protect the forum internum:

Article 6 [Religion, Belief]
1. Everyone shall have the right to manifest freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law.
2. Rules concerning the exercise of this right other than in buildings and enclosed places may be laid down by Act of Parliament for the protection of health, in the interest of traffic and to combat or prevent disorders.

The Polish constitution and the International Covenant on Civil and Political Rights (ICCPR) are both more elaborate. The ICCPR states in addition to the above that “no one shall be subject to coercion which would impair his freedom to have or to adopt a religion of or belief of his choice”; a provision which seems to aim more at securing the freedoms already included in the first paragraph than at creating a new right. The Polis constitution adds that “no one can be compelled to participate or not to participate in religious practices” and that “no one may be compelled by organs of public authority to disclose his world view, religious convictions or belief”.

Most regulations also include additional provisions concerning the freedom of parents to provide their children with an upbringing and education in conformity with their convictions as part of freedom of religion and/or of the right to education. Freedom of religion in relation tot the right to education will be thoroughly discussed in chapter 4.

3.1 The Forum Internum in the ECHR

The European Court on Human Rights observed in the case of Valsamis v Greece:

Article 9 primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the ‘forum internum’.

Following the structure of the ECHR, the protection of the forum internum is not limited to ‘beliefs and religious creeds’ alone, but to ‘thought, conscience and religion’ in general. One is therefore free to hold whichever belief or thought, and to change his beliefs or thoughts, even though the freedom to change one’s mind is – in contrary to the freedom to change religion or belief – not explicitly mentioned in article 9. The primary protection of article 9 lies in the fact that a State cannot tell its citizens what to think or what to believe. This general protection is in conformity with the State’s obligation not to adjudge the belief at stake. Thus, in the sphere of the forum internum, it does not matter whether a conviction is political in essence, whether it is consistent at all or whether it may be utterly offensive. The point is that as long as it is part of the private sphere of the ‘believer’, no one is to be bothered by it. The explicit protection of this in article 9, which is in this respect akin to the right to privacy of article 8, indicates that a State cannot enter or manipulate this private sphere.

Krishnawami remarks that “one would assume that any intervention [in the forum internum] from outside is not only illegitimate but also impossible”. Indeed we may wonder to what extent a State would be able to change someone’s beliefs and convictions, even if it would aspire to. While the State may effectively use force in order to change human behaviour, it has no ability to change mere thoughts and convictions. It is the acknowledgment of this circumstance that formed the basis for Locke’s plea for a separation of State and church:

The care of souls is not committed to the civil magistrate, any more than to other men. It is not committed unto him, I say, by God; because it appears not that God has ever given any such authority to one man over another as to compel anyone to his religion. Nor can any such power be vested in the magistrate by the consent of the people, because no man can so far abandon the care of his own salvation as blindly to leave to the choice of any other, whether prince or subject, to prescribe to him what faith or worship he shall embrace. For no man can, if he would, conform his faith to the dictates of another. All the life and power of true religion consist in the inward and full persuasion of the mind; and faith is not faith without believing.

Nevertheless, the forum internum is not merely a matter of fact. Great pressures can be exerted in order to try to make someone change his beliefs. The primary aim of article 9 is to secure against such pressures. It is freedom in its basic and legal sense: the absence of a duty to think, to believe, or not to believe something.

A essential obligation that follows from the protection of the forum internum is therefore that the State cannot prosecute citizens for the reason of their belief or non-belief. It may not compel individuals to join or prevent them from leaving the organisation of a religion or a belief. Some constitutions explicitly mention this right not to be coerced into any kind of belief. The protection of the forum internum is thus the basis for a separation of State and religion, as it requires from the State that it does not force any kind of religion or belief upon its citizens.

The question that naturally follows is when the State can actually be considered to be using force, apart from of persecutions or similar coercion. This is a matter particularly difficult, as the dichotomy between the internal and external aspects of belief is not one self-evident. If a State requires that its members of parliament swear on the Holy Gospel their loyalty to the constitution, does it compel them to adhere to that belief? One could argue in line with Locke here above that an oath could never bind people who don not actually believe in it. But this is almost a religious-psychological matter, and it would certainly not be in line with freedom of religion if a State were to examine the actual inner consequences of actions involving faith. Therefore, any public obligation to show one’s loyalty to a certain religion, accompanied by a penalty, should be seen an infringement of the forum internum, as it can be interpreted as a ‘duty to believe’ – effective or not – and consequently as the opposite of a privilege. Accordingly, the freedom from being compelled to perform a religious act or oath is protected in may constitutions. The ECHR however, while assuming that the obligatory oath for members of parliament “required them to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats”, did not even consider the case in relation to the forum internum. Instead it concluded that this limitation of religious freedom was not ‘necessary in a democratic society’. It thus accepts non-religion as a religion or belief and subsequently treats the objections to taking the oath as a manifestation of that (non-) belief, or it would not have had to address the question whether the limitation of religious freedom was legitimate. A better and more clarifying approach would have been to limit the judgment only to art 9(1), which provides the right framework for this type of (non)belief and this type of State interference.

In some respects however, the Court and Commission took the span of the forum internum even further. The Commission argued in the case of Darby v Sweden that the prohibition of force regarded not only one’s adherence to a religion or belief, but also the involvement in religious activities against one’s will without being a member of the religious community carrying out those activities. The Commission concluded that “the paying of taxes to a church for its religious activities in the circumstances described [,,,] must be seen as such involvement”. Here too, the question is whether the personal sphere of beliefs can be really affected by such obligation. An obligation to pay tax to a church is not the same as a duty to be loyal to that church. The act of paying taxes moreover is in itself not a religious activity, albeit it may simply not seem right for a State to oblige its citizens to support one particular church. The Court took a different approach in this case and did not examine it under article 9, but would nevertheless later refer back to the statement of the Commission.

Activities other than those aimed at the inner convictions of someone are not easily an infringement of the forum internum. Religious indoctrination by the State has such focus. In relation to education, the European Court on Human Rights has developed a doctrine that “the State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents religious and philosophical convictions”. While at first only with in combination with the first protocol, the Court has confirmed in later cases that “article 9 of the Convention affords protection against religious indoctrination by the State”. The Court has never concluded that the State did in fact pursue such aim. It has accepted that religious education is organized in State schools, either voluntarily or compulsory, as long as exemptions are allowed and it has not objected against grades for such classes or alternative ethics courses in school reports. The protection of the forum internum in education will be discussed more elaborately in chapter 3.

If any public obligation to show one’s loyalty to a certain religion is indeed an infringement of the forum internum, as was argued before, so could be the duty to reveal one’s religion or belief. The freedom to keep silent about one’s religious convictions is mentioned in several constitutions, while the European Court on Human Rights avoided the issue when it had the occasion to give it’s opinion. A statement on one’s beliefs in itself does not jeopardize those beliefs. But a duty to make such statement creates possible threats to the freedom with which those beliefs are held. It gives a public importance to one’s private convictions, for obscure reasons.

If there were conceivably good reasons, possibly the context of national security, for the State to know what a person believes, the resistance to giving it the power to do so reflects the shade of the inquisition and the coercive investigations of modern totalitarian regimes.

In fact, the better the reasons may seem, the stronger the need for a protected forum internum. Especially in modern days, when national security issues are so strongly connected to religion, protection of the forum internum should give guarantees against discrimination and restrictions on religious freedom solely on basis of the fact that someone belongs to a certain religion or belief. .

The forum internum indicates the personal sphere of beliefs. The guarantee of the first limb of article 9(1) serves at keeping this sphere personal and outside the area of public interests. It does not on its own create a claim to be protected against other types of burdens that may follow from being a believer. The European Court on Human Rights has suggested that article 9 includes also the right to protection of religious feelings of believers. This judgement is extremely unfortunate in this respect. In fact, as will be further discussed in chapter 6, it could form a reason for the State to act in a way which forms a direct threat to the forum internum.

3.2 The Forum Externum in the ECHR

Apart from the right to believe, everyone has the right to manifest his belief; alone or with others, at home or in public. This aspect of freedom of religion is referred to as the forum externum. Restrictions of the free manifestation of religion are only allowed under the circumstances indicated in article 9(2). The freedom of religious manifestation too, is primarily negative in character. It is, in Hohfeldian terms, a privilege, rather than a claim-right. Actual claim-rights with regard to religious freedom have only been acknowledged in the case of prisoners who cannot provide themselves with certain conditions for their free religious exercise, such as the presence of a priest. An appeal to the free manifestation of religion is usually made by way of challenging a duty to behave differently. There are two types of duties that may conflict with one’s religious manifestation. Firstly, specific legislation may aim at restricting manifestations of religion. Examples of this are prohibitions on the wearing of religious garb, display of religious symbols in certain (public) places, or a prohibition on proselytism. A second type of duties may follow from general legislation, which does not aim at restricting freedom of religion, but has as an effect that certain types of manifestations are prohibited. Examples of this category are rules regarding hygiene and slaughtering, making ritual slaughter impossible, or the obligation to wear helmets in traffic, making the wearing of a turban impossible. Both types of legislation must always be legitimized on the basis of one of the reasons mentioned in article 9(2): public safety, the protection of public order, health or morals, or the protection of rights and freedoms of others and must be ‘necessary in a democratic society’.

There is a third category of duties which may be contrary to one’s religion and which are consequently seen sometimes as forming a breach with religious freedom. Examples are the obligation to pay tax for a State church, or an unsupported goal such as war, or compulsory military service. This category should be distinguished from the former, as it does not restrict the free manifestation of religion as such. An obligation to pay tax to whatever goal does not prevent someone from holding a certain religion or belief or from manifesting that belief in worship, teaching, practice or observance. Nevertheless, such obligation may be a great burden on someone’s perceived ‘freedom’ of religion and – more adequately – conscience. If this burden is so heavy that it is concluded that a State is not, or should not be able to place it, an immunity is created together with the determination of the State’s disability.

In case law regarding free manifestation of religion – in particular case law on article 9 ECHR – all three categories can be distinguished. Due to the many different interests at stake, with different levels of importance attached to them in different countries, leading to different considerations of justice and policy, case law –especially that of the European Court on Human Rights – tends to be somewhat confusing. The reaction of the Court to those differences, granting them a large ‘margin of appreciation’, does not help.

The crucial question is of course, what makes a manifestation for the purpose of the second limb of article 9. The terms ‘worship, teaching, practice and observance’ may refer to a broad range of possible manifestations. According to Krishnawami, “it may safely be assumed that the intention was to embrace all possible manifestations of belief”. The European Court seems to have taken the same view when it stated that “article 9 lists a number of forms which a manifestation of one’s belief may take”. The Human Rights Committee noted with regard to article 18 IVBPR:

The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. (…) The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group.

A strict distinction between the different forms of manifestation mentioned in article 9 seems artificial, also given the fact that national regulations do not always refer to the same specific terms. The European Court and Commission have in certain cases referred to specific types of belief, without usually explaining whether or why certain acts fall under the description. In the case of Kokkinakis v Greece, the European Court stated that the freedom to manifest one’s religion “includes in principle the right to try to convince one’s neighbour, for example through ‘teaching’”. It concluded that the arrest of a Jehovah’s witness for proselytism, a prohibited act under Greek legislation, was not proportionate and consequently not necessary in a democratic society. In the case of Manoussakis, on the (im)possibility of Jehovah’s Witnesses to set up a place of public worship, the Court concluded to an interference with free worship and observance, without further explaining or distinguishing between those terms.

The most discussed decision in European case law on the free manifestation of religion however, was specifically made with regard to the term ‘practice’.
The case of Arrowsmith v the United Kingdom concerned a pacifist who had distributed leaflets among soldiers, protesting about the situation in Northern Ireland and urging them not to accept a duty there. The Commission accepted pacifism as a belief, but did not find that the leaflet - which was rather political in nature and did not mention pacifism at such - was a manifestation of this belief. It considered:

[The] term “practice” as employed in article 9(1) does not cover each act which is motivated by a religion or belief.
[…]
When the actions of individuals do not actually express the belief concerned they cannot be considered to be as such protected by article 9(1), even when they are motivated by it.

Later case law suggests that this requirement is not limited to the term ‘practice’ alone, but may apply to religious manifestations in general.

In the case of C v the United Kingdom, the Commission remarked, while referring to the Arrowsmith-test:

Article 9 primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the forum internum. In addition, it protects acts which are intimately linked to these attitudes, such as acts of worship and devotion which are aspects of the practice of religion or belief in a generally recognized form.

The Arrowsmith decision has been interpreted as a kind of necessity-test, requiring from an applicant to show that a manifestation is necessary to his or her religion in order for it to be protected. The criteria formulated in Arrowsmith have indeed reoccurred in later decisions and judgements, but in different forms and circumstances. The conclusion that the Commission and Court have really intended to introduce a burden of proof to show the religious necessity of one’s behaviour, is not so easily drawn from their ambiguous decisions.

For the structure of article 9, such requirement would be problematic. Of course, a perceived obligation is a good indication that an act is a manifestation of religion. Most cases about the free manifestation of religion concern such claims of necessity - for example the need to wear certain religious garb or to follow specific rules at the slaughtering of animals. The real difficulty with a necessity test occurs if one claims that his religion requires certain behaviour, but if this claim is contested by authorities, or doubted by the Court.

Freedom of religion implies that it is up to neither government nor Court to determine the contents of a belief. Indeed, manifestations of a religion or belief must be closely connected to that belief in order to be protected. But at the same time this belief can be very individualistic in character, or otherwise deviating from the majority’s view, without losing its character of a belief. A Court should not allow itself to take part in discussions about the desirability or accuracy of a belief. Neither should authorities, as will be more extendedly discussed in the next chapter, get involved in questions of a religious nature. The European Court and Commission have acknowledged this principle in their case law, but have occasionally forgotten, taking a more active approach to determine the necessity of manifestations than they should have. Especially those cases in which they have relied on religious experts to determine that there was not in fact a religious manifestation, could be interpreted as a denial of the forum internum of an individual. In the case of X v the United Kingdom, the Commission relied on the statement of a rabbi to determine that the provided meals in a prison were kosher and to consequently dismiss applicants claim that it was not conform his religious beliefs. Also in D v France, the Commission considered that the applicant “would seem to be at variance with the religious leaders under whose authority he claims to be acting”, as a consequence of which there was no manifestation of belief. In Kokkinakis v Greece, the Court used a report of the World Council of Churches to examine the necessity and permissibility of proselytism.

It would not have harmed the Court and Commission to take a more open attitude toward possible manifestations of belief, especially if it had adopted a less permissive interpretation on the term ‘religion and belief’. The requirement of necessity is most important in cases, such as Arrowsmith, in which the nature of the belief makes it more difficult to determine the close connection between the belief and behaviour. But if a Court accepts a certain conviction as a belief, it should be willing to accept that an act forms a manifestation of that belief if someone makes a plausible claim to that effect - without having to rely on religious arguments. The developed doctrine of the judge in the Netherlands, in essence not so different, accepts a manifestation if it forms a ‘direct expression’ of his religion or belief ‘to objective standards’. In general, any doubt should come at the benefit of the believer. A secular Court should be more at ease in judging the applicability of legal justifications for a limitation of religious freedom, than in ruling that an act cannot be considered to be a manifestation of religion.

This does not apply to the third category of duties described at the beginning of this paragraph. Some acts are simply not a manifestation of belief. In the case of C v United Kingdom, a Quaker refused to pay taxes as he refused to indirectly support military expenditure. He even claimed that his wish that the tax be diverted to peaceful purposes was a necessary manifestation of his religion. The Commission considered “that article 9 does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief”. It took the necessity argument quite serious, as it also referred back to the Arrowsmith test, but it concluded:

It follows that Article 9 does not confer on the applicant the right to refuse, on the basis of his convictions, to abide by legislation, the operation of which is provided for by the Convention, and which applies neutrally and generally in the public sphere, without impinging on the freedoms guaranteed by Article 9 .

A refusal to comply with neutral, general legislation cannot be justified with an appeal to the forum internum, because - as was argued in the previous paragraph - such legislation does not interfere with one’s freedom to believe as such. Neither can such refusal be justified with reference to the forum externum, if the general legislation does not directly interfere with ones manifestation of religion. Such direct interference is not present if a certain act is contrary to one’s beliefs without hindering the manifestation of that belief. The refusal to abide by general legislation has occasionally and unsuccessfully been presented as a manifestation of belief. Such reasoning is very unfortunate if we look at it from Hohfeld’s perspective: it would imply that there exists a privilege to refuse to comply with legislation, thus no duty to comply with it, and no-right for the State to enforce its general legislation. There is no such freedom on the basis of article 9. The Court and Commission have consequently refused to follow this line of argument in its judgements and decisions.