Religious Organisations, Internal Autonomy and other Religious Rights before the European Court of Human Rights and the OSCE
| Published date | 01 March 2016 |
| Date | 01 March 2016 |
| DOI | http://doi.org/10.1177/016934411603400103 |
| Subject Matter | Article |
Netherlands Q uarterly of Human Ri ghts, Vol. 34/1, 8–40, 2016.
8 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
ARTICLES
RELIGIOUS ORGANISATIONS, INTERNAL
AUTONOMY AND OTHER RELIGIOUS
RIGHTS BEFORE THE EUROPEAN COURT
OF HUMAN RIGHTS AND THE OSCE
S L D*
Abstract
is article considers the rights of religious organisations in Europe, by taking the
position of the European Court of Human Rights and of the Organization for Security
and Cooperation in Europe. It primarily argues that religiou s organisations have a clear
set of rights to internal autonomy, that is, to organise their own a airs, and that the
State has a limited role. Nevertheless, in cases involving disputes between the rights of
the organisation and the rights of others such a s individual employees, there are complex
balancing interests. is article also consid ers other rights of religious organisations, in
particular their very right to existence and to legal entity status, their right not to be
discriminated against, and othe r rights over property. Overall, what emerges is a clear
set of rights to internal autonomy for religious organisations, a con rmation of rights
to legal entity status, while othe r issues are more peripheral and not taken into account
to the same extent.
internal autonomy; OSCE; property; relig ious communities
1. INTRODUCTION
How the State relates to religious groups is of great importance in contemporary
Europe. Some commentators propose that religious freedom is purely an individual
right while others sug gest that it has an unm istakable collec tive element.1 is situation
* Previ ously Le cturer, S chool of L aw, Queen’s Univ ersity B elfast , UK, ema il: syl vie.don e@gmai l.com.
I am gratefu l to Brice Dickson and Jul ian Rivers for their com ments.
1 Respectively, see A nat Scolnicov, e Right to Religious Freedom in International Law: Betwe en
Group Rights and Ind ividual Rights (Routle dge 2011); Julian R ivers, e Law of Organized Religion s
(OUP 2 010).
Religious Orga nisations, Interna l Autonomy and Other Religiou s Rights
before the ECtHR a nd the OSCE
Netherlands Q uarterly of Human Ri ghts, Vol. 34/1 (2016) 9
raises a number of questions about how individuals relate to religious organisations
and especially how religious organisations relate to the State. In a part of the world
where religious attendance has d ropped, which has been coined as ‘believ ing without
belonging’,2 the European Union (EU) nevertheless deems it necessary to pay
attention to religious issues and to ma intain a dialogue with rel igious organisations.3
is ar ticle takes two recent decisions of the Grand Chamber of t he European Court
of Human Rights (ECtHR) – Sindicatul ‘Păstorul cel Bun’ [Trade Union ‘ e Good
Shepherd’] v. Romania4 and Fernández Martínez v. Spain5 – as a springboard for
discussing further the rights of religious groups under European human rights law.
It considers the caselaw of the ECtHR under the European Convention of Human
Rights6 (Convention) and the Guidelines for Review of Legislation Pertaining to
Religion or Belief (2004 Guidelines) dra ed by the OSCE O ce for Democratic
Institutions and Human Rights.7 Whenever relevant it refers to other international
standards.
ere has been a renewed impetus in cases brought by religious organisations
before the ECtHR in the past 15 years. Some of the cases that have raised di cult
issues have been claims by clergy and other individual employees against their
religious organisation on the ground that they should not have been dismissed or
disciplined for failing to comply with the organisation’s ethos, or on the ground
that fair procedures were not observed. Religious organisations do not o en accept
internal challenges to their doctrine and their organisation, and collective religious
freedom might not appear to sit very wel l with individua l rights. Section 2 of the a rticle
addresses the reasons adva nced by the ECtHR and the OSCE to protect the doctri nal
and organisational autonomy of religious communities. Sections 3 and 4 discuss
the collective rights of religious groups especially autonomy rights, whilst section 5
addresses rights to lega l personality, privileges, propert y and freedom of worship. is
article does not cover a number of recent cases on taxation issues.8 It argues that a
coherent set of principles is emerging on the rights of religious organisations, both
rights to internal autonomy and to organ ise their own a airs as well as other r ights to
legal personalit y, privileges, propert y and worship rights.
2 Grace Davie, Re ligion in Britain since 1945: Bel ieving without Belong ing (Blackwell 1994).
3 Consolidated Version of the Treaty on t he Functioning of the European Union [2008] OJ C 326,
Article17.
4 Sindicatul ‘Păst orul cel Bun’ v Romania (2014) 58 EHRR 10.
5 Fernández Ma rtínez v Spain App no 56030/07 (ECt HR GC, 12June 2014).
6 Convention for the Protec tion of Human Ri ghts and Funda mental Freedoms (Eur opean Convention
on Human Right s, as amended).
7 OSCE/ODIHR, ‘Guidel ines for Review of L egislation Pert aining to Reli gion or Belief ’ (28September
2004). See also Venice C ommission, ‘Compilat ion of the Venice Commission Opi nions and Report s
concerning Free dom of Religion or Belief ’ (4July 2014) CDL-PI(2014)005.
8 For example, Les Témoin s de Jéhovah v France App no 8916/05 (ECtHR, 5Ju ly 2012); e Religious
Association of t he Pyramid Temple v France App no 50471/07 (ECtH R, 31Janu ary 2 013); e C hurch
of Jesus Chri st of Latter-Day Saints v U K App no 7552/09 (ECtHR, 4March 2014).
Sylvie Lang laude Doné
10 Intersentia
2. CONSIDERATIONS OF COLLECTIVE RIGHTS AND
INTERNAL AUTONOMY
A religious association (group, organisation, or community) can be de ned as ‘a
community of people sharing a common relig ious faith [that] organise themselves and
structure their corporate life according to their own ethical and religious precepts’.9
e ECtHR found that ‘a religious association may, as such, exercise on behalf of its
members the rights gu aranteed by Article9’, which provides for the right to freedom
of thought, conscience and relig ion.10
e ECtHR has developed the principles underlying the rights of religious
groups including religious autonomy. One key justi cation is the preservation of
pluralism in a democratic society and it identi ed religious freedom ‘as a tool for
protecting and advancing the goods of democratic pluralism’.11 For example it said
in Kokkinakis v. Greece that the ‘pluralism indissociable from a democratic society,
which has been dearly won over the centuries, depends on [freedom of thought,
conscience and religion]’.12 Aernout Nieuwenhuis suggested that the ECtHR links
‘the freedom to associate with others with the same religion or philosophy of life as
an essential feature of a democratic society’.13 e ECtHR also said in Hasan and
Chaush v. Bulgaria that the autonomous existence of religious communities was
indispensable for pluralism in a democratic society.14 is suggests that religious
associations perform a n essential function in a democratic soc iety and in particular
that they provide an a lternative to the State. Having a more homogeneous society a nd
less diversity would argu ably be a loss; likewise, religious groups provide alternat ive
conceptions of ‘the good life’ and the inculcation of virtues such as respect, loyalty
and sacri ce.15 As Julie R ingelheim put it, pluralism is a value that conveys the idea
that diversity of beliefs and opinions is good for society and for individuals, even
non-religious members of society.16 e ECtHR summed it well in t he leading Hasan
and Chaush v. Bulgaria:
9 Julian Rive rs, ‘Religious Libert y as a Collective Rig ht’ in Richard O’Dair a nd Andrew Lewis (eds),
Law and Religion (OUP 20 01) 231.
10 Leela Förderkreis EV and Others v Ge rmany (2009) 49 EHRR 5, para 79. e right of religious
organisations to bring claims under the Convention has long been sett led; see Ioana Cismas,
Religious Acto rs and International Law (OUP 2014) 87–119.
11 Zachar y Calo, ‘Pluralism, S ecularism and t he European Cour t of Human Rights’ (2010) 26 Journal
of Law and Religion 101, 102.
12 Kokkinakis v Greece (1994) 17 EHRR 39 7, para 31.
13 Aernout Nieuwenhuis, ‘ e Concept of Plurali sm in the Case-L aw of the European C ourt of Human
Rights’ (2007) 3Eu ropean Constitut ional Law Review 367, 372.
14 Hasan and Cha ush v Bulgaria (2002) 34 EH RR 55, para 62.
15 Rex Ahdar and Ia n Leigh, Religious Fre edom in the Liberal State (2nd edn , OUP 2013) 390.
16 Julie Ringel heim, ‘Rights, Rel igion and the Public Sphere : e European Court of Hum an Rights in
Search of a eory?’ in Lore nzo Zucca and Camil Ung ureanu (eds), Law, State and Religion in the
New Europe: Debate s and Dilemmas (CUP 2012) 286.
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