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ECHR: European Court of Human Rights and the ban on worship by COVID

ECHR: European Court of Human Rights to determine whether it was legal to worship by COVID

ZENIT News (31.07.2023).- Are blanket bans on public worship compatible with the international human right to the communal exercise of religious freedom? This is the question brought by former EU Special Envoy for Freedom of Religion or Belief, Dr. Ján Figeľ, who has filed a challenge at the European Court of Human Rights (ECtHR) on the 2021 COVID restrictions on public worship. Figeľ, co-represented by human rights organisation ADF International and local Slovak lawyer Martin Timcsak, now submitted his arguments to the court.

“Religious freedom as a basic human right deserves the highest level of protection. Prohibiting people from worship and communal religious exercise is profoundly illiberal and illegitimate. Worship bans were unfair and disproportionate. Our arguments submitted to the Court demonstrate clearly that blanket bans are violations of religious freedom under international human rights law,” stated Dr. Ján Figeľ.

Figeľ’s case might be the first where Europe’s top human rights court rules on the blanket bans on public worship during the Covid pandemic. The decision would set a precedent for 46 European States with 676 million citizens.

“In times of crisis, fundamental freedoms need to be protected, rather than weakened.”

In 2021 the Slovak Republic prolonged its COVID restrictions, banning religious services. Dr. Ján Figeľ and ADF International lead lawyer Dr. Adina Portaru argue that the restrictions violated both national and international law.

“We are committed to supporting Dr. Ján Figeľ and his defence of religious freedom. The international legal framework is very clear in its protection of this right as it benefits everyone – people of faith as well as people of no faith. Fundamental freedoms apply to all, and in times of crisis they must be protected rather than weakened,” said Dr. Adina Portaru, Senior Counsel for ADF International.

Individual or digital worship not sufficient

In the submitted arguments Figeľ’s legal team highlights that religious freedom specifically includes the right to communal worship under the law. The Slovak government previously had argued that spirituality can be lived out individually.

However, as the ECtHR has upheld repeatedly, freedom of religion specifically includes the “freedom to manifest one’s religion not only alone and in private but also in community with others, in public and within the circle of those whose faith one shares”.

The Slovak government also put forward the option of digital worship as a justification for the blanket ban. Recent court rulings throughout Europe, however, arrive at different conclusions. Scotland’s highest civil court ruled on the same issue, holding that digital options “are best viewed as an alternative to worship, rather than worship itself”.

Restrictions were not “proportional, appropriate, and necessary”

The case rests on the fact that the Slovak blanket ban was neither proportional, nor appropriate or necessary.

“Nobody should be prohibited from peacefully exercising his or her convictions, and it was evident that religious worship could be conducted safely during the pandemic. Blanket bans ignore the central role that religion plays in the lives of believers. For people of faith, communal worship, spiritual nourishment, can be as important as bodily nourishment. That’s why international and European law and our very own Constitution holds religious freedom so dearly. I expect that the ECtHR will consider this holistically with a keen eye for the role of human rights in a democratic society,” said Dr. Ján Figeľ upon submitting the arguments.

Former Special Envoy for Freedom of Religion now defends human rights at home

Ján Figeľ served as European Commissioner in various positions between 2004 and 2009. In 2016 he was appointed as Special Envoy for Freedom of Religion or Belief outside the EU, a position he held until 2019.

“As Special Envoy, it was evident to me that the EU cannot credibly advance religious freedom throughout the world if its Member States fail to uphold fundamental freedoms at home,” Figeľ added.

A newly released video features Dr. Ján Figeľ and ADF International lead lawyer Dr. Adina Portaru in Bratislava/Slovakia.

Worldwide advocacy for religious freedom

Figeľ’s challenge has been backed by a civil society coalition of diverse representatives from the arts, academia, and politics with different faith backgrounds. Bishops and other faith leaders also have welcomed his case.

ADF International has been involved worldwide in cases regarding worship bans and violations of religious freedom in the context of Covid restrictions. In Uganda, the organisation supported a coalition of Christians and Muslims challenging a discriminatory prohibition of religious gatherings. Further, ADF International advocated to open churches for worship in Ireland, Scotland, and Switzerland.

Further reading about FORB in ECHR on HRWF website

BELGIUM: (I) About the recommendations of the Cult Observatory on “cult victims”

BELGIUM: Some reflections about the recommendations of the Federal Cult Observatory on “cult victims” (I)

By Willy Fautré, Human Rights Without Frontiers

HRWF (10.07.2023) – On June 26, the Federal Observatory on Cults (CIAOSN/ IACSSO), officially known as the “Center for Information and Advice on Harmful Cultic Organizations” and created by the law of June 2, 1998 (amended by the law of April 12, 2004), published a number of “Recommendations concerning help for victims of cultic influence“.

In this document, the Observatory points out that its aim is to “combat the illegal practices of cults”.

Illegal practices of cults

Firstly, it should be emphasized that the concept of “cult” (secte in French) is not part of international law. Any religious, spiritual, philosophical, theistic or non-theistic group, or any of its members, can lodge a complaint for alleged violation of freedom of religion or belief. Many have done so successfully in European countries, including at the European Court of Human Rights on the basis of Article 9 of the European Convention:

“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.”

Secondly, cults are legally impossible to identify. The publication of a list of 189 possibly suspect groups attached to the Belgian parliamentary report on cults in 1998 was widely criticized at the time for its stigmatizing instrumentalization, particularly but not only by the media. It was finally recognized that it had no legal value and could not be used as a legal document in courts.

Thirdly, the European Court of Human Rights recently handed down a judgment in the case of Tonchev and Others v. Bulgaria of December 13, 2022 (Nr 56862/15), opposing Evangelicals to the Bulgarian state over the distribution by a public authority of a brochure warning against dangerous cults, including their religion. In particular, the Court declared:

53 (…) the Court considers that the terms used in the circular letter and information note of April 9, 2008 – which described certain religious currents, including Evangelicalism, to which the applicant associations belong, as “dangerous religious cults” which “contravene Bulgarian legislation, citizens’ rights and public order” and whose meetings expose their participants to “psychic disorders” (paragraph 5 above) – may indeed be perceived as pejorative and hostile. (…)

In these circumstances, and even if the measures complained about have not directly restricted the right of the applicant pastors or their co-religionists to manifest their religion through worship and practice, the Court considers, in the light of its above-mentioned case-law (paragraph 52 above), that these measures may have had negative repercussions on the exercise by the members of the churches in question of their freedom of religion.

Paragraph 52 of the judgment lists other cases such as “Leela Förderkreis e.V. and Others v. Germany” and “Centre of Societies for Krishna Consciousness In Russia and Frolov v. Russia“, in which the use of the derogatory term “cult” was disavowed by the European Court and now serves as case law. See also a commentary on the European Court’s judgment by Massimo Introvigne in Bitter Winter under the title “European Court of Human Rights: Governments should not call minority religions ‘cults’.”

The official mission of the Belgian Cult Observatory is therefore intrinsically and very clearly at odds with the European Court in stigmatizing so-called “harmful cultic organizations,” an obviously derogatory formulation.

Using derogatory words targeting homosexuals, Africans or any other human groups is forbidden by law. It should not be different with religious or belief groups.

Last but not least: By whom, how and according to what criteria of “harmfulness” could “harmful cultic organizations” be legally identified?

The Observatory’s mandate is also intrinsically contradictory.

On the one hand, its mission is to combat so-called “illegal practices” of cults, which must therefore be qualified as such by a final judgment and not before.

On the other hand, its mission is also to “combat harmful cultic organizations”, which can be done without any judicial decision concerning the groups to be targeted. The neutrality of the state is clearly at stake here, especially as many “cults” or their members have won quite a number of cases in Strasbourg against European states on the basis of article 9 of the European Convention protecting freedom of religion or belief.

The mission of the Belgian Cult Observatory vulnerable to a complaint in Strasbourg

These aspects of the Observatory’s mission may not withstand a complaint to the European Court.

Indeed, we should not forget the surprising collateral effects of a recent “ordinary” complaint concerning discriminatory taxation lodged in Strasbourg by a local congregation of the Jehovah’s Witness movement, treated as a cult by the Belgian Cult Observatory and the Belgian State authorities. The European Court then roundly criticized the total lack of any legal basis for state recognition of religious and philosophical groups, which was not part of the complaint, and called on Belgium to comply with international law.

On 5 April 2022, in the case Congregation of Jehovah’s Witnesses of Anderlecht and Others v. Belgium (application no. 20165/20) about a discriminatory taxation issue towards Jehovah’s Witnesses, the European Court of Human Rights held, unanimously, that there had been:

“a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights.”

It also held, unanimously, that Belgium was to pay the applicant association 5,000 euros (EUR) in respect of costs and expenses.

The Court also noted that neither the criteria for recognition nor the procedure leading to recognition of a faith by the federal authority were laid down in an instrument satisfying the requirements of accessibility and foreseeability, which were inherent in the notion of the rul

Belgium has now put in place a working group to revise a posteriori the state recognition of religious and philosophical organizations. Belgium should better anticipate another issue concerning its cult policy and follow the example of Switzerland with its Centre for Information on Beliefs (CIC).

Photo: Belgian Federal Parliament (Credit: Agefotostock)

Further reading about FORB in Belgium on HRWF website

GERMANY denies Christian private school accreditation, case filed in Strasbourg

GERMANY: Germany denies Christian private school accreditation, case filed at Europe’s top human rights court

German hybrid school—innovative in-class and at home learning model—takes challenge to European Court of Human Rights after accreditation denied
Germany has one of the most restrictive educational systems worldwide; lower court cites lack of socialization for students

ADF International (05.05.2023) – A Christian hybrid school provider, based in Laichingen, Germany, is challenging the German state’s restrictive educational system. After the initial application in 2014, the Association for Decentralized Learning was denied approval to offer primary and secondary education by German authorities, despite fulfilling all state-mandated criteria and curricula. The school run by the Association is based on an innovative and increasingly popular model of hybrid education with both in school and at home learning.

On 2 May, lawyers from the human rights organization ADF International filed the case at the European Court of Human Rights (ECtHR).

“The right to education includes the right to embrace innovative approaches like hybrid schooling. By restricting this educational model, the state is violating the right of German citizens to pursue education that conforms with their convictions. When it comes to the requirement of physical presence, Germany has one of the most restrictive educational systems in the world. The fact that an innovative school based on Christian values has been denied recognition is a serious development worthy of scrutiny by the Court. The case brings to light the egregious issues with educational freedom in the country,” stated German lawyer Dr. Felix Böllmann, Director of European Advocacy for ADF International, who filed the case at the ECtHR.

The Association initially filed for accreditation in 2014, which was ignored by state educational authorities for 3 years. In 2017, they filed a suit due to the inaction, with the first court hearing taking place only in 2019, appeal in 2021, and third instance court in May of 2022. The Constitutional Court rejected the last domestic appeal in December 2022.

Hybrid education, successful and popular, yet restricted

For nine years, the Association for Decentralized Learning has been successfully running an independent hybrid school, combining in-class learning with digital online lessons and independent learning at home. The school employs state-approved teachers and follows a set curriculum. Students graduate with the same examinations as those in public schools and maintain above average grade points.

“Children have a right to a first-class education. At our school, we can provide families with an education that meets their individual learning needs and allows students to flourish. It is our great hope that the Court will right this injustice and rule in favor of educational freedom, recognising that our school provide innovative and high-standard education through modern technology, individual student responsibility, and weekly attendance hours,” stated Jonathan Erz, Head of the association for decentralized learning.

The Association has been denied approval to open any new schools. The administrative courts acknowledged the satisfactory level of education but criticized the model on the basis that due to the hybrid nature of the school, students spend little time together during breaks and between lessons. Per the domestic courts, this is an essential part of education that hybrid schooling fails to provide.

Educational restrictions violate international law and national law

Germany, with a ban on homeschooling and severe educational restrictions, is in violation of the right to educational freedom as enshrined in its own constitution and in international law. International law specifically recognizes the liberty of bodies, such as the Association, to establish and direct educational institutions without interference, subject to “the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State”. (International Covenant on Economic, Social and Cultural Rights, Article 13.4)

Governments are obliged to respect “the liberty of parents … to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions”. (International Covenant on Economic, Social and Cultural Rights, Article 13.3)

With regard to the law, Dr. Böllmann stated: “It is established clearly in international law that parents are the first authority for the education of their children. What the German state is doing to undermine education is an overt violation of not only freedom of education, but also of parental rights. Moreover, distance learning during Covid-19 lockdowns demonstrates that a complete ban on independent and digitally supported learning is out of date”.

The German Basic Law (Article 7 of the Constitution) guarantees the right to establish private schools—however, the domestic courts’ interpretation render this right ineffective. ADF International lawyers argue that this, in turn, is a violation of the European Convention of Human Rights.Time and again, the European Court of Human Rights has made it clear that the Convention rights must be be practical and effective.

Further reading about FORB in Germany on HRWF website

Photo: European Court of Human Rights- Strasbourg France

RUSSIA: New law restricting missionary work breached the European Convention

RUSSIA: New legislation restricting missionary work breached the European Convention

Registrar of the European Court (07.03.2023) – In today’s Chamber judgment1 in the case of Ossewaarde v. Russia (application no. 27227/17) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 9 (freedom of religion) of the European Convention on Human Rights, and
a violation of Article 14 (prohibition of discrimination) of the European Convention taken in conjunction with Article 9.

The case concerns a US national living in Russia, a Baptist Christian, who was fined for holding Bible study meetings in his home without notifying the authorities.

The sanction was imposed on the applicant following new legal requirements for missionary work introduced in Russia in 2016 as part of an anti-terrorism package. The new legislation made it an offence to evangelise in private homes and required prior authorisation for missionary work from a religious group or organisation.

The Court found in particular that the Government had not explained the rationale behind such new formalities for missionary work which had left no room for people engaged in individual evangelism, such as the applicant. There was no evidence that the applicant had used any improper methods of proselytism, involving coercion or incitement to hatred or intolerance.

A legal summary of this case will be available in the Court’s database HUDOC (link).

Principal facts

The applicant, Donald Jay Ossewaarde, is a national of the United States of America who was born in 1960. He lived in Oryol (Russia) and had a permanent residence permit.

The applicant and his wife are Baptist Christians. Since moving to Oryol in 2005 they regularly held prayer and Bible study meetings in their home. Mr Ossewaarde personally invited people to the meetings and posted information about them on notice boards.

Against the background of newly adopted legislation concerning missionary work, three police officers turned up at the couple’s home on 14 August 2016 during a Sunday meeting. After the Bible study, the officers took statements from those present and then escorted Mr Ossewaarde to the local police station.

At the police station he had his fingerprints taken and was shown a letter of complaint about evangelical tracts being posted on the notice board in the entrance of an apartment building. The police drew up an administrative offence report for conducting illegal missionary work as a non- Russian national.

He was then taken directly to court for a short hearing before being convicted of carrying out missionary work without notifying the authorities of the establishment of a religious group. He was fined 40,000 roubles (approximately 650 euros at the time).

His conviction was upheld on appeal in a summary fashion. His additional requests for review of the conviction were all ultimately rejected.

Complaints, procedure and composition of the Court

Relying in particular on Article 9 (freedom of religion), Mr Ossewaarde complained about being fined for preaching Baptism under the new legislation, arguing that he had not been a member of any religious association but had been exercising his right to spread his personal religious convictions. He also complained under Article 14 (prohibition of discrimination) in conjunction with Article 9 about discrimination on account of nationality because, as a US national, he was given a higher fine than a Russian national.

The application was lodged with the European Court of Human Rights on 30 March 2017.

The European Association of Jehovah’s Christian Witnesses was granted leave to intervene as a third party.

The Court’s procedure for processing of applications against Russia can be found here. Judgment was given by a Chamber of seven judges, composed as follows:

Pere Pastor Vilanova (Andorra), President, Georgios A. Serghides (Cyprus),
Yonko Grozev (Bulgaria),
Jolien Schukking (the Netherlands), Darian Pavli (Albania),

Ioannis Ktistakis (Greece), Andreas Zünd (Switzerland),

and also Olga Chernishova, Deputy Section Registrar.

Decision of the Court

The Court established that it had jurisdiction to deal with the case, as the facts giving rise to the alleged violations of the Convention had taken place before 16 September 2022, the date on which Russia ceased to be a Party to the European Convention.

Article 9 (freedom of religion)

The Court reiterated that the act of imparting information about a particular set of beliefs to others who do not hold those beliefs – known as missionary work or evangelism in Christianity – was protected under Article 9. In particular, when there had been no evidence of coercion or improper pressure, the Court had previously affirmed the right to engage in individual evangelism and door- to-door preaching.

It noted that there was no evidence that Mr Ossewaarde had made anyone participate in his religious meetings against their will or that he had sought to incite hatred, discrimination or intolerance. He had thus been sanctioned not for any improper methods of proselytism but solely for failing to comply with the new legal requirements applicable to missionary work which had been introduced in 2016.

The Court found that the new requirements – making it an offence to evangelise in private homes and requiring prior authorisation for missionary work from a religious group or organisation – had left no room for people engaged in individual evangelism, such as the applicant.

The Government had not explained the rationale behind such new formalities for missonary work. The Court was not therefore convinced that the interference with the applicant’s right to freedom of religion on account of his missionary activities had pursued any “pressing social need”.

Moreover, sanctioning the applicant for his alleged failure to inform the authorities of the establishment of a religious group had not been “necessary in a democratic society”. The freedom to manifest one’s beliefs and to talk to others about them, could not be made conditional on any acts of State approval or administrative registration; to do so would amount to accepting that a State could dictate what a person had to believe.

There had accordingly been a violation of Article 9 of the Convention.

Article 14 (prohibition of discrimination) in conjunction with Article 9

The Court noted that, under the Code of Administrative Offences, the minimum fine for a non- national found guilty of an offence of illegal missionary work was six times higher than for a Russian national. Non-nationals were also liable to expulsion. There was therefore a difference in treatment of persons in an analogous situation on the grounds of their nationality.

The Court found no justification for such difference in treatment, which was also hard to reconcile with Russia’s Religions Act providing that non-nationals lawfully present in Russia could exercise the right to freedom of religion in the same way as Russian nationals could.

There had accordingly been a violation of Article 14 of the Convention, taken in conjunction with Article 9.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicant 592 euros (EUR) in respect of pecuniary damage, EUR 10,000 in respect of non-pecuniary damage and EUR 4,000 in respect of costs and expenses.

The judgment is available only in English.

Further reading about FORB in Russia on HRWF website

RUSSIA to pay about 350,000 EUR to Jehovah’s Witnesses for disrupting their meetings

RUSSIA: Russia to pay about 350,000 EUR to Jehovah’s Witnesses for disrupting their religious meetings

European Times (24.02.2023) – Jehovah’s Witnesses Russia (03.02.2023) – On January 31, 2023, the European Court of Human Rights, having considered seven complaints from Jehovah’s Witnesses from Russia, recognized the disruption of worship services from 2010 to 2014 as a violation of fundamental freedoms. The ECHR ruled to pay compensation to the applicants in the amount of 345,773 EUR and another 5,000 EUR as legal costs.

What Happened?

This case concerns the disruption of religious meetings in 17 regions of Russia, as well as searches, confiscation of literature and personal belongings, and several cases of detention with personal searches.

Law enforcement officers, sometimes armed and wearing masks, would brake into the buildings where worship services of Jehovah’s Witnesses were being conducted. The actions of law enforcement officers were justified by technicalities, for example, by the fact that the meetings were organized without prior notice to the authorities. The security forces either demanded that the event be stopped or remained on the premises and filmed what was happening using photo and video equipment, after which they interrogated those present.

On several occasions, police raided places of worship, including private residences. The search warrants did not provide specific grounds. They only stated that the buildings may contain “evidence relevant to the criminal case.”

“The applicants unsuccessfully pleaded with [the police] to postpone the search until after the end of the religious services.” Several similar cases are described in the ECHR decision (§ 4).

The victims appealed against the actions of the security forces in local courts, but their demands were not satisfied.

ECHR Decision

The European Court concluded that the actions of the Russian authorities violated Article 9 of the Convention on Human Rights, which declares the fundamental right to participate in peaceful religious assemblies.

Here are excerpts from the judgment of the ECHR.

“The disruption of a religious assembly by the authorities and sanctioning of the applicants for holding ‘unauthorized’ religious events amounts to ‘interference by a public authority’ with the applicants’ right to manifest their religion.” (§ 9)

“The Court has previously noted the consistent case-law of Russia’s Supreme Court that religious meetings, even those conducted on rented premises, did not require prior authorization from, or notice to, the authorities . . . [the applicants’] conviction did not have a clear . . . legal basis and was not ‘prescribed by law.’” (§ 10)

“It is undisputed that all religious assemblies were peaceful in their nature and were not likely to cause any disturbance or danger to the public order. Their disruption . . . did not pursue a ‘pressing social need’ and therefore not ‘necessary in a democratic society.’” (§·11)

“The Court finds that the search warrants had been couched in extremely broad terms . . . They did not specify why the particular premises were targeted, what it was that the police expected to find there and what relevant and sufficient reasons justified the need to conduct the search.” (§·12)

What Does the Decision of the European Court Mean?

Although the cases reviewed by the ECHR dealt with events prior to the ban on Russian legal entities of Jehovah’s Witnesses in 2017, hundreds of criminal cases filed since then have treated the joint discussion of the Holy Scriptures as a crime.

Yaroslav Sivulskiy, representative of the European Association of Jehovah’s Witnesses, commented on the decision of the ECHR: “The ECHR once again emphasized that there is not and cannot be anything extremist in the religious meetings of Jehovah’s Witnesses. The same was recognized by the Plenum of the Supreme Court of Russia; however, some Russian courts continue to act contrary to these rulings, putting Jehovah’s Witnesses behind bars merely because of their religion.”

More than 60 applications from those who suffered from the repressive campaign against Russian Jehovah’s Witnesses are awaiting the European Court’s decision.

In June 2022, the European Court of Human Rights recognized the liquidation of legal entities of Jehovah’s Witnesses in Russia as illegal and demanded that the criminal prosecution of believers be stopped and that all those imprisoned for their faith be released.

Further reading about FORB in Russia on HRWF website

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