Analyses and Development of the Articles of the European Convention of Human Rights for Health and Ethics
Historical Background, the Basics and the Future
The convention was signed in 1950 and it referred to the Universal Declaration of Human Rights proclaimed by U.N. in 1948. It is a living instrument and has been supplemented by half a dozen protocols. During the years it has been ratified by most members of the Council of Europe. This is to be understood that it contains besides the European Union countries also countries not belonging to it; the 10 EU 2004 joining countries, Norway, Switzerland and the rest Eastern-European countries.
The Convention emphasises, among other, that
“Being resolved, as the governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration,”
have agreed to secure the rights and freedoms defined in the Convention. To ensure the observance of the engagements ” the Court” was set up.
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights…( Art 34 )
The Court may only deal with the matter after all domestic remedies have been exhausted. (Art 35 )
The final judgement of the Court shall be transmitted to the Committee of ministers, which shall supervise its executions. ( Art 46.2)
Charter of the Fundamental Rights of the European Union signed in Nice on 7th December 2000 binds the Union also to the Council of Europe Convention reaffirming in its preamble the principles, but having it adopted in an other way. But that is an other story.
Articles for Health and Ethics in the Convention .
The most relevant articles could be all Section I Rights and Freedoms . As our topic has connection with religion, I concentrate to the Article 9 Freedom of thought, conscience and religion.
This article is expressed, as are many other articles in the Convention, in fairly general terms. It is open to a range of interpretations.
Article 18 of the Universal Declaration of Human rights is the primary article dealing with freedom of religion. The wording of Article 9(1) of the Convention is quite the same.
In the Universal Declaration a general limitation was contained in Article 29(2) as follows:
“In exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and meeting the just requirements of morality, public order and general welfare in a democratic society.”
This limitation was implied to only the manifestations of belief by the participants. Most states rejected the notion that religious freedom should be subject to specific limitations rather than being subject to the type of general limitation used in relation to the other human rights.
This formula has been included in most UN instruments and in a number of other regional treaties. The Final Act of the Conference on Security and Co-operation in Europe 1975 in part VII the third paragraph recognizes the right of the individual
” to profess or practise, alone or in community with others, religion or belief acting in accordance with the dictates of his own conscience.“
The limitation clause in the draft of the Convention was very much the same as the general clause in the U.N. Universal Declaration. It was however regarded to be too wide-sweeping and was rejected. After a number of different formulations the limitation Article 9(2) is said to be still rather general in nature and does little assist with any specific problems arising with freedom of religion. The right to have or change a religion was not limited. Compared with other limitation clauses in the Convention e.g. Article 10(2) freedom of speech, the clause Article 9(2) is one of least permissive.
At this stage I must notice that in the Charter of Fundamental Rights of the European Union, which is the basis of the European Constitution to be accepted this year, the limitation clause as a specific Article 9 ( 2 ) restriction is not at all involved. Some of the content is stated in general provisions under Article 52 ( Scope of Guaranteed Rights.) I was so confused when I noticed this exception of the article 10 of this Charter, that I stopped reading and contacted immediately Fecris by e-mail asking their view of the matter. After some time continuing my reading I found an explanation far away in the article 52, and reported my new observation. What shall it mean in practice is again an other story.
The right to education was seen to be relevant to freedom of religion. The debate concerning the contents could not be resolved before the signing of the Convention . One and a half year later the First Protocol was issued and contained among others, Article 2, Right to education :
“No person shall be denied the right to education. In exercise of any function which it assumes in relation to education and teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
I shall now go in detail the contents of this Article 9 and what thoughts it has arisen.
Definition of Religion or Belief
The defining has not been made in any human rights treaty. The task in the Convention has been just left to the Court and Commission. There has in Article 9(1) also been made a distinction between “thought and conscience” from “religion and belief”. There is no right to manifest the protected right to “freedom of thought and conscience”. Difficulties has arisen also in the definition of the term “belief” and its missing in the first part of Article 9(1).
When defining religion and belief the Court and Commission have accepted e.g. the Church of Scientology and Pasifism to fall under the protection of Article 9 with no discussion of the issues that have concerned domestic courts..( App. No 7805/77 ) Is Nazism a belief or a thought ? The Commission avoided to answer in this by handling the case under Article 9(2) and allowed the Austrian government to give neo-Nazism suppressing laws and saw them to be necessary in democratic society.( App.No 1747/62 )
The protection of the Convention Article 9 includes also atheists and “free-thinkers”: this has brought discussions of invented “religions” and “believes” by prisoners in order to get privileges.
As there is not an universally accepted definition of “religion or belief” the courts have had to benefit other international instruments. A broad consensus is that the term includes ” theistic, non-theistic and atheistic beliefs”, but the boundaries seem to be difficult to define. The domestic courts in different countries have had in the case to case situations to make the boundaries. The addition of the term “or belief” suggests the so-called “new Religions” to be included in Article 9 without taking position on acknowledging them as religions. However the types of manifestation outlined in the second part of the Article 9(1) suggest that “belief” is intended to have a narrow scope, as the protected manifestations are bound to common religious traditions, naming ” worship, observance”.
Articles 10 ( Freedom of expression ) , 11 ( Freedom of assembly ) , 14 ( Prohibition of discrimination ) and 8 ( Right to respect for private and family life ) ensure the freedom to pursue all other types of ideas.
Right to Freedom of … religion…to change it.
The term “have or change the religion” in the first part is not limited and no derogation is allowed by any State, group or person. Article 17 says:
” Prohibition of rights. Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than provided for in the Convention.”
The term “freedom” is neither defined. The most basic level, to hold opinions silently, is almost impossible to breach. We have , however, experiences, that the intervention is possible by use of invasive mind-altering techniques, namely “brainwashing” or systematic indoctrination. People are not protected from being compelled to be involved in religious activities against their will.
One need of Article 2 of the first Protocol was to avoid the totalitarianism during the Second World War where the youth of the country were brought up under dogmatic teaching without giving the parents right to use their own religious thoughts. There the difficulty again is to avoid the prohibited indoctrination.
Freedom…. to manifest his religion or belief ..
Applicants who raise issues concerning worship, teaching, or observance need only show that there was an interference in fact to prove a breach of Article 9(1).
Freedom……to manifest his religion or belief … in practise ..
Not all actions, which are motivated by religion or belief are protected by Article 9(1) There must be a direct link between the religion and the practise. It is not enough that they are motivated or influenced by belief. The applicants must show, that they were required to act in a certain way because of their religion or belief. This type of necessity test is called by the Commission as Arrowsmith test. But in certain cases, e.g. proselytizing, the applying this test is not easy.
The Commission and Court have difficulties to determine the requirements of a religion and belief compared with the applicants own personal understandings of their own faith.
Thus, while manifestation of religion or belief has been given more teeth than the internal freedom of belief, it has very limited scope and provides little protection to non-traditional forms of practice. The protection has only extended to manifestations that are highly analogous to Christian beliefs, forgetting minorities whose practices may be less familiar.( E 132 ) The writer seems to be annoyed to that the decisions based on Article 9(1) have been as whole too restrictive to the freedom of religion or belief and do not promote pluralism enough..
Limitations on Manifestations of Religion or Belief . Article 9 (2)
The State has not to respect all the decisions taken by people who are determined to follow the rules of their religion regardless of the law or the consequences to themselves, including torture or death. The State is allowed to have laws limiting the manifestations not to unduly interfere in the area stated in Article 9 (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 rights and freedoms of others “
Also other rights are limited by a separate clause: Article 8 ( the right to privacy ), Article 10 (freedom of expression ), Article 11 ( freedom of peaceful assembly and association ) The structures are similar but they are not identical. The narrowest is in Article 9, where only the manifestation is limited. The freedom to have or change a religion or belief is subject to no limitations.
If questions about religion and belief are however, perceived as an essential component of self-identity and if interference with them is seen to be an attack on the autonomy of the individual, then religious freedom is likely to be given a wide scope and limitations on it will require serious justification. ( 32 )
In order to determine whether an interference can be justified under Article 9 (2),there must be first concluded that the case is in the frames of the undefined term of ” religion or belief” and that there is a breach against Article 9 (1). If all the cases would be handled by this process, one would easily get a rough idea, which type of manifestations are protected under Article 9 (1).
Limitations as are prescribed by law..
A person should know in advance what kind of behaviour is prescribed and would be able to adjust it accordingly. Sometimes the law is complained not to be sufficiently clear. In these cases the domestic courts apply the legislation.
In Creek e.g. the anti-proselytism law ,to intrude on the beliefs of others, was argued to be so vague that its prohibition was not prescribed by law. On the other side, in times of religious intolerance, courts have changed their case-law to the detriment of minorities. ( E 140 )
Necessary in Democratic Society …
For the reasons outlined in Article 9(2) States are in best positions to determine whether a particular restriction on a right is required, with a margin of appreciation. This will differ from time to time and place to place, but the State is not given complete flexibility to decide when an action to restrict religious freedom is necessary. The Court maintains its role as supervisor: It has not undermined State laws, but criticised the actions under the laws, especially in countries, where the protection of its national Church is strong. There have also been discussions about the law and the application of it being “proportionate” in certain particular case.
Necessary …in the Interests of Public Safety and for the Protection of Public Order…
Some religious groups may be organizing violence or may be involved in inciting, between some religious communities there is antagonism and intolerance, which can lead to inter-religious hatred and public disorder. These can give rise to real concerns to the States to restrict manifestations of religious beliefs. The prison forms a special area itself.
Public order justifications are also appropriate in local planning laws, e.g. hindering a big Hindu temple with thousands of visitors being built in a greenbelt area near a fairly small village. Some way it ought to be possible to balance the inconvenience caused to people wakened by an amplified Muslim call to prayer in the early hours against the damage done to religious freedom by prohibiting such calls. These tensions cannot easily be improved by inter-religious relationships.
Necessary ….for the Protection of….Health
It is in the nature of some religious traditions that certain practices have the potential to cause physical or mental harm to participants or to outsiders. The need for protection of the third parties is clear.
While laws to protect third parties from the detrimental physical effects of the exercise of religious freedom of others are relatively unproblematic, laws that seek to protect adult religious believers from risk that they have chosen themselves raise more complex issues. One of the key areas where problems have arisen in domestic jurisdictions has been that of refusal of medical treatment, such as blood transfusion, on religious grounds. This type of case has not yet arisen under the Convention and, if it did so, it would squarely raise the issue of whether the State is permitted under the Convention to force protection of health on to a person who, for religious reasons, rejects that protection. There have been a number of cases that have come before the Commission that suggest that the State does have a right to force protection of health even on those who have a serious religious reason for rejecting the protection. ( E 156 )
Children may be endangered by their parents’ religious beliefs by e.g. refusing medical treatment, such as blood-transfusion, on behalf of the child or by using religious practices, such as prayer treatment, instead of standard medical treatment, or requiring the child to undergo a ritual that is physically harmful, such as female genital mutilation.
Such situations raise difficult issues for States and human rights bodies. Given the lack of consensus on how to deal with such cases, and the fact that States that used their powers to overrule parents and permit hospitals to treat minors would be acting to protect the health of child, it is likely that the actions of the State would fall in the margin of appreciation. ( E 158 )
In some countries, there are domestic laws, that allow courts to order blood transfusions for children whose lives are endangered. Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children.
It should be also mentioned in this connection, that children are also protected by other laws.
The Declaration on Religious Intolerance and Discrimination says:
“Practices of a religion or belief in which a child is brought up must not be injurious to his physical or mental health or to his full development”
Necessary…for the Protection of….Morals .
All religions do not share a common morality. Much of the law in Member States has been in the past built on religious beliefs or takes its moral basis from the dominant religions or beliefs present in the States. In the area of marriage, the Convention has given in Article 12 the States the right to apply national laws. Cases raising other moral issues have often been handled together with the protection of the rights and freedoms of others, which is following here.
Necessary…for the Protection of the Rights and Freedoms of Others
In democratic societies, in which several religions coexist within one and the same population, the exercise of religious freedom gives rise to a range of potential conflicts with the rights and freedoms of others, which have to be protected by limiting the manifestations and balancing the competing claims.
The first part of Article 9 (1) is
” Everyone has the right to freedom of thought, conscience and religion”.
The last part of Article 9 (2) is
” …limitations for the protection of the rights and freedoms of others “.
This raises the question of whether the scope of religious freedom as a positive right is the same as the scope of freedom of religion and belief as a justification for restricting rights. Proselytism seems to be a very difficult subject. Many authors and States tend to assume that one has a right to be free from proselytism as part of the right to freedom of religion or belief, as stated in the first sentence of Article 9, others do not see that there is question of any infringement of their rights.
The main question is perhaps the way in which proselytism, especially when it amounts to no more than speaking, can interfere with the freedom of others. To present one’s views to another free adult in a persuasive manner also in other circumstances than religion is normally accepted. Pressure being put on people in distress to change their religion or to use violence or brainwashing techniques must be condemned as a violation of the rights of others.
The States are allowed to interfere with manifestations of religion or belief in order to protect the rights and freedoms of others. The paradox is however, that the converted person is not any more willing or cabable to make an application to Courts telling that he has been under proselytism.
The best way of avoiding a conflict between State power and the conscience of the individual is to avoid laws in areas in which a conflict is likely. Again this does not require legislative restraint when dealing with the intolerable; religions and beliefs that are actively involved in harming others, endangering the State, or putting public health at risk may appropriately have their activities circumscribed for the reasons set out in Article 9 (2). What such an approach requires is legislative constraint and creativity to ensure that freedom of religion or belief is not ignored in pursuit of other social goals.
The reasons for restricting freedom of religion or belief may differ from society to society, and over time. (E 192 ) The Convention and the author (Mrs Evans) do not seem to understand that there are destructive sides of religions, in their “holy books” or hidden in their normal practices.
Every religion or belief has its “dark sides”, which can be demonstrated at least by others. The task to change these ” Holy books ” is quite impossible, although these contain regulations against the human rights !. New religions and beliefs are invented all the time and they all are providing their” believers ” freedom of thought, conscience and religion. This legislation was drafted 50 years ago after the 2. World War to give liberty to the prevailing religions. Today we have to see the tendencies and to draft laws that limit the effects of the religions and beliefs that harm others. Some laws must be drafted in a way that violates the conscience of some people without allowing for exemptions because important Article 9(2) considerations are involved. The limitation clauses Article 9 (2) in the Convention demonstrate an understanding that individual rights cannot always defeat broader social purposes.
The contents of the religions or beliefs cannot be changed by legislation, but e.g. in Christianity some of the priests e.g. in my country Finland have already in public started to explain that certain parts of the Bible must be understood that it is a question of some kind of images. In many other religions this kind of critic is not at all allowed, yet….
When it is question of the treatment of a person with medicine, it must be based on prolonged and many-sided experiments and follow-ups before it is accepted for use. The prescribing doctors and the nurses have a long education. Several institutions and forums exchange their experiences and change the formula of the medicine or working process, if needed. The products and the tasks of the personal are open for criticism. There are several supervising commissions. The “thalidomide-effect” can be avoided in an early phase.
When it is question of the most exquisite part of a human being, the emotional life, there are no rules, who and how one can be treated. One should dear to start really to criticise the black sides of each religion independently and not only referring to the old phrase: religion is the fundamental right. One ought to get from each “religious product” under consumer protection act enough information. An independent Supervising commission ought to be established. This is the only way to be able to draft laws which are really limiting the harmful sides of religions and beliefs. Freedom of debate on religious matters ensures that religious truth is not suppressed. There are a huge variety of religious beliefs, in face of which the self-evident truth of ones own religion is more difficult to argue. ( 28 ) Evans argues in her book that one of the reasons that the Court and Commission have not developed an adequate jurisprudence on religious freedom is that they have not taken seriously the importance of understanding the rationale for religious freedom.. (32)
While I was writing this , I have red in newspapers the newest phase in forbidding the use of headscarves, kipas and big crosses in the state schools of France. If it ever comes to be handled by the Court. I think the following will be dealt with at least.
- The applicant have to show that there is a breach in Article 9 (1).
- Does the practice of his/her religion demand him/her to wear the headscarf/kipa/cross/other religious apparel and is it refused to take away and in which situations ?
- Has the State of France, being secular, the right to limit under Article 9 (2) such manifestations ?
- Is the aim of such legislation legitimate, neutral and proportional ? In a way this is also one of the trivialities that the courts in different countries have had to handle. Also the case-law concerning the issue of laws necessary for the protection of health is very limited. The topics of these days will certainly show that there is much to do in getting the drafters of laws to understand the often hidden health problematic.
- How to get the people to get knowledge of it is again an other topic.
Lawyer, vice-president of GEMPPI, member of the « Commission Santé, Ethique, Idéologies » of « l’Espace éthique méditerranéen ».
Complement of some example precedents
The right to manifest:
Cults may manifest their teachings, their practices and observances alone or in community with others and in public or in private. The Court has stressed that this freedom includes the principle of the right to convert your fellow man, for example through teachings, without which the freedom to change religion or belief would risk becoming a dead letter.
~ Scope of manifesting:
The campaign for the so-called E-meter, an object alleged to be religious by the Church of Scientology, is not accepted by the Commission as a manifestation in the meaning of Article 9 § 1. On the contrary, this represented a sales campaign, which could be forbidden. The decision is not without its difficulties, as the sale of religious objects is recognised in other circumstances.
The limitations presented by Article 9~2:
The restriction stated only includes “the freedom to manifest his religion or belief” (Kokkinakis ruling of 25th May 1993). What are we to understand by “manifest his religion or belief”? This manifestation may take the form of a cult, religious observance, teaching and also practices. Yet there is no legal definition of religion. In the name of protecting the freedoms and rights of others, the Court has accepted that the State may punish abusive proselytising. However, it also recognises the right to try and convert your fellow man. It is therefore necessary to find a criterion to separate legitimate expression from punishable proselytising. Yet the Court has not given a precise definition on this distinction, leaving a certain margin for interpretation for individual States. It does, however, require national laws to define acts which would constitute proselytizing.
Case law – ECHR, MANOUSSAKIS AND OTHERS, 26th September 1996
The wording of these principles given in the Convention may appear abstract. It may be useful to see an example of case law, using a case that will be of specific interest to us: the Manoussakis and others c. Greece case, against the Jehovah’s Witnesses who had been sentenced by the Greek courts for creating and using a prayer hall without the authorisation of the Minister for National Education and Cults.
the Court notes that the sentencing of the parties for using a hall they were renting without the prior authorisation required by law interferes in the exercising of their right to “freedom to manifest their religion by the cult and their religious observance”. The Court notes that the faith of Jehovah’s Witnesses fulfils the conditions of a “known religion” in Greek law.
In this case, the issue had a legitimate aim: the protection of public order.
However, according to the Court, the sentencing affects the religious freedom of the claimants so directly that it could not take action against the legitimate aim so necessary in a democratic society. This is therefore a violation of article 9 of the ECHR.
Marseilles, March 27-28 2004