Protecting the Religious Freedom of New Minorities in International Law (ICLARS Series on Law and Religion) [1 ed.] 0367209128, 9780367209124

Table of contents :
Cover
Half Title
Series
Title
Copyright
Dedication
Contents
Acknowledgements
List of cases
List of other documents and materials
List of abbreviations
List of figures
List of tables
Introduction
1 The protection of new minorities in a pluralist international legal order
I. About pluralism, constitutionalism and divergence
1. Divergence within international human rights law
2. Divergence between the ECtHR and the HRC
3. Divergence and religious freedom
II. New minorities and religious freedom: conceptual issues
1. Legal definitions of the concepts ‘minority’ and ‘new minority’
2. New minorities as religious minorities?
3. Distinguishing old and new minorities
III. Current challenges in the protection of new minorities’ religious freedom
1. Challenges encountered by new minorities
2. New minorities and the international protection of their religious freedom
IV. Empirical research of the HRC’s and the ECtHR’s case law
1. Data collection
2. Data coding and analysis
2 Comparing the standards developed for the protection of the right to freedom of religion by the ECtHR and the HRC
I. The scope of the right to freedom of religion and belief
1. Practice regarding Article 9 ECHR
2. Practice regarding Article 18 ICCPR
II. Negative and positive obligations
III. Justification of an interference with the right to manifest religious beliefs
1. Condition of legality
2. Condition of legitimacy
3. Condition of proportionality
IV. The concept of the margin of appreciation
1. Approach of the ECtHR
2. Approach of the HRC
V. Conclusion
3 A typology of the case law regarding new minorities
I. The parties to the procedure
1. The applicants and respondent states in the case law of the EComHR and the ECtHR
2. The authors and respondent states in the case law of the HRC
II. The adopted decisions
1. The judgments and decisions adopted by the ECtHR and the EComHR
2. The views adopted by the HRC
III. The legal questions posed
1. Relevant legal questions in the case law of the ECtHR and the EComHR
2. Relevant legal questions in the case law of the HRC
IV. Conclusion
4 A closer look at the reasoning in the case law regarding new minorities
I. The existence of an interference . . .
1. . . . with Article 9 ECHR
2. . . . with Article 18 ICCPR
II. Positive state obligations . . .
1. . . . in the case law of the ECtHR
2. . . . in the case law of the HRC
III. The condition of legality . . .
1. . . . in the case law of the ECtHR
2. . . . in the case law of the HRC
IV. The condition of legitimacy . . .
1. . . . in the case law of the ECtHR
2. . . . in the case law of the HRC
V. The condition of proportionality in the case law of the ECtHR
1. General principles regarding the condition of proportionality
2. The condition of proportionality in the case law of the ECtHR
3. The margin of appreciation left to states
VI. The condition of proportionality in the case law of the HRC
VII. Conclusion
5 Pinpointing divergence in the international protection of new minorities’ right to freedom of religion
I. Scales to measure the sufficient substantiation of complaints
1. Comparison of the normative framework and its application
2. Admissibility reasoning in the case law regarding new minorities
II. The bar set for fulfilling the condition of legitimacy
1. Comparison of the normative framework and its application
2. Restrictions of new minorities’ rights for the protection of the rights and freedoms of others
3. Lack of scrutiny of the legitimate aim pursued in cases concerning new minorities
III. Scrutinising the fulfilment of the condition of proportionality
1. Comparison of the normative framework and its application
2. Various levels of scrutiny in the assessment of the condition of proportionality
IV. Conclusion
6 Explaining divergence from a new minorities perspective
I. Institutional differences
1. Members of the (quasi-)judicial body
2. Legal force of the adopted decision
II. The concept of the margin of appreciation and new minorities’ religious freedom
1. The effects of the concept of the margin of appreciation: A useful judicial tool?
2. A principled and consistent use of the margin of appreciation by the ECtHR?
3. Reasons for the divergent use of the concept of the margin of appreciation
III. Looking at the applicants from a ‘minority perspective’
1. Basic premises of international minority protection
2. Explicit references to the applicants as members of (new) minorities
3. Traces of a ‘minority perspective’
IV. Conclusion
7 Mitigating divergence: a toolbox
I. General remarks
II. Reasoning based on precedents
III. Reasoning based on states’ margin of appreciation
IV. References to case law of other international bodies
V. Systemic interpretation of state duties vis à vis minorities
VI. Conclusion
Conclusion
Appendix of cases included in the empirical research
Bibliography
Index

Citation preview

Protecting the Religious Freedom of New Minorities in International Law

This book examines the interpretation and application of the right to freedom of religion and belief of new minorities formed by recent migration by the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (HRC). New minorities are increasingly confronted with restrictions of their religious practices and have addressed their rights claims both to the ECtHR and the HRC through their individual complaint procedures, which resulted in several contradicting decisions. Based on a quantitative and qualitative empirical analysis of the relevant case law, focusing in particular on the reasoning adopted by the two bodies, this book finds that the HRC in its practice offers a significantly higher level of protection to new minorities than the ECtHR. Such divergence may be explained by various institutional and conceptual differences, of which the concept of the margin of appreciation is the most influential. It is contended that the extensive use of the concept of the margin of appreciation by the ECtHR in the case law regarding new minorities’ right to freedom of religion and belief, and the absence of such concept in the HRC’s case law, could be explained by different understandings of the role of an international human rights body in conflicts between the majority and minorities. This book argues that such divergence could be mitigated with various tools, such as the inclusion of crossreferences to the case law of other relevant bodies as well as to instruments specifically established for the protection of minorities. The book will be of interest to academics, researchers and practitioners in the area of international human rights law, international public law in general and law and religion. Dr Fabienne Bretscher obtained her PhD from the University of Zurich, where she was a research fellow and teaching assistant at the Institute for International Law and Comparative Constitutional Law. Moreover, she was awarded a scholarship from the Swiss National Science Foundation allowing her to conduct research at the Department of International and European Law of the Erasmus University Rotterdam and the Eurac Institute for Minority Rights in Bolzano.

ICLARS Series on Law and Religion Series Editors: Silvio Ferrari, University of Milan, Italy; Russell Sandberg, Cardiff University, UK; Pieter Coertzen, University of Stellenbosch, South Africa, W. Cole Durham, Jr., Brigham Young University, USA, and Tahir Mahmood, Amity International University, India

The ICLARS Series on Law and Religion is a new series designed to provide a forum for the rapidly expanding field of research in law and religion. The series is published in association with the International Consortium for Law and Religion Studies, an international network of scholars and experts of law and religion founded in 2007 with the aim of providing a place where information, data and opinions can easily be exchanged among members and made available to the broader scientific community. The series aims to become a primary source for students and scholars while presenting authors with a valuable means to reach a wide and growing readership. Other titles in this series: Religious Literacy, Law and History Perspectives on European Pluralist Societies Edited by Alberto Melloni and Francesca Cadeddu Regulating Religion State Governance of Religious Institutions in South Africa Helena Van Coller Religious Rights within the Family From Coerced Manifestation to Dispute Resolution in France, England and Hong Kong Esther Erlings Religion, Law, Politics and the State in Africa Applying Legal Pluralism in Ghana Seth Tweneboah Protecting the Religious Freedom of New Minorities in International Law Fabienne Bretscher For more information about this series, please visit: www.routledge.com/ICLARSSeries-on-Law-and-Religion/book-series/ICLARS

Protecting the Religious Freedom of New Minorities in International Law Fabienne Bretscher

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Fabienne Bretscher The right of Fabienne Bretscher to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Bretscher, Fabienne, author. Title: Protecting the religious freedom of new minorities in international law / Fabienne Bretscher. Description: Milton Park, Abington, Oxon ; New York, NY : Routledge, 2019. Series: ICLARS series on law and religion | Includes bibliographical references and index. Identifiers: LCCN 2019031985 | ISBN 9780367209124 (hardback) | ISBN 9780429264146 (ebook) Subjects: LCSH: Freedom of religion. | Minority rights. | European Court of Human Rights—Cases. | United Nations. Human Rights Committee—Cases. Classification: LCC K3258 .B74 2019 | DDC 341.4/832—dc23 LC record available at https://lccn.loc.gov/2019031985 ISBN: 978-0-367-20912-4 (hbk) ISBN: 978-0-429-26414-6 (ebk) Typeset in Galliard by Apex CoVantage, LLC

To those who build bridges, not walls.

Contents

Acknowledgementsxi List of casesxii List of other documents and materialsxviii List of abbreviationsxxii List of figuresxxv List of tablesxxvi Introduction 1 The protection of new minorities in a pluralist international legal order I. About pluralism, constitutionalism and divergence  6 1.  Divergence within international human rights law  8 2.  Divergence between the ECtHR and the HRC  9 3.  Divergence and religious freedom  13 II. New minorities and religious freedom: conceptual issues  14 1.  Legal definitions of the concepts ‘minority’ and ‘new minority’  16 New minorities as religious minorities?  20 2.  3.  Distinguishing old and new minorities  22 III.  C  urrent challenges in the protection of new minorities’ religious freedom 24 1.  Challenges encountered by new minorities  24 2.  New minorities and the international protection of their religious freedom  25 IV.  Empirical research of the HRC’s and the ECtHR’s case law  27 1.  Data collection  28 2.  Data coding and analysis  30

1

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viii  Contents 2 Comparing the standards developed for the protection of the right to freedom of religion by the ECtHR and the HRC I. The scope of the right to freedom of religion and belief  33 1. Practice regarding Article 9 ECHR  33 2.  Practice regarding Article 18 ICCPR  36 II.  Negative and positive obligations  41 III. Justification of an interference with the right to manifest religious beliefs  43 1.  Condition of legality  44 2.  Condition of legitimacy  46 3.  Condition of proportionality  49 IV. The concept of the margin of appreciation  53 1.  Approach of the ECtHR  53 2.  Approach of the HRC  56 V. Conclusion 58 3 A typology of the case law regarding new minorities I. The parties to the procedure  60 1.  The applicants and respondent states in the case law of the EComHR and the ECtHR  60 2.  The authors and respondent states in the case law of the HRC  64 II. The adopted decisions  65 1. The judgments and decisions adopted by the ECtHR and the EComHR  65 2. The views adopted by the HRC  72 III. The legal questions posed  73 1. Relevant legal questions in the case law of the ECtHR and the EComHR  74 2. Relevant legal questions in the case law of the HRC  78 IV. Conclusion 80 4 A closer look at the reasoning in the case law regarding new minorities I. The existence of an interference . . .  81 1. . . . with Article 9 ECHR  81 2. . . . with Article 18 ICCPR  84 II.  P  ositive state obligations . . .  85 1. . . . in the case law of the ECtHR  85 2. . . . in the case law of the HRC  87

32

59

81

Contents ix III. The condition of legality . . .  88 1. . . . in the case law of the ECtHR  89 2. . . . in the case law of the HRC  93 IV. The condition of legitimacy . . .  94 1. . . . in the case law of the ECtHR  94 2. . . . in the case law of the HRC  99  V. The condition of proportionality in the case law of the ECtHR 102 General principles regarding the condition of 1.  proportionality 103 2.  The condition of proportionality in the case law of the ECtHR 110 The margin of appreciation left to states  117 3.   VI. The condition of proportionality in the case law of the HRC  123 VII. Conclusion 127 5 Pinpointing divergence in the international protection of new minorities’ right to freedom of religion I. Scales to measure the sufficient substantiation of complaints  130 1.  Comparison of the normative framework and its application 130 2.  Admissibility reasoning in the case law regarding new minorities 132 II. The bar set for fulfilling the condition of legitimacy  135 1.  Comparison of the normative framework and its application 135 2.  Restrictions of new minorities’ rights for the protection of the rights and freedoms of others  136 Lack of scrutiny of the legitimate aim pursued in cases 3.  concerning new minorities  138 III. Scrutinising the fulfilment of the condition of proportionality  142 1.  Comparison of the normative framework and its application 142 Various levels of scrutiny in the assessment of the condition 2.  of proportionality  143 IV. Conclusion 147 6 Explaining divergence from a new minorities perspective I. Institutional differences  149 1.  Members of the (quasi-)judicial body  150 2.  Legal force of the adopted decision  152

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149

x  Contents II. The concept of the margin of appreciation and new minorities’ religious freedom  154 1.  The effects of the concept of the margin of appreciation: A useful judicial tool?  155 2.  A principled and consistent use of the margin of appreciation by the ECtHR?  158 3.  Reasons for the divergent use of the concept of the margin of appreciation  161  ooking at the applicants from a ‘minority perspective’  166 III.  L 1.  Basic premises of international minority protection  167 2.  Explicit references to the applicants as members of (new) minorities  168 Traces of a ‘minority perspective’  169 3.  IV. Conclusion 175 7 Mitigating divergence: a toolbox  I. General remarks  177  II.  R  easoning based on precedents  180 III.  R  easoning based on states’ margin of appreciation  182 IV.  R  eferences to case law of other international bodies  184 V.  S ystemic interpretation of state duties vis à vis minorities  188 VI. Conclusion 192

176

Conclusion

194

Appendix of cases included in the empirical research200 Bibliography202 Index216

Acknowledgements

This book is based on my PhD dissertation entitled ‘The International Protection of New Minorities’ Right to Freedom of Religion and Belief: An Analysis of the Case Law of the European Court of Human Rights and the United Nations Human Rights Committee’, which was accepted by the Law Faculty of the University of Zurich in May 2018. I would like to thank my supervisors Professor Christine Kaufmann from the University of Zurich and Professor Kristin Henrard from the Erasmus University Rotterdam for their support throughout the drafting process of my PhD dissertation. I would also like to express my appreciation for the generous financial support I received from the Swiss National Science Foundation to finalise my PhD dissertation. Moreover, I am thankful to have met so many kind and inspiring people along the way, in particular my colleagues at the Institute for International Law and Comparative Constitutional Law of the University of Zurich, at the Department of International and European Law of the Erasmus University Rotterdam and at the Eurac Institute for Minority Rights in Bolzano. Last, but by no means least, words cannot express how grateful I am to my errante navegante for walking down every road with me.

Cases

I. Cases of the ECtHR and the EComHR Ahmet Arslan and Others v Turkey App no 41135/98, 23 February 2010 (ECtHR) Aktas v France (dec) App no 43563/08, 30 June 2009 (ECtHR) Angeleni v Sweden (dec) App no 10491/83, Commission decision of 3 December 1986, Decisions and Reports 51, p 41 (EComHR) Arrowsmith v the United Kingdom App no 7050/75, Commission decision of 12 October 1978, Decisions and Reports 31 (EComHR) Bayatyan v Armenia [GC] App no 23459/03 ECHR 2011 (ECtHR) Bayev and Others v Russia App nos 67667/09 and 2 others, ECHR 2017 (ECtHR) Bayrak v France (dec) App no 14308/08, 30 June 2009 (ECtHR) Belcacemi and Oussar v Belgium App no 37798/13, 11 July 2017 (ECtHR) Biblical Centre of the Chuvash Republic v Russia App no 33203/08, 12 June 2014 (ECtHR) Celniku v Greece App no 21449/04, 5 July 2007 (ECtHR) Chapman v the United Kingdom [GC] App no 27238/95, ECHR 2001-I (ECtHR) Chappell v the United Kingdom App no 12587/86 App no 10461/83, Commission decision of 30 March 1989, Decisions and Reports 53, p 241 (EComHR) Choudhury v the United Kingdom (dec) App no 17439/90, Commission decision of 5 March 1991 (EComHR) Christine Goodwin v the United Kingdom [GC] App no 28957/95, ECHR 2002-VI (ECtHR) Connors v the United Kingdom App no 66746/01, 27 May 2004 (ECtHR) Cossey v the United Kingdom App no 10843/84, 27 September 1990, Series A no 184 (ECtHR) Dahlab v Switzerland (dec) ECHR 2001-V 447 (ECtHR) Dakir v Belgium App no 4619/12, 11 July 2017 (ECtHR) De Wilde, Ooms and Versyp v Belgium 18 June 1971, Series A no 12 (ECtHR) Demir and Baykara v Turkey [GC] App no 34503/97, ECHR 2008 (ECtHR)

Cases xiii DH and Others v the Czech Republic [GC] App no 57325/00, ECHR 2007IV (ECtHR) Dogru v France App no 27058/05, 4 December 2008 (ECtHR) Ebrahimian v France App no 64846/11, ECHR 2015 (ECtHR) El Morsli v France (dec) App no 15585/06, 4 March 2008 (ECtHR) Eweida and Others v the United Kingdom App nos 48420/10 and 3 others ECHR 2013 (extracts) (ECtHR) Feldbrugge v the Netherlands 29 May 1986, Series A no 99 (ECtHR) Folgerø and Others v Norway [GC] App no 15472/02, ECHR 2007-III (ECtHR) Foti and Others v Italy 10 December 1982, Series A no 56 (ECtHR) Francesco Sessa v Italy App no 28790/08, ECHR 2012 (extracts) (ECtHR) Gamaleddyn v France (dec) App no 18527/08, 30 June 2009 (ECtHR) Genov v Bulgaria App no 40524/08, 23 March 2017 (ECtHR) Ghazal v France (dec) App no 29134/08, 30 June 2009 (ECtHR) Golder v the United Kingdom 21 February 1975, Series A no 18 (ECtHR) Gorzelik and Others v Poland [GC] ECHR 2004-I 219 (ECtHR) Grandrath v Germany (dec) App no 2299/64, Commission decision of 12 December 1966, Decisions and Reports 31 (EComHR) Handyside v the United Kingdom 7 December 1976, Series A no 24 (ECtHR) Hasan and Chaush v Bulgaria [GC] App no 30985/96 ECHR 2000-XI (ECtHR) Hasan and Eylem Zengin v Turkey App no 1448/04, 9 October 2007 (ECtHR) Hatton and Others v the United Kingdom [GC] App no 36022/97, ECHR 2003-VIII 189 (ECtHR) Ireland v the United Kingdom App no 5310/71, 18 January 1978, Series A no 25 (ECtHR) ISKCON and 8 Others v the United Kingdom (dec) App no 20490/92, Commission decision of 8 March 1994 (EComHR) Ivanova v Bulgaria App no 52435/99, 12 April 2007 (ECtHR) I˙zzettin Dog˘an and Others v Turkey [GC] App no 62649/10, ECHR 2016 (ECtHR) Jakóbski v Poland App no 18429/06, 7 December 2010 (ECtHR) Jasvir Singh v France (dec) App no 25463/08, 30 June 2009 (ECtHR) Karaahmed v Bulgaria App no 30587/13, 24 February 2015 (ECtHR) Karaduman v Turkey App no 16278/90, Commission decision of 3 May 1993, Decisions and Reports 74, p 93 (EComHR) Karakuzey v Germany (dec) App no 26568/95, Commission decision of 16 October 1996 (EComHR) Karner v Austria App no 40016/98, ECHR 2003-IX (ECtHR) Kervanci v France App no 31645/04, 4 December 2008 (ECtHR) Khan v the United Kingdom (dec) App no 11579/85, Commission decision of 7 July 1986, Decisions and Reports 48, p 253 (EComHR) Kokkinakis v Greece 25 May 1993, Series A no 260-A (ECtHR) Kose and 93 Others v Turkey ECHR 2006-II 339 (ECtHR)

xiv  Cases Kosteski v ‘the Former Yugoslav Republic of Macedonia’ App no 55170/00, 13 April 2006 (ECtHR) Koval¸kovs v Latvia (dec) App no 35021/05, 31 January 2012 (ECtHR) Kruslin v France Series A no 176-A (ECtHR) Lachiri v Belgium App no 3413/09, 18 September 2018 (ECtHR) Larissis and Others v Greece 24 February 1998, Reports of Judgments and Decisions 1998-I (ECtHR) Lautsi and Others v Italy [GC] App no 30814/06, ECHR 2011 (extracts) (ECtHR) Lautsi v Italy App no 30814/06, 3 November 2009 (ECtHR) Leyla S¸ahin v Turkey App no 44774/98, 29 June 2004 (ECtHR) Leyla S¸ahin v Turkey [GC] App no 44774/98 ECHR 2005-XI (ECtHR) Logan v the United Kingdom (dec) App no 24875/94, Commission decision of 6 September 1996 (EComHR) Mann Singh v France (dec) App no 24479/07, 13 November 2008 (ECtHR) Members of the Gldani Congregation of Jehovah’s Witnesses and Others v Georgia App no 71156/01, 3 May 2007 (ECtHR) Muñoz Díaz v Spain App no 49151/07, ECHR 2009 (ECtHR) Nachova and Others v Bulgaria [GC] App nos 43577/98 and 43579/98, ECHR 2005-VII (ECtHR) Nolan and K v Russia App no 2512/04, 12 February 2009 (ECtHR) Omkarananda and the Divine Light Zentrum v Switzerland (dec) App no 8118/77, Commission decision of 19 March 1981, Decisions and Reports 25, p 105 (EComHR) Osmanog˘lu and Kocabas¸ v Switzerland App no 29086/12, 10 January 2017 (ECtHR) Otto-Preminger-Institut v Austria 20 September 1994, Series A no 295-A (ECtHR) Paposhvili v Belgium [GC] App no 41738/10, ECHR 2016 (ECtHR) Peraldi v France (dec) App no 2096/05, 7 April 2009 (ECtHR) Phull v France (dec) App no 35753/03, ECHR 2005-I (ECtHR) Pichon and Sajous v France (dec) App no 49853/99 ECHR 2001-X (ECtHR) Ranjit Singh v France (dec) App no 27561/08, 30 June 2009 (ECtHR) Refah Partisi (the Welfare Party) and Others v Turkey [GC] App nos 41340/98 and 3 others, ECHR 2003-II (ECtHR) Reformed Church of X v the Netherlands (dec) App no 1497/62, Commission decision of 14 December 1962 (EComHR) Religionsgemeinschaft der Zeugen Jehovas and Others v Austria App no 40825/98, 31 July 2008 (ECtHR) SAS v France [GC] App no 43835/11 ECHR 2014 (extracts) (ECtHR) Siebenhaar v Germany App no 18136/02, 3 February 2011 (ECtHR) Svyato-Mykhaylivska Parafiya v Ukraine App no 77703/01, 14 June 2007 (ECtHR) The Sunday Times v the United Kingdom (no 1) 26 April 1979, Series A no 30 (ECtHR)

Cases xv Thlimmenos v Greece [GC] ECHR 2000-IV 263 (ECtHR) Thlimmenos v Greece App no 34369/97, Commission decision of 4 December 1998 (EComHR) Tsirlis and Kouloumpas v Greece 29 May 1997, Reports of Judgments and Decisions 1997-III (ECtHR) United Communist Party of Turkey and Others v Turkey 30 January 1998, Reports of Judgments and Decisions 1998-I (ECtHR) Vartic v Romania (No 2) App no 14150/08, 17 December 2013 (ECtHR) Wingrove v the United Kingdom 25 November 1996, ECHR 1996-V (ECtHR) Winterstein and Others v France App no 27013/07, 17 October 2013 (ECtHR) X and the Church of Scientology v Sweden (dec) App no 7805/77, Commission decision of 5 May 1979, Decisions and Reports 16, p 68 (EComHR) X v Austria (dec) App no 1753/63, Commission decision of 15 February 1965 (EComHR) X v the Netherlands (dec) App no 2065/63, Commission decision of 14 December 1965, Decisions and Reports 18, p 40 (EComHR) X v the United Kingdom (dec) App no 5442/72, Commission decision of 20 December 1974, Decisions and Reports 1, p 41 (EComHR) X v the United Kingdom (dec) App no 5947/72, Commission decision of 5 March 1976, Decisions and Reports 5, p 8 (EComHR) X v the United Kingdom (dec) App no 6886/75, Commission decision of 18 May 1976, Decisions and Reports 5, p 100 (EComHR) X v the United Kingdom (dec) App no 7291/75, Commission decision of 4 October 1977, Decisions and Reports 11, p 55 (EComHR) X v the United Kingdom (dec) App no 7992/77, Commission decision of 12 July 1978, Decisions and Reports 14, p 234 (EComHR) X v the United Kingdom (dec) App no 8160/78, Commission decision of 12 March 1981, Decisions and Reports 22, p 27 (EComHR) X v the United Kingdom (dec) App no 8231/78, Commission decision of 6 March 1982, Decisions and Reports 28, p 5 (EComHR) X v the United Kingdom (dec) App no 8231/78, Commission decision of 6 March 1983, Decisions and Reports 28, p 5 (EComHR)

II. Cases of the HRC Arenz and Röder v Germany UN Doc CCPR/C/80/D/1138/2002, 29 April 2004 Bikramjit Singh v France UN Doc CCPR/C/106/1852/2008, 1 November 2012 Coeriel and Aurik v the Netherlands UN Doc CCPR/C/52/D/453/1991, 9 December 1994 Dawood Khan v Canada UN Doc CCPR/C/87/D/1302/2004, 10 August 2006 FA v France UN Doc CCPR/C/123/D/2662/2015, 16 July 2018

xvi  Cases Fatima Andersen v Denmark UN Doc CCPR/C/99/D/1868/2009, 26 July 2010 Hertzberg and Others v Finland UN Doc CCPR/C/OP/1 at 124, 2 April 1982 Hudoyberganova v Uzbekistan UN Doc CCPR/C/82/D/931/2000, 5 November 2004 JP v Canada UN Doc A/47/40, 7 November 1991 Karnel Singh Bhinder v Canada UN Doc CCPR/C/37/D/208/1986, 28 November 1989 Länsman v Finland UN Doc CCPR/C/52/D/511/1992, 26 October 1994 Leirvåg et al v Norway UN Doc CCPR/C/82/D/1155/2003, 23 November 2004 MA v Italy UN Doc Supp No 40 (A/39/40) at 190, 10 April 1984 Mahuika and Others v New Zealand UN Doc CCPR/C/70/D/547/1993, 27 October 2000 Malcolm Ross v Canada UN Doc CCPR/C/70/D/736/1997, 26 October 2000 María Cruz Achabal Puertas v Spain UN Doc CCPR/C/107/D/1945/2010, 18 June 2013 Miriana Hebbadj v France UN Doc CCPR/C/123/D/2807/2016, 17 July 2018 Muhonen v Finland UN Doc A/40/40, 8 April 1985 Prince v South Africa UN Doc CCPR/C/91/D/1474/2006, 31 October 2007 Ranjit Singh v France UN Doc CCPR/C/102/D/1876/2009, 27 September 2011 Shingara Mann Singh v France UN Doc CCPR/C/108/D/1928/2010, 19 July 2013 Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v Sri Lanka UN Doc CCPR/C/85/D/1249/2004, 21 October 2005 Sonia Yaker v France UN Doc CCPR/C/123/D/2747/2016, 17 July 2018 SWM Brooks v The Netherlands UN Doc CCPR/C/29/D/172/1984, 9 April 1987 Toonen v Australia UN Doc CCPR/C/50/D/488/1992, 31 March 1994 Zohra Madoui v Algeria UN Doc CCPR/C/94/D/1495/2006, 1 December 2008

III.  Other cases France, Conseil d’État, Avis ‘Port du foulard islamique’ (no 346893, 27 November 1989) (Headscarf ) – –, Avis 4 / 6 SSR (no 217017, 3 May 2000) – –, (no 289946, 15 December 2006)

Cases xvii ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Merits, Judgment, ICJ Reports 2010, 639 ICJ, Separate Opinion of Judge Cançado Trindade in the Case Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Merits, Judgment, ICJ Report 2010, 729 PCIJ, Advisory Opinion regarding Greco-Bulgarian ‘Communities’ PCIJ Reports, Series B No 17, 1930

Other documents and materials

ACFC, First Opinion on Denmark (ACFC/INF/OP/I(2001)005, 2000) (First Opinion on Denmark) – –, First Opinion on Estonia (ACFC/INF/OP/I(2002)005, 2002) (First Opinion on Estonia) – –, First Opinion on Switzerland (ACFC/INF/OP/I(2003)007, 2003) (First Opinion on Switzerland) – –, Second Opinion on the United Kingdom (ACFC/OP/II(2007)003, 2007) (Second Opinion on the United Kingdom) – –, Second Opinion on the Netherlands (ACFC/OP/II(2013)003, 2013) (Second Opinion on the Netherlands) – –, Third Opinion on Switzerland (ACFC/OP/III(2013)001, 2013) (Third Opinion on Switzerland) – –, Third Opinion on Poland (ACFC/OP/III(2013)004, 2014) (Third Opinion on Poland) – –, Fourth Opinion on Denmark (ACFC/OP/IV(2014)001, 2015) (Fourth Opinion on Denmark) – –, Fourth Opinion on the United Kingdom (ACFC/OP/IV(2016)005, 2016) (Fourth Opinion on the United Kingdom) – –, Thematic Commentary No 4: The Scope of Application of the Framework Convention for the Protection of National Minorities (ACFC/56DOC (2016)001, 2016) (Thematic Commentary No 4) American Association for the International Commission of Jurists, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985) Capotorti Francesco, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (UN Doc E/CN4/Sub2/384, 1977) CoE, Framework Convention for the Protection of National Minorities and Explanatory Report (H(95)10, 1995) (Explanatory Report FCNM) – –, ‘Guide to Article 9: Freedom of Thought, Conscience and Religion’ accessed 1 May 2019 (Guide Art 9 ECHR) – –, Practical Guide on Admissibility Criteria (2014) (Admissibility Guide)

Other documents and materials xix – –, Preparatory Work on Article 9 of the European Convention on Human Rights (DH(56)14, 1956) (Travaux préparatoires Art 9 ECHR) CoE Treaty Office, ‘Reservations and Declarations for Treaty No 157: FCNM’ accessed 1 May 2019 Conseil d’État (France), Plenary General Assembly, Study of Possible Legal Grounds for Banning the Full Veil (2010) Deschênes Jules, Proposal Concerning a Definition of the Term “Minority” (UN Doc E/CN4/Sub2/1985/31, 1985) ECtHR, ‘Hudoc FAQ: Frequently Asked Questions’ accessed 1 May 2019 (Hudoc FAQ) ECtHR Public Relations Unit, 50 Years of Activity: The European Court of Human Rights: Some Facts and Figures (April 2010) (Facts and Figures) – –, Statistics 1959–2016 (March 2017) (Statistics 1959–2016) Elles Diana, International Provisions Protecting the Human Rights of NonCitizens (UN Doc E/CN4/Sub2/392/Rev1, 1980) Ettinger Patrik and Imhof Kurt, Ethnisierung des Politischen und Problematisierung religiöser Differenz (2011) EU Agency for Fundamental Rights, Second European Union Minorities and Discrimination Survey: Muslims – Selected findings (2017) HRC, Concluding Observations on the 4th Report Submitted by France (UN Doc CCPR/C/FRA/CO/4, 31 July 2008) (CO 4th Report France) – –, Concluding Observations on the 5th Report Submitted by France (UN Doc CCPR/C/FRA/CO/5, 17 August 2015) (CO 5th Report France) – –, General Comment 15: The Position of Aliens under the Covenant (UN Doc HRI/GEN/1/Rev1 at 18 (1994), 1986) (GC 15) – –, General Comment 22, Article 18 (UN Doc CCPR/C/21/Rev1/Add4, 1993) (GC 22) – –, General Comment 23, Article 27 (UN Doc CCPR/C/21/Rev1/Add5, 1994) (GC 23) – –, General Comment 31 (UN Doc CCPR/C/21/Rev1/Add 1326, 2004) (GC 31) – –, General Comment 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights (UN Doc CCPR/C/GC/33, 5 November 2008) (GC 33) – –, Report of the Human Rights Committee (General Assembly, Official Records: Forty-Sixth Session Supplement No 40 (A/46/40), 1991) (Report 1991) – –, Summary Record of the 116th Meeting (UN Doc CCPR/C/SR1166, 9 October 1992) (Record 116th Meeting) Kälin Walter, Genf oder Strassburg? Die Rechtsprechung des UNOMenschenrechtsausschusses und des Europäischen Gerichtshofes für Menschenrechte im Vergleich (Study of the Swiss Centre of Expertise in Human Rights, 2012) (Genf oder Strassburg)

xx  Other documents and materials Koskenniemi Martti, Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (UN Doc A/CN4/ L682, 2006) Krishnaswami Arcot, Study of Discrimination in the Matter of Religious Rights and Practices (UN Doc E/CN4/Sub2/200/Rev 1, 1960) Law no 2004–228 of 15 March 2004 regulating, in accordance with the principle of secularism, the wearing of signs or dress manifesting a religious affiliation in State schools OHCHR, ‘Status of Ratification: Interactive Dashboard’ accessed 25 January 2018 (Status of Ratification) Oxford English Dictionary, ‘Quantitative Analysis’ accessed 1 May 2019 – –, Islam, Islamism and Islamophobia in Europe (Resolution 1743 (2010)) – –, Recommendation 1201 (1993) on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights (Recommendation 1201 (1993)) – –, The Situation and Rights of National Minorities in Europe (Resolution 1985 (2014)) Rules of Procedure of the United Nations Human Rights Committee (UN Doc CCPR/C/3/REV10, 11 January 2012) Rules of the European Court of Human Rights (14 November 2016) accessed 1 May 2019 Sikhs United, ‘Start Page’ accessed 25 January 2018 Swiss Federal Statistics Office, accessed 1 May 2019 UN DESA, ‘Population Division: International Migration’ accessed 1 May 2019 UNGA, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN Doc A/RES/36/55, 25 November 1981) (1981 Declaration) – –, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Doc A/RES/47/135, 18 December 1992) (UN Minority Rights Declaration) – –, Report of the Special Rapporteur on Freedom of Religion and Belief (UN Doc A/HRC/34/50, 17 January 2017, 2017) (Report of the Special Rapporteur) UN Human Rights Council, Recommendations of the Forum on Minority Issues at its Sixth Session: Guaranteeing the Rights of Religious Minorities (26 and 27 November 2013) (UN Doc A/HRC/25/66, 22 January 2014) UN Secretary-General, Annotations on the Text of the Draft of the International Covenants on Human Rights (UN Doc A/2929, 1955) (UN Doc A/2929)

Other documents and materials xxi UN Special Rapporteur on Religious Intolerance, Report submitted to the Commission on Human Rights (UN Doc E/CN4/1988/45, 1988) UN Treaty Collection, ‘Optional Protocol to the International Covenant on Civil and Political Rights’ accessed 1 May 2019 Venice Commission, Explanatory Report on the Proposal for a European Convention for the Protection of Minorities (CDL(91)8, 1991) (Explanatory Report Proposal Minority Convention) – –, Proposal for a European Convention for the Protection of Minorities (CDL(1991)007-e, 1991) (Proposal Minority Convention) – –, Report on Non-Citizens and Minority Rights (CDL-AD(2007)001, 2007) (Report Non-Citizens) World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ (25 June 1993) accessed 1 May 2019 (1993 Vienna Declaration and Programme of Action)

Abbreviations

1981 Declaration

Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by General Assembly Resolution 36/55 of 25 November 1981 ACFC Advisory Committee on the Framework Convention for the Protection of National Minorities App no(s) Application number(s) Art(s) Article(s) BJPolS British Journal of Political Science CHRY Canadian Human Rights Yearbook CJEL Columbia Journal of European Law CoE Council of Europe CRC International Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 CUP Cambridge University Press Dec Decision ECHR or the Convention Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 EComHR or the Commission European Commission of Human Rights ECtHR or the Court European Court of Human Rights Ed(s) Editor(s) Edn Edition Eg For example EJIL European Journal of International Law ELR Erasmus Law Review EU European Union EYMI European Yearbook of Minority Issues

Abbreviations xxiii And following Framework Convention for the Protection of National Minorities (adopted 1 February 1995, entered into force 1 February 1998) 2151 UNTS 243 GC Grand Chamber Harvard Human Rights Journal HHRJ HILJ Harvard International Law Journal HRC or the Committee United Nations Human Rights Committee HRLRev Human Rights Law Review Human Rights Law Journal HRLJ HRQ Human Rights Quarterly I•CON International Journal of Constitutional Law Ibid Ibidem ICCPR or the Covenant International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 ICERD International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 1 ICESCR International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 ICJ International Court of Justice ICJ Statute Statute of the International Court of Justice (adopted 24 October 1945) ICL Journal Vienna Journal on International Constitutional Law ICLQ International and Comparative Law Quarterly ICLR International Community Law Review Ie Id est IHLS Journal of International Humanitarian Legal Studies LJIL Leiden Journal of International Law MJ Maastricht Journal of European and Comparative Law MJIL Michigan Journal of International Law MLR The Modern Law Review NGO Non-governmental organisation NJHR Nordic Journal of Human Rights No(s) Number(s) NQHR Netherlands Quarterly of Human Rights NYIL Netherlands Yearbook of International Law öarr Österreichisches Archiv für Recht & Religion OHCHR Office of the High Commissioner for Human Rights

F(f ) FCNM

xxiv  Abbreviations Oxford Journal of Law and Religion OJLR Optional Protocol Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered to the ICCPR into force 23 March 1976) 999 UNTS 171 OUP Oxford University Press P Page Parliamentary Assembly of the Council of Europe PACE Para(s) Paragraph(s) PCIJ Permanent Court of International Justice Res Resolution Rome Statute to the International Criminal Court Rome Statute (adopted 17 July 1998) RTDH Revue Trimestrielle des Droits de l’Homme Siracusa Principles Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (published by the American Association for the International Commission of Jurists in April 1985) SLR Stanford Law Review UDHR Universal Declaration of Human Rights (proclaimed by the United Nations General Assembly on 10 December 1948 in General Assembly Resolution 217 A) UN United Nations UN Doc United Nations Document UN Migrant International Convention on the Protection of the Rights Workers of All Migrant Workers and Members of their Families Convention (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3 UN Minority Declaration on the Rights of Persons Belonging to Rights Declaration National or Ethnic, Religious and Linguistic Minorities (adopted by General Assembly Resolution 47/135 of 18 December 1992) UNGA United Nations General Assembly UNTS United Nations Treaty Series UNYB Max Planck Yearbook of United Nations Law V Versus VCLT Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 Venice Commission European Commission for Democracy through Law Vol Volume YLJ Yale Law Journal

Figures

3.1 Religious beliefs of the applicants in the cases of the ECtHR/EComHR61 3.2 Outcome of the complaints brought to the ECtHR/EComHR 66 3.3 Outcome of the cases decided by the HRC 73

Tables

I.1 I.2a I.2b II.1a II.1b

Religion of the applicant and respondent state in the cases of ECtHR/EComHR Religion of the authors in the cases of the HRC Religion of the author and respondent states in the cases of HRC Religion of the applicant and outcome of complaints to the ECtHR/EComHR Respondent state and outcome of the complaints to the ECtHR/EComHR

63 64 65 68 69

Introduction

Migration is a global phenomenon that is continuously growing due to events related, among many, to war, religious intolerance, climate change and economic hardship.1 Immigrant-receiving countries are confronted with a more and more culturally, linguistically and religiously diverse society. This changing social environment has given rise to extensive political and academic debates on the impact of diversity on social cohesion.2 Today, growing social tensions between the socalled new minorities formed by these migration movements and the rest of the population residing in immigrant-receiving countries can be observed. In this context, religious differences seem to be a hot topic, as a statement of Hungary’s Prime Minister Viktor Orbán, who alleged that Muslim refugees represent a threat to Europe’s Christian identity, exemplifies.3 But also in Switzerland, a member of the Federal Assembly expressed the will to give preference to asylum requests of Christians.4 This tension between the religious traditions of immigrant-receiving countries and new groups created by recent migration movements is also reflected in the legal sphere where restrictions to new minorities’ religious practices have become more common. Examples are the prohibition of the construction of minarets introduced to the Swiss constitution5 or the prohibition of the wearing of burqas 1 See for further details the data available at UN DESA, ‘Population Division: International Migration’ accessed 1 May 2019. 2 See eg Kristin Henrard, ‘The Intractable Relationship Between the Concepts “Integration” and “Multiculturalism”: About Conceptual Fluidity, (Substantive) Context Specificness and Fundamental Rights Perspectives’ in Milan Podunavac (ed), The Challenges of Multiculturalism: The South-Eastern European Perspectives in the European Discourse (Heinrich Böll Foundation 2013) 107ff; Ruud Koopmans, Bram Lancee and Merlin Schaeffer, Social Cohesion and Immigration in Europe and North America: Mechanisms, Conditions, and Causality (Routledge 2015). 3 Ian Traynor, ‘Migration Crisis: Hungary PM Says Europe in Grip of Madness’ The Guardian (3 September 2015) accessed 1 May 2019. 4 Tagesanzeiger, ‘Pfister will christliche Flüchtlinge bevorzugen’ (25 February 2016) accessed 1 May 2019. 5 See Art 72(3) of the Swiss Constitution, which was introduced by a popular initiative in 2009.

2  Introduction as it was adopted for example in Belgium and France via infra-constitutional legislation. These measures seem to be aimed specifically at Muslims, who can be regarded as a new minority in these countries.6 While these are actions directly intended to restrict the religious practices of new minorities, there are also cases in which rules that do not appear to have a religious connotation come into conflict with the religious customs of respective groups. One can think of the requirement to wear safety headgear while riding a motorcycle or uniform policies, which may conflict with Muslim or Sikh religious practices to cover the head.7 Looking at these situations from a human rights perspective, the question arises whether international human rights law provides any guidelines and limits for such restrictions to religious practices of new minorities, who have emerged as a result of recent migration. The right to freedom of religion, which is granted as a human right in various treaties on the international level,8 but also as a fundamental right in many constitutions,9 is of particular relevance in this regard. It guarantees everyone the right ‘to hold spiritual beliefs and to live by them, whether in private or in public, alone or in community with others’.10 This does not only include ceremonial acts, but also religious customs such as dietary or clothing practices.11 These external manifestations of belief are however not protected in an absolute manner. Rather, they are subject to limitations, according to generally established principles, and interferences can be justified under three conditions: The interference is prescribed by law (condition of legality), pursues a legitimate aim (condition of legitimacy) and is necessary for the fulfilment of that aim, thus not going ‘beyond what is required in order to effectively achieve that aim – or, at a minimum, that all the interests involved should be carefully balanced against one another (condition of proportionality)’.12 As pointed out in relevant scholarship, in human rights law so-called multisourced equivalent norms, such as the right to freedom of religion, can be found,

6 Eg Eva Brems (ed), The Experiences of Face Veil Wearers in Europe and the Law (CUP 2014). 7 Eg Nigel Gladstone, ‘Sikh and You’ll Be Fined? Glenwood’s Sikh Community Want to Keep Their Turbans on While Cycling in Suburban Streets’ Daily Telegraph (4 November 2014) accessed 1 May 2019; Tom McCarthy, ‘US Military Eases Uniform Rules to Allow Turbans and Beards’ The Guardian (23 January 2014) accessed 1 May 2019. 8 Eg Art 18 UDHR, Art 18 and 27 ICCPR, Art 9 ECHR or Art 12 ACHR. 9 Eg Art 15 of the Swiss Constitution, Art 19 of the Belgian Constitution, Art 5(VI/VIII) of the Brazilian Constitution, Art 2(a) of the Canadian Constitution Act or Art 21(1c) of the Namibian Constitution. 10 Kevin Boyle and Sangeeta Shah, ‘Thought, Expression, Association and Assembly’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (2nd edn, OUP 2014) 221 (emphasis in the original). 11 HRC, General Comment 22, Article 18 (UN Doc CCPR/C/21/Rev1/Add4, 1993) para 4. 12  Olivier De Schutter, International Human Rights Law: Cases, Materials, Commentary (2nd edn, CUP 2014) 288; see eg Arts 18(3) ICCPR or 9(2) ECHR.

Introduction 3 which are enshrined in various treaties and thus subject to the interpretation and application by various bodies.13 The provisions in question, eg Article 9 ECHR and Article 18 ICCPR, are formulated in an open manner, as is commonly the case for human rights norms,14 and conflicting interpretations and applications can occur, when a body needs to decide whether specific factual circumstances amount to a violation of these norms. Adjudication of individual complaints can thus be seen as ‘the process by which a judge comes to understand and express the meaning of an authoritative legal text and the values embodied in that text’.15 In this process, human rights bodies are bound by certain guidelines given by legal sources,16 but generally, they seem to enjoy significant latitude in their interpretative exercise.17 Consequently, it does not come as a surprise that in human rights adjudication, different interpretations and applications of multi-source equivalent norms can be observed, thus making this area particularly interesting for further research. Moreover, decisions and judgments adopted in the context of individual complaints procedures, as opposed to for example statements made in the context of state reporting procedures in the United Nations (UN) framework, represent an especially rich source for analysis. This holds particularly true given that the respective human rights bodies cannot choose which situations to address and whether to elaborate in a more extensive way on their interpretation of the provision(s) in question. Consequently, it is not just the outcome, namely the finding of a violation or no violation, that is decisive, but even more so the way in which a body arrives at such result, namely the reasoning of a judicial decision.18 Therefore, for the understanding of interpretations and applications of human rights provisions, it is crucial to analyse the reasoning supporting them. In particular, this holds true in cases of conflicting interpretations and applications of human rights provisions, which can be observed with regard to sensitive issues, such as immigration and minorities.19 This is not surprising considering that the interpretation involves decisions on questions such as how ‘the goal of a cohesive society relates to allowing, protecting and/or even promoting separate

13 See Yuval Shany and Tomer Broude (eds), Multi-Sourced Equivalent Norms in International Law (Hart 2011). 14 See for further details Michael K Addo, The Legal Nature of International Human Rights (Martinus Nijhoff 2010) 19ff. 15 Owen M Fiss, ‘Objectivity and Interpretation’ (1982) 34 SLR 739, 739. 16 Eg Art 38 ICJ Statute. 17 See also Cecilia Medina, ‘The Role of International Tribunals: Law-Making or Creative Interpretation?’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 651. 18 See also Andrea Bianchi, ‘International Adjudication, Rhetoric and Storytelling’ (2017) 0 Journal of International Dispute Settlement 1. 19 See eg Boyle and Shah 223ff; Kristin Henrard, ‘A Critical Appraisal of the Margin of Appreciation Left to States Pertaining to “Church – State Relations” Under the Jurisprudence of the European Court of Human Rights’ in Marie-Claire Foblets, Katayoun Alidadi and Jogchum Vrielink (eds), Test of Faith? Religious Diversity and Accommodation in the European Workplace (Ashgate 2012) 59.

4  Introduction identities of distinctive population groups’.20 As an example, two complaints brought against French legislation, which prohibited the covering of the head on official photographs, can be mentioned. The first case regarded a Sikh, who had to appear bareheaded on his residency permit photo and was addressed to the United Nations Human Rights Committee (HRC). The Committee observed that France did not give reasons on how the requirement contributed to ensure public safety and facilitated the identification of the author of the communication. It thus found a violation of the right to manifest religious beliefs as guaranteed by Article 18(3) ICCPR.21 The European Court of Human Rights (ECtHR), however, declared a nearly identical complaint with regard to a driver’s licence photo manifestly ill-founded and thus inadmissible.22 The ECtHR’s interpretation of the condition of proportionality, which needs to be fulfilled in order for a limitation of the right to manifest religious beliefs to be regarded as justified, is thereby diametrically opposed to the HRC’s. In order to identify the current state of and differences in human rights standards with regard to new minorities’ right to freedom of religion, going beyond specific sets of conflicting decisions, it is necessary to examine the current practice in detail. This has not yet been done in existing literature that rather focuses on criticising or comparing specific sets of contradicting decisions or decisions with regard to a specific religious practice.23 Yet, only when critically analysing the overall approaches expressed in the reasoning adopted by different human rights bodies in relation to new minorities’ religious freedom, can gaps or disparities in human rights standards be discovered and solutions be suggested. Based on the above observation, this book limits its analysis to the interpretation and application of new minorities’ right to freedom of religion in the case law of the two specific human rights bodies, which are known to have adopted conflicting decisions in the area of new minorities’ religious freedom. This is on the one hand the HRC, responsible for supervising the implementation of the ICCPR and the issuing of ‘views’24 on individual communications from 115 countries that ratified the Optional Protocol to the International Covenant on Civil

20 Henrard, ‘Multiculturalism’ 107. 21 Ranjit Singh v France UN Doc CCPR/C/102/D/1876/2009, 27 September 2011 (HRC) para 8.4. 22 Mann Singh v France (dec) App no 24479/07, 13 November 2008 (ECtHR). 23 See eg Brems; Emmanuelle Bribosia, Gabrielle Caceres and Isabelle Rorive, ‘Les Signes Religieux au Cœur d’un Bras de Fer entre Genève et Paris: La Saga Singh’ (2014) RTDH 495; Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for Its Application by the Human Rights Committee’ (2016) 65 ICLQ 21; Françoise Tulkens and Sébastien Van Drooghenbroeck, ‘The Domestic Courts’ Response to Divergent Views Among International Human Rights Bodies: Thoughts Prompted by the Singh v. France Cases’ in André Alen and others (eds), Liberae Cogitationes: Liber amicorum Marc Bossuyt (Intersentia 2013). 24 The decisions adopted by the HRC when examining individual complaints are entitled ‘views’ according to Art 5(4) of the Optional Protocol to the ICCPR.

Introduction 5 and Political Rights (Optional Protocol to the ICCPR).25 On the other hand, and in particular since several European countries hosting large groups of new minorities, such as Switzerland or the United Kingdom, have not accepted the individual complaint mechanism under the ICCPR, the practice of the ECtHR, which is responsible for the supervision of the ECHR, is included. Different than other research in this area, this book is based on an empirical analysis of the individual complaints procedure of the ECtHR and the HRC. Thus, a quantitative and qualitative empirical research of the case law is used as a starting point for a comparative analysis of the practice of the HRC and the ECtHR regarding new minorities’ right to manifest their religious beliefs. The designed empirical research, which will be explained in detail below,26 serves as a tool to identify relevant decisions and judgments or views and potential elements of the adopted reasoning, which can explain the possibly divergent interpretation and application of new minorities’ religious freedom by the HRC and the ECtHR. Basing this book on empirical research of the relevant practice strives to ensure the inclusion of all relevant case law and allows for a holistic and comprehensive interpretation of the approaches taken by the HRC and the ECtHR. The ECtHR and the HRC represent two different systems of human rights protection and are thus not obliged to adopt a coherent interpretation of the right to freedom of religion. Nevertheless, considering the basic principle of the universality of human rights established by the Universal Declaration of Human Rights (UDHR) and reaffirmed in the 1993 Vienna Declaration and Programme of Action,27 it appears appropriate to investigate the reasons for these different human rights interpretations. Moreover, it is of crucial importance to clarify the international standards in this regard giving states guidelines and limitations for dealing with constantly growing religious diversity. Such clarification is also key for the formulation of litigation strategies for applicants and other groups seeking to advance human rights protection of new minorities. This is in particular necessary given that new minorities, such as Muslims, are increasingly confronted with hostile attitudes towards their religious practices.

25  OHCHR, ‘Status of Ratification: Interactive Dashboard’ accessed 1 May 2019. 26 See below Chapter 1, section IV. 27 World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ (25 June 1993) accessed 1 May 2019.

1 The protection of new minorities in a pluralist international legal order

This chapter forms the framework of the present research. A first section is dedicated to clarifying the theoretical approach chosen for analysing the protection of new minorities’ right to freedom of religion and belief. The second section focuses on conceptual issues, in particular surrounding the term ‘new minority’, which appears crucial considering various controversies concerning the concept of ‘minority’ in international law. Based on the considerations of the first two sections, the third then highlights current challenges in the field that emphasise the importance and need for the research in this area. The last section presents the empirical research forming the basis for this book.

I. About pluralism, constitutionalism and divergence As highlighted by Bianchi, it is crucial to be aware of the way one thinks about international law, or in other words the theory of international law which one follows, when studying international law.1 It appears thus important to clarify that, among the myriad of existing approaches to international law, the present research is based on a pluralist approach to international law. This term is used as a label for a normative position which welcomes the multiplicity, diversity, and overlap of legal (sub-)orders, of rules and principles, of sources of authority, of norm-producing actors and institutions in various sectors and levels of governance that stand in a non-hierarchical relationship to each other (. . .) and which also welcomes the plurality of values and perspectives espoused by the multiple actors.2 Such an approach is followed because it arguably best reflects the reality of international law, and in particular international human rights law, today. This 1 Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (OUP 2016). 2 Anne Peters, ‘Fragmentation and Constitutionalization’ in Anne Orford, Florian Hoffmann and Martin Clark (eds), The Oxford Handbook of the Theory of International Law (OUP 2016) 1022.

Protection in a pluralist legal order 7 is emblematised by the fact that in this field, various international bodies from different frameworks, such as the Council of Europe (CoE) or the UN, were established, which are often responsible for interpreting and applying very similar provisions but are not in a hierarchical relationship. As will be shown in this book, this can sometimes lead to divergent interpretations and applications of similar human rights provisions. The pluralist position adopted is closely aligned with the theory of constitutionalism, more specifically global constitutionalism. This can be viewed as a countermovement to the discourse on the fragmentation of international law.3 Both deal with said pluralism of international law however approach the phenomenon from different perspectives: While fragmentation is based on a negative connotation, constitutionalism sees plurality as something positive, which can contribute to further developing international law.4 A particular concern of all these debates is the emergence of so-called sub-fields or regimes of international law in the course of globalisation, which has gone hand in hand with the establishment of a range of international (quasi-)judicial bodies.5 International human rights law has featured prominently in these discussions given that in the last century it has gained ‘importance, relevance, and force’.6 Instead of being contained to one single sub-field, it is also permeating other areas of international law, such as international humanitarian law or international investment law.7 On the one hand, this is seen as a sign for the humanisation of international law,8 on the other hand, as a trigger for further fragmentation or divergence.9 The topic of fragmentation or constitutionalism within international human rights law features however less prominently in these debates.10 The 3 See for a comparison of the two movements ibid 1011ff. 4 See for an analysis of the interconnectedness of debates on fragmentation and constitutionalism Andrzej Jakubowski and Karolina Wierczyn´ska (eds), Fragmentation vs the Constitutionalisation of International Law: A Practical Inquiry (Routledge 2016). 5 Peters 1012. 6 Harlan G Cohen, ‘From Fragmentation to Constitutionalization’ (2012) 25 Global Business & Development Law Journal 381. 7 See eg Marko Milanovic, ‘Norm Conflict in International Law: Whither Human Rights’ (2009) 20 Duke Journal of Comparative & International Law 69. 8 Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (2nd revised edn, Martinus Nijhoff 2013); Vassilis P Tzevelekos and Lucas Lixinski, ‘From the Internationalisation of National Constitutions to the “Constitutionalisation” of International Law’ in Andrzej Jakubowski and Karolina Wierczyn´ska (eds), Fragmentation vs the Constitutionalisation of International Law: A Practical Inquiry (Routledge 2016). 9 See eg Geoffrey S Corn, ‘Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict’ (2010) 1 IHLS 52; see for an in-depth analysis of this argument Cohen H G 383ff. 10 See however Marjan Ajevski, ‘Fragmentation in International Human Rights Law: Beyond Conflict of Laws’ (2014) 32 NJHR; Mehrdad Payandeh, ‘Fragmentation Within International Human Rights Law’ in Mads Adenas and Eirik Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015) 298; Yuval Shany, ‘International Human Rights Bodies and the Little-Realized Threat of Fragmentation’ (2016) 1–16 Hebrew University of Jerusalem Legal Studies Research Paper Series.

8  Protection in a pluralist legal order report of the Study Group of the International Law Commission on fragmentation in international law, for example, does not mention the issue at all.11

1.  Divergence within international human rights law In the international system of human rights protection, we witness legal pluralism in action, ie more than one law or legal system operating in one geographical space.12 There is thus a plurality of actors, from the international, the regional and the national sphere, which oversees the implementation of international human rights treaties, such as the ICCPR or the ECHR, in overlapping geographical areas. The human rights bodies at the core of this book, namely the HRC and the ECtHR, can be regarded as two actors in this system of international human rights protection. While the HRC is part of the universal system under the auspices of the UN, the ECtHR belongs to one of the several regional systems of human rights protection, namely the CoE. It is however important to highlight that this does not mean that there is a hierarchy between the universal and the regional. The interconnectedness and commonalities of the ECtHR and the HRC cannot be denied,13 in particular when looking at the drafting process of their founding instruments. Both instruments are strongly inspired by the UDHR of 1948, as evidenced by the reference to the document in their preambles. Moreover, they both aim at ensuring ‘universal respect for, and observance of, human rights and freedoms’.14 This allegedly creates ‘an assumption of normative unity’, which may however be threatened by the existence of various institutions authoritatively interpreting the different instruments.15 Thus, although both actors are endowed with the same task, namely the protection of human rights and in particular their interpretation and application, they are not technically bound to fulfil their task in the same way, eg by a respective provision in their founding instruments. Human rights guarantees are formulated in very open terms. Consequently, considering that the ECtHR and the HRC act in different and often politicised settings, the interpretation given to human rights provisions and their application may not always be the same, owing for example to a different perception of their role and responsibilities as an international human rights body.16 In other words, 11 Martti Koskenniemi, Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (UN Doc A/CN4/L682, 2006). 12 See eg Margaret Davies, ‘Legal Pluralism’ in Peter Cane and Herbert M. Kritzer (eds), The Oxford Handbook of Empirical Legal Research (2nd edn, OUP 2012) 805. 13 See for an interesting early comparison Paul Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (CUP 2005). 14 Preamble of the ICCPR; a similar wording can be found in the preamble of the ECHR. 15 Ajevski, ‘Fragmentation 2014’ 88. 16 Mireille Delmas-Marty, Les Forces Imaginantes du Droit (I): Le Relatif et l’Universel (Seuil 2004) 55ff.

Protection in a pluralist legal order 9 the coexistence of various institutions and instruments in the area of human rights bears the inherent risk of fragmentation in the sense of a diverging application and interpretation of human rights guarantees. In order to clarify that such fragmentation is not seen in a negative light, in the following, the term ‘divergence’ is used to describe such phenomenon. According to Ajevski, divergence within international human rights law may occur on three main levels:17 This is first the specific wording used by the different legal instruments. Thus, although both the ICCPR and the ECHR find their origin in the UDHR, their provisions differ sometimes significantly from each other, which could be a potential factor for divergence. Second, given the textual indeterminacy of human rights provisions, human rights bodies must develop doctrines, tests and justifications to guide their interpretation and application of the norms and to argue why a case is decided in a certain way. The use of different doctrines, tests and justifications by various human rights bodies might thus be a further cause for divergence. The third level, on which divergence might occur, is the decision on the outcome of a specific case, ie whether or not the body in question concludes that a human rights provision has been violated. Thus, although the wording of the human rights provisions in question is similar and the bodies in question make use of similar techniques to interpret and apply them, the outcome may be different. Yet, also the opposite can hold true: The wording of a provision as well as the doctrine, test or justification used to interpret and apply it can be different, but the outcome of two cases may be the same. Consequently, when looking at divergence within international human rights law, it is important to take these three different levels into account.

2. Divergence between the ECtHR and the HRC This interconnectedness of the ECtHR and the HRC inevitably leads to the question of their relationship. Early on in the drafting process of the two instruments, it was realised that there would be a jurisdictional overlap between different international human rights bodies. Indeed, today a majority of the states, which have ratified the ECHR, have also done so for the ICCPR and its Optional Protocol.18 This leaves victims of human rights violations in principle the choice of which body they want to address their complaints to.19 Yet, both instruments have included certain safeguards related to this jurisdictional overlap. 17 The following elaborations are based on the distinction developed by Ajevski, ‘Fragmentation 2014’ 92f. 18 See OHCHR, ‘Status of Ratification: Interactive Dashboard’ accessed 1 May 2019. 19 See Torkel Opsahl, ‘Coexistence des Régimes de Genève et de Strasbourg: Les Rapports entre le Pacte International Relatif aux Droits Civils et Politiques et la Convention Européenne de Sauvegarde des Droits de l’Homme et leurs Organes Respectifs de Mise en Œuvre’ (1991) CHRY 163, 173; Heike Stender, Überschneidungen im internationalen Menschenrechtsschutz: Zum Problem des overlapping von materiellen Garantien und Kontrollmechanismen (Berliner Wissenschafts-Verlag 2004) 92.

10  Protection in a pluralist legal order As part of the admissibility criteria for an individual complaint to the ECtHR, Article 35(2b) ECHR provides that the Court shall not examine an application that ‘is substantially the same as a matter that (. . .) has already been submitted to another procedure of international investigation or settlement and contains no relevant new information’. According to the interpretation of the ECtHR, the provision only excludes a submission to the ECtHR, after a decision was adopted by another set of international proceedings, and not upon the submission of a matter to another international body.20 Thus, only a complaint which has already been decided by the HRC will be declared inadmissible by the ECtHR.21 Moreover, any complaint has to be submitted within six months after the final decision at the national level was taken.22 This short time frame makes it quite difficult, if not impossible, for an applicant to submit a complaint in time, while first obtaining a decision of the HRC.23 Nevertheless, there is a certain room for interpretation with regard to the term ‘substantially the same’, which leads to the question of whether a complaint must ‘not only relate to the same facts and allege violation of the same right, but also be filed by the same person’.24 This question has been settled by the Court: In order to be declared inadmissible, the complaint must also be filed by the same person. Thus, the ECtHR declared complaints filed by individuals, which had previously been submitted by an NGO to another international procedure admissible.25 The relevant admissibility criteria of the ICCPR can be found in Article 5(2a) of the Optional Protocol, which states that the HRC shall only consider a communication if ‘(t)he same matter is not being examined under another procedure of international investigation or settlement’. Differently than the ECHR, the Optional Protocol to the ICCPR thus merely excludes communications which are currently pending before another international procedure and thus aims at preventing simultaneous examination.26 Consequently, the provision only creates a suspensive barrier to admissibility, which means that the HRC can either postpone its decision on admissibility or declare the communication provisionally inadmissible.27 Given that the Optional Protocol also does not provide for a time frame, within which a communication needs to be submitted, this creates competition between the procedure before the HRC and the ECtHR.28 20 See eg Peraldi v France (dec) App no 2096/05, 7 April 2009 (ECtHR). 21 Marc-André Eissen, ‘The European Convention on Human Rights and the United Nations Covenant on Civil and Political Rights: Problems of Coexistence’ (1972) 22 Buffalo Law Review 181, 197. 22 Art 35(1) ECHR. 23 See also Eissen 196f. 24 Ibid 198. 25 See Celniku v Greece App no 21449/04, 5 July 2007 (ECtHR) paras 39f; CoE, Practical Guide on Admissibility Criteria (2014) paras 142ff. 26 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) 875. 27 Ibid. 28 Markus G Schmidt, ‘The Complementarity of the Covenant and the European Convention on Human Rights: Recent Developments’ in David Harris and Sarah Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press 1995) 650. See also Walter Kälin, Genf oder Strassburg? Die Rechtsprechung

Protection in a pluralist legal order 11 Within the framework of the CoE, the coexistence of the two international procedures has led to debates resulting in a recommendation to member states to ratify the Optional Protocol with a reservation to ‘prevent competition between the ECtHR and the HRC and to avoid the HRC from exercising a function of a “super authority” ’.29 Consequently, a majority of the states parties to the ECHR have entered a reservation to the Optional Protocol excluding also complaints that have been examined under other procedures of international investigation or settlement.30 Confronted with these reservations, the HRC excluded all communications, the substance of which had already been examined by the EComHR or the ECtHR. This also included cases in which the complaint was declared inadmissible ‘for reasons that comprise a certain consideration of the merits of the case’, in particular for being manifestly ill-founded.31 Yet, in a more recent case, Achabal v Spain, the HRC changed this approach: The ECtHR had declared a complaint concerning allegations of a lack of an effective investigation into claims of torture by Spanish authorities inadmissible, because it was regarded as manifestly ill-founded.32 Nevertheless, the HRC found that the examination did not include sufficient consideration of the merits to be considered ‘examined’, declared the communication admissible and subsequently found a violation of the ICCPR.33 According to Gerards, the impact of the HRC’s view in Achabal v Spain for member states of the ECHR, which have entered a reservation, is considerable.34 Thus, the HRC reversed its standing case law, based on which also a limited consideration on the merits was sufficient to preclude the Committee from examining a communication, and instead specified certain requirements ‘as to the quality or extensiveness of the judicial reasoning in an ECtHR decision’.35 Two members of the HRC have however highlighted that the particular circumstances of

des UNO-Menschenrechtsausschusses und des Europäischen Gerichtshofes für Menschenrechte im Vergleich (Study of the Swiss Centre of Expertise in Human Rights, 2012) 44. 29 Janneke Gerards, ‘Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of Reasoning’ (2014) 14 HRLRev 148, 151. See also Nowak, CCPR Commentary 881. For an overview of the debates see Eissen 184ff. 30 See the reservations made by Austria, Denmark, France, Germany, Ireland, Italy, Luxemburg, Malta, Norway, Poland, Moldova, Romania, the Russian Federation, Slovenia, Spain, Sweden and Turkey, UN Treaty Collection, ‘Optional Protocol to the International Covenant on Civil and Political Rights’ accessed 1 May 2019. 31 Nowak, CCPR Commentary 883f. See also Catherine Phuong, ‘The Relationship Between the European Court of Human Rights and the Human Rights Committee: Has the “Same Matter” Already Been “Examined”?’ (2007) 7 HRLRev 385, 392. 32 See María Cruz Achabal Puertas v Spain UN Doc CCPR/C/107/D/1945/2010, 18 June 2013 (HRC) para 2.14. The decision has been taken by a Committee of three judges and has not been published, see Gerards, ‘Inadmissibility Decisions’ 152. 33 María Cruz Achabal Puertas v Spain paras 7.1ff; for further details see Gerards, ‘Inadmissibility Decisions’. 34 Gerards, ‘Inadmissibility Decisions’ 151. 35 Ibid 151f. See also María Cruz Achabal Puertas v Spain Individual opinion of six Committee members (dissenting).

12  Protection in a pluralist legal order the case needed to be taken into account and that the Committee ‘would only deviate from its general respect for reservations such as made by Spain and a substantial number of other European countries and Uganda in exceptional circumstances’, like those presented by Achabal v Spain.36 Nevertheless, this opens up the possibility of conflicting decisions of the HRC and the ECtHR also for states, which have made a reservation. Such possibility is however not new, because the limitations in Article 5(2a) of the Optional Protocol as well as 35(2b) ECHR do not apply to cases in which two different applicants cited the same facts or in which the same applicant complains of two similar, but not identical matters. Thus, as was stated before, in international human rights law, one can witness pluralism in action, given that international human rights bodies, and thus also the HRC and the ECtHR, apply and interpret multi-sourced equivalent norms emanating from different treaties. Consequently, also when the consideration of the same matter, ie a case brought by the same applicant based on the same facts and alleging a violation of the same right, would strictly be avoided by these bodies, the mere coexistence of the two mechanisms bears a significant potential for divergent interpretation and application of international human rights norms.37 When discussing this issue, it is first important to remember that this book is based on a pluralist perspective on international law, which welcomes plurality. At the same time, it should be highlighted that the principle of systemic integration, enshrined in Article 31(3c) of the Vienna Convention on the Law of Treaties (VCLT), ‘encourages international human rights courts and other treaty-­monitoring bodies to consider other applicable treaty obligations when interpreting their own treaties, with a view to minimizing the occurrence of conflicting legal standards’.38 This presumes a degree of normative connectivity across human rights treaties and recognises thus that the human rights protection offered by the HRC and the ECtHR do not represent self-contained regimes, but are part of a unified system of human rights norms.39 Based on such reasoning, it seems necessary and legitimate to promote the coherence of this system of human rights norms by harmonising the jurisprudence of various international human rights bodies without imposing uniformity.40 Nevertheless, human rights bodies might decide to adopt conflicting

36 María Cruz Achabal Puertas v Spain Individual opinion of Committee members Mr Cornelis Flinterman and Mr Fabian Salvioli. 37 See eg Opsahl, ‘Coexistence’ 177. 38 Shany, ‘Fragmentation’ 6. See also Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(C) of the Vienna Convention’ (2005) 54 ICLQ 279. 39 Shany, ‘Fragmentation’ 7. 40 See for an overview of arguments brought forward in favour and against such harmonisation Chloe Cheeseman, ‘Harmonising the Jurisprudence of Regional and International Human Rights Bodies: A Literature Review’ in Carla M Buckley, Alice Donald and Philip Leach (eds), Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems (Brill Nijhoff 2016) 619ff.

Protection in a pluralist legal order 13 interpretations and applications of certain human rights norms at times. As has been highlighted by Shany, a current member of the HRC, inconsistent decisions adopted by human rights bodies (may) reflect a conscious attempt on their part to break new grounds and to dissociate themselves from approaches taken by other human rights bodies, which they deem to be too conservative or too progressive in nature.41 As an example, Shany mentions two views adopted by the HRC in the context of the right to manifest religious beliefs, which ‘appear to represent a conscious choice for according more limited deference to States than the ECHR with regard to policies directed at maintaining a secular public space’.42 It must be acknowledged that the interpretation and application of international human rights norms is a continuous process, which has no choice but to adapt to new social circumstances and evolve with time. While divergence (or fragmentation) can be part of such a process, it should by no means be seen as a sign for the failure of a coherent international system of human rights protection. Rather, it makes it interesting to take a closer look at how such evolution takes place, which is why more detailed research of the two bodies’ case law in this area appears warranted.

3. Divergence and religious freedom In recent years, several scholars have taken on the task to research divergence within international human rights law, although this topic is still rather sidelined from the debates related to divergence and fragmentation. While some analyses aim at showing tendencies of divergence within the UN human rights system, others study divergence between the international and the regional level or among regional human rights bodies.43 Moreover, some studies focus on showing general tendencies,44 but most concentrate on the interpretation and application of a specific human right.45 Yet, when comparing the studies undertaken in the area of divergence and coherence within international human rights law, a lacuna emerged: Although conflicting decisions of the HRC and the ECtHR in

41 Shany, ‘Fragmentation’ 10. 42 Ibid, referring to Shingara Mann Singh v France UN Doc CCPR/C/108/D/1928/2010, 19 July 2013 (HRC) and Hudoyberganova v Uzbekistan UN Doc CCPR/C/82/D/931/2000, 5 November 2004 (HRC). 43 See eg Carla M Buckley, Alice Donald and Philip Leach (eds), Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems (Brill Nijhoff 2016); Madgalena Forowicz, The Reception of International Law in the European Court of Human Rights (OUP 2010); Laurence R Helfer and Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 YLJ 273. 44 See eg Shany, ‘Fragmentation’; Stender. 45 See eg the contributions in Marjan Ajevski (ed), Fragmentation in International Human Rights Law: Beyond Conflict of Laws (Routledge 2015); Buckley, Donald and Leach.

14  Protection in a pluralist legal order the area of religious freedom are mentioned in general works on the topic,46 so far no detailed, thematic study of the case law of the two bodies with regard to the right to freedom of religion and belief has been undertaken. Taking a closer look at the decisions mentioned in the relevant scholarship, it is interesting to notice that they predominantly concern issues surrounding the religious beliefs of applicants, which can be defined as so-called new minorities formed by recent migration movements.47 For example, the ‘Saga Singh’, as it has been named by some scholars,48 concerns the question whether French authorities can compel men adhering to Sikhism to appear bareheaded on official photographs, ie without the turban they are required to wear based on their religious beliefs.49 As will be shown below, it is everything but clear which rights should be granted to members of new minorities formed by recent migration movements, in particular with regard to their religious beliefs, which is a very controversial topic today.50 It is therefore not surprising that, similar as on the national level, incoherent approaches can be observed among international human rights bodies. This makes it however all the more compelling to inquire how these contradicting decisions can be explained and whether they form part of a bigger divergence in the area of new minorities’ religious freedom. First, it is however warranted to take a closer look at the concept of new minorities.

II. New minorities and religious freedom: conceptual issues Given that this book deals with the HRC’s and the ECtHR’s interpretation and application of the right to freedom of religion and belief in the context of new minorities, it is crucial to explain what is meant by the term ‘new minority’ and why their religious freedom is of particular importance. At the outset, it should be noted that the concept of ‘new minority’ is not very well known, at least outside the field of minority protection. Instead, for instance the terms ‘immigrants’ and ‘people with migration background’51 are used to designate groups which have formed in certain states due to recent migration movements.52 46 See Brems and others; Bribosia, Caceres and Rorive; Shany, ‘Fragmentation’ 10; Tulkens and Van Drooghenbroeck. 47 See also McGoldrick, ‘Margin of Appreciation’ 46ff. 48 Bribosia, Caceres and Rorive. 49 Mann Singh v France (dec); Ranjit Singh v France. 50 See eg Dilek Kurban, ‘Substantive Challenges to the Protection of Religious Freedom Under the Framework Convention’ in Annelies Verstichel and others (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Intersentia 2008) 125f. 51 This term is inspired by the German phrase ‘Bevölkerung mit Migrationshintergrund’, commonly used by German speaking authorities, eg by the Swiss Federal Statistics Office accessed 1 May 2019. 52 See eg Jean-Yves Carlier, ‘Populations Immigrées, Multiculturalisme et Droits de l’Homme’ in Institut International des Droits de l’Homme (ed), Migrations de Populations et Droits de l’Homme

Protection in a pluralist legal order 15 The difference between the distinctive terminologies is arguably mostly one of perspective: The notions ‘immigrant’ and ‘people with migration background’ are closely associated with the migration process and thus the idea of moving from one country to another. Yet, many of the people referred to as immigrants have not undergone such a moving process, but were born in the country they currently reside in.53 In contrast, the term ‘new minority’ expresses a recognition of groups formed by recent migration movements that have become a permanent part of the population. Moreover, the use of this term links the issues confronted by members of these groups to the existing international minority protection framework, which was developed based on the recognition that ‘particularly vulnerable categories of people (such as ethnic, religious, linguistic, cultural or national minorities) may need to be singled out for protection by the international community’.54 The international framework established for the protection of minorities is distributed among several institutions and instruments. Some of these were established for the protection of the rights of all human beings, thus including also members of minorities. Others were adopted solely for the protection of minorities and therefore are only applicable to those.55 It is in this context that the question arose whether groups emerging from recent migration should be defined as ‘minorities’, respectively ‘new minorities’, and thus benefit from specific protection. These discussions are of particular relevance to the following elaborations, which seek to define the term ‘new minority’. It should however be noted that the following section does not focus on outlining the scope of application of minority specific instruments or provisions, but rather aims to develop a definition of new minorities adapted to the present research, which is focused on the protection of these groups by general human rights law. This definition is developed in several steps: First, the state of the art with regard to a legal definition of the terms ‘minority’ and ‘new minority’ is presented, whereby the focus lies on the two international frameworks most relevant to the present research, namely the UN and the CoE. In a second step, given the focus on the right to freedom of religion and belief, it is necessary to dedicate some attention to the relationship between the concepts ‘new minority’ and ‘religious minority’. Third, based on these elaborations, the term ‘new minority’ is clearly defined and distinguished from other concepts, with whom it could potentially be confused. (Bruylant 2011); Ruth Rubio-Marín, ‘Integration in Immigrant Europe: Human Rights at a Crossroads’ in Ruth Rubio-Marín (ed), Human Rights and Immigration (OUP 2014). 53 See also Roberta Medda-Windischer, Old and New Minorities – Reconciling Diversity and Cohesion: A Human Rights Model for Minority Integration (Nomos 2009) 50f. 54 Hurst Hannum, ‘The Concept and Definition of Minorities’ in Marc Weller (ed), Universal Minority Rights (OUP 2007) 50. 55 This includes eg the FCNM or the UN Minority Rights Declaration, but also Art 27 ICCPR. See for a conclusive study of instruments and institutions protecting minorities’ rights Kristin Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination (Martinus Nijhoff 2000).

16  Protection in a pluralist legal order

1. Legal definitions of the concepts ‘minority’ and ‘new minority’ The most widely accepted,56 yet not uncontested definition of the concept of ‘minority’ stems from a study of Capotorti, a Special Rapporteur of the UN SubCommission on the Prevention of Discrimination and the Protection of Minorities. He defines a minority as a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.57 According to Capotorti, a minority had to consist of citizens of the state in question. This requirement epitomises the two positions taken in the discussion on the question of whether groups that are present on the territory of a state for a shorter amount of time and/or are not citizens of this state can be defined as minorities.58 Mostly, the discussion has been led by contrasting ‘old’ and ‘new’ minorities, as summarised in the following. Soon after Capotorti’s study was published, it was highlighted in the UN framework that ‘the restriction of minority status to nationals of the State is less easy to justify in relation to refugees, resident stateless persons and guest-workers’.59 Furthermore, it was argued that ‘both the travaux préparatoires and a systematic interpretation of the Political Covenant, which uses the term “citizens” only in Article 25, clearly indicate that Article 27 also applies to aliens’.60 Other ­scholars 56 Henrard, System of Minority Protection 22; Patrick Thornberry, International Law and the Rights of Minorities (OUP 1991) 6. 57 Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (UN Doc E/CN4/Sub2/384, 1977) 96. Due to the scope of Capotorti’s study, the definition is explicitly limited to the minorities covered by Art 27 ICCPR, that is ethnic, religious and linguistic minorities. 58 The requirement of citizenship can also exclude ‘minorities who are stateless, as many members of the Roma community, or have become stateless as a consequence of state succession or state restoration, as the members of the Russian speaking minorities in the Baltic states’, see Medda-Windischer 47. 59 Geoff Gilbert, ‘The Legal Protection Accorded to Minority Groups in Europe’ (1992) XXIII NYIL 67, 72. See also Malcolm N Shaw, ‘The Definition of Minorities in International Law’ in Yoram Dinstein and Mala Tabory (eds), The Protection of Minorities and Human Rights (Martinus Nijhoff 1992) 26. 60 Manfred Nowak, ‘The Evolution of Minority Rights in International Law, Comments’ in Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds), Peoples and Minorities in International Law (Martinus Nijhoff 1993) 116. See also Christian Tomuschat, ‘Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights’ in Rudolf Bernhardt and others (eds), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler (Springer 1983) 960f; Rüdiger Wolfrum, ‘The Emergence of “New Minorities” as a Result of Migration’ in Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds), Peoples and Minorities in International Law (Martinus Nijhoff 1993) 161f; a different interpretation was put forward by Thornberry, Minorities 171f.

Protection in a pluralist legal order 17 underscored that ‘problems concerning minorities have become increasingly complex as the migration flows which took place after World War II have resulted in significant changes in the demographic composition of states’.61 Thus, they argued that groups, which developed as a result of these recent migration movements, should be defined as so-called new minorities, if they wanted to preserve their separate identity.62 Interestingly, Deschênes, the author of a second study regarding the definition of the term ‘minority’ also concluded under the auspices of the UN Sub­Commission on the Prevention of Discrimination and the Protection of Minorities, listed ‘the migrant workers of the twentieth century’ such as ‘Pakistanis in the United Kingdom, Mexicans in the United States, Algerians in France, Turks and Yugoslavs in Germany and Greek and Maltese in Australia’, as a category of minorities.63 Further, also Capotorti showed in his study that he was aware ‘of the problems encountered nowadays as a result of phenomena such as the migration of workers and the establishment of sometimes quite substantial groups of foreign workers in certain industrialized countries’,64 but saw these problems sufficiently addressed by the protection of foreigners under customary international law.65 The HRC in its General Comment on Article 27 ICCPR, adopted in 1994, did however not follow Capotorti’s approach and stated the following: The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party. In this regard, the obligations deriving from article 2(1) are also relevant, since a State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under article 25. A State party may not, therefore, restrict the rights under article 27 to its citizens alone.66

61 Wolfrum 153. 62 See eg Manfred Nowak, UNO-Pakt über bürgerliche und politische Rechte und Fakultativprotokoll: CCPR-Kommentar (Engel 1989) 523f; John Packer, ‘On the Definition of Minorities’ in John Packer and Kristian Myntti (eds), The Protection of Ethnic and Linguistic Minorities in Europe (Åbo Akademi University 1993); Wolfrum. 63 Jules Deschênes, Proposal Concerning a Definition of the Term “Minority” (UN Doc E/ CN4/Sub2/1985/31, 1985) para 7. See also Wolfrum 155. Yet, Deschênes at the same time excluded resident aliens from the definition, which seems somewhat contradicting, considering that many migrant workers may not obtain citizenship from the state they reside in. 64 Capotorti 12. 65 Ibid. See also Diana Elles, International Provisions Protecting the Human Rights of NonCitizens (UN Doc E/CN4/Sub2/392/Rev1, 1980); Gilbert, ‘Legal Protection’ 72. Today this would also include the UN Migrant Workers Convention. 66 HRC, General Comment 23, Article 27 (UN Doc CCPR/C/21/Rev1/Add5, 1994) para 5.1 (emphasis added). See already HRC, General Comment 15: The Position of Aliens under the Covenant (UN Doc HRI/GEN/1/Rev1 at 18 (1994), 1986) para 7.

18  Protection in a pluralist legal order The HRC then went on to specify that Article 27 confers rights on persons belonging to minorities which ‘exist’ in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term ‘exist’ connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practice their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights.67 Some scholars have criticised the HRC’s extensive definition of the concept of ‘minority’, in particular since it is seen as contradicting prior UN documents on the issue68 and jeopardising Article 27 ICCPR’s ‘credibility as the expression of an international minimum standard’.69 The ECtHR did not develop a definition of the concept of ‘national minority’. When confronted with the issue, the ECtHR stated that the definition of the term minority, ‘by the nature of things, (must) be left largely to the State concerned, as it will depend on particular national circumstances’.70 Yet, it has been argued that ‘nothing stands in the way of an extensive interpretation of the concept of national minority’ under the ECHR, which excludes restrictive amendments such as citizenship.71 Indeed it seems that, although not explicitly stating so, the ECtHR uses the term ‘minority’ in a rather inclusive manner.72 In the process of adoption of the Framework Convention for the Protection of National Minorities (FCNM), the CoE Parliamentary Assembly (PACE) adopted the following definition: The expression ‘national minority’ refers to a group of persons in a state who: (a) reside on the territory of that state and are citizens thereof; (b) maintain longstanding, firm and lasting ties with that state; 67 HRC, GC 23 para 5.2 (emphasis added). 68 See in particular UN Secretary-General, Annotations on the Text of the Draft of the International Covenants on Human Rights (UN Doc A/2929, 1955) para 184, which specifies that the term ‘minorities’ should cover only groups that are ‘well-defined and long-established on the territory of a State’. 69 Gaetano Pentassuglia, Defining “Minority” in International Law: A Critical Appraisal (Lapland’s UP 2000) 30. See also Hannum 60f. 70 Gorzelik and Others v Poland [GC] ECHR 2004-I 219 (ECtHR) para 67. See also Kristin Henrard, ‘A Patchwork of “Successful” and “Missed” Synergies in the Jurisprudence of the ECHR’ in Kristin Henrard and Robert Dunbar (eds), Synergies in Minority Protection: European and International Law Perspectives (CUP 2008) 335. 71 Christian Hillgruber and Matthias Jestaedt, The European Convention on Human Rights and the Protection of National Minorities (Wissenschaft und Politik 1994) 88. 72 See Venice Commission, Report on Non-Citizens and Minority Rights (CDL-AD(2007)001, 2007) para 18.

Protection in a pluralist legal order 19 (c) display distinctive ethnic, cultural, religious or linguistic characteristics; (d) are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state; (e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.73 Although the PACE has since restated this definition various times,74 it was not included in the legally binding FCNM adopted in 1995. In fact, due to manifold controversies between the CoE member states, no definition of the term was included, neither in the Convention nor in its explanatory report, but it was decided to adopt a so-called pragmatic approach, which entailed that personal scope-related issues should be dealt with on a case-by-case basis.75 Yet, this did not prevent conflicts between state parties to the FCNM and its supervisory organ, the Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC), since, as a consequence of the lack of definition, states have been putting forward, implicitly or explicitly, their own definition of the scope of application of the FNCM, either at the moment of ratification76 or at the reporting stage.77 Confronted with a variety of state approaches, the ACFC admitted that states parties had some discretion in defining the scope of application of the FCNM ‘in order to take the specific circumstances prevailing in their country into account’.78 It however pointed out that such discretion was not unlimited, but had to be ‘exercised in accordance with general principles of international law and the fundamental principles set out in Article 3 (FCNM)’ and avoid ‘arbitrary or unjustified distinctions’.79 In a recently published thematic commentary, the ACFC underlined that the FCNM must be ‘conceived as a living instrument whose interpretation must evolve and be adjusted regularly to new societal challenges’.80 In practice, too restrictive definitions of minorities put forward by states are not seen as compatible with the FCNM.81 If this is the case, the ACFC 73 PACE, Recommendation 1201 (1993) on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights Art 1 (emphasis added). 74 See for a recent example PACE, The Situation and Rights of National Minorities in Europe (Resolution 1985 (2014)) para 3. The contradicting approach of the PACE has been highlighted in Venice Commission, Report Non-Citizens para 71. 75 CoE, Framework Convention for the Protection of National Minorities and Explanatory Report (H(95)10, 1995) para 12. 76 See CoE Treaty Office, ‘Reservations and Declarations for Treaty No 157: FCNM’ accessed 1 May 2019. 77 Asbjørn Eide, ‘The Rights of “New” Minorities: Scope and Restrictions’ in Kristin Henrard (ed), Double Standards Pertaining to Minority Protection (Martinus Nijhoff 2010) 174. 78 See eg ACFC, First Opinion on Estonia (ACFC/INF/OP/I(2002)5, 2002) para 15. 79 Ibid para 15. 80 ACFC, Thematic Commentary No 4: The Scope of Application of the Framework Convention for the Protection of National Minorities (ACFC/56DOC(2016)001, 2016) para 5. 81 See eg ACFC, First Opinion on Denmark (ACFC/INF/OP/I(2001)005, 2000).

20  Protection in a pluralist legal order does not feel bound by the definition in its activities, eg the examination of state reports or country-visits.82 The ACFC has continuously reminded states parties to be ‘inclusive and context specific and to consider on an article-by-article basis which rights should be made available to whom’.83 Thus, also groups formed by recent migration should benefit from certain guarantees of the FCNM.84 As a consequence, both in the realms of the UN and the CoE, citizenship or long-standing ties can be seen as not accepted as an exclusionary criteria for certain groups formed by recent migration movements anymore.85 In fact, it has been highlighted that the focus on old minorities is largely a legacy of the earlier approaches to minority questions. Today, the context has changed and an exclusive focus on these groups is no longer tenable.86 Following such reasoning, groups, which have emerged as a result of recent migration, are in the following referred to as ‘new minorities’ and not as ‘immigrants’ or ‘people with migrant background’.

2. New minorities as religious minorities? Relevant literature on the topic of new minorities mostly looks at them as minorities defined and grouped by their common ethnic origin, who need to be protected against discrimination and assimilation.87 This is surprising when considering that, as has been highlighted by Kurban, it is often the religious aspect that unites and distinguishes these new minority groups.88 For example, Europe’s largest group of new minorities, namely Muslims, is defined (and arguably defines itself ) by its religion, although consisting of multiple linguistic and ethnic identities.89 This religious identity, which unites different linguistic and ethnic immigrant groups, has historically been a determining factor in citizenship, integration and immigration policies in European states.90 Thus, it has been highlighted that in various, especially European countries, a shift from grouping

82  Doris Angst, ‘Artikel 3, Allgemeiner Teil’ in Rainer Hofmann and others (eds), Rahmenübereinkommen zum Schutz Nationaler Minderheiten (Nomos 2015) para 12. 83 ACFC, Thematic Commentary No 4 para 7. 84 See eg ACFC, First Opinion on Switzerland (ACFC/INF/OP/I(2003)007, 2003) para 24. 85 Annelies Verstichel, ‘Personal Scope of Application – An Open, Inclusive and Dynamic Approach: The FCNM as a Living Instrument’ in Annelies Verstichel, Bruno De Witte and Paul Lemmens (eds), The Framework-Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Intersentia 2008) 156f; for a more detailed analysis see Fabienne Bretscher, ‘Immigrants or New Religious Minorities? Conflicting European and International Perspectives’ in Kyriaki Topidi (ed), Normative Pluralism and Human Rights (Routledge 2018) 105ff. 86 Eide, ‘ “New” Minorities’ 168. See also Medda-Windischer. 87 See eg Medda-Windischer; Asbjørn Eide, ‘The Rights of “Old” Versus “New” Minorities’ (2002/3) 2 EYMI 365. 88 Kurban 125f. 89 Ibid. 90 Ibid; John Packer, ‘Confronting the Contemporary Challenges of Europe’s Minorities’ (2005) 16 Helsinki Monitor 227.

Protection in a pluralist legal order 21 immigrants according to their country of origin to distinguishing them according to their religious beliefs has occurred.91 The lack of attention dedicated to the religious aspect by legal scholarship might also be linked to the fact that, although the origins of international minority rights can be traced back to concerns involving religious minorities, they have been sidelined in today’s minority protection system.92 The few discussions which have been led on the concept of ‘religious minority’ mostly focused on the term ‘religion’, which is not defined by any of the relevant legal instruments.93 In particular, attention has been drawn to the boundaries between ‘religion’ and practices other than the established and universally recognised religions such as Christianity, Judaism, Islam, Hinduism, Sikhism and Buddhism.94 Thus, the inclusion of newly emerging religious and belief denominations in the concept of ‘religious minority’ is disputed. In order to avoid confusion, these new religious and belief denominations, which are not covered by this book, shall be referred to as ‘new religious movements’. New religious movements can be distinguished from new minorities, which formed due to recent migration movements and differ from the majority in terms of their religious beliefs, by means of the argument based on which their noninclusion in the concept of ‘minority’ is argued: Since new religious movements usually consist of nationals of the state in question, which have been present on the territory for a longer time, their exclusion is mostly argued based on the concept of ‘religion’ that is not seen as encompassing also newer denominations.95 Contrary to this, the beliefs that new minorities formed by recent migration adhere to usually form part of established and universally recognised religions such as Islam or Sikhism. Thus, their qualification as a religious group is not really questioned, but rather whether they meet the other elements of the minority definition, ie that the group is a numerical minority and shows, even if only implicitly, a desire to preserve its religious identity.

91 See for the Swiss context eg Patrik Ettinger and Kurt Imhof, Ethnisierung des Politischen und Problematisierung religiöser Differenz (2011) accessed 1 May 2019. 92  Heiner Bielefeldt, Nazila Ghanea and Michael Wiener, Freedom of Religion and Belief: An International Commentary (OUP 2016) 459; Nazila Ghanea, ‘Are Religious Minorities Really Minorities?’ (2012) 1 OJLR 57; Kristin Henrard, The Ambiguous Relationship Between Religious Minorities and Fundamental (Minority) Rights (Eleven 2011) 37ff. 93 See eg Arts 18 ICCPR or 9 ECHR. Carolyn Evans, Freedom of Religion Under the European Convention on Human Rights (OUP 2001) 51f and 59f; T Jeremy Gunn, ‘The Complexity of Religion and the Definition of ‘Religion’ in International Law’ (2003) 16 HHRJ 189, 189f; Natan Lerner, Religion, Beliefs, and International Human Rights (Orbis Books 2000) 3. 94 Philip Vuciri Ramaga, ‘The Bases of Minority Identity’ (1992) 14 HRQ 409, 411. See also Henrard, System of Minority Protection 51. 95 See eg Yoram Dinstein, ‘Freedom of Religion and the Protection of Religious Minorities’ in Yoram Dinstein and Mala Tabory (eds), The Protection of Minorities and Human Rights (Martinus Nijhoff 1992) 156.

22  Protection in a pluralist legal order

3. Distinguishing old and new minorities The distinction between old and new minorities is often put forward by states to exclude new minorities from the protection granted to old or traditional minorities.96 From the perspective of relevant international bodies as well as scholars such distinction has been used to show the fluidity of the concept of ‘minority’, which is also able to accommodate groups that have formed comparatively recently. Notwithstanding these differences, states, international bodies and scholars generally have groups formed in the context of recent migration movements in mind when speaking of new minorities, as the criteria used for the distinction of old and new minorities show, namely citizenship or long-standing ties.97 Often, it is also argued that the concept of ‘old minority’ should encompass groups which became minorities as a consequence of a re-drawing of international borders and their settlement area changing from the sovereignty of one country to another; or they are ethnic groups which, for various reasons, did not achieve statehood of their own and instead form part of a larger country or several countries.98 The term ‘new minority’ is generally adopted to refer to migrants, refugees and their descendants who are living ‘in another country than that of their origin’.99 Such criteria for distinction however encounter some difficulties in the context of minorities, which differ from the majority population in terms of their religious beliefs. Many often-emphasised differences between groups formed by recent migration and ‘old minorities’ are less pertinent or even not applicable in the context of religious minorities. The example of the Muslim minority in Bulgaria illustrates this well: Even though the Muslim minority in Bulgaria consists of ethnic Turks, which migrated to the territory during the Ottoman occupation that lasted for several centuries, and became a minority after Bulgarian independence, it also includes groups of Roma and other members of Bulgarian ­ethnicity.100 Muslims in Bulgaria are not territorially concentrated and do not strive for territorial or non-territorial forms of autonomy or secession, which is often seen as a feature of ‘old minorities’.101 Instead, they direct their demands towards improving their integration in the host communities and combatting discrimination, which is similar to the claims generally associated with ‘new

96 See above Chapter 1, section II(1). 97 See eg Eide, ‘ “New” Minorities’ 179ff; Kurban 120f; Medda-Windischer; Verstichel 135. 98 Medda-Windischer 40. See also Eide, ‘ “New” Minorities’ 168. 99 Medda-Windischer 41. 100 See for further details Antonina Zhelyazkova, ‘Bulgaria’ in Jocelyne Cesari (ed), The Oxford Handbook of European Islam (OUP 2014). 101 See Medda-Windischer 42.

Protection in a pluralist legal order 23 minorities’.102 Furthermore, the percentage of Muslims in Bulgaria has increased due to recently arrived immigrants and refugees.103 Based on the specificities of minorities, which differ from the majority population due to their religious beliefs, the following distinction between old and new minorities can be drawn: (1) Old (religious) minorities are defined as consisting of adherents of either universally recognised religions such as Christianity, Judaism, Islam, Hinduism, Sikhism and Buddhism or well-established and recognised denominations of such religions, having long-standing ties to the territory of the state in question. Examples include Protestants in Spain, Muslims in Bulgaria, Jews in Germany and Alevi in Turkey. (2) New (religious) minorities are defined as having emerged as a result of recent migration and being characterised by the comparatively short presence of their members on the territory of the state in question. They can consist of people who have themselves migrated to the state, but also of their descendants. The reason for their presence on the territory is not decisive, neither is the citizenship of the state in question. They differ from the majority population in terms of their religious beliefs, which form part of universally recognised religions. Examples include Sikhs in the United Kingdom, Muslims in France and Buddhists in Poland. As the examples show, the definition as a minority is inherently relative and always depends on the context, ie on the socio-demographic development of the group in the state in question.104 Generally, it should be stated that ‘the basic tenet of minority rights is the protection of the “others” by virtue of their otherness’.105 Thus, as was already established by the PCIJ, it does not depend on the recognition as a minority by the state, but is a question of fact.106 All religious minorities listed in the definition above share such ‘otherness’, which renders them similarly vulnerable, because they do not share the same religious beliefs as the ­majority.107 This is why the distinction of different kinds of religious minorities shall not be understood as an instrument to exclude certain groups from protection, but rather as a means to facilitate the analysis and to clarify the concept of ‘new minorities’, which differ from the rest of the population due to their religious beliefs.

102 See ibid. 103 See eg Zhelyazkova 569. 104 See eg Philip Vuciri Ramaga, ‘Relativity of the Minority Concept’ (1992) 14 HRQ 104. 105 Eg Kurban 121. See also Hannah Arendt, The Human Condition (2nd edn, Chicago Press 1995). 106 See already PCIJ, Advisory Opinion regarding Greco-Bulgarian ‘Communities’ PCIJ Reports, Series B No 17, 1930 22. 107 Kurban. See in general Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (CUP 2004).

24  Protection in a pluralist legal order

III. Current challenges in the protection of new minorities’ religious freedom Following these theoretical elaborations on the concept of ‘new minority’, the question comes up: Which practical challenges arise with regard to the protection of their religious freedom? In order to answer this question, this section will first take a closer look at challenges encountered by members of new minorities in today’s societies, highlighting the specific importance of religious freedom. In a second step, the effects of such challenges on the international framework protecting new minorities are highlighted.

1. Challenges encountered by new minorities Recent immigration movements have changed the fabric of many societies, which have become more culturally, ethnically, linguistically and not least also religiously diverse. Such new diversity is however not always welcomed and immigration is not only increasingly restricted, but members of new minorities are often confronted with hostile attitudes from the rest of the population.108 This holds particularly true for new minorities, which differ from the majority population in terms of their religious beliefs.109 Thus, a survey of the European Union (EU), published in 2017, has found that Muslims, which represent a new minority in most EU member states consisting of a diverse mix of nationalities, experience discrimination in a broad range of settings.110 This is not surprising given the rise of religious intolerance, which could be observed in recent years and also starts to reflect in the legal sphere. Examples are the prohibitions of the full-face veil (or burqa) approved in countries like France, Belgium and Austria and also in certain regions, for instance Québec in Canada and Ticino in Switzerland. Another example is the ban on the construction of minarets, which was introduced to the Swiss Constitution by popular vote in 2009. This ‘new religious intolerance’ seems to focus mostly on Muslim minorities.111 This is exemplified by a Resolution adopted by the PACE in 2010, entitled ‘Islam, Islamism and Islamophobia in Europe’, which was dedicated solely to Muslims, highlighting that ‘in many Council of Europe member states, Muslims feel socially excluded, stigmatised and discriminated against; they become victims of stereotypes, social marginalisation and political extremism’.112 Nevertheless,

108 See in general Ian Goldin, Geoffrey Cameron and Meera Balarajan, Exceptional People: How Migration Shaped Our World and Will Define Our Future (Princeton UP 2011) 173ff. 109 Kristin Henrard, ‘Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality’ (2012) 5 ELR 59, 69. 110 See EU Agency for Fundamental Rights, Second European Union Minorities and Discrimination Survey: Muslims – Selected Findings (2017). 111 See the examples mentioned by Martha C Nussbaum, The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age (Harvard UP 2012) 3ff. 112 PACE, Islam, Islamism and Islamophobia in Europe (Resolution 1743 (2010)) para 1.

Protection in a pluralist legal order 25 taking a broader look at the issues arising, it can be noticed that this intolerance for religious difference does not only affect Muslims, but various religious minorities, in particular those regarded to be ‘foreign’ to the country in question, ie groups regarded as ‘others’.113 As an example, the prohibition of the wearing of ostentatious religious symbols for students in French public schools can be mentioned.114 Although said law was adopted with the intention of dealing with the issue of Muslim headscarves in schools, Sikh students wearing a turban also were excluded from schools as a result.115 This is not surprising when considering that the motivations for such restrictions of religious freedom are often linked to, on the one hand, nationalistic ideals and fears for social cohesion based on increased homogeneity and, on the other hand, to an unease with the visibility of certain religious beliefs.116

2. New minorities and the international protection of their religious freedom The situation described in the last section, namely the combination of a rise in religious intolerance and a decreasing respect and appreciation of diversity in the context of recent immigration, has led to a new prominence of religious freedom in international human rights law.117 Thus, several members of new minorities have turned to the bodies responsible for the protection of human rights on the international level after national institutions refused to protect their right to freedom of religion and belief. These international bodies have been confronted with the question of which restrictions of new minorities’ religious practices could be reconciled with the right to freedom of religion as it is guaranteed in international human rights conventions. In this regard, international human rights law had the opportunity of setting limits to state responses related to challenges of diversity and cohesion,118 given that it applies universally and thus, at least in principle, also protects members of new minorities. The ECtHR and the HRC are the only bodies under the auspices of the CoE and the UN that can receive individual complaints from all members of new

113 Benhabib. 114 Law no 2004–228 of 15 March 2004 regulating, in accordance with the principle of secularism, the wearing of signs or dress manifesting a religous affiliation in State schools. 115 See eg Ranjit Singh v France (dec) App no 27561/08, 30 June 2009 (ECtHR). 116 See eg Pamela Slotte, ‘International Law and Freedom of Religion and Belief: Origins, Presuppositions and Structure of the Protection Framework’ in Silvio Ferrari (ed), Routledge Handbook of Law and Religion (Routledge 2015) 104. 117 Ibid 104ff. 118 See also Merja Pentikäinen, ‘Social Integration of “Old” and “New” Minorities in Europe in Views of International Expert Bodies Relying on Human Rights: Contextual Balancing and Tailoring’ (2015) 14 Journal on Ethnopolitics and Minority Issues in Europe 26; Rubio-Marín 78f; Eduardo J Ruiz Vieytez, ‘Religious Diversity: Accomodation for Social Cohesion. Gaps in the Legal Protection of Religious Diversity: Generic Versus Specific Protection Instruments’ (2011) 8 Yearbook on Humanitarian Action and Human Rights 13.

26  Protection in a pluralist legal order minorities alleging a violation of their freedom of religion.119 They are thus unique in the sense that they allow members of new minorities to challenge the state they live in directly and to receive an authoritative decision on whether their right to freedom of religion and belief was violated. The rapidly expanding body of international case law, which has developed in this context, has been labelled the fourth movement of minority protection, which ‘speaks to the capacity of jurisprudential assessments to address minority claims within the human rights canon’.120 The force and significance of international jurisprudence has been put into words by de Zayas, the former Secretary and Chief of Petitions of the HRC, in such eloquent manner that it warrants to be quoted in full here: Case-law is a form of ‘hard law’, admittedly not as ‘hard’ as the normative rule itself (the article of the treaty) because case-law frequently applies norms liberally, and the interpretation of a norm may vary from judge to judge, from expert committee to expert committee. But precisely this flexibility and potential for development makes case-law so attractive. Whereas a treaty norm can be changed only by amendment pursuant to cumbersome treaty procedures (eg Article 51 of the ICCPR), case-law can be distinguished or even overruled by a later decision of the same committee. While treaty norms sometimes appear static, case-law is dynamic and has the unique function of concretizing the treaty norm by giving it a human face, by applying it to a real flesh-and-blood victim, and by making specific recommendations with respect to a remedy. Case-law is not dead letter but living law. For the victim whose suffering is remedied – (. . .) this is justice in action. Moreover, precedent creates new law that complements and explains the original norm, providing specific guidance to public officials and lawyers, illustrating what action should be taken in similar factual situations. A case that is satisfactorily solved means hope for all future victims who can invoke the norm with the expectation that it will be similarly applied or even further developed.121 Beside the importance of international case law, this statement also shows the power and discretion of the bodies, which interpret international human rights 119 It should be noted that also other instruments, such as the CRC or the ICERD, include relevant guarantees, but either the range of individuals who can file a complaint is limited or the complaint cannot be simply based on the right to freedom of religion, but needs to eg also allege a discrimination. 120 Gaetano Pentassuglia, Minority Groups and Judicial Discourse in International Law: A Comparative Perspective (Martinus Nijhoff 2009) 11. 121 Alfred De Zayas, ‘Petitions Before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure’ in Gudmundur Alfredsson and others (eds), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th Möller (2nd revised edn, Martinus Nijhoff 2009) 37f.

Protection in a pluralist legal order 27 norms, given that ‘fundamental rights are just as much determined by the interpretation of the standards as by the standards themselves’.122 As has been highlighted by Rubio-Marín, being subject to negotiation and interpretation, human rights norms are simply not free of the influence of what Iris Young defined as domination through the universalization of a dominant group’s experience and culture, meaning the establishment of norms through which dominant groups project their own experience as representative of humanity as such.123 Based on this assessment, the interpretation and application of international human rights norms in specific situations is of crucial importance, leaving the bodies responsible for this interpretation and application with a significant discretion and influence. Therefore, it appears necessary to take a closer look at the practice of these bodies. In order to do so, an empirical research of two international human rights bodies’ case law was conducted. The relevant methodology will be presented in the next section.

IV. Empirical research of the HRC’s and the ECtHR’s case law In order to get the full picture of the case law of the ECtHR and the HRC on new minorities’ right to freedom of religion and belief, an empirical analysis of the individual complaints procedure of the two bodies is taken as a starting point. Empirical research ‘involves the systematic collection of information (“data”) and its analysis according to some generally accepted methods’.124 The designed empirical research serves as a tool to identify relevant decisions or views and potential factors, which can explain the divergent decisions of the HRC and the ECtHR regarding new minorities’ right to freedom of religion and belief. The empirical research of the relevant practice strives to ensure the inclusion of all relevant case law and thus allows for a holistic and comprehensive interpretation of the approaches taken by the HRC and the ECtHR, adding to previous research, which is often based on a selection of cases.125 This empirical research allows for verification of assumptions about the case law of the two bodies and fills an

122 Kristin Henrard, ‘Minorities’ in Anthony Carty (ed), Oxford Bibliographies in International Law (OUP 2012) Introduction. 123 Rubio-Marín 79, referring to Iris Marion Young, Justice and the Politics of Difference (Princeton UP 1990) 59. For a similar point see Kristin Henrard, ‘Tracing Visions on Integration and/of Minorities: An Analysis of the Supervisory Practice of the FCNM’ (2011) 13 ICLR 333, 345. 124 Peter Cane and Herbert M Kritzer, ‘Introduction’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal Research (2nd edn, OUP 2012) 4. 125 See eg Henrard, ‘Consensus’ 398.

28  Protection in a pluralist legal order important gap in empirical research in the area of international human rights law, in particular in the interpretation and application of specific guarantees.126

1. Data collection The data used for conducting the empirical research were collected using the jurisprudence database for ECtHR case law () as well as the one for the HRC (). To collect the decisions and judgments of the ECtHR, the search function was operated in the following manner: (1) selection of all judgments and decisions (this includes all formations of the ECtHR according to Article 26 ECHR as well as the former EComHR); (2) selection of documents in the languages French and English (as these are the official languages, in either of which all decisions and judgments are drafted);127 and (3) selection of complaints based on Article 9, 9(1) and 9(2) ECHR (this is based on the submissions of the applicants and does not necessarily correspond to the provision in terms of which the ECtHR chose to examine the complaint). This search yielded 1450 results as of the 31 December 2018, which is the end date of the data collection. Subsequently, a range of restriction was applied to the cases: First, the cases were limited in accordance with the above-specified definition of new minorities128 to complaints brought forward by persons belonging to such group. Second, complaints that appeared as a result of the search because the claimant had cited Article 9 ECHR, but in fact did not raise any questions under this guarantee, were excluded. Sometimes the claim under Article 9 ECHR was also not treated in detail by the ECtHR because the same issue had already been dealt with under another article, eg Article 2 of the First Additional Protocol (right to education)129 or Article 14 ECHR (non-discrimination).130 In these cases, the ECtHR usually states that there is no separate issue arising under Article 9 ECHR. As there would in fact be an issue under Article 9 ECHR, such cases were included in the data collection. Third, complaints declared inadmissible based on Article 35 ECHR were in general excluded from the collection, this included those based on 126 See however Silvio Ferrari, ‘The Strasbourg Court and Article 9 of the European Convention of Human Rights: A Quantitative Analysis of the Case Law’ in Jeroen Temperman (ed), The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom (Martinus Nijhoff 2012); Fabienne Bretscher, ‘Religious Freedom of Members of Old and New Minorities: A Double Comparison’ (2017) 3 ELR 151. 127 See Rule 34 of the Rules of the ECtHR. 128 See above Chapter 1, section II(3). 129 See eg Hasan and Eylem Zengin v Turkey App no 1448/04, 9 October 2007 (ECtHR). 130 See eg Thlimmenos v Greece [GC] ECHR 2000-IV 263 (ECtHR).

Protection in a pluralist legal order 29 non-exhaustion of domestic remedies, exceeding of the time limit for complaint or incompatibility ratione personae. Yet, a first overview of the results showed that a surprising amount of complaints were not examined on the merits as they were declared manifestly ill-founded.131 This was the case also for many complaints which, according to the perception of the author, did not necessarily lack any foundation.132 The decision whether a complaint is manifestly ill-founded thus often involves, at least to some extent, a decision on the merits of the case. This is exemplified by the fact that in many of these decisions, the ECtHR nevertheless elaborated on the justification of the interference with the right to freedom of religion and belief, which appears crucial given the focus on the reasoning of international human rights bodies.133 Furthermore, many commentators have pointed out that the ECtHR for a long time had the tendency to declare complaints based on the right to freedom of religion and belief inadmissible because they were manifestly ill-founded.134 Consequently, although the rest of the complaints found inadmissible were excluded, the complaints whose admissibility was denied based on being manifestly ill-founded were included in the collection of data.135 Lastly, complaints alleging a violation of Article 9 ECHR in the context of an expulsion order to another country (refoulement) were not included in the collection. The application of these restrictions to the ECtHR case law led to a final sample of 33 cases.136 The same approach was adopted for the case law of the HRC, collected via the UN jurisprudence database (). The search of the jurisprudence of the HRC based on Article 18, 18(1), 18(2), 18(3) and 18(4) ICCPR yielded 71 results as of 31 December 2018, which were then as well limited according to the above-specified criteria to a final sample of seven cases for the HRC.137 Compared to the 33 complaints brought to the ECtHR, this number seems rather small. In this context, it should be noted that among the various UN human rights bodies, the HRC has dealt with individual complaints for the longest and its case law is the most comprehensive and developed.138 Moreover, there is no special UN human rights treaty on the freedom

131 Art 35(3a) ECHR. 132 See eg Dahlab v Switzerland (dec) ECHR 2001-V 447 (ECtHR); Kose and 93 Others v Turkey ECHR 2006-II 339 (ECtHR). 133 See again Dahlab v Switzerland (dec); Kose and 93 Others v Turkey. 134 See eg Henrard, ‘Consensus’ 415. 135 An important caveat needs to be added to this statement: Not all inadmissibility decisions are published via the hudoc database; the conducted empirical analysis is thus limited to the published decisions. 136 See the list of included cases in the Appendix. 137 See the list of the included cases in the Appendix. Also here an important caveat needs to be added: Not all views adopted by the HRC are published in the UN jurisprudence database and sometimes; views are included only several months after their adoption in the database. 138 Nigel S Rodley, ‘UN Treaty Bodies and the Human Rights Council’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP 2012) 634.

30  Protection in a pluralist legal order of religion or on the rights of minorities.139 The HRC is thus the only UN treaty body dealing with the right to freedom of religion and belief of new minorities.140 Despite the difference in numbers between the two bodies’ practice, this empirical research can lead to indicative results as the seven cases represent all the individual complaints, which are relevant to the topic of this book. Consequently, based on these seven cases general conclusions can be drawn regarding the approach towards new minorities’ right to freedom of religion and belief, in particular when combined with an analysis of the rest of the HRC’s practice in this area, eg Concluding Observations on state reports.

2. Data coding and analysis The final sample of 40 cases from both bodies was then coded with regard to:  (1) the decision taken, ie violation, no violation, inadmissible;  (2) the body which had taken the decision, ie the ECtHR, respectively the EComHR, or the HRC, and its formation;  (3) the religious belief and sex of the applicant(s);  (4) the date of the decision;  (5) the respondent state;  (6) the proportion of votes, ie unanimous or majority, and separate opinions;  (7) the aspect of the right to freedom of religion and belief;  (8) the context of the case;  (9) the type of obligation in question, ie a positive or negative state obligation; (10) the legitimate aim pursued by the restriction; and (11) the legal basis of the restriction. The data collected by means of empirical legal research were first analysed based on a quantitative approach, which is generally defined as the ‘analysis of a situation or event (. . .) by means of complex mathematical and statistical modelling’.141 For the present research, methods of quantitative analysis were used to get a first impression of the approaches taken by the ECtHR and the HRC to new minorities’ complaints alleging a violation of their freedom of religion. Only simple

139 See however UNGA, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN Doc A/RES/36/55, 25 November 1981); UNGA, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Doc A/RES/47/135, 18 December 1992); UNGA, Declaration on the Rights of Indigenous Peoples (UN Doc A/RES/61/295, 2 October 2007). 140 It should be noted that the ICERD and the CRC contain certain relevant guarantees but are not of such universal scope as the ICCPR. 141 Oxford English Dictionary, ‘Quantitative Analysis’ accessed 1 May 2019. For a more detailed account of quantitative data analysis see Lee Epstein and Andrew D Martin, ‘Quantitative Approaches to Empirical Legal Research’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal Research (2nd edn, OUP 2012) 912ff.

Protection in a pluralist legal order 31 measures of central tendency (ie percentages and medians) were used to calculate for instance the percentages of violations of the right to freedom of religion and belief found regarding new minorities. Furthermore, considering that the aim of this book is to present potential explanations for the differences between the ECtHR and the HRC, the quantitative analysis of the collected data was also used to find potential causal interferences of certain of the coded characteristics. For this purpose, beside measures of central tendency, the so-called matching method was used, which is based on the idea of matching the most-similar cases and subsequently working out differences between the matched observations.142 Nevertheless, this research is aware that law cannot be explained based solely on mathematical rules, but it is a social construct operating in a complex environment. In literature, the need for a combination of different methods of data analysis has been highlighted.143 This is exactly the underlying approach of the present research, as the data collected by means of empirical legal research was analysed not only based on the above-specified quantitative approach, but also with qualitative methods, which were not seen as mutually exclusive, but rather as mutually complementary.144

142 Epstein and Martin 916. 143 See eg Laura Beth Nielsen, ‘The Need for Multi-Method Approaches in Empirical Legal Researches’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal Research (2nd edn, OUP 2012) 951. See also Todd Landman, ‘Social Science Methods and Human Rights’ in Fons Coomans, Fred Grünfeld and Menno T Kamminga (eds), Methods of Human Rights Research (Intersentia 2009) 40f. 144  See eg Anthony J Onwuegbuzie and Nancy L Leech, ‘On Becoming a Pragmatic Researcher: The Importance of Combining Quantitative and Qualitative Research Methodologies’ (2005) 8 International Journal of Social Research Methodology 375.

2 Comparing the standards developed for the protection of the right to freedom of religion by the ECtHR and the HRC

Before delving into the case law of the ECtHR and the HRC concerning the right to freedom of religion and belief of new minorities emerging from recent migration, it is important to clarify and compare the general standards for the protection of this right, which have been developed under the ECHR and the ICCPR. In the ECHR, the right to freedom of thought, conscience and religion is guaranteed in Article 9 ECHR, which states: (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. In the ICCPR, this right is guaranteed by Article 18 ICCPR, which states the following: (1) Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. (2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. (3) Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. (4) The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Comparing the standards of the ECtHR and HRC 33

I. The scope of the right to freedom of religion and belief The first important question is how the scope of the right to freedom of religion and belief is defined under the ECHR and the ICCPR. This involves, among others, the question of how the concepts religion and belief are defined as well as which actions can be qualified as manifestations of religious beliefs. In the ­following, the issues, which have arisen in the interpretation and application of Article 9 ECHR and Article 18 ICCPR, are presented and compared.

1. Practice regarding Article 9 ECHR Three main issues have emerged in the jurisprudence regarding the scope of the right to freedom of religion and belief in the practice of the EComHR and the ECtHR, namely the definition of the concepts of religion and belief, the distinction between the so-called forum internum and the forum externum as well as the definition of acts to be regarded as a manifestation of religious beliefs.

a. The definition of religion and belief Article 9 ECHR is entitled ‘freedom of thought, conscience and religion’; in its second paragraph however, the ‘freedom to manifest one’s religion or beliefs’ is mentioned. The text of the ECHR thus distinguishes between ‘thought and conscience’ and ‘religion and belief’ but does not elaborate further on the criteria for such distinction. In the case law of the EComHR and the ECtHR, this distinction has played a rather minor role and a generous approach towards the definition of the concepts was adopted.1 Consequently, as long as the conviction in question attains a ‘certain level of cogency, seriousness, cohesion and importance’,2 it is regarded to be protected by Article 9 ECHR.3 Based on such approach, the EComHR and the ECtHR have included traditional as well as non-traditional religious beliefs in the scope of Article 9 ECHR. They thus accepted Jehovah’s Witnesses4 or the Divine Light Zentrum,5 but also druidism6 or atheism7 as falling under the scope of this guarantee, without much elaboration on the reasons.

1 Evans C, Freedom of Religion 55. 2 See eg SAS v France [GC] App no 43835/11 ECHR 2014 (extracts) (ECtHR) para 55. 3 See also CoE, ‘Guide to Article 9: Freedom of Thought, Conscience and Religion’ accessed 1 May 2019. 4 See eg Religionsgemeinschaft der Zeugen Jehovas and Others v Austria App no 40825/98, 31 July 2008 (ECtHR). 5 See Omkarananda and the Divine Light Zentrum v Switzerland (dec) App no 8118/77, Commission decision of 19 March 1981, Decisions and Reports 25, p 105 (EComHR). 6 See Chappell v the United Kingdom App no 12587/86 App no 10461/83, Commission decision of 30 March 1989, Decisions and Reports 53, p 241 (EComHR). 7 See Angeleni v Sweden (dec) App no 10491/83, Commission decision of 3 December 1986, Decisions and Reports 51, p 41 (EComHR).

34  Comparing the standards of the ECtHR and HRC

b. Distinction of the forum internum and the forum externum The second issue concerns the scope of the so-called forum internum and its distinction from the forum externum. Such distinction is particularly relevant because only the latter may be subject to restrictions according to Article 9(2) ECHR. Thus, the question arises whether Article 9(1) ECHR protects individuals solely from ‘external pressure sufficient to induce a forcible change in inner belief’, or also offers a broader protection from indoctrination.8 According to the ECtHR, Article 9 ECHR contains a freedom from state-imposed compulsion under the condition that such compulsion has the effect of rendering the individual unable to continue in his or her beliefs.9

c. Manifestation of religious beliefs According to the case law, not every act motivated or inspired by a religion can be qualified as manifestations of religious beliefs and is thus protected by Article 9 ECHR.10 In order for an act to fall under the scope of Article 9 ECHR, it needs to be intimately linked to the religion or belief in question.11 This includes not only acts of worship or devotion, which form ‘part of the practice of a religion or belief in a generally recognised form’, but also any other act, which, based on the facts of each case, can be seen as having ‘a sufficiently close and direct nexus’ with the underlying belief.12 Such approach has however been adopted only recently: For a long time, the EComHR and the ECtHR followed a restrictive interpretation based on the so-called Arrowsmith test,13 including only acts ‘forming part of the practice of a religion of belief in a generally accepted form’.14 This was criticised for being detrimental to the protection of lesser known religious minorities.15 8 Malcolm D Evans, Religious Liberty and International Law in Europe (CUP 1997) 294. 9 See eg Reformed Church of X v the Netherlands (dec) App no 1497/62, Commission decision of 14 December 1962 (EComHR); X v the Netherlands (dec) App no 2065/63, Commission decision of 14 December 1965, Decisions and Reports 18, p 40 (EComHR). 10 See eg Leyla S¸ahin v Turkey [GC] App no 44774/98 ECHR 2005-XI (ECtHR) para 105. Acts, which do not fall within the scope of Art 9 ECHR, can nevertheless be protected by Art 10 ECHR (freedom of expression), see Evans M D, Religious Liberty 284f. 11 See Eweida and Others v the United Kingdom App nos 48420/10 and 3 others ECHR 2013 (extracts) (ECtHR) para 82. In other cases, different formulations are used to express such requirement, eg that the act needs to be a direct expression of the religion or belief in question, see Jakóbski v Poland App no 18429/06, 7 December 2010 (ECtHR) para 45. 12 See eg Eweida and Others v the United Kingdom para 82. See also CoE, ‘Guide Art 9 ECHR’ 10. 13 Arrowsmith v the United Kingdom App no 7050/75, Commission decision of 12 October 1978, Decisions and Reports 31 (EComHR) para 71. For further details see Evans C, Freedom of Religion 115ff. 14 Eg Pichon and Sajous v France (dec) App no 49853/99 ECHR 2001-X (ECtHR); for a detailed overview and critique of this earlier practice see Evans M D, Religious Liberty 304ff. 15 See eg Samantha Knights, Freedom of Religion, Minorities, and the Law (OUP 2007) 41ff; Javier Martínez-Torrón, ‘The Protection of Religious Freedom Under the European Convention on Human Rights’ (1998) 29 Revista general de derecho 307.

Comparing the standards of the ECtHR and HRC 35 In 2013, in the judgment Eweida and Others v the United Kingdom, the ECtHR modified this approach, although it avoided stating so explicitly, by including acts with a sufficiently close and direct nexus.16 Furthermore, it specified that there is ‘no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question’.17 Consequently, in recent decisions and judgments the ECtHR has dismissed several objections raised by the respondent state concerning the sincerity of the religious beliefs of the applicant in question.18 Moreover, it explicitly recognised that Article 9 ECHR also protected minority interpretations of a certain religion or belief.19 Lastly, the ECtHR has consistently held that it is neither for itself nor for the state to assess the legitimacy of a certain belief or the validity and relative merits of a certain interpretation.20 Today, the interference in the scope of Article 9 ECHR is usually affirmed without much consideration.21 A manifestation of religious beliefs may take place ‘alone or in community with others’. Thus, Article 9 ECHR has a collective dimension as well.22 This was confirmed early on by the EComHR, which held that no distinction between these two forms of manifestations shall be made, noting that the right to manifest one’s religion ‘in community with others’ has always been regarded as an essential part of the freedom of religion and finds that the two alternatives ‘either alone or in community with others’ in Article 9(1) cannot be considered as mutually exclusive, or as leaving a choice to the authorities, but only as recognising that religion may be practised in either form.23 In recent years, studies have highlighted a tendency of the ECtHR to offer stronger protection to the manifestation of religious beliefs in groups than for individuals.24 Furthermore, the manifestation of religious beliefs is protected both ‘in public or private’, though the EComHR and the ECtHR have generally not distinguished between manifestations in the public or the private sphere.25 Several 16 Eweida and Others v the United Kingdom para 82. See also Slotte 108f. 17 Eweida and Others v the United Kingdom para 82. 18 See eg SAS v France [GC] para 56; Vartic v Romania (No 2) App no 14150/08, 17 December 2013 (ECtHR) para 46. 19 Osmanog˘lu and Kocabas¸ v Switzerland App no 29086/12, 10 January 2017 (ECtHR) paras 37ff. 20 See eg Bayatyan v Armenia [GC] para 120; CoE, ‘Guide Art 9 ECHR’ 10. 21 See eg Slotte 106. 22 See eg Malcolm N Shaw, ‘Freedom of Thought, Conscience and Religion’ in Ronald Macdonald, Franz Matscher and Herbert Petzold (eds), The European System for the Protection of Human Rights (Martinus Nijhoff 1993) 450f. 23 X v the United Kingdom (dec) App no 8160/78, Commission decision of 12 March 1981, Decisions and Reports 22, p 27 (EComHR) para 5. 24 Carolyn Evans, ‘Individual and Group Religious Freedom in the European Court of Human Rights: Crack in the Intellectual Architecture’ (2010–2011) 26 JL&Rel 321; Henrard, ‘Consensus’. 25 Malcolm D Evans, Manual on the Wearing of Religious Symbols in Public Areas (Martinus Nijhoff 2009) 73; Julie Ringelheim, ‘Rights, Religion and the Public Sphere: The European

36  Comparing the standards of the ECtHR and HRC studies of the relevant case law have however established that there is an implicit distinction between the two spheres in the ECtHR’s case law: Defining every manifestation outside of the sphere of the religious community and the private home as public, studies of the case law have highlighted that the protection granted to public manifestations is not as strong as the one established for private manifestations.26

2. Practice regarding Article 18 ICCPR With regard to the scope of the right to freedom of religion and belief as guaranteed by Article 18 ICCPR, the first thing one notices is that the provision is significantly longer than Article 9 ECHR. This is mostly due to the statement of several aspects, such as the freedom from coercion, which are not explicitly mentioned by the ECHR. The following section gives an overview of the most relevant aspects.

a. The definition of religion and belief Like Article 9 ECHR, Article 18 ICCPR is entitled freedom of thought, conscience and religion, but subsequently predominantly uses the term ‘religion and belief’.27 The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981 Declaration) uses the term ‘religion and whatever belief’,28 which can be seen as a compromise between the communist states, wanting to introduce a definition explicitly including nontheistic and atheistic belief, and states opposed to such approach.29 The HRC in its General Comment on Article 18 ICCPR defines the religions and beliefs protected as follows: Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms belief and religion are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established, or

Court of Human Rights in Search of a Theory?’ in Lorenzo Zucca and Camil Ungureanu (eds), Law, State and Religion in the New Europe: Debates and Dilemmas (CUP 2012) 285. 26 See eg Ringelheim, ‘Public Sphere’; Isabelle Rorive, ‘Religious Symbols in the Public Space: In Search of a European Answer’ (2009) 30 Cardozo Law Review 2669. 27 Art 18 UDHR uses a similar terminology. 28 Art 1 of the 1981 Declaration (emphasis added). 29 Cornelis D De Jong, The Freedom of Thought, Conscience and Religion or Belief in the United Nations (1946–1993) (Hart/Intersentia 2000) 29ff; Evans M D, Religious Liberty 232ff.

Comparing the standards of the ECtHR and HRC 37 represent religious minorities that may be the subject of hostility by a predominant religious community.30 In practice, particularly the distinction between opinion and belief, and consequently between the scope of protection of Articles 19 and 18 ICCPR, has given rise to discussions in which the HRC has generally adopted a very broad and inclusive approach. Thus, it could be argued that the HRC has (implicitly) recognised fascism and communism as beliefs protected by Article 18 ICCPR.31 Moreover, the Special Rapporteur on Religious Freedom and Belief has explicitly acknowledged that also new religious movements, ‘regardless of their geographical origin or ideological foundations, (. . .) must, as such, benefit from all the guarantees attaching to respect for the right to freedom of thought, conscience and religion’.32

b. Freedom from coercion Differently than Article 9 ECHR, Article 18(2) ICCPR states that ‘(n)o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice’. Although no definition of the term ‘coercion’ is provided in the provision, the definition put forward by the HRC’s General Comment seems to broadly capture the general idea, namely that coercion includes the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert (as well as) (p)olicies or practices having the same intention or effect, such as for example those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant.33 Discussions have arisen in particular regarding the distinction between (allowed) persuasion or proselytism and prohibited coercion. Differently than the ECtHR, which in its leading judgment on this matter, Kokkinakis v Greece, allowed for very far-reaching restrictions of proselytism or missionary behaviour,34 the HRC

30 HRC, General Comment 22, Article 18 (UN Doc CCPR/C/21/Rev1/Add4, 1993) para 2. See also Martin Scheinin, ‘The Human Rights Committee and Freedom of Religion or Belief’ in Tore Lindholm, W Cole Durham and Bahia G Tahzib-Lie (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff 2004) 194. 31 Kang v the Republic of Korea UN Doc CCPR/C/78/D/878/1999, 15 July 2003 (HRC) para 7.2; MA v Italy UN Doc Supp No 40 (A/39/40) at 190, 10 April 1984 (HRC) para 13.3. 32 UN Special Rapporteur on Religious Intolerance, Report submitted to the Commission on Human Rights (UN Doc E/CN4/1988/45, 1988) para 8. See for further details Evans M D, Religious Liberty 250ff. 33 HRC, GC 22 para 5. 34 Kokkinakis v Greece. See also Taylor 26f.

38  Comparing the standards of the ECtHR and HRC interprets the term ‘coercion’ in a narrow manner.35 This was also emphasised by the UN Secretary-General in the annotations on the draft of the two Covenants, where he stated that ‘the word “coercion” in this context should not be construed as applying to moral or intellectual persuasion, or to any legitimate limitation of freedom to manifest one’s religion or belief’.36 The aim of Article 18(2) ICCPR is thus not to prohibit the exchange of ideas.37

c. Right to manifest religious beliefs Article 18(1) ICCPR guarantees the ‘freedom, either individually or in community with others and in public or private, to manifest (. . .) (one’s) religion or belief in worship, observance, practice and teaching’. Differently than the right to have or adopt a religion or belief as well as the freedom from coercion, the right to manifest religious beliefs is not absolute, but can be limited based on the requirements specified in Article 18(3) ICCPR, which will be elaborated in detail below.38 Like Article 9 ECHR, the ICCPR guarantees manifestations of religious beliefs both in public and in private. This means that manifestations of religious beliefs do not have to take place in private, but are also protected when they permeate the public sphere.39 Similarly as for the ECtHR, the distinction between private and public manifestations has not played a central role in the HRC’s case law, where no guidelines for such distinctions can be found. Differently than for the ECtHR however, relevant studies of the case law have not highlighted an implicitly weaker protection for manifestations in the public sphere. Moreover, like Article 9 ECHR, Article 18 ICCPR also has a collective dimension, since it guarantees both the right to manifest religious beliefs individually and in community with others. In the HRC’s practice, this distinction does not seem to play a significant role either. Nevertheless, early in the development of the guarantee of freedom of religion under the auspices of the UN, the collective aspect of freedom of religion was identified as needing particular protection. Thus, Special Rapporteur Krishnaswami in his study of discrimination in the matter of religious rights and practices highlighted that the collective aspect of freedom to manifest religion or belief (. . .) is of particular importance (. . .), since intervention by the State to regulate or to limit manifestations of a religion or belief are more frequent when these

35 See for an overview of the dangers of an overly broad conceptualisation of ‘coercion’ Bielefeldt, Ghanea and Wiener 88f. 36 UN Secretary-General, UN Doc A/2929 138. See for a broader approach Natan Lerner, ‘Religious Human Rights under the United Nations’ in Van der Vyver Johan D and Witte John (eds), Religious Human Rights in Global Perspective (Kluwer Law International 1996) 91. 37 De Jong C D 45; Evans, Religious Liberty 198. 38 See below Chapter 2, section III. 39 See also De Jong C D 80.

Comparing the standards of the ECtHR and HRC 39 manifestations are performed ‘in community with others’ than when they are performed ‘alone’.40 This appears in line with the ECtHR’s practice, which offers a stronger protection for manifestations of religious beliefs in a group.41 Certain issues of interpretation have arisen regarding the different forms of manifestations, which are covered by Article 18 ICCPR. In its General Comment, the HRC puts forward the following definition: The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. 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 headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as, inter alia, the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.42 A more detailed list of protected manifestations can be found in Article 6 of the 1981 Declaration: (T)he right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms: (a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; (b) To establish and maintain appropriate charitable or humanitarian institutions; (c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief; (d) To write, issue and disseminate relevant publications in these areas; (e) To teach a religion or belief in places suitable for these purposes;

40 Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices (UN Doc E/CN4/Sub2/200/Rev 1, 1960) 21. 41 See above Chapter 2, section I(1c). 42 HRC, GC 22 para 4.

40  Comparing the standards of the ECtHR and HRC (f ) To solicit and receive voluntary financial and other contributions from individuals and institutions; (g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief; (h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief; (i) To establish and maintain communications with individuals and communities in matters of religion or belief at the national and international levels. Among scholars it is controversial whether a strict distinction between various aspects of manifestations of religious beliefs is necessary43 or rather ‘superfluous and ultimately even dangerous if conveying the message that religious life could simply be compartmentalized according to these concepts’.44 In the HRC’s practice, the distinction between the various forms does not seem to be of major importance.45 The term ‘manifestation’ has been interpreted in a rather generous and inclusive manner.46 Thus, differently than the ECtHR,47 the HRC never required a strict, direct nexus between the belief and its manifestation.48 One example is the case Malcolm Ross v Canada, where the respondent state claimed that the author’s anti-Semitic views were in fact not a manifestation of his Christian faith.49 Nevertheless, the HRC implicitly recognised the author’s view as a manifestation of beliefs.50 This raises the question whether some manifestations should be seen as falling outside of the scope of Article 18(1) ICCPR. On the one hand, the exclusion of certain acts, such as human sacrifice or mutilation, could make it clear that certain rituals are not protected by the ICCPR; on the other hand such exclusion might risk leaving states too much discretion in this regard, which could easily be abused.51 The HRC, as well as the various Special Rapporteurs, clearly follow the second approach, which results in the restriction of such practices taking place on the limitation stage in accordance with Article 18(3) ICCPR.52 43 See De Jong C D 103ff. 44 Bielefeldt, Ghanea and Wiener 98. 45 See eg De Jong C D 79. 46 For a more critical perspective see Evans M D, Religious Liberty 216. 47 See for the so-called Arrowsmith-test, which was developed by the EComHR, but is not used anymore today, above Chapter 2, section I(1c). 48 See Taylor 220. 49 Malcolm Ross v Canada UN Doc CCPR/C/70/D/736/1997, 26 October 2000 (HRC) para 6.5. 50 Ibid para 11.7. 51 See the discussion between the members of the HRC, HRC, Summary Record of the 116th Meeting (UN Doc CCPR/C/SR1166, 9 October 1992) paras 47f. 52 See Bielefeldt, Ghanea and Wiener 111. This is also confirmed by the following statement in the General Comment on Art 18 ICCPR: ‘According to article 20, no manifestation of religions or beliefs may amount to propaganda for war or advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. As stated by

Comparing the standards of the ECtHR and HRC 41

II. Negative and positive obligations It is generally recognised that human rights guarantees do not only oblige states not to interfere with, but also create so-called positive obligations for states to take active steps to safeguard such rights. In the following, the different approaches of the ECtHR and the HRC to the extent of states’ positive obligations flowing from the right to freedom of religion and belief are compared. In the realm of the ECHR, for a long time claims that a state has an obligation to take action to protect the right to freedom of religion and belief have not been very successful and positive obligations have been restricted to the protection against acts of intolerance by public authorities and private parties.53 In such situations, the state is, according to the ECtHR, ‘bound to take reasonably available preventive measures to prevent interferences of which the authorities had or ought to have had knowledge’.54 The ECHR is however not interpreted in the sense that it would give rise to an obligation for states to provide for exemptions from generally applicable, neutral laws based on religious reasons, be this under the right to freedom of religion (Article 9 ECHR) or the prohibition of discrimination (Article 14 ECHR).55 Still, in recent years, the ECtHR, at least to some extent, has clarified the concept of positive obligations in the context of religious freedom. For both a positive duty to take reasonable and appropriate measures to secure the right to freedom of religion and belief and the negative obligation not to interfere, it held that the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 9, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance.56 the Committee in its General Comment 11, States parties are under the obligation to enact laws to prohibit such acts’, see HRC, GC 22 para 7. 53 See eg Karaahmed v Bulgaria App no 30587/13, 24 February 2015 (ECtHR); Members of the Gldani Congregation of Jehovah’s Witnesses and Others v Georgia App no 71156/01, 3 May 2007 (ECtHR); Henrard, Ambiguous Relationship 55; Alastair Mowbray, The Development of Positive Obligations Under the European Convention on Human Rights by the European Court of Human Rights (Hart 2004) 189ff. See for an overview of the relevant case law CoE, ‘Guide Art 9 ECHR’ 64ff. 54 Dennis De Jong, ‘The Legal Obligations of State and Non-State Actors in Respect of the Protection of Freedom of Thought, Conscience and Religion or Belief’ (2008) 3 Religion and Human Rights 1, 5. For further analysis see Evans C, Freedom of Religion 168ff. 55 Henrard, ‘Church-State Relations’ 79ff; Javier Martínez-Torrón, ‘Limitations on Religious Freedom in the Case Law of the European Court of Human Rights’ (2005) 19 Emory International Law Review 587, 595f. 56 See eg Jakóbski v Poland para 47.

42  Comparing the standards of the ECtHR and HRC Moreover, the ECtHR distinguished between two sets of positive obligations when it came to interferences with the right to freedom of religion by private actors: First, the obligation to sufficiently secure the right to freedom of religion in the domestic legal order, and second, the obligation to strike a fair balance between the rights and interests involved.57 Like the ECtHR, the HRC did at first not take a clear stance on the issue of positive obligations for states under Article 18 ICCPR. For instance, in Bhinder v Canada, it did not comment on the view of the state party that ‘the concept of freedom of religion only comprises freedom from state interference but no positive obligation for States Parties’.58 In recent years, the HRC has however, in line with Article 4 and 7 of the 1981 Declaration, made clear that under article 2, paragraph 1, of the Covenant, the State party is under an obligation not only to respect but also to ensure to all individuals within its territory and subject to its jurisdiction all the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (. . .) Furthermore, States parties are thus under an obligation to protect the practices of all religions or beliefs from infringement.59 This development is also reflected in General Comment 31, which was published in the same year, where the HRC stated that the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.60 These standards were however not developed specifically in the context of Article 18 ICCPR. Moreover, the HRC seems to implicitly grant states a significant discretion in deciding which positive measures are necessary.61 Furthermore, it 57 Eweida and Others v the United Kingdom para 91. 58 Karnel Singh Bhinder v Canada UN Doc CCPR/C/37/D/208/1986, 9 November 1989 (HRC) para 4.5. See also Bianca Petzhold, Die “Auffassungen” des UN-Menschenrechtsausschusses zum Schutze der Religionsfreiheit (Mohr Siebeck 2015) 251; Bahiyyih G Tahzib, Freedom of Religion or Belief: Ensuring Effective International Legal Protection (Martinus Nijhoff 1996) 299f. 59 Arenz and Röder v Germany UN Doc CCPR/C/80/D/1138/2002, 29 April 2004 (HRC) para 8.5. See for a more detailed account of the question of positive obligations flowing from the right to freedom of religion or belief De Jong D. 60 HRC, General Comment 31 (UN Doc CCPR/C/21/Rev1/Add 1326, 2004) para 8. 61 See also Petzhold 252.

Comparing the standards of the ECtHR and HRC 43 appears to impose the burden to demonstrate that the state authorities were unable or unwilling to protect him or her on the author of the communication, which substantially restricts the scope of positive obligations under Article 18 ICCPR.62

III. Justification of an interference with the right to manifest religious beliefs Initial proposals of the ECHR provided for a general limitation clause applicable to all guarantees of the Convention, similar to the approach chosen by the UDHR.63 During the drafting process, such an idea was however discarded and specific limitation clauses for certain provisions were adopted.64 Thus, according to Article 9(2) ECHR, only interferences with the right to manifest religious beliefs – but not with the right to hold or change religious beliefs, which is thus an absolute right – can be justified, when the following three conditions are fulfilled: The interference needs to be prescribed by law (condition of legality); pursue one of the legitimate aims listed in the provision (condition of legitimacy), namely public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others; and be necessary in a democratic society (condition of proportionality).65 A very similar limitation clause was later included in Article 18(3) ICCPR, stating the following: Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Since, as under the ECHR, only the right to manifest religious belief is subject to this limitation clause, and Article 18 ICCPR cannot be derogated from, not even in times of public emergency,66 the right to have or adopt a religion or a belief, the right of parents to ensure the religious education of the children as well as the freedom from coercion are absolute rights, whose restriction cannot be justified.67 In their practice, the ECtHR and the HRC specified the meaning of the three conditions specified in the limitation clauses further and developed a more or less consistent approach to examine whether they are fulfilled. These approaches shall be compared in the following.

62 Dawood Khan v Canada UN Doc CCPR/C/87/D/1302/2004, 10 August 2006 (HRC) para 5.6. See also Petzhold 252. 63 See Art 29(2) UDHR. 64 Evans C, Freedom of Religion 41f. 65 It should be mentioned here that the rights guaranteed by Art 9 ECHR may also be subject to derogations based on Art 15 ECHR. 66 Art 4(2) ICCPR. 67 See also HRC, GC 22 para 1; Evans M D, Religious Liberty 221f.

44  Comparing the standards of the ECtHR and HRC

1. Condition of legality Article 9(2) ECHR requires that limitations of the right to freedom of religion and belief are ‘prescribed by law’. Such requirement aims at ensuring that rights and freedoms are not restricted except by due process of law, in part because of the procedural safeguards that this implies and in part because of the rule-of-law requirement that a person should know in advance what conduct is prescribed and be able to adjust his or her behaviour accordingly.68 The ECtHR has consistently held that the term ‘law’ should not be understood in a formal but in a substantive way.69 Thus, also case law can be considered a sufficient legal basis,70 if it fulfils the following requirements: Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.71 Furthermore, although the requirements of accessibility and foreseeability do not preclude a state from permitting administrative discretion, the law in question ‘must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise’.72 While the ECtHR has been criticised for not applying the criteria established in its case law with sufficient strictness in cases concerning Article 9 ECHR,73 it seems to have adapted this approach in recent years and has found several violations of Article 9 ECHR due to an insufficient legal basis.74

68 Evans C, Freedom of Religion 138. 69 See eg Kruslin v France Series A no 176-A (ECtHR) para 29. 70 Ibid; The Sunday Times v the United Kingdom (no 1) 26 April 1979, Series A no 30 (ECtHR) paras 46ff. 71 The Sunday Times v the United Kingdom (no 1) para 49 (emphasis added). 72 Hasan and Chaush v Bulgaria [GC] App no 30985/96 ECHR 2000-XI (ECtHR) para 84. See also Martínez-Torrón, ‘Limitations’ 597. 73 See eg Evans C, Freedom of Religion 139ff. See also the separate opinions in the judgments Kokkinakis v Greece App no 14307/88 ECHR A/260-A (ECtHR) and Larissis and Others v Greece 24 February 1998, Reports of Judgments and Decisions 1998-I (ECtHR). 74 See eg Hasan and Chaush v Bulgaria [GC]. For further details see Taylor 294ff.

Comparing the standards of the ECtHR and HRC 45 Like Article 9(2) ECHR, Article 18(3) ICCPR requires that an interference with the right to manifest one’s religious beliefs is ‘prescribed by law’.75 Yet, as this is the case in the context of the ECHR, also here the question arises, which conditions such law should fulfil. The HRC’s General Comment does not offer much clarification in this regard, stating solely that ‘(l)imitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18’.76 Also in its case law, the HRC has not developed a very well-defined concept of law for the purpose of Article 18(3) ICCPR. In this regard, the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (Siracusa Principles) give guidance. Principle 15 defines that the law in question should be ‘provided for by national law of general application’. Principles 16 and 17 state that ‘(l)aws imposing limitations on the exercise of human rights shall not be arbitrary or unreasonable’, but ‘clear and accessible to everyone’.77 In some views regarding Article 18 ICCPR, the Committee addressed the question of the legal basis in further detail. Particularly worth mentioning is the view issued in Malcolm Ross v Canada. In this case, which concerned the removal of a teacher from his position for depreciating the Jewish faith in comments in his private function, the Committee recognised a ‘complicated legal framework’78 as sufficient for the purpose of Article 18(3) ICCPR. It notably held that, (w)hile noting the vague criteria of the provisions that were applied in the case against the School Board and which were used to remove the author from his teaching position, the Committee must also take into consideration that the Supreme Court considered all aspects of the case and found that there was sufficient basis in domestic law for the parts of the Order which it reinstated. The Committee also notes that the author was heard in all proceedings and that he had, and availed himself of, the opportunity to appeal the decisions against him. In the circumstances, it is not for the Committee to reevaluate the findings of the Supreme Court on this point, and accordingly it finds that the restriction was provided for by law.79 The HRC thus, ‘through rather indirect and constructed reasoning’,80 factually granted the state a margin of appreciation in the evaluation of the condition of legality, also if it did not use this terminology, which, according to Petzhold, bears the risk of eroding the requirements established by this condition.81 In general, the practice of the HRC appears less strict than the one of the ECtHR.

75 This formulation differs from the one adopted by Art 18 UDHR, namely ‘determined by law’. 76 HRC, GC 22 para 8. 77 See also Alexandre Kiss, ‘Commentary by the Rapporteur on the Limitation Provisions’ (1985) 7 HRQ 15 18f. 78 Taylor 300. 79 Malcolm Ross v Canada para 11.4 (emphasis added). 80 Taylor 301. 81 See also Petzhold 171f.

46  Comparing the standards of the ECtHR and HRC

2. Condition of legitimacy The second requirement necessary for the justification of an interference with the right to manifest religious beliefs is that the restriction should pursue one of the legitimate aims listed in Article 9(2) ECHR, ie interests of public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others. According to the case law of the ECtHR, this enumeration is strictly exhaustive and the definition of these aims is necessarily restrictive.82 Compared to other provisions of the ECHR with similar limitation clauses, Article 9(2) ECHR takes a narrow approach to permissible aims for restriction. It does, for example, not include ‘national security’ as a legitimate aim,83 which, as can be seen from the drafting history of Article 9 ECHR, is by no means accidental. Such choice, according to the ECtHR, reflects the primordial importance of religious pluralism as ‘one of the foundations of a “democratic society” within the meaning of the Convention’ and the fact that a State cannot dictate what a person believes or take coercive steps to make him change his beliefs.84 The refusal of proposals to allow restrictions based on ‘national unity’ or ‘the operation and administration of justice’, further supports such interpretation.85 Nevertheless, in its case law on Article 9 ECHR, the ECtHR usually does not scrutinize the legitimate aims brought forward by states, but accepts them without much discussion.86 This has also been acknowledged by the ECtHR itself.87 Such approach has been widely criticized, since even in cases where the legitimate aim put forward by the state was quite obviously a façade to cover the true aims of the restriction, which would not have been in line with the ECHR, the ECtHR accepted the arguments without much discussion.88 In this sense, a deference by the ECtHR to national authorities can be observed: Because the state is likely to have a better understanding of the reasons for the adoption of a law, the ECtHR avoids questioning the aims brought forward by the state and thus ‘accusing the State of bad faith and mendacity’.89 Furthermore, the ECtHR often recognizes several legitimate aims pursued by a certain measure and does not clearly 82 Svyato-Mykhaylivska Parafiya v Ukraine App no 77703/01, 14 June 2007 (ECtHR) para 132; CoE, ‘Guide Art 9 ECHR’ 13f. 83 See however Arts 8(2), 10(2), 11(2) ECHR. 84 Nolan and K v Russia App no 2512/04, 12 February 2009 (ECtHR) para 73. 85 Evans C, Freedom of Religion 45. 86 Evans M D, Manual 19; Taylor 305. 87 SAS v France [GC] para 114. 88 Eg Kokkinakis v Greece. See Evans C, Freedom of Religion 147; T Jeremy Gunn, ‘Adjudicating Rights of Conscience under the European Convention on Human Rights’ in Johan D Van der Vyver and John Witte (eds), Religious Human Rights in a Global Perspective: Legal Perspectives (Martinus Nijhoff 1996) 324. 89 Evans C, Freedom of Religion 148. See also Wingrove v the United Kingdom 25 November 1996, ECHR 1996-V (ECtHR) in particular para 50 and the Dissenting Opinion of Judge Lohmus.

Comparing the standards of the ECtHR and HRC 47 distinguish between the respective aims.90 This approach to the assessment of the condition of legitimacy makes it fairly easy for states to fulfil such requirement. Among the specific aims listed in Article 9(2) ECHR, the ECtHR’s approach to the aim of protecting the rights and freedoms of others is worth highlighting. In this context, the question arises, whether the rights and freedoms mentioned are limited to those set out in the ECHR. Although this generally seems to be the case, in several judgments the ECtHR and the EComHR did not clearly outline, which rights and freedoms of others supposedly needed to be protected by the measure in question.91 In particular in decisions and judgments dealing with alleged offences of religious sensibilities of others or with cases of alleged proselytism, the notion of ‘rights and freedoms of others’ in fact seemed to be more extensive than the scope of the right to freedom of religion and belief as guaranteed by the ECHR, which has been criticised.92 Like Article 9 ECHR, Article 18(3) ICCPR contains an exhaustive93 list of the grounds, which can be invoked by a state for limiting the right to manifest one’s religious beliefs. This includes first the protection of public safety, which according to Siracusa Principle 33 ‘means protection against danger to the safety of persons, to their life or physical integrity, or serious damage to their property’. The second possible ground of limitation is the protection of public health, which according to Siracusa Principle 25 can justify state ‘measures dealing with a serious threat to the health of the population or individual members of the population (. . .) (which) must be specifically aimed at preventing disease or injury or providing care for the sick and injured’. Although the HRC has used these grounds in its practice,94 it has not developed a clear distinction from other grounds of limitation such as public order or national security.95 The third ground of limitation, which can be invoked by a state, is the protection of public order. The drafters opted for a more limited concept than in other provisions, since a reference to ordre public was omitted, which, according to a statement of the UN Secretary-General, could be translated as public policy, whereas public order is understood to mean the absence of disorder.96 The HRC has however followed a broad interpretation of the term public order for the purpose of Article 18(3) ICCPR in its practice. Thus, for example in Coeriel and Aurik v the Netherlands, it ‘considered that the regulation of surnames and the change thereof was eminently a matter of public order’.97 This approach seems closer to Siracusa Principle 22, which defines ‘ “public order (ordre public)” as 90 Taylor 321. 91 Evans M D, Religious Liberty 328; Evans C, Freedom of Religion 161. 92 See eg Kokkinakis v Greece paras 42ff; Otto-Preminger-Institut v Austria 20 September 1994, Series A no 295-A (ECtHR) paras 46ff; Evans C, Freedom of Religion 162f. 93 HRC, GC 22 para 8. 94 See eg Karnel Singh Bhinder v Canada UN Doc CCPR/C/37/D/208/1986, 28 November 1989 (HRC); Prince v South Africa; Yeo-Bum Yoon and Myung-Jin Choi v Republic of Korea. 95 See for a detailed overview and analysis of relevant case law Petzhold 174ff and 194f. 96 UN Secretary-General, UN Doc A/2929 para 113. See also Petzhold 186f; Taylor 323. 97 Coeriel and Aurik v the Netherlands UN Doc CCPR/C/52/D/453/1991, 9 December 1994 (HRC) para 6.1.

48  Comparing the standards of the ECtHR and HRC used in the Covenant (. . .) as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded’.98 The HRC has thus been criticised for not giving due regard to the distinctiveness of Article 18(3) ICCPR on this issue.99 The only ground of limitation, which receives at least some attention in the General Comment on Article 18 ICCPR, is the protection of public morals, regarding which the HRC observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.100 This can be regarded as an attempt to confront any risk of abuse of this admittedly not very specific ground of limitation.101 Siracusa Principle 27 seems to depart from this precept, since it grants states a ‘certain margin of discretion’. In practice, public morals have not been of any relevance in the HRC’s case law on Article 18 ICCPR.102 The last, and possibly most important,103 ground for limitation provided for in Article 18(3) ICCPR is the protection of the fundamental rights and freedoms of others. This ground differs from the one specified in Article 9(2) ECHR, which only mentions the rights and freedoms of others. The addition of the adjective fundamental arguably expresses that only the more important rights of others should be able to justify a restriction of the right to manifest one’s religion or belief.104 In this regard, a closer look should be taken at Siracusa Principle 36, which states the following: When a conflict exists between a right protected in the Covenant and one which is not, recognition and consideration should be given to the fact that the Covenant seeks to protect the most fundamental rights and freedoms. In this context especial weight should be afforded to rights not subject to limitations, in the Covenant.105 Thus, limitations of the right to manifest one’s religion or belief can only be justified in the name of other rights enshrined in the ICCPR (or other human rights 98 See also Kiss 19f. 99 See eg Manfred Nowak and Tanja Vospernik, ‘Permissible Restrictions on Freedom of Religion or Belief’ in Tore Lindholm, W Cole Durham and Bahia G Tahzib-Lie (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff 2004) 153f; Petzhold 188ff with reference to and analysis of further case law. 100 HRC, GC 22 para 8. 101 Nowak and Vospernik 159; Petzhold 197; Tahzib 341. 102 See Petzhold 198ff. 103 Ibid 202. 104 See eg De Jong C D 91. 105 Emphasis added.

Comparing the standards of the ECtHR and HRC 49 conventions). Furthermore, Article 18 ICCPR as a provision, from which no derogation may be made even in times of public emergency, should be attributed special weight in the balancing process.106 In the case law of the HRC, in particular the balancing of the protection of religious feelings of others with the right to manifest one’s religious belief in the context of proselytism, missionary work and blasphemy, received heightened attention. As an example, the case Sister Immaculate Joseph v Sri Lanka can be mentioned. In its view, the HRC, differently than the ECtHR, set a comparatively high threshold for the restriction of the right to manifest religious belief in the name of the protection of religious beliefs of others by requiring an ‘evidentiary and factual foundation’ of this claim.107 Also in other views, the HRC accepted justifications of interferences with the right to manifest one’s religion or belief in the name of the protection of the fundamental rights and freedoms of others only restrictively, whereas in the realm of the ECtHR the opposite tendency can be observed.108

3. Condition of proportionality a.  Practice regarding Article 9 ECHR The last requirement specified by Article 9(2) ECHR is that the restriction of the right to manifest religious beliefs must be ‘necessary in a democratic society’. The first concept, which needs to be defined in this context, is ‘a democratic society’. Although such a concept appears difficult to define, it is usually not discussed to great extents in the jurisprudence of the ECtHR.109 It has generally been accepted that the typical features of a democratic society are pluralism, tolerance and broadmindedness.110 Based on such approach, the ECtHR has emphasised the need for a narrow interpretation of the second concept used by this last requirement, ie ‘necessary’.111 The ECtHR has consistently held that the adjective ‘necessary’ (. . .) is not synonymous with ‘indispensable’ (cf., in Articles 2 para. 2 and 6 para. 1, the words ‘absolutely necessary’ and ‘strictly

106 See also De Jong C D 91. 107 Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v Sri Lanka UN Doc CCPR/C/85/D/1249/2004, 21 October 2005 (HRC) para 7.3. See also Petzhold 206. 108 See for a detailed overview and analysis Petzhold 202ff. 109 See however Refah Partisi (the Welfare Party) and Others v Turkey [GC] App nos 41340/98 and 3 others, ECHR 2003-II (ECtHR) paras 86ff; United Communist Party of Turkey and Others v Turkey 30 January 1998, Reports of Judgments and Decisions 1998-I (ECtHR) paras 42ff. 110 See eg Handyside v the United Kingdom 7 December 1976, Series A no 24 (ECtHR) para 49; Jean-François Renucci, Article 9 of the European Convention on Human Rights: Freedom of Thought, Conscience and Religion (Human Rights Files, No 20, CoE 2005) 47. 111 See eg The Sunday Times v the United Kingdom (no 1) para 65.

50  Comparing the standards of the ECtHR and HRC necessary’ and, in Article 15 para. 1, the phrase ‘to the extent strictly required by the exigencies of the situation’), neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’ (cf. Article 4 para. 3), ‘useful’ (cf. the French text of the first paragraph of Article 1 of Protocol No. 1), ‘reasonable’ (cf. Articles 5 para. 3 and 6 para. 1) or ‘desirable’.112 Instead, in order for an interference to be regarded as necessary in a democratic society, it must meet a ‘pressing social need’.113 According to the ECtHR, the existence of such ‘pressing social need’ cannot be determined in abstract, but only based on a so-called necessity test in the concrete case, which assesses various relevant factors, such as the nature of the right involved and the degree of interference in its exercise, the nature of the activities subjected to restriction or the nature of the public interest that allegedly justifies the limitation on freedoms, based on a ‘complex factual matrix’.114 Conducting such examination, the Court must always satisfy itself that decisions taken by the state authorities in the field of freedom of religion are based on an acceptable assessment of the relevant facts.115 What structure such a necessity test follows in practice is not clear from the case law and has thus been subject to controversial discussions. From the practice of the ECtHR and the EComHR, it can be observed that such a test involves an examination of the measure’s proportionality to the legitimate aim pursued.116 In The Sunday Times v the United Kingdom (No 1) the requirements have been set out as follows: It must (. . .) be decided whether the ‘interference’ complained of corresponded to a ‘pressing social need’, whether it was ‘proportionate to the legitimate aim pursued’ (and) whether the reasons given by the national authorities to justify it are ‘relevant and sufficient’.117 It has however been observed that the ECtHR makes ‘a rather non-transparent use of terminology and (displays) a tendency to confuse and mix distinct elements of judicial review’.118

112 Handyside v the United Kingdom para 48. 113 Ibid; The Sunday Times v the United Kingdom (no 1) para 59. 114 See X and the Church of Scientology v Sweden (dec) App no 7805/77, Commission decision of 5 May 1979, Decisions and Reports 16, p 68 (EComHR) 73; CoE, ‘Guide Art 9 ECHR’ 16; Evans M D, Manual 19f; Martínez-Torrón, ‘Limitations’ 599; Renucci 47; Taylor 310. 115 See eg Svyato-Mykhaylivska Parafiya v Ukraine para 138; CoE, ‘Guide to Art 9 ECHR’ 16. 116 Martínez-Torrón, ‘Limitations’ 599. 117 The Sunday Times v the United Kingdom (no 1) para 62. 118 Janneke Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’ (2013) 11 I•CON 466, 467; Janneke Gerards, ‘Judicial Deliberations in the European Court of Human Rights’ in Nick Huls, Maurice Adams and Jacco Bomhoff (eds), The Legitimacy of Highest Courts’ Rulings: Judicial Deliberations and Beyond (TMC Asser Press 2009) 422.

Comparing the standards of the ECtHR and HRC 51 Based on an analysis of the case law on guarantees requiring a necessity test,119 Christoffersen identified two ways of conducting such exercise: While a horizontal proportionality test takes into account a number of relevant factors to determine the proportionality without following a clear structure, a vertical proportionality test is a step-by-step test consisting of a number of independent sub-tests.120 Such a vertical proportionality test has been developed in German administrative and constitutional law. It inquires first, whether the measure adopted is capable of achieving the aim pursued (suitability); second, whether the measure is the least restrictive means to achieve the aim pursued (necessity); and third, whether the measure, relative to its objective, places an excessive burden on the individual (proportionality in the strict sense/ balancing).121 Already earlier, in a Human Rights File published by the CoE, Renucci had highlighted that the test used by the ECtHR could be broken down into three similar criteria, namely ‘the need for the measure taken, the connection and proportionality between the measure and the legitimate aim cited and, lastly, the measure’s consistency with the democratic spirit’.122 The necessity test of the ECtHR can thus be seen as consisting of at least two steps, namely the suitability of the measure and the balancing of the interests involved, which are however often not explicitly distinguished. Usually it is the proportionality or balancing that receives the most attention in the relevant decisions and judgments.123 In certain cases, the ECtHR also tackled the question whether the measure taken represented the least restrictive means.124 Early in the development of its jurisprudence, the Court highlighted that ‘it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of “necessity” ’.125 Thus, based on the principle of subsidiarity of the ECHR and the primary responsibility of states to ensure the practical and effective exercise of the Convention rights,126 the ECtHR, under certain circumstances, grants states a so-called margin of appreciation in determining whether a certain measure is ‘necessary in a democratic 119 Ie Arts 8 to 11 ECHR. 120 Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff 2009). 121 Eva Brems and Laurens Lavrysen, ‘ “Don’t Use a Sledgehammer to Crack a Nut”: Less Restrictive Means in the Case Law of the European Court of Human Rights’ (2015) 15 HRLRev 139, 141. 122 Renucci 47. 123 Henrard, ‘Church-State Relations’ 61. 124 See eg Biblical Centre of the Chuvash Republic v Russia App no 33203/08, 12 June 2014 (ECtHR) para 58; Brems and Lavrysen, ‘Less Restrictive Means’ 152ff; Gerards, ‘Necessity Test’ 467f. 125 Handyside v the United Kingdom para 48. 126 See Yutaka Arai-Takahashi, ‘The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg’s Variable Geometry’ in Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (CUP 2013) 90ff.

52  Comparing the standards of the ECtHR and HRC society’. This means that the degree of scrutiny applied in the assessment of the condition of proportionality depends on the breadth of the margin of appreciation granted to the state in the concrete case. Due to the importance of the concept of margin of appreciation in the context of the right to freedom of religion, a separate section will elaborate further on this doctrine.

b. Practice regarding Article 18 ICCPR According to Article 18(3) ICCPR, any limitation of the right to manifest one’s religious beliefs must be ‘necessary’. Differently than in Article 9(2) ECHR, this term is however not accompanied by the formulation ‘in a democratic society’. In Article 29(2) UDHR, a general limitation clause applicable to all rights and freedoms guaranteed by the UDHR allowing limitations ‘solely for the purpose (. . .) of meeting the just requirements of morality, public order and the general welfare in a democratic society’, such reference can still be found. During the drafting process of Article 18 ICCPR, the term ‘democratic society’ was then however omitted, since it was, on the one hand, considered a ‘Western invention, reminiscent of colonial days and on the other hand, States with a totalitarian regime often considered themselves a democracy, which in itself reduced the distinctive power of the term’.127 The HRC in its General Comment clarified the meaning of the term ‘necessary’ as used in Article 18(3) ICCPR as follows: Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.128 Siracusa Principle 10 clarifies these elaborations, by stating that (w)henever a limitation is required in the terms of the Covenant to be ‘necessary,’ this term implies that the limitation: (a) is based on one of the grounds justifying limitations recognized by the relevant article of the Covenant; (b) responds to a pressing public or social need; (c) pursues a legitimate aim; and (d) is proportionate to that aim. Any assessment as to the necessity of a limitation shall be made on objective considerations.

127 De Jong C D 89 with further references. 128 HRC, GC 22 para 8.

Comparing the standards of the ECtHR and HRC 53 This shows that, at least implicitly, Article 18(3) ICCPR also demands a proportionality assessment.129 It is controversial whether the lack of a reference to the concept of ‘a d ­ emocratic society’ bears practical relevance, in particular when compared to Article 9 ECHR.130 In fact, it is often rather hard to determine the HRC’s approach to the necessity test, since it ‘generally does not provide elaborate justification for its position on this question in Optional Protocol decisions’.131 In recent years, a tendency towards a more detailed and stringent examination can however be observed, which allegedly lives up to the standards established in the General Comment on Article 18 ICCPR.132

IV. The concept of the margin of appreciation Arguably, the ECtHR’s and the HRC’s approach to the concept of the margin of appreciation, that is the discretion left to states in the interpretation and application of the ECHR or the ICCPR, is the ‘greatest difference between European and Universal practice’.133 This is why, although this is not a concept specific to the right to freedom of religion and belief, it warrants special attention.

1. Approach of the ECtHR The concept of the margin of appreciation was developed by the EComHR and the ECtHR without any explicit basis in the text of the ECHR.134 Initially established in the jurisprudence on the derogation clause included in Article 15 ECHR, it subsequently extended to virtually every area of the ECHR.135 It was first applied to the interpretation and application of the limitation clause included in Articles 8 to 11 ECHR in the judgment Handyside v the United Kingdom.136 In the context of Article 9 ECHR, it was used for the first time in the case Kokkinakis v Greece, where the ECtHR stated that a certain margin of appreciation is to be left to the Contracting States in assessing the existence and extent of the necessity of an interference, but this margin is subject to European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.137

129 See also Petzhold 172. 130 See the different positions taken by De Jong C D 89; Taylor 306. 131 Taylor 307. See also Petzhold 172f. 132 Petzhold 186 and 218f; Taylor 307. 133 Taylor 185. 134 See Arai-Takahashi 78. 135 See for an extensive analysis Eva Brems, ‘The Margin of Appreciation Doctrine in the CaseLaw of the European Court of Human Rights’ (1996) 56 ZaöRV 240, 242ff. 136 Handyside v the United Kingdom para 48. 137 Kokkinakis v Greece para 47; Brems, ‘Margin of Appreciation’ 243.

54  Comparing the standards of the ECtHR and HRC In 2013, the Additional Protocol No 15 to the ECHR was adopted but has not yet entered into force. The protocol aims at adding an explicit reference to the concept of the margin of appreciation to the preamble of the ECHR, (a)ffirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.138 This formulation supports the primary motivation for the development of the concept of the margin of appreciation, namely the subsidiarity of the Convention mechanism and, linked to this, the idea that national authorities are, in principle, better placed than an international court to evaluate local needs and conditions. It however highlights as well that despite the discretion granted, the decision made is subject to European supervision. The concept of the margin of appreciation can thus be an important tool ‘to negotiate between the Court’s task to protect human rights as effectively as possible, and its need to respect national sovereignty and make its judgment acceptable for national authorities’.139 In its case law, the ECtHR distinguishes among various breadths of the margin of appreciation left to states, ranging from a narrow to a wide margin. Although such formulations do not indicate a specific test or approach to the standard of review,140 some general tendencies have been identified by scholars. Thus, if the ECtHR grants a wide margin to the national authorities, it ‘usually only superficially and rather generally examines the choices made by the national authorities to see whether the result is (clearly) unreasonable or disproportionate, or places an excessive burden on the applicant’.141 If it leaves only a narrow margin of appreciation to the state in question, the ECtHR ‘generally closely considers the facts of the case, carefully determining the interests at stake and deciding for itself where the balance between conflicting interests should have been struck’.142 It must however be highlighted that such general tendencies are, in practice, followed by a series of exceptions, which show that the ECtHR often does not follow a consistent approach.143 The factors that influence the degree of the margin of appreciation left to a state in a certain case, at least to some extent, remain similarly unclear, although also in this

138 Art 1 Additional Protocol No 15 ECHR. 139 Janneke Gerards, ‘Pluralsim, Deference and the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 80, 114. 140 See Christoffersen 265ff. 141 Gerards, ‘Margin of Appreciation’ 105. 142 Ibid 106. 143 See ibid 106f; George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP 2007) 80ff.

Comparing the standards of the ECtHR and HRC 55 regard, certain criteria can be identified from the Court’s case law.144 The ECtHR, in a case concerning Article 8 ECHR, specified the relevant factors as follows: In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide.145 Gerards has convincingly contended that (almost) all arguments used in the ECtHR’s case law for determining the degree of the margin of appreciation can be summarised in the following three factors: (1) the ‘common ground’ factor; (2) the ‘better placed’ argument and (3) the nature of the affected right or interest.146 In the context of the right to freedom of religion and belief, the ECtHR has laid an emphasis on the fact that ‘in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight’. This concerns in particular matters regarding the relation between the state and religious denominations, where a wide margin of appreciation should be granted, since ‘practice in European States is characterised by a wide variety of constitutional models governing relations between the State and religious groups’.147 Nevertheless, in determining the degree of the margin of appreciation in a certain case, the ECtHR has found that it ‘must take into account what is at stake, namely the need to maintain true religious pluralism, which is vital to the survival of a democratic society’.148 Scholars have however highlighted that in practice, the margin of appreciation granted to states in the context of church-state relations does not seem to be confined to the separation of church and state, but has also been applied to more substantive ideals pertaining to the content of state policy, such as the duty of state neutrality.149 Interpreted in such a broad manner, the state appears to dispose of a wide margin 144 See eg Evans C, Freedom of Religion 143; Henrard, ‘Church-State Relations’ 68. 145 Connors v the United Kingdom App no 66746/01, 27 May 2004 (ECtHR) para 82 (emphasis added). 146 See Gerards, ‘Margin of Appreciation’ 107ff. 147 See eg I˙zzettin Dog˘an and Others v Turkey [GC] App no 62649/10, ECHR 2016 (ECtHR) para 112. See also CoE, ‘Guide Art 9 ECHR’ 15. 148 See eg Bayatyan v Armenia [GC] para 122; CoE, ‘Guide Art 9 ECHR’ 15. 149 See Henrard, ‘Church-State Relations’ 67; Françoise Tulkens, ‘The European Convention on Human Rights and Church-State Relations: Pluralism vs. Pluralism’ (2009) 30 Cardozo Law Review 2575.

56  Comparing the standards of the ECtHR and HRC of appreciation in a large majority of freedom of religion cases.150 Confronted with such situation, the ECtHR has been called upon to reconsider granting a wide margin of appreciation in such matters in order not to temper the effective protection of freedom of religion and belief.151

2. Approach of the HRC It is commonly argued that the concept of the margin of appreciation does not form part of the HRC’s practice, allegedly because of a ‘fear of reliance on arguments of cultural relativism by States drawn from ideologically and economically diverse societies’.152 Thus, according to Taylor the ‘greatest difference between European and Universal practice relates to the concept of the margin of appreciation which allows wider discretion to States under the European Convention than is permitted under the ICCPR’.153 The HRC has explicitly distanced itself from this concept in Toonen v Australia, stating that it ‘cannot accept (. . .) that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee’s scrutiny a potentially large number of statutes’.154 Moreover, in a case regarding the rights of minorities (Article 27 ICCPR), the HRC clearly refused to make use of the concept of the margin of appreciation. It held that the scope of a state’s freedom to encourage development or allow economic activity by enterprises ‘is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken by article 27’.155 Nevertheless, various scholars have identified tendencies towards granting states at least some sort of discretion in certain views.156 The view issued in the case Hertzberg and Others v Finland is often evoked. Although the HRC does not use the term ‘margin of appreciation’, it refers to a ‘margin of discretion’ by stating the following: ‘It has to be noted, first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible

150 See for a detailed examination Henrard, ‘Church-State Relations’. 151 See eg Henrard, ‘Consensus’. 152 Taylor 186. See also Sandy Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (Ashgate 1998) 312; Schmidt 657. 153 Taylor 185. 154 Toonen v Australia UN Doc CCPR/C/50/D/488/1992, 31 March 1994 para 8.6. See also Petzhold 292f. 155 Länsman v Finland UN Doc CCPR/C/52/D/511/1992, 26 October 1994 (HRC) para 9.4. See also Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1998–1999) 31 New York University Journal of International Law and Politics 843, 844. For a different interpretation see Petzhold 294. 156 See eg Petzhold 290ff; Birgit Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP 2012) 304ff; Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2006) 16 EJIL 907.

Comparing the standards of the ECtHR and HRC 57 national authorities’.157 Furthermore, there have been cases, in which the HRC implicitly granted states a margin of appreciation.158 Petzhold, for example, in her extensive study of the HRC’s case law regarding freedom of religion and belief, demonstrated that such implicit granting of a margin of appreciation or discretion for Article 18 ICCPR can, like for the ECtHR’s case law, especially be observed in the context of the assessment of the condition of proportionality.159 One of the examples mentioned is the case Bhinder v Canada, which concerned the communication of a Sikh employee of the Canadian railway company, who was obliged to wear a safety helmet at work. The HRC did not really examine the necessity and proportionality of the interference with his right to manifest his religious beliefs, but solely stated the following: If the requirement that a hard hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified by reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard hat be worn is seen as a discrimination de facto against persons of the Sikh religion under article 26, then, applying criteria now well established in the jurisprudence of the Committee, the legislation requiring that workers in federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant.160 Since it could very well have been argued that the interference with the employee’s right to manifest his religious beliefs was not proportionate, given that he was only putting his own safety at risk, this case is seen as an example for the granting of an implicit margin of appreciation by the HRC.161 Furthermore, Petzhold highlighted the general lack of specificity of the HRC’s reasoning concerning the proportionality of an interference as well as the mixing of various grounds of limitations, which, intentionally or not, often result in a margin of discretion for states.162 Nevertheless, it needs to be concluded that the concept of the margin of appreciation plays a much more restricted role in 157 Hertzberg and Others v Finland UN Doc CCPR/C/OP/1 at 124, 2 April 1982 (HRC) para 10.3 (emphasis added). This statement is somewhat contradicted by the General Comment on Art 18 ICCPR, adopted in 1993, where the HRC states that ‘limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition’, see HRC, GC 22 para 8. 158 Eg Mahuika and Others v New Zealand UN Doc CCPR/C/70/D/547/1993, 27 October 2000 (HRC). See John Graham Merrills, The Development of International Law by the European Court of Human Rights (Manchester UP 1988) 19; Shany, ‘Margin of Appreciation’ 929. 159 As mentioned above in Chapter 2, section III(1), the HRC does not scrutinise the existence of a legal basis in Malcolm Ross v Canada, which can be interpreted as an implicit granting of a margin of appreciation to the state. See also Petzhold 304. 160 Karnel Singh Bhinder v Canada para 6.2. 161 Petzhold 311f. See also Tahzib 294ff. 162 Petzhold 315f, referring eg to Prince v South Africa UN Doc CCPR/C/91/D/1474/2006, 31 October 2007.

58  Comparing the standards of the ECtHR and HRC the HRC’s case law than is the case for the ECtHR, be this in the context of Article 18 ICCPR or in general.

V. Conclusion This comparison between the right to freedom of religion and belief as guaranteed by the ECHR and the ICCPR has shown several commonalities and differences between first the way the right to freedom of religion or belief is formulated in the respective provisions as well as the manner in which it is applied and interpreted. Considering the interpretation and application of the scope of Article 9 ECHR and Article 18 ICCPR, it can be stated that the two relevant bodies’ approaches are today more or less in alignment. Thus, both the ECtHR and the HRC now follow a broad and inclusive definition of the term religion and belief. Differently than Article 9 ECHR, Article 18(2) ICCPR however explicitly guarantees the freedom from coercion, which has been interpreted in a very narrow manner. The ECtHR, on the other hand, has allowed far-reaching restrictions of missionary activities in order to protect the freedom from coercion, even though Article 9 ECHR does not explicitly mention this freedom. This alignment is the result of a particularly interesting evolution in the practice of the ECtHR with respect to the interpretation of the scope of Article 9 ECHR: While for a long time, the scope was interpreted very restrictively, the ECtHR now takes a broad approach when it comes to the definition of religion or the actions that can be defined as manifestations of religious beliefs. Thus, today very few complaints are rejected based on a lack of interference with Article 9 ECHR. Yet, instead of inducing an over-all more protective approach in complaints based on Article 9 ECHR, this has led to a shift of focus to the justification of the interference. For example, although manifestations of religious beliefs both alone and in community with others fall under the scope of Article 9 ECHR, it has been established that groups are in fact better protected than individuals, for whom an interference is usually found to be justified. Furthermore, a stronger protection of private manifestations, as opposed to public manifestations, can be observed. The approach of the ECtHR and HRC to the interpretation and application of the limitation clause is in many respects similar. Thus, both bodies do not set very high requirements regarding the condition of legality and show a tendency to not clearly define and distinguish the various grounds, based on which limitations can be justified. Nevertheless, one important difference must be mentioned: Whereas the ECtHR sets a very low threshold for states to limit the manifestation of religious beliefs in the interest of protecting the rights and freedoms of others, the HRC requires specific evidentiary and factual foundations for such claims. A further difference regards the use of the concept of margin of appreciation, which is not explicitly recognised by the HRC. Contrary to this, this doctrine plays a particularly significant role in the ECtHR’s practice regarding Article 9 ECHR, because, based on a lack of consensus on state-church relations, the ECtHR often grants states a wide margin of appreciation and thus applies a low level of scrutiny. It has however been highlighted that in several views of the HRC, an implicit granting of discretion to states can be observed.

3 A typology of the case law regarding new minorities

Focusing on new minorities’ right to freedom of religion, this chapter analyses the collected case law for the EComHR, the ECtHR and the HRC from a quantitative perspective, thus creating a typology of the relevant case law by means of a categorisation based on three relevant characteristics of the cases, namely (1) the parties to the procedure, (2) the decisions that were adopted and (3) the legal questions that had to be answered. These three characteristics allow capturing commonalities and differences between the different cases and thus getting a more holistic account of the relevant practice. This includes for example the different religious groups which have brought complaints to the ECtHR or the EComHR and the HRC. The analysis of the case law from such perspective makes it possible to identify certain repeating patterns, for instance regarding the conclusion reached by the ECtHR and the EComHR, respectively, or the HRC, which could not be identified based on the analysis of single cases. Such structure facilitates the comparison of the approaches adopted by the ECtHR and the HRC and at the same time allows one to duly take into account the limitations of such comparison. Thus, not all issues regarding the religious freedom of new minorities which arise at the national level result in a decision of the ECtHR or the HRC at the international level. Many factors influence first whether a judicial complaint is made and second whether such complaint, if not decided to the benefit of the applicant, will be brought to the ECtHR or the HRC (or to both).1 As a consequence, such quantitative analysis cannot give a complete explanation of the approach taken towards the protection of the religious freedom of new minorities. Nevertheless, it facilitates the identification of the factual and legal characteristics of the entire relevant case law and thus the localisation of the reasoning adopted by the ECtHR or the HRC in specific decisions, as analysed in the next chapter, in the landscape of judgments concerning new minorities’ religious freedom.

1 For a project focusing on such factors see accessed 1 May 2019.

60  Case law typology regarding new minorities By means of the method of data collection specified above, 33 complaints brought by members of new minorities emerged from recent migration movements to the ECtHR and the EComHR were collected. For the HRC, only seven communications brought by members of new minorities could be collected.2 Based on theories of empirical research, it can be highlighted again that also a small data sample allows for relevant conclusions when it follows generally accepted methods of data collection and considers all relevant concerns associated with such methodological approach.3 Thus, although the number of complaints or communications is rather limited and does not depict every aspect of the protection of the religious freedom of new minorities formed by recent migration movements, it nevertheless allows for an assessment of the approach taken by the ECtHR and the HRC to the limited situations the bodies were confronted with.

I. The parties to the procedure The first relevant characteristics of the cases concern the parties to the procedure, namely the applicants and the respondent state. Although data about third parties in the relevant procedures were also collected, that information was identified as not adding to the analysis, since third parties intervened only in very few cases. The following section, thus, focuses on characteristics of the applicants, most importantly their religious beliefs, and the state, which allegedly violated their right to freedom of religion.

1. The applicants and respondent states in the case law of the EComHR and the ECtHR The applicants, which have brought complaints to the EComHR and the ECtHR, adhered to four different religious beliefs, namely Buddhism, Hinduism, Islam and Sikhism. The first thing one notices from the results of the analysis displayed in Figure 3.1 is that Muslims brought over half of the 33 complaints, namely 18. This is not surprising given the fact that in recent years Islam is the religion that has grown the most in European states.4 The complaints were brought against Belgium, France, Germany, Switzerland and the United Kingdom. In all five states, adherents to Islam are mostly individuals, who have arrived in the country as migrant workers or refugees, and their descendants.

2 See above Chapter 1, section IV(1). For a list of the cases included see the Appendix. 3 See eg Mark A Hall and Ronald F Wright, ‘Systematic Content Analysis of Judicial Opinions’ (2008) 96 California Law Review 63, 101ff. 4 Pew Research Center, ‘The Future of World Religions: Population Growth Projections, 2010– 2050’ (2 April 2015) accessed 1 May 2019.

Case law typology regarding new minorities 61 20

18 cases = 54.5%

18 16

Islam

14 12 10 8 6 4 2 0

6 cases = 18.2% Buddhism

6 cases = 18.2% 3 cases = 9.1%

Sikhism

Hinduism

Applicant religion

Figure 3.1 Religious beliefs of the applicants in the cases of the ECtHR/EComHR

Most of the complaints brought by Muslims were against France, namely 11 out of 18, ie approximately 60 percent. France is home to the largest Muslim population in Europe, a large share of which immigrated during the twentieth century from Northern Africa.5 Three complaints were brought against the United Kingdom, where larger scale Muslim immigration took place after the S ­ econd World War mostly from South Asia.6 Two complaints were brought against S ­ witzerland and one each against Belgium and Germany.7 Muslims in all of these countries do not all share the same ethnic background but have very diverse origins. More­ over, the Muslim communities also comprise members without any immigration background, who are converts to Islam for manifold reasons. As in many other states, the presence of Islam as a religion in these countries has led to increasing debate and a shift in perspective from migrants grouped according to their countries of origin, such as Turkey or Albania, to migrants grouped according to their religion, ie Muslims.8 Sikhs, together with Buddhists, represent the second largest group of applicants, since they have each brought slightly less than 20 percent of the total amount of complaints by new minorities. Most of the complaints, namely two 5 See for further details Jennifer Selby, ‘France’ in Jocelyne Cesari (ed), The Oxford Handbook of European Islam (OUP 2014). See also Martine Cohen, ‘Jews and Muslims in France: Changing Responses to Cultural and Religious Diversity’ HAL Archives Ouvertes accessed 1 May 2019. 6 See for further details Sophie Gilliat-Ray, ‘The United Kingdom’ in Jocelyne Cesari (ed), The Oxford Handbook of European Islam (OUP 2014). 7 See for further details on Muslims in these countries Riem Spielhaus, ‘Germany’ in Jocelyne Cesari (ed), The Oxford Handbook of European Islam (OUP 2014); Ettinger and Imhof. 8 See eg Spielhaus 105f.

62  Case law typology regarding new minorities thirds, concerned again France. The rest of the complaints were brought against the United Kingdom, namely one third. This appears surprising, since the number of Sikhs in France is significantly smaller than the one in the United Kingdom.9 Furthermore, Sikh immigration until 1980 has mostly focused on the United Kingdom as part of the Commonwealth of Nations,10 whereas significant immigration to continental Europe started only recently.11 In both states, Sikhism is generally associated with immigration. Today, Sikh communities in the two states mostly consist of migrant workers or refugees, coming originally from different Asian countries, and their descendants. Although some members of the communities are converts,12 this seems to be less common, at least in the collected case law. Surprisingly, Buddhists have brought the same amount of complaints as Sikhs, namely six, although they represent a much smaller share of Europe’s population.13 Half of these complaints alleged a violation of the Convention by the United Kingdom. One complaint each was brought against Austria, Poland and Romania. Differently than for Sikhs, the applicants adhering to Buddhism seem to be mostly converts to such religion.14 Nevertheless, the presence of Buddhism in European countries has significantly increased in recent years, due in part to the acceptance of Tibetan refugees, which justifies the inclusion of these cases in the category ‘new minority’.15 The smallest number of complaints was brought by Hindus, namely slightly less than 10 percent, ie one each against Latvia, Bulgaria and the United Kingdom. Like Buddhists, the Hindu community in Europe seems to consist mostly of converts, in particular members of the Hare Krishna community.16

9 Christine Moliner, ‘ “Did You Get Papers?” Sikh Migrants in France’ in Knut A Jacobsen and Kristina Myrvold (eds), Sikhs in Europe: Migration, Identities and Representation (Ashgate 2011) 164. 10 See Eleanor Nesbitt, ‘Sikh Diversity in the UK: Contexts and Evolution’ in Knut A Jacobsen and Kristina Myrvold (eds), Sikhs in Europe: Migration, Identities and Representation (Ashgate 2011). 11 Moliner 166f; see for further details Kristina Myrvold, ‘Sikhs in Mainland European Countries’ in Pashaura Singh and Louis E Fenech (eds), The Oxford Handbook of Sikh Studies (OUP 2014). Interestingly, no complaint was brought against Germany, which is home to the largest number of Sikhs in continental Europe. 12 Myrvold 515. 13 Pew Research Center. 14 See eg Jitka Cirklová, ‘Buddhism as a Value Source in the Course of New Identity and Lifestyle Formation in the Czech Republic’ (2012) 13 Contemporary Buddhism 263 15 See eg Martin Baumann, ‘Buddhism in Switzerland’ (2000) 1 Journal of Global Buddhism 154, 156; Laurence Cox, ‘European Buddhist Traditions’ in Michael Jerryson (ed), The Oxford Handbook of Contemporary Buddhism (OUP 2017) 336f. 16 See eg Martin Baumann, ‘Sustaining “Little Indias”: The Hindu Diasporas in Europe’ in Gerrie Ter Haar (ed), Strangers and Sojourners: Religious Communities in the Diaspora (Peeters 1998).

Case law typology regarding new minorities 63 Table I.1 Religion of the applicant and respondent state in the cases of ECtHR/EComHR Respondent state

Austria Belgium Bulgaria France Germany Latvia Poland Romania Switzerland The United Kingdom Total

Percentage of total cases 3% (1 case) 9.1% (3 cases) 3% (1 case) 39.4% (13 cases) 3% (1 case) 3% (1 case) 3% (1 case) 3% (1 case) 6.1% (2 cases) 27.3% (9 cases) 100% (33 cases)

Applicant religion Buddhism Hinduism Islam Sikhism 1 0 0 0 0 0 1 1 0 3 6

0 0 1 0 0 1 0 0 0 1 3

0 3 0 9 1 0 0 0 2 3 18

0 0 0 4 0 0 0 0 0 2 6

Looking at the collected case law from the perspective of the respondent states, it can be stated that the complaints brought by members of new minorities concerned ten of the CoE member states, namely Austria, Belgium, Bulgaria, France, Germany, Latvia, Poland, Romania, Switzerland and the United Kingdom. From the analysis displayed in the table, it can be observed that 39.4 percent of the complaints brought by members of new minorities formed by recent migration alleged a violation of Article 9 ECHR by France. Yet, six of the thirteen cases concerned complaints based on the same law and were all decided on the same date.17 Although this relativises the percentage calculated for France to some extent, it does not change the fact that France was the respondent state in a large number of cases decided by the ECtHR. The applicants bringing complaints against France were either Muslims or Sikhs. A large majority of the complaints concerned Muslims, which is not surprising when recalling France’s colonial past. The United Kingdom, which was the respondent state in slightly more than a quarter of the cases, has been confronted with complaints coming from all four religious groups, one third each from Buddhists and Muslims and the rest divided among Hindus and Sikhs. Again, recalling the colonial history of the United Kingdom, such increased religious diversity is not unexpected. Other states have been confronted with only a small number of complaints.

17 Aktas v France (dec); Gamaleddyn v France (dec) App no 18527/08, 30 June 2009 (ECtHR); Bayrak v France (dec) App no 14308/08, 30 June 2009 (ECtHR); Ghazal v France (dec) App no 29134/08, 30 June 2009 (ECtHR); Jasvir Singh v France (dec) App no 25463/08, 30 June 2009 (ECtHR); Ranjit Singh v France (dec).

64  Case law typology regarding new minorities Consequently, with France and the United Kingdom, a large share of the relevant case law comes from former colonial powers, which also today, in a post-colonial context, seem to restrict the rights of minorities stemming from their former colonies. From the picture painted by the quantitative analysis of the relevant case law, it could thus be argued that members of new minorities emerging due to migration from former colonies are still not accepted as full members of society, but seen as ‘others’. Looking at the model, which the two states adopted for dealing with the increased diversity they were confronted with, it can further be noted that the two countries chose a directly opposed approach: France in principle follows a so-called assimilationist approach, which, put very simplistically, means that minorities are generally expected to give up their own and take on the ‘French’ identity. The United Kingdom however adopted a so-called multiculturalist approach, which, again very simplified, is based on the idea that the cultures of minority groups can be maintained and need to be protected. Without going into the details of the debates led on the different models of diversity management, it appears interesting that despite these differences, many new minorities felt that their right to freedom of religion was violated by the policies adopted by both France and the United Kingdom.

2. The authors and respondent states in the case law of the HRC Differently than for the ECtHR, the authors of communications to the HRC adhered to only two religious beliefs, namely either Islam or Sikhism. Sikh applicants were male; Muslim applicants were female. Table I.2a Religion of the authors in the cases of the HRC Author religion

Percentage and number of cases

Islam Sikhism

42.9% of the total number of cases (3 cases) 57.1% of the total number of cases (4 cases)

It is interesting to note that all communications submitted by Muslim authors were decided in 2018. Prior to that, the HRC did not examine any communication brought by new Muslim minorities, although their complaints represented over half of the cases brought by new minorities to the ECtHR. A potential explanation for this could be that Sikh communities all over the (Western) world were already very organised. In fact, United Sikhs, ‘a UN-­affiliated, international non-profit, non-governmental, humanitarian relief, human development and advocacy organization’,18 supported several authors of the relevant communications. Differently than Muslim applicants, who tried their luck time and again with the ECtHR, the Sikh community was swift in broadening its field of action to the universal level.19 Only slowly, Muslim communities seem to have realised that directing their rights claims to the HRC promises more favourable outcomes. 18 See United Sikhs, ‘Start Page’ accessed 1 May 2019. 19 See also Giorgio Shani, ‘Transnational Religious Actors and International Relations’ in Jeffrey Haynes (ed), Routledge Handbook of Religion and Politics (Routledge 2009) 318.

Case law typology regarding new minorities 65 Table I.2b Religion of the author and respondent states in the cases of HRC Respondent state

Canada France Total

Percentage of total cases

Author’s religion Sikhism

Islam

14.3% (1 case) 85.7% (6 cases) 100% (7 cases)

1 3 4

0 3 3

Six out of seven communications, ie 85.7 percent, alleged a violation of Article 18 ICCPR by France. Consequently, similar as for the ECtHR, there was a high concentration on complaints against France. One communication was brought against Canada.

II. The adopted decisions Based on the method for data collection adopted by this research, cases resulting in three different outcomes were included. These were first complaints that were declared admissible and where the ECtHR or the HRC found a violation of Article 9 ECHR or Article 18 ICCPR. The second possible outcome was that the ECtHR or the HRC declared the complaint admissible, but found that there had been no violation of Article 9 ECHR or Article 18 ICCPR. Third, the complaint could be declared inadmissible based on Article 35(3a) ECHR or Article 2 of the Additional Protocol because it was regarded to be manifestly ill-founded or lacking substantiation, respectively. Among the decisions allotted to this last category, again two different outcomes could be distinguished based on the motivation given for the inadmissibility decision. This was first that the complaint was regarded manifestly ill-founded because the body in question found that there was no interference with the rights of the applicant(s), or, second, although there was an interference, it was regarded to be justified based on Article 9(2) ECHR or Article 18(3) ICCPR.

1. The judgments and decisions adopted by the ECtHR and the EComHR Overall, both the EComHR and the ECtHR found only four violations of the right to freedom of religion guaranteed by Article 9 ECHR, which amounts to 12.1 percent of all the decisions and judgments adopted regarding new minorities. In seven cases, ie 21.2 percent, the complaint was declared admissible, but no violation was found. The overwhelming majority of the complaints, ie 22 cases or 66.7 percent, was declared inadmissible since it was regarded as manifestly illfounded. In five of these complaints, no interference with Article 9 ECHR was found and in 17 cases, the interference was regarded to be justified. At this point, it seems important to highlight that a quantitative study of the whole Article 9 case law of the ECtHR, based on a different methodological

66  Case law typology regarding new minorities Outcome of the case 12.1%

66.7%

Violation

No violation

21.2%

Inadmissible

Figure 3.2 Outcome of the complaints brought to the ECtHR/EComHR

approach, revealed that in 30 percent of the complaints brought under ­Article 9 ECHR a violation was found.20 Comparing such number to the findings of the present empirical research, it seems odd that the percentage of violations found in cases regarding new minorities is significantly lower. Additionally, the high percentage of inadmissibility decisions stands out. This might be linked to efforts to reduce the ECtHR’s workload, which, focusing on speed and efficiency, have increased the amount of complaints declared inadmissible. Yet, since these decisions generally do not examine the complaint on the merits, the situation raises issues with regard to the quality and transparency of judicial reasoning.21 Although this will be dealt with in further detail in the next section, certain general observations must already be made at this stage. Based on the methodology adopted by this research, only complaints which were declared inadmissible because they were regarded as manifestly ill-founded were included. It shall be recalled that generally, complaints are declared manifestly illfounded ‘if the facts about which a complaint is lodged evidently do not indicate a violation of the Convention, or if those facts cannot be proven or are manifestly incorrect’.22 Declaring a complaint manifestly ill-founded also involves, to a certain extent, an assessment of substantive aspects of the respective case.23 The respective decision of the ECtHR (or the EComHR) thus conveys the message to members of new minorities that a situation which they perceive(d) as a violation of their human rights is not considered an issue under the Convention. Furthermore, since a referral to the Grand Chamber can only be requested with regard to judgments and not decisions, the applicants are deprived of any possibility for reconsideration.24 20 Ferrari 16f. 21 Gerards, ‘Inadmissibility Decisions’ 148f. 22 Leo Zwaak, ‘The Procedure Before the European Court of Human Rights’ in Pieter Van Dijk and others (eds), Theory and Practice of the European Convention on Human Rights (Intersentia 2006) 198. 23 CoE, Admissibility Guide 82ff; Gerards, ‘Inadmissibility Decisions’ 155. 24 Art 43 ECHR.

Case law typology regarding new minorities 67 This situation might also have broader implications for procedural justice in ECHR adjudication. The concept of procedural justice was developed in social psychology and is based on the premise that applicants do not only care about the outcome of their case, but also how it is handled.25 One of the central conclusions to be drawn from this concept for an (international) court is that ‘(p)eople should be given the feeling that they and their concerns are taken seriously by the legal system’.26 Thus, if the applicant feels treated as a right holder and valued member of society, the decision taken by the Court becomes more acceptable, even if the desired outcome is not achieved.27 The applicants in the decisions included in this research are members of a minority group, who, by definition, find themselves in a disadvantaged position in society.28 It has been highlighted that in particular for minorities, procedural fairness is of crucial importance.29 Consequently, although the reduction of the ECtHR’s workload is certainly an important aim, the observable tendency towards declaring complaints of new minorities inadmissible is very problematic, since it signals to members of minorities that their concerns are not protected by the ECHR.30 Yet, a more detailed examination of the case law in the following will show that the situation is not as simple as it might seem at first.

a. The religious beliefs of the applicant(s) Looking at the division of the cases by reference to the group the applicant(s) can be allocated to, it can be noted that the ECtHR only found a violation of Article 9 ECHR for adherents of Buddhism, Hinduism and Islam. However, whereas for both Buddhists and Hindus, one third of the situations brought to the attention of the ECtHR were regarded as a violation of the Article 9 ECHR, for Muslims, only in one out of 18 complaints a violation was found. For Sikhs, no violation of their right to freedom of religion was found and no complaint was examined on the merits, but all were declared inadmissible. Whilst other scholars have already highlighted that Muslims have difficulties in finding recognition for their claims by the ECtHR,31 it is interesting that also

25 John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis (L Erlbaum Associates 1975) 1ff. See also Eva Brems and Laurens Lavrysen, ‘Procedural Justice in Human Rights Adjudication: The European Court of Human Rights’ (2013) 35 HRQ 176, 177. 26 Brems and Lavrysen, ‘Procedural Justice’ 181; Tom R Tyler, Why People Obey the Law (Yale UP 1990) 149. 27 John M Greacen, ‘Social Science Research on “Procedural Justice”: What Are the Implications for Judges and Courts’ (2008) 47 Judges’ Journal 41. 28 See above Chapter 1, section II. 29 Saïla Ouald Chaib and Eva Brems, ‘Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe’ (2013) 2 Journal of Muslims in Europe 1, 3ff. 30 Saïla Ouald Chaib, ‘Suku Phull v. France Rewritten from a Procedural Justice Perspective: Taking Religious Minorities Seriously’ in Eva Brems (ed), Diversity and European Human Rights: Rewriting Judgments of the ECHR (CUP 2013) 221; see however for a comparison to the case law regarding old minorities Bretscher, ‘Comparison’ 157f. 31 See eg Peter G Danchin, ‘Islam in the Secular Nomos of the European Court of Human Rights’ (2011) 32 MJIL 663.

68  Case law typology regarding new minorities adherents of Sikhism, another religion commonly associated with migration in the European context, seem to be confronted with similar difficulties. The question arises thus, which commonalities of Islam and Sikhism, as opposed to Buddhism and Hinduism, might explain this situation. Looking at the religious practices, which were restricted in the respective cases, it can be noted that cases regarding Muslims and Sikhs mostly revolved around religious garments like the headscarf or the turban, which allow a clear identification of a person as an adherent of this specific belief.32 Table II.1a Religion of the applicant and outcome of complaints to the ECtHR/ EComHR Decision

Violation No violation Inadmissible Total

Percentage of total cases 12.1% (4 cases) 21.2% (7 cases) 66.7% (22 cases) 100% (33 cases)

Applicant religion Buddhism Hinduism Islam Sikhism 2 0 4 6

1 0 2 3

1 7 10 18

0 0 6 6

Contrary to this, the complaints brought by Buddhists, in which violations were found, concerned dietary rules, namely vegetarianism, which, although in this case motivated by religious beliefs, could also be based on a non-religious motivation, such as health concerns or simply lifestyle choices.33 The case concerning Hinduism, in which a violation was found, concerned the refusal of authorities to register a religious association, which, given that also non-religious associations need to be registered, could be qualified as a non-religion-specific issue.34

b. The respondent state Examining the decisions adopted by the ECtHR and the EComHR based on the respondent state, it can be noted that the four violation judgments were adopted against Belgium, Bulgaria, Poland and Romania. Three of those countries are Eastern European countries that acceded the ECHR in 1992, 1993 and 1994 respectively, thus comparatively late. These are the only three judgments regarding these countries, which means that all complaints resulted in a violation judgment. One violation was found against Belgium, which was among the first states to ratify the ECHR. The relevant judgment was however adopted only very recently, namely in September 2018.35

32 See eg Aktas v France (dec); El Morsli v France (dec) App no 15585/06, 4 March 2008 (ECtHR); Phull v France (dec) App no 35753/03, ECHR 2005-I (ECtHR); Mann Singh v France (dec). 33 Jakóbski v Poland; Vartic v Romania (No 2). 34 Genov v Bulgaria App no 40524/08, 23 March 2017 (ECtHR). 35 Lachiri v Belgium App no 3413/09, 18 September 2018 (ECtHR).

Case law typology regarding new minorities 69 Table II.1b Respondent state and outcome of the complaints to the ECtHR/EComHR Respondent state

Austria Belgium Bulgaria France Germany Latvia Poland Romania Switzerland The United Kingdom Total

Percentage of total cases

Decision Violation

No violation or inadmissible

3% (1 case) 9.1% (3 cases) 3% (1 case) 39.4% (13 cases) 3% (1 case) 3% (1 case) 3% (1 case) 3% (1 case) 6.1% (2 cases) 27.3% (9 cases) 100% (33 cases)

0 1 1 0 0 0 1 1 0 0 4

1 2 0 13 1 1 0 0 2 9 29

Most decisions in which no violation was found or in which the complaint was declared inadmissible concerned France and the United Kingdom. Thirteen cases were brought against France, ie 39.4 percent; nine cases were brought against the United Kingdom, ie 27.3 percent. Both states can be seen as one of the ‘founding fathers’ of the CoE and ratified the ECHR comparatively early, namely in 1974 (France) and 1953 (the United Kingdom). The other no violation or inadmissibility decisions concerned Austria, Belgium, Germany, Latvia and Switzerland, which, apart from Latvia, all ratified the ECHR early on. Considering France’s and the United Kingdom’s long membership of the CoE and their large communities of new minorities, it is not particularly surprising that applicants brought the most complaints against these two countries. Nevertheless, it does not appear self-evident that none of the many complaints resulted in a violation judgment. France and the United Kingdom, together with Bulgaria, Poland and Romania, are among the ten CoE member states, concerning which the ECtHR has taken the most judgments on the merits from 1959 to 2016.36 Furthermore, they are also all among the 11 states against whom most violations were found in this time span.37 The question arises then, why in the context of new minorities’ religious freedom, violations were found only regarding Bulgaria, Poland and Romania, but not against France or the United Kingdom. An earlier quantitative study of the case law on Article 9 ECHR found that the ECtHR is more likely to find a violation by a recently democratized country than by a state with a longer democratic experience.38 Applying this approach to 36 See ECtHR Public Relations Unit, Statistics 1959–2016 (March 2017). 37 See ibid. 38  Ferrari 20f. Apart from choosing a different methodological approach, the mentioned study also based its reasoning mainly on the majority religion in the countries against which

70  Case law typology regarding new minorities complaints in the context of new minorities, it can be noticed that both France and the United Kingdom have a long democratic tradition and are generally regarded as having a system in place that ensures the respect for human rights at the national level.39 Bulgaria, Poland and Romania, however, are former communist states which have been democratized only recently. Although regarded as having a satisfactory or good human rights record,40 the ECtHR, maybe based on their comparatively short ‘democratic experience’, seems to have fewer scruples to find that they have violated the ECHR. In this regard, it appears illustrative that while for Romania, the total number of violations found has nearly doubled from 2009 to 2016, for France the number has increased only one quarter.41 Applied to the complaints brought by new minorities, an additional factor comes into play, namely that the issues arising in this context, such as the human rights conformity of a prohibition of the wearing of headscarves or turbans by students,42 are usually politically controversial in the states in question. Combined with the heated discussions on the subsidiarity of the Convention mechanisms, this seems to have led the Court to refrain, in the large majority of cases, from interfering with the policy choices in Western European states. A point outside the curve is the violation found in a complaint brought against Belgium at the end of 2018. The case concerned the exclusion of a woman who was wearing a headscarf and who was a civil party to the proceedings from the courtroom; it could be regarded as an indication of a change of approach of the ECtHR.43

c. The decision-maker The supervision system of the ECHR underwent a reform process in 1998; thus, three different bodies, namely the EComHR, which does not exist anymore today, and the ECtHR sitting in a Chamber formation and the ECtHR sitting in a Grand Chamber formation, took the decisions and judgments collected. Out of the 33 decisions and judgments, 11 were taken by the EComHR, 21 by the ECtHR in a Chamber formation and 1 by the ECtHR sitting as a Grand Chamber. All decisions taken by the EComHR found the complaint to be manifestly ill-founded and thus inadmissible. While in five cases the reason given for such decision was that there had been no interference with Article 9 ECHR, in the other six cases the interference was regarded as justified.

violations were found, namely Orthodox Christianity, which cannot be confirmed by the present research, since Poland’s population is mostly Catholic. 39 See eg Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (CUP 2006) 78ff. 40 See for this qualification ibid 121ff. 41 ECtHR Public Relations Unit, Statistics 1959–2016; ECtHR Public Relations Unit, 50 Years of Activity: The European Court of Human Rights: Some Facts and Figures (April 2010). 42 See eg Aktas v France (dec); Ranjit Singh v France (dec). 43 Lachiri v Belgium.

Case law typology regarding new minorities 71 Conversely, the ECtHR never declared a complaint brought by a member of a new minority inadmissible because of a lack of interference with Article 9 ECHR. This can be linked to the more restrictive approach taken by the EComHR to the interpretation of the scope of Article 9 ECHR, which was only recently reversed by the ECtHR.44 Nevertheless, when exclusively considering the judgments and decisions of the ECtHR (and not the EComHR), the percentages of the possible outcomes of the cases look only slightly different: Out of the 22 decisions, 18.2 percent found a violation, 31.8 percent found no violation and 50 percent were declared inadmissible. This means that although the ECtHR, taken alone, has declared fewer complaints inadmissible, it still found relatively few violations, but examined a higher percentage of complaints on the merits (which is not too difficult, considering that the EComHR did not examine any complaint on the merits). Such finding can be relativised when considering the collected case law from a perspective of time. Until 2008, the ECtHR continued the tradition of the EComHR and declared all complaints brought by new minorities inadmissible. Thus, only in 2008, a first judgment on the merits was adopted.45 The first violation was found two years later, in 2010, the second in 2013, the third in 2017 and the last in 2018.46 In recent years, a tendency can thus be observed to examine complaints brought by new minorities on the merits instead of declaring them inadmissible.47 Tellingly, since 2010 only one inadmissibility decision was taken, four violations were found and five complaints were declared admissible, but no violation was found. This change has mostly affected Muslim applicants, who had their complaints examined in further detail than was previously the case.48 In 2018, the first violation of the right to freedom of religion of a member of a Muslim new minority was found.49 This could represent a change of approach for complaints brought by members of new minorities, especially since this tendency contradicts the trends identified for the case law of the ECtHR in general, mentioned at the beginning of this section, namely that the Court has declared more complaints inadmissible in an effort to reduce the backlog in cases.50 Confronting this situation with the criticism voiced at that stage based on the concept of procedural justice, a more detailed analysis of the case law must lead to a certain correction of the conclusion

44 See above Chapter 2, section I(1). 45 See Dogru v France App no 27058/05, 4 December 2008 (ECtHR); Kervanci v France App no 31645/04, 4 December 2008 (ECtHR). 46 See Genov v Bulgaria; Jakóbski v Poland; Vartic v Romania (No 2); Lachiri v Belgium. The ECtHR found the first violation of Article 9 ECHR also comparatively late, namely in 1993 in Kokkinakis v Greece. 47 See however the complaints regarding the French law prohibiting the wearing of ostentatious religious symbols by students in public schools, which were all declared inadmissible in 2009 eg Aktas v France (dec). 48 See eg SAS v France [GC]; Osmanog˘lu and Kocabas¸ v Switzerland. 49 Lachiri v Belgium. 50 See above Chapter 3, section II(1).

72  Case law typology regarding new minorities reached: In recent years, concerns of members of new minorities seem to have been taken more seriously, which is a welcome development. Nevertheless, it should be kept in mind that declaring a complaint admissible and examining it on the merits does not necessarily indicate that the assessment of the issues raised by new minorities is really based on more respect for concerns of procedural justice. In this regard, the qualitative analysis put forward in the next chapter will be of crucial importance. Yet, the analysis of the proportion of votes with which the decisions were adopted might already give a first indication. It can be observed that more than half of the decisions regarding new minorities, ie 18, were taken unanimously by the EComHR or the ECtHR. Eight and seven decisions, respectively, were taken by the majority of the judges or did not indicate the proportion of votes. Only five of the 33 decisions included separate opinions. This shows that most of the decisions taken were apparently not controversial among the judges. However, it seems surprising that three out of the four decisions finding a violation of Article 9 ECHR are not among the few debated decisions. Instead, five out of eight majority decisions were inadmissibility decisions, two were judgments where no violation was found and only in one case, a violation was found. Additionally, in these last three judgments several judges decided to add their separate opinions. Tellingly, all three judgments are very recent, namely from 2014, 2015 and 2018.51 They could thus represent a trend towards a more thorough discussion of issues surrounding new minorities’ religious freedom by the judges of the ECtHR, which would be positive from the perspective of procedural justice.52

2. The views adopted by the HRC The communications brought by members of new minorities to the HRC resulted either in a finding of a violation or in a finding of no violation of Article 18 ICCPR because there was either no interference or the interference was justified based on Article 18(3) ICCPR. In contrast to the ECtHR, the HRC declared no communication brought by a member of a new minority based on Article 18 ICCPR inadmissible because it was regarded manifestly ill-founded. Yet, it needs to be considered that the HRC is more restrictive when deciding whether or not to register a communication.53 These decisions are however not published and could thus not be included in the present analysis.

51 Ebrahimian v France App no 64846/11, ECHR 2015 (ECtHR); SAS v France [GC]. The two most recent no violation judgments, namely Belcacemi and Oussar v Belgium App no 37798/13, 11 July 2017 (ECtHR) and Dakir v Belgium App no 4619/12, 11 July 2017 (ECtHR), were however decided unanimously. 52 Also data about the deciding judges were collected but were identified as not relevant for the outcome of the cases. 53 See Kälin 7.

Case law typology regarding new minorities 73 Outcome of the case 14.3%

85.7%

Violation

No violation

Figure 3.3 Outcome of the cases decided by the HRC

In general, it can be observed that the HRC is significantly more likely to find a violation of new minorities’ right to freedom of religion than the ECtHR and the EComHR: Whereas the latter found a violation of Article 9 ECHR only in 12.1 percent of the cases, the HRC found a violation in 85.7 percent of the ­cases.54 Thus, out of the seven cases brought to the HRC by new minorities formed by recent migration, the body found a violation of the right to freedom of religion in six. Only in one case a violation was denied.55 Looking at the respondent state, no specific patterns can be detected. Thus, all seven complaints concerned states with a very similar history and role in international politics today, namely Canada and France. The only no violation decision was taken regarding Canada in a communication by a Sikh author.56 What can however be highlighted is that the said no violation decision at the same time represents the earliest of the analysed views of the HRC, adopted in 1989. Ever since then, the HRC has only found violations when confronted with communications by members of new minorities.

III. The legal questions posed The third characteristic of the collected case law, which is examined by the present research, is the legal question which the ECtHR or the EComHR and the HRC had to answer in the specific case. This first concerns the aspect of the right to freedom of religion, which is at play, and second the context, in which the complaint can be situated. Furthermore, the obligation the state is said to have

54 See for the percentages of the ECtHR above Chapter 3, section II(1). 55 Karnel Singh Bhinder v Canada. 56 Ibid.

74  Case law typology regarding new minorities violated as well as the legitimate aim it pursued with the interference and its legal basis are included in the analysis.

1. Relevant legal questions in the case law of the ECtHR and the EComHR a.  The aspect of the right to freedom of religion and belief A first relevant characteristic is the aspect of freedom of religion and belief, which is claimed to be violated. Article 9 ECHR guarantees both the right to hold and to manifest religious beliefs. Yet, complaints brought by new minorities exclusively allege violations of the right to manifest religious beliefs. This means that in case an interference is found, such interference can be justified based on the conditions specified in Article 9(2) ECHR. Based on Article 9(1) ECHR, an individual is guaranteed the right to manifest his or her religious beliefs alone as well as in community with others. In most complaints brought by members of new minorities, namely in 28 cases or 84.8 percent, the legal question posed referred to the right to manifest religious beliefs alone. Only five cases referred to the right to manifest religious beliefs in community with others, four of which were declared inadmissible. However, all four cases were decided by the EComHR, which, as was elaborated above,57 adopted a restrictive interpretation of the scope of Article 9 ECHR. Furthermore, in one of the inadmissibility decisions, the EComHR explicitly stated that ‘the right to manifest one’s religion “in community with others” has always been regarded as an essential part of the freedom of religion’.58 In recent years, scholars have even observed a tendency of the ECtHR to grant manifestations of religious belief in community with others a stronger protection.59 This is confirmed by a recent decision on new minorities’ right to manifest their religious beliefs in community with others, in which a violation was found.60 This could also explain the high number of no violation or inadmissibility decisions among more recent complaints, which mostly concerned the right to manifest religious beliefs alone. Furthermore, the ECHR guarantees the right to manifest religious beliefs in practice, worship and teaching. Most complaints brought by new minorities, namely 26 cases or 78.8 percent, concerned the right to practice religious beliefs. Five cases concerned manifestations of religious beliefs in worship, one in teaching and one in various forms of manifestations. This concentration on manifestations by practicing religious beliefs can be explained by the fact that the category ‘practice’ is very broad and thus contains the largest variety of religious manifestations.

57 See above Chapter 2, section I(1). 58 X v the United Kingdom (1981) para 5. See also Shaw, ‘Freedom’ 450. 59 See Evans C, ‘Individual’. See for a similar observation by a former judge Nicolas Bratza, ‘The “Precious Asset”: Freedom of Religion Under the European Convention on Human Rights’ (2012) 14 Ecclesiastical Law Journal 256. 60 Genov v Bulgaria.

Case law typology regarding new minorities 75 Lastly, the ECHR guarantees the right to manifest religious beliefs in public or in private. At this point, the above specified distinction of the private and the public sphere, namely that everything falling outside of the sphere of the religious community and the private home is regarded as belonging to the public sphere,61 should be recalled. Applying this distinction to the collected case law, it can be stated that most complaints brought by new minorities, namely 28 cases or 84.8 percent, concerned manifestations of religious belief in the public sphere. Although not clearly defining the distinction of the private from the public sphere, the ECtHR conveys a clear message when using these concepts by stating that 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. However, it does not always guarantee the right to behave in the public sphere in a way which is dictated by such beliefs.62 As analyses of the relevant case law confirm, this means that in practice, the ECtHR offers a weaker protection to manifestations of religious beliefs in the public sphere than to manifestations in the private sphere.63 Such approach is allegedly based on the ‘assumption (. . .) that there is a neat distinction between the public and the private spheres, and that religious expression is normally confined to the latter’.64 This might provide an explanation for the high percentage of no violation and inadmissibility decisions for complaints brought by members of new minorities. However, four out of five of the collected complaints concerning the manifestation of religious beliefs in the private sphere were declared inadmissible, which would be an argument against the relevance of the distinction between public and private sphere for the outcome of the cases. Nevertheless, these four decisions are relatively old (from 1986, 1994 and 1996 respectively) and were all decided by the EComHR.65 The only complaint brought regarding the manifestation of religious beliefs in the private sphere since then resulted in a violation

61 Eg Ringelheim, ‘Public Sphere’; Rorive. See also Evans M D, Manual 75ff, who uses however a different terminology. 62 See eg Thlimmenos v Greece App no 34369/97, Commission decision of 4 December 1998 (EComHR) para 40. The formulation used today is slightly different, since the ECtHR usually states that religious freedom ‘is primarily a matter of individual conscience’, see SAS v France [GC] para 125. 63 See eg Ringelheim, ‘Public Sphere’; Rorive. 64 Ringelheim, ‘Public Sphere’ 294. 65 ISKCON and 8 Others v the United Kingdom (dec) App no 20490/92, Commission decision of 8 March 1994 (EComHR); Karakuzey v Germany (dec) App no 26568/95, Commission decision of 16 October 1996 (EComHR); Khan v the United Kingdom (dec) App no 11579/85, Commission decision of 7 July 1986, Decisions and Reports 48, p 253 (EComHR); Logan v the United Kingdom (dec) App no 24875/94, Commission decision of 6 September 1996 (EComHR).

76  Case law typology regarding new minorities decision.66 Apart from this, new minorities have only brought complaints regarding the manifestation of religious beliefs in the public sphere. This is not surprising: Based on Arendt’s work, the public sphere designates ‘that which is common to all’.67 The place of religion in the public sphere of a given society today is however strongly influenced by the traditions of the historically dominant faith.68 Since new minorities have not taken part in the historical shaping of this common space, they are now trying to secure a place for their own religions in the public sphere.69 Based on this reasoning, it can be argued that the weaker protection of manifestations of religious beliefs in the public sphere by the ECtHR constrains the rights claims of new minorities.

b. The context of the complaint The second relevant aspect of the legal question posed by the applicants in the collected complaints is the context in which such a question can be situated. Three main areas can be identified, namely education, prison and security. Interestingly, two of the total of four violations, which were found concerning new minorities’ right to manifest their religious beliefs, regarded the prison context. Both cases concerned the question whether the non-availability of vegetarian meals in prison violated the applicants’ religious beliefs.70 Other issues raised in the prison context were the possibility to perform religious rituals or the refusal of a prisoner to clean his cell based on religious grounds.71 All respective complaints were declared manifestly ill-founded and thus inadmissible. In the area of education, the complaints concerned the wearing of religious symbols by students and teachers as well as the refusal to participate in certain classes based on religious grounds.72 Issues raised related to the area of security were the wearing of religious head coverings on official documents or the removal of religious garments for security checks.73 In both contexts, no violation was found.

66 Genov v Bulgaria; see for a comparison to the case law of old minorities Bretscher, ‘Comparison’ 159f. 67 Arendt 55. 68 Ringelheim, ‘Public Sphere’ 296. See for further elaborations Will Kymlicka, Multicultural Citizenship (OUP 1995). 69 See in this regard the interesting statement of France’s Prime Minister Manuel Valls, ‘En France, les femmes sont libres’ Huffington Post (5 September 2016) accessed 1 May 2019, on the burkini: ‘The burkini is not a harmless bathing suit (. . .) (but) a provocation, a radical Islamism, which appears and wants to impose itself in public space’ (translation by the author). 70 Jakóbski v Poland; Vartic v Romania (No 2). 71 Koval¸kovs v Latvia (dec) App no 35021/05, 31 January 2012 (ECtHR); X v the United Kingdom (dec) App no 8231/78, Commission decision of 6 March 1982, Decisions and Reports 28, p 5 (EComHR). 72 See eg Aktas v France (dec); Dahlab v Switzerland (dec); Osmanog˘lu and Kocabas¸ v Switzerland. 73 Phull v France (dec).

Case law typology regarding new minorities 77

c. The state obligation The third relevant aspect of the legal question posed is the distinction between positive and negative state obligations, which seems to bear a certain weight for the outcome of the case. It can be observed that most of the complaints, ie 29 cases or 87.9 percent, were assessed by the ECtHR or the EComHR in terms of negative state obligations. Only two complaints were examined in terms of positive obligations, and two complaints were assessed in terms of both positive and negative obligations. Yet, it appears striking that two out of four cases in which a violation of Article 9 ECHR was found concerned positive state obligations and were decided by the ECtHR very recently (2010 and 2013). The two cases concerned the positive obligation of the state to provide prisoners with food according to their religious beliefs.74 Although the number of complaints is very limited, it seems that today the ECtHR is more likely to find a violation of positive state obligations vis-à-vis new minorities than of negative state obligations. This is surprising because positive obligations are perceived as more demanding, since the state is requested to take action. In general, the ECtHR is rather restrictive when it comes to the recognition of positive obligations and leaves states a wide discretion in this regard.75 Consequently, for a long time positive obligations in the context of Article 9 ECHR were confined to the protection against acts of violence.76 The two cases regarding new minorities thus represent an expansion of the positive obligations of the state, which rests only to a limited extent on previous case law. It could be argued that, in cases concerning negative state obligations, the Court is restricted by the parameters established in its previous case law, which, based on the restrictive approach taken in early cases, leads to a higher threshold for the finding of violations. Conversely, this is not the case for complaints examined in terms of positive obligations. Such hypothesis however needs to be verified in the more detailed analysis of the reasoning adopted in the relevant judgments and decisions in the next chapter.

d. The legitimate aim pursued and the legal basis Lastly, two elements appear relevant when considering the justification provided for the restriction of new minorities’ right to manifest their religious beliefs.77 The first is which legitimate aim was used to justify the interference. Out of the 26 cases referring to one or several legitimate aims in their reasoning, 19, ie 73 percent, state that the interference was based on the legitimate aim to protect the rights and freedoms of others. Fifteen, thus 57.7 percent, refer to 74 See Jakóbski v Poland; Vartic v Romania (No 2). 75 See Yutaka Arai, ‘The System of Restrictions’ in Pieter Van Dijk and others (eds), Theory and Practice of the European Convention on Human Rights (4th edn, Intersentia 2006) 348ff; Dimitris Xenos, The Positive Obligations of the State Under the European Convention of Human Rights (Routledge 2012) 19ff. 76 See above Chapter 2, section II. 77 The following elaborations exclude cases where no interference with Art 9 ECHR was found, because in these decisions the conditions for justification were not examined.

78  Case law typology regarding new minorities the protection of public order. In the cases concerning the wearing of religious symbols in education contexts, the aims of protection of rights and freedoms of others and public order are often taken together. Public safety and public health are referred to only in five and three cases respectively. Public morals are mentioned once as a legitimate aim. The second relevant element is the legal basis in question, namely whether the law can be categorised as neutral or religion specific. It has been highlighted that the ECtHR follows a restrictive approach when it comes to religiously neutral laws and does not include an obligation of states to provide for exemptions from such laws on religious grounds.78 In fact, 21 of the collected cases, ie 63.6 percent, concerned religiously neutral laws. Yet, three cases in which a violation was found were also based on neutral laws, but the ECtHR found that the state in question was obliged to provide an exemption. Furthermore, if the legal basis was not neutral, such as in the cases concerning the French law prohibiting students from wearing ostentatious religious symbols in public schools, the ECtHR declared respective complaints inadmissible.79

2. Relevant legal questions in the case law of the HRC a. The aspect of the right to freedom of religion Considering the aspect of the right to freedom of religion and belief, which the authors of the communications cited, it was determined that, like for the ECtHR, new minorities did not bring any communication alleging a violation of their absolute right to have or to change religious beliefs. Instead, all communications concerned the right to manifest religious beliefs, the interference with which can be justified based on Article 18(3) ICCPR. Moreover, all communications regarded manifestations of religious beliefs in the public sphere. Differently than for the ECtHR, no tendency towards a more restrictive protection of manifestations in the public sphere can be detected based on the quantitative analysis of the collected case law. Moreover, all communications concerned the individual (and not collective) manifestation of religious beliefs. Lastly, while Article 18(1) ICCPR guarantees the right to manifest religious belief ‘in worship, observance, practice and teaching’, communications by members of new minorities exclusively concerned manifestations in practice, such as the wearing of religious garments in different contexts.

b. The context of the complaint The seven communications brought to the HRC can be situated in four different contexts. Two communications concerned issues surrounding the manifestation

78 Evans C, Freedom of Religion 179 ff.; Henrard, ‘Church-State Relations’ 81. 79 See eg Aktas v France (dec).

Case law typology regarding new minorities 79 of religious beliefs in the context of security, namely the wearing of Sikh headgear on official photographs for a passport or a residence permit.80 A third communication regarded the context of education, namely the question whether a Sikh student could be excluded from school for wearing a keski, a subtler version of a turban.81 All these cases were seen as a violation of Article 18 ICCPR. The oldest and one of the most recent of the relevant communications concerned the work context, namely whether a Sikh employee of a public railway company should be exempted from the obligation to wear safety headgear while at work and whether a Muslim employee in a private childcare could be dismissed because she refused to take off her headscarf during work.82 While the former resulted in a decision of no violation, the HRC found that the latter violated Article 18 ICCPR. Two other very recent communications concerned the wearing of religious garments, namely the burqa, in public places, and both resulted in the finding of a violation of Article 18 ICCPR.83

c. The state obligation and the legal basis Regarding the distinction between positive and negative state obligations, it is worth noting that none of the communications brought to the HRC by new minorities was examined in terms of positive obligations. Moreover, five out of seven communications concerned laws that were, at least formally, formulated in a neutral manner, such as a law requiring photographs for official documents to be taken bareheaded.84 Four of them found a violation of Article 18 ICCPR. Two cases concerned a religion-specific norm, namely a law prohibiting the wearing of ostentatious religious symbols in public schools and in a private childcare centre.85 Both resulted in the finding of a violation. This could be interpreted as meaning that the HRC’s approach, at least in cases concerning new minorities, does not differ depending on whether the law in question is formulated in a neutral manner or specifically aims at religious manifestations.

d. The legitimate aim pursued Considering the legitimate aims, which the HRC accepted as grounds for justifying the restriction of manifestations of religious beliefs by new minorities, it emerged that public safety and order are mentioned in six out of seven views. Comparing the legitimate aims accepted by the HRC to the case law of the

80 Ranjit Singh v France; Shingara Mann Singh v France. 81 Bikramjit Singh v France. 82 Karnel Singh Bhinder v Canada; FA v France, UN Doc CCPR/C/123/D/2662/2015, 16 July 2018 (HRC). 83 Sonia Yaker v France, UN Doc CCPR/C/123/D/2747/2016, 17 July 2018 (HRC); Miriana Hebbadj v France, UN Doc CCPR/C/123/D/2807/2016, 17 July 2018 (HRC). 84 Ranjit Singh v France; Shingara Mann Singh v France. 85 Bikramjit Singh v France; FA v France (the restriction was based on an internal regulation of the private childcare centre).

80  Case law typology regarding new minorities ECtHR, one can notice that the HRC only twice examined a case based on the legitimate aim of the protection of the fundamental rights and freedoms of others, which is so often used by the ECtHR.86 Only in one case did it accept the protection of the fundamental rights and freedoms of others as a legitimate aim.

IV. Conclusion Summarising the elaborations of this chapter, it can be held that complaints to the ECtHR and the EComHR have been brought by adherents of four different religious beliefs, namely Buddhism, Hinduism, Islam and Sikhism. Violations have only been found concerning Buddhists’, Hindus’ and Muslims’ right to manifest their religious beliefs, but not regarding Sikhs’ right to freedom of religion. Yet, although nearly half of the complaints were brought by Muslims, only one violation was found. An overwhelming majority of complaints was declared inadmissible because they were regarded as manifestly ill-founded. Most cases concerned Western European countries, namely France and the United Kingdom, but three out of four violations were found in complaints against three Eastern European countries, Bulgaria, Poland and Romania. From a perspective of time, it can be held that especially the EComHR took a very restrictive approach towards new minorities’ right to freedom of religion and belief, declaring all complaints inadmissible. Only in 2008, the ECtHR examined a first complaint on the merits, but it did not find a violation. In 2010, a first violation was found. Nevertheless, the decisions and judgments were usually not very controversial among the judges and only in five cases were separate opinions attached to a judgment. Contrary to this, the HRC has dealt with seven communications addressed to it only from new Sikh and Muslim, but not Hindu or Buddhist minorities. As for the ECtHR, all of them were directed against so-called Western states. However, different than in the realm of the ECtHR, six communications resulted in a finding of a violation of Article 18 ICCPR. This might be the most striking difference to the ECtHR’s case law on new minorities: Whereas most communications to the HRC resulted in the finding of a violation of Article 18 ICCPR, the ECtHR declared most complaints manifestly ill-founded and thus inadmissible. As a consequence, the HRC seems like a much more attractive venue for new minorities to direct their complaints to, given that the level of protection their right to freedom of religion and belief experiences appears significantly higher. Nevertheless, this needs to be further verified by considering also the reasoning adopted by the ECtHR and the HRC in the relevant decisions.

86 See ibid.

4 A closer look at the reasoning in the case law regarding new minorities

The quantitative analysis of the collected case law, which was used to create a typology of the relevant cases in the last chapter, allowed the highlighting of certain patterns and areas of divergence between the ECtHR and the HRC. Thus, for the ECtHR, the quantitative analysis showed that only in a small number of cases, a violation in relation to complaints submitted by members of new minorities was found. Moreover, a prevalence of complaints concerning manifestations in the public sphere as well as of limitations pursuing the aim to protect the rights and freedoms of others could be identified. It was concluded that, contrary to the ECtHR, the HRC generally is very likely to find a violation of Article 18 ICCPR when confronted with communications by new minorities. Yet, such typology does not provide the full picture of the case law concerning new minorities, which have emerged from recent migration. Judicial reasoning is crucial for the understanding of interpretations and applications of human rights provisions. Consequently, the analysis needs to be completed with a qualitative analysis of the reasoning adopted by the ECtHR and the HRC in the relevant cases. In order to be able to reflect and analyse the reasoning adopted as accurately as possible, this chapter follows the structure usually adopted by the ECtHR and the HRC in their assessment of the relevant cases.1

I. The existence of an interference . . . Both the ECtHR and the HRC usually examine in a first step whether the actions complained of by individual applicants amount to an interference with their right to manifest their religious beliefs. This entails determining whether the manifestation of religious beliefs in question is protected by Article 9 ECHR or Article 18 ICCPR.

1. . . . with Article 9 ECHR The previous chapter showed that only five out of 33 complaints brought by members of new minorities were dismissed because no interference with Article 9 1 See eg Ebrahimian v France; Osmanog˘lu and Kocabas¸ v Switzerland; SAS v France [GC]; Bikramjit Singh v France paras 7.1ff.

82  Reasoning in the case law on new minorities ECHR was found. Most of these decisions state the reasons for the denial of an interference only summarily. Thus, the EComHR held for example in X v the United Kingdom (1974) that the applicant, a Buddhist who was prohibited from publishing articles in a religious magazine while he was in prison, ‘failed to prove that it was a necessary part of (. . .) (his religious) practice’.2 The case Choudhury v the United Kingdom concerned a Muslim who complained that he had been offended in his religious sensitivities by a book allegedly containing blasphemous statements on Islam. He had tried to initiate criminal proceedings against the publishers and the authors, but such possibility only existed for blasphemy related to Christianity. The EComHR simply stated that it ‘finds no indication (. . .) of a link between the freedom from interference with the freedoms of Article 9 para. 1 of the Convention and the applicant’s complaints’.3 Yet, in one decision the EComHR examined the existence of an interference more extensively: The case X v the United Kingdom (1981) concerned a Muslim teacher who requested a re-arrangement of the school timetable to attend Friday prayers at a nearby mosque.4 While the EComHR recognised that Article 9 ECHR also protects the right to worship in community with others,5 it was not convinced that the attendance of Friday prayers at a mosque was a necessary part of the applicant’s religious practice. It found that the applicant was not able to convincingly show that his religion required him to disregard the obligations flowing from his employment contract as a teacher.6 In all these decisions, the restrictive interpretation of the scope of Article 9 ECHR based on the Arrowsmith test, according to which only acts ‘forming part of the practice of a religion or belief in a generally accepted form’ are protected by Article 9 ECHR,7 is clearly visible. Conversely, in other decisions, which were adopted during the same time period, the EComHR readily recognised the existence of an interference. It held for instance that a Buddhist’s right to manifest his religious beliefs had been limited by the confiscation of a book on Tai Chi by prison authorities8 and that requiring a high caste Sikh to clean the floor of his prison cell would interfere with his rights guaranteed by Article 9 ECHR.9 Such recognition was however often linked to the argument that the interference was justified in any

2 X v the United Kingdom (dec) App no 5442/72, Commission decision of 20 December 1974, Decisions and Reports 1, p 41 (EComHR). 3 Choudhury v the United Kingdom (dec) App no 17439/90, Commission decision of 5 March 1991 (EComHR). 4 X v the United Kingdom (1981). 5 Ibid para 5. 6 Ibid para 9. 7 Arrowsmith v the United Kingdom para 71; for further details see above Chapter 2, section I(1). 8 X v the United Kingdom (dec) App no 6886/75, Commission decision of 18 May 1976, Decisions and Reports 5, p 100 (EComHR). 9 X v the United Kingdom (dec) App no 8231/78, Commission decision of 6 March 1983, Decisions and Reports 28, p 5 (EComHR).

Reasoning in the case law on new minorities 83 event.10 This shows that the Arrowsmith test was not used consistently in the EComHR’s early decisions concerning the right of new minorities to manifest their religious beliefs. The ECtHR, in turn, avoided addressing the existence of an interference in its first decision concerning new minorities in 2001, and instead focused on the justification of the restriction in question.11 In later cases the existence of an interference was usually readily affirmed. For example, in the case Mann Singh v France, which concerned the question whether a Sikh should be allowed to wear a turban on the picture for his driving licence, the ECtHR held that the wearing of a turban was an act motivated or inspired by a religion or belief.12 Also the prohibition on wearing a headscarf by Muslims was recognised as an interference with Article 9 ECHR.13 This represented a change of assessment compared to the EComHR, which in an earlier decision held that refusing university students administrative services because they were wearing a headscarf did not amount to an interference with Article 9 ECHR.14 It seems thus that, at least with regard to well-known religious garments, the existence of an interference is no longer controversial. This also holds true for other commonly known manifestations of religious beliefs, such as following a meat-free diet for Buddhists.15 In 2012, in the case Koval¸kovs v Latvia concerning Hindu religious practices the ECtHR explicitly held that ‘(c)learly, it is not the Court’s task to determine what principles and beliefs are to be considered central to the applicant’s religion or to enter into any other sort of interpretation of religious questions’.16 This again is a departure from earlier approaches taken by the EComHR. Furthermore, it was held that ‘there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question’.17 Based on such reasoning, the ECtHR in Osmanog˘lu and Kocabas¸ v Switzerland also saw a minority interpretation of religious precepts, namely the refusal of Muslim students to participate in mixed-sex swimming classes even wearing a full-body swimsuit, a so-called burkini, as protected by Article 9 ECHR, without much discussion.18 Summing up, it can be stated that while new minorities at first encountered difficulties in arguing that manifestations of their religious beliefs are protected by Article 9 ECHR, this is no longer the case.

10 See eg X v the United Kingdom (dec) App no 7992/77, Commission decision of 12 July 1978, Decisions and Reports 14, p 234 (EComHR). 11 See Dahlab v Switzerland (dec). 12 Mann Singh v France (dec). 13 See eg Aktas v France (dec). The leading case in this regard is Leyla S¸ ahin v Turkey [GC], which however did not concern a member of a new minority. 14 Karaduman v Turkey App no 16278/90, Commission decision of 3 May 1993, Decisions and Reports 74, p 93 (EComHR). This decision was not included in the present research since the applicant, a Muslim in Turkey, was not a member of a new religious minority. 15 See eg Jakóbski v Poland para 45. 16 Koval¸kovs v Latvia (dec) para 60. 17 Eweida and Others v the United Kingdom para 82; Osmanog˘lu and Kocabas¸ v Switzerland para 64. 18 Osmanog˘lu and Kocabas¸ v Switzerland para 65.

84  Reasoning in the case law on new minorities

2. . . . with Article 18 ICCPR First, it should be noted that no communication was dismissed by the HRC because of a lack of interference with Article 18 ICCPR. Generally, the HRC nevertheless dedicated a few sentences to the issue. For example, in Bikramjit Singh v France, which dealt with the question whether a Sikh student could be excluded from school for wearing a keski, the HRC made the following elaborations: The Committee refers to its general comment No. 22 concerning article 18 of the Covenant and considers that the freedom to manifest a religion encompasses the wearing of distinctive clothing or head coverings. The fact that the Sikh religion requires its male members to wear a turban in public is not contested. The wearing of a turban is regarded as a religious duty for a man and is also tied in with a person’s identity. The Committee therefore considers that the author’s use of a turban or a keski is a religiously motivated act, so that the prohibition to wear it under Act No. 2004–228 constitutes a restriction in the exercise of the right to freedom of religion.19 Similar statements can be found in the five other views, which were adopted in the last years and found a violation of Article 18 ICCPR.20 Only in the case Bhinder v Canada, which was decided in 1989 and found no violation of Article 18 ICCPR, the HRC did not clearly examine whether requiring a Sikh electrician to wear a hard hat at work amounted to an interference with Article 18 ICCPR. Instead, it just vaguely stated that ‘(i)f the requirement that a hard hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified’.21 In fact, the HRC did not even clarify whether the case should be examined in terms of an interference with Article 18 or 26 ICCPR (prohibition of discrimination).22 Such approach has been criticised as superficial, not only with regard to the examination of the existence of an interference, but especially based on the assessment of the conditions for limitations, which will be examined in further detail below.23 Nevertheless, elaborate reasoning on the question of the existence of an interference appears less crucial if this was not the ground for denying a violation, as was the case in some early decisions of the EComHR.24 Moreover, as the views cited above show, the HRC today includes more detailed reasoning on the existence of an interference with the rights of new minorities, even in cases finding a violation of Article 18 ICCPR.

19 Bikramjit Singh v France para 8.3. 20 Ranjit Singh v France para 8.3; Shingara Mann Singh v France para 9.3; FA v France para 8.3; Miriana Hebbadj v France para 7.3; Sonia Yaker v France para. 7.3. 21 Karnel Singh Bhinder v Canada para 6.2. 22 Ibid paras 6.1f. 23 Petzhold 123f; Tahzib 294ff. 24 See eg Choudhury v the United Kingdom (dec).

Reasoning in the case law on new minorities 85

II. Positive state obligations . . . Both the ECtHR and the HRC generally acknowledge that the right to freedom of religion and belief does not only oblige states not to interfere with this right (negative obligation), but also requires them, under certain conditions, to take active steps to safeguard this right (positive obligation).25 In the previous chapter it was established that the ECtHR examined very few complaints in terms of positive obligations, thus requiring the state to take active measures to ensure the safeguard of the applicant’s right to manifest his religious beliefs. The HRC did not examine any communications by new religious minorities in terms of positive obligations. In this section, a closer look shall be taken at the reasoning adopted in relevant decisions, which led to such patterns.

1. . . . in the case law of the ECtHR As was established in the previous chapter, two out of four complaints brought by new minorities, in which the ECtHR found a violation of Article 9 ECHR, were examined in terms of positive states obligations. It appears thus warranted to take a closer look at the approach taken by the ECtHR to positive obligations in cases regarding new minorities to further inquire whether this might influence the outcome of the complaint. In both violation judgments, namely Jakóbski v Poland26 and Vartic v Romania (No 2),27 the ECtHR explicitly discussed the distinction between the principles applicable to positive and negative state obligations. Although the applicants, both Buddhist prisoners, had argued that the authorities’ refusal to offer them meat-free meals amounted to an interference with Article 9 ECHR, and thus a violation of a negative state obligation, the ECtHR found that their complaint was ‘more appropriately examined from the standpoint of the respondent State’s positive obligations’.28 In accordance with its standing case law,29 it found that irrespective of whether a complaint was examined in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 9 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the 25 See above Chapter 2 section II. 26 Jakóbski v Poland. 27 Vartic v Romania (No 2). 28 Jakóbski v Poland para 46. Such approach was not adopted in earlier decisions, eg concerning the obligation of prison authorities to serve kosher food for an Orthodox Jew, see X v the United Kingdom (dec) App no 5947/72, Commission decision of 5 March 1976, Decisions and Reports 5, p 8 (EComHR). 29 See eg Hatton and Others v the United Kingdom [GC] App no 36022/97, ECHR 2003VIII 189 (ECtHR) para 98. See also Mowbray; Xenos 59ff.

86  Reasoning in the case law on new minorities competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.30 Yet, the same elaborations can be found in the inadmissibility decision Koval¸kovs v Latvia, from 2012,31 which was examined in terms of both negative and positive obligations flowing from Article 9 ECHR: The applicant, an adherent of Hinduism, complained that he was not able to read religious literature, meditate and pray because he was placed in a cell together with other prisoners and that incense sticks were taken away from him. The ECtHR thus examined the complaint in terms of a positive obligation of the state to place the applicant in a single cell and a negative obligation of the state not to confiscate the incense sticks. While there are certainly factual differences between the three cases, which can explain the different conclusions the ECtHR reached,32 there are significant disparities in the way the Court arrived at these conclusions regarding the respondent state’s positive obligations. A comparison of the ECtHR’s reasoning in Jakóbski v Poland and Vartic v Romania (No 2) with the one adopted regarding positive obligations in Koval¸kovs v Latvia appears particularly interesting because of the cases’ factual similarities.33 Although the Court in both cases applied the ‘fair balance test’,34 such test followed a different structure. In the former cases, the ECtHR first mentioned the main arguments brought forward by the respondent state, namely that providing the applicant with a meat-free diet would entail too many technical and financial difficulties, and subsequently provided reasons why this argument was not convincing.35 The conclusion reached was only stated at the end of the balancing exercise.36 This can be regarded as a classical exercise of balancing arguments in favour and against the conclusion arrived at in the end. Contrary to this, in Koval¸kovs v Latvia, the conclusion that ‘the impugned restrictions (. . .) were proportionate to the legitimate aims sought to be achieved’ is already stated at the beginning of the balancing exercise.37 Anticipating the conclusion could have a significant influence on the motivation of a decision or judgment, since it is only used to demonstrate the conclusion stated at the beginning of the reasoning and not to explore different relevant arguments from a ‘neutral’ departure point. The case Koval¸kovs v Latvia

30 Jakóbski v Poland 47 para 47 (emphasis added). 31 Koval¸kovs v Latvia (dec) para 62. 32 This concerns in particular the fact that the applicant in Kovalkovs v Latvia had at least once ‘been offered the use of alternative premises for performing religious rituals and had refused to accept that offer’, ibid para 67. 33 In fact, the ECtHR also made some elaborations in the case Osmanog˘lu and Kocabas¸ v Switzerland, which concerns however the context of public education and is thus less suited for a comparison. 34 For a general critique of this ‘fair balance test’ see Xenos 59ff. 35 Jakóbski v Poland paras 51f. 36 Ibid para 54; Vartic v Romania (No 2) para 54. 37 Koval¸kovs v Latvia (dec) para 66.

Reasoning in the case law on new minorities 87 seems to confirm this: The ECtHR addressed the arguments brought forward by the applicant only indirectly. The reasoning focused on arguments in favour of the conclusion that the ‘very essence of the freedom to manifest one’s religion’ had not been affected, since there had been only ‘a minor interference’ with the applicant’s freedom to manifest his religion.38 Based on the minor nature of the interference, the Court then concluded, in one sentence, that a fair balance with the legitimate aims pursued had been achieved.39 It can thus be argued that the ECtHR used the concept of the ‘very essence of a right’ in a way that conveys the impression that only restrictions which affect the very essence of the right to manifest religious beliefs will amount to a violation of this right. Usually, the concept of the ‘very essence of a right’ is however used as a synonym for a serious violation in relevant scholarship.40 This demonstrates that the Court’s reasoning in this case is very imprecise and does not follow a clear balancing process. These elaborations show that the ECtHR’s examination of complaints of new minorities in terms of positive obligations does not always follow the same structure. This might indicate that for the outcome of a case it is in fact not decisive whether the Court examines the complaint in terms of negative or positive obligations. Rather, the way the reasoning is structured appears to be decisive. Such conclusion can however only be affirmed when comparing the different approaches identified regarding positive obligations with the ones adopted for negative obligations, which is the subject of the following sections.

2. . . . in the case law of the HRC Although the HRC did not examine any communication by members of new religious minorities in terms of positive obligations, it is precisely the case Bhinder v Canada which is regarded as very relevant for the (non-)development of positive obligations in the case law of the HRC. In fact, it is often highlighted that in this view, the HRC avoided commenting on the statement of the respondent state that Article 18 ICCPR contained ‘no positive obligation for States parties to provide special assistance to grant waivers to members of religious groups which would enable them to practice their religion’.41 Since the HRC did not find a violation of Article 18 ICCPR, the view was interpreted as taking a stand against positive obligations flowing from the right to freedom of religion and belief.42 Yet, as has been noted in Chapter 2, this approach has changed in the meantime.43 The fact that the HRC did not explicitly examine a potential violation of Article 18 ICCPR in terms of positive obligations does not mean however that the

38 Ibid para 67. 39 Ibid. 40 Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 Cambridge Law Journal 174, 185. 41 Karnel Singh Bhinder v Canada para 4.5. 42 See eg Tahzib 299f. 43 See above Chapter 2, section II.

88  Reasoning in the case law on new minorities HRC was not confronted with cases which could or should have been examined in terms of positive obligations. This regards in particular the case FA v France, decided in 2018, which concerned the question whether a private employer could dismiss an employee for wearing a headscarf. This would, in principle, be a typical case of a positive obligation under Article 18 ICCPR, since it is not the state that interferes with an individual’s religious freedom, but a private actor (employer). Nevertheless, the HRC used the common structure for the examination of the respect for negative obligations and had to ‘bend’ its reasoning significantly. Thus, the restriction was in fact based on internal regulations of the employer and not a national law. Nevertheless, the HRC found that it was the Labour Code that provided for the possibility to introduce such internal regulations, which is why the restriction was provided for in law.44 In other communications, the HRC did not clearly distinguish between negative and positive obligations. Thus, it found for example that ‘the regulation requiring persons to appear bareheaded in the identity photographs used on their residence permits is a limitation that infringes the author’s freedom of religion and (. . .) constitutes a violation of article 18 of the Covenant’.45 In its elaborations, the HRC did not clarify whether the respondent state is required to abolish the condition to appear bareheaded in official photographs altogether or to just provide an exemption for religious headgear. On the one hand, the HRC’s statement that the respondent state had not ‘explained how, specifically, identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residence permits’46 could be interpreted in the direction of the first alternative. On the other hand, the HRC’s assessment also focused on the specific religious context of the author’s claim, which could point in the direction of a religion-based exemption and thus the second alternative. If the latter would hold true, it might have been more appropriate to deal with the case in terms of a positive obligation of the state to provide for an exemption from this generally applicable, neutral rule, namely a duty of reasonable accommodation.47 Thus the question arises whether the HRC implicitly recognised such a state obligation in this and other similar cases,48 but was just hesitant to use the lingo of positive obligations, or whether negative obligations are seen as a more appropriate framework for the analysis of this issue. Due to a lack of pertinent elaborations in the cases regarding new minorities, this question is hard to answer.49

III. The condition of legality . . . This section looks at the way the ECtHR and the HRC examined the first requirement for a justification of a state interference with an individual’s right

44 FA v France para 8.5. 45 Ranjit Singh v France para 8.4. 46 Ibid. 47 See also Henrard, ‘Church-State Relations’ 79ff. 48 See Shingara Mann Singh v France. 49 See for an example of a view where the distinction between positive and negative obligations was tackled more explicitly Arenz and Röder v Germany para 8.5.

Reasoning in the case law on new minorities 89 to manifest his or her religious belief in their decisions regarding new minorities, namely the condition of legality.

1. . . . in the case law of the ECtHR At the outset, it is important to note that this condition was found to be fulfilled in all cases included in the empirical analysis, in which an interference was found. In fact, in most cases, this requirement was not examined.50 The EComHR in its early decisions usually did not consider the legal basis of the interference in its reasoning51 or just stated its existence,52 even when this was disputed between the parties.53 The ECtHR generally did not scrutinise the existence of a legal basis in national law. This approach was motivated in two different ways: Either because the applicant did not argue that the legal basis was insufficient54 or because the legal basis clearly fulfilled the criteria established in case law.55 While the latter poses less problems and can be seen as part of an efficient approach to judicial reasoning,56 the former appears problematic since the Court’s jurisdiction is not limited to the issues brought forward by the parties.57 Two of the cases in which the applicants did not dispute the existence of a legal basis concerned security checks either at the airport or at the entrance of a consulate. Security personnel asked both applicants to remove a religious item covering the head, ie a turban or a veil, but neither of the two decisions mentioned a legal basis for such practice.58 The information furnished in the decisions however does not appear sufficient to draw any comprehensible conclusions in this regard. Furthermore, the ECtHR’s restraint could also be interpreted as granting a margin of appreciation to the state, although the Court made no explicit reference to this concept. In four no violation judgments and two inadmissibility decisions, the existence of a sufficient legal basis was controversial between the parties. Yet, in three of these decisions, the ECtHR did not critically analyse

50 The decisions in which the EComHR did not find an interference with Art 9 ECHR are excluded from the following analysis since the conditions for justification were not examined, see eg X v the United Kingdom (1981). 51 See X v the United Kingdom (1978); X v the United Kingdom (1976/2); X v Austria (dec) App no 1753/63, Commission decision of 15 February 1965 (EComHR). 52 See ISKCON and 8 Others v the United Kingdom (dec). 53 See X v the United Kingdom (1983). 54 See Dakir v Belgium para 48; El Morsli v France (dec); Mann Singh v France (dec); Phull v France (dec). 55 See eg Aktas v France (dec); Ranjit Singh v France (dec); SAS v France [GC] para 112. 56 See concerning the topic of judicial efficiency and the ECtHR Stefan Scottiaux and Gerhard Van der Schyff, ‘Methods of International Human Rights Adjudication: Towards a More Structured Decision Making Process for the European Court of Human Rights’ (2008) 31 Hastings International & Comparative Law Review 115, 124ff. For a critical perspective see Gerards, ‘Inadmissibility Decisions’ 154f. 57 See the elaborations on the ultra petita rule in Foti and Others v Italy 10 December 1982, Series A no 56 (ECtHR) para 44; see also Merrills 180f. 58 El Morsli v France (dec); Phull v France (dec).

90  Reasoning in the case law on new minorities whether the criteria established in the standing case law, namely accessibility and foreseeability, were fulfilled.59 Although mentioning these requirements, it mostly relied on the reasoning adopted by the national instances. For example, in the inadmissibility decision Dahlab v Switzerland, the ECtHR, after quoting its standing case law, concluded the following: Having examined the Federal Court’s reasoning on this point, the Court observes that sections 6 and 120(2) of the cantonal Act of 6 November 1940 were sufficiently precise to enable those concerned to regulate their conduct. The measure in issue was therefore prescribed by law within the meaning of Article 9 § 2 of the Convention.60 By limiting its reasoning to the restatement of the findings of national instances, without addressing the arguments brought forward by the applicant in this regard, the ECtHR shows clear deference to national instances. This might also be linked to a general reluctance of the ECtHR to find violations based on a lack of a sufficient legal basis, given that this would declare the legal provision as such incompatible with the ECHR, which would prompt the Court to assume a more prominent role as a constitutional court.61 Only in three of the examined decisions, all of them judgments on the merits, the criteria established in the ECtHR’s case law for the condition of legality were critically discussed.62 All relevant complaints were brought against France and can be situated in the context of the French constitutional principle of laïcité. This principle is embedded in the French Constitution, whose Article 1 states that ‘France shall be an indivisible, secular, democratic and social Republic (. . .) (which) shall ensure the equality of all citizens before the law, without distinction of origin, race or religion (. . .) (and) respect all beliefs’.63 The principle is defined primarily by the non-confessional character of the republican state as well as public service.64 It is perceived as a way to guarantee freedom of conscience and religion by means of the neutrality of the state towards all beliefs.65 The cases Dogru v France and Kervanci v France, decided in 2008, concerned two female Muslim students who were prohibited from wearing a headscarf during physical education classes in public schools. Yet, at the relevant time, there

59 See above Chapter 2, section III(1); Dahlab v Switzerland (dec); Koval¸kovs v Latvia (dec) para 65; Osmanog˘lu and Kocabas¸ v Switzerland paras 50ff. 60 Dahlab v Switzerland (dec). See also Belcacemi and Oussar v Belgium para 46. 61 See for similar observations with regard to Art 9 ECHR in general Evans C, Freedom of Religion 139ff. See also the separate opinions in the judgments Kokkinakis v Greece and Larissis and Others v Greece. 62 Dogru v France; Ebrahimian v France; Kervanci v France. 63 French Constitution of 4 October 1958. 64 Pierre-Henri Prélot, ‘Définir juridiquement la laïcité’ in Gérard Gonzalez (ed), Laïcité, Liberté de Religion et Convention Européenne des Droits de l’Homme: Actes du Colloque Organisé le 18 Novembre 2005 (Bruylant Némésis 2006) 117. See also Dogru v France paras 17ff. 65 Prélot 117.

Reasoning in the case law on new minorities 91 was no law prohibiting the wearing of religious symbols in public schools, as is the case today.66 Instead, the national authorities justified the measures in question mainly based on the case law of the Conseil d’État.67 In an opinion of 1989, the latter had specified that students were in principle free to wear religious signs on school premises, as long as this did not interfere with teaching activities, the content of the curriculum or the duty to attend class regularly, or jeopardise (students’) health or safety, disrupt teaching activities or the teachers’ educational role, or lastly, interfere with order in the establishment or the normal functioning of the public service.68 Discussing in detail whether the relevant case law could serve as a legal basis for the interference with the students’ right to freedom of religion, the ECtHR arrived at the conclusion that ‘the administrative courts (. . .) faithfully applied the principles established in the opinion of 1989’.69 Since the relevant case law on the subject was accessible and foreseeable, the ECtHR regarded the requirement of the legal basis as fulfilled. The judgment thus relied on the general conditions established in the ECtHR’s jurisprudence, under which well-established case law may serve as a sufficient legal basis.70 While this reasoning appears to be in line with the standing practice of the ECtHR, the reasoning adopted in Ebrahimian v France, a case concerning a Muslim woman whose contract as a social worker in a public hospital was not renewed because she refused to take her headscarf off at work, seems problematic. The national authorities again relied on the case law of the Conseil d’État, this time on the neutrality obligations of public servants. While in the area of public education, it had been previously established that wearing religious symbols was not compatible with such duty of neutrality, the relevant opinions did not explicitly refer to the profession of the applicant. In fact, the Conseil d’État clearly specified that the principle applied to the whole of public service only in an obiter dictum, added to a decision concerning the education sector, in 2000.71 Thus, also the ECtHR accepted that, ‘when she took up her post, the applicant could not have foreseen that the expression of her religious beliefs would be subject to restrictions’.72 It found however that with the decision taken in 2000, ‘these restrictions were set out with sufficient clarity for her to foresee that the refusal to remove her veil amounted to a fault leaving her liable to a disciplinary sanction’.73 66 See Law no 2004–228. 67 See for an overview of the relevant case law Prélot 121ff. 68 See Dogru v France para 56, referring to France, Conseil d’État, Avis “Port du foulard islamique” (no 346893, 27 November 1989). 69 Dogru v France para 58. 70 See above Chapter 2, section III(1); The Sunday Times v the United Kingdom (no 1) paras 46ff. 71 France, Conseil d’État, Avis 4 / 6 SSR (no 217017, 3 May 2000). 72 Ebrahimian v France para 51. 73 Ibid.

92  Reasoning in the case law on new minorities Taking a closer look at said decision of the Conseil d’État, dating from 2000, one notices that the decisive part of the decision consists of one sentence, solely stating that ‘the principle of the freedom of conscience as well as the one of laïcité of the state and the neutrality of public services apply to all of the latter’.74 Judge O’Leary rightly highlighted in her separate opinion that the case law, which was found by the Court to represent a sufficient legal basis, did not fulfil the criteria of accessibility and foreseeability established in the ECtHR’s jurisprudence.75 Moreover, she emphasised that a circular specifically addressing the principle of laïcité in health institutions was issued only in 2005 and a law stipulating an obligation of neutrality for all public servants was adopted by the National Assembly in October 2015, shortly before the ECtHR’s decision.76 Apart from the content of the ECtHR’s reasoning, also its structure appears questionable: Similar as in the case Koval¸kovs v Latvia discussed above, the Court reversed the usual order of argumentation by anticipating the conclusion.77 Furthermore, while in the elaborations on the legal basis in the judgments Dogru v France and Kervanci v France, the ECtHR subsumed the facts of the complaint under the requirements of accessibility and foreseeability,78 such clear structure cannot be found in Ebrahimian v France.79 Rather, it can be argued that the structure obscures that the ECtHR is in fact departing from established parameters for the condition of legality, which poses significant problems of coherence and legal certainty. In conclusion, the ECtHR in most cases does not undertake a detailed examination of the condition of legality. Also in cases where this element is controversial between the parties, the ECtHR mostly relies on the reasoning adopted by national instances. In the few cases where the legal basis of the interference was examined in depth, different forms of judicial reasoning were identified. Considering that these different reasoning structures resulted in various degrees of judicial scrutiny, this seems to indicate a form of deference to national instances based on considerations of subsidiarity of the Convention mechanism. Such considerations are commonly expressed in the concept of the margin of appreciation closely linked to the examination of the condition of proportionality.80 Yet, in the cases regarding new minorities, an implicit consideration of such concerns could also be observed in the examination of the legal basis of an interference with Article 9 ECHR. It should be pointed out that the same tendency has been 74 France, Conseil d’État, Avis 4 / 6 SSR (translation by the author). 75 Ebrahimian v France Partially Concurring Partially Dissenting Opinion of Judge O’Leary. See also Eva Brems, ‘Ebrahimian v France: Headscarf Ban Upheld for Entire Public Sector’ Strasbourg Observers (27 November 2015) accessed 1 May 2019. 76 Ebrahimian v France Partially Concurring Partially Dissenting Opinion of Judge O’Leary. 77 Ebrahimian v France para 50. 78 Dogru v France paras 57ff. 79 Ebrahimian v France para 51. 80 See above Chapter 2, section IV(1). For a broader conception see Letsas 85f.

Reasoning in the case law on new minorities 93 highlighted for the Court’s case law on Article 9 ECHR in general, though an improvement has allegedly been attained in recent years.81 Such development cannot be observed in the context of complaints brought by new minorities.

2. . . . in the case law of the HRC The HRC has generally not dedicated a lot of attention to the condition of legality in the context of cases concerning new minorities, which is in line with its general approach.82 It has not declared any violation of Article 18 ICCPR based on an insufficient legal basis but always found this condition to be fulfilled. In two cases, where there was clearly a national law providing for the restriction of the authors’ right to manifest their religious beliefs, it stated in half a sentence that there was no dispute on the legal basis of the interference.83 Two other views concerning the rights of new minorities did not mention the requirement of the legal basis at all. Thus, in Bikramjit Singh v France the HRC only examined the necessity and proportionality of the interference, stating the following: The Committee must determine whether the limitation of the author’s freedom to manifest his religion or beliefs (art. 18, para. 1) is authorized under article 18, paragraph 3, of the Covenant. In particular it is the responsibility of the Committee to decide whether that limitation is necessary and proportionate to the end that is sought, as defined by the State party.84 From the elaborations on the facts of the case, it however becomes obvious that the restriction of the author’s right to manifest his religious beliefs had a clear basis in national law. This was also the case in the second view, which did not elaborate on the requirement of the legal basis, namely Bhinder v Canada.85 However, in one of its most recent views, the HRC shows a similar tendency like the ECtHR, by avoiding the assessment of the legal basis although it was controversial between the parties. Thus, in the case FA v France mentioned in the last section, the HRC briefly stated that it was ‘not possible (. . .) to conclude that the restriction to which the author was subjected was not provided for in law’,86 although the author had adduced extensive arguments why the restriction was not based on a sufficient legal basis.87 However, different than the ECtHR in the relevant cases, the HRC in the end found a violation of the author’s right to manifest her religious beliefs due to a lack of a legitimate aim.

81 See above Chapter 2, section III(1). 82 See ibid. 83 Ranjit Singh v France para 8.4; Shingara Mann Singh v France para 9.4. 84 Bikramjit Singh v France para 8.5 (emphasis added). 85 Karnel Singh Bhinder v Canada para 2.4. 86 FA v France para 8.5. 87 FA v France para 3.2, 5.2–5.4.

94  Reasoning in the case law on new minorities

IV. The condition of legitimacy . . . This section takes a closer look at how the relevant decisions of the ECtHR and the HRC deal with the second requirement, which needs to be fulfilled in order for a state to justify an interference with a member of a new minority’s right to manifest his or her religious beliefs, namely that the limitation pursues one of the legitimate aims listed in Article 9 ECHR or Article 18 ICCPR, respectively.

1. . . . in the case law of the ECtHR As was elaborated above, the ECtHR traditionally does not scrutinise the legitimate aim, which the respondent state allegedly pursued with the limitation of the right to manifest religious beliefs.88 This is also generally reflected in the case law regarding new minorities’ religious freedom: Most cases either did not (explicitly) mention the legitimate aim pursued89 or stated it in one sentence without any examination.90 Other decisions or judgments showed a slightly more extensive reasoning but mostly relied on the arguments brought forward by the respondent state.91 In these cases, the ECtHR often used formulations which conveyed a lack of confidence in the conclusion reached. Thus, in Dogru v France, for example, the ECtHR stated the following: Having regard to the circumstances of the case and the terms of the decisions of the domestic courts, the Court can accept that the interference complained of mainly pursued the legitimate aims of protecting the rights and freedoms of others and protecting public order.92 In Osmanog˘lu and Kocabas¸ v Switzerland, the ECtHR made the following elaborations: The Court shares the opinion of the Government according to which the purpose of the disputed measure was the integration of foreign children from different cultures and religions, as well as the good functioning of instruction, the respect for mandatory schooling and the equality of sexes. The measure aimed especially at protecting foreign students against every phenomenon of social exclusion. The Court is ready to accept that these elements

88 See above Chapter 2, section III(2). 89 Khan v the United Kingdom (dec); X v the United Kingdom (1976/2). 90 Aktas v France (dec); Bayrak v France (dec); El Morsli v France (dec); Gamaleddyn v France (dec); Ghazal v France (dec); Jasvir Singh v France (dec); Mann Singh v France (dec); Phull v France (dec); Ranjit Singh v France (dec); X v the United Kingdom (1978); X v the United Kingdom (1983). 91 Dahlab v Switzerland (dec); Dogru v France para 60; Kervanci v France para 60; Koval¸kovs v Latvia (dec) para 64; Osmanog˘lu and Kocabas¸ v Switzerland para 64; Lachiri v Belgium, para 38. 92 Dogru v France para 60 (emphasis added).

Reasoning in the case law on new minorities 95 can be attributed to the protection of the rights and freedoms of others or the protection of order in the sense of Article 9 § 2 of the Convention.93 A slightly more confident formulation can be found in the case Ebrahimian v France, where the Court held that (h)aving regard to the circumstances of the case and the reasons given for not renewing the applicant’s contract, namely the requirement of religious neutrality in a context where users of the public service were in a vulnerable situation, the Court considers that the interference complained of pursued the legitimate aim of protecting the rights and freedoms of others.94 Yet, in its judgment regarding the prohibition of the wearing of the burqa in public places in France, SAS v France, the Grand Chamber of the ECtHR seemingly followed a different approach. Before starting the analysis, the Court explicitly stated that ‘in the present case, the substance of the objectives invoked (. . .) by the Government, and strongly disputed by the applicant, call for an in-depth examination’.95 Furthermore, the ECtHR held that ‘the enumeration of the exceptions to the individual’s freedom to manifest his or her religion or beliefs, as listed in Article 9 § 2, is exhaustive and that their definition is restrictive’, which had not been the case in other decisions and judgments regarding new minorities.96 Nevertheless, such a distinctive approach can in fact not be found regarding the first legitimate aim brought forward by France, namely the protection of public safety. Although voicing doubts whether such concerns had really been attached much weight by the parliament, the ECtHR stated that it ‘accepts that, in adopting the impugned ban, the legislature sought to address questions of “public safety” within the meaning of the second paragraphs of Articles 8 and 9 of the Convention’.97 This is thus comparable to the approach taken in the other cases discussed at the beginning of this section, such as Dogru v France and Osmanog˘lu and Kocabas¸ v Switzerland.

93 Osmanog˘lu and Kocabas¸ v Switzerland para 64 (translation by the author, emphasis added). 94 Ebrahimian v France para 53 (emphasis added). Such formulations are not only used in the case law regarding new minorities, but also in other judgments regarding Art 9 ECHR, see eg Kokkinakis v Greece para 44; Ahmet Arslan and Others v Turkey App no 41135/98, 23 February 2010 (ECtHR) para 43. 95 SAS v France [GC] para 114. In two judgments concerning the prohibition of the wearing of the burqa in Belgium, adopted in 2017, such in-depth examination cannot be observed, since the examination of the legitimate aims pursued was limited to a reference to SAS v France, see Belcacemi and Oussar v Belgium paras 48f; Dakir v Belgium paras 49ff. 96 SAS v France [GC] para 113; see however Svyato-Mykhaylivska Parafiya v Ukraine para 132, where this principle, which has been developed in the context of Arts 11 and 8 ECHR, has been used for the first time with regard to Art 9(2) ECHR, and Nolan and K v Russia para 73, where it was confirmed. 97 SAS v France [GC] para 115 (emphasis added).

96  Reasoning in the case law on new minorities The reasoning adopted with regard to the other aim allegedly pursued by the respondent state in SAS v France, namely ‘respect for the minimum set of values of an open and democratic society’, however appears clearly different from the one usually followed by the ECtHR. The French Government referred to three values in this context, namely respect for gender equality, human dignity and the minimum requirements of life in society.98 The ECtHR scrutinized whether these values could be subsumed under the legitimate aim of the protection of the rights and freedoms of others. Contrary to what it had held in earlier case law, the ECtHR found that France could not ‘invoke gender equality in order to ban a practice that is defended by women (. . .) in the context of the exercise of the rights enshrined in those provisions’.99 In the case Dahlab v Switzerland, the ECtHR still found that it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which (. . .) is hard to square with the principle of gender equality.100 Opposed to the generalising elaborations adopted in earlier case law, the ECtHR’s approach in SAS v France therefore displayed a more nuanced understanding of gender equality ‘that enables each woman equally to have the freedom to develop her personality or identity as she sees fit’.101 Respect for human dignity was not accepted as a legitimate aim for a blanket ban on full-face veils in public places either, since the ECtHR found there to be no ‘evidence capable of leading it to consider that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others’.102 Such emphasis on evidence in the context of the condition of legitimacy appears to be in contradiction to earlier case law, such as Aktas v France, where the ECtHR did not require any proof of an interference with the rights and freedoms of others.103 Considering that this raises the threshold for limitations of the right to freedom of religion, commentators have welcomed the development.104 Nevertheless, it should be highlighted that the conclusion reached with regard to gender equality and human dignity

98 Ibid para 116. 99 Ibid para 119. 100 Dahlab v Switzerland (dec) (emphasis added). See also Leyla S¸ahin v Turkey [GC] paras 115f; Stephanie Berry, ‘SAS v France: Does Anything Remain of the Right to Manifest Religion?’ EJIL: Talk! (2 July 2014) accessed 1 May 2019. 101 Jill Marshall, ‘S.A.S. v France: Burqa Bans and the Control or Empowerment of Identities’ (2015) 15 HRLRev 377, 384. See also Leyla S¸ahin v Turkey [GC] Dissenting Opinion of Judge Tulkens. 102 SAS v France [GC] para 120. 103 See Aktas v France (dec). 104 See eg Berry, ‘SAS v France’; Marshall 382ff.

Reasoning in the case law on new minorities 97 as legitimate aims was supported by a study report of the French Conseil d’État, as the ECtHR itself acknowledged in the judgment.105 Given the wide margin of appreciation usually granted to national authorities with regard to the assessment of the condition of proportionality,106 the evaluation by a national authority might have played a role in the approach taken by the Court. Moreover, the ECtHR’s reasoning regarding the third value brought forward by France, namely the ‘respect for the minimum requirements of life in society’ or of ‘living together’ (vivre ensemble), unfortunately does not reflect a similarly critical approach. The Court stated the following: The Court takes into account the respondent State’s point that the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier. That being said, in view of the flexibility of the notion of ‘living together’ and the resulting risk of abuse, the Court must engage in a careful examination of the necessity of the impugned limitation.107 Several things are worth highlighting regarding the structure and content of the ECtHR’s reasoning. This is first that the ECtHR used a similarly cautious formulation for its conclusion as could be observed in the cases analysed above, namely that it is ‘able to accept’. Furthermore, the reasoning in this point also has in common with the previously analysed cases that very little scrutiny is applied to the arguments brought forward by France. In fact, the perspective of the affected minority is not at all reflected. Only the last sentence of the Court’s reasoning could be interpreted as indicating that the Court is aware that by recognising the concept of ‘living together’ as a legitimate aim, which can justify limitations of the right to manifest religious beliefs, it is expanding (and maybe even overstretching) the interpretation of the wording of Article 9(2) ECHR. It is thus not surprising that commentators, including dissenting judges, criticised ECtHR’s acceptance of this French concept as a ground for limitation in the context of the protection of the rights and freedoms of others in the present

105 SAS v France [GC] para 119 referring to Conseil d’État (France), Plenary General Assembly, Study of Possible Legal Grounds for Banning the Full Veil (2010) 23. 106 See below Chapter 4, section V. 107 SAS v France [GC] para 122 (emphasis added).

98  Reasoning in the case law on new minorities case.108 Judges Nussberger and Jäderblom highlighted that the Court has not shown which ‘rights and freedoms of others’ were in fact being protected, since it can hardly be argued that an individual has a right to enter into contact with other people, in public places, against their will. Otherwise such a right would have to be accompanied by a corresponding obligation. This would be incompatible with the spirit of the Convention. While communication is admittedly essential for life in society, the right to respect for private life also comprises the right not to communicate and not to enter into contact with others in public places – the right to be an outsider.109 Such criticism however did not have much effect on the Court’s case law, and the approach taken in SAS v France was confirmed in two further judgments against Belgium in 2017.110 A similarly wide and unspecified interpretation of the legitimate aim of the protection of rights and freedoms of others can be observed in other decisions and judgments regarding new minorities. This concerns in particular the cases dealing with the French constitutional principle of laïcité, which was discussed already with regard to its use as a legal basis for restrictions of the right to manifest religious beliefs.111 In the decisions and judgments concerning the prohibition to wear religious symbols for students or public servants, the ECtHR usually stated in one sentence that the limitation of the right to manifest religious beliefs pursued the legitimate aim of protecting the rights and freedoms of others.112 In Ebrahimian v France, the Court even stated ‘that upholding the principle of secularism (as such) is an objective that is compatible with the values underlying the Convention’.113 None of these decisions and judgments specified how the rights of others were endangered by the wearing of these religious symbols.114 In fact, Leyla S¸ahin v Turkey, the extensively quoted leading case in this context, concerning a Turkish law prohibiting the wearing of headscarves at universities, did not critically examine the legitimate aim of the restriction, since this was not controversial

108 SAS v France [GC] Joint Partly Dissenting Opinion of Judges Nussberger and Jäderblom; Marshall 382ff; Teresa Sanader, ‘Religious Symbols and Garments in Public Places: A Theory for the Understanding of S.A.S. v France’ (2015) 9 ICL Journal 186, 198f; Hakeem Yusuf, ‘S.A.S. v France: Supporting “Living Together” or Forced Assimilation?’ (2014) 3 IntlHRLRev 277, 282. 109 SAS v France [GC] Joint Partly Dissenting Opinion of Judges Nussberger and Jäderblom. 110 Belcacemi and Oussar v Belgium paras 48f; Dakir v Belgium paras 49ff. 111 See above Chapter 4, section III. 112 See eg Dogru v France para 60. 113 Ebrahimian v France para 53, referring to Leyla S¸ahin v Turkey [GC] para 114. See also Fabienne Bretscher and Kyriaki Pavlidou, ‘Kommentar zu EGMR 26.11.2015, 64.846/11, Ebrahimian / Frankreich’ [2015] 62 öarr 424. 114 See also Sabina Garahan, ‘A Right to Discriminate? Widening the Scope for Interference with Religious Rights in Ebrahimian v France’ (2016) 5 OJLR 352, 353f.

Reasoning in the case law on new minorities 99 between the parties.115 Consequently, it has been argued that the acceptance of the abstract principle of laïcité as a legitimate aim for restricting individuals’ right to manifest their religion, without verifying if concrete rights and freedoms of others are affected by such manifestation, significantly expands the grounds for permissible limitations under Article 9 ECHR.116 Recognising abstract principles such as laïcité or ‘living together’ as a legitimate aim in relation to the protection of the rights and freedoms of others thus bears the potential to ‘undermine(s) the integrity of the “legitimate aim”-test as a whole’.117 This appears even more dangerous in the context of minorities, which are vulnerable to abuses of the dominant position by the majority, when it is claimed that limiting minority practices is necessary to preserve social cohesion or national unity.118 Considering that the empirical analysis presented in the previous chapter identified the protection of the rights and freedoms of others as the most commonly pursued legitimate aim in complaints brought by new minorities,119 the threshold for restricting the rights of a minority of the population in the interest of the majority is set very low by the ECtHR. It is thus not surprising that the lack of specification with regard to the affected rights and freedoms of others also influences the condition of proportionality, as is shown in the next sections.

2. . . . in the case law of the HRC Like the ECtHR, the HRC showed for a long time an inclination towards not critically assessing and distinguishing the grounds of limitation (or legitimate aims) allegedly pursued by the respondent state with the restriction of the author’s right to freedom of religion and belief in the context of claims brought by new minorities. Thus, until 2018, it did not find a violation of Article 18 ICCPR, because the state did not fulfil the condition of legitimacy. In the first case concerning new minorities, namely Bhinder v Canada, the condition of legitimacy was not even addressed. Not surprisingly, this view has been criticised for not giving due regard to the argument brought forward by the author that ‘the limitation was not necessary to protect public safety, since any safety risk ensuing from

115 Leyla S¸ahin v Turkey [GC] para 99. See also Jacco Bomhoff, ‘ “The Rights and Freedoms of Others”: The ECHR and Its Peculiar Category of Conflicts Between Individual Fundamental Rights’ in Eva Brems (ed), Conflicts Between Fundamental Rights (Intersentia 2008) 624f. 116 Ebrahimian v France Partially Concurring and Partially Dissenting Opinion of Judge O’Leary as well as Dissenting Opinion of Judge De Gaetano; Ronan McCrea, ‘Secularism Before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights’ (2016) 79 MLR 678, 695. See more generally Henrard, ‘Church-State Relations’ 76f. 117 Bomhoff 624. See also Ebrahimian v France Dissenting Opinion of Judge De Gaetano. 118 See eg Fabienne Bretscher, ‘Diversity in Unity: Minority Protection and National Cohesion in Democracies’ in Laura Marschner and Patrice Martin Zumsteg (eds), Risiko und Verantwortlichkeit: Analysen und Perspektiven von Assistierenden des RWI (APARIUZ), vol 17 (Dike 2016). 119 See above Chapter 3, section III(1d).

100  Reasoning in the case law on new minorities his refusal to wear safety headgear was confined to himself’.120 Following the same line of reasoning, the Canadian Human Rights Tribunal had highlighted in its judgment on this case that ‘there is no evidence that other employees or the public will be affected if Mr. Bhinder were to continue working without a hard hat’, though this finding was later reversed by the Federal Court of Appeal.121 Consequently, the HRC, at least in this case, avoided addressing valid arguments brought forward by the author and instead (implicitly) accepted the reasoning brought forward by the respondent state.122 In two more recent views concerning the wearing of the Sikh turban on official photographs for a passport or a residence permit the HRC was also quite succinct and stated in half a sentence (together with the assessment of the condition of legality discussed in the previous section) that ‘there is no dispute as to the fact that (. . .) the purpose of this requirement (to appear bareheaded in identity photographs) is to protect public safety and order’.123 The same approach can be observed in the decision of the ECtHR, dealing with the wearing of a Sikh turban on a photograph for a driving licence, where it was stated that ‘the applicant has not contested that the measure concerned (. . .) pursued at least one of the legitimate aims enumerated in the second paragraph of article 9 of the Convention, namely guaranteeing public security’.124 A more critical approach can be observed in the view in Bikramjit Singh v France, adopted in 2012, which concerned a French law prohibiting the wearing of ostentatious religious symbols in public schools. Whereas the author of this communication was a Sikh student, similar complaints by both Sikh and Muslim students were brought to the ECtHR.125 In 2009, ie three years before the view issued by the HRC, the ECtHR declared all complaints inadmissible and found that ‘the interference concerned pursued essentially the legitimate aims of the protection of the rights and freedoms of others and the public order’.126 This can be seen as the Court’s (rather superficial) translation of the aim explicitly pursued by the respondent state, namely the safeguard of the principle of laïcité, to the terminology used by the ECHR. As was highlighted already in the last section, no real reasoning on how the law might protect the rights and freedoms of others and public order can be found. Although the HRC also accepted the grounds of limitation invoked by the respondent state, it did not do so blindly, but clarified

120 Karnel Singh Bhinder v Canada para 3. See also Evans M D, Religious Liberty 224f. 121 As quoted in Karnel Singh Bhinder v Canada para 2.8, referring to the decision of 31 August 1981. 122 See also Nowak and Vospernik 151; Tahzib 296. 123 Ranjit Singh v France para 8.4. See also Shingara Mann Singh v France para 9.4. 124 Mann Singh v France (dec) (translation by the author). 125 Aktas v France (dec); Bayrak v France (dec); Gamaleddyn v France (dec); Ghazal v France (dec); Jasvir Singh v France (dec); Ranjit Singh v France (dec). 126 See eg Aktas v France (dec) (translation by the author).

Reasoning in the case law on new minorities 101 that the principle of secularism (laïcité) is itself a means by which a State party may seek to protect the religious freedom of all its population, and that the adoption of Act No. 2004–228 responded to actual incidents of interference with the religious freedom of pupils and sometimes even threats to their physical safety. The Committee therefore considers that Act No. 2004–228 serves purposes related to protecting the rights and freedoms of others, public order and safety. Moreover, the Committee notes that the State party does not contend that secularism (laïcité) inherently requires that recipients of Government services avoid wearing conspicuous religious symbols or clothing in Government buildings generally, or in school buildings in particular. Rather, the regulation was adopted in response to certain contemporary incidents.127 By explicitly referring to ‘certain contemporary incidents’, the HRC showed that the principle of laïcité as such cannot be adduced to justify the prohibition of the wearing of religious symbols in the public sphere.128 Thus, differently than the ECtHR, the HRC did not accept an abstract principle such as laïcité as a ground of limitation, which would allegedly bear the potential to ‘undermine(s) the integrity of the “legitimate aim”-test as a whole’.129 Instead, the HRC requires particular incidents of threats to the rights and freedoms of others as well as public order and safety. This is in line with the above presented interpretation of the ground ‘fundamental rights and freedoms of others’, where the HRC generally requires the state to provide evidentiary and factual foundations of its claims.130 In three cases decided in 2018, this development was completed. In all three cases, which concerned the wearing of the burqa in public places and the wearing of a headscarf by an employee in a private childcare centre, the HRC concluded that the restriction did not pursue a legitimate aim. Thus, in Miriana Hebbadj v France and Sonia Yaker v France, France justified the prohibition of the wearing of the burqa with the aim of ensuring public safety or public order. The HRC examined this argument in detail, stating the following: With respect to protection of public order and safety, the State party contends that it must be possible to identify all individuals when necessary to avert threats to the security of persons or property and to combat identity fraud. The Committee recognizes the need for States, in certain contexts, to be able to require that individuals show their faces, which might entail oneoff obligations for individuals to reveal their faces in specific circumstances

127 Bikramjit Singh v France para 8.6. 128 This was already highlighted in the Concluding Observations on the 4th Report Submitted by France to the HRC adopted in 2008 and thus before the decisions taken by the ECtHR, see HRC, Concluding Observations on the 4th Report Submitted by France (UN Doc CCPR/C/FRA/CO/4, 31 July 2008) para 23. 129 Bomhoff 624. See also Ebrahimian v France Dissenting Opinion of Judge De Gaetano. 130 See above Chapter 2, section III(2).

102  Reasoning in the case law on new minorities of a risk to public safety or order, or for identification purposes. The Committee observes, however, that the Act is not limited to such contexts, but comprehensively prohibits the wearing of certain face coverings in public at all times, and that the State party has failed to demonstrate how wearing the full-face veil in itself represents a threat to public safety or order that would justify such an absolute ban. Nor has the State party provided any public safety justification or explanation for why covering the face for certain religious purposes – i.e., the niqab – is prohibited, while covering the face for numerous other purposes, including sporting, artistic, and other traditional and religious purposes, is allowed. The Committee further observes that the State party has not described any context, or provided any example, in which there was a specific and significant threat to public order and safety that would justify such a blanket ban on the full-face veil.131 Moreover, the HRC did not accept that the ban of the burqa pursued the aim of protecting the fundamental rights and freedoms of others, or, as it was framed by France, the protection of the concept of ‘living together’ or the observance of the minimum requirements of life in society. Thus, it found that France had not explained why such rights would be ‘unfairly’ obstructed by wearing the fullface veil, but not by covering the face in public through the numerous other means that are exempted from the Act. The right to interact with any individual in public and the right not to be disturbed by other people wearing the full-face veil are not protected by the Covenant and therefore cannot provide the basis for permissible restrictions within the meaning of article 18 (3).132 As can be seen from these extracts, the development towards a more critical assessment of the legitimate aim allegedly pursued by a limitation of the right of new minorities to manifest their religious beliefs goes hand in hand with more detailed judicial reasoning.

V. The condition of proportionality in the case law of the ECtHR The ECtHR’s and the HRC’s approaches to assessing whether the third ­condition for the justification of state interference with new minorities’ right to manifest their religious beliefs is fulfilled differ significantly. Thus, although both Article 9 ECHR and Article 18 ICCPR require that a limitation must be ­‘necessary’, in particular the ECtHR has developed a very specific approach to the assessment of the condition of proportionality, which is characterised by the concept of the so-called margin of appreciation, as will be shown in this section. The HRC’s approach will then be presented in the next section.

131 See Sonia Yaker v France para 8.7 (emphasis added). 132 See Sonia Yaker v France para 8.10.

Reasoning in the case law on new minorities 103

1. General principles regarding the condition of proportionality Before delving into the examination of the condition of proportionality, the ECtHR usually recalls some ‘general principles’ regarding this requirement and the right to freedom of religion and belief in general. While in judgments on the merits, this is commonly done in a separate section,133 in inadmissibility decisions such ‘general principles’ are usually mentioned at the beginning of the assessment of the condition of proportionality.134 This section will investigate the content and basic premises of the general principles used in the context of Article 9 ECHR and more specifically of complaints brought by new minorities. A focus lies on identifying a pattern in the Court’s choice of general principles, which are recalled in a specific case. At the outset, some observations on the nature and use of general principles in the case law on Article 9 ECHR in general are presented.

a. The nature and use of the general principles in the case law on Article 9 ECHR With its first judgment on the merits of Article 9 ECHR in 1993, the ECtHR started to develop what it called ‘general principles’.135 In the context of international law, the term general principles is usually associated with ‘the general principles of law recognised by civilised nations’ mentioned in Article 38(1c) of the Statute of the International Court of Justice (ICJ Statute).136 Scholars have dedicated some attention to the reference to such ‘general principles of law’ in the jurisprudence of the ECtHR, which can be defined as ‘basic rules whose content is very general and abstract, sometimes reducible to a maxim or a simple concept (. . .) (and which) have not been “posited” according to the formal sources of law’.137 For example, this regards the principle of equality of arms in the case law on Article 6 ECHR or the ground of estoppel, used in cases concerning the relations of the ECtHR with the EComHR.138 The general principles recalled by the Court in the context of Article 9 ECHR, however, appear to be of a different nature than those mentioned in the ICJ

133 See eg SAS v France [GC] paras 123ff. 134 See eg Dahlab v Switzerland (dec). 135 Kokkinakis v Greece. 136 See for an early, detailed analysis Alfred Verdross, Les principes généraux du droit dans la jurisprudence internationale (Collected Courses of the Hague Academy of International Law vol 52, Brill Nijhoff 1935). 137 Marcelo Kohen and Bérénice Schramm, ‘General Principles of Law’ in Tony Carty (ed), Oxford Bibliographies Online (OUP 2013): see also eg Merrills 160ff. For a broader account see Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Stevens 1953); Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988–1989) 12 Australian Year Book of International Law 82. 138 See eg Feldbrugge v the Netherlands 29 May 1986, Series A no 99 (ECtHR) paras 42ff; De Wilde, Ooms and Versyp v Belgium 18 June 1971, Series A no 12 (ECtHR) paras 53ff.

104  Reasoning in the case law on new minorities Statute, but thus far, this has not been analysed in detail.139 Under the heading ‘general principles’ in the mentioned first judgment on the merits of Article 9 ECHR, Kokkinakis v Greece, the ECtHR held that freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.140 Furthermore, under the same heading, the ECtHR emphasised that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.141 In subsequent decisions and judgments, these general principles have been consistently recalled and further developed. These formulations are clearly not based on ‘general principles of law’, as can be found in national or international legal orders, but rather are principles which the Court uses to guide its interpretation of the criterion ‘necessary in a democratic society’ as stated in Article 9(2) ECHR.142 In this context, the theory of fundamental rights put forward by Alexy seems a more adequate frame for analysing the general principles as used by the ECtHR (in the context of Article 9 ECHR).143 According to Alexy, principles are optimisation requirements (Optimierungsgebote), which demand that a certain value144 is realised to the greatest possible extent.145 When such principles are applied to specific circumstances, a proportionality test is used to assess what the said principles require.146 What the Court labels ‘general principles’ should thus be regarded as principles

139 See eg Evans M D, Religious Liberty 282ff, who dedicates a separate section to the topic but focuses on the content of these general principles. 140 Kokkinakis v Greece para 31. 141 Ibid para 33. 142 See also Renucci 48. 143 Robert Alexy, Theorie der Grundrechte (Nomos 1985). 144 According to Alexy, principles and values are closely related, but he regards the term ‘principle’ as clearer (ibid 125ff ). 145 See ibid 75ff. For further details see also Robert Alexy, ‘On the Structure of Legal Principles’ (2000) 13 Ratio Juris 294. 146 Alexy, Grundrechte 100ff. See also Mattias Kumm, ‘Constitutional Rights as Principles – On the Structure and Domain of Constitutional Justice: A Review Essay on A Theory of Constitutional Rights, by Robert Alexy’ (2004) 2 I•CON 574, 579.

Reasoning in the case law on new minorities 105 according to Alexy’s definition, which is confirmed by the fact that ‘general principles’ are usually mentioned before the proportionality test and followed by what the Court calls ‘application of the principles’.147 By evoking such general principles, the ECtHR seems to specify which values are to enter in the process of balancing lying at the heart of the assessment of the condition of proportionality. The ECtHR however does not refer to these general principles in all decisions and judgments regarding new minorities. Thus, in three out of four of the judgments, in which a violation was found, the Court did not refer to general principles,148 but only recalled certain parameters, which were established regarding the scope of protection of Article 9 ECHR under the heading ‘applicability’. This includes for example that not ‘every act motivated or inspired by religion or belief’149 is protected by Article 9 ECHR or that ‘the State’s duty of neutrality and impartiality (. . .) is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs’.150 Although these phrases could be qualified as interpretative guidelines, they do not refer to the criterion ‘necessary in a democratic society’ and are thus not included in the concept of ‘general principles’ as used by the Court (and this work). A similar lack of references to general principles is found in several inadmissibility decisions.151 Other decisions and judgments however extensively refer to general principles, but all result in a finding of no violation or inadmissibility. It could thus be argued that the reference to general principles does not influence the interpretation and application of Article 9 ECHR in the specific case in a decisive manner. This would however disregard the fact that the frame the Court decides to place the case in is important for providing a fair and balanced judgment.152 Moreover, based on Alexy’s theory, the general principles mentioned illustrate which interests are taken into account in the balancing exercise.153

b. Two groups of general principles Studying the general principles, which were used to assess the condition of proportionality in decisions and judgments regarding new minorities,154 this research 147 See eg SAS v France [GC] paras 123ff; Kokkinakis v Greece paras 31ff. 148 Jakóbski v Poland para 44; Vartic v Romania (No 2) paras 33f. See however Genov v Bulgaria paras 33ff. 149 Jakóbski v Poland para 44, referring to Leyla S¸ahin v Turkey [GC] para 78. 150 Vartic v Romania (No 2) para 34, referring to Leyla S¸ahin v Turkey [GC] para 107. 151 See El Morsli v France (dec); Koval¸kovs v Latvia (dec); Phull v France (dec). 152 See Brems and Lavrysen, ‘Procedural Justice’; Gerards, ‘Inadmissibility Decisions’ 154f; Merrills 28ff. 153 Alexy, Grundrechte 100ff. See also Kumm 579. 154 The judgment Genov v Bulgaria is excluded from the analysis in this section since, although the Court refers to general principles in its reasoning, the content of these principles differs significantly from the one of other decisions and judgments. This can be explained by the fact that whereas Genov v Bulgaria concerns the collective manifestation of religious beliefs in the form of an association, the rest of the judgments, in which the Court refers to general principles, concern the individual manifestation of religious beliefs.

106  Reasoning in the case law on new minorities established that the principles referred to can largely be divided into two groups, which represent the opposite ends of the scale balancing the interest of the individual with the public interest.155 General principles attributed to the first group focus on the importance of religious freedom and pluralism in a democratic society and for the individual in question. Furthermore, these general principles emphasise the need for the protection of minorities in a democratic state. This first group includes the following or similar phrases:156 •

As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. • This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. • The State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (. . .) and that this duty requires the State to ensure mutual tolerance between opposing groups (. . .). • Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (. . .). • Pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’. • Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair treatment of people from minorities and avoids any abuse of a dominant position. In contrast, general principles allocated to the second group highlight the need for restrictions of manifestations of religious beliefs in a democratic society. Moreover, these general principles put emphasis on the role of the state as a supposedly neutral entity and do not recognise the disadvantaged position of minorities in a democratic system. This second group includes the following or similar phrases:157 •

Article 9 does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs (. . .). • In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place limitations on freedom to 155 Often, the concept of the margin of appreciation is referred to under the heading ‘general principles’; to avoid repetition, this research will examine both the general principles of the margin of appreciation as well as its use together in subsequent sections. 156 See eg SAS v France [GC] paras 124 and 127f (emphasis added). 157 See eg ibid paras 125ff (emphasis added).

Reasoning in the case law on new minorities 107 manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (. . .). This follows both from paragraph 2 of Article 9 and from the State’s positive obligations under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined therein (. . .). • The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. • Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society (. . .). • Where these ‘rights and freedoms of others’ are themselves among those guaranteed by the Convention or the Protocols thereto, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a ‘democratic society’ (. . .).

c. Patterns of reference to general principles Not all principles, which were just mentioned, were restated in all decisions or judgments. Looking at the ECtHR’s choice of restatement of general principles in the case law regarding new minorities from the perspective of the two identified groups, an interesting pattern can be observed in the case law regarding the neutrality of public education and manifestations of religious beliefs by new minorities: In the first decision taken in this regard, Dahlab v Switzerland concerning the wearing of a headscarf by a primary school teacher, the ECtHR mentioned general principles of both groups to an equal extent.158 However, in later decisions regarding the prohibition of the wearing of religious symbols for students in French public schools, taken in 2009,159 the ECtHR mostly mentioned principles assigned to the second group, conveying an emphasis on the need for restrictions of religious manifestations of minorities in a democratic society.160 Since all cases were decisions on the admissibility, such difference cannot be explained by the fact that the Court would refer to general principles more extensively in decisions on the merits. Yet, it could be argued that this lack of reference to general principles of the first group in the 2009 cases reflects the influence of Leyla S¸ahin v Turkey, an important leading case concerning the wearing of the headscarf by university students decided by the Grand Chamber in 2005 and

158 Dahlab v Switzerland (dec). 159 Aktas v France (dec); Bayrak v France (dec); Gamaleddyn v France (dec); Jasvir Singh v France (dec); Ranjit Singh v France (dec). 160 See eg Aktas v France (dec); Jasvir Singh v France (dec).

108  Reasoning in the case law on new minorities quoted extensively in the decisions regarding France.161 A further argument supporting this assumption is that in two judgments adopted in 2008 concerning the wearing of religious symbols by Muslim students during physical education classes the ECtHR also followed a similar approach to the selection of general principles and displayed a strong reliance on Leyla S¸ahin v Turkey.162 It appears that, with Leyla S¸ahin v Turkey, the focus in the ECtHR’s elaborations on general principles, at least in the context of neutrality of public education, shifted from the importance of maintaining religious pluralism in a democratic society to the necessity of restrictions of religious freedom. Although the case does not concern new minorities, a short inquiry in the reasoning adopted by the Grand Chamber of the ECtHR is warranted at this point. The case relates to a ban on wearing headscarves in institutions of higher education in Turkey and, like the cases concerning France, can be situated in a context of strict separation of state and religion based on the principle of laïcité. The Grand Chamber, like the Chamber,163 arrived at the conclusion that, although there had been an interference with the student’s right to freedom of religion and belief, it was justified. Taking a closer look at the judgment, it can be noticed that the Grand Chamber referred to both groups of general principles to an equal extent.164 Thus, it could be argued that the ECtHR in the case law regarding the wearing of religious symbols by students in France from 2008 and 2009 deliberately chose to mainly refer to principles of the second group, thus putting the focus on the need for restrictions.165 Though it has been recognised that ‘neither the list of general principles, nor the use the Court may choose to make of those it has already recognised, are fixed for all time’,166 such regression in the recognition of the importance of religious freedom to the individual in the context of general principles applicable to similar situations appears problematic. In Ebrahimian v France, a judgment from 2015, which can as well be placed in the context of laïcité, the ECtHR seems to have realised this to a certain extent. The general principles referred to in this judgment also emphasised the importance of freedom of religion as ‘one of the foundations of a “democratic society” ’.167 Yet, no reference to the importance of religious freedom to the individual was made. Contrary to this, in Eweida and Others v the United Kingdom, which was adopted in 2013 and also concerned the wearing of religious symbols at work, but outside of a context of a strict interpretation of state neutrality and 161 Leyla S¸ahin v Turkey [GC]. See also Nicholas Gibson, ‘An Unwelcome Trend: Religious Dress and Human Rights Following Leyla Sahin vs Turkey’ (2007) 25 NQHR 599. 162 Dogru v France paras 61f; Kervanci v France paras 61f. 163 Leyla S¸ahin v Turkey App no 44774/98, 29 June 2004 (ECtHR). 164 Leyla S¸ahin v Turkey [GC] paras 104ff. 165 This becomes clear when looking at the case Mann Singh v France (dec), an inadmissibility decision adopted also in 2008 concerning the refusal of authorities to accept a picture of a Sikh man wearing a turban for his driving licence. There, the Court equally referred to general principles of both groups. 166 Merrills 181. 167 Ebrahimian v France para 54.

Reasoning in the case law on new minorities 109 not by a member of a new minority, the Court recalled that freedom of religion is ‘one of the most vital elements that go to make up the identity of believers and their conception of life’.168 It could thus be concluded that this lack of recognition of the value of religious expression to the individual is specific to the context of laïcité (and new minorities). This seems to be confirmed by two judgments concerning new minorities taken outside of a laïcité context, namely SAS v France169 and Osmanog˘lu and Kocabas¸ v Switzerland, adopted in 2014 and 2017, concerning the wearing of the burqa in public space and the participation of Muslim students in mixed-sex swimming classes.170 Both judgments extensively refer to general principles of the first group. While in SAS v France, which concerned the burqa ban in the public sphere, these principles were mentioned alongside general principles of the second group emphasising the necessity for restrictions, in Osmanog˘lu and Kocabas¸ v Switzerland, which concerned the obligation of Muslim children to participate in mixed-sex swimming classes in public schools, general principles of the second group were only marginally mentioned.171 These examples also demonstrate that the lack of appreciation of the importance of religious freedom, at least with regard to the selection of general principles to be cited, does not concern all complaints brought by new Muslim minorities.172 Consequently, it can be concluded that in the case law regarding new minorities a certain pattern in the reference to general principles can be identified. It seems that in the context of laïcité in France, the ECtHR usually did not refer to general principles highlighting the importance of religious freedom in a democratic society, but instead emphasised the need for concessions from individuals (in these cases members of minorities) ‘in order to maintain and promote the ideals and values of a democratic society’.173 Although this difference in the selection of general principles did not influence the outcome of the cases, it seems

168 Eweida and Others v the United Kingdom para 79. The judgment joined four different applications, which concerned religious freedom in the context of both private and public employment. None of the applicants can however be defined as a member of a new minority according to the definition followed by this research. 169 Although the case concerns France, the prohibition of the wearing of the burqa was not adopted in the context of the principle of laïcité since it does not concern users of public service (ie students in public schools for cases like Aktas v France (dec)) or public servants (as was the case in Ebrahimian v France), but public space in general. 170 Interestingly, the two judgments adopted regarding the wearing of the burqa in Belgium in July 2017 do not refer to any general principles, but confine themselves to a reference to the Grand Chamber judgment in SAS v France, see Belcacemi and Oussar v Belgium paras 50ff; Dakir v Belgium paras 52ff. 171 SAS v France [GC] paras 123ff; Osmanog˘ lu and Kocabas¸ v Switzerland paras 82ff. The relations between religion and the state are defined at the cantonal level in Switzerland. Thus, the canton Geneva, where the case Dahlab v Switzerland originated, follows a strict separation of state and religion, whereas the canton of Basel-Stadt, where the case discussed here originated, adopts a different system. 172 See for a different assessment Danchin. 173 See eg Dogru v France para 62.

110  Reasoning in the case law on new minorities to be indicative for a general tendency of the ECtHR to attach less weight to the individual as opposed to abstract constitutional principles.174 While a similar tendency has already been identified with regard to the condition of legality and of legitimacy, the following sections inquire whether the same can be observed concerning the condition of proportionality when applied to the specific situation cited by the members of new minorities.

2. The condition of proportionality in the case law of the ECtHR As has been specified before, the reasoning the ECtHR adopts when assessing the condition of proportionality is often obscure and does not follow a given structure. Nevertheless, a general distinction between the necessity of a restriction and its proportionality has been identified. The most decisive for the outcome of a case is usually the assessment of proportionality, since it involves the balancing of the various interests involved.175 The ECtHR’s most recent judgment regarding the freedom of religion of members of new minorities, namely Lachiri v Belgium, represents an exception of this. In this judgment, which regarded the question whether excluding a woman, who was a civil party to a criminal case, from the courtroom because she wore a headscarf violated Article 9 ECHR, the ECtHR held that a court is a public space ‘where the respect for neutrality with regard to religious beliefs can prevail over the free exercise of the right to manifest a religion’. With this statement, the Court seemed to imply that the restriction of the applicant’s right to manifest her religious beliefs may be justified if it pursued the aim of preserving the neutrality of a public space. However, since it resulted from the facts of the case that the exclusion from the courtroom pursued the aim of preserving public order, the Court limited its examination to this legitimate aim. It then very briefly stated that the applicant had not behaved in a disrespectful manner or had in any other way represented a risk to the orderly proceeding of the hearing, which is why the restriction was not necessary. As a consequence, it found a violation of Article 9 ECHR and did not examine the proportionality of the restriction. Contrary to this, in the majority of cases regarding new minorities the assessment of the proportionality of a restriction of the right to manifest religious beliefs is clearly at the centre of the examination of the Court’s reasoning, often including a reference to the concept of the margin of appreciation. The following elaborations thus focus on the interplay of the Court’s relevant reasoning and the concept of the margin of appreciation in order to convey a full picture of the Court’s reasoning in the relevant decisions and judgments.176 At the outset, it should be recalled that the margin of appreciation is a concept which is widely used in the Court’s case law and thus is by no means specific to 174 See also the elaborations on abstract principles as legitimate aims in the context of new minorities, above Chapter 4, section IV. 175 Henrard, ‘Church-State Relations’ 61. 176 The grounds, based on which the ECtHR assesses the width of the margin of appreciation in a specific case, will be analysed in the next section.

Reasoning in the case law on new minorities 111 the jurisprudence regarding new minorities.177 Nevertheless, it appears interesting to inquire how this concept is used in the decisions and judgments regarding new minorities’ right to manifest their religious beliefs, more specifically how it influences the assessment of the condition of proportionality. In order to do so, this section is divided in two parts: First, an overview of different concepts of the margin of appreciation as used in the ECtHR’s case law, which were identified by relevant scholarship, is presented, including also an assessment of the concepts of margin of appreciation used in the case law regarding new minorities. This then forms the basis for the subsequent analysis of the influence of the concept of the margin of appreciation on the outcome in a specific case and the reasoning adopted by the ECtHR in the collected case law regarding new minorities’ right to manifest their religious beliefs.

a. Substantive and structural concepts of margin of appreciation Before examining the use of the margin of appreciation in the context of new minorities’ right to freedom of religion, one should take a closer look at this concept and its role in the interpretation of the ECHR. In this regard, the distinction put forward by Letsas in his theory of the interpretation of the ECHR seems relevant. He distinguishes between a substantive and a structural concept of the margin of appreciation in the ECtHR’s case law: The substantive concept ‘addresses the relation between fundamental freedoms and collective goals’178 and is mostly used in the examination of the permissibility of an interference and the formulation of the outcome of such examination.179 It has been argued that in this context, the reference to the margin is superfluous.180 The structural concept of the margin of appreciation is based on the premise that the powers of judicial review of the ECtHR are limited by virtue of the fact that it is an international court. It thus expresses the idea that the Convention system is a subsidiary means to protect human rights.181 Applying Letsas’ conceptual distinction to the cases analysed, it can be noted that only three of them adopted a substantive concept of the margin of appreciation.182 The key indicator used for such categorisation is the point at which the Court refers to the margin of appreciation, namely only in the last paragraph of the decision or judgment, where the reasoning comes to a conclusion. This leaves the substantive part of the reasoning adopted untouched and shows that, in fact, referencing the concept of the margin of appreciation is redundant because it did not affect the level of scrutiny applied during the examination of the complaint. An example is the case Jakóbski v Poland, where the Court held that ‘(h)aving

177 See above Chapter 2, section IV(1). 178 Letsas 84. 179 Ibid 86. 180 Ibid; Ronald Macdonald, ‘The Margin of Appreciation’ in Ronald Macdonald, Franz Matscher and Herbert Petzold (eds), The European System for the Protection of Human Rights (Martinus Nijhoff 1993) 85. 181 Letsas 90. 182 Jakóbski v Poland; Koval¸kovs v Latvia (dec); Vartic v Romania (No 2).

112  Reasoning in the case law on new minorities regard to all the foregoing factors, and despite the margin of appreciation left to the respondent State, the Court finds that the authorities failed to strike a fair balance’.183 All complaints using a substantive concept of the margin of appreciation regarded the religious freedom of prisoners in Eastern European countries, where no deference to national instances seemed to be warranted. This is surprising, since the prison environment has generally been identified by scholars as a field of policy where the state enjoys significant discretion.184 In all other cases, and thus the majority of the cases included in the empirical research making reference to the concept of the margin of appreciation, the ECtHR followed a structural concept of margin of appreciation.185 Again, such categorisation is based on the point at which the ECtHR referred to the margin in its decision or judgment, namely during the substantive assessment of the condition of proportionality. Consequently, the judicial review of the cases was clearly influenced by the consideration of the margin of appreciation. It appears interesting that in two thirds of the cases where the ECtHR made use of the substantive concept of the margin of appreciation, the ECtHR found a violation of Article 9 ECHR.186 All cases using a structural concept of the margin of appreciation resulted in no violation judgments or inadmissibility decisions. The structural use of the margin of appreciation thus, at least in the context of new minorities, seems to lead to a prevalence of arguments against finding a violation of the ECHR. Letsas’ distinction however does not directly deal with the effect of the use of the margin of appreciation on the outcome of a case and the way the ECtHR structures and guides its reasoning. The rest of this section thus examines which reasons the ECtHR adduced for such prevalence.

b. The influence of the margin of appreciation on the reasoning of the ECtHR In order to examine the influence of the structural use of the margin of appreciation on the reasoning and outcome in specific cases, the argumentation put forward by Legg in his study on the margin of appreciation in international human rights law appears helpful. Legg contends that the margin of appreciation in international human rights law is the judicial practice of assigning weight to the respondent state’s reasoning in a case on the basis of one or more of three external factors: democratic legitimacy; the common practice of states; and expertise.187

183 Jakóbski v Poland para 54. 184 Brems, ‘Margin of Appreciation’ 271. 185 See eg Aktas v France (dec); Dogru v France; Ebrahimian v France; El Morsli v France (dec); Jasvir Singh v France (dec); Mann Singh v France (dec); Phull v France (dec); SAS v France [GC]. 186 See also the elaborations on these three cases above Chapter 3, section II(1). 187 Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (OUP 2012) 17.

Reasoning in the case law on new minorities 113 Based on Raz’s work, he thus distinguishes between first- and second-order reasons which are decisive for reaching a judicial decision.188 Arguments speaking in favour of and against a violation of a human rights norm that are linked to the individual case at hand are referred to as first-order reasons. All external reasons for finding or not finding a violation, including concerns generally addressed using the concept of margin of appreciation, are labelled second-order reasons. Yet, according weight to these second-order reasons, in principle, does not prevent the consideration of first-order reasons.189 By means of a detailed analysis of the relevant case law regarding new minorities’ freedom of religion, this research has established that, broadly speaking, three different scenarios for the assessment of the proportionality of the interference among cases using a structural concept of margin of appreciation in the context of new minorities can be distinguished. I. FIRST SCENARIO: PREVAILING CONSIDERATION OF THE MARGIN OF APPRECIATION

The first scenario can be observed in inadmissibility decisions adopted until 2008.190 For these, the Court, based on the state’s margin of appreciation of a not further defined breadth, restricted its reasoning regarding the proportionality (and sometimes also the necessity) of the interference to a minimum.191 For example in Phull v France, concerning a Sikh man forced to remove his turban for a security check at an airport, it held the following: Firstly, security checks in airports are undoubtedly necessary in the interests of public safety within the meaning of that provision. Secondly, the arrangements for implementing them in the present case fell within the respondent State’s margin of appreciation, particularly as the measure was only resorted to occasionally.192 In these cases, the assessment of first-order reasons for and against the proportionality of the interference was abandoned in view of a prevailing consideration of the respondent state’s margin of appreciation. Yet, the ECtHR did not specify the reasons for granting such margin in any of the decisions.193 The concept and what it stands for functioned thus as a barrier to any real weighting of arguments and led to an inescapable preponderance of state interests. The scrutiny adopted

188 Ibid 18ff, referring to Joseph Raz, Practical Reason and Norms (OUP 1999). 189 Legg 21. 190 It should be noted that in 2008, a mix of different approaches can be found. 191 Dahlab v Switzerland (dec); El Morsli v France (dec); Mann Singh v France (dec); Phull v France (dec). 192 Phull v France (dec). 193 See also Kristin Henrard, ‘A Critical Analysis of the Margin of Appreciation Doctrine of the ECtHR, with Special Attention to Rights of a Traditional Way of Life and a Healthy Environment: A Call for an Alternative Model of International Supervision’ (2012) IV The Yearbook of Polar Law 365, 373.

114  Reasoning in the case law on new minorities by the ECtHR and consequently the protection offered to new minorities was very low in these cases.194 It has been highlighted that such lack of reasoning is highly problematic, not only because it begs the question of conformity with the right to fair trial as granted by Article 6(1) ECHR, but also because, as Gerards summarised it, (j)udicial reasoning is important for many different reasons. First, it allows for internal and external control. Having to write down the reasons for arriving at a certain outcome is an internal check for a judge or other judicial officer, who needs to rationalise an otherwise perhaps intuitive and subjective conclusion. Moreover, the outside world can only know if decisions are reasonable if they are aware of the reasons why they have been taken. Only if reasons are given is it possible to confirm that no inappropriate or unwarranted reasons have influenced the judgment and if all relevant arguments and facts have been duly taken into account.195 Furthermore, the ECtHR’s approach in these cases also raises issues regarding procedural fairness as well as authority and legitimacy of the Court’s decisions, not only with states, but also with the individual right-holders.196 Based on these concepts, it is key that the individual concerned feels that his or her views have been duly considered by the decision-maker. Consequently, it does not suffice that the alleged victim of a human rights violation is offered the possibility to present her or his views (‘formal participation’), but she or he also needs to be given a sound explanation why the perceived violation of her or his rights is not recognised by the Court (‘substantive participation’).197 II. SECOND SCENARIO: PREDOMINANT CONSIDERATION OF THE MARGIN OF APPRECIATION

The second scenario can be found in several cases decided since 2008 concerning the French constitutional principle of laïcité.198 In these decisions and judgments, the margin of appreciation permeated the ECtHR’s entire assessment of the condition of proportionality, since the ECtHR did not only refer to the concept to reach a conclusion of the assessment of the condition of proportionality, but also repeatedly throughout the examination of specific arguments. Like this, 194 For the relationship between the breadth of the margin of appreciation and the level of scrutiny see ibid 369f. 195 Gerards, ‘Inadmissibility Decisions’ 154. See for further details Frederick Schauer, ‘Giving Reasons’ (1995) 47 SLR 633. 196 See Brems and Lavrysen, ‘Procedural Justice’ specifically referring to the ECtHR; for more general observations see Mathilde Cohen, ‘Reason-Giving in Court Practice: DecisionMakers at the Crossroads’ (2007–2008) 14 CJEL 257; Fiss 739. 197 Brems and Lavrysen, ‘Procedural Justice’ 180f, referring to Tyler, Law 149. 198  See eg Aktas v France (dec); Dogru v France; Ebrahimian v France; Jasvir Singh v France (dec).

Reasoning in the case law on new minorities 115 although mentioning certain first-order reasons in favour of finding a violation, the perception was created that no matter which argument the applicant brought forward, the deference to national instances would prevent the Court from properly examining or evaluating it. As an example, the formulation used in the decisions regarding the exclusion of several Muslim and Sikh students from French public schools due to their refusal to refrain from wearing a headscarf or a turban can be mentioned: As regards the suggestion of the applicant to remove her headscarf when entering the class room or to substitute it with a cap or a bandana, which, according to her, would not have any religious connotation or would at least not be an ostentatious sign exercising pressure, the Court reiterates that such appreciation falls completely within the margin of appreciation of the state.199 Differently than in the first scenario, the ECtHR in these decisions elaborated on the second-order reasons which led to the granting of a margin of appreciation. Thus, the ECtHR stated that ‘where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance’.200 This appears important in terms of transparency, predictability and legal certainty.201 Yet, considering the concerns regarding sound judicial reasoning raised above, it still appears problematic that the ECtHR uses the margin of appreciation as a predominant argument precluding any real scrutiny of the adduced first-order reasons instead of as a melting pot of secondorder reasons, which has to be weighted alongside relevant first-order reasons. III.  THIRD SCENARIO: BALANCING THE MARGIN OF APPRECIATION

Four cases, which were decided comparatively recently, adopted a third approach to the assessment of the proportionality condition. In these judgments, the ECtHR discussed various first-order reasons put forward in favour of or against a violation, sometimes extensively. As a final argument, the Court invoked the margin of appreciation in order to conclude that there had not been a violation of Article 9 ECHR.202 For example, in SAS v France, concerning the prohibition of the burqa in public spaces, the ECtHR first extensively elaborated on the arguments brought forward by the parties, but then concluded that (i)n such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance since such review will lead it to assess 199 See eg Aktas v France (dec) (translation by the author). 200 See eg Dogru v France para 63. 201 Henrard, ‘Alternative Model’ 373. 202 Belcacemi and Oussar v Belgium; Dakir v Belgium; Osmanog˘lu and Kocabas¸ v Switzerland; SAS v France [GC].

116  Reasoning in the case law on new minorities a balance that has been struck by means of a democratic process within the society in question.203 The second-order reasons giving rise to the margin of appreciation were broadly the same as for the cases adopting the second approach but were discussed more extensively. Moreover, differently than in other analysed cases, the Court recalled that the margin of appreciation went hand in hand with European supervision.204 This third scenario of proportionality assessment in cases where the state, according to the ECtHR, should be granted a margin of appreciation, appears to allow for a more detailed assessment of first-order reasons that should be welcomed. Nevertheless, when looking closer at the reasoning adopted by the ECtHR, this first positive impression needs to be corrected slightly. The first judgment, SAS v France, adopted by the Grand Chamber in 2014, mentioned various first-order reasons in favour of and against the justification of the burqa ban based on the need to protect the rights and freedoms of others but did not weigh these reasons against each other. Instead, similar as in the cases that adopted the second scenario, the margin of appreciation was invoked, at the end of the recital of various reasons, as a kind of trump, precluding any further reasoning.205 This can be contrasted clearly with the elaborations made regarding the justification of the ban based on the need to protect public safety. Although the relevant elaborations are much shorter, the pertinent first-order reasons were weighted against each other without any reference to the concept of the margin of appreciation.206 Also in the judgment Osmanog˘lu and Kocabas¸ v Switzerland, adopted in 2017, no real weighting of the various first-order reasons mentioned took place, since already before starting its elaborations, the ECtHR stated that ‘with regard to the balancing of interests, (. . .) (it) regards the arguments brought forward by the Government convincing’.207 The rest of the elaborations concerning the condition of proportionality are not much more than a restatement of the arguments used by the national court.208 In both cases, the wide margin of appreciation granted to the state thus significantly influenced the judicial reasoning, although this at first did not appear to be the case. Consequently, the margin of appreciation has led to a very low level of scrutiny in the assessment of the proportionality condition in cases regarding new

203 SAS v France [GC] para 154. The reasoning adopted in the follow-up cases to SAS v France, namely Belcacemi and Oussar v Belgium and Dakir v Belgium, both decided in 2017, is much more limited. This can be explained by the fact that the Grand Chamber judgment acts as a precedent in the two complaints brought against Belgium. Given that the structure of the reasoning is similar to the one followed in SAS v France, the cases are however both allocated to the third scenario. 204 Osmanog˘lu and Kocabas¸ v Switzerland para 89; SAS v France [GC] para 131. 205 SAS v France [GC] paras 137ff. 206 See also Henrard, ‘Consensus’ 403. 207 Osmanog˘lu and Kocabas¸ v Switzerland para 96. 208 See also Fabienne Bretscher, ‘Osmanog˘lu and Kocabas¸ v. Switzerland: A Swiss Perspective’ Strasbourg Observers (30 March 2017) accessed 1 May 2019.

Reasoning in the case law on new minorities 117 minorities’ right to manifest their religious beliefs. As a result, in all cases involving a structural use of the margin of appreciation, the ECtHR followed the arguments brought forward by the respondent state and did not protect the rights claims of the applicants. It seems thus that the margin of appreciation grants states ‘not merely a major say in whether they have violated the convention, but at times it even appears that they get the final say’.209 Considering that this appears to be the rule in the overwhelming majority of complaints brought by members of new minorities, the question arises whether the effective protection of their rights is still guaranteed.210 This will be subject to further inquiry in the next section.

3. The margin of appreciation left to states Given the significant influence of the margin of appreciation on the reasoning in cases regarding new minorities’ right to manifest their religious beliefs, this section takes a closer look at the breadth of this margin in relevant cases and the factors influencing its determination. As mentioned before, the ECtHR distinguishes various breadths of the margin of appreciation granted to the state in different cases. In this context, it is first important to note that in most decisions and judgments concerning new minorities’ right to manifest their religious beliefs, the ECtHR, although mentioning the concept, did not specify the breadth of the granted margin.211 This also includes two judgments in which the ECtHR found a violation of Article 9 ECHR.212 In other relevant decisions, the ECtHR specified the breadth of the margin: In Osmanog˘lu and Kocabas¸ v Switzerland it stated that the state disposes of a ‘considerable’ margin of appreciation.213 In ISKCON v the United Kingdom, Ebrahimian v France and SAS v France, the respondent state was granted a ‘large’, ‘ample’ or ‘wide’ margin.214 In Dakir v Belgium and Belcacemi and Oussar v Belgium the ECtHR even used the term ‘very large’.215 In none of the complaints brought by new minorities was the margin of appreciation granted to the state defined as narrow, which would entail close scrutiny.216 However, it is important to note that in particular in its

209 Henrard, ‘Alternative Model’ 371, referring in particular to Lautsi and Others v Italy [GC] App no 30814/06, ECHR 2011 (extracts) (ECtHR). 210 See also Henrard, ‘Consensus’ 399. 211 See eg Aktas v France (dec); Dogru v France; El Morsli v France (dec); Koval¸kovs v Latvia (dec); Mann Singh v France (dec); Phull v France (dec). This includes also the decision Dahlab v Switzerland (dec) in which the ECtHR refers to a ‘certain’ margin of appreciation. See also Jan Kratochvíl, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29 NQHR 324, 340ff. 212 Jakóbski v Poland; Vartic v Romania (No 2). 213 Osmanog˘lu and Kocabas¸ v Switzerland para 105. 214 Ebrahimian v France para 65; ISKCON and 8 Others v the United Kingdom (dec); SAS v France [GC] para 155. 215 Belcacemi and Oussar v Belgium para 55; Dakir v Belgium para 59. 216 See for similar observations Tom Lewis, ‘What not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’ (2007) 56 ICLQ 395.

118  Reasoning in the case law on new minorities most recent judgment Lachiri v Belgium, in which a violation of the applicant’s right to manifest her religious beliefs was found, the ECtHR did not mention the concept of the margin of appreciation at all. Confronted with this situation, the question arises: Which factors influence the breadth of the margin of appreciation in a specific case? As was mentioned before, the ECtHR generally states that the margin of appreciation granted to the state varies ‘according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions’.217 As was already elaborated above, research on the matter, covering various areas of the ECtHR’s jurisprudence, has found that (almost) all arguments used in the ECtHR’s case law for determining the degree of the margin of appreciation can be reduced to the following three factors: (1) the ‘common ground’ factor, (2) the ‘better placed’ argument and (3) the nature of the affected right or interest.218 The role played by these factors in the case law regarding new minorities will be analysed in the following.

a. Nature of the affected right or interest At the outset, it must be noted that the third factor, the nature of the right, is given surprisingly little attention in the case law regarding new minorities: In an early analysis of the ECtHR’s case law, Brems assumed that, since the Court had held (and continues to hold) that the right to freedom of religion was ‘one of the foundations of a “democratic society” ’ and ‘one of the most vital elements that go to make up the identity of believers and their conception of life’, the right would be attached significant importance.219 Moreover, to this day it is regularly emphasised, for example by former judges of the ECtHR, that freedom of religion is a ‘precious asset’.220 Yet, in the determination of the breadth of the margin of appreciation in the case law regarding new minorities, this importance is not considered at all. Additionally, the standard formulation commonly used in the context of Article 9 ECHR to emphasise its importance, as was reminded at the beginning of this paragraph, is not evoked. Instead, if discussing any factors determining the margin of appreciation in the concrete case, the ECtHR generally puts a strong emphasis on the question whether there is European consensus regarding the matter at issue and the fact that national authorities are better placed.221 Given that these two factors are intrinsically linked, they will be discussed together in the following.

217 Connors v the United Kingdom para 82. 218 See Gerards, ‘Margin of Appreciation’ 107ff; for further details see above Chapter 2, section IV(1). 219 Brems, ‘Margin of Appreciation’ 268, referring to Kokkinakis v Greece para 31. The same phrases have been used in other decisions, see above Chapter 4, section V(1). 220 See Bratza; Françoise Tulkens, ‘Freedom of Religion Under the European Convention on Human Rights: A Precious Asset’ (2014) Brigham Young University Law Review 509. 221 See also Henrard, ‘Church-State Relations’ 71.

Reasoning in the case law on new minorities 119

b. European consensus and deference to national authorities According to the ECtHR’s approach, a lack of European consensus indicates a wide margin of appreciation for the respondent state and thus a low level of scrutiny applied in the judicial review of the complaint.222 In this context, European consensus can be seen as a mediation tool between a dynamic interpretation of the ECHR and the margin of appreciation.223 Based on such reasoning, the dynamic, evolutive interpretation of the ECHR, which goes hand in hand with no or a narrow margin of appreciation of states, is only regarded to be legitimate when a consensus among member states exists. If this is not the case, states should be granted a wide margin of appreciation.224 In more recent cases regarding new minorities, the ECtHR generally held that ‘(w)here questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance’.225 It has already been observed with regard to Article 9 ECHR in general that the concept of ‘church-state relations’, which is commonly used by the ECtHR, ‘is not confined to (the implications of ) the separation of church and state, but also refers to more substantive ideals pertaining to the content of state policy, the duty of state neutrality pertaining to religions being key’.226 The application of this concept in the context of new minorities seems to take this a step further. In 2014, in SAS v France, the Grand Chamber stated that ‘(a)s regards Article 9 of the Convention, the State should (. . .), in principle, be afforded a wide margin of appreciation’.227 From this statement, it seems thus that the lack of consensus regarding the regulation of the relationship between the state and religion has led to a prima facie assumption of a wide margin of appreciation in all complaints alleging a violation of Article 9 ECHR. Consequently, the Court seems to have advanced its line of jurisprudence on Article 9 ECHR in the opposite direction of what early commentators expected.228 This line was further developed in 2017 in Osmanog˘lu and Kocabas¸ v Switzerland, where the Court stated the following: States dispose of a considerable margin of appreciation regarding questions referring to the relations between the State and religions and the significance which is to be given to religion in society.229

222 Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (CUP 2015) 135. 223 See ibid 23. 224 See for a detailed analysis ibid 129ff. 225 See eg Dogru v France para 63. 226 Henrard, ‘Church-State Relations’ 67. See also Tulkens, ‘Pluralism’ and above Chapter 2, section IV(1). 227 SAS v France [GC] para 129. 228 See eg Brems, ‘Margin of Appreciation’ 268. 229 Osmanog˘lu and Kocabas¸ v Switzerland para 95 (emphasis added).

120  Reasoning in the case law on new minorities It is remarkable how the Court explicitly linked the unspecified concept of the ‘significance of religion in society’ with a considerable margin of appreciation in the abstract. As the same judgment shows, this has important consequences for the protection of new minorities’ religious freedom. In the application of this concept to the specific case at hand, the Court held that it is in fact not possible to identify, across Europe, a uniform conception of the meaning of religion in society and the sense or impact of acts corresponding to the public expression of a religious conviction are not the same according to time and context.230 This indicates that states dispose of a wide margin of appreciation regarding any public manifestation of religious beliefs. Considering that most complaints brought by members of new minorities concerned the public sphere,231 such approach leaves these groups with a very low level of protection.232 Moreover, as has also been highlighted by Henrard, in most analysed cases the Court does not recognise that, although there might be a lack of consensus on such overarching level, a consensus on a more specific level might exist.233 Thus, the cases concerning the manifestation of religious beliefs in the field of education generally do not specifically assess the existence of a consensus with regard to the precise matter at issue.234 Other decisions and judgments assess on a more specific level whether a consensus can be identified and compare different European approaches to the issue. However, although trying to convey objectivity, this assessment is often flawed.235 In SAS v France, concerning the prohibition to wear a burqa in public spaces, the Grand Chamber held that there is no European consensus against a ban. Admittedly, from a strictly normative standpoint, France is very much in a minority position in Europe: except for Belgium, no other member State of the Council of Europe has, to date, opted for such a measure. It must be observed, however, that the question of the wearing of the full-face veil in public is or has been a subject of debate in a number of European States.236

230 Ibid para 88, referring to Leyla S¸ahin v Turkey [GC] para 109 (translation by the author). 231 See above Chapter 3, section III(1a). 232 Interestingly, this excludes the cases concerning the religious freedom of Buddhist prisoners, see Jakóbski v Poland; Vartic v Romania (No 2). 233 See for a more general account Henrard, ‘Alternative Model’ 374. 234 Aktas v France (dec); Dogru v France; Jasvir Singh v France (dec); Osmanog˘lu and Kocabas¸ v Switzerland. See also the criticism voiced by Judge Tulkens in her Dissenting Opinion in Leyla S¸ahin v Turkey [GC]. 235 See also Henrard, ‘Alternative Model’ 374. 236 SAS v France [GC] para 156. See for similar elaborations with regard to the wearing of religious symbols by civil servants Ebrahimian v France para 65.

Reasoning in the case law on new minorities 121 The Court’s conclusion appears questionable because it does not give reasons why a situation in which only two states have opted for a ban can be seen as demonstrating a lack of consensus against a ban.237 This also raises questions on how European consensus should be measured, which however go beyond the scope of the present research.238 For the purpose of the present research, it appears much more important that the statement of the Grand Chamber also shows that the use of European consensus in cases regarding new minorities is very counterintuitive compared to its application in previous case law, which to date has not been highlighted by relevant scholarship. As was mentioned at the beginning of this section, the ECtHR usually assesses the existence of European consensus in order to raise the standard of rights protection in the context of an evolutive interpretation of the ECHR.239 Thus, it inquires whether a right, which was not traditionally recognised in the member states of the CoE could now be seen as established, which in turn would legitimise the ECtHR to raise the standard of protection in this regard. An example in the context of Article 9 ECHR is the recognition of a right to conscientious objection to military service. In Bayatyan v Armenia, the Grand Chamber reversed its standing case law and found that, since, apart from Armenia, only four other CoE member states did not yet change their legislation in order to provide for a right to conscientious objection to military service, there was sufficient consensus in order to recognise such right under the ECHR.240 In SAS v France and other similar cases, we are however confronted with a different situation: The lack of consensus does not justify the maintenance of the status quo, ie that members of new minorities are free to manifest their religious beliefs in the public sphere, but instead gives states the discretion to reduce human rights protection, ie to constrain new minorities’ manifestations of religious beliefs. In fact, in all cases regarding new minorities in which the ECtHR referred to the concept of European consensus the interferences of their right to freedom of religion and belief can be traced back to recent legislative or policy related changes in the respective states. Thus, the first set of cases can be situated in the context of a law prohibiting the wearing of ostentatious religious symbols in French public schools, which was adopted by French Parliament in March 2004 and subsequently at the beginning of the new school year in September 2004, applied to all six applicants, Muslims and Sikhs.241 This law was adopted in­­ 237 See among many SAS v France [GC] Joint partly dissenting opinion of Judges Nussberger and Jäderblom; Henrard, ‘Consensus’ 403f. 238 See for further details on this issue Dzehtsiarou 40ff. 239 See eg Brems, ‘Margin of Appreciation’ 279ff; Laurence R Helfer, ‘Consensus, Coherence and the European Convention on Human Rights’ (1993) 26 Cornell International Law Journal 133. 240 Bayatyan v Armenia [GC] paras 103f. In this case, the number of states required for consensus seems to be lower than in SAS v France. 241 See Law no 2004–228; Aktas v France (dec); Bayrak v France (dec); Gamaleddyn v France (dec); Ghazal v France (dec); Jasvir Singh v France (dec) Ranjit Singh v France (dec).

122  Reasoning in the case law on new minorities contradiction with an earlier opinion of the Conseil d’État, which had found that the wearing of a headscarf by students was compatible with the principle of laïcité.242 It thus represented a step back with regard to the protection of human rights in France. Similarly, the case Osmanog˘lu and Kocabas¸ v Switzerland can be traced to a more restrictive interpretation of the right to freedom of religion by the Swiss Federal Tribunal: In a judgment in 1993, the Tribunal had found that Muslim students needed to be exempted from swimming classes, since the refusal to do so amounted to a violation of their right to freedom of religion and belief. Fifteen years later, however, a new judgment reversed this approach and, consequently, many schools refused requests for exemption.243 Also here, the situation the ECtHR had to deal with can be set in a context of a reduction of human rights protection. The use of the concept of margin of appreciation, and more specifically the concept of European consensus, in such situations is highly problematic:244 First of all, the ECtHR legitimises steps backwards in the protection of human rights in Europe. This appears questionable not only when considering that the preamble of the ECHR specifies as one of the objectives of the CoE the ‘further realisation of Human Rights and Fundamental Freedoms’. Moreover, the Court’s case law has a broader impact in Europe (and beyond). Thus, by accepting the human rights conformity of more and more restrictive state policies against new minorities, the ECtHR gives an incentive to other states to adopt similar restrictions. This can be seen for example with the burqa ban, which was regarded to be in conformity with Article 9 ECHR in SAS v France. Following the judgment of the ECtHR, more states started debating the issue and several politicians made public statements in favour of such a ban.245 By refusing to give direction and guidance to member states in matters regarding new minorities the ECtHR not only neglects its duty to ensure respect for human rights in Europe, but also ignores the non-dominant, disadvantaged position of minorities in a democratic state based on the rule of the majority.246

242 France, Conseil d’État, Headscarf. See also Bribosia, Caceres and Rorive 496. 243 See Fabienne Bretscher, ‘Between Law and Politics: Muslim Religious Practices in Swiss Public Schools’ (2017) 20 Studia z Prawa Wyznaniowego 35; Johannes Reich, ‘Switzerland: Freedom of Creed and Conscience, Immigration, and Public Schools in the Postsecular State – Compulsory Coeducational Swimming Instruction Revisited’ (2009) 7 I•CON 754. 244 See also Dzehtsiarou 202. For a different opinion see McGoldrick, ‘Margin of Appreciation’ 30. 245 See for an overview the contributions in Alessandro Ferrari and Sabrina Pastorelli (eds), The Burqa Affair Across Europe: Between Public and Private Space (Routledge 2016). See also the two complaints regarding the prohibition of the wearing of the burqa in Belgium, which were however introduced before 2014, Belcacemi and Oussar v Belgium; Dakir v Belgium. 246 See also Bretscher, ‘Diversity’; Henrard, ‘Church-State Relations’ 69f. For further elaborations on this issue see below Chapter 6, section II(3).

Reasoning in the case law on new minorities 123

VI. The condition of proportionality in the case law of the HRC Since the views of the HRC are in general much more concise than judgments and decisions of the ECtHR, it is not surprising that the Committee’s assessment of the condition of proportionality for restrictions of new minorities’ right to manifest their religious beliefs is also rather succinct. A particularly extreme example of this is the case Bhinder v Canada, where the HRC just bluntly stated that the limitation ‘is justified by reference to the grounds laid down in article 18, paragraph 3’, without any further specification.247 Since the HRC completely abstained from examining any first-order reasons248 related to the case at hand, it could be argued that, although not explicitly mentioning the concept of the margin of appreciation or discretion, the Committee’s reasoning is based on such margin.249 Building on the distinction of different types of reasoning regarding the condition of proportionality developed in the context of the ECtHR in the previous section, the approach used in the case Bhinder v Canada could be compared to the one adopted in the inadmissibility decisions taken by the ECtHR until 2008, eg Phull v France.250 As has been highlighted already, this lack of reasoning is extremely problematic, not only since it precludes any kind of internal or external control of the adopted decisions, but also because it raises questions about the procedural fairness as well as the authority and legitimacy of the respective decisions.251 The approach adopted by the HRC in the six cases following this first view on the rights of new minorities in 1989 however can be clearly distinguished from the one followed by the ECtHR. This becomes particularly obvious when applying the distinction between first- and second-order reasons as developed by Legg, also used for the analysis of the ECtHR’s assessment of the condition of proportionality, to the case law of the HRC.252 Thus, it can be noticed that the HRC did not (explicitly) consider second-order reasons in these six views.253 This represents a stark contrast to the approach of the ECtHR, which, in cases regarding new minorities, is very strongly based on the consideration of second-order reasons, mostly by using the concept of the margin of appreciation.

247 Karnel Singh Bhinder v Canada para 6.2. 248 The distinction between first- and second-order reasons stems from Raz and has been applied to the context of international human rights law by Legg 18ff. See for further details above Chapter 4, section V(2b). 249 See already above Chapter 2, section IV(2). The same argument can be found in Petzhold 311f; Tahzib 294ff. 250 Phull v France (dec). For further details see above Chapter 4, section V(2b). 251 See Brems and Lavrysen, ‘Procedural Justice’ 180f; Gerards, ‘Inadmissibility Decisions’ 154; Schauer; Tyler, Law 149. For further details see above Chapter 4, section V(2b). 252 Legg 18ff, referring to Raz. 253 A tendency to focus on the factual assessment of the individual case has been observed for the case law of the HRC in general, see Schlütter 273.

124  Reasoning in the case law on new minorities In order to take a closer look at the way the HRC examined the various firstorder reasons involved, the Committee’s reasoning in the case in Bikramjit Singh v France concerning the French law prohibiting the wearing of ostentatious religious symbols in public schools appears particularly illustrative. After shortly summarising the author’s as well as the respondent state’s arguments, the HRC held the following: However, the Committee is of the view that the State party has not furnished compelling evidence that, by wearing his keski, the author would have posed a threat to the rights and freedoms of other pupils or to order at the school. The Committee is also of the view that the penalty of the pupil’s permanent expulsion from the public school was disproportionate and led to serious effects on the education to which the author, like any person of his age, was entitled in the State party. The Committee is not convinced that expulsion was necessary and that the dialogue between the school authorities and the author truly took into consideration his particular interests and circumstances. Moreover, the State party imposed this harmful sanction on the author, not because his personal conduct created any concrete risk, but solely because of his inclusion in a broad category of persons defined by their religious conduct. In this regard, the Committee notes the State party’s assertion that the broad extension of the category of persons forbidden to comply with their religious duties simplifies the administration of the restrictive policy. However, in the Committee’s view, the State party has not shown how the sacrifice of those persons’ rights is either necessary or proportionate to the benefits achieved.254 It then concluded that there had been a violation of Article 18 ICCPR. Considering the brevity of the reasoning, the question arises whether the HRC’s approach, which is very similar in other examined views,255 can fulfil the standards for sound judicial reasoning mentioned above in the context of the view Bhinder v Canada. In response to this question, two different perspectives need to be considered: From the author’s perspective, most of the main arguments he brought forward were addressed and supported by the HRC.256 The Committee seems to have taken the author’s concerns seriously, not only by finding a violation of his right to manifest his religious beliefs, but also by setting a high threshold for restricting the rights of minority groups in the interest of the majority.257 The Committee thus exercised ‘a thorough and in concreto control’,258 which,

254 Bikramjit Singh v France para 8.7. 255 See for example Ranjit Singh v France para 8.4; Shingara Mann Singh v France para 9.4f. 256 This does not hold true for the issues raised by the author under Art 26 ICCPR, see Bikramjit Singh v France para 8.8. 257 See also Bribosia, Caceres and Rorive. 258 Ibid 508 (translation by the author). See also Tulkens and Van Drooghenbroeck 944.

Reasoning in the case law on new minorities 125 according to a statement published on the website of the organisation United Sikhs, satisfied the expectations of the author of the communication.259 At the same time however, the level of scrutiny, although also addressing most of the arguments brought forward by the respondent state, probably exceeded the respondent state’s expectations.260 France had reminded the HRC in its submission of the case law of the ECtHR, which allows States parties to the European Convention some room for manoeuvre (and) reflects the Court’s intention to take account of choices, particularly constitutional and legislative choices, made by States attached to the principle of secularism, while monitoring observance of the rights and freedoms protected by the Convention.261 Yet, in contrast to the ECtHR, the HRC clearly allocated the burden of proof for the justification of the interference on the state. Thus, it found that France ‘has not furnished compelling evidence that, by wearing his keski, the author would have posed a threat to the rights and freedoms of other pupils or to order at the school’ and that the state ‘has not shown how the sacrifice of those persons’ rights is either necessary or proportionate to the benefits achieved’.262 Such demanding approach might bear the risk of leading states to question the authority and legitimacy of the HRC as an international body.263 In this context, granting a margin of appreciation to states, and thus applying less scrutiny to the arguments they bring forward to justify restrictions of new minorities’ right to manifest their religious beliefs, might be seen as a tool to mitigate such risk.264 While this is apparently the approach chosen by the ECtHR, there are alternative ways to increase the authority and legitimacy of an international body, which will be analysed in further detail below.265

259 United Sikhs, ‘SIKHS Win School Turban Ban Case Against France in the UN’ United Sikhs Community Update (14 December 2012) accessed 1 May 2019. 260 In fact, France confirmed that it has no intention of adapting the laws found to be incompatible with Art 18 ICCPR, see the statements in Stéphanie Le Bars, ‘Malgré les critiques à l’ONU, la loi sur les signes religieux à l’école devrait rester inchangée’ Le Monde (31 January 2013) accessed 1 May 2019. See also Tulkens and Van Drooghenbroeck 746. 261 Bikramjit Singh v France para 5.5. Not surprisingly, the law in question is still in force today in the same form as it was at the time of the adoption of the HRC’s view, see Law no 2004–228. 262 Bikramjit Singh v France para 8.7. Similar formulations are used in Ranjit Singh v France para 8.4 and Shingara Mann Singh v France paras 9.4f. 263 Tellingly, France has been criticised by the HRC for failing to remedy the violation found in the discussed case Shingara Mann Singh v France, see HRC, Concluding Observations on the 5th Report Submitted by France (UN Doc CCPR/C/FRA/CO/5, 17 August 2015) para 7. 264 See McGoldrick, ‘Margin of Appreciation’ 43. 265 See below Chapter 7.

126  Reasoning in the case law on new minorities Nevertheless, some brief remarks appear warranted at this point. This book contends that one strategy used by judicial bodies to increase the authority and legitimacy of their decisions is to focus on the persuasiveness of their reasoning, which appears particularly crucial when considering the lack of formal bindingness of the HRC’s views.266 In this regard, the distinction between minimal justification and concrete justification of judicial decisions, developed by Wróblewski, appears of relevance: Whereas minimal justification is limited to normative and factual elements, concrete justification furnishes supplementary reasons for the decision taken. Such concrete justification can involve, among others, the reference to previous judicial decisions,267 which is seen as contributing to the rationality of the (quasi-)judicial body’s reasoning and thus to the consistency as well as coherence of the case law.268 Overall, this increased rationality can significantly influence whether a (quasi-)judicial body is perceived as legitimate and thus disposing of the necessary authority.269 Additionally, the reference to decisions of other relevant bodies is important to tackle issues of divergence among different legal orders and establish a so-called judicial dialogue.270 Yet, the HRC only provides a minimal justification for its views (in the context of new minorities) and does not refer to previous views it has itself issued nor to other decisions or judgments by international and national judicial bodies.271 This can for example be observed in the case Shingara Mann Singh v France, which concerned the question whether Sikhs could be required to appear bareheaded on the photo for their passport.272 While this communication was addressed in 2013, the HRC had issued a view on a very similar case concerning the photo on the residence permit in France in 2011, namely Ranjit Singh v France.273 In its reasoning, however, the HRC did not refer to this previous view. In addition, the ECtHR had also dealt with a very similar case concerning the photo on the driving 266 See also Geir Ulfstein, ‘Individual Communications’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP 2012) 113. 267 This argumentative use of previous decisions needs to be clearly distinguished from any discussion of the binding force of legal precedents, which is not addressed here. See Leonor Moral Soriano, ‘The Use of Precedents as Arguments of Authority, Arguments ab exemplo, and Arguments of Reasons in Civil Law Systems’ (1998) 11 Ratio Juris 90, 93f. 268 Jerzy Wróblewski, The Judicial Application of Law (Zenon Ban´kowski and Neil MacCormick eds, Kluwer 1992) 232ff. See also Moral Soriano 97. 269 See Moral Soriano 96ff, referring to the theory developed by Chaïm Perelman and Lucie Olbrechts-Tyteca, Traité de l’Argumentation: La Nouvelle Rhétorique (3rd edn, Editions de l’Université de Bruxelles 1976) 19ff. 270 See eg Mireille Delmas-Marty, Les Forces Imaginantes du Droit (II): Le Pluralisme Ordonné (Seuil 2006) 46ff. 271 It should be noted at this point that the HRC’s institutional capacity to undertake research into relevant case law is limited, in particular compared to the ECtHR, which disposes of a special research division. 272 Shingara Mann Singh v France. 273 Ranjit Singh v France. Another example is the case Bikramjit v France, where the HRC did not refer to the Concluding Observations it had issued in the context of the examination of the fourth periodic report of France regarding the same issue, although this was highlighted by the author of the communication: Bikramjit Singh v France para 3.15.

Reasoning in the case law on new minorities 127 licence in 2008, but had declared the complaint manifestly ill-founded and thus inadmissible.274 Although France had recalled this decision in its submissions,275 the HRC did not refer to it at all. This seems particularly problematic considering that the HRC’s view contradicted the findings of the ECtHR.276 Thus, despite recognising that the HRC might not have referred to the ECtHR’s decisions to avoid questioning its own authority, it would be preferable for the HRC to explain its reasons for diverging from the ECtHR’s conclusion, in particular in view of avoiding divergence in international human rights law.

VII. Conclusion It can be concluded that the ECtHR is, generally, not a very attractive venue for new minorities to find support for their rights claims. This is in particular based on the fact that the Court, by continuously siding with the arguments and reasons presented by national authorities, opens a legal void, inhibiting it from fulfilling its main purpose, which is to ensure that human rights are respected regardless of the characteristics of the applicants. Deference in international human rights law is usually dealt with under the heading of the concept of the margin of appreciation, which is used in the assessment of the condition of proportionality. However, in the ECtHR’s case law regarding new minorities’ religious freedom, such deference also influences other steps of the assessment of the justification of an interference. This is first the condition of legality, where the Court’s reasoning is usually very superficial and does not always respect the guidelines established by previous case law. Second, also in the assessment of the condition of legitimacy, the Court is generally very succinct, which leaves the respondent state a large discretion. Especially the unspecified use of the legitimate aim of the protection of the rights and freedoms of others, which is brought forward in most cases concerning new minorities, bears a significant risk, because it allows for the restriction of the rights of minorities in order to protect the majority, without defining why this would be required. Third, and most importantly, the deference to national instances takes the form of the said margin of appreciation, which is mentioned in the assessment of the condition of proportionality in almost all cases regarding new minorities. This significantly lowers the scrutiny applied: Most complaints brought by new minorities are not examined in detail and their rights are offered a very restricted protection. Like this, justified limitations of the right to freedom of religion, which should be the exception,277 have become the rule for new minorities. The reasoning of the HRC in the views concerning new minorities’ right to freedom of religion and belief is in general rather succinct. Thus, the existence of an interference and the legal basis of such interference are either not addressed at 274 Mann Singh v France (dec). 275 Shingara Mann Singh v France paras 6.3f. 276 See also McGoldrick, ‘Margin of Appreciation’ 48. 277 See also Henrard, ‘Alternative Model’ 372.

128  Reasoning in the case law on new minorities all or only examined very briefly. Moreover, the HRC displays a tendency towards not clearly assessing and distinguishing the legitimate aims pursued by a restriction, which makes the HRC’s approach very comparable to the one adopted by the ECtHR. Nevertheless, differently than the ECtHR, the HRC does not accept abstract principles, such as laïcité, as grounds of justification, but rather requires proof of specific incidents or threats to the fundamental rights and freedoms of others. This has become clear in its most recent views adopted in 2018, in which it also included more detailed reasoning. The main difference between the ECtHR’s and the HRC’s approaches to new minorities’ right to manifest their religious beliefs lies however in the assessment of the condition of proportionality. While the ECtHR generally grants states a wide margin of appreciation in this assessment, the HRC opts for a thorough analysis, imposing the burden of proof for the fulfilment of the condition of proportionality on the state. This contrasting approach can thus be seen as the main factor for the difference in the percentage of violations found by the HRC and the ECtHR. Nevertheless, the high level of scrutiny might lead states to question the authority and legitimacy of the HRC to examine matters that they regard to be at their own discretion. Thus, although the HRC’s approach to the interpretation and application of the right to manifest religious beliefs offers members of new minorities a higher level of protection than the ECtHR, thus making the HRC a more attractive venue for their claims, the obtained finding of a violation might not have any practical effect, since it is not respected by the state in question.

5 Pinpointing divergence in the international protection of new minorities’ right to freedom of religion

During the drafting process of Article 9 ECHR, the intention to align the guarantee closely with the guarantees at the UN level was clearly expressed. In the travaux préparatoires of Article 9 ECHR, for example, the relevant Annotation on the Draft UN Covenants was attached due to ‘certain affinities between Article 9 of the Convention and Article 18 of the draft International Covenant on Civil and Political Rights’.1 Nevertheless, the previous chapters have established certain differences between the approach chosen by the ECtHR and the HRC to the interpretation and application of the right of new minorities to manifest their religious beliefs, which indicate that in this context the intentions of the drafters have not been realised entirely. Taking such analysis a step further, this chapter aims at pinpointing the specific issues with regard to which divergence between the ECtHR and the HRC can be observed. Although this chapter focuses on the identified divergence in the interpretation and application of new minorities’ right to freedom of religion and belief by the ECtHR and the HRC, it is important to first put this divergence into perspective by highlighting several commonalities. Thus, both bodies base their reasoning on very similar parameters, ie requiring any interference with the right to manifest religious beliefs to fulfil the conditions of legality, legitimacy and proportionality. Moreover, both the ECtHR and the HRC today generally readily recognise the actions complained of by new minorities as interferences with their right to manifest their religious beliefs, thus defining the scope of such right in a way that also encompasses the religious practices of new minorities. Because of this approach, the reasoning usually focuses on the justification of an interference. In this context, both bodies show a tendency not to set high standards on the conditions of legality and legitimacy, but instead to concentrate their elaborations on the condition of proportionality. Yet, despite the similar parameters used for verifying whether a violation of new minorities’ right to manifest their religious beliefs occurred, the level of protection offered by the ECtHR and the HRC differs quite significantly. This

1 CoE, Preparatory Work on Article 9 of the European Convention on Human Rights (DH(56)14, 1956) 18. See also Evans M D, Religious Liberty 266ff.

130  Divergence in international protection emblematises ‘the interpretive dimensions of adjudication and the dynamic character of all interpretive activity’.2 A closer look at the most important issues, with regard to which the approaches of the two bodies diverge, thus seems warranted. At this point, it should be recalled that, according to Ajevski, divergence within international human rights law may occur on three main levels, namely first regarding the specific wording used by a provision, second regarding the doctrine, test or justification used for the interpretation of the provision in question and third regarding the outcome in a specific case.3 Consequently, the following analysis is based on a twofold approach: First, the normative framework is examined and subsequently the application and interpretation of the relevant provisions in the relevant complaints is considered. The analysis concentrates on three main issues, namely the scales used by the two bodies to measure the sufficient substantiation of complaints, the bar set for fulfilling the condition of legitimacy and the scrutiny applied in the assessment of the condition of proportionality.

I. Scales to measure the sufficient substantiation of complaints As was highlighted before, one of the most striking differences found in the quantitative analysis of the collected case law of the ECtHR and the HRC is the high number of inadmissibility decisions reached by the ECtHR in cases regarding new minorities’ religious freedom. Furthermore, the HRC found violations of the right to freedom of religion and belief in several cases, which were based on similar facts as those declared inadmissible by the ECtHR. Given that the relevant complaints were declared inadmissible because they were regarded as manifestly ill-founded, the question arises, whether and in what aspects the scales used by the ECtHR and HRC to measure the well-foundedness, and thus admissibility, of complaints differ. Considering the three levels, on which divergence might occur in international human rights law, in order to answer this question it is first important to recall the normative framework, namely the relevant admissibility requirements specified in the ECHR and the Optional Protocol to the ICCPR, which are interpreted as well as applied by the ECtHR and the HRC. Subsequently, a closer look needs to be taken at how the inadmissibility or admissibility of the relevant complaints was motivated by the two bodies in the analysed cases.

1. Comparison of the normative framework and its application The admissibility requirement in question, namely that a complaint must be wellfounded or substantiated, only has an explicit basis in the ECHR, ie in Article 35(3a). There is thus already divergence at the normative level. This has been mitigated by the HRC to a certain extent by using Article 2 of the Optional

2 Fiss 740. 3 Ajevski, ‘Fragmentation 2014’ 92f; see for further details above Chapter 1, section I(1).

Divergence in international protection 131 Protocol to declare communications which lack substantiation inadmissible.4 The interpretation and application of this (implicit) admissibility requirement however differs significantly. Thus, the HRC has clearly stated that ‘at the admissibility stage an author need not prove the alleged violation, (. . .) (but only) submit sufficient evidence in substantiation of his allegation to constitute a prima facie case’.5 The ECtHR conversely has interpreted Article 35(3a) ECHR in a broader way, going beyond the assessment of the sufficient foundation of a claim. It also declares a complaint inadmissible based on the said provision when an applicant asks the Court to act like a fourth instance, which allegedly misapprehends the body’s role and nature.6 More importantly for the present research, the ECtHR also finds complaints manifestly ill-founded when the absence of a violation is clear or apparent. Such assessment may be based on the existence of settled case law on an identical or similar issue.7 The practical consequences of these interpretative differences have been illustrated by various sets of cases, also outside of the context of new minorities’ right to freedom of religion and belief, which were declared inadmissible by the ECtHR, but found admissible by the HRC.8 Both bodies have been criticised for how they are dealing with the said admissibility criteria. For the HRC, such criticism focuses on the question whether the Committee is transgressing its competences, given that the substantiation of the claim was intentionally not included as an admissibility requirement in the Optional Protocol.9 For the ECtHR, critiques are mostly based on the concept of procedural justice, given that inadmissibility decisions usually go hand in hand with a rather limited reasoning.10 Yet, it has also been highlighted that the ECtHR declares manifestly ill-founded many complaints which at first sight do not appear to fulfil this criterion and have even been classified as going beyond merely applying existing case law by the ECtHR itself. Thus, Gerards observed that many inadmissibility decisions are ranked at ‘importance level 2’ in the case law collection of the ECtHR, which, based on the ECtHR’s classification refers to ‘judgments, decisions and advisory opinions which, whilst not making a significant contribution to the case-law, nevertheless go beyond merely applying existing case-law’.11 Often, the extent of reasoning found in such decisions does

4 See eg Rosalyn Higgins, ‘Recevabilité aux Termes du Protocole Facultatif se Rapportant au Pacte International Relatif aux Droits Civils et Politiques’ (1991) CHRY 61, 68; Kälin 6. 5 HRC, Report of the Human Rights Committee (General Assembly, Official Records: FortySixth Session Supplement No 40 (A/46/40), 1991) para 679. 6 See for further details CoE, Admissibility Guide paras 381ff. 7 Ibid paras 389ff. 8 See eg the cases analysed by Gerards, ‘Margin of Appreciation’. 9 See Nowak, CCPR Commentary Art 2 First OP para 25; Ghandhi 192f; Petzhold 43f. For a different opinion see eg Higgins 68. 10 See eg Brems and Lavrysen, ‘Procedural Justice’ 186ff; Gerards, ‘Inadmissibility Decisions’ 154ff. See also the elaborations in Chapter 3, section II(1) as well as Chapter 4, section V(2b). 11 Gerards, ‘Inadmissibility Decisions’ 155, referring to ECtHR, ‘Hudoc FAQ: Frequently Asked Questions’ accessed 1 May 2019.

132  Divergence in international protection not differ significantly from judgments in which no violation was found.12 This indicates that the Court in fact also declares complaints manifestly ill-founded when the absence of a violation is not really clear or apparent, but fails to explain ‘why it relies on the manifestly ill-founded criterion in such cases and which standards help it decide when and why a case is manifestly ill-founded’.13

2. Admissibility reasoning in the case law regarding new minorities Turning now towards the case law examined by the present research, one set of cases regarding the French law prohibiting the wearing of ostentatious religious symbols in public schools, which triggered complaints by several Muslim and Sikh students to the ECtHR and the HRC, exemplifies the divergence in the two bodies’ approaches particularly well.14 Although the HRC examined the admissibility of the communication, it focused on the question whether the author had raised the relevant complaints before national instances.15 This was the only ground of inadmissibility, which was brought forward by France regarding the complaint based on Article 18 ICCPR, though unsuccessfully, given that the HRC declared the communication admissible.16 Contrary to this, the ECtHR declared all six complaints addressed to it in this matter manifestly ill-founded and thus inadmissible based on Article 35(3a) ECHR. Given that the decisions do not mention the arguments brought forward by France regarding the admissibility of the complaints, it remains unclear whether the ECtHR examined the inadmissibility based on this ground on its own initiative or prompted by France’s submissions. In general, it can be noted that the extent of reasoning of the ECtHR’s decisions does not differ significantly from judgments on the merits, in which no violation was found.17 It must however be stressed that judgments on the merits commonly present the parties’ submissions,18 which is not the case for the inadmissibility decisions.19 As this example shows, the parties’ submissions, if included in the decision, could play

12 See CoE, Admissibility Guide para 397. 13 Gerards, ‘Inadmissibility Decisions’ 156. 14 Aktas v France (dec); Bayrak v France (dec); Bikramjit Singh v France; Gamaleddyn v France (dec); Ghazal v France (dec); Jasvir Singh v France (dec); Ranjit Singh v France (dec). Similar conclusions as are presented here can also be drawn from another set of cases regarding the wearing of religious head coverings on official photographs, see Mann Singh v France (dec); Ranjit Singh v France; Shingara Mann Singh v France. For an analysis of these cases see eg Bribosia, Caceres and Rorive; Brems and others. 15 Bikramjit Singh v France para 7.3. 16 Ibid para 4.1. 17 See eg Dogru v France. 18 See eg ibid paras 34ff. 19 For further differences between decisions on the merits and admissibility decisions see the discussion above Chapter 3, section II(1).

Divergence in international protection 133 an important role in understanding and tracing the arguments used by the Court. Taking a closer look at the reasons adduced by the ECtHR for declaring the complaints manifestly ill-founded, the conclusion appears to be mostly based on the existence of its own settled case law on the issue in question. The reasoning on the necessity and proportionality of the interference is extensively based on the no-violation judgments Dogru v France and Kervanci v France from 2008, which regarded the expulsion of two students from public schools due to their refusal to participate in physical education classes without wearing a headscarf or a bonnet.20 Thus, the Court stated that ‘although the interference in question was not only limited to the physical education classes but extended to the entirety of the courses (. . .), the Court does not see any motive able to convince it to depart from this jurisprudence’.21 Based on the reasoning of the Court, it can be concluded that the motive for finding the complaint to be manifestly ill-founded was the existence of settled case law on the topic, according to which similar issues did not amount to a violation of the ECHR. Thus, the divergence between the HRC and the ECtHR with regard to the admissibility of the complaints was not due to the outcome in the specific cases, but could rather be explained by the fact that the HRC does, on the one hand, not recognise the existence of settled case law on the issues under examination as a ground for inadmissibility and, on the other hand, did not dispose of such settled case law. Nevertheless, it must be underlined at this point that the questions raised by Dogru v France and Kervanci v France differ significantly from the one the Court had to answer in the cases regarding a complete prohibition of the wearing of ostentatious religious symbols in French public schools. Thus, according to the ECtHR’s reasoning, the restriction in the context of physical education classes was justified by France ‘by a combination of three factors: the duty to attend classes regularly, the requirements of safety and the necessity of dressing appropriately for sports practice’.22 In addition to this, the restriction also aimed at safeguarding the constitutional principle of laïcité in public schools. Due to such mixed motivation for the measures adopted by France, the assessment of the condition of proportionality also referred to both health and safety considerations as well as the safeguard of the principle of laïcité.23 In this context, the ECtHR found that ‘the wearing of religious signs was not inherently incompatible with the principle of secularism in schools, but became so according to the conditions in which they were worn and the consequences that the wearing of a sign might have’.24 Given that the complaints, which were found manifestly 20 Dogru v France; Kervanci v France. 21 See eg Gamaleddyn v France (dec) para 2a (translation by the author). 22 See eg Dogru v France para 51. 23 Ibid paras 68ff. 24 Ibid para 70.

134  Divergence in international protection i­ll-founded, concerned a general prohibition, which was justified exclusively based on the safeguard of the constitutional principle of laïcité, their lack of foundation appears at least questionable. Taking a look at the admissibility guide issued by the ECtHR in 2014, it emerges that it explicitly emphasises that a complaint can also be found to be manifestly ill-founded when ‘although there are no previous rulings dealing directly and specifically with the issue, the Court can conclude on the basis of the existing case-law that there is no appearance of a violation of the Convention’.25 It could indeed be affirmed that, based on existing case law, in particular the Grand Chamber judgment Leyla S¸ahin v Turkey26 often referred to in said decisions, it was to be expected that the Court would not find a violation of the applicants’ right to manifest their religious beliefs in cases regarding a general prohibition to wear religious symbols in French public schools.27 Yet, the question is whether this should also authorise the ECtHR not to examine the complaint on the merits. In this context, it is important to recall that, as was already emphasised during the analysis of the ECtHR’s case law in Chapters 3 and 4, according to the principle of procedural justice, it is crucial that people are ‘given the feeling that they and their concerns are taken seriously by the legal system’.28 The message that the ECtHR’s inadmissibility decisions convey to the applicants is however exactly the opposite, given that complaints of a violation of their human rights are declared to lack any foundation. Such decisions appear even more problematic when considering that the applicants in these cases are members of minorities, who turned to the ECtHR after their right to manifest their religious beliefs was restricted primarily to safeguard the interests of the majority.29 As a result, minorities’ trust in the legal system decreases even further,30 they do not feel respected and thus feel they are not part of society, which can have a negative impact on social cohesion.31 This does not imply that the ECtHR should decide in favour of every applicant who is a member of a minority, but rather that it should be aware of the potential effect of its decisions and be careful to show that it takes concerns of minorities seriously. In this context, it is particularly important that the Court

25 CoE, Admissibility Guide para 398. 26 Leyla S¸ahin v Turkey [GC]. 27 This judgment and its role in the ECtHR’s case law on Art 9 ECHR has been discussed extensively in scholarship, see eg Gibson; Rorive 2680ff. 28 Brems and Lavrysen, ‘Procedural Justice’ 181; Tyler, Law 149. See for further details above Chapter 3, section II(1). 29 See above Chapter 4, section IV. 30 According to research, members of minorities distrust authorities more than the average of the population, see eg Tom R Tyler, ‘Public Trust and Confidence in Legal Authorities: What Do Majority and Minority Group Members Want from the Law and Legal Institutions?’ (2001) 19 Behavioral Sciences and the Law 215, 217 with further references. 31 See Ouald Chaib 221, with further references.

Divergence in international protection 135 examines the specific situation of every individual applicant, thus not equating situations which do not raise the same questions.32

II. The bar set for fulfilling the condition of legitimacy As was highlighted above, both the ECtHR and the HRC generally do not scrutinise the legitimate aims or grounds of limitations, which states allegedly pursued in the restriction of new minorities’ right to manifest their religious beliefs. This would suggest that the approaches adopted by the two bodies to the interpretation and application of the various legitimate aims provided for in Articles 9(2) ECHR or 18(3) ICCPR are largely similar, ie that both bodies set a relatively low bar for fulfilling the condition of legitimacy. As the following elaborations, which are again based on an analysis first of the normative framework and then of its application in the case law regarding new minorities, will show, this does not completely hold true.

1. Comparison of the normative framework and its application Comparing the legitimate aims listed in Article 9(2) ECHR with the grounds for limitations, which can be found in Article 18(3) ICCPR, it can be established that there are relatively few differences. Thus, both provisions allow for restrictions aiming at the protection of public safety, order, health and morals. Solely with respect to the fifth legitimate aim, namely the protection of the rights and freedom of others, a difference can be detected: While Article 18(3) ICCPR only lists the fundamental rights and freedoms of others as a permissible ground for limitation, such adjective was not included in Article 9(2) ECHR. This difference seems to be reflected also in the practice of the two bodies. It has been found that the HRC sets a comparatively high threshold for restricting the right to manifest religious belief in the name of the protection of religious beliefs of others by requiring an ‘evidentiary and factual foundation’ of such claims.33 In contrast, the ECtHR has allowed restrictions of individuals’ freedom to manifest their religious belief in the interest of protecting not very well-substantiated religious feelings of others from being insulted.34 Nevertheless, it needs to be recalled that both the ECtHR and the HRC generally do not scrutinise the legitimate aims or grounds of limitations brought forward by the respondent states and even show an inclination towards accepting several of those aims without clearly distinguishing them.35

32 Ibid 226f. 33 Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v Sri Lanka para 7.3. See also Petzhold 202ff. 34 See eg Wingrove v the United Kingdom. See also Otto-Preminger-Institut v Austria. For further details regarding this difference see Taylor 54ff. 35 See above Chapter 3, section IV.

136  Divergence in international protection

2. Restrictions of new minorities’ rights for the protection of the rights and freedoms of others Given the distinctive formulation of the aim of the protection of the rights and freedoms of others in Articles 9(2) ECHR and 18(3) ICCPR, the question arises which role this textual difference played in the case law regarding new minorities. Based on the conducted empirical research, it was detected that approximately three quarters of the ECtHR’s decisions and judgments justified restrictions of new minorities’ right to manifest their religious beliefs with the aim of protecting the rights and freedoms of others. Contrary to this, only two out of seven views of the HRC were based on such ground of limitation. In this context, it appears noteworthy that the interpretation and application of this legitimate aim in the jurisprudence of the ECtHR has been criticised for a lack of clarity. Thus, it was highlighted that the Court often failed to specify which kinds of rights and freedoms could be included under ‘the rights and freedoms of others’ and which of those rights are at issue in a particular case.36 Moreover, the ECtHR commonly avoids clarifying who qualifies as ‘others’ in this scenario.37 In the practice concerning new minorities’ right to manifest their religious beliefs, the Court’s vague approach to the interpretation and application of the ‘rights and freedoms of others’ has manifested in particular in the recognition of abstract principles as legitimate aims under Article 9(2) ECHR. This concerns principles such as laïcité or ‘living together’ and represents a problematic tendency, which has already been discussed.38 At this point, it seems however warranted to take a closer look at the relevant case law in order to illustrate the different approaches adopted by the HRC and the ECtHR to the interpretation and application of the ‘rights and freedoms of others’. The case law concerning restrictions of new minorities’ right to manifest their religious beliefs aiming at safeguarding the principle of secularism as part of the protection of the rights and freedoms of others seems particularly apt for such purpose.39 For the ECtHR, the development of the relevant jurisprudence started outside of the context of new minorities with several cases regarding the wearing of the headscarf in public universities in Turkey.40 The most important judgment in this context is Leyla S¸ahin v Turkey, adopted by the Grand Chamber in 2005. Although affirming, under the heading ‘legitimate aim’, that the interference in question ‘primarily pursued the legitimate aims of protecting the rights and

36 See Bomhoff 623. 37 Ibid 623ff. 38 See above Chapter 4, section IV. 39 For the ECtHR Aktas v France (dec); Bayrak v France (dec); Dahlab v Switzerland (dec); Dogru v France; Ebrahimian v France; Kervanci v France; Gamaleddyn v France (dec); Ghazal v France (dec); Jasvir Singh v France (dec); Ranjit Singh v France (dec); for the HRC Bikramjit Singh v France. 40 See eg Karaduman v Turkey. Moreover, also the decision Dahlab v Switzerland (dec) is of certain relevance in this regard.

Divergence in international protection 137 freedoms of others and of protecting public order’,41 the examination of the necessity of such interference in a democratic society to achieve such aim started out by declaring the following: The interference in issue caused by the circular of 23 February 1998 imposing restrictions as to place and manner on the rights of students such as Ms S¸ahin to wear the Islamic headscarf on university premises was, according to the Turkish courts (. . .), based in particular on the two principles of secularism and equality.42 The Court then found the Turkish ‘notion of secularism to be consistent with the values underpinning the Convention’.43 This line of jurisprudence culminated in the judgment Ebrahimian v France, which concerned new Muslim minorities in France. In this judgment, the ECtHR, this time under the heading ‘legitimate aim’, found ‘that upholding the principle of secularism is an objective that is compatible with the values underlying the Convention’.44 This statement was followed by a reference to the above-mentioned extract of the judgment Leyla S¸ahin v Turkey. According to the Court’s reasoning in Ebrahimian v France and other related judgments and decisions, the restrictions adopted in the name of the principle of secularism aimed at protecting the rights and freedoms of others.45 Such connection seems to be mostly based on the allegedly proselytising effect of the wearing of religious symbols, such as the headscarf, which interferes with the forum internum of others.46 Yet, the ECtHR, in all relevant cases, fails to provide evidence of any concrete interference with such rights and its conclusion rather seems to be based on predominant (and uninformed) stereotypes about certain religious practices.47 In contrast, the HRC has not accepted the principle of laïcité as a ground for limitation under Article 18(3) ICCPR. In the only relevant view, namely Bikramjit Singh v France, concerning the French law prohibiting the wearing of ostentatious religious symbols in public schools, the Committee recognised ‘that the principle of secularism (laïcité) is itself a means by which a State party may seek to protect the religious freedom of all its population’.48 Yet, it highlighted that,

41 Leyla S¸ahin v Turkey [GC] para 99. 42 Ibid para 112 (emphasis added). 43 Ibid para 114, referring to Refah Partisi (the Welfare Party) and Others v Turkey [GC]. 44 Ebrahimian v France para 53. 45 Ibid; see eg Ghazal v France (dec) para 1. 46 See also Armin Steinbach, ‘Burqas and Bans: The Wearing of Religious Symbols Under the European Convention of Human Rights’ (2015) 4 Cambridge Journal of International and Comparative Law 29, 36f. 47 See Garahan 353ff; Steinbach 37f. See also Leyla S¸ahin v Turkey Dissenting Opinion of Judge Tulkens. See however the above-mentioned critical approach, which was followed in SAS v France [GC] para 120. 48 Bikramjit Singh v France para 8.6

138  Divergence in international protection according to its own view, ‘the State party does not contend that secularism (laïcité) inherently requires that recipients of Government services avoid wearing conspicuous religious symbols or clothing in Government buildings generally, or in school buildings in particular’.49 Rather, the adopted measures ‘responded to actual incidents of interference with the religious freedom of pupils and sometimes even threats to their physical safety’.50 The HRC, by means of its more concrete reasoning, clarifies which interferences with the fundamental rights and freedoms of others are to be balanced with the interference with the applicant’s right to manifest his or her religious beliefs in the specific situation. In contrast, the ECtHR’s recognition of abstract (constitutional) principles as part of the protection of the rights and freedoms of others amalgamates (unspecified) individual rights of members of the majority with interests of the state representing the majority.51 Notwithstanding the absence of the adjective fundamental in Article 9(2) ECHR, this appears inherently problematic when considering that human rights norms are supposed to set limits to governmental power. Following a similar line of thought, Dworkin has highlighted in his book Taking Rights Seriously that we must recognize as competing rights only the rights of other members of the society as individuals. We must distinguish the ‘rights’ of the majority as such, which cannot count as a justification for overruling individual rights, and the personal rights of members of a majority, which might well count.52 Based on such reasoning, both the ECtHR and the HRC should be careful to make ‘a qualitative distinction between cases involving a conflict between the rights of different individuals as individuals and conflicts between individual rights and the interests of majorities expressed in terms of “rights” of their members’.53 This would however require increasing the level of scrutiny of the arguments brought forward by states, which, as will be highlighted in the following, is not the rule today.

3. Lack of scrutiny of the legitimate aim pursued in cases concerning new minorities As highlighted at the beginning of this chapter, both the ECtHR and the HRC show a tendency to not effectively scrutinise the legitimate aim(s) allegedly pursued by restrictions of the right to manifest religious beliefs. Moreover, it has been

49 Ibid. 50 Ibid. A similar approach was adopted by the ECtHR in a case concerning the wearing of a crucifix by an employee of British Airways, where the Court demanded specific evidence of a ‘real encroachment on the interests of others’, see Eweida and Others v the United Kingdom para 95. See also Garahan 354. 51 See also Bomhoff 646f; McCrea 693ff. 52 Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013) 235. See also Bomhoff 647. 53 Bomhoff 647.

Divergence in international protection 139 found that both bodies often fail to distinguish among various aims, eg public order and safety. The examined case law on new minorities’ right to manifest their religious beliefs confirms the same tendencies. Thus, the HRC in five out of seven cases accepted the grounds of limitation adduced by the state for restrictions of new minorities’ right to manifest their religious beliefs, usually in less than one sentence.54 In most cases, the ECtHR, as well, either did not mention the legitimate aim pursued or confirmed the requirement in one sentence.55 Moreover, in some judgments, formulations conveying a lack of confidence in the conclusion reached were used. In Dogru v France, for example, the ECtHR stated that it ‘can accept that the interference complained of mainly pursued the legitimate aims of protecting the rights and freedoms of others and protecting public order’.56 As was already discussed in the context of the analysis of the ECtHR’s case law, a potential reason for both the ECtHR’s and the HRC’s lack of scrutiny of the legitimate aims allegedly pursued by a state could be that, given that the state is likely to have a better understanding of the reasons for a specific restriction, the non-acceptance of the state’s arguments would amount to ‘accusing the State of bad faith and mendacity’.57 The reluctance of the two bodies to question the legitimate aims brought forward by states could thus be linked to questions surrounding the subsidiarity of international human rights protection. This particularly relates to the deference, which international (human rights) bodies should arguably pay to national institutions, often expressed in the concept of the margin of appreciation or discretion.58 Because of such deference, the requirement of the legitimate aim based on Articles 9(2) ECHR and 18(3) ICCPR, in the way the ECtHR and the HRC currently interpret and apply it, places very little constraint on states.59 This contradicts the HRC’s and ECtHR’s own statements according to which the list of grounds to be adduced for the limitation of the right to manifest religious beliefs is supposed to be exhaustive and interpreted restrictively.60 Considering the specific situation of (new) minorities in today’s society, the ECtHR’s and the HRC’s interpretation and application of the condition of legitimacy must be additionally criticised. As was already highlighted at the beginning of this work,61 ‘(g)rowing intolerance (. . .) has led to a reconsideration of the value of respect for and the appreciation of diversity in a number of regions around the globe’.62 Consequently, diversity is often perceived as a threat to social cohesion, peace and stability, thus motivating restrictions of (new) minorities’

54 See above Chapter 4, section IV(2). 55 See above Chapter 4, section IV(1). 56 Dogru v France para 60 (emphasis added). See for further examples above Chapter 4, section IV(1). 57 Evans C, Freedom of Religion 148. See above Chapter 4, section IV. 58 See for further details Legg 17ff. 59 See also Evans C, Freedom of Religion 148; Petzhold 218f. 60 Svyato-Mykhaylivska Parafiya v Ukraine para 132; CoE, ‘Guide Art 9 ECHR’ 13f; HRC, GC 22 para 8. 61 See above Chapter 1, section III(1). 62 UNGA, Report of the Special Rapporteur on Freedom of Religion and Belief (UN Doc A/HRC/34/50, 17 January 2017, 2017) para 36.

140  Divergence in international protection human rights.63 In such climate of intolerance, international human rights bodies, which were established to guarantee peace and stability after the horrors of the Second World War, have to be careful not to legitimise restrictions stirred by such intolerance by failing to scrutinise the underlying motives and blindly accepting the arguments brought forward by the state in question. The ECtHR seems to have recognised this to a certain extent in the judgment SAS v France, which dealt with the prohibition of the wearing of the burqa in public space. The Grand Chamber stated that, although (t)he Court’s practice is to be quite succinct when it verifies the existence of a legitimate aim within the meaning of the second paragraphs of Articles 8 to 11 of the Convention (. . .), in the present case, the substance of the objectives invoked in this connection by the Government, and strongly disputed by the applicant, call for an in-depth examination.64 Continuing with this approach, the ECtHR did not accept France’s arguments that the prohibition pursued the aim of protecting the rights and freedoms of others, in the form of guaranteeing ‘respect for the minimum set of values of an open and democratic society’,65 by promoting gender equality.66 Furthermore, the Court did not recognise the protection of human dignity as a legitimate aim because there was no ‘evidence capable of leading it to consider that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others’.67 This reasoning reflects a significantly higher level of scrutiny than the Court usually applies. Besides, the ECtHR demonstrated a higher sensitivity to the vulnerable situation of new minorities by pointing out that the full-face veil ‘is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy’ and noting ‘the variability of the notions of virtuousness and decency that are applied to the uncovering of the human body’.68 Yet, the Grand Chamber’s reasoning in SAS v France also illustrates why an insufficient scrutiny of the legitimate aims allegedly pursued by the government is deeply problematic for members of minorities. Thus, the Court found that the ‘respect for the minimum requirements of life in society’ or of ‘living together’ could be adduced as part of the legitimate aim to protect the rights and freedoms of others for justifying a general ban of the wearing of the burqa in public space.69 It elaborated that 63 See for further elaborations Bretscher, ‘Diversity’ 37f. 64 SAS v France [GC] para 114 (emphasis added). 65 Ibid para 116. 66 Ibid para 119. This represents a change compared to earlier case law, in particular Dahlab v Switzerland (dec). See also Berry, ‘SAS v France’; Leyla S¸ahin v Turkey [GC] Dissenting Opinion of Judge Tulkens; Marshall 384. 67 SAS v France [GC] para 120. 68 Ibid. 69 This also raises issues concerning the recognition of abstract principles as part of the legitimate aim of the protection of the rights and freedoms of others, which were discussed above in Chapter 4, section IV and shall thus not be restated here.

Divergence in international protection 141 (i)t can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.70 By blindly following the arguments put forward by the government, the ECtHR accepted the concept of ‘living together’ as a reason for justifying restrictions of minorities’ right to manifest their religious beliefs. Thereby it disregarded first that minorities did not have any say in establishing the ‘consensus’ that wearing the burqa could jeopardise open interpersonal relationships.71 Second, it recognised a ‘right to live in a space of socialisation’, which however only seems to extend to the majority since the burqa-wearing minority is excluded from public space as a result. Third, and last, it failed to acknowledge the hypocrisy of such argument, given that face-coverings are accepted in numerous other circumstances in everyday life.72 This can be contrasted to the approach adopted by the HRC in its most recent views, as well regarding the prohibition of the wearing of the burqa in France, in which it scrutinised the ground of limitation allegedly pursued in depth. Thus, in Miriana Hebbadj v France and in Sonia Yaker v France, the Committee not only denied that the restriction pursued the aim of protecting public safety and order,73 but also arrived at the conclusion that the restriction could not be justified based on the aim of the protection of the fundamental rights and freedoms of others in the form of the concept of ‘living together’. Thus, it held that France has not identified any specific fundamental rights or freedoms of others that are affected by the fact that some people present in the public space have their face covered, including fully veiled women. Nor has the State party explained why such rights would be ‘unfairly’ obstructed by wearing the fullface veil, but not by covering the face in public through the numerous other means that are exempted from the Act.74

70 SAS v France [GC] para 122 (emphasis added). This approach was confirmed in Belcacemi and Oussar v Belgium; Dakir v Belgium. 71 See also Kristin Henrard, ‘Case Law of the European Court on Human Rights Concerning Ethnic, Religious and Linguistic Minorities During 2014: About Differential Margins of Appreciation and the Role of the Prohibition of Discrimination’ (2016) 13 EYMI 248, 260. 72 See also Nussbaum; SAS v France [GC] Dissenting Opinion of Judges Nußberger and Jägerblom para 9; Steinbach 47. See in this context also the problems arising with the implementation of such bans, eg Justin Huggeler, ‘Shark Costume Mascot Fined Under Austria’s “Burka Ban” Law’ The Telegraph (10 October 2017) accessed 1 May 2019. 73 Miriana Hebbadj v France, para 7.7; Sonia Yaker v France, para 8.7. 74 Miriana Hebbadj v France, para 7.10; Sonia Yaker v France, para 8.10.

142  Divergence in international protection The HRC thus clearly highlighted the hypocrisy of the arguments adduced by France and, based on such unequal treatment also found a violation of the prohibition of indirect discrimination (Article 26 ICCPR). Moreover, the Committee stressed that there is no ‘right to interact with any person in a public space (. . .) (nor a) right not to be disturbed by the fact that someone is wearing the full-face veil’.75 This reflects a welcome tendency of the HRC towards a critical assessment of the ground of limitations brought forward by states.

III. Scrutinising the fulfilment of the condition of proportionality This section shows that the different approaches taken by the HRC and the ECtHR in the assessment of the condition of proportionality are the pivotal factor in the conflicting decisions of the two bodies. Like in the last sections, the analysis starts off by highlighting the differences of the relevant normative framework and its application. Subsequently, the various levels of scrutiny applied by the HRC and the ECtHR in their assessment of the condition of proportionality and their role in the divergence in the case law regarding new minorities are examined.

1. Comparison of the normative framework and its application When comparing the normative framework enshrined in Articles 9(2) ECHR and 18(3) ICCPR, it emerges that both provisions require that restrictions of the right to manifest religious beliefs must be necessary in order to achieve the aims listed. Yet, only the ECHR adds the requirement that restrictions must be necessary in a democratic society. Thus, the question arises which role the ‘democratic society’ plays in the ECtHR’s assessment of the condition of proportionality. According to the ECtHR, the typical features of a democratic society are pluralism, tolerance and broadmindedness,76 inevitably indicating the need for a narrow interpretation of the term ‘necessary’.77 Thus, the ECtHR regularly holds that restrictions must meet a ‘pressing social need’.78 For the ICCPR, the reference to a ‘democratic society’ was omitted because it was on the one hand regarded as a ‘Western invention, reminiscent of colonial days and on the other hand, States with a totalitarian regime often considered themselves a democracy, which in itself reduced the distinctive power of the term’.79 Whether such lack of reference bears any practical relevance in the context of Article 18 ICCPR (as compared to Article 9 EHCR) is controversial.80 The

75 Ibid. 76 See eg Handyside v the United Kingdom para 49; Renucci 47. 77 See eg The Sunday Times v the United Kingdom (no 1) para 65. 78 Handyside v the United Kingdom para 48; The Sunday Times v the United Kingdom (no 1) para 59. 79 De Jong C D 89, with further references. 80 See the different positions taken by De Jong C D 80; Helfer and Slaughter 379ff; Taylor 306.

Divergence in international protection 143 HRC in its General Comment on Article 18 ICCPR stated that ‘(l)imitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated’.81 The ECtHR usually holds that in order to assess whether the condition of proportionality was fulfilled in the concrete case, various relevant factors, such as the nature of the right involved and the degree of interference in its exercise, the nature of the activities subjected to restriction or the nature of the public interest that allegedly justifies the limitation on freedoms, have to be assessed based on a ‘complex factual matrix’.82 Whereas the formulation used by the ECtHR appears to set higher standards for the necessity of an interference, this does not always hold true in practice. In fact, it has been highlighted that both the HRC and the ECtHR have not developed a clear approach towards the assessment of the condition of proportionality and demonstrate a tendency towards obscure reasoning in this regard.83 An essential difference between the assessment of the condition of proportionality by the HRC and the ECtHR is that only the latter makes use of the concept of the margin of appreciation.84 Although this concept does not have any explicit basis in the text of the ECHR, the Court started to use it in order to give due regard to the subsidiarity of the Convention system and the primary responsibility of states to ensure the protection of human rights in their territory.85 In the context of new minorities’ right to manifest their religious beliefs, the ECtHR generally granted states a rather wide margin of appreciation, basing this choice in particular on the existence of divergent approaches to questions concerning the relations of the state with religions or on the lack of consensus on the significance, which is to be given to religion in society.86 Contrary to this, the HRC has rejected the concept of the margin of appreciation, although an implicit consideration of related concerns can arguably be observed.87 Generally, however, the HRC does not attribute significant weight to such concerns in cases relating to new minorities’ right to manifest their religious beliefs.

2. Various levels of scrutiny in the assessment of the condition of proportionality Considering all the case law regarding new minorities’ religious freedom collected for the ECtHR and the HRC, various levels of scrutiny regarding the necessity and proportionality of an interference were detected. It can be observed 81 HRC, GC 22 para 8. 82 See X and the Church of Scientology v Sweden (dec) 73; CoE, ‘Guide Art 9 ECHR’ 16; Evans M D, Manual 19f; Martínez-Torrón, ‘Limitations’ 599; Renucci 47; Taylor 310. 83 See above Chapter 2, section III(3). 84 See for further details above Chapter 2, section IV. 85 For a good overview of the reasons speaking in favour of the use of this concept by international human rights bodies see McGoldrick, ‘Margin of Appreciation’. 86 See above Chapter 4, section V(3). 87 See above Chapter 4, section VI.

144  Divergence in international protection that in cases decided prior to 2008, both the ECtHR (or the EComHR) and the HRC applied a very low level of scrutiny in cases regarding new minorities’ right to manifest their religious beliefs. While in this time span the HRC, which was only confronted with one communication, examined the relevant case on the merits but did not find a violation,88 the ECtHR (and the EComHR) declared all complaints manifestly ill-founded and thus inadmissible.89 All these decisions have in common that the reasoning on the necessity and proportionality of the interference is restricted to a minimum. Thus, in Bhinder v Canada, the HRC, for reasons not further specified, just bluntly stated that the limitation ‘is justified by reference to the grounds laid down in article 18, paragraph 3’.90 Differently than the HRC, the ECtHR (or the EComHR) often motivated its low level of scrutiny with the respondent state’s margin of appreciation, although without providing reasons for why such margin had to be granted in the relevant cases.91 Consequently, both the HRC and the ECtHR at first did not subject state’s interferences with new minorities’ right to manifest their religious beliefs to significant scrutiny, and therefore largely avoided any examination of first-order reasons.92 From 2008 onwards, the HRC and the ECtHR started to increase the scrutiny applied to the assessment of the condition of proportionality. As to the reasons behind such development one can only speculate. A possible explanation might be that the constant increase of migration and thus the growth of new minority groups led to a heightened awareness of the problems encountered by these groups in practicing their religious beliefs. Nevertheless, the ECtHR and the HRC have heightened their scrutiny to different extents. This becomes clear when comparing the reasoning adopted in two views of the HRC and one decision of the ECtHR, all concerning the refusal of French authorities to renew official documents, such as a passport or a driving licence, for Sikhs because they did not provide a picture without wearing a turban.93 The reasons adduced by French authorities were mainly that the measure was necessary to minimize the risk of fraud or falsification as well as to ensure the identification of the document holder. Moreover, the French authorities held that the restriction of individuals’ religious freedom was proportionate because it was a one-off measure.94 Contrary to this, the concerned individuals argued that the fact that their hair, which they regard as sacred, would be continuously shown on the official document in question amounted to a repeated humiliation. Additionally, they claimed that the concerns for falsification or identification 88 Karnel Singh Bhinder v Canada. 89 See eg El Morsli v France (dec); Dahlab v Switzerland (dec); Mann Singh v France (dec); Phull v France (dec). 90 Karnel Singh Bhinder v Canada para 6.2. 91 See eg Phull v France (dec). 92 See for the distinction between first- and second-order reasons above Chapter 4, section V(2b). 93 Mann Singh v France (dec); Ranjit Singh v France; Shingara Mann Singh v France. See for a similar argument Tulkens and Van Drooghenbroeck 745f. 94 See eg Ranjit Singh v France paras 5.1ff. See also France, Conseil d’État, N° 289946, 15 December 2006.

Divergence in international protection 145 had not been substantiated, given that face-covering beards for example were accepted. Moreover, considering that they were wearing a turban at all times, it was not clear how a picture without a turban would facilitate their identification. Lastly, they contended that other states allowed the wearing of turbans on identity photographs.95 The first decision assessing whether the condition of proportionality was fulfilled in this scenario was adopted by the ECtHR in 2008. The Court basically restated the reasoning of the national authorities in their decision on the case, holding that the restriction was necessary to identify the applicant and linked to increased risks of fraud and falsification of documents. Given that it was just a one-off measure, it was also regarded to be proportionate.96 The arguments brought forward by the applicant were not addressed at all. Also the HRC, in its view adopted in 2011, recognised ‘the State party’s need to ensure and verify, for the purposes of public safety and order, that the person appearing in the photograph on a residence permit is in fact the rightful holder of that document’.97 At the same time, it scrutinised France’s arguments highlighting that the State party has not explained why the wearing of a Sikh turban covering the top of the head and a portion of the forehead but leaving the rest of the face clearly visible would make it more difficult to identify the author than if he were to appear bareheaded, since he wears his turban at all times. Nor has the State party explained how, specifically, identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residence permits.98 Moreover, the HRC observed, even if the obligation to remove the turban for the identity photograph might be described as a one-time requirement, it would potentially interfere with the author’s freedom of religion on a continuing basis because he would always appear without his religious head covering in the identity photograph and could therefore be compelled to remove his turban during identity checks.99 Also in the context of a second view regarding a similar issue adopted in 2013, the HRC was not satisfied with the explanations furnished by French authorities, which is not surprising given that they did not bother to provide further information on why the condition of proportionality was fulfilled.100

95 See for an overview Ranjit Singh v France paras 3.1ff. 96 Mann Singh v France (dec). 97 Ranjit Singh v France para 8.4. 98 Ibid. 99 Ibid. 100 See Shingara Mann Singh v France paras 6.2ff.

146  Divergence in international protection For the ECtHR, a similarly low level of scrutiny of the arguments brought forward by the state cannot only be found in other inadmissibility decisions, but also in some of its judgments. This includes the judgment Ebrahimian v France, which concerned the question whether the non-renewal of the working contract of a social worker in a public hospital based on her refusal to refrain from wearing a headscarf violated her right to manifest her religious beliefs. French authorities argued that the principle of neutrality of public service required public servants to refrain from wearing religious symbols such as the headscarf.101 This assumption was not questioned, although the ECtHR highlighted that ‘the applicant has not been accused of acts of pressure, provocation or proselytism with regard to hospital patients or colleagues’.102 It thus did not require any concrete proof of an encroachment of the rights of others despite highlighting that the difficulties encountered in the working environment due to the wearing of the headscarf ‘would have merited to be further developed’.103 A comparison to the case Eweida and Others v the United Kingdom, where the ECtHR found a violation because the state did not provide ‘evidence of any real encroachment on the interests of others’,104 shows that the arguments brought forward by the respondent state were subjected to a rather low level of scrutiny in Ebrahimian v France. Nevertheless, in other recent judgments regarding new minorities’ religious freedom adopted by the ECtHR, a comparatively high level of scrutiny can be observed. This includes the four violation judgments adopted by the ECtHR since 2010 in cases brought by new Muslim, Buddhist and Hindu minorities.105 Such heightened scrutiny can however also be observed in cases where no violation was found. Thus, in the case SAS v France, decided by the Grand Chamber in 2014, the ECtHR dedicated more attention to the arguments brought forward by the applicants, holding that in view of its impact on the rights of women who wish to wear the full-face veil for religious reasons, a blanket ban on the wearing in public places of clothing designed to conceal the face can be regarded as proportionate only in a context where there is a general threat to public safety. The Government have not shown that the ban introduced by the Law of 11 October 2010 falls into such a context.106 Moreover, it emphasised that a State which enters into a legislative process of this kind takes the risk of contributing to the consolidation of the stereotypes which affect certain 101 Ebrahimian v France paras 41ff. 102 Ibid para 62. 103 Ibid para 69. See for a discussion of this issue Ebrahimian v France Partially Concurring Partially Dissenting Opinion of Judge O’Leary and Dissenting Opinion of Judge De Gaetano; Bretscher and Pavlidou 433ff; McCrea 695f. 104 Eweida and Others v the United Kingdom para 95. 105 Lachiri v Belgium; Genov v Bulgaria; Jakóbski v Poland; Vartic v Romania (No 2). 106 SAS v France [GC] para 139.

Divergence in international protection 147 categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance.107 Despite this rather critical approach of the ECtHR, the restriction was found to be necessary and proportionate. This was in particular motivated by the fact that ‘the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society’.108 Consequently, a wide margin of appreciation had to be granted to France, which significantly reduced the scrutiny de facto applied by the Court. The concept of the margin of appreciation can thus be seen as the decisive factor for the different levels of scrutiny applied by the HRC and the ECtHR in cases concerning manifestations of religious beliefs by new minorities.109 It will be further analysed in the next chapter, when possible explanations for the divergence between the HRC’s and the ECtHR’s interpretation and application of new minorities’ right to manifest their religious beliefs are addressed.

IV. Conclusion This chapter has shown that the divergence in the case law of the HRC and the ECtHR regarding new minorities’ religious freedom can mostly be pinpointed on the different levels of scrutiny applied by the two bodies in the assessment of the condition of proportionality. As a result, diverging levels of protection of new minorities’ manifestations of religious beliefs can be observed: The HRC, on the one hand, has proven more open to the rights claims and arguments brought forward by new minorities. Thus, it recognised a state duty to provide for exemptions in seemingly neutral laws to accommodate new minorities’ religious practices where this is reasonable. This concerned for example the rule that a picture without any head covering must be provided for obtaining a residence permit.110 Moreover, the HRC protected new minorities against restrictions of their right to manifest religious beliefs aiming at safeguarding the interests of the majority, eg in the context of policies of state neutrality.111 The ECtHR, on the other hand, has been much less open to admitting rights claims and arguments by new minorities. It has only recognised a state duty for the reasonable accommodation of their religious beliefs in the context of prisoners’ dietary restrictions and, in its most recent judgment, for allowing the wearing of religious symbols by a civil party in the courtroom.112 Situations raising similar 107 Ibid para 149. 108 Ibid para 153. See for similar observations Henrard, ‘Differential Margins of Appreciation’ 258ff. 109 See also McGoldrick, ‘Margin of Appreciation’ 46ff, making more general observations. 110 Ranjit Singh v France. See however Karnel Singh Bhinder v Canada. 111 Bikramjit Singh v France. See for the analysis of another example Martin Scheinin, ‘International Human Rights Law and the Islamic Headscarf: A Short Note on the Positions of the European Court of Human Rights and the Human Rights Committee’ in W Cole Durham and others (eds), Islam, Europe and Emerging Legal Issues (Ashgate 2012) 85f. 112 Jakóbski v Poland; Vartic v Romania (No 2); Lachiri v Belgium.

148  Divergence in international protection questions in other areas, such as security checks at airports, were not found to evoke a duty of the state to accommodate the religious beliefs of new minorities.113 Additionally, the ECtHR has allowed for far-reaching restrictions of new minorities’ religious practices to protect the interests of the majority, not only in the context of policies of state neutrality.114 Such low level of protection is mostly owed to granting a wide margin of appreciation to states in the relevant cases. Nevertheless, the divergences in the case law regarding new minorities’ religious freedom should, as was highlighted by Tulkens, former judge of the ECtHR, and Van Drooghenbroeck, not be construed as ‘clear paradigms of a manifest discrepancy’.115 Rather, it is necessary to take a closer look at how they can be explained and mitigated, which will be done in the next chapters.

113 Phull v France (dec). See also El Morsli v France (dec); Ouald Chaib. 114 See eg Aktas v France (dec); Dakir v Belgium; Ebrahimian v France; SAS v France [GC]. 115 Tulkens and Van Drooghenbroeck 745.

6 Explaining divergence from a new minorities perspective

As was stated at the beginning of this book, this research is based on a constitutionalist approach to international law,1 which is why it does not stop at the finding that there is divergence between the HRC and the ECtHR with regard to certain issues arising in the interpretation and application of the right of new minorities to manifest religious beliefs. Rather, it aims at providing explanations for this divergence by looking at the findings adopted in the concrete cases from a broader perspective. In order to provide potential explanations for the divergent approaches taken in cases regarding new minorities’ right to manifest their religious beliefs, it is necessary to go beyond the individual decisions, judgments and views. This affects first the institutional framework in which the case law was adopted, in particular the individuals taking the decision and its legal force. Moreover, conceptual differences in the interpretation and application of relevant provisions are considered. This concerns in particular the concept of the margin of appreciation and the question whether the applicants are regarded and treated as members of new minorities.

I. Institutional differences The first topic that needs to be discussed when inquiring into potential reasons for the divergence between the ECtHR’s and the HRC’s case law regarding new minorities is the institutional framework. Differently than the previous discussion of the practice, this section does not focus on the reasoning as such, but rather on characteristics of the institutional framework of the two bodies, which could potentially explain why the HRC offers a higher level of protection of manifestations of religious beliefs of members of new minorities than the ECtHR. The focus lies on two factors which were identified as the potentially most relevant, namely the members of the (quasi-)judicial body in question as well as the legal force of the adopted decision. Whether these two issues can indeed explain the divergent levels of protection will thus be examined in the following.

1 See above Chapter 1, section I.

150  Divergence from a new minorities perspective

1. Members of the (quasi-)judicial body Although the 18 members of the HRC and the 47 judges of the ECtHR are all elected in their individual capacity and not as representatives of a particular state, the formation of the group of judges or members actually taking a decision in a specific case differs significantly. While at the ECtHR the judge from the member state accused of a violation of the ECHR usually participates in the assessment of the complaint, this is not the case for the HRC, where the rules of procedure explicitly prohibit the participation of a member ‘(i)f the State party in respect of which he or she was elected to the Committee is a party to the case’.2 Contrary to this, according to the rules of the ECtHR, the composition of the Court must include the ‘national’ judge when it hears a case as a seven-judge Chamber or a 17-judge Grand Chamber.3 In single-judge formations, the judge of the respondent state however cannot decide on a complaint.4 In sittings as a Committee, his or her participation is not compulsory.5 This difference between the HRC and the ECtHR first and foremost can be explained by the fact that, given that the HRC consists of only 18 members, not every state which ratified the Optional Protocol to the ICCPR can be represented in the Committee. Contrary to this, a judge must be elected for every state bound by the ECHR. Additionally, it has been highlighted that the rule adopted for the ECtHR is linked to ‘the traditional reluctance of governments to entrust international tribunals with important decisions’.6 Considering that either a seven-judge Chamber or the Grand Chamber, in which the judge of the respondent state usually participates, ruled on most of the judgments and decisions regarding new minorities, it could be argued that this influenced the outcome in highly politicised cases. In fact, a study of the ECtHR’s case law has found that judges might show an inclination to deciding in favour of their own state to avoid putting their career at peril. In particular, it was highlighted that ‘(i)f judges care about how decisions affect their careers, they may be especially likely to display national bias on politically sensitive cases’.7 Nevertheless, it should also be stressed that the appearance of partiality of a judge is very likely to damage his or her reputation as an independent and unbiased judge. Thus, it has been argued that judges generally aim at preserving their judicial integrity by disguising a potentially biased decision behind legal arguments.8 This however does ‘not mean that their whole

2 Art 90(1a) of the Rules of Procedure of the HRC. 3 Art 26(4) ECHR. 4 Art 26(3) ECHR. 5 Rule 27 of the Rules of the ECtHR. 6 Merrills 7. 7 See Erik Voeten, ‘The Impartiality of International Judges: Evidence from the European Court of Human Rights’ (2008) 102 American Political Science Review 417, 420ff. 8 See eg Edward Gordon and others, ‘The Independence and Impartiality of International Judges’ (1989) 83 Proceedings of the Annual Meeting (American Society of International Law) 508, 517.

Divergence from a new minorities perspective 151 approach to the process of decision is not highly ethnocentric and highly ideological, and that their presentation in a technical language (. . .) is not all part of the disguising process’.9 Such contestation holds particularly true in the context of human rights law, where, based on the broad formulation and lack of specificity of the relevant provisions, disputes about the correct interpretation and application of human rights norms are common.10 The potential bias of the ‘national judge’ can however not explain the whole outcome of the case, since the decision needs to be taken by the majority of the seven or 17 judges and not by the ‘national’ judge alone.11 Yet, many cases the ECtHR and the HRC have been confronted with in the context of the rights of new minorities have raised issues which are under discussion in the European context as a whole and not only in individual member states, eg the wearing of religious headgear, such as headscarves or turbans. This might have prompted some judges of the ECtHR to avoid interfering with national decision-makers.12 The members of the HRC on the other hand, being less involved in the issue, in particular when coming from different geographical areas, might have been able to look at the dispute from a more ‘objective’ standpoint. Additionally, looking at the members of the two bodies from the perspective of religious diversity, it can be noticed that while the ECtHR consists of judges sharing a predominantly Christian background, the HRC unites members representing a greater variety of religious backgrounds. A similar point was made, though in a more general context, by Bossuyt, who stated the following: The originality of the (Human Rights) Committee’s case-law in relation to that of the Strasbourg institutions clearly resides in the universal composition of the members of the Committee and the State Parties to the Covenant. Far from diminishing the importance of the case-law – even viewed from a European perspective – this universal character on the contrary helps to foster a better understanding of the universality of human rights and fundamental freedoms. This ensures that we do not forget that these rights and freedoms are characterised in particular by the fact that they form the common minimum set of rights and freedoms which must be respected by all States for the benefit of all individuals.13

9 Ibid 517f. 10 This does however not mean that the process of interpretation and application of these human rights norms is not confined by rules, see in general Fiss. 11 This is exemplified by the case Bayev and Others v Russia App nos 67667/09 and 2 others, ECHR 2017 (ECtHR), where the ECtHR found a violation despite the strongly voiced dissent of the Russian judge. 12 Nevertheless, it should be noted that the ECtHR has also taken very progressive approaches in controversial issues such as the rights of transgender people, see eg Christine Goodwin v the United Kingdom [GC] App no 28957/95, ECHR 2002-VI (ECtHR). 13 Marc Bossuyt, ‘Chronique de jurisprudence du Comité des droits de l’homme (1993–1997)’ (1998) RTDH 507, 509 (emphasis added, translation by Tulkens and Van Drooghenbroeck 735). See for a similar statement Scheinin, ‘Religion’ 202.

152  Divergence from a new minorities perspective This more universal composition of the HRC could thus be a potential factor for the higher level of protection offered to new minorities’ right to manifest their religious beliefs.14

2. Legal force of the adopted decision The main institutional difference between the HRC and the ECtHR is the legal force of the decisions they adopt: The HRC can only adopt views, which are not binding for the state in question, and, consequently, it cannot be defined as a court in the strict sense, but only as a quasi-judicial body.15 The ECtHR’s judgments, on the other hand, have binding force. Such effect however, at least according to the text of the ECHR, only extends to the parties.16 Nevertheless, in practice, due to the interpretative authority of the ECtHR, states also regard judgments, where they were not parties to the procedure, to have a certain binding effect.17 This thus goes beyond ‘the “all or nothing” conception of the law’ towards a ‘more subtle, nuanced approach’.18 Similarly, a certain binding effect of the views adopted by the HRC cannot be denied. Thus, for example Scheinin, a former member of the HRC, has argued that ‘since the complaint procedure is clearly quasi-judicial in nature, it is highly important in developing the interpretation and understanding of the legal obligations stemming from the Covenant’.19 He then even went on to derive that, due to such interpretative authority of the HRC, the case law is also relevant to states which have not themselves signed the Optional Protocol to the ICCPR (and thus not accepted the jurisdiction of the HRC).20 This has also been emphasised by the HRC itself, stating that (w)hile the function of the Human Rights Committee in considering individual communications is not, as such, that of a judicial body, the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members,

14 See also Stephanie Berry, ‘A Tale of Two Instruments: Religious Minorities and the Council of Europe’s Rights Regime’ (2012) 30 NQHR 11, 36; Kevin Boyle, ‘Freedom of Religion in International Law’ in Javaid Rehman and Susan C Breau (eds), Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices (Martinus Nijhoff 2007) 43. 15 See eg Christoph Pappa, Das Individualbeschwerdeverfahren des Fakultativprotokolls zum Internationalen Pakt über bürgerliche und politische Rechte (Stämpfli+Cie 1996) 69. 16 Article 46 ECHR. 17 See eg Tulkens and Van Drooghenbroeck 748ff. 18 Ibid 750. 19 Scheinin, ‘Religion’ 192. See also ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Merits, Judgment, ICJ Reports 2010, 639 para 66. 20 Scheinin, ‘Religion’ 192; Tulkens and Van Drooghenbroeck 751ff.

Divergence from a new minorities perspective 153 the considered interpretation of the language of the Covenant, and the determinative character of the decisions.21 This shows that the HRC is very aware of its interpretative authority and even tries to further strengthen the normative character of its views.22 Thus, it can be maintained that, contrary to what some might argue, the HRC does not just find more violations of the ICCPR in the context of new minorities’ religious freedom than the ECtHR because its views are not (formally) legally binding. Rather, it seems that the ECtHR and the HRC choose a different approach to their role as judicial bodies vested with authority in the decisions regarding new minorities. According to Fiss, every judge (or member of a quasi-judicial body) tries to be efficacious, meaning that he or she ‘seeks to interpret the legal text and then to transform social reality so that it comports with that interpretation’.23 In this regard, it appears important that judicial authority does not only refer to institutional power in the sense of the bindingness of the decisions, but also to institutional virtue. The latter is based on an ethical claim to obedience – a claim that an individual has a moral duty to obey a judicial interpretation, not because of its particular intellectual authority (i.e., because it is a correct interpretation), but because the judge is part of an authority structure that is good to preserve. From this perspective, authority thus vitally depends on a recognition of the value of judicial interpretation.24 Yet, it cannot be clearly defined how such institutional virtue is created and judges or judicial bodies might have different approaches to how their decisions will efficaciously manage to transform social reality. This concerns in particular the question how to deal with (expected) resistance against a decision, which is quite common in the context of religious rights of minorities.25 In such situation, the role of the (international) judge is challenging, as was also highlighted by Fiss: In the face of this resistance, the judge can reassert his authority either by proclaiming the virtues of his office and the place of the judiciary in the political system, or by employing the power at his disposal. When the resistance is deep and sufficiently widespread, however, such an action is likely 21 HRC, GC 33 para 11. 22 See eg Thomas Buergenthal, ‘The U.N. Human Rights Committee’ (2001) 5 UNYB 341, 376. 23 See Fiss 759. 24 Ibid 756, referring to Herbert Lionel Adolphus Hart, The Concept of Law (Clarendon Press 1961) and Hans Kelsen, General Theory of Law and State (Harvard UP 1945). 25 See for an example outside of the context of new minorities the case Lautsi and Others v Italy [GC]. For further details see the contributions in Jeroen Temperman (ed), The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom (­Martinus Nijhoff 2012).

154  Divergence from a new minorities perspective to be hollow and unavailing. Then the judge must be able to manage his opposition: He must transform resistance into cooperation. He must win the support of those he needs. He must bargain and negotiate. To succeed in achieving his remedial objectives, the judge must be as much a political strategist as he is a social architect and engineer.26 In the following, the differences between the conceptual approaches adopted by the ECtHR and the HRC to deal with the expected resistance in cases regarding new minorities’ right to manifest their religious belief are examined.

II. The concept of the margin of appreciation and new minorities’ religious freedom The concept of the margin of appreciation27 can be used by an international body as a tool to ensure its effective functioning and to deal with expected resistance from states in certain circumstances. It has been described as a judicial tool allowing an international court ‘to negotiate between the (. . .) task to protect human rights as effectively as possible, and its need to respect national sovereignty and make its judgment acceptable for national authorities’.28 This is primarily based on the subsidiarity of the international system of human rights protection and, linked to this, the idea that national authorities are, in principle, better placed than an international body to evaluate local needs and conditions. As has been elaborated above, both the ECtHR and the HRC, either explicitly or implicitly, include concerns related to the concept of the margin of appreciation in their assessment of violations of the right to manifest religious beliefs.29 Yet, the extent to which recourse is had to the concept of the margin of appreciation is deeply linked to the respective body’s understanding of its role and function as an actor in the realm of international human rights law. It is thus not surprising that the use of the concept of the margin of appreciation in the assessment of the proportionality condition in cases regarding new minorities’ right to manifest their religious beliefs was found to be the main source of the detected divergence,30 given that the HRC barely granted discretion to national authorities, while the ECtHR did so extensively. Consequently, it appears warranted to first clarify which effects the use of the concept of the margin of appreciation has and under which conditions the margin of appreciation can, in principle, be regarded a useful judicial tool. Concluding that the concept can indeed be a useful judicial tool under certain conditions, it is examined whether the HRC should follow the ECtHR’s example and make more

26 Fiss 760. 27 The concept of the margin of appreciation is used in this section as an umbrella term for similar concepts based on the same concepts, such as margin of discretion. 28 Gerards, ‘Margin of Appreciation’ 114. 29 See above Chapter 4, section V and VI. 30 See also Tulkens and Van Drooghenbroeck 747.

Divergence from a new minorities perspective 155 extensive use of the margin of appreciation in its case law regarding new minorities. Such inquiry is based on a confrontation of the ECtHR’s use of the concept of the margin of appreciation with the conditions specified for its use as a useful judicial tool. Lastly, the possible reasons for the divergent use of the concept of the margin of appreciation in the context of new minorities are analysed.

1. The effects of the concept of the margin of appreciation: A useful judicial tool? At the outset, it should be noted that granting a margin of appreciation does not prevent a certain situation from being under the supervision of the Court, as is commonly emphasised by the ECtHR by stating that it ‘is subject to European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court’.31 The extent of this supervision varies however, which is commonly expressed by the ECtHR by determining various breadths of the margin of appreciation. As was highlighted already, in cases concerning new minorities’ right to manifest their religious beliefs, the breadth of the margin granted to the respondent state was either not specified, ‘considerable’ or ‘wide’, but in no case was the margin narrow.32 Comparing the assessment of the condition of proportionality in cases, in which a margin of appreciation was granted, to the one of the HRC in relevant views or also of the ECtHR in other cases not subject to a margin of appreciation, it emerged that the margin of appreciation reduces the attention the Court dedicates to the arguments brought forward by the applicant in favour of a violation of Article 9 ECHR. As a consequence of this, the scrutiny applied by the Court to the justification brought forward by the respondent state is significantly lowered or non-existing, which seems to lead to a shift of the burden of proof or persuasion.33 The Court generally highlights that ‘the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake’.34 In the context of manifestations of religious beliefs, commonly, once an interference with this right has been established, it is upon the state to proof such interference was justified.35 As an example, the most recent judgment regarding the religious freedom of new minorities, Lachiri v Belgium, decided by the

31 Kokkinakis v Greece para 47; Brems, ‘Margin of Appreciation’ 243. 32 See above Chapter 4, section V(3). 33 See in general Gerards, ‘Margin of Appreciation’ 87ff; Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches with Special Reference to the American and German Legal System (Kluwer Law International 1998) 42f and 218ff. 34 Nachova and Others v Bulgaria [GC] App nos 43577/98 and 43579/98, ECHR 2005-VII (ECtHR) para 147. 35 See more generally Henrard, ‘Church-State Relations’ 65; Kokott 221.

156  Divergence from a new minorities perspective ECtHR in 2018, can be mentioned.36 The complaint regarded the wearing of a headscarf in the courtroom by a civil party to a criminal procedure. In its assessment, the Court did not mention the margin of appreciation. This absence of the margin of appreciation is clearly reflected in the allocation of the burden of proof for the ‘necessity in a democratic society’, where the Court found that the government had not established that the applicant behaved in a disrespectful manner or represented a threat to the orderly conduct of the hearing.37 This can be directly contrasted to the Court’s reasoning in cases strongly influenced by the margin of appreciation. For example, in Dahlab v Switzerland, concerning the wearing of a headscarf by a primary school teacher, the Court held that ‘there were no objections to the content or quality of the teaching provided by the applicant, who does not appear to have sought to gain any kind of advantage from the outward manifestation of her religious beliefs’.38 Nevertheless, it found that ‘it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect’,39 thus implying that the applicant would have had to demonstrate the absence of any proselytising effect on children, beyond the lack of complaints about her teaching, in order for the Court to find a violation of her right to manifest her religious beliefs. The shift of the burden of proof based on the wide margin of appreciation of the state makes it thus much more difficult for the applicant to obtain protection of his or her rights. Such shift of the burden of proof can be viewed as problematic given that it disregards the unequal position the applicant and the respondent state find themselves in. Thus, depending on the matter on which proof is required, it may be significantly easier for the state to furnish such proof than it is for the applicant. This has been recognised by the ECtHR in cases based on the prohibition of discrimination guaranteed by Article 14 ECHR, where it found that (r)egard being had in particular to the specificity of the facts and the nature of the allegations made in this type of case, it would be extremely difficult in practice for applicants to prove indirect discrimination without (. . .) a shift in the burden of proof.40 Nevertheless, it must be recognised that the variation of the level of scrutiny depending on the issue at hand can also be a very important and useful judicial tool.41 It enables a body to give due regard to ‘a national court’s proximity in time and location to the problem at issue’ and to recognise that national authorities ‘derive their authority more directly from the people than do international institutions’.42

36 Lachiri v Belgium. 37 Lachiri v Belgium para 46 (translation by the author). 38 Dahlab v Switzerland (dec). 39 Ibid. 40 DH and Others v the Czech Republic [GC] App no 57325/00, ECHR 2007-IV (ECtHR) para 189. 41 See Gerards, ‘Margin of Appreciation’; Gerards, ‘Necessity Test’ 475f. 42 Kokott 220.

Divergence from a new minorities perspective 157 As was established above, the (principal) reason given by the Court for granting states a wide margin of appreciation in the majority of its case law regarding new minorities’ right to manifest their religious beliefs is the lack of consensus with regard to relations of the state with religions or also in the significance of religion in society.43 More specifically, the ECtHR has stated that ‘where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance’.44 Consequently, the main motivation for the use of the margin of appreciation appears to be to avoid interfering with the discretion of national authorities in a controversial matter. This is allegedly ‘related to the Court’s concern that antagonizing states in this respect could trigger structural refusals to implement the Court’s judgments, which would undermine the entire system’.45 The margin of appreciation granted to states in matters where no consensus can be identified can thus be regarded as an attempt to ensure the legitimacy of the Court and its judgments.46 If the margin of appreciation is truly an effective tool for increasing the legitimacy of a human rights body and its decisions, this would be a valid reason for the HRC to use it in its own case law. Indeed, based on such considerations, McGoldrick has argued that ‘(t)here is a risk that not affording States an MoA (margin of appreciation) could make interferences by the HRC with sovereignty of States intolerable and politically unacceptable’.47 Moreover, he contended that, by failing to use the concept, the HRC is depriving itself ‘of a credible and defensible intellectual instrument for making human rights determinations’, which could ‘mediate between the idea of universal human rights and leaving space for reasonable disagreement, legitimate differences, and national or local cultural diversity’.48 McGoldrick even sustained that (i)f the universal system imposed higher universal standards, because it does not allow States an MoA (margin of appreciation), it makes the regional systems appear problematic (. . .) because regional systems are not seen as a challenge to universal human rights as long as they have higher minimum standards than the universal ones.49

43 See above Chapter 4, section V(3b). 44 See eg Ebrahimian v France para 56. 45 Henrard, ‘Consensus’ 17. See also Daniel Augenstein, ‘Religious Pluralism and National Constitutional Traditions in Europe’ in Camil Ungureanu and Lorenzo Zucca (eds), Law, State and Religion in the New Europe (CUP 2012) 268ff. 46 See for further details Dzehtsiarou 143ff. 47 McGoldrick, ‘Margin of Appreciation’ 43, referring to Paul Mahoney, ‘Judicial Activism and Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’ (1990) 11 HRLJ 57. 48 McGoldrick, ‘Margin of Appreciation’ 58. For a similar argument in the context of EU courts Gerards, ‘Margin of Appreciation’. See also Shany, ‘Margin of Appreciation’. 49 McGoldrick, ‘Margin of Appreciation’ 59.

158  Divergence from a new minorities perspective While it is not disputed here that the margin of appreciation can indeed be a useful judicial tool, McGoldrick in his last, rather generalising argument fails to consider that the HRC could have good reasons for opting for a more protective interpretation and application of certain human rights guarantees, if it believes the ECtHR has granted states too wide of a margin of appreciation. In this context, the elaborations by Kokott appear pertinent. She warned that (e)xtensive recourse to the national margin (. . .) risks rendering the international protection of human right ineffective, because the margin of appreciation imposes the burden of proof upon the individual. Therefore, the correct balance must be struck. In this respect, the recognition of a national margin of appreciation and, correspondingly, the application of alternative standards of scrutiny should be principled. International supervision can only be effective, predictable, and acceptable to states if alternative standards of scrutiny are applied consistently.50 Thus, the question arises, which reasons the Court adduces for submitting the argumentation of the state to a reduced level of scrutiny in certain cases and whether such reasoning is applied in a principled and consistent manner. If this is the case, this would be a valid reason for arguing that the HRC should indeed make a more extensive use of the concept of the margin of appreciation in its case law regarding new minorities in order to ensure its legitimacy.

2. A principled and consistent use of the margin of appreciation by the ECtHR? As was highlighted above, the ECtHR motivates the decision to grant the state a wide margin of appreciation in cases regarding new minorities’ right to manifest their religious beliefs, if at all, mostly with the circumstance that national authorities are better placed to judge the necessity of an interference or that there is a lack of European consensus on the issue in question.51 It was already stressed at that point that the way the argument of European consensus is used as well as the assessment of such consensus in the cases regarding new minorities’ right to manifest their religious beliefs is bothersome. Based on the conditions, which were specified for the use of the concept of the margin of appreciation as a useful judicial tool in the previous section, in particular that it is applied in a principled and consistent manner, further criticism of the relevant case law must be voiced. In SAS v France concerning the general ban on the wearing of the burqa in France, the Grand Chamber seems to base its reasoning on the assumption that ‘(a)s regards Article 9 of the Convention, the State should (. . .), in principle, be afforded a wide margin of appreciation in deciding whether and to what extent

50 Kokott 221. 51 See above Chapter 4, section V(3b).

Divergence from a new minorities perspective 159 a limitation of the right to manifest one’s religion or beliefs is “necessary” ’.52 A similarly wide formulation can be found in Osmanog˘lu and Kocabas¸ v Switzerland, where the Court found that ‘States dispose of a considerable margin of appreciation regarding questions referring to the relations between the State and religions and the significance which is to be given to religion in society’.53 The existing lack of consensus in ‘questions concerning the relationship between State and religions’54 thus seemingly calls for a wide margin of appreciation in all cases regarding the manifestation of religious beliefs. Yet, in the Court’s most recent judgment regarding new minorities’ religious freedom, Lachiri v Belgium, which regarded the wearing of a headscarf in the courtroom by a private party and confronted the Court thus with a comparable question, the concept of the margin of appreciation is not mentioned at all. Also many cases raising similar issues, namely individual manifestations in public, outside of the context of new minorities do not mention the concept of the margin of appreciation.55 One example is the case Ivanova v Bulgaria, decided in 2007,56 concerning a member of a Christian Evangelical Group called ‘Word of Life’, who was employed as a member of the non-academic school staff. She was dismissed due to her membership in the religious group, which was forced to pursue clandestine activities because authorities refused to register it. The ECtHR found that the state pursued a ‘policy of intolerance’57 towards the religious group the applicant adhered to and that the termination of her employment based on her religious beliefs violated Article 9 ECHR. The concept of the margin of appreciation was not mentioned in the judgment. Contrary to this, in the case Ebrahimian v France, concerning a member of a new Muslim minority, the Court, based on a wide margin of appreciation of the respondent state, found that the nonrenewal of the applicant’s contract based on her refusal to refrain from wearing the headscarf did not violate her right to manifest her religious beliefs. Such lack of reliance on the margin of appreciation can however not only be detected in judgments finding a violation. One example is the case Francesco Sessa v Italy, which concerned the question whether a Jewish lawyer could request another Court date in case such date coincided with a religious holiday.58 Without mentioning the concept of the margin of appreciation, the Court found that there

52 SAS v France [GC] para 129. 53 Osmanog˘lu and Kocabas¸ v Switzerland para 95 (emphasis added). 54 SAS v France [GC] para 129. 55 Although mentioning the concept of the margin of appreciation, two violation judgments taken regarding new Buddhist minorities were not decisively influenced by such concept, see above Chapter 4, section V(2b). The cases concerned the question whether Buddhist prisoners must be provided vegetarian meals, see Jakóbski v Poland; Vartic v Romania (No 2). 56 Ivanova v Bulgaria App no 52435/99, 12 April 2007 (ECtHR). 57 Ibid para 58. 58 Francesco Sessa v Italy App no 28790/08, ECHR 2012 (extracts) (ECtHR). For a similar example see Kosteski v ‘the Former Yugoslav Republic of Macedonia’.

160  Divergence from a new minorities perspective had been no violation of the applicant’s right to manifest his religious beliefs, given that he could have arranged for a replacement.59 Another illustrative example for the unprincipled use of the margin of appreciation in cases concerning Article 9 ECHR is the judgment Ahmet Arslan and Others v Turkey discussed above, the facts of which are very comparable to SAS v France, given that both concern the wearing of religious dress in public spaces. Differently than the Grand Chamber in the judgment SAS v France, which heavily relied on the margin of appreciation of the respondent state, the Chamber in Ahmet Arslan and Others v Turkey made no mention of such concept.60 This is particularly interesting given that the respondent state had claimed that the restrictions of the applicants’ right to manifest their belief were to be set in the context of laïcité. Such context would, based on the jurisprudence of the Court, particularly Leyla S¸ahin v Turkey, but also Ebrahimian v France, entail a large margin of appreciation for the state, as was also argued by Judge Popovic´ in his dissenting opinion.61 It could thus be deduced from these examples that the reasons for granting the state a wide margin of appreciation are only interpreted and applied in such an extensive manner in the context of new minorities. Yet, other judgments outside the context of new minorities demonstrate a similarly extensive application of the margin of appreciation in cases regarding individual manifestations of religious beliefs in the public sphere. Thus, in the Grand Chamber judgment Leyla S¸ahin v Turkey, which concerns the wearing of the headscarf in public universities and was already discussed at various instances in this work, the Court also based its finding of no violation on a wide margin of appreciation of the respondent state.62 The motivation for such margin was, similar as in the relevant cases concerning new minorities, the lack of ‘a uniform conception of the significance of religion in society’ throughout Europe, a rather vague and open concept.63 Another example is the case Siebenhaar v Germany, which concerned a childcare assistant who was dismissed from a day nursery run by a Protestant parish because she was a member of a religious community named the Universal Church/Brotherhood of Humanity and offered lessons in the teachings of that community.64 In finding no violation of Article 9 ECHR, the Court relied on the wide margin of appreciation of the state in question due to the lack of consensus on questions regarding the relationship of state and church.65 This overview of cases shows that the margin of appreciation, which for example according to SAS v France should be granted to the state in the context of Article 9 ECHR ‘in deciding whether and to what extent a limitation of the right

59 Francesco Sessa v Italy para 37. 60 Ahmet Arslan and Others v Turkey. 61 Ibid. Dissenting Opinion of Judge Popovic´. 62 Leyla S¸ahin v Turkey [GC]. 63 Ibid para 109. 64 Siebenhaar v Germany App no 18136/02, 3 February 2011 (ECtHR). 65 Ibid para 41. See for further details on this line of jurisprudence Henrard, ‘Differential Margins of Appreciation’ 260ff.

Divergence from a new minorities perspective 161 to manifest one’s religion or beliefs is “necessary” ’,66 is not applied in a consistent manner by the Court. Rather, while certain judgments and decisions strongly rely on the concept of the margin of appreciation, others do not even mention it.67 Thus, the Court applies various levels of scrutiny in freedom of religion cases based on what has been termed ‘differential margins of appreciation’.68 This is problematic because it implies that the ECtHR does not follow a principled approach in determining the margin of appreciation to be granted to a state in a specific case, which makes the relevant jurisprudence seem unpredictable and inconsistent.69 Fiss has stressed the importance of what he calls ‘disciplining rules’, because ‘(t)hey constrain the interpreter, thus transforming the interpretive process from a subjective to an objective one, and they furnish the standards by which the correctness of the interpretation can be judged’.70 The absence of such disciplining rules in the relevant case law of the ECtHR thus provides a good reason for the HRC not to follow the ECtHR’s approach.

3. Reasons for the divergent use of the concept of the margin of appreciation It was highlighted by Fiss that concerns about the legitimacy and efficacy of adopted decisions ‘may make the judge settle for something less than what he perceives to be the correct interpretation’.71 In this sense, (f )earing he lacks the ability – the technical expertise or political power – to implement the right answer, and determined to avoid failure, even if it means doing nothing, the judge may tailor both the remedy and the right to what he perceives to be possible, and that may be considerably less than what he believes the text – the appropriate text – requires. That fear may drive the judge to read a lesser text – public opinion – or even worse, it might lead the judge to embrace what might be regarded as Frankfurter’s axiom – it is better to succeed in doing nothing than to fail in doing something.72 Indeed, when considering the extensive use of the margin of appreciation in questions regarding the right of new minorities to manifest their religious beliefs, it could be argued that the ECtHR is de facto abstaining from exercising its

66 SAS v France [GC] para 129. 67 A similar point is made by Henrard, ‘Differential Margins of Appreciation’; Tulkens and Van Drooghenbroeck 744f. 68 Henrard, ‘Differential Margins of Appreciation’. 69 See Steven Greer, ‘ “Balancing” and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate’ (2004) 63 The Cambridge Law Journal 412, 425; Henrard, ‘Church-State Relations’ 66f; Kokott 221. 70 Fiss 745. 71 Ibid 761. 72 Ibid.

162  Divergence from a new minorities perspective control function in these contexts to avoid adopting judgments which would not be followed by states. A very illustrative example for this, though outside of the context of new minorities, is the case Lautsi v Italy, which concerned the question whether the display of crucifixes in classrooms of public schools amounted to a violation of the right of parents to ensure the education and teaching of their children in conformity with their own religious and philosophical conviction flowing from Article 2 of the First Additional Protocol to the ECHR taken together with Article 9 ECHR. Whereas the Chamber found a violation of said provisions, without mentioning the concept of the margin of appreciation even once, although the Italian Government had brought it up,73 the Grand Chamber, by extensively relying on the wide margin of appreciation to be granted to the state, decided that there had not been a violation.74 This turn-around seemed to be owed to ‘a storm of political controversy in Italy and elsewhere in Europe’75 amounting to ‘the most widespread opposition (to a judgment) in the history of the ECtHR’.76 Thus, in the proceedings before the Grand Chamber, eight states as well as non-state entities intervened on behalf of Italy putting significant pressure on the Grand Chamber to reverse the judgment, which had been adopted unanimously by the judges sitting in the Chamber formation. The effect of such pressure on the judgment of the Grand Chamber is hardly debatable, in particular since the Court’s reasoning is almost exclusively based on the margin of appreciation, avoiding, as much as possible, to address substantive arguments related to the case.77 This leaves the shallow impression that states’ policies in the area of religion are subjected to a very selective oversight by the ECtHR, bending the interpretation and application of Article 9 ECHR (and related provisions) to states’ preferences instead of the requirements set by the ECHR. Consequently, it seems that the fear for its own legitimacy inhibits the Court from exercising any meaningful control in certain controversial issues.78 The very low protection offered to new minorities’ right to manifest their religious beliefs in the realm of the ECtHR is thus likely to be linked to the controversial nature of the issues arising in this context. Thus, it has been stressed that the ECtHR has generally been reluctant ‘to find violations of the freedom to manifest one’s religion in relation to complex and controversial religious questions (. . .) throughout a long history of case law’.79 As was also established by

73 Lautsi v Italy App no 30814/06, 3 November 2009 (ECtHR) para 38. See for a critical perspective of the lack of reference to the concept of the margin of appreciation Zoé Luca, ‘Case of Lautsi v Italy: Religious Symbols in Public Schools and the (Lack of ) Margin of Appreciation’ (2010) 17 MJ 98. 74 Lautsi and Others v Italy [GC] paras 63ff. 75 Dominic McGoldrick, ‘Religion in the European Public Square and in European Public Life: Crucifixes in the Classroom?’ (2011) 11 HRLRev 451, 470. 76 Giulio Itzcovich, ‘One, None and One Hundred Thousand Margins of Appreciations: The Lautsi Case’ (2013) 13 HRLRev 287, 289. 77 See also Henrard, ‘Church-State Relations’ 85f; Itzcovich 291f; McGoldrick, ‘Religion’ 500ff. 78 See for a similar point Henrard, ‘Church-State Relations’ 66f. 79 Henrard, ‘Consensus’ 17f.

Divergence from a new minorities perspective 163 this research, at first this manifested mostly at the admissibility stage, in particular by means of a restrictive interpretation of the scope of Article 9 ECHR. Subsequently, it shifted towards the merits of a case, namely to the question whether an interference with the right to manifest religious beliefs could be regarded as necessary in a democratic society.80 Similar as religious matters, issues surrounding immigration as well as minorities have the tendency to create controversies, for instance with regard to necessary restrictions of minorities’ rights in order to guarantee social cohesion, peace and stability. This makes the topic of new minorities’ religious freedom particularly controversial, which is exemplified by the very heated discussion on topics such as the wearing of the burqa or the headscarf in various states.81 Different scholars have pointed out that the ECtHR’s extensive deference to national authorities regarding policies on controversial issues, where no consensus among European states exists, is very problematic. This is, among others, based on concerns that the reliance on the lack of consensus as a basis for a wide margin of appreciation in the context of conflicts between the majority and minorities puts the latter’s rights at peril.82 Thus, in the interviews conducted by Dzehtsiarou with judges of the Court in the framework of his research on European consensus, several judges expressed concerns about the use of such a concept in minority contexts.83 One (anonymous) judge for example motivated this concern by recalling that ‘historically (. . .) the consensus of States has been the reason for grave injustices that have been committed’.84 Among scholars, Benvenisti can be mentioned; he argued that in conflicts between the majority and minorities, which typically result in restrictions exclusively or predominantly on the rights of the minorities, no deference to national institutions is called for, rather, the international human rights bodies serve an important role in correcting some of the systemic deficiencies of democracy.85 Moreover, scholars have stressed the problematic effects of the wide margin of appreciation granted to states in the context of Article 9 ECHR on religious minorities. Thus, Henrard has argued that (a)ccepting the decisions of the national authorities implies leaving intact de facto preferences given to or acquired by the culturally embedded, prevailing,

80 See also ibid 18f. 81 See in this regard the elaborations made above Chapter 1, section III. 82 This research exclusively focuses on the problematic reliance on the consensus argument in the context of (new) minorities’ fundamental rights. For a broader analysis of the arising issues see eg Benvenisti; Dzehtsiarou 115ff; Helfer. See also Eva Brems, ‘Human Rights: Minimum and Maximum Perspectives’ (2009) 9 HRLRev 349. 83 See Dzehtsiarou 201ff. 84 Ibid 202. 85 Benvenisti 847. See also Brems, ‘Margin of Appreciation’ 272ff.

164  Divergence from a new minorities perspective majority religions, thus de facto disadvantaging or solidifying the disadvantages of the minority religions and their adherents.86 The systemic deficiencies of democracy have also been recognised by the ECtHR, which regularly recalls the general principle that (a)lthough individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair treatment of people from minorities and avoids any abuse of a dominant position.87 Additionally, the ECtHR commonly evokes the importance of freedom of religion in a democratic society as part of the general principles in the context of Article 9 ECHR, stating that (t)his freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.88 If taken seriously, this would call for an increased scrutiny of arguments brought forward by national authorities justifying restrictions of rights of (religious) minorities, in order to avoid any such abuse of a dominant position and preserve societal pluralism.89 Despite showing awareness of these issues, in almost all conflicts between the majority and new minorities’ right to manifest their religious beliefs the ECtHR decided that the state should be granted a wide margin of appreciation.90 Thus, it appears that the Court is consciously abstaining from exercising its function as an international human rights body, leaving the relevant issues at the nearly complete discretion of states and new minorities without any meaningful protection.91 As a result, it arguably ‘neglects non-dominant, disadvantaged groups, like minorities, by allowing, confirming and even strengthening the dominant position (the status quo)’.92 Thus, in line of what was already argued by Ní Aoláin in 1995, it can be observed that the ECtHR’s approach to interpretation, at least in the context of new minorities’ religious freedom, is very state-centred and

86 Henrard, ‘Church-State Relations’ 75. 87 See eg SAS v France [GC] para 128. 88 See eg ibid para 124. For a detailed analysis of the general principles commonly recalled in the case law concerning new minorities’ religious freedom see above Chapter 4, section V(1). 89 See also Henrard, ‘Church-State Relations’ 70f. 90 See above Chapter 4, section V(2). 91 See for a similar argument Henrard, ‘Church-State Relations’ 71. 92 Ibid 69.

Divergence from a new minorities perspective 165 ‘characterized by dodging the clarification of rights, usually to minimize their content, when competing interests create difficulties of adherence for member states to the Convention’.93 In contrast, the HRC seems to focus its interpretation and application more on the individual, also if this means that it interferes with the discretion of states in controversial and politically sensitive matters. It could thus be argued that, instead of avoiding any positioning on such topics, the HRC aims at providing direction and guidance to states, thus representing a different model of international human rights supervision.94 Interestingly, in other areas, the ECtHR seems to have subscribed to a similar model of supervision. Therefore, since 1978, it has repeatedly held that its judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties.95 Consequently, (a)lthough the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States.96 Such approach appears to be followed, at least to some extent, also in the area of minority rights, where the ECtHR has made significant contributions to the advancement of their protection. It has for example recognised state obligations to safeguard minorities’ right to a separate identity in the context of traveller communities.97 Moreover, the Court has started to embrace the concept of substantive or real equality, which can be seen as central for the protection of minorities.98 For instance it has found that states have an obligation to treat persons

93 Fionnuala Ní Aoláin, ‘The Emergence of Diversity: Differences in Human Rights Jurisprudence’ (1995) 19 Fordham International Law Journal 101, 104. 94 See also the argument presented by Henrard, ‘Alternative Model’ 387ff, though in a different context. 95 See eg Ireland v the United Kingdom App no 5310/71, 18 January 1978, Series A no 25 (ECtHR) para 154; Paposhvili v Belgium [GC] App no 41738/10, ECHR 2016 (ECtHR) para 130. 96 Karner v Austria App no 40016/98, ECHR 2003-IX (ECtHR) para 26; Paposhvili v Belgium [GC] para 130. 97 See eg Muñoz Díaz v Spain App no 49151/07, ECHR 2009 (ECtHR); Winterstein and Others v France App no 27013/07, 17 October 2013 (ECtHR). See also Bayatyan v Armenia [GC]. 98 See eg Kristin Henrard, ‘Non-Discrimination and Full and Effective Equality’ in Marc Weller (ed), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies (OUP 2007).

166  Divergence from a new minorities perspective differently when they were convicted of offences committed because of their religious beliefs.99 This demonstrates that also in a context where controversial questions arise, a meaningful international control can be exercised by the ECtHR. As was highlighted by Henrard, ‘(i)t definitely seems possible (for the ECtHR) to provide more guidelines, and to identify boundaries that should not be crossed in terms of human rights obligations’.100 This has been demonstrated by the recent judgment Lachiri v Belgium. The divergence between the ECtHR and the HRC thus does not appear to be based on the concept of the margin of appreciation or the understanding of the role of an international human rights body in general, but rather on the specific approach adopted in the context of new minorities’ right to manifest their religious beliefs. This might be linked to a difference in the perception of the applicants as members of new minorities by the two human rights bodies, as will be discussed in the next section.

III. Looking at the applicants from a ‘minority perspective’ At the beginning of this work, the concept of ‘new minorities’ was defined and the scope of the research was tailored accordingly. As was highlighted at that point,101 this terminology was chosen because it recognises groups formed by recent migration movements as a permanent part of the population and connects the issues confronted by these groups to the existing international minority protection framework, which was developed based on the recognition that ‘particularly vulnerable categories of people (such as ethnic, religious, linguistic, cultural or national minorities) may need to be singled out for protection by the international community’.102 Thus, in addition to human rights treaties, such as the ICCPR and the ECHR, minorities are protected by specific minority rights instruments.103 In the context of the UN, Article 27 ICCPR enshrines a binding obligation of states not to deny persons belonging to minorities ‘the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. Further the UN Minority Rights Declaration adopted by the General Assembly in Resolution 47/135 in 1992 is of relevance. As its name already reveals, it is not a legally binding instrument. In the realm of the CoE, the FCNM, adopted in 1998, is of particular significance.

99 Thlimmenos v Greece [GC]. See also DH and Others v the Czech Republic [GC]. Nevertheless, the Court’s jurisprudence still paints a rather mixed picture, see eg Henrard, ‘Differential Margins of Appreciation’. 100 Henrard, ‘Church-State Relations’ 69. 101 See above Chapter 1, section II. 102 Hannum 50. 103 See for a detailed overview of all relevant instruments and provisions Henrard, System of Minority Protection 156ff.

Divergence from a new minorities perspective 167 The FCNM is of a special legal nature: Although legally binding for its member states, ‘its provisions are designed as legally not binding, normative principles, which have to be implemented via legislation and practice of member states’.104 This section aims at inquiring whether the divergence detected in the case law of the ECtHR and the HRC regarding new minorities’ right to manifest their religious beliefs can be explained by the fact that not both bodies look at the applicants in the collected case law from a ‘minority perspective’. This would entail the recognition that the applicants are members of a minority group, which is protected by the minority rights instruments mentioned in the last paragraph. In order to conduct this inquiry, first the basic premises of international minority protection need to be established. In a second step, it is examined whether in the collected case law, any explicit references to the applicants as members of a minority group can be detected. Lastly, other hints of a ‘minority perspective’ in the relevant case law are traced.

1. Basic premises of international minority protection The idea that minorities are in need of special protection on the international level can be linked to the end of the Cold War, which showed that in order to guarantee stability and cohesion as well as effective protection of minority groups, specific state obligations for their protection were necessary.105 Today existing international minority instruments thus aim at creating a feeling of national cohesion that should protect minorities from repression by the majority and guarantee the full realisation of their human rights.106 The current existing minority protection regime foresees obligations to prevent discrimination and to take measures to ensure full and effective equality, and (. . .) to promote conditions for diversity and to abstain from assimilationist policies, while recognising the justification of the state to promote integration in society.107 For example, Article 5 FCNM obliges states to ‘promote the conditions necessary (for minorities) to maintain and develop their culture, and to preserve the essential elements of their identity’. Furthermore, it puts forward that states ‘shall refrain from policies or practices aimed at assimilation of (minorities) against their 104 Rainer Hofmann, ‘Das Rahmenübereinkommen zum Schutz Nationaler Minderheiten: Einführung, Überblick, Würdigung’ in Rainer Hofmann and others (eds), Rahmenübereinkommen zum Schutz Nationaler Minderheiten (Nomos 2015) para 16 (translation by the author). 105 Eide, ‘ “New” Minorities’ 169. 106 Anna Meijknecht, ‘Minority Protection System Between World War I and World War II’ in Rüdiger Wolfrum (ed), Max Planck Encylopedia of Public International Law (OUP 2010) para 6. 107 Eide, ‘ “New” Minorities’ 167; Julie Ringelheim, Diversité Culturelle et Droits de l’Homme: La Protection des Minorités par la Convention Européenne des Droits de l’Homme (Bruylant 2006) 4.

168  Divergence from a new minorities perspective will’. This shows that minority instruments take an explicit stand against assimilation and for the preservation of religious (and other) diversity. Differently than human rights instruments, minority instruments explicitly impose the responsibility to take positive measures to promote full and effective equality of minorities in all domains of the economic, social, political and cultural life on states.108 This follows an understanding of substantive and not just formal equality and entails that it may sometimes not be enough to treat everyone in the same way, but to achieve effective equality, special measures for certain disadvantaged groups may be necessary.109 This ideal of equality for all is also present in Article 15 FCNM, which obliges states to ‘create the conditions necessary for the effective participation of persons belonging to national minorities’. This shall be realised with measures which encourage a spirit of tolerance and intercultural dialogue and (. . .) promote mutual respect and understanding and cooperation among all persons (. . .), irrespective of those persons’ ethnic, cultural, linguistic or religious identity.110 Hence, it can be summarised that the international minority protection framework aims at ‘enabling an effective integration of the relevant population groups, while allowing them to retain their separate characteristics’,111 in particular by accommodating minorities’ diversity and preventing involuntary assimilation.

2. Explicit references to the applicants as members of (new) minorities As was pointed out already, the term ‘new minority’ is not widely used outside the field of minority protection and, in general human rights law, the terms ‘immigrants’ or ‘people with migration background’ are more commonly used to designate new minority groups which have formed in certain states due to recent migration movements.112 Alternatively, relevant groups might also be referred to as minorities, without the distinctive adjective of ‘new’. In the respective case law, the HRC and the ECtHR generally do not use any of the notions mentioned. It could even be argued that any categorisation of the applicants, apart from their religious beliefs, is avoided.113 This is illustrated by the case Ranjit Singh v France, where the author’s request to the HRC ‘to express its

108 Eg Art 4(2) FCNM. 109 Henrard, System of Minority Protection 13. 110 Art 6(1) FCNM. 111 Henrard, System of Minority Protection 8. 112 See eg Carlier; Rubio-Marín. 113 This is by no means surprising, given that, as was highlighted by Henrard, ‘general human rights Conventions simply do not have a minority focus and hence will not refer to old versus new minorities’, see Henrard, ‘Synergies’ 314.

Divergence from a new minorities perspective 169 concerns regarding respect for the rights of minorities in France and to recognize the Sikh community as an ethnic and religious minority’114 was ignored. This appears surprising given that the HRC has recognised groups formed by recent migration as minorities in the context of its General Comment on Article 27 ICCPR.115 By contrast, the ECtHR leaves the definition of the term ‘minority’ to states by holding that this issue ‘by the nature of things, (must) be left largely to the State concerned, as it will depend on particular national circumstances’.116 At the same time, the Venice Commission has argued that, although not explicitly stating so, the ECtHR uses the term ‘minority’ in a rather inclusive manner.117 Consequently, the question arises whether, despite the absence of the term ‘minority’, groups formed by recent migration movements are de facto treated like minorities and thus looked at from a ‘minority perspective’.

3. Traces of a ‘minority perspective’ Indeed, traces of certain of the above-mentioned basic premises of international minority protection can be found in the case law of the HRC and the ECtHR. One crucial concept of minority protection is the concept of non-discrimination and substantive equality. Such a concept is intrinsically linked to the guarantees of equality and non-discrimination enshrined for instance in Articles 14 ECHR and 26 ICCPR. Looking at the relevant case law, it can be determined that both the HRC and the ECtHR generally do not dedicate much attention to these provisions.118 Thus, both bodies often did not assess whether the prohibition of discrimination was violated, even though the applicant had invoked the relevant provision, based on the reason that ‘there is no cause for a separate examination of the same facts from the standpoint of Article 14 of the Convention’ or Article 26 ICCPR.119 Alternatively, the claim of a violation of the respective provisions was subjected to a very minimal reasoning.120 The reasoning of the ECtHR in the relevant case law is clearly based on a formal conception of equality, which is not in line with the basic precepts of minority protection. For instance, in the decisions regarding the French law prohibiting the wearing of ostentatious religious symbols in public schools, the ECtHR observed that the legal provision in question did not distinguish among different religions but applied to every ostentatious religious symbol.121 Based on this reasoning, the complaint regarding Article 14 ECHR (in combination with Article 9 ECHR) was found to be manifestly ill-founded. Thereby the Court

114 Ranjit Singh v France para 3.8. 115 HRC, GC 23 para 5.2. See also above Chapter 1, section II(1). 116 Gorzelik and Others v Poland [GC] para 67. See also Henrard, ‘Synergies’ 335. 117 See Venice Commission, Report Non-Citizens para 18. 118 See eg Henrard, ‘Religious Minorities’ 17f. 119 See eg Jakóbski v Poland para 59; Ranjit Singh v France para 8.5. 120 See eg Karnel Singh Bhinder v Canada para 6.2; SAS v France [GC] paras 160ff. 121 Eg Aktas v France (dec) para 3. See for a similar approach Dahlab v Switzerland (dec) para 2.

170  Divergence from a new minorities perspective applied a strictly formal interpretation of the concept of equality to the case, not taking into account the adverse effects122 of the law for Muslims, Sikhs and adherents of other religions. Although the ECtHR seems to go beyond this formal understanding of equality in certain cases,123 this apparently does not apply to the context of new minorities’ religious beliefs. Contrary to this, the HRC, which only in its most recent views started to dedicate more attention to issues of non-discrimination and equality, clearly follows a concept of substantial equality. Thus, in FA v France, an internal regulation at the workplace of the applicant, a private nursery, prohibited the wearing of any conspicuous religious symbols. The Committee considered ‘that the restriction in the internal regulations constituted differential treatment of those Muslim women who, like the author, choose to wear a headscarf’.124 With this reasoning, the HRC recognised that although the internal regulation was vested in apparently neutral terms, it disproportionally affected Islamic headscarves and veils and was thus discriminatory. Additionally, the concept of non-discrimination and substantive equality can also influence the interpretation of the right to freedom of religion, in particular in the context of the identification of duties of reasonable accommodation. In short, the aim of relevant measures is to address barriers to participation which particular (groups of ) persons are confronted with due to an interaction between an individual’s inherent characteristics, and the physical or social environment. Reasonable accommodation measures can take various forms but they always entail some adjusting and adapting of existing policies, rules, practices, or infrastructure in order to take down barriers to equal access and full participation that are related to a particular protected characteristic. Ultimately, these measures are about realizing equal opportunities, and thus substantive equality.125 The recognition of such duties of reasonable accommodation could thus be interpreted as a sign that the respective body looks at the applicants in question from a ‘minority perspective’. Duties of reasonable accommodation are intrinsically linked to the recognition of positive state obligations to ensure the protection of minorities’ right to 122 Such adverse effects refer ‘to ingrained habits and related systems in society, which proceed from the majority perspective, and thus do not take into account other perspectives, such as (. . .) the adherent of a minority religion’, see Henrard, ‘Reasonable Accommodation’ 68. 123 See Thlimmenos v Greece [GC]. For an analysis of the relevant (mixed) tendencies see eg Kristin Henrard, ‘Duties of Reasonable Accommodation on Grounds of Religion in the Jurisprudence of the European Court of Human Rights: A Tale of (Baby) Steps Forward and Missed Opportunities’ (2016) 14 I•CON 961, 966f. 124 FA v France, para 8.12. 125 Henrard, ‘(Baby) Steps’ 963. See also Lisa Waddington, ‘Reasonable Accommodation: Time to Extend the Duty to Accommodate beyond Disability?’ (2011) 36 Nederlands Juristen Comite voor de Mensenrechten Bulletin 186, 187ff; see also Bretscher, ‘Immigrants’ 113ff.

Divergence from a new minorities perspective 171 freedom of religion.126 This is also demonstrated by the relevant judgments of the ECtHR, in which such duties were implicitly imposed on states. Thus, in Jakóbski v Poland and Vartic v Romania (No 2) the ECtHR found that the state had violated its positive obligation to provide Buddhist prisoners with vegetarian food.127 In cases which were examined in terms of negative state obligations, no traces of a state duty to accommodate new minorities’ religious beliefs can be found. For example this applies to the already extensively discussed cases of the wearing of religious head coverings on official photographs or during security checks.128 This is by no means a tendency which can only be observed in the context of new minorities, as the ECtHR seems to be generally restrictive with regard to the recognition of duties of reasonable accommodation in the context of religion.129 Also in the realm of the HRC, positive obligations imposing a duty of reasonable accommodation on the state in the context of Article 18 ICCPR are not very developed. In fact, one view adopted with regard to new minorities, namely Bhinder v Canada concerning the wearing of a safety helmet by a Sikh electrician, has for a long time been referred to as an example of the restrictive attitude of the HRC in this regard.130 Yet, it could be argued that, although not explicitly using the concept of duties of reasonable accommodation, the HRC has in fact recognised such duties regarding new minorities’ religious beliefs, even though examining relevant communications in terms of negative state obligations. Thus, the HRC has recognised a state duty to accommodate the wearing of religious headgear in the context of rules prescribing that individuals had to appear bareheaded on official photographs.131 While it is not the purpose of the present research to determine whether duties of reasonable accommodation of religious beliefs should be recognised based on guarantees of equality and non-discrimination or positive or negative state obligations flowing from the right to freedom of religion and belief, it seems important to highlight that in all scenarios, respective duties are by no means absolute, but constrained by considerations of proportionality.132 Consequently, religious beliefs of new minorities do not have to be accommodated in every situation, but only if the non-accommodation would be disproportionate. In this regard, in particular questions of costs, organisational burden as well as possible alternatives have to be taken into consideration.133 Thus, the respondent state in the abovementioned judgment Jakóbski v Poland argued ‘that providing each detainee with special food in accordance with his or her beliefs would have entailed too many 126 Henrard, ‘(Baby) Steps’ 968. 127 Jakóbski v Poland; Vartic v Romania (No 2). 128 El Morsli v France (dec); Mann Singh v France (dec); Phull v France (dec). 129 For a detailed analysis see Henrard, ‘(Baby) Steps’; Henrard, ‘Reasonable Accommodation’. 130 Karnel Singh Bhinder v Canada. See eg Tahzib 299f. 131 Ranjit Singh v France; Shingara Mann Singh v France. 132 See also Henrard, ‘(Baby) Steps’ 962. 133 See eg Myriam Jézéquel, ‘The Reasonable Accommodation Requirement: Potential and Limits’ in Institutional Accommodation and the Citizen: Legal and Political Interaction in a Pluralist Society, Trends in Social Cohesion No 21 (CoE Publishing 2009) 28ff.

172  Divergence from a new minorities perspective difficulties of a technical and financial nature’.134 The ECtHR however found that ‘it was not persuaded that the provision of a vegetarian diet to the applicant would have entailed any disruption to the management of the prison’.135 Yet, this critical scrutiny of the respondent state’s arguments is rather the exception than the rule. In most cases, influenced by a wide margin of appreciation, the ECtHR followed the submission of the state, which naturally pointed towards the unreasonableness of the accommodation measure in question.136 A further central premise of minority protection is the recognition of the need to protect minorities’ identity and thus the absolute prohibition of measures leading to their involuntary assimilation. In the relevant case law of the HRC, such premise is generally clearly visible in the adopted reasoning.137 For instance, the Committee held ‘that for Sikhs males, wearing a keski or turban is not simply a religious symbol, but an essential component of their identity and a mandatory religious precept’.138 Moreover, the HRC de facto protected the applicants against measures which put pressure on them to assimilate to the majority way of life or even forced them to abandon practices that make up their identity (even if only temporarily). As an example, the French law prohibiting the wearing of religious symbols by students in public schools can be mentioned; it confronted the students in question with the decision to either abandon their religious identity and assimilate to the (secular) majority or to face expulsion from public school, which would in turn contribute to their exclusion from society.139 Such heightened awareness of the assimilationist effects of these measures could be linked with the fact that Article 18(2) ICCPR explicitly guarantees to everyone the freedom from coercion impairing the ‘freedom to have or to adopt a religion or belief of his (or her) choice’. Since its first judgment on the merits of Article 9 ECHR, the ECtHR has regularly recalled that freedom of religion is ‘one of the most vital elements that go to make up the identity of believers and their conception of life’.140 Nevertheless, for a long time it has not lived up to such precept. At first, it defined the scope of the right to manifest religious beliefs very restrictively and, based on the so-called Arrowsmith test,141 only included acts ‘forming part of the practice of a religion

134 Jakóbski v Poland para 51. 135 Ibid para 52. See for a detailed analysis of the consideration of relevant arguments in the ECtHR’s case law Henrard, ‘(Baby) Steps’ 968ff. 136 See above Chapter 4, section V(2b). It was also highlighted by Henrard, ‘(Baby) Steps’ 972ff that the existence of consensus plays a decisive role in the ECtHR’s decision whether or not to recognise a state duty for reasonable accommodation. 137 The very first view adopted with regard to new minorities’ religious freedom does not reflect such premise, see Karnel Singh Bhinder v Canada. 138 Bikramjit Singh v France para 8.7. 139 Law no 2004–228; Bikramjit Singh v France. 140 See already Kokkinakis v Greece para 31. 141 Arrowsmith v the United Kingdom para 71. For further details see Evans, Freedom of Religion 115 ff.

Divergence from a new minorities perspective 173 of belief in a generally accepted form’.142 This was criticised for being detrimental to the protection ofless known religious minorities,143 including new minorities, as the example of X v the United Kingdom (1981) shows, where the EComHR found that the attendance of Friday prayers at a mosque did not fall within the scope of Article 9 ECHR.144 Such approach has however changed and today, religious practices of new minorities are generally readily recognised as falling within the scope of Article 9 ECHR.145 This does not necessarily mean that the ECtHR offers an increased level of protection for new minorities’ identity, given that the focus has now shifted from the existence of an interference to the possibility for justification of such interference. In this context, the ECtHR in several cases has failed to acknowledge the threat posed by certain restrictions to the religious identity of new minorities.146 Thus, contrary to the HRC, the Court has not recognised the dilemma with which French students belonging to new minorities are confronted because of the law prohibiting the wearing of religious symbols in public schools.147 Interestingly, this has gone hand in hand with a lack of reference to general principles relating to the importance of religious freedom to the individual in relevant decisions and judgments.148 In more recent cases, the ECtHR has started to acknowledge that certain measures taken by states can put new minorities under pressure of abandoning their religious identity. This is also reflected in the general principles recalled in the relevant judgments, in which the Court has started to include statements emphasising the importance of religious freedom to the identity of certain individuals in line with the one recalled above.149 A good example is the Grand Chamber judgment SAS v France regarding the French law prohibiting the wearing of the burqa in public space.150 The Court admitted that the women concerned are ‘obliged to give up completely an element of their identity that they consider important, together with their chosen manner of manifesting their religion or beliefs’.151 Moreover, it recognised that the women in question are confronted with a complex dilemma, and the ban may have the effect of isolating them and restricting their autonomy, as well as impairing the exercise of their freedom to manifest their beliefs and their right to respect for their

142 Eg Pichon and Sajous v France (dec). For a detailed overview and critique of this earlier practice see Evans, Religious Liberty 304ff. 143 See eg Knights 41ff; Martínez-Torrón, ‘Protection’. 144 X v the United Kingdom (1981). 145 See above Chapter 4, section I. 146 See for a more general perspective Javier Martínez-Torrón, ‘The (Un)protection of Individual Religious Identity in the Strasbourg Case Law’ (2012) 1 OJLR 363. 147 See eg Aktas v France (dec). 148 See above Chapter 4, section V(1). 149 See ibid. 150 SAS v France [GC]. 151 Ibid para 139.

174  Divergence from a new minorities perspective private life. It is also understandable that the women concerned may perceive the ban as a threat to their identity.152 Despite this recognition, the ECtHR subordinated the interest of new minorities in maintaining their identity to the majority’s conception of ‘living together’ and found that the applicant’s right to manifest her religious beliefs was not violated, mainly because the respondent state had to be granted a wide margin of appreciation. By relying on the margin of appreciation concept in such an extensive manner, the ECtHR disregards a further, particularly important element, which can be viewed as the cornerstone of the whole system of international minority protection, namely the recognition of the need for international control in situations of conflicts between the majority and minorities. In this regard, it can be noticed that, as was established in this research, the ECtHR generally does not scrutinise state policies restricting new minorities’ right to manifest their religious beliefs and thus offers them a rather low level of protection.153 Contrary to this, the HRC does not rely on the margin of appreciation in the relevant case law and exercises a meaningful control over state policies restricting new minorities’ right to manifest their religious beliefs. Consequently, it could be argued that the HRC is aware of the disadvantaged position members of new minorities find themselves in and of its duty to ensure the protection of their rights. In sum, it can be held that in recent years, the ECtHR increasingly seems to have recognised the vulnerable position of applicants as members of new minorities, but still often does not follow suit on such recognition by protecting them against state polices restricting their rights. In contrast, the HRC, without explicitly qualifying the authors of the respective communications as minorities, implicitly applied central concepts of the protection system specifically developed for them. Thus, the Committee offers members of new minorities a meaningful level of protection following similar lines as the international minority protection system. This might be influenced by the presence of a minority specific provision in the ICCPR or simply by the ability to take a broader perspective on issues arising in a certain state due to its examination in the context of the state reporting procedure.154 Nevertheless, both the HRC and the ECtHR do not really refer to existing provisions or instruments in the context of minority protection, which is disappointing. This holds particularly true because, as the ECtHR regularly emphasises, any relevant rules of international law must be taken into account when interpreting states’ obligations under the ECHR (or the ICCPR) according to Article 31(3c) VCLT.155

152 Ibid para 146 (emphasis added). 153 See above Chapter 5, section III(2), highlighting also certain important exceptions to this statement. 154 Art 27 ICCPR. See also Berry, ‘Religious Minorities’ 36. 155 This provision states that ‘(a)ny relevant rules of international law applicable in the relations between the parties’ shall be taken into account for the interpretation of treaties. See eg Golder v the United Kingdom 21 February 1975, Series A no 18 (ECtHR).

Divergence from a new minorities perspective 175

IV. Conclusion This chapter aimed at providing a possible explanation for the detected divergence between the HRC’s and the ECtHR’s case law regarding new minorities’ religious freedom. Considering institutional differences that might be of relevance in this regard, it was highlighted that although the mandatory presence of the ‘national’ judge in the ECtHR’s formation, and conversely the absence in the HRC, might have a certain influence on the decision-making, the divergence is very likely rather based on the greater distance to the respondent states as well as the increased religious diversity of the members of the HRC as opposed to the ECtHR. Moreover, the lack of legal bindingness of the HRC’s views does not appear to be the main motivation for the Committee to adopt a more protective stance towards new minorities’ right to manifest their religious beliefs, in particular since the HRC, as the ECtHR, is very aware of its interpretative authority. Instead, the divergence seems rather due to conceptual differences, which become obvious when the two bodies deal with cases in which they expect a certain resistance from states. In certain of these situations, which include the issues raised in the case law regarding new minorities, the ECtHR seems to make use of the concept of the margin of appreciation in order to abstain from exercising its control function. This leads to a very state-centric model of international supervision. Contrary to this, the HRC exercises an individual-centred control, aiming at providing guidance to states in controversial matters, thus offering a more meaningful protection to members of new minorities. Such conceptual difference appears to be linked to a different perception of members of new minorities. In fact, while neither of the two bodies explicitly uses the term ‘minority’ in the relevant case law, the HRC arguably implicitly applies central precepts of the international minority protection system, thus adopting a so-called minority perspective.

7 Mitigating divergence A toolbox

Bielefeldt, the former Special Rapporteur on Freedom of Religion and Belief, has highlighted that there is a real danger of forum shopping by different individuals of a group of people who decide – after losing a domestic lawsuit – to separately submit their matter before different regional and international human rights mechanisms. This may ultimately lead to contradictory decisions in Strasbourg and Geneva.1 As this work has shown, this has already happened in the context of new minorities, particularly in three ‘twin’ cases against France, considering the wearing of religious headgear in public schools, the wearing of the turban on official photographs and the wearing of the full-face veil in public space. In all cases, the ECtHR first declared the complaint inadmissible or found no violation of Article 9 ECHR and the HRC subsequently found a violation of Article 18 ICCPR.2 France explicitly addressed the issue of ‘forum shopping’ in its submissions to the HRC in the cases concerned: The choice of addressing the Committee instead of the ECtHR, although the author had only raised claims based on a violation of Article 9 and 14 ECHR in front of national instances, is in the present case motivated with the desire to obtain a different solution by the Committee than the one adopted by the ECtHR.3 Considering that in one of the ‘twin’ cases, which were brought both to the ECtHR and the HRC, the applicants were represented by the same lawyer, it appears indeed likely that this scenario forms part of a litigation strategy.4 1 Bielefeldt, Ghanea and Wiener 213. 2 See concerning the wearing of religious symbols in public schools Bikramjit Singh v France, Jasvir Singh v France (dec) and Ranjit Singh v France (dec); concerning the wearing of the turban on official photographs see Mann Singh v France (dec) and Ranjit Singh v France; concerning the wearing of the full-face veil SAS v France, Sonia Yaker v France and Miriana Hebbadj v France. 3 Shingara Mann Singh v France para 4.3 (translation by the author). See also Bikramjit Singh v France para 4.1. 4 Bikramjit Singh v France; Jasvir Singh v France (dec); Ranjit Singh v France (dec). See also Bribosia, Caceres and Rorive 502.

Mitigating divergence: a toolbox 177 Yet, since both the HRC and the ECtHR possess interpretative authority over very similar provisions in different instruments, so-called multi-sourced equivalent norms, such ‘competition’ between the ECtHR and the HRC appears unavoidable anyhow.5 Consequently, this work contends that the detected divergence should not be seen as a danger for the coherence of international human rights law, but instead a more positive perspective seems warranted, which regards interactions between different judicial bodies as crucial, since they can lead to the further development of international law.6 Based on this pluralist perspective, this work does not see (momentary) divergence as a sign for the fragmentation of international human rights law, which should be avoided at any price, but rather as a sometimes necessary step on the way towards achieving the aim of securing the effective protection of everyone’s human rights. Thus, the term ‘mitigating’ used in the title of this chapter shall by no means be understood to suggest that the ECtHR and the HRC need to agree on every aspect or that the HRC would need to level down its protection when the ECtHR has previously opted for a more restrictive interpretation and application of a human right.7 Instead, the following elaborations are based on the premise that human rights bodies need to be able to make conscious attempts ‘to break new grounds and to dissociate themselves from approaches taken by other human rights bodies, which they deem to be too conservative or too progressive in nature’.8 Nevertheless, this does not change the fact that, in order to ultimately contribute to the further development of international human rights protection, both the ECtHR and the HRC should strive to base their decisions, judgments and views on sound and persuasive judicial reasoning, taking into account several crucial issues. In the following, four tools that could be essential to achieving the aim to support both bodies in working towards this goal will be suggested. It should be noted that, while the case law regarding new minorities’ religious freedom serves as the basis for the following elaborations, some of the tools are also of more general importance in mitigating divergence in international human rights law.

I. General remarks Before making concrete suggestions on how the divergence between the HRC’s and the ECtHR’s case law regarding new minorities’ right to manifest their religious beliefs could be mitigated, some remarks on the style of reasoning of the two bodies seem warranted. The general structure of the HRC’s and the ECtHR’s decisions, judgments and views is very similar. Thus, both bodies start out with a

5 See also above Chapter 1, section I(3). 6 See also Separate Opinion of Judge Cançado Trindade in the Case Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Merits, Judgment, ICJ Report 2010, 729 (ICJ) para 240. 7 See also Tulkens and Van Drooghenbroeck 753f. See for a different opinion McGoldrick, ‘Margin of Appreciation’ 59. 8 Shany, ‘Fragmentation’ 10.

178  Mitigating divergence: a toolbox description of the facts of the case, but the Committee only presents the facts as submitted by the author of the complaint,9 whereas the ECtHR summarises the facts as submitted by all parties to the procedure.10 This summary also includes lengthy extracts from the decisions of national instances and is generally longer than the description given in the HRC’s views. Moreover, the ECtHR’s decisions and judgments usually comprise a section presenting the relevant domestic law and practice or even a section on comparative law,11 which is not placed at such centre stage in the views of the HRC. Such extensive reference to domestic law and practice as well as comparative law is thus a characteristic of the ECtHR’s judgments and is generally also present in decisions on the admissibility.12 The HRC grants extensive room to the arguments brought forward by the applicant by presenting the submitted complaint in a separate section.13 Subsequently, the state party’s arguments on the admissibility as well as on the merits and the author’s response to those arguments are presented before the Committee starts with its examination. The ECtHR only summarises the applicant’s complaint as well as the government’s response very superficially before starting with the examination of the admissibility.14 This however does not mean that the arguments of the parties are ignored, but they are either presented in a separate section before the examination of the merits of the case,15 before the examination of a concrete issue, such as the condition of proportionality,16 or as part of the reasoning of the Court.17 The last approach entails the least detailed presentation of the parties’ arguments and is adopted in particular for inadmissibility decisions. The two latter approaches bear a certain risk of confusion because parties often do not clearly distinguish between the various issues, which form part of the examination of the ECtHR. This holds especially true for the distinction between the examination of the conditions of legitimacy and proportionality, where arguments in favour of or against the fulfilment of one requirement are often very interconnected.18 Moreover, embedding the arguments adduced by the parties in the reasoning conveys the impression that the Court might be picking and choosing the arguments supporting its reasoning. The assessment of the condition of proportionality usually represents the focus point of both bodies’ examinations, which however does not mean that in

9 See eg Ranjit Singh v France paras 2.1f. 10 See eg Dahlab v Switzerland (dec). 11 See eg Ebrahimian v France paras 21ff. 12 See eg Gamaleddyn v France (dec). 13 See eg Bikramjit Singh v France paras 3.1ff. 14 See eg Jakóbski v Poland paras 27f. 15 See eg Ebrahimian v France paras 36ff. 16 See eg Osmanog˘lu and Kocabas¸ v Switzerland paras 66ff. 17 See eg Dahlab v Switzerland (dec). 18 This is exemplified in the case Osmanog˘lu and Kocabas¸ v Switzerland paras 56ff, where the applicants, differently than the Court usually does, extensively addressed the condition of legitimacy, but only brought very little argumentation concerning the condition of proportionality.

Mitigating divergence: a toolbox 179 certain cases other problematic issues are not given further attention. Although the emphasis lies on the assessment of the condition of proportionality in the reasoning adopted by both bodies, the overall length of the examination of the case (excluding the facts and the parties’ submissions) differs significantly. Thus, even the rather short reasoning in the inadmissibility decisions of the ECtHR amounts to approximately 1500 words,19 whereas the HRC, in an average view, dedicates approximately half of this amount to the consideration of the merits.20 This stands in stark contrast to the very long elaborations of the ECtHR in judgments such as SAS v France, which amounted to over 30000 words.21 This difference can be observed throughout the case law of the ECtHR and the HRC and the Committee has been called upon to include a more fully developed reasoning in its views.22 Thus, Buergenthal, a former member of the HRC and judge of the ICJ, argued that the Committee must take special care that its decisions interpreting and applying the Covenant and Optional Protocol are perceived as culturally neutral and legally beyond reproach. To satisfy this requirement the Committee may have to spell out in greater details the legal reasons justifying its decisions.23 While the reasoning of the ECtHR is seemingly more prone to meet this standard, given that ‘(t)he detail, length, and often used dissent process for European judges gives an apparent vestige of more substantial legal analysis and deeper scrutiny’, it has been highlighted that ‘(t)his looking-glass can be misleading’.24 Thus, as has been elaborated above, the reasoning of the ECtHR is often highly influenced by the margin of appreciation, which in effect leads to a rather low level of scrutiny in most cases regarding new minorities’ right to manifest their religious beliefs.25 What seems far more decisive than the length of judicial elaborations is consequently the style of such reasoning, given that, as Bianchi stated, ‘(t)he persuasive character of a judgment often depends on its drafter’s capacity to lay down the argument according to rhetorical tools and techniques’.26 There are different ways to assess the reasoning style adopted by a (quasi-) judicial body in a specific decision. As was already highlighted in the analysis of the HRC’s case law, the distinction between minimal and concrete justification of judicial decisions, developed by Wróblewski, appears of particular relevance.27 It shall thus be briefly recalled that based on this distinction, minimal justification is limited to normative and factual elements, whereas concrete justification 19 See eg Jasvir Singh v France (dec). 20 See eg Ranjit Singh v France paras 8.1ff. 21 SAS v France [GC] paras 106ff. 22 See eg Ní Aoláin 140; Ulfstein 106. 23 Buergenthal 395. 24 Ní Aoláin 140. 25 See above Chapter 5, section III(2). 26 Bianchi, ‘Adjudication’ 3. 27 See above Chapter 4, section VI.

180  Mitigating divergence: a toolbox furnishes supplementary reasons for the decision taken. The latter can include, among others, references to previous judicial decisions of the body in question, thus contributing to the rationality of the reasoning as well as the consistency and coherence of the case law.28 Moreover, references to decisions of other relevant judicial bodies can be adduced as supplementary reasons; these are particularly important to tackle issues of divergence between different legal orders and establish a so-called judicial dialogue.29 Overall, the increased rationality brought to the reasoning by concrete justification can significantly influence the perception of the legitimacy and authority of a (quasi-)judicial body.30 The choice of a certain style of reasoning is interconnected with the audience the body aims at convincing of the legitimacy and authority of its decisions.31 Thus, the arguments evoked, no matter whether they are based on normative and factual elements or supplementary reasons, are often tailored to the audience,32 which has been defined by Perelman and Olbrechts-Tyteca as ‘the ensemble of those whom the speaker wishes to influence by his argumentation’.33 The question arises however, how big the circle of those whom the (quasi-)judicial body wishes to influence is. In the case of an international human rights body, starting from the parties to the procedure, namely the applicant and the respondent state, this can also include other member states of the convention in question or the international community of states as a whole. Moreover, individuals not directly concerned by the case, such as scholars or members of the broader public, can be regarded as part of the audience.34 Last, but not least, other international bodies could be included in the audience for a specific decision, eg the HRC for the ECtHR and the other way around. Ideally, a judicial decision should thus persuade all different parts of its audience, which is what the four tools suggested in the following strive to contribute to.

II. Reasoning based on precedents The first proposed tool is the inclusion of references to previous practice in the reasoning. Taking a look first at the case law of the HRC regarding new minorities’ right to manifest their religious beliefs, it emerges that the relevant views make use of only a minimal justification, exclusively focusing the reasoning on the normative and factual elements of the specific case.35 Contrary to this, the ECtHR adopts a more concrete justification, adducing also supplementary 28 Wróblewski 232ff. See also Moral Soriano 97. 29 Mireille Delmas-Marty, Les Forces Imaginantes du Droit (II) 46ff. 30 See Moral Soriano 96ff, referring to the theory developed by Chaïm Perelman and Lucie Olbrechts-Tyteca, Traité de l’Argumentation: La Nouvelle Rhétorique (3rd edn, Editions de l’Université de Bruxelles 1976) 19ff. 31 See eg Bianchi, ‘Adjudication’ 10f; Perelman and Olbrechts-Tyteca 22ff. 32 Bianchi, ‘Adjudication’ 11. 33 Perelman and Olbrechts-Tyteca 20. 34 See from a different perspective Bianchi, ‘Adjudication’ 11. 35 See also above Chapter 4, section VI.

Mitigating divergence: a toolbox 181 reasons for (not) finding a violation. Thus, although the EComHR generally did not refer to relevant previous case law at all in its decisions concerning new minorities,36 the ECtHR, from 2001 onwards, started including references to precedents.37 This has been constantly expanded and in its only Grand Chamber judgment, the Court even added a separate section in the judgment giving an overview of the relevant case law.38 Such reference to previous decisions and judgments is important to guarantee the consistent interpretation and application of the relevant provisions. The reliance on precedents may increase the persuasiveness of a decision for all potential members of the audience, given that it may alleviate the ‘potential to claim that a decision was whimsical or motivated by non-legal considerations’.39 Consequently, the HRC is missing out on an important tool of judicial reasoning and argumentation, given that it omits any reference to its previous views, also if it already dealt with cases which were based on very similar facts.40 Nevertheless, it is important to mention that the HRC is generally persistent in its case law, despite a lack of reference to previous views.41 References to precedents however do not increase the credibility and persuasiveness of judicial reasoning in all cases, but only if the reasoning manages to avoid following a selective approach. Thus, if important precedents are not referred to because they would not support the conclusion reached by the (quasi-)judicial body, this is problematic. Instead, the (quasi-)judicial body is called upon to provide a sound explanation why the facts of a specific case are to be distinguished from a previous judgment or why a certain precedent is not followed or overruled.42 As an example the ECtHR’s distinction of the case SAS v France, concerning the prohibition of the wearing of the burqa in a public space, from the judgment Ahmet Arslan and Others v Turkey, regarding the arrest of members of a religious group for walking around in public space wearing distinctive religious dress, can be mentioned.43 Although finding that ‘among all (. . .) cases concerning Article 9, Ahmet Arslan and Others is the one which the present case (ie SAS v France) most closely resembles’, the Grand Chamber held that the two cases 36 See eg X v the United Kingdom (1983). 37 See Dahlab v Switzerland (dec). This argumentative use of previous decisions needs to be clearly distinguished from any discussion of the binding force of legal precedents, which is not addressed here, see Moral Soriano 93f. 38 See SAS v France [GC] paras 132ff. This general development is also confirmed by Yonatan Lupu and Erik Voeten, ‘Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights’ (2011) 42 BJPolS 413, 425ff. 39 Lupu and Voeten 419. See also Luzius Wildhaber, ‘Precedent in the European Court of Human Rights’ in Paul Mahoney and others (eds), Protection des Droits de l’Homme: La Perspective Européenne / Protecting Human Rights: The European Perspective: Mélanges à la Mémoire de/Studies in Memory of Rolv Ryssdal (Heymann 2000) 1529. 40 See above Chapter 4, section VI. 41 See eg Ghandhi 319ff, discussing several examples. 42 See eg Wildhaber, ‘Precedent’ 1531ff. 43 SAS v France [GC] paras 135f; Ahmet Arslan and Others v Turkey.

182  Mitigating divergence: a toolbox differ ‘in the fact that the full-face Islamic veil has the particularity of entirely concealing the face, with the possible exception of the eyes’.44 It appears however questionable whether this brief explanation is sufficient, in particular when considering that the Grand Chamber ultimately deviated from the approach taken in Ahmet Arslan and Others v Turkey, finding that the burqa ban did not amount to a violation of Article 9 ECHR.45 In fact, many commentators had expected that, based on the line of jurisprudence established by Ahmet Arslan and Others v Turkey, the ECtHR would find that the general ban of the wearing of the burqa violates the ECHR.46 This shows that the persuasiveness of a reasoning based on precedents depends on the transparency in the use of such precedents and is by no means axiomatic. Additionally, it should be noted that the reasoning based on precedents, if followed too strictly, might end up preventing the progressive development of human rights protection because previously adopted approaches should in principle be continued – a fact that was also stressed by Wildhaber, a former president of the ECtHR, who specified that ‘there is nothing mechanical in the doctrine of precedent’.47 The ECtHR itself has stated that this doctrine ‘would not prevent the Court from departing from an earlier decision if it was persuaded that there were cogent reasons for doing so’.48 For example if such departure was ‘warranted in order to ensure that the interpretation of the Convention reflects societal changes and remains in line with present-day conditions’.49 Consequently, it is important to underline that the precept of ensuring consistent interpretation and application of human rights provisions does not prevent a body from contributing to the further development of human rights protection by opting for a more progressive approach (and specifying the reasons for doing so).

III. Reasoning based on states’ margin of appreciation As was repeatedly highlighted, in cases regarding new minorities’ right to freedom of religion and belief the ECtHR, in contrast to the HRC, includes considerations related to the concept of the margin of appreciation in its reasoning, which can be regarded as representing concrete justification, going beyond mere

44 SAS v France [GC] para 136. 45 See also Myriam Hunter-Henin, ‘Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS’ (2015) 4 OJLR 94, 108f. 46 See eg Jennifer Heider, ‘Unveiling the Truth Behind the French Burqa Ban: The Unwarranted Restriction of the Right to Freedom of Religion and the European Court of Human Rights’ (2012) 22 Indiana International & Comparative Law Review 93, 116; Lina Ragep Powell, ‘The Constitutionality of France’s Ban on the Burqa in Light of the European Convention’s Arslan v. Turkey Decision on Religious Freedom’ (2013) 31 Wisconsin International Law Journal 118. A similar point could be made with regard to the judgments Ebrahimian v France and Eweida and Others v the United Kingdom. 47 Wildhaber, ‘Precedent’ 1530. 48 Cossey v the United Kingdom App no 10843/84, 27 September 1990, Series A no 184 (ECtHR) para 35. 49 Ibid.

Mitigating divergence: a toolbox 183 factual and normative arguments.50 Moreover, sometimes the Court refers to national legislation or jurisprudence,51 which is often connected to determining the existence of a consensus that in turn would narrow the states’ margin of appreciation. The inclusion of such reasoning in a judgment or decision is quite clearly directed towards persuading the respondent state as well as other member states of the legitimacy and authority of the Court.52 On the one hand, it can convey the message to states that the Court respects their sovereignty as well as the democratic legitimacy of their actions and allows for a certain diversity in approaches.53 On the other hand, as was already stressed above, the ECtHR’s use of such reasoning in the case law regarding new minorities’ religious freedom is deeply problematic and should be reconsidered.54 Nevertheless, giving due regard to the underlying considerations of the concept of the margin of appreciation can be crucial in securing the continuous support of states, which is a prerequisite for the effectiveness of international human rights protection.55 Given the struggles encountered by the HRC with the implementation of the views adopted in the individual complaints procedure, it might be warranted for it to dedicate more efforts towards convincing states that it is aware of their concerns. Thus, for example in Ranjit Singh v France, which dealt with the wearing of the turban on official photographs, the HRC simply held that ‘it recognizes the State party’s need to ensure and verify, for the purposes of public safety and order, that the person appearing in the photograph on a residence permit is in fact the rightful holder of that document’.56 In addition to such statement, the Committee could, for instance, also have highlighted that it was aware that states should be granted a certain discretion in this regard. In doing so, the Committee would have demonstrated that states’ concerns were taken into consideration, in particular as the respondent state had explicitly mentioned such concerns in its submissions.57 This however by no means entails that the HRC should lower its scrutiny of the arguments brought forward by the state or abstain from finding violations of Article 18 ICCPR. In particular, this shall not be understood as a call upon the Committee to follow the ECtHR’s example and start making extensive use of the concept of margin of appreciation at the expense of the protection of the rights of new minorities.58 Rather, the aim of adopting a reasoning more prone to persuade states of the authority and legitimacy of the HRC’s views

50 See for a similar argument but using different terminology Legg 17ff. 51 See eg Ebrahimian v France paras 32f and 65. 52 See also the elaborations regarding the reasons for granting states a margin of appreciation above Chapter 6, section II(2). 53 See for a detailed examination of reasons of international human rights bodies to adopt such approach to judicial reasoning Legg 69ff. 54 See above Chapter 6, section II(1). 55 See above Chapter 6, section II(2). 56 Ranjit Singh v France para 8.4. 57 See ibid para 5.2. 58 The problematic use of the concept of the margin of appreciation has already been extensively addressed above Chapter 6, section II.

184  Mitigating divergence: a toolbox can also be achieved without explicitly recognising the concept of the margin of appreciation,59 but by simply giving more room to a structured reasoning going beyond minimal justification including also arguments based on other than factual and normative elements. Thus, considerations related to the concept of margin of appreciation can be included as second-order reasons, which have to be weighted as factors alongside other first- and second-order reasons and do not preclude their consideration altogether, as this is often the case in the ECtHR’s jurisprudence regarding new minorities’ right to manifest their religious beliefs. The inclusion of such concerns can be seen as particularly important in cases where the adopted decision confronts states with contradicting approaches by international human rights bodies, given that the HRC should convince states (as well as other relevant actors) to follow its view, although it is more protective and thus potentially more invasive in state sovereignty. Such an endeavour appears however challenging when no reference is made to the case law of other international human rights bodies regarding similar matters, a tool which will be examined in further detail in the following.

IV. References to case law of other international bodies References to pertinent case law of other judicial bodies can be seen as an important tool to increase the persuasiveness of the reasoning of a judicial decision.60 This holds particularly true when the adopted decision contradicts the position taken by other bodies. Nevertheless, in the three instances in which the HRC opted for an approach diverging from the one previously adopted by the ECtHR, no reference to the ECtHR’s decisions was made. In this regard, the views Shingara Mann Singh v France and Ranjit Singh v France, adopted in 2013 and 2011, can be mentioned.61 The Committee found that requiring Sikh men to appear bareheaded on the photo for their passport or residence permit violated their right to manifest their religious beliefs. In its views, the HRC did not mention the ECtHR’s decision Mann Singh v France from 2008, which found a complaint alleging that the requirement to appear bareheaded on the photo for the driving licence violated Article 9 ECHR manifestly ill-founded and thus inadmissible.62 This is particularly conspicuous given that both France and the authors of the communications had recalled the ECtHR’s decision in their submissions.63 For example in Ranjit Singh v France, the respondent state gave an extensive account of the ECtHR’s case law on comparable issues, going beyond the directly contradicting decision.64 This exemplifies that both parties to the procedure consider it necessary for an international human rights body to situate its decisions in the landscape of existing practice. Such call was however not followed by the HRC. 59 See for a different opinion McGoldrick, ‘Margin of Appreciation’. 60 For further details see Cheeseman 614f. 61 Ranjit Singh v France; Shingara Mann Singh v France. 62 Mann Singh v France (dec). 63 See in particular Ranjit Singh v France paras 4.2 and 6.6; Shingara Mann Singh v France paras 2.6 and 6.3f. See also Bikramjit Singh v France paras 5.5 and 6.5. 64 Ranjit Singh v France paras 5.1ff.

Mitigating divergence: a toolbox 185 The ECtHR is not particularly keen to refer to relevant views or other practice of the HRC either. Looking at another set of conflicting decisions, which relate to the law prohibiting the wearing of ostentatious religious symbols in public schools, the first impression is that again the HRC disregarded previously taken decisions of the ECtHR. The ECtHR found relevant complaints brought by members of new minorities alleging a violation of Article 9 ECHR manifestly ill-founded and therefore inadmissible in June 2009.65 The HRC adopted the view in question three years later, in 2012, without referring to the ECtHR’s case law.66 Yet, in the context of the state reporting procedure under the ICCPR, the HRC had already noted in 2008 ‘that respect for a public culture of laïcité would not seem to require forbidding wearing such common religious symbols’ and that France should thus ‘re-examine Act No. 2004/228 of 15 March 2004 in light of the guarantees of article 18 of the Covenant concerning freedom of conscience and religion, including the right to manifest one’s religion in public as well as private’.67 The ECtHR did not mention this in its relevant decisions.68 Moreover, already in 2004, the HRC had held in the context of the individual complaints procedure that the expulsion of a student from university for wearing a headscarf violated Article 18 ICCPR.69 Reference to this view was however omitted by the ECtHR, not only in the cases concerning the French law, but also in the leading case on this issue Leyla S¸ahin v Turkey, although a whole section of the Grand Chamber judgment was dedicated to comparative law.70 Such avoidance of references to contradicting practice is not surprising considering that references to case law of other judicial bodies are commonly used for persuasion and influence.71 In fact, empirical studies of this phenomenon have found that such references are most commonly used as a means to support the understanding of the law as it is put forward in the decision in question and to signal to the audience that the ‘legal reasoning is shared by others and thus is not arbitrary’.72 Consequently, judicial bodies are more likely to refer to practice of other bodies in a positive rather than in a negative way. This means that only rarely references are made in order to distinguish or disagree.73 Such finding is illustrated by the case law regarding conscientious objection to military service:74 While at first both the HRC and the EComHR did not

65 See eg Aktas v France (dec); Jasvir Singh v France (dec). 66 Bikramjit Singh v France. 67 HRC, CO 4th Report France para 23. See also Tulkens and Van Drooghenbroeck 743f. 68 It should be noted that the submissions of the applicant and the respondent state are not included in the decisions. 69 Hudoyberganova v Uzbekistan. 70 Leyla S¸ahin v Turkey [GC] paras 55ff. See also Scheinin, ‘Headscarf’. 71 See eg Cheeseman 614f. 72 See eg Erik Voeten, ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 The Journal of Legal Studies 547, 553. 73 See Nathan Miller, ‘An International Jurisprudence? The Operation of “Precedent” Across International Tribunals’ (2002) 15 LJIL 483, 490. 74 Another example is the case law regarding religious instruction in Norwegian schools: Folgerø and Others v Norway [GC] App no 15472/02, ECHR 2007-III (ECtHR); Leirvåg

186  Mitigating divergence: a toolbox recognise a right to conscientious objection to military service,75 the Committee reversed its position first in an obiter dictum in a view in the framework of the individual complaint procedure in 1991, and then, more clearly, in its General Comment No 22 in 1993.76 In 2006 this was confirmed in a view adopted in the context of the individual complaints procedure.77 Three years later, the ECtHR followed suit and overturned its long-standing settled case law.78 Strikingly, in its judgment, it specifically mentioned the practice of the HRC stating that ‘in defining the meaning of terms and notions in the text of the Convention, the Court can and must take into account elements of international law other than the Convention and the interpretation of such elements by competent organs’.79 Previous judgments not explicitly recognising a right to conscientious objection however did not mention the relevant practice of the HRC.80 Nevertheless, it must be acknowledged that the absence of an explicit reference does not necessarily indicate the absence of influence. In this sense, Voeten has highlighted that ‘(c)itations are not necessarily decisive in judgments. Thus, a study of external citations may exaggerate external influence. A study of citations may also underestimate transnational influence if courts have reasons to conceal such influences’.81 In the context of the HRC, it has been argued that the Committee’s case law was extensively influenced by the ECtHR’s jurisprudence, although explicit reference was avoided.82 The reasons for this can be manifold. According to Neuman, a former member of the HRC, reference can be omitted based on ‘the belief that identifying the source would not add significantly to the persuasiveness of the opinion’.83 Moreover, such choice could be motivated by ‘concern that the legitimacy of (a) (. . .) decision would be lessened for a relevant audience by the mention of the source’.84 Another potential reason, which is only pertinent for the HRC, is that the Committee might wish ‘to forge a corpus et al v Norway UN Doc CCPR/C/82/D/1155/2003, 23 November 2004 (HRC). See also McGoldrick, ‘Margin of Appreciation’ 45. 75 See eg Grandrath v Germany (dec) App no 2299/64, Commission decision of 12 December 1966, Decisions and Reports 31 (EComHR); Muhonen v Finland UN Doc A/40/40, 8 April 1985 (HRC). 76 JP v Canada para 4.2; HRC, GC 22 para 11. 77 Yeo-Bum Yoon and Myung-Jin Choi v Republic of Korea. 78 See Bayatyan v Armenia [GC]. 79 Ibid paras 102ff. 80 Eg Tsirlis and Kouloumpas v Greece 29 May 1997, Reports of Judgments and Decisions 1997-III (ECtHR). 81 Voeten, ‘Borrowing’ 550. 82 See eg Antoine Buyse, ‘Tacit Citing: The Scarcity of Judicial Dialogue Between the Global and the Regional Human Rights Mechanisms in Freedom of Expression Cases’ in Tarlach McGonagle and Yvonne Donders (eds), The United Nations and Freedom of Expression and Information: Critical Perspectives (CUP 2015) 443ff; Helfer and Slaughter 377; Anne-Marie Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99, 106. 83 Gerald L Neuman, ‘The External Reception of Inter-American Human Rights Law’ (2011) Special Edition Quebec Journal of International Law 99, 101. 84 Ibid.

Mitigating divergence: a toolbox 187 of truly universal human rights law or (. . .) (be) afraid to open the door to arguments based on relativity of one kind or another’.85 There are however convincing reasons why reference to the practice of other bodies is crucial, both in cases of agreement as well as disagreement.86 First and foremost, such references are very likely to improve judicial reasoning, in the sense that a look beyond the confines of their own case law ‘provides a broader range of ideas and experience that makes for better, more reflective opinions’.87 This holds true in particular when the judicial decision, to which reference is made, does not reach the same conclusion as the judges of the (quasi-)judicial body in question. Following this line of reasoning, Helfer and Slaughter, in the context of the HRC’s (lacking) references to the ECtHR’s case law, have argued that (t)he quality of the Committee’s legal reasoning would also benefit from the Committee’s acknowledging of prior relevant European precedents and with the question of whether to follow or distinguish them. In doing so, the Committee is likely to engage in more rigorous theoretical and conceptual analysis to determine the contours of Covenant rights and freedoms and how they interact with the civil and political liberties protected by overlapping regional and universal human rights regimes. Open dialogue also helps to expose the weaknesses and the strengths of opposing positions and the competing values that undergird them. Finally, dialogue encourages the Committee to participate in a global community of actors in a nominally apolitical process, thereby helping to insulate its rulings from overtly political influences.88 The same arguments can be adduced with regard to the ECtHR’s case law. Consequently, the discussion of judicial decisions of other bodies should be seen as a chance to increase the persuasiveness of the reasoning, and not as a potential reason to question the (quasi-)judicial body’s authority. Based on such approach, in the instances in which both the HRC and the ECtHR departed from the other’s line in their case law regarding new minorities’ right to manifest their religious beliefs, a detailed explanation why their approach was to be preferred would have been warranted. This would have significantly increased the persuasiveness of each body’s reasoning. In fact, it has been argued that one of the reasons why judges start engaging with the practice of other judicial bodies

85 Alex Conte and Richard Burchill, ‘Introduction’ in Alex Conte and Richard Burchill (eds), Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2nd edn, Ashgate 2009) 16. See also Neuman 111. 86 Pertinent points have also been made which speak against the use of external references, see for an overview of relevant literature Cheeseman 615ff. 87 Anne-Marie Slaughter, ‘A Global Community of Courts’ (2003) 44 HILJ 191, 201. See also Voeten, ‘Borrowing’ 550. 88 Helfer and Slaughter 375.

188  Mitigating divergence: a toolbox is to increase their own influence.89 Thus, ‘judges around the world are engaging in self-conscious conversation’, which is allegedly based on an ‘awareness of constitutional cross-fertilization on a global scale – an awareness of who is citing whom among judges themselves and a concomitant pride in a cosmopolitan judicial outlook – (which) creates an incentive to be both lender and borrower’.90 Regardless of the reasons for resorting to discussions of case law of other bodies, this might ultimately contribute to a harmonisation or convergence in international human rights jurisprudence. Consequently, it could be argued that, like in many disagreements, divergent application and interpretation of international human rights norms can be settled through continuous exchange of well-reasoned arguments. Indeed, human rights jurisprudence is rarely about ‘laying down a discovered truth or interpreting higher law’, but rather about ‘struggling through a series of conflicting principles which need to be resolved in conversation’.91 Confronted with such reality, Slaughter has contended that there is an increasing (r)ecognition of a global set of human rights issues to be resolved by courts around the world in colloquy with one another. Such recognition flows from the ideology of universal human rights embedded in the U.N. Universal Declaration of Human Rights. The premise of universalism, however, does not anoint any one tribunal with universal authority to interpret and apply these rights. Collective judicial deliberation, through awareness, acknowledgment, and use of decisions rendered by fellow human rights tribunals, frames a universal process of judicial deliberation and decision.92 In the specific context of new minorities, such a premise calls for broadening the perspective further in order to include relevant practice in the area of minority protection, as will be shown in the next section.

V. Systemic interpretation of state duties vis à vis minorities The principle of systemic interpretation is enshrined in Article 31(3c) VCLT, which states that ‘any relevant rules of international law applicable in the relations between the parties’ shall be taken into account in the interpretation of a specific provision. This principle is of crucial importance for ensuring coherence in international law and has even been found to have ‘the status of a constitutional norm within the international legal system’.93 Based on this principle, the

89 See eg Voeten, ‘Borrowing’ 551. 90 Anne-Marie Slaughter, A New World Order (Princeton UP 2004) 74f. 91 Christopher McCrudden, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford Journal of Legal Studies 499, 528. 92 Slaughter, ‘Typology’ 121f. See also McCrudden 528f. 93 McLachlan 280. See also above Chapter 1, section I(2). For a more critical perspective see Adamantia Rachovitsa, ‘The Principle of Systemic Integration in Human Rights Law’ (2017) 66 ICLQ 557.

Mitigating divergence: a toolbox 189 ECtHR recognised that ‘(t)he consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases’.94 It even developed specific guidelines holding that relevant international instruments should be taken into account when they denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies.95 Contrary to this, the HRC has not developed any comparable standards.96 This however does not mean that the Committee does not respect the principle of systemic interpretation. In fact, it has repeatedly referred to other international instruments in order to determine the ‘ordinary meaning’ of a certain provision and thus support its assessment of its scope.97 A good example is its case law regarding enforced disappearances, where it continuously mentioned the criminality of this practice in the Rome Statute to the International Criminal Court (Rome Statute) and the Declaration on the Protection of All Persons against Enforced Disappearances (today there is an International Convention on this matter).98 In the context of minorities, such interpretation based on systemic integration does not only entail giving due regard to other applicable human rights instruments, but also considering so-called minority protection instruments. As was already mentioned, several international instruments have been developed in order to protect minorities’ rights in the framework of the CoE and the UN.99 This includes for example the FCNM or the UN Minority Rights Declaration. For several years, an ‘emerging synergy towards heightened minority protection which emanates from both general human rights and minority-specific instruments’ could arguably be observed.100 Yet, surprisingly, in the relevant case law regarding new minorities, neither the ECtHR nor the HRC apply the principle of systemic interpretation by referring to relevant minority protection instruments

94 See eg Demir and Baykara v Turkey [GC] App no 34503/97, ECHR 2008 (ECtHR) para 85. See already Golder v the United Kingdom. 95 Demir and Baykara v Turkey [GC] para 86. See also Schlütter 299. 96 Schlütter 299. 97 See eg SWM Brooks v The Netherlands UN Doc CCPR/C/29/D/172/1984, 9 April 1987 (HRC) para 12.3. 98 See eg Zohra Madoui v Algeria UN Doc CCPR/C/94/D/1495/2006, 1 December 2008 (HRC) para 7.7. See also Schlütter 300f. 99 See above Chapter 6, section III(1). 100 Kristin Henrard, ‘Ever-Increasing Synergy towards a Stronger Level of Minority Protection between Minority-Specific and Non-Minority-Specific Instruments’ (2003/4) 3 EYMI 15, 15. See eg the explicit reference to the FCNM in Chapman v the United Kingdom [GC] App no 27238/95, ECHR 2001-I (ECtHR) paras 93ff. See also DH and Others v the Czech Republic [GC].

190  Mitigating divergence: a toolbox or even referring to the applicants as members of a minority. Nevertheless, the mentioned synergy does not only manifest in explicit discussions of instruments drafted for the protection of minorities, but also more implicitly.101 Thus, the question arises, what consequences would it have on the line of jurisprudence developed in the context of new minorities’ right to manifest their religious beliefs, if the ECtHR and the HRC applied the principle of systemic interpretation, either explicitly or implicitly? Certain general guidelines can be extracted from the relevant practice of minority specific bodies in order to determine when the protection provided to new minorities by the ECtHR and the HRC can be regarded as adequate pursuant to the relevant instruments. Based on the basic premises of international minority protection, which were established above,102 it can be argued that this essentially ‘depends on the extent to which their religious identity is accommodated and substantive or real equality is furthered’.103 Moreover, it can be contended that tolerance, dialogue and compromise are crucial elements of minority rights protection.104 Taking a closer look at the interpretation and application of relevant provisions by the supervisory bodies of these minority specific instruments, it appears surprising that for a long time issues regarding new minorities’ religious freedom, although being a central and controversial item on the agenda of many states, have barely been addressed.105 In recent years, in particular new Muslim minorities have however increasingly featured in the relevant practice of these supervisory bodies.106 Thus, the ACFC has started to regularly highlight the rising ‘anti-Muslim sentiment’107 and called ‘upon the authorities to take more resolute measures to encourage a spirit of tolerance and intercultural dialogue in society and to combat discrimination and stigmatisation towards all groups’.108 Moreover, it has asked authorities ‘to take effective measures to promote mutual respect and understanding’.109 It has also addressed issues concerning the recognition of new Muslim minorities as minorities, for example in Switzerland or the United Kingdom.110

101 Henrard, ‘Synergy’ 15. 102 See above Chapter 6, section III(1). 103 Henrard, ‘Religious Minorities’ 8. See also Henrard, System of Minority Protection 11ff. 104 Berry, ‘Religious Minorities’ 35. 105 See also Henrard, ‘Religious Minorities’ 43; Henrard, Ambiguous Relationship 82. See however ACFC, Second Opinion on the United Kingdom (ACFC/OP/II(2007)003, 2007) paras 158ff. Two countries in which issues surrounding new minorities’ religious freedom seem to arise particularly often, namely France and Belgium, have not ratified the FCNM. 106 See also Stephanie Berry, ‘Democracy and the Preservation of Minority Identity: Fragmentation Within the European Human Rights Framework’ (2017) 24 International Journal of Minority and Group Rights 205, 219ff. 107 See eg ACFC, Third Opinion on Poland (ACFC/OP/III(2013)004, 2014) para 15. 108 ACFC, Second Opinion on the Netherlands (ACFC/OP/II(2013)003, 2013) para 60. 109 Ibid para 61. 110 ACFC, Third Opinion on Switzerland (ACFC/OP/III(2013)001, 2013) paras 24ff; ACFC, Fourth Opinion on the United Kingdom (ACFC/OP/IV(2016)005, 2016) paras 18 and 21.

Mitigating divergence: a toolbox 191 Additionally, both in the realm of the UN and the CoE, relevant bodies have started to (carefully) tackle central topics of the HRC’s and the ECtHR’s case law regarding new minorities. Thus, the Recommendations adopted during the 2013 UN Forum on Minority Issues specifically dedicated to religious minorities stressed that in the educational environment ‘provision should be made for non-discriminatory exemptions or alternatives to accommodate the wishes and religious education requirements/needs of religious minorities’.111 In the work context, the Recommendations stated that ‘(e)conomic actors, including private businesses, as well as bodies representing employees, such as trade unions, should ensure that religious minorities and their specific religious requirements are reasonably accommodated in the workplace’.112 The ACFC has paid increased attention to new Muslim minorities’ rights and, for instance, voiced concern regarding the prohibition of the construction of minarets, which was approved by popular vote in Switzerland in 2009.113 Furthermore, it has criticised newly introduced restrictions on ritual slaughtering of animals, for example in Denmark, and called upon authorities ‘to adopt a religiously sensitive approach’.114 Applying these parameters to the case law regarding new minorities’ religious freedom, the interpretation and application of the right to freedom of religion, in particular its limitation clauses, are crucial, given that they can lead to a more extensive or more restrictive protection, as demonstrated by this research.115 As was underlined already above, the HRC’s case law regarding new minorities is already in line with the basic precepts of the international system for minority protection.116 Consequently, although a more explicit reference to relevant standards would be desirable, it can be argued that the HRC, at least implicitly, follows the principle of systemic interpretation. In contrast, the ECtHR’s jurisprudence is generally not in line with the standards set by minority specific instruments.117 This is in particular due to an insufficient protection of new minorities’ identities against state policies with assimilationist effects.118 One example, which has been extensively discussed here and in relevant scholarship, is the prohibition of the wearing of religious garments by public servants and students in public schools, often based on the principle of secularism or laïcité.119 Relevant policies are not based on dialogue and compromise, but rather confront new minorities with the ‘choice’ to either be excluded from certain areas

111 UN Human Rights Council, Recommendations of the Forum on Minority Issues at Its Sixth Session: Guaranteeing the Rights of Religious Minorities (26 and 27 November 2013) (UN Doc A/HRC/25/66, 22 January 2014) para 42. 112 Ibid para 30. See also ACFC, Third Opinion on Poland para 89. 113 ACFC, Third Opinion on Switzerland para 63. 114 ACFC, Fourth Opinion on Denmark (ACFC/OP/IV(2014)001, 2015) paras 68ff. See also ACFC, Third Opinion on Poland para 71. 115 See above Chapter 5, section III. 116 See above Chapter 6, section III(3). 117 See ibid. 118 See also Berry, ‘Minority Identity’. 119 See eg Berry, ‘Religious Minorities’ 28ff.

192  Mitigating divergence: a toolbox of public space or abandon part of their religious identity. This could be regarded as infringing relevant minority rights provisions, which require that states ‘refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation’.120 Moreover, as also the ECtHR recognised, by adopting measures such as the general prohibition of the wearing of the burqa in public space a state takes ‘the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance’.121 Similarly, Berry highlighted that ‘(t)he elimination of difference in the public sphere may in fact lead to increasing intolerance of religious minorities, as awareness is key to tolerance’.122 Also in other instances, the ECtHR has shown that it is aware that ‘(m)inorities are more vulnerable to human rights abuses than members of the majority and the right to freedom of religion has historically played an important role in the protection of minorities’.123 Thus, it regularly holds that (p)luralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair treatment of people from minorities and avoids any abuse of a dominant position.124 The basic precepts of minority protection clearly appear to have influenced these statements, yet, in cases regarding new minorities’ right to manifest their religious beliefs the ECtHR does not follow suit with these ‘general principles’.125 Consequently, the approach adopted by the ECtHR regarding new minorities’ right to freedom of religion and belief does not only contradict standards established in the realm of minority protection, but also gives rise to incoherence in its own reasoning. Basing its judgments and decisions regarding new minorities more on a systemic interpretation of Article 9 ECHR by giving due regard to relevant minority protection provisions and practice would thus not only be favourable for the coherence of international human rights law, but also for the ECtHR’s own case law.

VI. Conclusion This chapter has determined that the two bodies adopt a significantly different style of reasoning in their decisions. Thus, while the HRC provides only minimal

120 Art 5(2) FCNM. 121 SAS v France [GC] para 149. 122 Berry, ‘Religious Minorities’ 38. 123 Ibid 39. 124 See eg SAS v France [GC] para 128. 125 See also above Chapter 6, section III.

Mitigating divergence: a toolbox 193 justifications for its views, the ECtHR goes beyond factual and normative elements furnishing more concrete justifications. In this context, it first relies for example on precedents, an important means to increase the persuasiveness of judicial reasoning, on which the HRC is missing out. Nevertheless, the reference to precedents can only fulfil such function if it is not based on a selective approach and valid explanations are furnished when a precedent is not followed. This does not always happen in the relevant case law of the ECtHR. A second element of concrete justification used by the ECtHR is considerations related to the concept of the margin of appreciation, which can convey the message to states that their concerns are taken seriously. Although the extensive use of this concept by the ECtHR in the case law regarding new minorities is deeply problematic, valid reference to related considerations could potentially increase the persuasiveness of the HRC’s reasoning, especially for states. Third, the reference to the case law of other judicial bodies can be a useful tool to improve judicial reasoning. Currently both the HRC and the ECtHR only make use of this technique in order to show that their legal reasoning is shared by other bodies. In doing so, the bodies however are missing a chance to improve their reasoning by contrasting their conclusion to contradicting decisions and explaining why their approach is to be preferred. Fourth and last, giving due regard to the principle of systemic interpretation in the case law regarding new minorities’ religious freedom by considering the standards established in the context of minority specific instruments might contribute to mitigating the existing divergence.

Conclusion

Setting out to establish whether coherent international human rights standards can be identified for the protection of new minorities’ right to freedom of religion and belief by the ECtHR and the HRC, this book found that the legal issues addressed to the two bodies were generally very similar. Thus, applicants mostly alleged a violation of their right to manifest their religious beliefs individually and in the public sphere. The most striking difference between the two bodies’ case law is the fact that most complaints addressed to the ECtHR and the EComHR were declared manifestly ill-founded and thus inadmissible, while the HRC found a violation in most cases. To a certain extent, this difference can be explained with the fact that, contrary to the ECtHR, the HRC does not accept the existence of settled case law on an issue as a reason to declare a communication manifestly ill-founded. Nevertheless, the practice of the ECtHR appears questionable from a perspective of procedural justice, given that applicants could get the impression that their concerns are not taken seriously by the Court, which is particularly problematic in the context of complaints submitted by members of minorities. Taking a closer look at the reasoning adopted by the two bodies in the relevant case law, it emerged that it is generally structured in a very similar way, which is owed to the comparable formulations of the relevant provisions, namely Articles 9 ECHR and 18 ICCPR. Thus, both bodies usually first inquired whether the alleged limitation of the right to manifest religious beliefs fell within the scope of this rights, ie whether there had been an interference. Both bodies, at least in recent years, readily affirmed this requirement. Subsequently, they examined whether this interference can be justified. This requires, according to Articles 9(2) ECHR and 18(3) ICCPR, that the condition of legality be fulfilled, with regard to which both bodies applied a very low level of scrutiny. A similar tendency can be observed regarding the second requirement for justification, the condition of legitimacy. In most cases, the bodies readily accepted that this requirement was fulfilled. This arguably puts new minorities’ rights at peril, given that restrictions which are seemingly motivated by neutral concepts such as ‘living together’ or ‘laïcité’ can in fact be a disguise for intolerant attitudes towards new minorities’ religious beliefs, which can only be detected if the argumentation brought forward by the respondent state is examined in detail.

Conclusion 195 The crucial factor for the divergent approaches of the ECtHR and the HRC with regard to new minorities’ right to manifest their religious beliefs can however be located in the third requirement for justification, the condition of proportionality. This research has established that the assessment of this condition by the two bodies in cases regarding new minorities’ right to manifest their religious beliefs differs significantly. Thus, the relevant reasoning of the ECtHR is characterised by a very low level of scrutiny applied to the arguments adduced by the respondent state. This is in particular based on the margin of appreciation, which is granted to the respondent states in most collected decisions and judgments. As a result, a problematic shift of the burden of proof to the applicant occurs. Consequently, limitations of new minorities’ right to manifest their religious beliefs, which are supposed to be the exception, have become the rule in the realm of the ECtHR. Contrary to this, the admittedly rather brief reasoning of the HRC is marked by a high level of scrutiny of the justification brought forward by states and no mention of the concept of the margin of appreciation. Yet, it has been contended that this approach, in particular the disregard of any arguments relating to the discretion of national authorities, might bear the danger of triggering states to question the authority and legitimacy of the HRC. This difference in approach to the assessment of the condition of proportionality has led to divergent levels of protection offered to new minorities’ religious beliefs by the ECHR and the ICCPR. Various conflicting assessments of cases, which were based on very comparable facts, exemplify this. Accordingly, the ECtHR only recognised a very limited amount of state duties vis-à-vis members of new minorities, for example regarding the supply of vegetarian meals to Buddhist prisoners.1 In the majority of the cases in which members of new minorities complained of a violation of the right to manifest their religious beliefs it found that the state had not violated its duties under Article 9 ECHR. The HRC, however, seems to interpret states’ obligations vis-à-vis new minorities under Article 18 ICCPR in a much more extensive manner than the ECtHR, de facto recognising obligations of reasonable accommodation, for instance with regard to the wearing of religious headgear on identity photograph.2 Moreover, the HRC offered new minorities a meaningful protection against restrictions of manifestations of their religious beliefs, which were based on unsubstantiated fears that these would interfere with the rights of the majority. This can be seen in the violation found in a view addressing the exclusion of a Sikh student from French public school based on his refusal to abstain from wearing religious headgear during school hours.3 The ECtHR, when confronted with complaints based on similar facts as those mentioned from the HRC’s case law, found that the interference with the applicants’ right to manifest their religious beliefs was justified.4 1 Jakóbski v Poland; Vartic v Romania (No 2). 2 Shingara Mann Singh v France. See also Ranjit Singh v France. 3 Bikramjit Singh v France. 4 See eg Aktas v France (dec); Mann Singh v France (dec).

196  Conclusion This detected divergence could be explained, to some extent, by institutional differences between the ECtHR and the HRC. This concerns in particular the fact that the HRC is composed of members bringing a significantly wider range of religious and cultural backgrounds to the table. Contrary to this, the ECtHR is composed of judges sharing a similar (religious) background. The most significant institutional difference between the ECtHR and the HRC, namely the lack of legal bindingness of the HRC’s views, has however been identified as less incisive for the divergent approaches in the area of new minorities’ religious freedom. Rather, it was contended that the different strategy chosen by the two bodies in building their judicial authority is decisive. This is notably reflected in the concept of the margin of appreciation, which can, under certain conditions, be regarded as a useful tool to balance between the task of protecting human rights as effectively as possible and the need to respect national sovereignty. One of these conditions is that the concept is used in a principled manner, which, as has been demonstrated by this book, is not the case in the ECtHR’s case law regarding new minorities’ right to manifest their religious beliefs, given that the ECtHR seems to exercise its oversight selectively. Moreover, this extensive use of the concept of the margin of appreciation, in particular based on a lack of consensus among states on specific, controversial issues, appears problematic in conflicts between the majority and minorities. The divergence between the HRC and the ECtHR thus cannot be explained with the concept of the margin of appreciation in general, which is only explicitly used by the ECtHR, but must rather be linked to the ECtHR’s extensive use of this concept in its case law regarding new minorities. Such extensive use of the margin of appreciation in the case law regarding new minorities might be linked to the fact that the ECtHR employs a different perspective on the applicants in the relevant cases than the HRC. Thus, only in the HRC’s case law, traces of a so-called minority perspective can be found, including for example the recognition of duties of reasonable accommodation as well as the acknowledgement of the need for an international human rights body to exercise a meaningful control in cases of restrictions of minorities’ rights. In contrast, the ECtHR seems to disregard the fact that the applicants are members of a minority in need of protection. This is exemplified by the fact that, unlike it has done in cases regarding other religious minorities, it fails to recognise the concept of substantive equality in its case law regarding new minorities.5 In recent judgments, the ECtHR however has started to acknowledge the vulnerable position members of new minorities in today’s societies, and in one judgment even followed suit on such recognition.6 Nevertheless, the (momentary) divergence detected in the area of new minorities’ right to manifest their religious beliefs should not be seen as a sign for the

5 See eg Thlimmenos v Greece [GC] as opposed to Aktas v France (dec). 6 See Lachiri v Belgium.

Conclusion 197 fragmentation of international human rights law, which must be avoided under all circumstances, but rather as a sometimes inevitable step on the way towards realising the aim of securing the effective protection of everyone’s human rights. Consequently, the ECtHR and the HRC do not need to agree on every aspect of the interpretation and application of new minorities’ right to manifest their religious beliefs. Rather, divergence should be welcomed where it allows the extension of the protection of human rights. Nevertheless, in order to ultimately contribute to the further development of international human rights protection, both the ECtHR and the HRC should strive to base their decisions, judgments and views on sound and persuasive judicial reasoning. Four tools were suggested to support both bodies in working towards this goal. The first tool is the inclusion of references to previous practice in the judicial reasoning. The HRC only provides minimal justifications in its views, focusing exclusively on normative and factual elements of the case at hand. Reference to its previous practice however could be a tool supporting the HRC in conveying a message of consistency of the interpretation and application of relevant provisions. At the moment, the HRC is missing out on important opportunities to increase the persuasiveness of its reasoning (and thus its legitimacy and authority as a (quasi-)judicial body). Differently than the HRC, the ECtHR already extensively refers to its previous decisions and judgments in its reasoning and sometimes even reserves a separate section of the judgment for an overview of previous case law. The ECtHR’s case law on new minorities however shows that reference to previous case law can only contribute to the persuasiveness of the judicial reasoning if such references are employed in a transparent and non-selective manner. Consequently, the persuasiveness of a reasoning based on precedents is by no means axiomatic. A second tool, which has been suggested to increase the persuasiveness of judicial reasoning, is the inclusion of concerns related to the concept of the margin of appreciation (also without mentioning such concept explicitly). In particular, if respondent states themselves bring the discretion of their national authorities into play, this can convey to states that their concerns are taken seriously. Yet, the HRC so far does not seem to listen to states’ arguments in this regard. In contrast, the ECtHR makes too extensive use of the concept of the margin of appreciation in cases regarding new minorities’ religious freedom, precluding any real weighing and balancing of first-order reasons. This decreases the persuasiveness of its reasoning for the applicants considering that they are given the impression that no matter the arguments they bring forward in favour of a violation, the margin of appreciation granted to the respondent state will supersede them. Thus, although it would be beneficial for the persuasiveness of the reasoning to include concerns related to the concept of the margin of appreciation, they should just be one of various elements, which are weighted alongside other first- and secondorder reasons. These first two proposed tools aim at generally increasing the persuasiveness of judicial reasoning adopted in the case law regarding new minorities’ religious

198  Conclusion freedom, which can be an important factor for mitigating divergence: Only if the reasoning adopted by a (quasi-)judicial body is persuasive, will it be respected and potentially followed by other relevant actors. The last two suggested tools pursue the same aim but are more closely linked to ensuring a coherent interpretation and application of new minorities’ right to manifest their religious beliefs. The third tool is the inclusion of references to the case law of other bodies on similar matters. Thus, it seems rather striking that although the ECtHR or the HRC, respectively, had already dealt with similar, if not identical questions, none of the two bodies made reference to the other body’s statements when adopting a conflicting decision. This is in line with a general tendency of both bodies to only employ references to the practice of other bodies to support their own conclusion and avoid doing so if existing practice conflicts with their reasoning. However, in particular in case of conflict a reference is crucial to increase the persuasiveness of the reasoning by distinguishing it from other bodies’ approaches and explaining why one approach should be preferred over the other. The fourth and last of the suggested tools extends this reasoning to the international system established specifically for the protection of minorities. Thus, it argues that, based on the principle of systemic interpretation, both the ECtHR and the HRC should take into account relevant provisions and practice developed in the realm of the international minority protection system. This system is based on the precepts of tolerance, dialogue and compromise. In order to achieve this aim, the relevant instruments rely in particular on a clear prohibition of enforced integration or assimilation and state policies with assimilationist effects. Moreover, they enshrine extensive positive obligations of states to protect minorities’ identity and ensure real and substantive equality. While giving due regard to the standards established in this context does not entail following them blindly, the HRC and the ECtHR should at least show awareness of their existence and recognise the experience based on which those standards were developed. In most situations, this should lead to a decision that is in line with the relevant instruments and provisions. In this case, referring to relevant standards in the realm of the international minority protection system can increase the persuasiveness of the judicial reasoning. If the approach chosen by the HRC or the ECtHR is however not in line with these standards, the reason for such divergence should duly be explained. The use of these four tools by the HRC and the ECtHR by no means guarantees that divergence in the international protection of new minorities’ religious freedom will become a thing of the past. After all, law is a social construct and it is hard to foresee the direction in which it will develop. Nevertheless, these tools can contribute to mitigating the divergence by incentivising the two bodies to explain the reasons for adopting a certain position in further detail and to heighten their efforts to persuade their audiences why their approach is to be preferred. In this sense, if a human rights body opts for a more protective interpretation of a specific provision for the individual in question, this can put pressure on other bodies to follow suit. After all, human rights protection on

Conclusion 199 the international level has continuously developed towards higher protection standards over the last decades thanks to the active oversight exercised by the responsible bodies. In this regard, all relevant bodies should recall the object and purpose of the human rights treaties they are interpreting and applying, namely the maintenance and further realisation of the guaranteed human rights, which are regarded as ‘the foundation of justice and peace in the world’.7

7 Preamble of the ECHR. See also the Preamble of the ICCPR.

Appendix of cases included in the empirical research

I.  Cases of the EComHR and the ECtHR Aktas v France (dec) App no 43563/08, 30 June 2009 (ECtHR) Bayrak v France (dec) App no 14308/08, 30 June 2009 (ECtHR) Belcacemi and Oussar v Belgium App no 37798/13, 11 July 2017 (ECtHR) Choudhury v the United Kingdom (dec) App no 17439/90, Commission decision of 5 March 1991 (EComHR) Dahlab v Switzerland (dec) ECHR 2001-V 447 (ECtHR) Dakir v Belgium App no 4619/12, 11 July 2017 (ECtHR) Dogru v France App no 27058/05, 4 December 2008 (ECtHR) Ebrahimian v France App no 64846/11, ECHR 2015 (ECtHR) El Morsli v France (dec) App no 15585/06, 4 March 2008 (ECtHR) Gamaleddyn v France (dec) App no 18527/08, 30 June 2009 (ECtHR) Genov v Bulgaria App no 40524/08, 23 March 2017 (ECtHR) Ghazal v France (dec) App no 29134/08, 30 June 2009 (ECtHR) ISKCON and 8 Others v the United Kingdom (dec) App no 20490/92, Commission decision of 8 March 1994 (EComHR) Jakóbski v Poland App no 18429/06, 7 December 2010 (ECtHR) Jasvir Singh v France (dec) App no 25463/08, 30 June 2009 (ECtHR) Karakuzey v Germany (dec) App no 26568/95, Commission decision of 16 October 1996 (EComHR) Kervanci v France App no 31645/04, 4 December 2008 (ECtHR) Khan v the United Kingdom (dec) App no 11579/85, Commission decision of 7 July 1986, Decisions and Reports 48, p 253 (EComHR) Koval¸kovs v Latvia (dec) App no 35021/05, 31 January 2012 (ECtHR) Lachiri v Belgium App no 3413/09, 18 September 2018 (ECtHR) Logan v the United Kingdom (dec) App no 24875/94, Commission decision of 6 September 1996 (EComHR) Mann Singh v France (dec) App no 24479/07, 13 November 2008 (ECtHR) Osmanog˘lu and Kocabas¸ v Switzerland App no 29086/12, 10 January 2017 (ECtHR) Phull v France (dec) App no 35753/03, ECHR 2005-I (ECtHR) Ranjit Singh v France (dec) App no 27561/08, 30 June 2009 (ECtHR) SAS v France [GC] App no 43835/11 ECHR 2014 (extracts) (ECtHR)

Appendix of cases included in the empirical research 201 Vartic v Romania (No 2) App no 14150/08, 17 December 2013 (ECtHR) X v Austria (dec) App no 1753/63, Commission decision of 15 February 1965 (EComHR) X v the United Kingdom (dec) App no 5442/72, Commission decision of 20 December 1974, Decisions and Reports 1, p 41 (EComHR) X v the United Kingdom (dec) App no 6886/75, Commission decision of 18 May 1976, Decisions and Reports 5, p 100 (EComHR) X v the United Kingdom (dec) App no 7992/77, Commission decision of 12 July 1978, Decisions and Reports 14, p 234 (EComHR) X v the United Kingdom (dec) App no 8160/78, Commission decision of 12 March 1981, Decisions and Reports 22, p 27 (EComHR) X v the United Kingdom (dec) App no 8231/78, Commission decision of 6 March 1983, Decisions and Reports 28, p 5 (EComHR)

II.  Cases of the HRC Bikramjit Singh v France UN Doc CCPR/C/106/1852/2008, 1 November 2012 FA v France UN Doc CCPR/C/123/D/2662/2015, 16 July 2018 Karnel Singh Bhinder v Canada UN Doc CCPR/C/37/D/208/1986, 28 November 1989 Miriana Hebbadj v France UN Doc CCPR/C/123/D/2807/2016, 17 July 2018 Ranjit Singh v France UN Doc CCPR/C/102/D/1876/2009, 27 September 2011 Shingara Mann Singh v France UN Doc CCPR/C/108/D/1928/2010, 19 July 2013 Sonia Yaker v France UN Doc CCPR/C/123/D/2747/2016, 17 July 2018

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Index

Achabal v Spain 11 – 12 admissibility criteria 10 – 12, 65 – 72, 130 – 135 Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) 19 – 20 Ahmet Arslan and Others v Turkey 160, 181 – 182 Arrowsmith test 33, 82 – 83, 172 – 173 Austria 63, 69 Bayatyan v Armenia 121 Belcacemi and Oussar v Belgium 95, 109, 117 Belgium 63, 68, 69 – 70 belief: definition in ECHR 33, 58; definition in ICCPR 36 – 37, 58; denominations 21 Bhinder v Canada 42, 57, 84, 87, 93, 99, 123 – 124, 144, 171 Bikramjit Singh v France 84, 93, 100, 124, 137 Buddhism 21, 23, 60, 62, 63, 67 – 68, 80 Bulgaria 22, 62–63, 68, 70, 80 Burqa 1, 24, 79, 95, 101, 102, 109, 115, 116, 120, 122, 140, 141, 173, 181, 182 case law: Conseil d’Etat 91 – 92, 122; force and significance of 26; references to other judicial bodies 184 – 188, 197; research methods used in analysis of HRC and ECtHR 27 – 31 case law, reasoning regarding new minorities: admissibility reasoning 132 – 135; condition of legality in case law of ECtHR 89 – 93; condition

of legality in case law of HRC 93; condition of legitimacy in case law of ECtHR 94 – 99; condition of legitimacy in case law of HRC 99 – 102; condition of proportionality in case law of ECtHR 102 – 122; condition of proportionality in case law of HRC 123 – 127; interferences with right to manifest religious beliefs in ECHR 81 – 83; interferences with right to manifest religious beliefs in ICCPR 84; margin of appreciation 111 – 122; positive obligations in case law of ECtHR 85 – 87; positive obligations in case law of HRC 87 – 88 case law, typology regarding new minorities: applicants and respondent states in the case law of EComHR and ECtHR 60 – 64; authors and respondent states in the case law of HRC 64 – 65; decision-maker 70 – 72; judgments and decisions adopted by EComHR 65 – 72; judgments and decisions adopted by ECtHR 65 – 72; legal questions in EComHR 74 – 78; legal questions in ECtHR 74 – 78; legal questions in HRC 78 – 80; religious beliefs of the applicant(s) 67 – 68; respondent state 68 – 70; views adopted by HRC 72 – 73 cases: Achabal v Spain 11 – 12; Ahmet Arslan and Others v Turkey 160, 181 – 182; Bayatyan v Armenia 121; Belcacemi and Oussar v Belgium 95, 109, 117; Bhinder v Canada 42, 57, 84, 87, 93, 99, 123 – 124, 144, 171; Bikramjit Singh v France 84, 93, 100, 124, 137; Choudhury v the United Kingdom 82; Coeriel and Aurik v the

Index  217 Netherlands 47; Dahlab v Switzerland 90, 96, 107, 156; Dakir v Belgium 95, 109, 117; Dogru v France 90, 92, 95, 133, 139; Ebrahimian v France 91, 92, 95, 98, 108, 117, 159 – 160; Eweida and Others v the United Kingdom 35, 108, 146; FA v France 88, 93; Francesco Sessa v Italy 159; Handyside v the United Kingdom 53; Hertzberg and Others v Finland 56; ISKCON v the United Kingdom 117; Ivanova v Bulgaria 159; Jakóbski v Poland 85 – 86; Kervanci v France 90, 92, 95, 133; Kokkinakis v Greece 53, 104; Kovalkovs v Latvia 83, 86, 92; Lachiri v Belgium 110, 118, 166; Lautsi v Italy 162; Leyla S¸ahin v. Turkey 98, 107 – 108, 134, 160, 185; Malcolm Ross v Canada 40, 45; Mann Singh v France 184; Miriana Hebbadj v France 101, 141; Osmanog˘lu and Kocabas¸ v Switzerland 83, 94, 109, 117, 119 – 120, 122, 159; Ranjit Singh v France 168, 183 – 184; SAS v France 96, 98, 109, 115 – 116, 119, 121 – 122, 140, 146, 158, 160 – 161, 173, 179, 181; Shingara Mann Singh v France 126, 184; Siebenhaar v Germany 160; Sister Immaculate Joseph v Sri Lanka 49; Sonia Yaker v France 101, 141; Sunday Times v the United Kingdom (No 1), The 50; Toonen v Australia 56; Vartic v Romania (No 2), 85 – 86; X v the United Kingdom (1981) 82, 173 Choudhury v the United Kingdom 82 Christianity 21, 23, 82, 151, 159 coercion, freedom from 37 – 39 Coeriel and Aurik v the Netherlands 47 Conseil d’État 91 – 92, 97, 122 constitutionalism 7 Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] (ECHR): Article 1 107; Article 6(1) 114; Article 8 53, 55; Article 9 32 – 36, 41, 58, 65 – 67, 69 – 73, 81 – 83, 85, 92, 94, 103 – 107, 117 – 122, 129, 163, 169, 176, 194 – 195; Article 9(2) 43 – 52, 90, 97, 104, 135 – 138, 142, 194; Article 11 53; Article 14 41, 156, 169; Article 35(2b) 10, 12;

Article 35(3a) 130 – 132; condition of legality 44 – 45, 194; condition of legitimacy 46 – 49, 194; condition of proportionality 49 – 52; definition of religion and belief 33 – 34, 58; interferences with right to manifest religious beliefs 43 – 53, 81 – 83; limitation clause 43; margin of appreciation 53 – 55; qualification of manifestations of religious beliefs 34 – 36, 155 – 156; scope of right to freedom of religion and belief 33 – 36, 58; violations 65 – 69, 81 – 82, 85 Council of Europe (CoE) 7, 25, 69, 166, 189, 191 Dahlab v Switzerland 90, 96, 107, 156 Dakir v Belgium 95, 109, 117 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981 Declaration) 36, 39 – 40, 42 ‘democratic society’ 49, 53, 118, 142 discretion 56 – 57 Discrimination 20, 22, 24, 84, 156, 169 – 171 Dogru v France 90, 92, 95, 133, 139 Ebrahimian v France 91, 92, 95, 98, 108, 117, 159 – 160 equality 165 – 168, 169 – 170; gender equality 96 – 97 European Commission of Human Rights (EComHR): admissibility criteria for individual complaints 11; applicants and respondent states in the case law of 60 – 64; approach to margin of appreciation 56 – 58; condition of legitimacy 47; condition of proportionality 50; definition of religion and belief 33; judgments and decisions adopted by 65 – 72; legal aspect of freedom of religion and belief 74 – 78; qualification of manifestations of religious beliefs 34 – 36; religious beliefs of the applicant(s) 67 – 68; respondent state 68 – 70; violation decisions 70 – 72, 82 European Court of Human Rights (ECtHR): admissibility requirements 130 – 135; applicants and respondent states in the case law of 60 – 64;

218 Index aspect of freedom of religion and belief 74 – 78; condition of legality in case law of 44 – 45, 58, 127; condition of legitimacy in case law of 46 – 49, 127, 135 – 142; condition of proportionality in case law of 4, 49 – 52, 102 – 122, 127, 142 – 147, 195; deference to national authorities 119 – 122, 127; definition of religion and belief 33; empirical research of case law 27 – 31; general principles 103 – 110; influence of margin of appreciation on reasoning of 111 – 122, 127; institutional differences between HRC and 149 – 154, 174, 196; interferences with the right to manifest religious beliefs 43 – 53; judgments and decisions adopted by 65 – 72; legal force of decisions 152 – 154; margin of appreciation 53 – 56, 58, 111 – 122, 127, 154 – 166, 174, 182 – 184, 193, 195 – 197; ‘minority perspective’ in case law 169 – 174; necessity test 49 – 53; positive obligations for states 41 – 42, 77, 85 – 87, 171; qualification of manifestations of religious beliefs 34 – 36, 58; reasoning based on precedents 180 – 182; references to case law of other judicial bodies 184 – 188, 197; religious beliefs of the applicant(s) 67 – 68; respondent state 68 – 70; scales to measure sufficient substantiation of complaints 130 – 135; style of reasoning 177 – 180, 197 – 198; systemic interpretation of state duties vis à vis minorities 188 – 193, 195, 198 – 199 Eweida and Others v the United Kingdom 35, 108, 146 FA v France 88, 93 forum externum 33, 34 forum internum 33, 34 Framework Convention for the Protection of National Minorities (FCNM) 18 – 20, 166 – 167, 189 France 63 – 64, 69, 80, 125 – 126, 132, 140 – 142, 169, 173 – 174, 184 Francesco Sessa v Italy 159 fundamental rights and freedoms of others 48 – 49, 135 – 138

general principles: groups of 105 – 107; nature and use of the general principles in case law on Article 9 ECHR 103 – 105; patterns of reference to 107 – 110 Germany 63, 69 Handyside v the United Kingdom 53 Headscarf 25, 68, 70, 79, 83, 90, 91, 96, 98, 101, 110, 122, 136, 137, 146, 156, 159, 163, 170 Hertzberg and Others v Finland 56 Hinduism 21, 23, 60, 62, 67 – 68, 80, 83 horizontal proportionality test 51 immigrants 14 – 15, 20 – 23, 168 institutional differences: legal force of decisions 152 – 154; members of (quasi-)judicial body 150 – 152, 174, 196 International Covenant on Civil and Political Rights (ICCPR/Covenant): Article 18 3, 32 – 33, 36 – 40, 42 – 43, 57 – 58, 80, 84, 87 – 88, 93, 94, 102, 176; Article 18(2) 37 – 38, 58; Article 18(3) 4, 43 – 48, 52 – 53, 135 – 138; Article 26 84, 169; Article 27 16 – 18, 56, 166; condition of legality 45; definition of religion and belief 36 – 37, 58; freedom from coercion 37 – 38, 58; interferences with right to manifest religious beliefs 43 – 53, 84; limitation clause 43; margin of appreciation 56 – 58; qualification of manifestations of religious beliefs 38 – 40; scope of right to freedom of religion and belief 36 – 40, 58; Siracusa Principles 45, 47 – 48 International Covenant on Civil and Political Rights (ICCPR/Covenant), Optional Protocol: Article 2 130; Article 5(2a) 10, 12; legal force of decisions 152 – 153; ratification 4 – 5, 11 international human rights law: divergence within 7 – 9; levels of divergence 9, 130 international law: fragmentation of 7 – 8; pluralist approach 6 – 7 ISKCON v the United Kingdom 117 Islam 21, 23, 24,   61, 64, 67 – 68, 80, 82, 137, 170, 182 Ivanova v Bulgaria 159

Index  219 Jakóbski v Poland 85 – 86 Jehovah’s Witnesses 33 Judaism 21, 23 Kervanci v France 90, 92, 95, 133 Kokkinakis v Greece 53, 104 Kovalkovs v Latvia 83, 86, 92 Lachiri v Belgium 110, 118, 166 Latvia 62–63, 69 Lautsi v Italy 162 legality: in ECtHR case law 44 – 45, 58, 89 – 93, 127; in HRC case law 45, 93 legitimacy: in ECtHR case law 46 – 49, 94 – 99, 127, 135 – 142; in HRC case law 46 – 48, 79 – 80, 99 – 102; protection of the rights and freedoms of others 136 – 142 Leyla Sahin v Turkey 98, 107 – 108, 134, 160, 185 limitation clauses: in ECtHR case law 43, 46, 53, 58; in HRC case law 43, 58 Malcolm Ross v Canada 40, 45 manifestation: definition 39; protected in 1981 Declaration 39 – 40; protection in ECHR 34 – 36, 155 – 156; protection in ICCPR 38 – 40 Mann Singh v France 184 margin of appreciation: balancing 115 – 117; concept of 154 – 166; deference to national authorities 119 – 122; in ECtHR case law 41 – 42, 53 – 56, 111 – 122, 127 – 128, 154 – 166, 174, 195 – 197; effects of 155 – 158; European consensus 119 – 122; factors influencing breadth of 117 – 122; in HRC case law 56 – 58, 155 – 158, 174, 195 – 197; nature of affected right or interest 118; predominant consideration 114 – 115; prevailing consideration 113 – 114; reasoning based on states’ 182 – 184; substantive and a structural concept of 111 – 112 minorities: definition of 16 – 27, 23; identity 172international protection 167 – 168; ‘old minorities’ 22 – 23 minority perspective: in ECtHR case law 169 – 174; in HRC case law 169 – 174; premises of international minority protection 167 – 168

minority protection: basic premises of international 167 – 168; equality and 169 – 170; of identity 172; nondiscrimination and 169 – 170 Miriana Hebbadj v France 101, 141 Muslims 22 – 25, 61, 68, 83, 91 ‘national minority’ 18 – 19 ‘national security’ 46, 47, 76 necessity test 49 – 53 ‘new minorities’: categorisation of in HRC and ECtHR case law 168 – 169; definition of 20 – 27, distinction between ‘old minorities’ and 22 – 23; as ‘religious minority’ 20 – 22 ‘new religious movements’ 21 non-discrimination 169 – 170 ‘old minorities’ 22 – 23 Osmanoglu and Kocabas v. Switzerland 83, 94, 109, 117, 119 – 120, 122, 159 Parliamentary Assembly of the Council of Europe (PACE) 19, 24 ‘people with migration background’ 14 – 15 Poland 63, 68, 70, 80 positive obligations: in ECtHR case law 41 – 43, 77 – 78, 85 – 87; in HRC case law 41 – 43, 79, 87; reasonable accommodation 170 – 172 precedents 180 – 182 proportionality: in ECtHR case law 4, 49 – 52, 102 – 122, 142 – 147, 195; general principles 103 – 110; in HRC case law 52 – 53, 123 – 128; levels of scrutiny 143 – 147, 155, 195 public health 47 public morals 48 public order 47 – 48 public safety 47 Ranjit Singh v France 168, 183 – 184 reasonable accommodation 88, 147, 170 – 172, 195, 196 religion: definition in ECHR 33, 58; definition in ICCPR 36 – 37, 58; denominations 21 religious beliefs: protection of manifestation in ECHR 34 – 36; protection of manifestation in ICCPR 38 – 40

220 Index religious freedom: concept of margin of appreciation and 154 – 166; divergence and 13 – 14; justification of interference with 43 – 53; positive obligations for states under ECHR 41 – 42; positive obligations for states under ICCPR 41 – 43; scope of right in ECHR 33 – 36, 58; scope of right in ICCPR 36 – 40, 58; standard for protection in ECHR 32 – 33; standard for protection in ICCPR 32 – 33 religious identity 20 – 21, 173 – 174 religious intolerance 24, 25, 139, 140, 192 Romania 63, 68, 70, 80 ‘Saga Singh’ 14 SAS v France 96, 98, 109, 115 – 116, 119, 121 – 122, 140, 146, 158, 160 – 161, 173, 179, 181 secularism (laïcité) 99 – 101, 108 – 109, 114, 125, 128, 133 – 134, 136 – 138 Shingara Mann Singh v France 126, 184 Siebenhaar v Germany 160 Sikhism 14, 21, 23, 25, 61–62, 64, 68, 80, 84 Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (Siracusa Principles) 45, 47 – 48 Sister Immaculate Joseph v Sri Lanka 49 Sonia Yaker v France 101, 141 Sunday Times v the United Kingdom (No 1), The 50 Switzerland 63, 69 systemic interpretation 188 – 193, 195, 198 – 199 Toonen v Australia 56 Turban 14, 25, 68, 70, 79, 83, 84, 89, 100, 144, 145, 172 United Kingdom 62 – 64, 69 – 70, 80 United Nations Human Rights Committee (HRC): admissibility requirements 130 – 135; authors and respondent states in the case law of 64 – 65; categorisation of ‘new minorities’ in case law

168 – 169; condition of legitimacy in case law of 48 – 49, 135 – 142; condition of proportionality in case law of 4, 123 – 128, 142 – 147; definition of ‘minority’ 18; divergence between ECtHR and 9 – 13; empirical research of case law 27 – 31; institutional differences between ECtHR and 149 – 154, 174, 196; interferences with the right to manifest religious beliefs 43 – 49, 53; legal aspect of freedom of religion and belief 78 – 80; legal force of decisions 152 – 154; margin of appreciation 58, 155 – 158, 165, 182 – 184, 193; ‘minority perspective’ in case law 169 – 174; reasoning based on precedents 180 – 182; references to case law of other judicial bodies 184 – 188, 197; restrictions of new minorities’ rights 136 – 142, 147 – 148; scales to measure sufficient substantiation of complaints 130 – 135; style of reasoning 177 – 180, 197 – 198; systemic interpretation of state duties vis à vis minorities 188 – 193, 195, 198 – 199; violation decisions 72 – 73, 93, 99 – 102 United Nations (UN): Forum on Minority Issues 191; instruments for protection of minorities’ rights 189, 191; Minority Rights Declaration 166; protection status of ‘new minorities’ 20, 25 – 26; SubCommission on the Prevention of Discrimination and the Protection of Minorities 16 – 17 Universal Declaration of Human Rights (UDHR) 5, 8, 43, 52 Vartic v Romania (No 2), 85 – 86 vertical proportionality test 51 Vienna Convention on the Law of Treaties (VCLT) 12, 174, 188 Vienna Declaration and Programme of Action 5 X v the United Kingdom (1981) 82, 173