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Données sociologiques et juridiques sur la religion en Europe et au-delà

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26 November 2015 : ECHR validates non-renewal of a hospital employee’s contract due to her refusal to remove veil

The applicant, a French national, had been recruited on a limited-term contract as a public service hospital worker and was employed as a social worker in the psychiatric department of a hospital. On 11 December 2000, the director of human resources informed the applicant that her contract would not be renewed. This decision was founded on the refusal of applicant to remove the headdress which she was wearing and was taken following complaints from some patients. The applicant took her case to the European Court of Human Rights, on the grounds that the non-renewal of her social worker contract contravened her right to freedom to express her religion, as guaranteed by Article 9 of the European Convention of Human Rights.

The Court notes that non-renewal of the applicant’s contract was founded on her refusal to take off her veil which, although not designated as such by the administration, was the undisputed expression of her affiliation to Islam. The Court does not have reason to doubt that the wearing of this veil constituted a “manifestation” of a sincere religious conviction protected by Article 9 of the Convention (§ 47). It additionally states that Article 1 of the French Constitution establishes that France is a lay republic which ensures equality of all citizens before the law. It observes that, in the law of the defendant state, this constitutional provision establishes the basis of the duty of neutrality and impartiality of the French State with regard to all religious beliefs or their conditions of expression and that it is interpreted and read jointly with the application made of it by national jurisdictions (§ 50).

With regard to the circumstances of the cause and grounds given for not renewing the applicant’s contract, namely the requirement for religious neutrality within the context of the vulnerability of the users of the public service, the Court considers that the interference complained of was essentially aimed at the legitimate goal of protecting the rights and freedoms of others. It was in fact a question of preserving respect for all patients’ religious beliefs and spiritual orientations - as users of the public service and recipients of the requirement for neutrality imposed on the applicant - by ensuring them a strict equality. The objective was also to ensure that these users benefited from equal treatment without distinction of religion (§ 53).

The Court notes that in France the principle of secularity-neutrality constitutes the expression of a rule organising relations between the French State and faiths, which implies its impartiality with regard to all religious beliefs in the respect of pluralism and diversity. The Court considers that the fact that national jurisdictions have granted more weight to this principle and to the interest of the French State than to the interest of the applicant not to have the expression of her religious beliefs restricted, does not pose a problem in respect of the Convention (§ 67). It acknowledges that state regulations give precedence to the rights of others, equal treatment of patients and the operation of the department over manifestations of religious beliefs (§ 71).

With regard to all the above, the Court considers that the interference complained of can be seen as proportionate to the desired goal. Therefore, interference in the exercise of her freedom to manifest her religion was necessary in a democratic society and there has been no violation of Article 9 of the Convention (§ 72).

For further information : CEDH, 26 nov. 2015, n° 64846/11, Ebrahimian c. France.

  • 10 April 2014 : Council of Europe Resolution on protecting minors against sectarian aberrations

On 10 April 2014, the Parliamentary Assembly of the Council of Europe passed resolution 1992 (2014) dedicated to protecting minors against sectarian aberrations.
The draft resolution based on a report by Rudy Salles (France, PPE/DC) had been subject to strong opposition, in particular from associations for religious freedom which reproached him for condemning sectarian aberrations without, however, defining the word “sect”. In the end it was a heavily amended text which was adopted ; for example, the proposal to create national or regional information centres on movements of a sectarian nature was removed, as was that of adopting or reinforcing legislative measures on repressing abuse of psychological and/or physical weakness.
If the new text still does not set out to define a “sect”, it "calls on Member States to ensure that no discrimination is allowed on the basis of whether a movement is considered a sect or not, that no distinction is made between traditional religions and non-traditional religious movements, new religious movements or sects when it comes to the application of civil and criminal law, and that any measures to counter non-traditional religious movements, new religious movements or sects are aligned with human rights norms”.

  • 9 July 2013 : The ECHR approves the refusal to register a trade union of church employees

In April 2008, 35 members of the clergy and lay personnel of the Romanian Orthodox Church decided to establish a trade union. The elected president of the union sought to obtain from the court of first instance the granting to the union of its legal personality and its registration as a trade union. The public prosecutor, representing the state in the proceedings, spoke in favour of the registration application, considering that the creation of a union of members of clerical and lay personnel was not contrary to any legal provision. He added that the members of the union were employees who performed their duties in line with contracts of employment ; they had, like any other employees, the right to join a union to defend their rights.

In May 2008, the court accepted the request and ordered the union’s entry into the register, thus giving it legal personality.

The archdiocese then filed an appeal against this judgment. It felt in particular that the appearance within the structure of the church of a union-type organisation for clerical staff seriously undermined the freedom faiths had to organise themselves according to their own traditions.

In a final judgment of July 2008, the county court accepted the appeal, quashed the judgment pronounced at the court of first instance and substantively rejected the application for legal personality and entry into the trade union register.

In its judgment of 31 January 2012, the European Court of Human Rights found a violation of Article 11 of the European Convention of Human Rights (freedom of assembly and association) on the grounds that, in the absence of "pressing social need" and without adequate reasons, a measure as radical as the rejection of the union’s application for registration was disproportionate to the desired goal and, therefore, not necessary in a democratic society.

The case was referred to the Grand Chamber at the request of the government. In its judgment of 9 July 2013, the former considered that, in its decision, the county court had solely applied the principle of autonomy of religious organisations. The court’s refusal to register the union because of its failure to comply with the condition of obtaining the archbishop’s permission was a direct consequence of the right of the religious community in question to organise itself freely and to operate in accordance with the provisions of its statutes.

The Court found that, by refusing to register the applicant union, the state had simply refrained from getting involved in the organisation and functioning of the Romanian Orthodox Church, thus respecting the neutrality obligation imposed by Article 9 of the Convention.

For further information : ECHR, Grand Chamber, 9 July 2013, Sindicatul « Păstorul cel bun » c. Romania, no. 2330/09.

  • 5 September 2012 : CJEU : Religion as ground for persecution

In judgment Bundesrepublik Deutschland c/ Y. and Z. of 5 September 2012 (joined cases C-71/11 and C-99/11), the Court specified to what extent violations of freedom of religion can constitute persecution in the sense of Article 9 of Directive 2004/83/EC of 29 April 2004 on minimum norms for conditions that non-EU nationals or stateless persons must fulfil in order to qualify for refugee status.

Y. and Z., originating from Pakistan and members of the Ahmadiyya community, claimed to have been forced to leave Pakistan due to belonging to this community ; they now lived in Germany where they were seeking asylum and protection as refugees.

The German authorities rejected their asylum applications, considering that restrictions on the practice of religion in public imposed on the Ahmadis in Pakistan did not constitute persecution under asylum law. Following several appeals that annulled the dismissal of the case by the administration, the national court (Bundesverwaltungsgericht, Federal Administrative Court) asked the Court of Justice for a preliminary ruling, requesting it to clarify the restrictions on practising a religion which constitute persecution justifying the granting of refugee status.

The Court notes that only some forms of serious violations of the right to freedom of religion can constitute an act of persecution and specifies that any infringement of the right to freedom of religion, which violates Article 10, paragraph 1 of the EU Charter of Fundamental Rights is not likely to constitute an act of persecution in the sense of Article 9 of the directive (point 58). Such serious violations include acts violating the freedom of the applicants not only to practise their beliefs in private, but also to enact them in public (point 63).

There is persecution if the victim is in real danger, i.e. of being pursued or subjected to inhuman or degrading treatment or punishment. Assessing such a risk involves the competent authority taking account of a series of elements that are as much subjective as objective. If observing a certain religious practice in public (which is the subject of the limitations contested) is particularly important for the persons concerned in order to conserve their religious identity, then the Court notes that this subjective circumstance is relevant in the assessment of the level of risk to which the applicants would be exposed in their country of origin on account of their religion. Such is the case even if observation of such a religious practice does not constitute a central element for the religious community concerned (point 70).

Finally, the Court notes that, once it is established that the persons concerned, back in their country of origin, will perform religious acts exposing them to a real risk of persecution, they should be granted refugee status. In this regard, the Court considers that, in the individual assessment of an application to obtain refugee status, national authorities may not reasonably expect of the applicants that, to avoid risk of persecution, they renounce upon the manifestation or the practice of certain religious acts (point 80).

  • 23 June 2010 : The Council of Europe and the full veil

On 23 June 2010 the Parliamentary Assembly of the Council of Europe adopted a resolution and recommendation entitled ’Islam, Islamism and Islamophobia in Europe’ which mentions, in particular, attempts by certain European governments to regulate the wearing of the full veil. Resolution 1743 (2010) states that, although the wearing of the full veil "could pose a threat to the dignity and freedom of women", "a blanket ban could be counterproductive, by pushing families and the community to put pressure on Muslim women to stay at home. [...] Muslim women would suffer an additional exclusion if they had to leave educational establishments, stay away from public places and give up work outside of their community, so as not to break with their family tradition." In Recommendation 1927 (2010), the Parliamentary Assembly therefore invites Member States to "refrain from adopting a blanket ban on wearing the full veil or other religious clothing, but to protect women against physical and psychological violence and safeguard their free choice to wear or not wear a religious or other particular garment and to ensure that Muslim women have the same possibilities to participate in public life and engage in educational and professional activities".
Thomas Hammarberg, the Council of Europe’s Human Rights Commissioner, added, in an open forum in the press ("Banning the burqa is useless", Le Monde, 27 May 2010) that this type of ban "might go against established human rights norms, in particular the right to privacy and personal identity and the freedom to manifest one’s religion or personal convictions". Even though, in some cases, the public interest requires that people show their faces for reasons of security or for identification purposes, "no one has succeeded in demonstrating that the wearing of the burqa and the niqab represents a danger for democracy and public safety, nor even that it poses a major problem for society".

  • 29 October 2004 : Constitution for Europe

The Treaty establishing a Constitution for Europe was signed on 29 October 2004 in Rome and must still be ratified by each Member State in order to come into effect on 1 November 2006.
Its preamble includes a reference to the "cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law".

The European Union’s Charter of Fundamental Rights is incorporated into the treaty, the article on freedom of thought, conscience and religion has become article II-70.

Furthermore, article I-52 on the status of churches and non-confessional organisations asserts the Union’s respect of the status that they enjoy under national law and that it will maintain and "open, transparent and regular dialogue with these churches and organisations".