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Religious Freedom and European Institutions PDF Print E-mail

Giulio Murano
International Federation of Human Rights, Italian League

delivered at the
International Coalition for Religious Freedom Conference on 
"Religious Freedom and the New Millenium"
Berlin, Germany, May 29-31, 1998

Thank you very much Mr. Chairman, distinguished delegates, and ladies and gentlemen. While introducing a statement on Religious Freedom and European Institutions, I am glad to greet you in the name of the Vice President of the International Federation of Human Rights, Honorable Pascuale Bandiera. I want to thank the organizing committee, and I hope to contribute to this important debate.

Religious freedom is becoming a central theme of the human experience, in both the political and social fields. Religions always play a fundamental role in individual and social life. Religion helps one to investigate the inner meaning of the world, and tries to answer the central questions dealing with the sense of creation, the finality of human existence, life after death, and the extent of individual happiness. Each belief can inspire noteworthy charitable actions, but also stimulate intolerance and chauvinism. In both cases, religion exercises extraordinary influence on social relationships.

Many reports discussed in this congress have dealt with the complexity of religion in the contemporary world. Different denominations are evolving, and their geographical distribution is changing. The tradition of Christianity is now deeply involved in dialogue with many non-Christian religions, and Eastern faiths are taking root in new areas. While Christianity, and especially Catholicism, is growing in Asia, Africa, and Latin America, the European milieu is becoming increasingly secularized. The traditional mechanisms of individual identification with a certain set of beliefs are declining. At the same time, dogmatic antagonisms and rivalries are also decreasing. Catholic and evangelical clergy now recognize the particular link between those faiths, which trace their descent from Abraham, and are oriented toward ethical monotheism. Unity among churches is encouraged by the International Missionary Conference, organized in 1917, and supported by the declaration, Unitatis Redintegratio, in Acts of the Second Vatican Council, 1962-65.

During August 1991, the International Federation of Human Rights approved an agenda dealing with the elimination of all forms of discrimination based on religion, or personal convictions. The document was understood as the development of a test passed by the Anti-Discrimination and Minorities Protection Commission on November 1981, passed as Resolution 36-55 by the UN General Assembly. During the fifth anniversary of the Declaration of Human Rights, the International Federation of Human Rights is investigating the local efficiency of the human rights system applied by the UN since 1945-48. Among the most important documents, we cannot but quote the Convention for the Elimination of All forms of Racial Discrimination (21 December 1965), as well as the International Agreement on Civil, Political, Economic, Social, and Educational Rights, (16 December 1966).

It was immediately clear that the main limitation was dependent upon protocol opportunities for implementation. While dealing with religious freedom, the UN Human Rights Commission was compelled to admit, in 1997, that intolerance and discrimination based on beliefs still exist in many important parts of our world. As for legal institutions, a recommendation to the European Council suggested harmonizing the different local legal systems, proposed amendments to local legislation, and cooperation regarding human rights, social progress, and individual freedom.

The most famous among the European conventions which deals with human rights, was completed and signed in 1950. This principle allowed individuals to file complaints of human rights violations against states before international courts. Article 9 deals with the freedom of speech, thought, and worship. Alleged violations are first investigated by the commission and then, if accepted and without the possibility of reconciliation, judged by the European Court for Human Rights. A complainant can be heard as a witness in ordinary or plenary public sessions. When the argument involves an important problem in interpretation, the session is a plenary by default. The same article protects not only religious freedom, but also the freedom to change one’s belief or worship, as well as the right to proselytize for one’s denomination by public worship, evangelism, and education. The only exceptions are linked to the need to protect public order and morality, or avoiding conflict with other basic liberties.

What we need now is to move another step forward. The new argument in legal research and expertise is in distinguishing between the individual and social implications of religious freedom. The question is, can those religious rights be exercised by individual believers only, or do they also apply to religious congregations and ministries?

Article 14 specifies that differences in relations between states and local denominations are not, ipso facto, direct violations of the equal treatment rule. According to this liberal, but dangerous, option, each state has the right to deal with each religious organization, taking the number of members into account. Freedom of worship and equal treatment are not, according to European legal tradition, a single principle. They are, on the contrary, clearly connected to each other. Religious denominations and churches must be equal in front of the law, as well as equally free in an open society.

A European convention on religious freedom does not yet exist, although it was suggested by UN Resolution 1781 (12 December 1962). However, Human Rights Resolution 36-55, 1981, stopped the debate without submitting any proposal or abstract about it. Today, European courts have jurisdiction in matters connected with freedom of thought and individual beliefs. Since the Treaty of Rome was ratified (25 March 1957), other European courts have been competing in trade and economic activities. These courts protect the individual as worker, manager, customer, and user.

Religious freedom is also protected by Article II of Protocol I, signed in Paris on March 20, 1952, and valid from May 18, 1954. Teachers and educators must never forget that parents have the right to choose a denominational set of beliefs in educating their children. The option for religious freedom obviously implies opportunities for religious teaching, as such, but not for direct denominational teaching in schools and universities. From such a ruling, it is impossible to deduce the right for the state to fund religious education.

Most European states do not feel obligated to sponsor specific religious classes for those students who belong to minority faiths, not even in those institutes where the majority faith is traditional thought. The European Court of Human Rights stated that all member states must grant the right to transmit religious knowledge and beliefs in a way that can be defined as objective, critical and pluralistic, but avoiding indirect support for dogmatism or cultural and ethnic totalitarianism. The state must protect its citizens in their freedom of thought, and defend them from any kind of oppression coming from possible authoritarian pressure. All this is clearly declared in Article 9 of the Convention and is the key for interpreting Article II of the Protocol.

In understanding Article 9, we must first clarify whether this right is limited to single individuals, or if it also applies to churches and denominational organizations. The commission has frequently changed its mind on this matter. At first, it declared that denominations, as such, could not be regarded as injured parties in trials dealing with discrimination, as dealt with under the Convention’s protocol. After some time, however, it declared that the religious freedom of churches and similar groups was being protected, albeit through their members and representatives who were acting as individuals. Finally, it was acknowledged that churches should be recognized in accordance with their own acts. However, traditional organizations claiming this right, cannot be easily understood as being directly connected to individual believers.

This reflection opened the door to a wider interpretation, according to which denominations are subjects of religious freedom, and can directly exercise it. The conflicting point is in the fact that, while churches can be accepted as tutor and representative of their members, the literal text of the Convention connects religious freedom, freedom of thought, and freedom of speech to single persons. Freedom of worship, as such, includes freedom to express beliefs as a collective body, but the right to create new denominations does not directly make them subject to religious freedom.

In a former declaration, the commission declared that denominations are not subjects, but those who benefit from religious freedom. Notwithstanding, acknowledging that single believers are subjects, does not prevent direct action by members of religious hierarchies, that is to say, by the leadership of an organized religious body. Recent declarations go beyond this distinction, and to fact that the right to religious freedom can be applied to both believing individuals, and denominational organizations, although limited to the religion dimension of their activities.

The jurisdictional system, applied by the European community, can be read as a turning point in the protection of human rights. The European Council established the commission in Strasbourg. It analyzes all recourses, and checks whether they can be accepted according to Article 25 of the Convention. They can be introduced by non-governmental organizations, by political societies, and by so-called indirect meetings. The last category includes all those who receive indirect injury when a right is violated. The intervention in the trial is categorized as verbal participation in a public meeting, but preceded by a written piece, where this must be motivated and interpreted for all member states. Then, naturally, it is definitive, and can involve reimbursement and compensation for damage, according to criteria that are autonomously chosen by the court in evaluating causes and circumstances.

The reform of the judiciary systems inside the European Convention started with the resolution adopted in Vienna by the European Cabinet in 1985, and developed with Protocol XI, introduced for signature at the Strasbourg on 11 May 1994. This Protocol will be announced as soon as all the member states accept it as being binding. It is based on a single court and a mechanism of re-examination. Examinability will be discussed in larger courts.

We heartily hope, and I personally stress, that supporting and defending human rights, especially religious freedom, can be a real contribution in protecting and affirming human rights and democracy. Thank you very much.