#3 Romania – Let’s talk about religious freedom and the ECtHR. Shall we get into details?

By Mihai Popa

“Only somebody who never watches television hasn’t heard about the ECtHR”. This quotation, taken from an interview with one applicant in a case currently pending before the ECtHR, is a good starting point for this note, which contains reflections on some difficulties of approaching a research theme such as our own with persons who are not jurists, lawyers, prosecutors or judges. As the quotation above suggests, interviewees from Romania feel confident to engage in a conversation about the European Court of Human Rights. Less confident they became as we went into detail about the Court’s jurisprudence. In the paragraphs below I discuss a procedure that we as a research group devised in order to grasp whether our interviewees had a more in-depth knowledge of the ECtHR’s religion-related jurisprudence, point to some difficulties encountered, and reflect on the utility of asking persons who are not specialized in law precise questions about ECtHR cases.

Some time ago, a socio-legal scholar named Marc Galanter pointed out that courts of justice, through their decisions, not only affect those parties involved in a particular case. Courts of justice, this author said, produce ‘radiating effects’ that extend beyond the circle of litigants (Galanter 1983, see ‘Bibliography’ under ‘Output’). To put it simply, people who hear about one court decision or another are influenced in their thinking and acting by these decisions, because they can imagine what would happen to them if they were to choose the course of action taken by those in the circle of litigants to which the decision applied. In order to test Galanter’s idea of ‘radiating effects’ of court decisions in the case of the ECtHR, our research team set to find out if citizens know not only about the existence of the ECtHR but also about its decisions, as a pre-requisite step to the ‘radiating effects’ indicated by Galanter. We focused our inquiry on six cases that the research team as a whole deemed particularly suitable to such a ‘test’ of knowledge: Kokkinakis vs. Greece, Leyla Sahin vs. Turkey, Folgerø vs. Norway, Lautsi vs. Italy, Sindicatul “Pastorul cel Bun” vs. Romania, and S.A.S vs. France. With the exception of Folgerø and S.A.S., the cases we asked about arose from the countries included in our project. Given the cases’ importance in the economy of the overall jurisprudence of the Court, given that they had also been reflected in national-level mass media reports and debates (surely, some cases to a greater extent than others in each of the countries), we thought they could be known to those social actors specifically preoccupied with religious matters.

 I must say that it was not too complicated to find people without legal training who would talk to me about religious freedom and about the ECtHR within the framework of our project. I think my interviewees (representatives of religious organizations, of religious and secularist NGOs) have been generally willing to speak to me both because the topic of religious freedom is important to them and because the Strasbourg Court is quite visible nowadays in Romania. At present, it is by no means exceptional to hear that one plaintiff has won a case at the Strasbourg Court and that the Romanian state has to pay a certain fine (with public money, as the journalists usually emphasize) as just compensation. Neither is it exceptional to hear politicians prosecuted for corruption or their lawyers threatening publicly that they will seek justice at the Strasbourg Court. In this broader context of various discursive references being made to the ECtHR in the public sphere, it is understandable why I received the answer I quoted at the beginning of this note. While I have been fortunate to have a rather easy time establishing meetings with representatives of religious organizations and NGO’s interested enough in our research theme to be willing to discuss the topic with me, our analytical interest in finding out more in-depth details about individuals’ awareness of the Court and of its decisions proved rather more challenging.

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The “radiating effects” of the European Court of Human Rights on social mobilisations around religion in Europe – an analytical frame

Dia Anagnostou and Effie Fokas

Working Paper 1, v. 22 May 2015

While a growing non-legal scholarship has begun to explore the domestic implementation of international court judgments in national law and policy, virtually no attention has been paid to their indirect effects. Yet the indirect effects are arguably far more important than the direct impact judgments can have by means of their formal implementation by state authorities. Indirect effects include the ways in which international human rights judgments may influence domestic debates in law, politics and academia, raise public consciousness, change how social actors perceive and articulate their grievances and claims, empower national rights institutions, or prompt mobilization among civil society and other rights advocates. This paper sets out an analytical framework for the Grassrootsmobilise research in its study of the indirect effects of ECtHR religion-related case law. In so doing it seeks to start filling the gap in academic research and knowledge about the indirect effects of human rights case law, specifically in the area of religion and religious freedom.

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