#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.

Take for example the experience I had with one informant, charged of coordinating one religious organization’s educational activities. I met my interviewee in his office in Bucharest. The man confidently talked to me for about an hour about various infringements on pupils’ educational rights in the context of the teaching of religious education in public schools. My interlocutor was himself involved in the past in solving some conflict situations, and he had drawn on the text of the Romanian Constitution, the Law on Education, as well as with texts of UN resolutions in order to make his arguments stronger when representing the interests of his religious group’s members. Unlike other informants who had not had contact with texts of ECtHR decisions, this informant had read through some decisions (perhaps largely because a contact of his translated a book dealing with the jurisprudence of the ECtHR). But when I asked my interlocutor if he remembered any particular names of ECtHR cases, he became defensive “Now you took me by surprise, if I knew …” I did explain that my intention was not to conduct an evaluation, but as I went on to mention the names of our cases of interest, my interviewee visibly became uneasy.

I surely wish that my interviewees never take my questioning as a test at which they would have to perform well. I hope that they did and will understand that we do not aim to establish a hierarchy between religious groups according to their representatives’ awareness of the ECtHR’s case-law. My wishes and hopes aside, I am very well aware that I have to be more careful with asking some questions than others. Questions that may be perceived as evaluative fall into this category.

Probably all undergraduate social science students learn that they should be careful and avoid making their interviewees feel insecure about their ability to provide useful information to the research. Certainly as a research team we discussed extensively how to handle this line of questioning in such a way as to avoid the interviewee’s discomfort over knowledge he or she may not have about particular cases; we also had special advice on this from a research methods expert on our Advisory Board. I tried my best to achieve this, but found I came short of my goal when it came to asking my interviewees whether they knew about our cases of interest. Many of my interviewees did not know many details about the cases, and this did not come to me as a surprise. After all, how many people without legal training know ECtHR cases in detail anyway? Interestingly, it was quite rare that informants simply said in a relaxed way that jurisprudence is the stuff of legally trained persons. Based on the most frequent reactions of my informants, one could suspect that the continued presence of the ECtHR in the Romanian public sphere gives its decisions that special aura of events that any well-informed person should know about.

As a research team, we anticipated that our specific case-law inquiry might be quite challenging, so we devised a strategy for avoiding the feeling of being tested among our informants, while still quite specifically asking whether they knew about particular ECtHR cases or not. We did this because we agreed that attaining some sense, in a systematic fashion, of the extent to which grassroots level actors are aware of ECtHR case law would be critical to achieving insight into the ways and extent to which the Court’s case law is relevant at the grassroots level and thus carries the potential to mobilize. Indeed, such knowledge represents an important part of the larger puzzle pursued in the GRASSROOTSMOBILISE project. We called our inquiry about the case law a ‘non-test test’, and discussed that one way of handling the latter would be to mention the names of the particular cases at some point in the conversation and to note whether and how informants picked up on these queues. However I did not find this specific approach effective – it did not make my inquiry less off-putting. I learned this at one point during the fieldwork during the course of an interview with a university professor who was very talkative up to the points at which I dropped in passing some names of ECtHR cases which he did not know. Probably through the interference of those social-psychological mechanisms usually at work in interview situations, asking about our specific cases of interest made me appear an expert in matters of ECtHR jurisprudence. Since my main field of work is social anthropology, I am not an expert in jurisprudence – I emphasized this also to my informants.

As the fieldwork progressed, I realized that the best way to carry out our ‘non-test test’ was to ask our case-law questions in a separate section of the interview, with a proper introduction and framing that made it as clear as possible to my interlocutors that these cases are to different degrees known and important to different categories of persons, but that not everybody knows about them. This worked eventually fine, as my interviewees simply indicated which case they knew and from which sources, and which case they did not. I usually gave a short description of the cases they had not heard about, and some persons asked for further details, which I was glad to offer.

Did my non-jurist interviewees know about the ECtHR’s decisions in the cases 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? Not very often, not about all of these, and not in detail. Was it a methodological mistake to ask such incisive questions? While I was up to a point the most critical voice in our research team concerning the usefulness of bringing this element into the interviews, I must admit that without such questioning I could not have expressed the second sentence in this paragraph. Only by asking about our test cases could I more fully understand the extent to which the persons I talked to actually followed ECtHR decisions, focused on an area of the ECtHR’s jurisprudence, or followed cases of interest. Without asking precisely, the informant presented above would probably not have spoken about the fact that he had heard about the Lautsi case from the media. In fact, without asking these precise questions I would not have been able to report at this point that the Lautsi case is by far the most well-known case from among those we asked about (measuring this knowledge both in breadth and in depth) by the people I talked to up until now. The possible explanations for this occurrence will be discussed here in a future note from the field.