Between State and citizen: Religion and the European Court of Human Rights
4 May 2018 – Aegli Zappiou, Athens
On 4 May the Grassrootsmobilise Research Programme hosted a public conference at Aigli Zappeiou in Athens, on the subject of ‘Between state and citizen: Religion and the European Court of Human Rights’.
The conference entailed three rather diverse sessions designed around Grassrootsmobilise results and the questions that research raised, and a final one presenting a book on the European Court of Human Rights’ (ECtHR, or the Court) engagements with religion.
The first session showcased research results from the Grassrootsmobilise research programme. Here Effie Fokas opened the session with a brief presentation of the Grassrootsmobilise research programme’s aims and research design, followed by a paper applying cross-country comparison of the research results to reveal four main factors influencing grassroots level actors’ awareness of the Court’s religion-related case law. Ceren Ozgul and Margarita Markoviti then presented a joint paper focusing on a common point between the Turkish and Greek case studies in terms of legal status problems arising from the Lausanne Treaty of 1923. Alberta Giorgi and Pasquale Annicchino drew on the Italian case study to elaborate on how Lautsi v Italy serves as a lasting resource for majority faith reactions to certain developments in the Court’s case law. And Mihai Popa and Liviu Andreesu presented a paper (co-authored with Effie Fokas) examining the trajectory of Sindicatul Pastorul cel Bun v. Romania from a local feud to a transnational strategy in defence of religious autonomy and what this trajectory might mean both for religious freedom at the local and national level and for the ECtHR in relation to transnational culture wars at play. Marco Ventura and Julie Ringelheim, in their role as discussants for the panel, then offered their feedback on the individual papers, and on project as a whole. According to Professor Ventura, as has been noted about the ‘Lautsi’ effect on scholarly and practitioner discussions of religion and the ECtHR, so too ‘there will be a before and after Grassrootsmobilise … because of two main contributions which will make our work, after Grassrootsmobilise, completely different’. The first has to do with the relation between the specific and the general, including an emphasis on the importance of contextualisation, an understanding of the broadening of the scale in which the Court’s case law is discussed and negotiated (the ‘radiating effects’ of its case law), and insight into the role of strategies and interests in linking the specific contextual to the general international level. The second is the often extreme expectations that are placed on the Court, seen by many actors either as a panacea or a threat, whereas very rarely in reality and over time does the Court actually represent either one or the other on a given issue because – another lesson to be taken from Grassrootsmobilise – ‘when you’re dealing with law and religion, in essence you deal with the unexpected’. For her part, Professor Ringelheim began her comments with reference to an international conference she had organised on legal mobilisation where a panel of distinguished socio-legal scholars closed the conference with a discussion of three main areas where the current scholarship is lacking – all three of which gaps, Julie indicated – Grassrootsmobilise works towards filling: a need for understanding of what happens at the local level; a need to move beyond national case studies to more transnational research which also captures transnational dynamics at place; and a need for theory arising from other national (and/or international) contexts than that of the United States, which currently dominates the field. As Julie points out, Grassrootsmobilise looks carefully at what is happening at the local level and its trajectory to the international level, including the strategies of local actors, how the Court impacts on their perceptions of their rights on their mobilisations or non-mobilisation; the project also studies the case law of local courts, sometimes very obscure cases little known internationally and even nationally and yet important for the insights offered. Second, in Grassrootsmobilise the research is conducted transnationally, with case studies used to help highlight the transnational dimensions at play. And texts already published in Grassrootsmobilise highlight the limits of transfer of US theory to European contexts; here she welcomed even greater elaboration, with an expectation that Grassrootsmobilise can indeed generate much needed theory which will broaden the field from its current North American base.
In the second session, interview-type questions were asked by doctoral student Ms. Lisa Harms of legal practitioners regarding their own experiences of the ECtHR, Here Panos Bitsaxis, who defended Minos Kokkinakis in that watershed ECtHR case on religious freedom (Kokkinakis v. Greece, 1993), was asked to assess the overall importance of the rich body of Jehovah’s Witnesses ECtHR case law for the religious freedoms developments at the Court. Against the backdrop of all the attention received by the case of Lautsi, the co-founder and spokesperson of Greek Helsinki Monitor Panayote Dimitras (who also intervened in both the chamber and Grand Chamber Lautsi cases) was asked to speak about the impact of a series of other successes at the ECtHR for secularist claims – namely, Dimitras and Others v. Greece nos 1, 2 and 3, on the religious oath in Greek courts. Yannis Ktistakis, who defended Molla Sali in an ongoing ECtHR case against Greece regarding the prevalence of sharia law over Greek civil law in the region of Western Thrace, was asked to comment on how well prepared the ECtHR is to tackle questions of legal pluralism. And finally, Roger Kiska*. Legal counsel for Christian Concern, was asked to discuss Christian Concern’s intervention in the case of Molla Sali v. Greece.
The third roundtable asked a combination of legal practitioners and scholars to address several questions designed to help us understand whether and the extent to which we really need the ECtHR for the protection of religious freedom, given certain challenges in the ECtHR context and also the availability of other possibilities for religious freedoms protection. Here Brett Scharffs engaged with the question of whether and the extent to which Article 9 specifically of the European Convention on Human Rights (ECHR) is necessary for the protection of religious freedom or whether the latter could instead be protected by a combination and reinterpretation of other rights. Lucy Vickers, who has written extensively on ECHR Article 14 on non-discrimination, was asked how effectively religious freedom can be protected by the Court of Justice of the European Union in its handling of anti-discrimination cases. Malcolm Evans was asked to draw on his United Nations Human Rights Committee (UNHRC) experience to tell us whether we can rely sufficiently well on the UNHRC instead. Nicos Alivizatos explored the question of whether we can rely on national constitutional courts instead, particularly given the context of ‘new’ or renewed nationalisms which challenge the ability of the Court to maintain legitimacy in the face of complaints that it threatens national sovereignty. Renata Uitz offered her view on how effective the Court has been in defending the rights of LGBT individuals from religion). Paul Diamond* *gave us his assessment of whether the Court has done more to protect the rights of the religious or more to impinge on religious sensibilities. And finally, Ronan McCrea considered whether in the post-Brighton Process, post-Lautsi and post-introduction of Protocol 15, there has been a substantially new emphasis on the Margin of Appreciation which, in its liberal application in religion-related cases, undermines the Court’s protection of the freedom of conscience.
These sessions were followed by session marking the (near) publication of The Kokkinakis Papers: Taking Stock of 25 Years of ECtHR Jurisprudence on Freedom of Religion or Belief, co-edited by Jeroen Temperman, Malcolm Evans and Jeremy Gunn (notably, not a product of the Grassrootsmobilise project, though Effie Fokas and Dia Anagnostou have both contributed Grassrootsmobilise-based chapters to it). Here Jeremy Gunn offered a critical perspective on the Court’s 25-year trajectory in religion cases, focusing especially on the need to strengthen the effectiveness of the Court in the context of new (and old) nationalisms. Ahmed Shaheed then considered, in comparative perspective, the effectiveness of the ECtHR and other international institutions protecting the freedom of religion. Finally, the session closed with Silvio Ferrari’s rather poetic presentation of the ‘non-existent’ Kokkinakis Papers book, engaging in-depth however with certain aspects of the draft at his disposal to emphasise how vital such stock-taking of the Court’s handling of religion is and calling on both scholars and practitioners to remain vigilant in calling the Court to task where necessary.
The conference was attended by approximately 90 scholars, legal practitioners, and students.
Please listen here for a recording of session 1 of the conference.
Listen here for session 2.
Listen here for session 3.
Listen here for session 4.
* Roger Kiska kindly stood in for Andrea Williams who was unable to attend due to a pressing case for the organisation which she represents.
** Paul Diamond kindly took the place of Gregor Puppinck at the Roundtable, as the latter was also unable to attend due to a pressing case for the European Centre for Law and Justice.