Participation in Conference on ‘Religions and Human Rights’ and Grassrootsmobilise meeting on national courts and the legal status of religious minorities

 

Edited photo

14-17 April 2016

Padua, Italy

Between the 14th and 17th April 2016 the Grassrootsmobilise team met in Padua both to participate in the conference on ‘Religions and Human Rights’ organised by the University of Padova’s Human Rights Centre, as well as to hold their research progress meeting.

The group was joined during their team meeting by Professor Eileen Barker, Professor Lori Beaman, Professor Silvio Ferrari and Professor James T. Richardson, in order to discuss the progress of their work concerning the legal status of religious minorities, as well as the results of their study of mass media references to Court’s religion-related case law in each country context. On the second day of our meeting we discussed plans for stages 2 and 3 of our study of references to the Court’s religion-related case law in national high courts (the results of which will be presented in Oxford in September 2016 as part of the International Consortium for Law and Religion Studies (ICLARS) Conference on ‘Freedom of/for/from/within religion: Differing dimensions of a Common Right?’.

At the University of Padova’s ‘Religions and Human Rights’ Conference the Grassrootsmobilise researchers participated with the panel ‘The Legal Status of Religious Minorities: Exploring the Impact of the European Court of Human Rights’, during which they presented the first findings from their research on the legal status of religious minorities in the four country case studies. The audience responded to the papers presented with a number of interesting and pertinent questions; the promised responses to these questions can be found below:

 

GRM Session Q&A

International Conference on RELIGIONS AND HUMAN RIGHTS

Padua, April 14-15, 2016

 

QUESTIONS AND ANSWERS OF PANEL ON GRASSROOTSMOBILISE RESEARCH RESULTS ON:

‘THE LEGAL STATUS OF RELIGIOUS MINORITIES: EXPLORING THE IMPACT OF THE EUROPEAN COURT OF HUMAN RIGHTS’

Our engaged audience at the Grassrootsmobilise session at this conference elected (through democratic process) to spend the little time available for questions and answers to pose more questions than time permitted for our responses and to visit our website instead in the aftermath of the conference for our responses to these questions. Below is an overview of the session, followed by our responses to the questions posed to us. Many thanks again to our audience for contributing to a fruitful exchange with your excellent comments and questions. Please do not hesitate to contact us at info@grassrootsmobilise.eu in the case we have misunderstood any of your questions and/or to continue the conversation!

SESSION OVERVIEW:
This panel showcased research conducted within the Grassrootsmobilise research programme (ERC grant agreement n° 338463) with an aim to understand the impact of the European Court of Human Rights (ECtHR) at the grassroots level, and its influence on religious pluralism from the ground up. Do ECtHR judgments make a difference when it comes to religious pluralism on the ground? This bottom-up research considers whether and how the Court’s case law mobilizes grassroots level actors, in terms of rights consciousness raising, agenda setting, providing the terms of negotiations, etc.

The panel drew specifically on research conducted on issues concerning the legal status of religious minority groups. The first paper in the proposed panel provided an analytical framework for the study of the Court’s ‘radiating effects’ on the grassroots level. It was followed by four papers each reflecting research in a different country case study and focused on the experiences of different religious minority groups ‘in the shadow’ of the ECtHR.

QUESTIONS AND ANSWERS:
Q. 1.a. I would like to know more about the Romanian case – I am very interested in what you mentioned regarding the coalition of different religious organisations on abortion, sex education, so I would like to know something more… Because of course there’s an interest to learn from conservative coalitions and to learn more on the progressive use of politics of rights in different European contexts (this is interesting in the Italian case too, there is something new about it).

A. Starting with the mid-2000s, dynamics of increasing inter-confessional cooperation are visible in Romania. These dynamics involve actors of different religious affiliation both from churches and from non-governmental organizations and they revolve around a variety of topics. The themes that until now have stimulated most inter-confessional cooperation have been that of the introduction of sex education in the public school system, the theme of abortion, and the definition of marriage and the family. The most recent inter-confessional cooperation theme concerns the changing of Article 48 in the Constitution to the effect that marriage be defined specifically as being the union of a man and a woman (not the union of “spouses”, as it is now defined in the constitutional text). Signatures are at present being gathered throughout the country with the support of churches and religious NGOs in order to place the constitutional change on the agenda of the Parliament. A similar endeavor was initiated in 2006-2007, but the signatures gathered then did not meet the necessary technical criteria in order to initiate the parliamentary proceedings. The new mobilization for the constitutional change takes place in the aftermath of the US Supreme Court decision in the Obergefell v. Hodges case (at least one important figure in the Christian alliance is a Romanian-born US lawyer) and of the ECtHR’s decision in the Oliari and others v. Italy case. As we could gather from our interviews conducted so far, some of the actors involved in this recent mobilization are very well aware and critical of these court decisions. More details about these inter-confessional dynamics (taking place in the shadow of important ECtHR decisions) will be available as the research proceeds and will be made available in the publications ensuing from our research project.

Q. 1. b. Second question, in which cases – I know it is a work in progress so I will know it at the end of the story – but maybe something is emerging about coalitions, the mention of coalitions, for reclaiming religious pluralism in European society. So in which contexts do you find some religion organisations, different denominations, different settled newcomers, trying to be inspired by the ECtHR case law and from what happened in other cases, to use it for claiming religious equality in the national case.

A. Indeed this is still a work in progress, but we can make the following observations about trends observed across the case studies: Awareness and deeper knowledge of the ECtHR religion-related case law is not necessarily linked to propensity of a given group to use that case law in its pursuit of its own aims and in its making of rights claims. Nor can we safely generalize about which groups or individuals are more likely to know of and use that case law: there are certainly some groups (e.g., Jehovah’s Witnesses, Atheists unions, human rights NGOs) which across our case studies have revealed a greater propensity to know of and use the case law, yet they do not necessarily operate in the same way across the cases (and, as noted below in response to question no.4, nor are individual organizations in these categories necessarily well informed about the relevant ECtHR case law (even if these organizations are among the very visible ones). The Jehovah’s Witnesses, for example, are far more likely to litigate on legal status issues in Romania and Greece than in Italy and Turkey (where, in the latter case, their litigation is solely in the area of conscientious objection to military service). Even so, in both Greece and Romania, after important successes in the high courts (or the ECtHR), their legal mobilization seems to have moderated lately. These differences across the cases in the case of Jehovah’s Witnesses have, in part, to do with how centralized the structure of the faith group is; decisions regarding where it is best to litigate and on what issues are likely to be taken by the centralized leadership of the faith group. A second critical factor is whether the group in question (or, more precisely, the religious organization that represents the interests of a religious group’s members, e.g., churches) employs staff with legal expertise: this is often an indicator linked to greater impact of ECtHR case law on the conceptions of that group’s rights and sometimes also on their social and legal mobilisations. Third, we have found the role of individual agency also critical (particularly in the Romanian case), whereby certain individuals, rather independently from any interest group to which they may belong, have cultivated their own in-depth knowledge of the Court’s case law and actively pursue their rights in the shadow of that case law. It should be noted, such religious actors develop their knowledge of the case-law to the extent that it is useful for their own litigation purposes. Moreover, in the Romanian case such actors appeal to the case-law of the ECtHR in order to defend their religious freedom, in those situations when it is restricted. As to whether and the extent to which groups establish coalitions, please see responses to Questions 1a and 3b.

Q.2. I have a question regarding the Italian case: I’m just curious to know about the Constitutional Court decision you mentioned, especially whether the court has considered the ECtHR decision and attempted to give some reasoning why the Strasbourg Court decision doesn’t apply to the particular case, or if it was generally dismissive of the Court’s decision? On that note also, I would like to ask, what is the implication of this emerging practice or trend of the Constitutional Court of Italy, in terms of the obligation of the county under the European Convention of Human Rights, on religious freedom and generally on human rights issues. I assume all parties to the Convention are under obligation to adhere to the decisions of the ECtHR, as with other conventions to which countries are party, have a binding power. So I’m just trying to understand what are the implications of the Constitutional Court’s decision to ignore the relevant ECtHR case law.

A. During our presentation we also mentioned two recent decisions by the Italian Constitutional Court. According to the Court (judgment 52/2016): “It cannot be argued that the lack of an agreement between the state and a given religious group is incompatible with the guarantee of equality between religious groups different from the Catholic Church as protected by article 8 of the Constitution (…) What the Constitution prohibits is the discrimination between religious groups which have or have not signed an agreement with the state”. The Court mentions in the judgment to the following decisions of the European Court of Human Rights: “Gutl v. Austria; Loffelmann v. Austria; Lang v. Austria; Savez crkava “Rijec zivota” and others v. Croatia and Jehovas Zeugen in Osterreich v. Austria, where the judges found instances of discrimination for the treatment of religious minorities and violation of articles 9 and 14 of the Convention. For the Italian Constitutional Court a distinction can be made vis a vis these precedents because the signing of an agreement with the State it is not considered by the Court as a “realization of the equality among religious groups as this principle is already protected by article 3, 8.1, 8.2 and 19 of the Constitution which guarantees the right to freedom of religion both individual and collective”. In other words, the Constitutional Court does reference the ECtHR case law (see the list of cases referenced above), but differentiates the Italian situation in the case at hand by arguing that equality amongst religious groups is sufficiently provided for in the Italian legal context. On that basis the Constitutional Court argues that the state’s refusal to enter into an intensa with a particular group does not thus entail discrimination against that group.

Q.3.a. I’m interested in kind of an overview that pulls together what are the common threads that come out of these studies; some are discernable but I’d like to hear you talk about that, from the various presenters and Effie herself.

A. The groups and issues we are studying in this aspect of our research are indeed rather diverse but what unites the case studies is the common question of how and to what extent does European Court of Human Rights case law related to religion impact upon the political and legal opportunity structures available to and used by religious minority groups in their pursuit of their rights related to their legal status? In our research into this question which serves as a common thread throughout this aspect of our study, certain patterns have started to emerge. Namely, the broader impact of some prominent cases, which influence the general political and legal opportunity structure and the public discourse, albeit in different ways across the cases. This is the case for Lautsi v. Italy (except in the Turkish case) – and it is the case in Italy also for Oliari et al. v. Italy and all the cases related to the headscarf (against states other than Italy). In the Greek case, the same applies to the Court’s case law emerging out of Jehovah’s Witnesses’ mobilization – starting with Kokkinakis in 1993 and developing further in the following decade – which has served both as a source of awareness of the ECtHR and has helped create the opportunity structures within which minority religious groups in the country may claim their rights. Meanwhile, across all our case studies issues related to the legal status of religious minorities as well as to religion in education emerge, on the other hand, as a national issue – meaning that the repertories of action especially target national/local venues, and the discursive resources are mainly national/local. Further, across all case studies we also find lesser propensity of some types of minority to engage in court cases. In Italy and Greece this is the case for relatively more recent arrivals in the countries (related to migrant communities).

Q.3.b. Also particularly on the Greek case, thinking about something that’s happened in the United States and elsewhere, I would be interested to hear more about the coalitions that minority religious groups formed to engage in promoting their right to exist… We have certainly seen coalitions form in some countries and it’s obvious that there’s something happening in Greece; I just wondered about the other countries as well.

A. Regarding the Greek case: no formal coalitions have been formed between religious minority groups in Greece to my knowledge. Two instances, however, deserve to be mentioned, both of which relate to my own encounters with such groups in the country. The first involves my meeting with the representative of a Buddhist community in Athens who was asking me whether I had already been in touch with other Buddhist communities in Thessaloniki. He wished to find out more about what their concerns were – around the question of their legal personality, but not only – and whether they could form some kind of coalition that would give them a stronger voice in the country. The second instance was during a meeting that we had organized last year at ELIAMEP to which we had invited members and representatives of a number of religious communities in Athens. Our guests saw this meeting as a unique opportunity for them to share their concerns, to hear each other’s views and to realize what problems they faced in common. No coalition, either formal or informal, was formed out of this, yet some of our guests did remain in touch with one another and they appreciated how much they gained out of such a meeting, which allowed them to have a constructive and open dialogue for the first time.

Regarding the Italian case: an important strategy pursued by a significant group of minorities in the last few years has involved the creation of the “Coalition for religious agreements with the State”. Created in March 2008 this pressure group has been able to achieve a significant result as the government led by Silvio Berlusconi passed in May 2010 the laws that enacted the previous agreements by the members of the coalition and the Italian government. . E.g. Mormons were part of the coalition for religious minorities – the interesting factor – they hired a professional lobbyist now working in Washington DC. A second coalitional activity is composed of historical minorities (especially the Waldensians-Methodist churches, which have a prominent symbolic role, as the first to have an agreement with the Italian State, and are leaders of a lot of what happens in field of minorities), scholars working in the field of religion, and some MPs, with the aim of supporting the enforcement of a law on religious freedom. Such a law would establish a common legal framework for all religions. A third coalition is the European federation of freedom of belief – (freedomofbelief.net). Formed at end of last year as a pressure group, it includes secular associations, and it is related to both majority and minority religions (it also includes the lawyer of Muslim Brothers). A fourth type of coalitional activity is the ‘Consulta per la laicità delle Istituzioni’ – a network of associations focusing on “the secularism of the State/institutions”. The composition of the network is locally-based (members are different in different cities) and it includes both secular (atheists, LGBT groups) and religious actors (Muslim groups, Waldensians-Methodist, We are church…).

Regarding the Romanian case, please see response above to question no.1a.

On the Turkish case: we cannot really speak in terms of coalitions since different communities experience problems regarding the lack of legal status on different issues. There are NGOs and centers in the universities that are trying to bring these communities together regarding a specific issue. In the past however, due to the specific nature of these problems as they apply each community, these initiatives did not go far in providing common platforms for the future.

Finally, on the Italian case but also well beyond, and related more to ‘grasstops’ rather than ‘grassroots’ mobilisations (on this aspect of our research see http://grassrootsmobilise.eu/research/at-the-supranational-level/), a politically and, in the end, legally very significant coalition developed in the aftermath of the chamber judgment in the Lautsi case (2009) and prior to the Grand Chamber judgment (2011). This mobilization entailed 10 national governments intervening in favour of the Italian state in that second hearing, the formation of which relied a great deal on Vatican diplomacy across countries and across faiths. The mobilization extended to 33 members of the European Parliament as well as 6 NGO’s (whilst 4 NGOs submitted 3rd party interventions in favour of the claimant). Such mobilization around a ECtHR case was unprecedented in terms of number of 3rd party interventions, and certainly communicated an important message to various groups regarding what could be achieved through the formation of cross-religious (and cross-national) coalitions.

Q.4. I noticed that in all the presentations you were arguing that the ECtHR has a lot of influence on the ground everywhere and I’m wondering how that is. For 80% of people to understand that the Court exists and for 2/3rds to know something about the Court, that they can take a case there is extraordinary [the person posing the question was corrected in that those statistics were raised only in the Romanian case and apply only to that case] – still, all of you were arguing that there’s been a trickle-down and trickle-up effect on some level and I’d like to know how? Is it through dissemination by the Court in various ways? Is it through public discussion that people become aware? And/or is it a consciousness of human rights that is taking root quite significantly?

A. Regarding the Romanian case, in a recent national poll it was shown that there is high awareness of the existence of the European Court of Human Rights in Romania. In this study (available in Romanian at http://www.drepturicivile.ro/2015/09/18/ce-stiu-romanii-despre-drepturile-lor/), 89% of the respondents declared to have heard about the European Court of Human Rights. Moreover, those interviewed appeared to hold also basic knowledge of the way in which the ECtHR is accessed: given several options to choose from, 69% of the respondents indicated that recourse to the ECtHR can be initiated only after the exhaustion of internal remedies. Such results must surely be read with precaution, given that the research instrument can explain partly some of the high percentages (respondents were given the option regarding the appeal to the Court after exhausting internal remedies) and that it is socially desirable to be a knowledgeable person (9% of the respondents in the same study indicated that they knew about the existence of a Romanian association protecting human rights, but 62% of them were unable to name one such association when an open question on this matter followed). Still, these results grant the need for some explanation. The explanation that comes most easily to mind relates to the exposure of the ECtHR and of its decisions in the Romanian mass media. There are two main ways in which this happens nowadays. On the one hand, there is direct coverage by the mass media of the Strasbourg Court’s decisions. On the other hand, the Court is mentioned as a forum of final appeal by a variety of actors interviewed by journalists. In the last years, these actors have been many times the politicians imprisoned following conviction and imprisonment on corruption charges. The living conditions in Romanian prisons are frequently in the spotlight of the media, especially because of the many convictions of the Romanian state due to them. Religious freedom cases judged at the ECtHR have also been discussed in the media, albeit to a more limited extent, and must have also contributed to this level of general awareness about the existence of the Court. However, we have not encountered until now respondents indicating that their interest in the Court’s jurisprudence was aroused by the news.

More generally across all four of our case studies, access to information about the Court and its decisions varies significantly across and within the cases. We have conducted a media study through which we have established relative coverage of ECtHR religious freedoms cases within five mainstream newspapers in each of the four countries studied in our project, but we’ve found stronger correlations between the factors mentioned in response to Question 2b, on the one hand, and knowledge of the case law, on the other. Namely, we see variations according to the group in question (for example, Jehovah’s Witnesses, Atheists unions and human rights NGOs tend actively to seek out information about the Court, though we cannot speak, based on our research, in quantitative terms about the level of knowledge of individuals within these groups). Related to the latter, we also see variations depending on the international links of the various groups: it is often the case (but not always) that stronger connection between the local and international related groups translates into more information on the ECtHR communicated to the local groups by the international groups. Further, we have observed significant differences between awareness of particular cases in the ECtHR and knowledge of the case law in general: for example, whilst the Lautsi case may be known to most of our respondents, this usually does not suggest knowledge of a broad gamma of cases related to the Court, while national actors tend sometimes to offer their own interpretations and understanding of the case (which, in turn, is often rather different from the spirit of the ECtHR judgement in question). Thus, it is important to distinguish between different ways in which grassroots-level actors become interested in the Strasbourg Court’s decisions and the extent to which they develop their knowledge of the jurisprudence. According to our data thus far, while the mass media gives information about the workings of the Court, the information may not be extensive enough for the audience to understand the arguments of the Court. Until now, the strongest interest in the workings of the Court was shown by actors dealing with cases of religious freedom infringement (focused knowledge of particular cases) and by actors interested in the general workings of the Court due to their professional experience (cause lawyers, human rights experts).

Q.5. On the Turkish case: what is the impact of the Turkish political life on the situation? Is there any difference in the distribution of the cases over different time periods and different governments?

A. Litigation in the ECtHR on issues regarding legal status (i.e. properties of the minority foundations, the right to own worship places, and the right to assembly) start in the pre-AKP period. On the one hand, Armenian and Greek Orthodox property cases seem to have come to a halt during the time of the AKP government due to relevant legal reform. On the other hand, problems with the issue of the status of the worship places, two cases brought to the court by an Alevi foundation (CEM Vakfi) are the most recent ones and this issue is still waiting for a solution since the Turkish government still has not implemented the Court’s judgment regarding the recognition of Alevi worship places (cem houses) officially.

Q.6. Also on the Turkish case: The current situation in Turkey has many problems, as you have already followed. But about the Armenian Church in Diyarbakir [see GRM website, under ‘Related headlines’, headline dated 6/4/2016 entitled ‘Turkey seizes six churches as state property in volatile southeast’], I just was wondering if you could comment on this situation.

A. Surp Giragos Church in Diyarbakir is the largest Armenian church in Middle East. The church was one of the many Armenian churches in Eastern Turkey that did not have a congregation after 1915. With legal changes in foundation administration as part of legal reform initiated by many cases in the ECtHR on the expropriated properties of the Armenian and Greek minorities, the church was restored and opened to worship in 2011.

Recently, the Turkish cabinet of ministers decided to expropriate Armenian, Syriac, Chaldean and Protestant churches -among them Surp Giragos- in the Sur province of Diyarbakir, as the Turkish army forced curfews continue in the area.

The Armenian community representatives recently stated that they will start legal action against the expropriation and indicated they would take the case to the ECtHR if the national courts will not grant a return of the church to the community.

Also see latest news on the issue in Agos newspaper:
http://www.agos.com.tr/en/article/14839/churches-of-diyarbakir-also-expropriated