Participation in Fourth ICLARS Conference, “Freedom of/for/from/in Religion: Differing Dimensions of a Common Right?”, with panel on “Freedom(s) of Religion and the Jurisprudence of the European Court of Human Rights”

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8 –11 September 2016

St. Hugh’s College, Oxford, UK

The Fourth ICLARS Conference on “Freedom of/for/from/in Religion: Differing Dimensions of a Common Right?” took place from the 8th to the 11th of September at St. Hugh’s College in Oxford. The Conference featured a number of leading scholars presenting on a broad spectrum of interesting themes; the Grassrootsmobilise researchers participated with their panel on “Freedom(s) of Religion and the Jurisprudence of the European Court of Human Rights”, based on the preliminary results of their fieldwork research on the uses of ECtHR religion-related case law in national high courts.

Please find the abstracts of the four presentations below:

Italy as a special case? Direct and indirect influence of Strasbourg judgements on Italian controversies on law and religion

Pasquale Annicchino & Alberta Giorgi

This paper examines the role and influence of the decision of the European Court of Human Rights on major decisions of Italian Courts (especially the Italian Constitutional Court) on law and religion cases.  Through the analysis of three leading cases (Lautsi v. Italy; Costa Pavan v. Italy and Oliari v. Italy) and the use of semi-structured interviews with leading actors involved in the cases, it will be shown how, and to which extent, the ECtHR case-law has had a direct or indirect effect on decisions by Italian Courts.

 

Same-sex Civil Unions and Religion in the shadow of Vallianatos: from Greek national courts to the European Court of Human Rights (and back).

Margarita Markoviti

The paper examines an emerging dimension of religious freedoms in Greece that is found at the intersection of religion and LGBT rights. Following recourse to the European Court of Human Rights (ECtHR) and the conviction of the country in the case Vallianatos and Others, the paper looks specifically at the timely issue of same-sex civil unions and the ways in which the latter is linked to religion and national identity. It draws on semi-structured interviews with key actors in the field of LGBT and religious rights in the country, discourse analysis of the political and public deliberations, including a thorough study of national press coverage to highlight the relationship between the national and European dimensions over the contentious issue of same-sex civil unions.  The paper thus demonstrates the critical role of the European Court of Human Rights (ECtHR) not only in exposing limitations in national legislation and Greek courts but moreover in triggering a national debate and mobilizations around homosexuality, the family, religion and national identity.

 

Between the Turkish Constitutional Court and the ECtHR’s Impact: The Cases of Freedom of Religion 

Ceren Ozgul

As of 2012, Turkish Constitutional Court (TCC) started to accept individual applications for the first time since its establishment more than 50 years ago. With this amendment, TCC became part of the domestic court system, either as a first instance court or the highest court of appellations. With this change, individual citizens gained the right to lodge applications in this highest court of the country for claims regarding a violation of any of their fundamental rights and freedoms secured under the European Convention of Human Rights, as well as in the Turkish Constitution.

In the past, Turkish citizens have applied to European Court of Human Rights (ECtHR) after exhausting remedies in the domestic law to claim violation secured under the Convention, including the right to religious freedom. However, after a period of substantial human rights reforms that were implemented following pressure from European-level governance processes, including ECtHR rulings, the direct impact of EU accession and the Court’s ruling came to a halt. Consequently, grassroots actors have started expressing concern on the direct impacts of successful litigation in the ECtHR on the Turkish political and legal system. Constitutional legal scholars in Turkey expected that individuals would prefer the adjudication of TCC to ECtHR with the introduction of the right to individual applications, resulting in a decrease of the number of applications reaching ECtHR.

The effects of this change in the Turkish legal system on grassroots mobilization in connection with ECtHR rulings are yet to be studied in the realm of religious freedom. As an attempt in this direction, this paper discusses the extent and limits of the impact of the ECtHR rulings on legal mobilization in TCC by religious groups. It accomplishes this task by a detailed reading of two case files on religious freedom in the TCC: The first case concerns the application of a Jehovah’s Witness for exemption from compulsory military service in Turkey. The second case involves a confiscated property, a historic monastery of the Syriac minority in Turkey. Also, drawing on interviews with the applicants, religious group representatives, and lawyers, it further analyzes the impact of the access to individual applications to the TCC on legal mobilization in the ECtHR.

 

The spirit of freedom meets the specter of prison: Legal struggles of defrocked Romanian Orthodox priests in the ‘shadow’ of the ECtHR

Mihai Popa

In the aftermath of a landmark case arising from conflict between clergy and church hierarchy (Sindicatul Pastorul cel Bun v. Romania), this paper explores present-day dynamics of contestation of authority within churches in Romania and analyzes situations in which the European Court of Human Rights (ECtHR) becomes relevant for such dynamics. The analysis mainly focuses on cases of priests defrocked by the Romanian Orthodox Church, specifically on the strategies they deploy in order to continue performing religious rituals outside the formal structures of the church, while facing resistance both from their former employer and from the local authorities, who bring charges against them for illegally practicing the profession of priest. In the cases analyzed here, religious actors claim their right to freedom of religion before police forces, prosecutors and judges especially by drawing on provisions from the existing national legislation. The ECtHR and its case-law also become relevant, especially when the cases reach the domestic courts of justice. Litigation is shown to be an important catalyzer for grassroots actors to develop an interest in the ECtHR and its jurisprudence.