Contribution au livre "Belief, Law and Politics, What Future for a Secular Europe?"

Pour ceux qui parlent anglais, voici le chapitre que j'ai écrit dans le livre "Belief, Law and Politics, what future for a secular Europe?", aux cotés des plus grands experts européens en droit des religions, suite à la publication du rapport "Religare ", financé par la Commission Européenne, résultat de 3 années de recherche par les experts du projet.

Ce chapitre que j'ai écrit est le dernier chapitre du livre. Le premier, qui suit le rapport Religare, est écrit par Heiner Bielefeldt, Rapporteur Spécial de l'ONU sur la liberté de religion et de conviction, et nous ne sommes que deux français à avoir écrit un chapitre, dont Frédérique Ast, juriste senior auprès du Défenseur des Droits. 

La référence du livre est ISBN: 978-1-4724-5346-4, et vous pouvez vous le procurer ici : http://www.ashgate.com/isbn/9781472453464

Voici le texte de mon chapitre :
 

Recent developments in relation to the Religare Project report

It is not an easy task to write a comment on such a carefully written and well presented report as that covered by the topics of the Religare Project. Criticizing is not an option when you have nothing to criticize, and paraphrasing would be useless.
 
So the only remaining option is to see if some areas of concern could benefit from additional perspectives, and see if in those areas of concern that are evolving every day – this being evidence that these topics are living topics – whether some new developments may be analysed in order to supplement the analysis and recommendations of the project.
 
Indeed, I think that in relation to the four areas of recommendation of the project, and within the scope of the two major concepts developed – or chosen – as the normative framework, ‘Inclusive State neutrality’ and ‘justice as even-handedness’, some recent developments, at national, European and international level, shed new light on the way these topics should be dealt with.
 
For analysing these new developments, I thought not to restrain myself to a national or European level, as it appears that all the countries studied during the project are subject to the international law contained in the International Covenant on Civil and Political Rights [ICCPR] of the United Nations, particularly article 18 on Freedom of Thought, Conscience and Religion.
 
It is said in the conclusions of the report that ’The right of minorities – whether religious or other – to religious freedom comes under pressure if the majority in a diverse society puts the imprint of its own conception of the “good life” upon legislation. Freedom of religion and belief is also and should remain, if not primarily, a fundamental right of minorities’, I will focus on the rights of minorities, as this is always the most crucial concern when human rights are involved, and as seen throughout the world, specifically when religious freedom is at stake.
 
I will summarize the following new developments that occurred during or since the project research was conducted:
 
• First of all, I will discuss the new EU guidelines on the promotion and protection of freedom of religion or belief which have been adopted by the European Council on 24 June 2013. These guidelines take a very strong position on behalf of the EU institutions on this subject, even if they were initially intended for application to EU external actions and are not legally binding for European Union members.
 
• I will then cover some recent decisions either by the European Court of Human Rights, the Committee of Human Right of the United Nations [UNHRC], or national jurisprudence in relation to the four areas of research of the project.
 
 
1. EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief
 
On the 24 June 2013, the Council of European Union adopted the EU guidelines on the promotion and protection of freedom of religion or belief, with the stated purpose of reaffirming ‘its determination to promote, in its external human rights policy, freedom of religion or belief as a right to be exercised by everyone everywhere, based on the principles of equality, non-discrimination and universality’ [article 6 of the guidelines]. While it is clear that the Foreign Council passed these Guidelines so they now form the external policy of the EU on religious freedom matters, they obviously should have force inside the EU too as they articulate the principles of religious freedom and non-discrimination the EU is committed to upholding throughout the world. Furthermore, Article 5 states that the EU is in essence committed to these principles ‘within their borders’.
 
Based on this, and on the fact that these guidelines refer explicitly to a non-exhaustive list of international norms, standards and principles, including the ICCPR and the European Convention on Human Rights and Fundamental Freedoms, there would be no contradiction if European Union Institutions would base their future legislation on these international instruments which are legally binding within the EU Member states.
 
Whilst it is not the first time the Council of the European Union has spoken on religious freedom. In November 2009 the Council recognized the importance of freedom of religion or belief and underlined ‘the strategic importance of freedom of religion or belief and of countering religious intolerance, and reaffirms its intention to continue to give priority to the issues as part of the European Union’s human rights policy’, [1] these EU Guidelines go far further than anything that has been already adopted by the EU institutions, with a formal recognition of international principles and standards as part of the EU commitments, in a practical document that develops the principles recognized by the Charter of Fundamental Rights of the European Union.
 
These Guidelines contain a strong and unequivocal commitment to respect – and to ensure respect of – a whole range of international standards on freedom of religion or belief. As it applies to religious minorities and ‘Inclusive State neutrality’ and ‘justice as even-handedness’, the Guidelines stress some very important points, especially in articles 14, 21, 22, 35, 37 and 42f, which refer to General Comment 22 on Article 18 of the ICCPR by the UN Human Right Committee [2] to stress that States should avoid any limitation of the freedom to manifest one's religion or belief which is not prescribed by law and necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others, with a strict interpretation and ‘not imposed for discriminatory purposes or applied in a discriminatory manner’. In addition, it states that ‘such restrictions must be based on principles not deriving exclusively from a single tradition, as the concept of morals derives from many social, philosophical and religious traditions’ which is particularly aligned with the recommendations of the Religare Project. Article 10 recalls that ‘freedom of thought, conscience, religion or belief, applies equally to all persons. It is a fundamental freedom that includes all religions or beliefs, including those that have not been traditionally practised in a particular country, the beliefs of persons belonging to religious minorities, as well as non-theistic and atheistic beliefs.’
 
Moreover, these guidelines are in adequacy with longstanding commitment of the Organization for Security and Cooperation in Europe [OSCE] as laid out in various documents by the Office for Democratic Institutions and Human Rights [ODIHR] of the OSCE, as the ODIHR Background Paper 1999/4 [3] published for the OSCE Review Conference of September 1999 or the Guidelines for Review of Legislation Pertaining to Religion or Belief [4] prepared by ODIHR and the Venice Commission, endorsed in June 2004 by the Venice Commission and welcomed in July 2004 by the OSCE Parliamentary Assembly.
 
So without being a legally binding document, these Guidelines are ‘soft law’ that should be of great inspiration for future legally binding policies and laws that will come from EU institutions, as they should be of great inspiration also for Member States to develop their own internal policies and guidelines, as they contain almost all the important concepts and standards that should govern freedom of religion or belief anywhere in the world, and that are underlying the approach of the Religare Project and complementing it. As suggested in the Religare report, EU guidelines for national governments should be drafted to provide appropriate protection to individuals and communities claiming their freedom of religion and belief, and these could draw their inspiration from the EU guidelines on the promotion and protection of freedom of religion or belief already adopted for external action.
 
2. Recent decisions by the European Court of Human Rights
 
Recently, the European Court of Human Rights [ECtHR] issued some very important decisions regarding freedom of religion or belief on violations of Article 9 of the Convention against religious minorities.
 
One of them is the landmark decision of 10 June 2010 in favour of religious freedom. Jehovah’s Witnesses of Moscow v. Russia [5] has direct application to issues relating to religious minorities. In this decision, the ECtHR strongly reaffirmed rights, which flow from the Convention, that encompass the freedom of religion or belief in its individual form as well as in its collective one:
 
• The right to conduct one’s life in a manner of one’s own choosing following one’s religious beliefs;
 
• The right to freedom of association and of self-dedication to religious matters;
 
• The right to engage in voluntary work or missionary activities; and
 
• The right of parents to ensure education and teaching in conformity with their own religious convictions.
 
The ECtHR delineated in that decision the State’s duty of neutrality and impartiality and its implications: 
 
119.  The Court further reiterates that the State’s duty of neutrality and impartiality prohibits it from assessing the legitimacy of religious beliefs or the ways in which those beliefs are expressed or manifested (see Leyla Şahin, cited above, § 107, and Hasan and Chaush, cited above, § 78). Accordingly, the State has a narrow margin of appreciation and must advance serious and compelling reasons for an interference with the choices that people may make in pursuance of the religious standard of behaviour within the sphere of their personal autonomy.
 
Thereby, the ECtHR reaffirmed the right to one’s own choice in religious matters and the prohibition for States to assess the legitimacy of beliefs, which is of an utmost importance for religious minorities and ‘non-traditional religions’, as they are usually the ones which are challenged on their religious beliefs and doctrines.
 
Regarding the sphere of family law the ECtHR also noted that confrontational situations might arise when parents have different convictions, and that these situations should be not be treated differently for a non-traditional religion than for a traditional one:
 
It is true that friction often exists in marriages where the spouses belong to different religious denominations or one of the spouses is a non-believer. However, this situation is common to all mixed-belief marriages and Jehovah’s Witnesses are no exception. [§111] 
 
And the Court confirmed that in cases of conflict both parents have an equal right to raise their children in accordance with their beliefs:
 
Both parents, even in a situation where they adhere to differing doctrines or beliefs, have the same right to raise their children in accordance with their religious or non-religious convictions and any disagreements between them in relation to the necessity and extent of the children’s participation in religious practices and education are private disputes that are to be resolved according to the procedure established in domestic family law. [§125] 
 
This decision is clearly in opposition with policies of intolerance towards non-traditional and new religious movements, as it exists in certain European countries, such as France, which has chosen to deal with religious minorities through a governmental agency called MIVILUDES [6], who are in charge of fighting against what they call ‘sectarian abuses’. For example, as regards family law and the rights of parents, MIVILUDES recommends an encroachment of the rights of minority believers, contrary to the principles developed in Jehovah’s Witnesses of Moscow v. Russia.
 
In MIVILUDES Annual Report 2009, under the heading ‘Assimilation of the sole beliefs of the movement’, it is explained that children brought up in a context of ‘sectarian subjection’ are ideologically isolated because they are subjected to a unique and exclusive discourse, for example by the daily repetition of a credo of allegiance to a superior entity or the substitution of a mythical discourse to rational explanations. According to this report, such education - which could apply to the raising of children in any religion - enslaves and diminishes the possibilities of the child.[7] It concluded by this question:
 
If such a [psychological] risk is established, isn’t the solution, as is often the case, to protect the young, and mostly the teenager, from a univocal vision of the world, to arrange for him, by giving the greatest possible prominence to the non-follower parent, views of other realities, even though if whilst in the exclusive sphere of his follower parent, he seems fulfilled and is working well at school and does not complain of anything?[8]
 
Since the above quoted Jehovah Witness’ decision, another decision from the ECtHR has tackled this very issue on 12 February 2013, Vojnity v Hungary. In that judgment the Court concluded that there was no reasonable relationship of proportionality between the total denial of the applicant’s right to access his child and the aim pursued, namely the protection of the best interest of the child. The ECtHR found that the applicant had been discriminated against on the basis of his religious convictions (as a member of a new Pentecostal evangelical movement) in the exercise of his right to respect for family life, as he had been denied his access rights on the basis of an expert opinion upheld by a domestic court according to which the applicant’s ‘irrational worldview made him incapable of bringing up his child’ and that he ‘did not exercise his right of access in accordance with its purpose ... but to impose his religious convictions on the child’.
 
In another judgement issued on 30 June 2011, Association Les Temoins de Jehovah v. France,[9] the ECtHR concluded there was a violation of Article 9, after having analysed the impact of the taxation on the association’s main source of funding – and on the consequences on its ability to assure its members the free exercise of religion – as well as on the lack of precision of the law which the taxation was based on. This decision is particularly relevant as regards the topics of State support mechanisms, which must be dealt with in accordance with ‘Inclusive State neutrality’ and ‘justice as even-handedness’. In that decision, the Court determined that Jehovah Witnesses had been subject, according to the association, to a series of special measures against so-called ‘cults’:
 
10. … During the debate on the report of the commission on cults in the National Assembly, 8 February 1996 (Official Journal of 9 February 1996), the Minister of Budget expressed himself as follows:
‘(...) First, I thank the rapporteur for having, in his excellent report, paid tribute to the tax authorities whose action allowed, on several occasions, some suppression of the activity of cults. (...) Beyond fiscal control, the consequences can be even more serious. Indeed, the control can lead to judicial settlement procedures or criminal actions against the leaders of the cult, actions that are likely to destabilize the functioning of the association, or to put it in the obligation to cease operations in our territory. Fiscal control may therefore be the first step in a process that profoundly disrupts the cult or lead to its dissolution (...).’
 
The Court reminded that the free exercise of the Jehovah’s Witnesses’ right to freedom of religion is protected under Article 9 of the Convention. It added that any denial of recognition of a religious association, dissolution or use of derogatory terms against it are all examples of interference with this right, in its external and collective dimension, towards the community but also its members, which must comply with the strict requirements of Article 9§2. In this case, the Court found that the interference of the French authorities could not be justified.
 
The ECtHR has constantly affirmed ‘Inclusive State neutrality’ and ‘justice as even-handedness’, even if not expressed exactly in that way, as basic requirements in dealing with religious minorities at national level.
 
 
3. The Sikhs versus France as regards religious dress codes
 
Three decisions particularly relevant as regards the access to and use of public spaces are the ones rendered by the UNHRC against France, in cases involving the Sikh community and the difficulties they encounter in their practice due to French limitations to the exercise of freedom of religion regarding religious dress codes.
 
On 27 September 2011, the Committee issued a decision[10] about a Sikh having been denied the right to renew his residence permit because he provided two photographs showing him wearing a turban, while explaining that wearing a turban was ‘a religious obligation and an integral part of Sikhism, his religion’. The Committee said that France had failed to explain how the Sikh turban hindered identification since the wearer's face would be visible and he would be wearing the turban at all times, and that therefore, the regulation constituted a violation of article 18 of the ICCPR, which entered into force for France on 4 February 1981. As regards to religious dress codes, the Committee declared:
 
8.3 The Committee refers to its general comment No. 22 concerning article 18 of the Covenant and considers that the freedom to manifest a religion encompasses the wearing of distinctive clothing or head coverings.[11] The fact that the Sikh religion requires its members to wear a turban in public is not contested. The wearing of a turban is regarded as a religious duty and is also tied in with a person’s identity.
 
A similar case has been judged by the UNCHR on 26 September 2013,[[12]]url:#_ftn12 where the Committee concluded that France had violated the religious freedom of 57-year-old Shingara Mann Singh when he was asked to remove his turban for his passport photograph. Shingara Singh, a French national since 1989, was unable to renew his passport in 2005 because the French authorities insisted that he remove his turban for his ID photograph, which he refused to do. The Court found that this limitation was unnecessary and disproportionate:
 
9.5 Consequently, the Committee is of the view that the State party has not demonstrated that the limitation placed on the author is necessary within the meaning of article 18, paragraph 3, of the Covenant. It also observes that, even if the obligation to remove the turban for the identity photograph might be described as a one-time requirement, it would potentially interfere with the author’s freedom of religion on a continuing basis because he would always appear without his religious head covering in the identity photograph and could thus be compelled to remove his turban during identity checks. The Committee therefore concludes that the regulation requiring persons to appear bareheaded in their passport photographs is a disproportionate limitation that infringes the author’s freedom of religion and constitutes a violation of article 18 of the Covenant.
 
Between these two decisions, the UNCHR issued another communication on 4 December 2012 [13], following facts related to Act No. 2004-228 of 15 March 2004, which, in conformity with the principle of secularism, covers the wearing in public primary schools, secondary schools and lycées of symbols and clothing manifesting a religious affiliation. This Act had led to the introduction of article L.141-5-1 in the Education Code, under which: ‘In public primary schools, secondary schools and lycées, the wearing of symbols or clothing by which pupils manifest their religious affiliation in a conspicuous manner is forbidden’. The Author of the complaint, a French Sikh student, had alleged a violation of article 18, on the grounds that he had been subject to discriminatory treatment on account of his religion and/or ethnic origin, after having been expelled from his school for wearing the keski.[14]
 
Whilst the Committee accepted that France was entitled to uphold the principle of secularism, ‘a means by which a State party may seek to protect the religious freedom of all its population’ and recognised that the adoption of the 2004 Act had responded to actual incidents of interference with the religious freedom of pupils and sometimes even threats to their physical safety, it also ruled that the wearing of a turban is regarded as a religious duty for a Sikh and is also tied in with his identity; and that France had not justified the prohibition on the wearing of the turban:
 
8.7 … the State party imposed this harmful sanction on the author, not because his personal conduct created any concrete risk, but solely because of his inclusion in a broad category of persons defined by their religious conduct. In this regard, the Committee notes the State party’s assertion that the broad extension of the category of persons forbidden to comply with their religious duties simplifies the administration of the restrictive policy. However, in the Committee’s view, the State party has not shown how the sacrifice of those persons’ rights is either necessary or proportionate to the benefits achieved. For all these reasons the Committee concludes that the expulsion of the author from his lycée was not necessary under article 18, paragraph 3, it infringed his right to manifest his religion and constitutes a violation of article 18 of the Covenant.
 
This decision is clearly aligned with the recommendation of the Religare Project that ‘authorities should limit the prohibition for students to wear symbols and clothing expressing their religious or philosophical convictions to situations where such restriction is strictly required to guarantee the carrying out of school activities and no reasonable accommodation of the religious needs of the student seems negotiable’.
 
It is to be noted that in these three decisions, the UNCHR recalled that:
 
By becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when a violation has been established.
 
No remedy has been proposed yet to the Sikh students who were deprived of the possibility to attend French public schools.
 
 
4. United Kingdom Supreme Court landmark decision on Scientology
 
On 11 December 2013, the United Kingdom Supreme Court issued a landmark decision[15] regarding the exercise of freedom of religion or belief, which should have a resounding influence on ‘Inclusive State neutrality’ and ‘justice as even-handedness’ throughout Europe. In that case, Louisa Hodkin (the first appellant) and her fiancé, Alessandro Calcioli, wanted to be married in the chapel of the Church of Scientology of London, but the Registrar General of births, deaths and marriages refused to register the chapel to conduct marriages because it was not recognised as a place of ‘religious worship’. This decision stemmed from a 1970 court case[16] which excluded Scientology because it did not fit within the terms of the 1855 Places of Worship Registration Act which counts only groups which revere a ‘deity’ as true religions.
 
The Supreme Court considered several evidences, including the fact that Scientology scriptures referred to God even if not in a way that Scientologists would revere God as a specific being, and ruled that excluding Scientology chapels as places of worship would be an unacceptable discrimination in today’s society. It also ruled that the criteria of believing in a ‘supreme deity’ or to revere God is not – at least nowadays – a relevant criteria:
 
52. Further, to confine religion to a religion which involves belief in a “supreme deity” leads into difficult theological territory. On the evidence of Mrs Wilks, Scientologists do believe in a supreme deity of a kind, but of an abstract and impersonal nature. Ideas about the nature of God are the stuff of theological debate.
 
Beside these considerations, the Court also noted that refusing to register the Scientology chapel as a place of worship, would lead to a double disability:
 
64. There is a further significant point. If, as I have held, Scientology comes within the meaning of a religion, but its chapel cannot be registered under PWRA because its services do not involve the kind of veneration which the Court of Appeal in Segerdal considered essential, the result would be to prevent Scientologists from being married anywhere in a form which involved use of their marriage service. They could have a service in their chapel, but it would not be a legal marriage, and they could have a civil marriage on other “approved premises” under section 26(1)(bb) of the Marriage Act, but they could not incorporate any form of religious service because of the prohibition in section 46B(4). They would therefore be under a double disability, not shared by atheists, agnostics or most religious groups. This would be illogical, discriminatory and unjust.
 
This decision has set the path for many European countries to take measures in order to ensure each religious minority, including non-traditional religions, are treated equally in regards to the actual diversity that is now the common ground throughout Europe. This decision is also a concrete application of the principles contained in the OSCE and Venice Commission Guidelines for Review of Legislation Pertaining to Religion or Belief [17], as laid out in point 2 of these:
 
2. The definition of ‘religion’. Legislation often includes the understandable attempt to define ‘religion’ or related terms (‘sects’, ‘cults’, ‘traditional religion’, etc.). There is no generally accepted definition for such terms in international law, and many States have had difficulty defining these terms. It has been argued that such terms cannot be defined in a legal sense because of the inherent ambiguity of the concept of religion. A common definitional mistake is to require that a belief in God be necessary for something to be considered a religion. The most obvious counterexamples are classical Buddhism, which is not theistic, and Hinduism, which is polytheistic.
 
 
5. The ‘Inclusive State neutrality’ and ‘justice as even-handedness’ under General Comment 22 of the UNHRC
 
To conclude, I think that the documents and decisions that I mentioned above are all relevant to the focus of the Religare Project, as well as its chosen normative framework, ‘Inclusive State neutrality’ and ‘justice as even-handedness’. These new developments in the field of Freedom of Religion or Belief show that there is an up trending willingness to deal with religious freedom in accordance with basic human rights standards. However, as developed in the Religare Project’s report, this is not only a question of ‘case law’. As the Religare Project has adopted a comparative and interdisciplinary approach, it has been able to recommend the implementation of many measures to enhance the awareness of the governments as well as the media and civil society. These measures are perhaps the most important ones, as they come before the case law that is often negatively influenced by hostile political views on various religious or philosophical movements.
 
It’s important to note that the General Comment 22 on the article 18 of the ICCPR by the UN Human Right Committee issued the 30 July 1993, had established the way to address these problems in accordance with a correct interpretation of the Article 18 of the ICPPR, as regards religious or belief minorities:
 
2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms "belief" and "religion" are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.
 
Finally, General Comment 22 pinpoints the most critical common ground underlying all difficulties that may arise in the European Union subsequent to an increasing social, cultural, religious and philosophical diversity. Any effort to implement these recommendations in the actual practice of the Member States will be rewarded by an increasing awareness as well as a better application of the human rights standards that govern our modern world, which are often currently not evenly applied from country to country, or from one religion to another, either by courts, authorities, or medias.