NEUTRALITY OF PUBLIC AUTHORITIES

AND RELIGION*1

Abstract

The idea of neutrality is a keyword in the history of freedom of religion and conscience. Without State neutrality, the full recognition of these liberties is not possible. The main task will be to construct a definition of the concept of neutrality, from historical experience and a Comparative Law perspective. The jurisprudence of the European Court of Human Rights shows a possible way of understanding the principle of neutrality. It is not the only one possible. After centuries of religious wars, Europe wants to find a harmonic framework of coexistence between different religions, beliefs and ways of thinking. The idea of tolerance and neutrality of public authorities is a necessary first step, but it does not mean the end of the way.
Key words: neutrality, religious freedom, tolerance

INTRODUCTION

What is neutrality? Neutrality is a concept with an attractive profile. Everyone has a different perception of its meaning, but nobody knows its exact formula. Neutrality is an ethereal, undefined and vague concept. It is difficult to describe, perhaps because it is an indefinite juridical concept. Nevertheless the idea of neutrality exists. This idea resides in the same neighbourhood as the idea of tolerance, just in front of the idea of freedom, close to the ideas of equality and non discrimination. In this paper we will look for a possible answer in the jurisprudence of the European Court of Human Rights. It is a European answer and it is not the only one.

CONCEPT OF NEUTRALITY

The European Court of Human Rights*2 has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which these beliefs are expressed,*3 and that it requires the State to ensure mutual tolerance between opposing groups.*4 Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.*5

Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasions be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position.*6

Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society.*7 Where these “rights and freedoms” are themselves among those guaranteed by the European Convention of Human Rights or its Protocols, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society”.*8

The idea of religious neutrality departs from the idea of separation between Church and State. That separation between both poles is a previous condition, a conditio sine qua non, for the idea of neutrality. Neutrality does not mean indifference about the religious beliefs of the citizens. It does not involve anticlericalism or laicism.

Neutrality demands three requirements:*9

1) The non interference of the State in internal matters of religious groups.

The State should respect the internal autonomy of religious groups.

The only possible interference in this autonomy may be justified by the protection of other fundamental rights.

2) The State may not adopt any decision, in the fields under its competences, for a religious reason.

3) The relationships between State and religious groups should be focused on the defence of the fundamental right of religious freedom.

If the authorities are neutral, they may not be identified with any religious belief. They should defend the religious pluralism inherent to democracy, and pluralistic societies.

The State should guarantee peaceful coexistence between different religious groups, the freedoms of belief and worship, without privilege. The concept of neutrality is incompatible with the idea of privilege. If a national Government grants a privilege to a religious group, then it is not neutral.

If the State is neutral, then, the State may not be a believer. The State may not declare the true or false character of a religious belief, because if the State is neutral, this is not under its sphere of competences.

The idea of neutrality is a close neighbour of the concept of separation between Church and State. The State should not get involved in the internal affairs of religious groups. Religious groups are not a part of the State’s structure. If the State is neutral, then, the religious groups are not public entities.

There is not a single concept of neutrality in Europe.*10 Europe has a strong diversity of solutions in order to resolve the relationships between State and religious groups. It is a direct consequence of the diversity of historical experiences. For these reasons we find different solutions that reflect the plurality of identities and national cultures. In effect, the religious freedom recognized by the European Convention of Human Rights is applied to very different systems of relationships between the two poles. It is a consequence of the plurality of national cultures and identities. The religious freedom recognized in the framework of the European Convention of Human Rights, is applied in countries with a national or prevalent Church, as it happens in Denmark or Greece, in countries with a socially and legally privileged Church, as the cases of Italy, Spain, or Ireland, and in countries that proclaim the laïcité, as France.*11

Are all the European countries neutral on religious matters? I am not sure, because in countries like Italy or Spain there is a striking difference of legal treatment between the religious groups with a Concordat or an Agreement of Cooperation with the State, and the religious groups without this privileged kind of legal instruments of cooperation. Let us see for example the Italian case, where Muslims are the second religious community and they do not have an Agreement of Cooperation with the Italian Republic. That means that they do not have the right to tax benefits, the tax assignation in income tax, (0.8% of the Income Tax quota), and their religious marriage is not recognized by the State.

Other cases are Germany or Austria, where the religious groups that have the full recognition by the State, and have obtained the status of “Public Law Corporations”, may enjoy especial prerogatives, such as the Kirchensteur, or religious tax.

NEUTRALITY AND NON DISCRIMINATION

The idea of neutrality is incompatible with discriminatory behaviour by public authorities, according to the Jurisprudence of the European Court of Human Rights. Let us see different examples:

1) In the case of Hoffmann v. Austria, of 23 June 1993, Austria was condemned because a woman who was a Jehovah Witness was deprived of the custody of her children, because of her religious beliefs.

2) In Thlimmenos v. Greece, of 6 April 2000, the applicant alleged that the refusal of the Greek authorities to appoint him to a post of chartered accountant on account of his criminal conviction for disobeying, because of his religious beliefs, the order to wear the military uniform was in breach of Articles 9 and 14 of the Convention. The Tribunal considered the conduct of the Greek authorities to be against the European Convention of Human Rights, E.C.H.R.

3) In Ivanova v. Bulgaria, of 12 April 2007, Bulgaria lost the case because of the unfair dismissal of a woman member of the religious group, World of Life. The dismissal was camouflaged under a change of the requirements for a place of work. The employer introduced artificial and harder conditions, but the real intention was to discriminate against this worker for her religious beliefs.

PROJECTIONS OF THE IDEA OF NEUTRALITY

The idea of neutrality, like all indeterminate concepts, is an expansive idea. The idea of neutrality has a direct impact on public mass media, public education, public protocol, taxes, criminal law, or labour law.

The European Court of Human Rights said in Kokkinakis v. Greece, of 25 May 1993, that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.*12

PUBLIC EDUCATION

The idea of neutrality has a direct impact on public education. It means that public education should be neutral. In the case Kjeldsen, Busk Madsen and Pedersen v. Denmark, of 7 December 1976, the European Court of Human Rights established that the State can not indoctrinate the students against the religious and philosophical convictions and beliefs of their parents. The State should be respectful with the right of the parents to decide the kind of religious education that they want for their children. The E.C.H.R., has recently condemned Norway and Turkey in the cases Folgerø and others v. Norway, of 29 June 2007 and Hasan and Eylem Zengin v. Turkey, of 9 October 2007.*13 The State should not indoctrinate. It is not within the sphere of its competences.

RELIGIOUS SYMBOLS AND CLOTHES

The use of religious clothes such as veils, foulards, etc. has been proble-matic. The Swiss authorities forbade the use of an Islamic headscarf in class by a teacher converted to Islam. The applicant submitted that the measure prohibiting her from wearing a headscarf in the performance of her teaching duties infringed her freedom to manifest her religion. In the decision Dahlab v. Swiss, of 15 February 2001, the European Court of Human Rights supported this prohibition because the Court understood that the Islamic headscarf used by a teacher may influence the students. The applicant was prohibited, purely in the context of her activities as a teacher, from wearing a headscarf, and it was justified by the potential interference with the religious beliefs of her pupils, other pupils at the school and the pupils’ parents, and by the breach of the principle of denominatio-nal neutrality in schools. The Court further observes that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.*14

The Court has legitimated the British legislation about road safety that imposes the use of a helmet on all motorcycle riders, Sikhs included,a href="#_ftn15" name="_ftnref15" title="" id="_ftnref15">*15 the airport security norms that compel the removal of the turban of a Sikh for security inspection,*16 and the removal of a Muslim woman’s veil for her identification in a French consulate.*17

In Leyla Sahin v. Turkey, of 10 November 2005, the Court approved the Turkish authority’s restrictions in the use of Islamic headscarf at the Faculty of Medicine at Bursa University. The applicant submitted that the ban on wearing the Islamic headscarf in institutions of higher education constituted an unjustified interference with her right to freedom of religion, in particular, her right to manifest her religion.*18 The Tribunal reiterated its previous doctrine that in democratic societies, in which several religions coexist, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the different interests and ensure that everyone’s beliefs are respected.*19

A similar solution was given in the cases Dogru and Kervanci v. France, of 4 December 2008. The Court legitimated the French restrictions of the use of Islamic headscarf during physical education and sports classes. These restrictions were justified if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety.

PUBLIC ECONOMIC SUPPORT OF RELIGIOUS GROUPS

In the decision Baptist Church of Salvador v. Spain, of 11 January 1992, the E.C.H.R. considered not contrary to the Convention the property tax privileges of the Catholic Church. These privileges are based on the Agreement on Economical Matters of 1979 between the Holy See and Spain. We do not agree with these arguments because the consequence is a distinction between citizens of first class and second class.

In Darby v. Sweden, of 23 October 1990, the Tribunal considered against article 14 of the European Convention of Human Rights, the taxation with the “Church Tax” by the Church of Sweden, of a Finnish citizen that did not belong to this Church.

The E.C.H.R. did not see any lesion against the Convention, in the Spanish and Italian legislations that do not recognize the right of all religious groups, to the “Tax Asignation” in Income Tax. This was resolved in the cases Alujer Fernández and Caballero Gracia v. Spain, of 14 June 2001, and Spampinato v. Italy, of 29 March 2007. According to the European Court of Human Rights, the negative of the Spanish and Italian authorities for the financial support of an association of Evangelicals believers or Atheists, is covered by the margin of appreciation of the States.

This interpretation is susceptible to controversy. The consequence is a strong, -and, in my opinion, also unjustified-, difference of treatment between citizens who are equal in front of the Law.

REFUSAL TO OATH AND REFUSAL TO REVEAL ONES OWN CONVICTIONS

In Buscarini and others v. San Marino, of 18 February 1999, two members of Parliament challenged the legislation of San Marino that imposed a compulsory Christian oath, before taking possession of their condition of deputies. This legislation was revoked, because it was considered against religious freedom.

In Spampinato v. Italy, of 29 March 2007, the E.C.H.R. considered that to mark a cross in the Income Tax Declaration, for the Tax Assignation, was not a revelation of one’s own beliefs.

Other important case was Alexandridis v. Greece, of 21 February 2008. Greece was condemned because this legislation supposed that all the Greek lawyers were orthodox, and for this reason they should give a Christian orthodox oath. The non orthodox lawyers should reveal their beliefs, in order to avoid this obligation, and accomplish a previous application form soliciting a formula of neutral promise. This was considered by the E.C.H.R. as a violation of article 9 of the Convention.

RELIGION IN THE ARMY

In Kalaç v. Turkey, of 1 July 1997, the Court admitted the compulsory retirement of three officers of the Turkish army because of their membership of an Islamic fundamentalist party, and they have expressed ideas against the Turkish principle of laïcité. And in Larissis v. Greece, of 24 February 1998, the Court considered that the Greek authorities were in principle justified in taking some measures to protect the lower ranking airmen from improper pressure applied to them by the applicants in their desire to promulgate their religious beliefs.

LABOUR TIMETABLES AND RELIGIOUS OBLIGATIONS.

In 1981 the Commission studied the case of a Muslim British teacher who was working as a full time employee at the Inner London Education Authoritya href="#_ftn22" name="_ftnref22" title="" id="_ftnref22>*22 , and was forced to change his working conditions and to sign a part time contract, with a lower salary. The Commission understood that there was not any discrimination, because he had the possibility of carrying out his religious obligations, and he had the opportunity of changing his contract conditions even when this objection of conscience was born after the signature of the first contract.

In Kosteski v. the Former Yugoslav Republic of Macedon, of 13 April 2006, the Court insisted in the full prove of the religious beliefs in order to justify an objection of conscience.

FREEDOM OF EXPRESSION AND FREEDOM OF RELIGION.

The use of freedom of expression should be respectful with the religious beliefs of the other citizens. Let us remember the unfortunate case of cartoons in Denmark. In the case Otto-Preminger Institut v. Austria, of 20 September 1994, the Court legitimized the forfeiture of the film, “Das Liebeskonzil", in English: “The Council of Love”, for its attack on the Catholic faith.Recently According to Santolaya,a href="#_ftn29" name="_ftnref29" title="" id="_ftnref29>*29 the Court understood that there is not an uniform conception of the significance of religion, for this reason the Court did not realize an exhaustive definition of what is understood as an attack against religion, giving a wide margin of interpretation to the different national authorities.

RECOGNITION BY THE STATE OF LEGAL PERSONALITY OF RELIGIOUS GROUPS

The arbitrary negative by public authorities of the legal personality of religious groups has been condemned by the European Court of Human Rights in many cases, such as for example in Canea Catholic Church v. Greece, of 16 December 1997, Metropolitan Church of Bessarabia and others v. Moldova, of 21 December 2001, Moscow Branch of the Salvation Army v. Russia, of 5 October 2006, Church of Scientology v. Russia, of 5 April 2007, and Biserica Adevarat Ortodoxa din Moldova and other versus Moldava, of 27 February 2007.

In the case of Religionsgemeinschaft der Zeugen Jehovas and others v. Austria, of 31 July 2008, Austria was condemned because of its delay in the full recognition of personality of the Jehovah Witness in this country, and the discriminatory implementation of the Austrian legislation of recognition of legal personality. The Austrian authorities gave the full recognition of legal personality to the Coptic Orthodox Church before the ten-year waiting period, and without the requirement of the 2 per thousand of the population. This author denounced these double standards in two previous papers published in 2006.a href="#_ftn30" name="_ftnref30" title="" id="_ftnref30>*30

The intromission of national authorities in the appointment of religious authorities has been condemned by the European Court of Human Rights in the cases Serif v. Greece, of 14 December 1999, Hasan and Chaush v. Bulgaria, of 26 October 2000, Supreme Holy Council of the Muslim Community v. Bulgaria, of 16 de December 2004,a href="#_ftn31" name="_ftnref31" title="" id="_ftnref31>*31 Agga v. Greece, of 17 October 2002 and 13 July 2006, and Svyato-Mykhaylivska Parafiya v. Ukraine, of 14 June 2007.

TEMPLES, PLACES OF WORSHIP AND OTHER RELIGIOUS PROPERTIES

The Greek Government was condemned in the case Manoussakis v. Greece, of 26 September 1996, because the public authorities denied authorization for Jehovah Witnesses to open a place of worship.

In the case Kuznetsov and others against Russia, of 11 January 2007, the Court condemned Russia for a discretional interruption of a Jehovah Witness meeting by public forces, in a building rented to the education authorities.

In the case Cyprus v. Tukey, of 10 May 2001, Turkey was condemned because of the policy of limiting the freedom of movement of the Greek-Cypriots and thereby restricting access to places of worship. Turkish authorities did not approve the appointment of orthodox priests.Nevertheless, in the case Holy Monasteriesa href="#_ftn3" name="_ftnref3" title="" id="_ftnref3>*3 v. Greece, of 9 December 1994, the Court admitted certain restrictions established by the Greek authorities, which introduced certain limitations of the properties accumulated by certain orthodox monasteries, because these limitations did not inhibit the worship and the right of religious freedom.

PROSELYTISM

The problem of proselytism was studied in the cases Kokkinakis v. Greece, of 25 May 1993, and Larisis v. Greece, of 24 February 1998. The European Court of Human Rights does not accept so called improper proselytism, which represents a corruption or deformation of proselytism, and takes the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.

CONCLUSIONS

Europe has become a multicultural continent where there is a convergence of different religious beliefs. The jurisprudence of the European Court of Human Rights shows a possible way of understanding the principle of neutrality. It is not the only one possible.

After centuries of bloody religious wars, Europe tried to find a harmonic framework of coexistence between different religions, beliefs and ways of thinking. The idea of tolerance and neutrality of public authorities is a necessary first step. But it does not mean the end of the way.

There are many defects and we need to improve in many aspects. The ideas of tolerance, religious freedom and religious and ideological neutrality of public authorities are the best tools, and our best allies. These ideas are the results of a difficult historical conquest. It was very difficult for Europeans to assume these ideas in our culture. Probably we need to improve in many aspects.

JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

Kjeldsen, Busk Madsen and Pedersen v. Denmark, of 7 December 1976.

X v. United Kingdom, of 12 July 1978.

Darby v. Sweden, of 23 October 1990.

Baptist Church of Salvador v. Spain, of 11 January 1992.

Kokkinakis v. Greece, of 25 May 1993.

Hoffmann v. Austria, of 23 June 1993.

Otto-Preminger Institut v. Austria, of 20 September 1994.

Holy Monasteries v. Greece, of 9 December 1994.

Manoussakis v. Greece, of 26 September 1996.

Wingrove v. United Kingdom, of 25 November 1996.

Kalaç v. Turkey, of 1 July 1997.

Larissis v. Greece, of 24 February 1998.

Buscarini and others v. San Marino, of 18 February 1999.

Serif v. Greece, of 14 December 1999.

Thlimmenos v. Greece, of 6 April 2000.

Hasan and Chaush v. Bulgaria, of 26 October 2000.

Dahlab v. Swiss, of 15 February 2001.

Cyprus v. Tukey, of 10 May 2001.

Alujer Fernández and Caballero Gracia v. Spain, of 14 June 2001.

Metropolitan Church of Bessarabia and others v. Moldova, of 21 December 2001.

Agga v. Greece, of 17 October 2002.

Müslüm Gündüz v. Turkey, of 3 December 2003.

Supreme Holy Council of the Muslim Community v. Bulgaria, of 16 de December 2004.

Phull v. France, of 11 January 2005.

Leyla Sahin v. Turkey, of 10 November 2005.

Paturel v. France, of 22 December 2005.

Giniewski v. France, of 31 January 2006.

Kosteski v. the Former Yugoslav Republic of Macedon, of 13 April 2006.

Aydin Tatlav v. Turkey, of 2 May 2006.

Agga v. Greece, of 13 July 2006.

Moscow Branch of the Salvation Army v. Russia, of 5 October 2006.

Kuznetsov and others against Russia, of 11 January 2007.

Biserica Adevarat Ortodoxa din Moldova and other versus Moldava, of 27 February 2007.

Spampinato v. Italy, of 29 March 2007.

Church of Scientology v. Russia, of 5 April 2007.

Ivanova v. Bulgaria, of 12 April 2007.

Svyato-Mykhaylivska Parafiya v. Ukraine, of 14 June 2007.

Folgerø and others v. Norway, of 29 June 2007.

Hasan and Eylem Zengin v. Turkey, of 9 October 2007.

Alexandridis v. Greece, of 21 February 2008.

El Morsli v. France, of 4 March 2008.

Religionsgemeinschaft der Zeugen Jehovas and others v. Austria, of 31 July 2008.

Dogru and Kervanci v. France, of 4 December 2008.

BIBLIOGRAPHY

CHELINI-PONT, BLANDINE y GIRARD, DIDIER. Le voile musulman et la conception française de l´Etat laïc. Note sous les arrêts de la Cour européenne des droit de l´Homme Dogru et Kervanci c. France (4 décembre 2008). In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 19. January 2009.

JUSDADO RUIZ-CAPILLAS, MIGUEL ÁNGEL and CAÑAMARES ARRIBAS, SANTIAGO. La objeción de conciencia en el ámbito educativo. Comentario a la Sentencia del Tribunal Europeo de Derechos Humanos Folgerø contra Noruega. In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 15. October 2007.

LLAMAZARES FERNANDEZ, D. Derecho de la libertad de conciencia. I. Libertad de conciencia y laicidad. Civitas. Madrid. 1997. Page 37.

MARTÍNEZ TORRÓN, JAVIER. La protección internacional de la libertad religiosa y de conciencia, cincuenta años después. In: Revista de la Facultad de Derecho de la Universidad de Granada, 3rd. Period. Number 2, 1999, pages 63 to 88.

MARTÍNEZ TORRÓN, JAVIER. The European Court of Human Rights and Religion. In: Law and Religion. Current legal issues 2001, volume 4. Oxford University Press. Pages. 185 to 204.

MARTÍNEZ TORRÓN, JAVIER. La protección de la libertad religiosa en el sistema del Consejo de Europa. In: Proyección nacional e internacional de la Libertad religiosa. Ministerio de Justicia. Madrid. 2001. Pages 89 to 131.

MARTÍNEZ TORRÓN, JAVIER. Los límites a la libertad de religión y de creencia en el Convenio Europeo de Derechos Humanos. In Revista General de Derecho Canónico y Derecho Eclesiástico del Estado. Iustel. Number 2. 2003.

MARTÍNEZ TORRÓN, JAVIER. The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief: The European Convention on Human Rights. In: Global Jurist Advances, vol. 3, [2003] n.º 2, article 3.

MARTÍNEZ TORRÓN, JAVIER. Libertad de expresión y libertad de religión. Comentarios en torno a algunas recientes sentencias del Tribunal Europeo de Derechos Humanos. In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 11. May 2006.

RELAÑO PASTOR, EUGENIA and GARAY, ALAIN. Los temores del Tribunal Europeo de Derechos Humanos al velo islámico: Leyla Sahin contra Turquía. In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 12. October 2006.

ROBERTS, GERHARD. Estado e Iglesia en la Unión Europea. Facultad de Derecho de la Universidad Complutense / Nomos Verlagsgesellschaft. Madrid-Baden Baden. 1996.

SANTOLAYA, PABLO. Religion and Liberties. In: European Review of Public Law Vol. 17. Spring 2005. Esperia Publications. London. Pages 175 to 200.

TORRES GUTIÉRREZ, ALEJANDRO. La libertad de pensamiento, conciencia y religión (Art. 9 CEDH). In: GARCÍA ROCA, JAVIER and SANTOLAYA, PABLO. (Coords.) La Europa de los derechos. El Convenio Europeo de Derechos Humanos. Centro de Estudios Constitucionales. Madrid. 2005. Pages 509 to 527.

TORRES GUTIÉRREZ, ALEJANDRO. El Derecho de Libertad de Conciencia en Austria. Dykinson. Madrid. 2006.

TORRES GUTIÉRREZ, ALEJANDRO. Análisis de la nueva legislación federal sobre el estatuto legal de las Iglesias Orientales Ortodoxas, la redenominación dada a la Iglesia “Evangélica”-Metodista, y la nueva política de extranjería en materia de integración de inmigrantes en Austria. In: Laicidad y Libertades. Escritos jurídicos. Number 6. Volume II. 2006. Pages 35 to 69.

TORRES GUTIÉRREZ, ALEJANDRO, HRISTOV KOLEV, ÁNGEL, NIKOLOV DOVREB, EMIL, and PETROVA ANGELOVA, ILINA. Estatuto legal de las Confesiones Religiosas en Bulgaria. In: CIMBALO, GIOVANNI and BOTTI, FEDERICA. (Coord.). Libertà di coscienza e diversità di appartenenza religiosa nell´Est Europa. Bononia University Press. Bologna. 2008.




Prof. Dr. Alejandro Torres Gutiérrez

Public University of Navarre, SPAIN



NEUTRALITY OF PUBLIC AUTHORITIES AND RELIGION

Rezime

The idea of neutrality is a keyword in the history of freedom of religion and conscience. Without State neutrality, the full recognition of these liberties is not possible. The main task will be to construct a definition of the concept of neutrality, from historical experience and a Comparative Law perspective. The jurisprudence of the European Court of Human Rights shows a possible way of understanding the principle of neutrality. It is not the only one possible. After centuries of religious wars, Europe wants to find a harmonic framework of coexistence between different religions, beliefs and ways of thinking. The idea of tolerance and neutrality of public authorities is a necessary first step, but it does not mean the end of the way.

Key words: neutrality, religious freedom, tolerance



*1 With the financial support of the Department of Education, Universities and Research, of the Basque Country, (Resolution of October 30, 2007).

*2 MARTÍNEZ TORRÓN, JAVIER. La protección internacional de la libertad religiosa y de conciencia, cincuenta años después. In: Revista de la Facultad de Derecho de la Universidad de Granada, 3rd. Period. Number 2, 1999, pages 63 to 88. MARTÍNEZ TORRÓN, JAVIER. The European Court of Human Rights and Religion. In: Law and Religion. Current legal issues 2001, volume 4. Oxford University Press. Pages. 185 to 204. MARTÍNEZ TORRÓN, JAVIER. La protección de la libertad religiosa en el sistema del Consejo de Europa. In: Proyección nacional e internacional de la Libertad religiosa. Ministerio de Justicia. Madrid. 2001. Pages 89 to 131. MARTÍNEZ TORRÓN, JAVIER. Los límites a la libertad de religión y de creencia en el Convenio Europeo de Derechos Humanos. In Revista General de Derecho Canónico y Derecho Eclesiástico del Estado. Iustel. Number 2. 2003. MARTÍNEZ TORRÓN, JAVIER. The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief: The European Convention on Human Rights. In: Global Jurist Advances, vol. 3, [2003] n.º 2, article 3. MARTÍNEZ TORRÓN, JAVIER. Libertad de expresión y libertad de religión. Comentarios en torno a algunas recientes sentencias del Tribunal Europeo de Derechos Humanos. In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 11. May 2006. TORRES GUTIÉRREZ, ALEJANDRO. La libertad de pensamiento, conciencia y religión (Art. 9 CEDH). In: GARCÍA ROCA, JAVIER and SANTOLAYA, PABLO. (Coords.) La Europa de los derechos. El Convenio Europeo de Derechos Humanos. Centro de Estudios Constitucionales. Madrid. 2005. Pages 509 to 527.

*3 Manoussakis and Others v. Greece, of 26 September 1996, § 47; Hasan and Chaush v. Bulgaria, of 26 October 2000, § 78; Refah Partisi (the Welfare Party) and Others v. Turkey, of 13 February 2003 § 91. Leyla Sahin v. Turkey, of 10 November 2005, § 107.

*4 United Communist Party of Turkey and Others v. Turkey, of 30 January 1998, § 57.

*5 Serif v. Greece, of 14 December 1999, § 53.

*6 Young, James and Webster v. the United Kingdom, of 13 August 1981, § 63; Chassagnou and Others v. France, of 29 April 1999, § 112 and Leyla Sahin v. Turkey, of 10 November 2005, § 108.

*7 United Communist Party of Turkey and Others v. Turkey, of 30 January 1998, § 45; Refah Partisi (the Welfare Party) and Others v. Turkey, of 13 February 2003 § 99 and Leyla Sahin v. Turkey, of 10 November 2005, § 108.

*8 Chassagnou and Others v. France, of 29 April 1999, § 113 and Leyla Sahin v. Turkey, of 10 November 2005, § 108.

*9 LLAMAZARES FERNANDEZ, D. Derecho de la libertad de conciencia. I. Libertad de conciencia y laicidad. Civitas. Madrid. 1997. Page 37.

*10 ROBERTS, GERHARD. Estado e Iglesia en la Unión Europea. Facultad de Derecho de la Universidad Complutense / Nomos Verlagsgesellschaft. Madrid-Baden Baden. 1996.

*11 TORRES GUTIÉRREZ, ALEJANDRO. La libertad de pensamiento, conciencia y religión (Art. 9 CEDH). In: GARCÍA ROCA, JAVIER and SANTOLAYA, PABLO. (Coords.) La Europa de los derechos. El Convenio Europeo de Derechos Humanos. Centro de Estudios Constitucionales. Madrid. 2005. Pages 509 to 527.

*12 Kokkinakis v. Greece, 25 May 1993, § 33.

*13 In Folgerø and others v. Norway, the Court estimates the demand of parents for a full exemption of their children in an academic subject which is against their own religious convictions. In Hasan and Eylem Zengin v. Turkey, the E.C.H.R. accepts the demand of two adherents of Alevism against a compulsory academic subject taught from a Sunni perspec-tive. JUSDADO RUIZ-CAPILLAS, MIGUEL ÁNGEL and CAÑAMARES ARRIBAS, SANTIAGO. La objeción de conciencia en el ámbito educativo. Comentario a la Sentencia del Tribunal Europeo de Derechos Humanos Folgerø contra Noruega. In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 15. October 2007.

*14 See also Kokkinakis v. Greece, 25 May 1993, § 33

*15 X v. United Kingdom, Decision 7992/77, 12 July 1978.

*16 Phull v. France, Decision 35753/03, 11 January 2005. Additional information about the Sikh problems concerning attendance at public schools, driving licence, passport, refugee card, or identity card, because of their refusal to remove turbans may be checked at: Europa: Sikhs take French turban ban in schools to the European Human Rights Cort. In: Noticias de Actualidad at Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 18. October 2008.

*17 El Morsli v. France, Decision 15585/06, 4 March 2008.

*18 Leyla Sahin v. Turkey, § 70.

*19 Kokkinakis v. Greece, 25 May 1993, § 33.

*20 Leyla Sahin v. Turkey, of 10 November 2005, § 111; Refah Partisi (the Welfare Party) and Others v. Turkey of 13 February 2003 § 92 and Dogru v. France, § 64. RELAÑO PASTOR, EUGENIA and GARAY, ALAIN. Los temores del Tribunal Europeo de Derechos Humanos al velo islámico: Leyla Sahin contra Turquía. In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 12. October 2006. CHELINI-PONT, BLANDINE y GIRARD, DIDIER. Le voile musulman et la conception française de l´Etat laïc. Note sous les arrêts de la Cour européenne des droit de l´Homme Dogru et Kervanci c. France (4 décembre 2008). In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 19. January 2009.

*21 Larissis v. Greece, § 54.

*22 Decision 8160/78.

*23 The play portrays God the Father as old, infirm and ineffective, Jesus Christ as a "mummy's boy" of low intelligence and the Virgin Mary, who is obviously in charge, as an unprincipled wanton. Together they decide that mankind must be punished for its immora-lity. They reject the possibility of outright destruction in favour of a form of punishment which will leave it both "in need of salvation" and "capable of redemption". Being unable to think of such a punishment by themselves, they decide to call on the Devil for help. The Devil suggests the idea of a sexually transmitted affliction, so that men and women will infect one another without realising it; he procreates with Salome to produce a daughter who will spread it among mankind. The symptoms as described by the Devil are those of syphilis. As his reward, the Devil claims freedom of thought; Mary says that she will "think about it". The Devil then dispatches his daughter to do her work, first among those who represent worldly power, then to the court of the Pope, to the bishops, to the convents and monasteries and finally to the common people. Otto-Preminger Institut v. Austria, § 21.

*24 The action of the film centres upon a youthful actress dressed as a nun and intended to represent St Teresa. It begins with the nun, dressed loosely in a black habit, stabbing her own hand with a large nail and spreading her blood over her naked breasts and clothing. In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground. She loses consciousness. This sequence takes up approximately half of the running time of the video. The second part shows St Teresa dressed in a white habit standing with her arms held above her head by a white cord which is suspended from above and tied around her wrists. The near-naked form of a second female, said to represent St Teresa's psyche, slowly crawls her way along the ground towards her. Upon reaching St Teresa's feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her. Throughout this sequence, St Teresa appears to be writhing in exquisite erotic sensation. This sequence is intercut at frequent intervals with a second sequence in which one sees the body of Christ, fastened to the cross which is lying upon the ground. St Teresa first kisses the stigmata of his feet before moving up his body and kissing or licking the gaping wound in his right side. Then she sits astride him, seemingly naked under her habit, all the while moving in a motion reflecting intense erotic arousal, and kisses his lips. For a few seconds, it appears that he responds to her kisses. This action is intercut with the passionate kisses of the psyche already described. Finally, St Teresa runs her hand down to the fixed hand of Christ and entwines his fingers in hers. As she does so, the fingers of Christ seem to curl upwards to hold with hers, whereupon the video ends. Wingrove v. United Kingdom, § 9.

*25 MARTÍNEZ TORRÓN, JAVIER. Libertad de expresión y libertad de religión. Comentarios en torno a algunas recientes sentencias del Tribunal Europeo de Derechos Humanos. In: Revista General de Derecho Canónico y Derecho Eclesiástico. Iustel. Number 11. May 2006.

*26 Paturel v. France, § 46.

*27 Giniewski v. France, § 51.

*28 L’article 10, elle vaut non seulement pour les « informations » ou « idées » accueillies avec faveur ou considérées comme inoffensives ou indifférentes, mais aussi pour celles qui heurtent, choquent ou inquiètent. Aydin Tatlav v. Turkey, § 22. Ceux qui choisissent d’exercer la liberté de manifester leur religion, qu’ils appartiennent à une majorité ou à une minorité religieuse, ne peuvent raisonnablement s’attendre à le faire à l’abri de toute critique. Ils doivent tolérer et accepter le rejet par autrui de leurs croyances religieuses et même la propagation par autrui de doctrines hostiles à leur foi. Aydin Tatlav v. Turkey, § 27.

*29 SANTOLAYA, PABLO. Religion and Liberties. In: European Review of Public Law Vol. 17. Spring 2005. Esperia Publications. London. Pages 175 to 200.

*30 TORRES GUTIÉRREZ, ALEJANDRO. El Derecho de Libertad de Conciencia en Austria. Dykinson. Madrid. 2006. Pages 219 and next. TORRES GUTIÉRREZ, ALEJANDRO. Análisis de la nueva legislación federal sobre el estatuto legal de las Iglesias Orientales Ortodoxas, la redenominación dada a la Iglesia “Evangélica”-Metodista, y la nueva política de extranjería en materia de integración de inmigrantes en Austria. In: Laicidad y Libertades. Escritos jurídicos. Number 6. Volume II. 2006. Pages 35 to 69.

*31 TORRES GUTIÉRREZ, ALEJANDRO, HRISTOV KOLEV, ÁNGEL, NIKOLOV DOVREB, EMIL, and PETROVA ANGELOVA, ILINA. Estatuto legal de las Confesiones Religiosas en Bulgaria. In: CIMBALO, GIOVANNI and BOTTI, FEDERICA. (Coord.). Libertà di coscienza e diversità di appartenenza religiosa nell´Est Europa. Bononia University Press. Bologna. 2008. Page 68

*32 Cyprus v. Tukey, § 242 and 243.

*33 The plaintifs were eight Greek Orthodox monasteries: Ano Xenia, Ossios Loukas, Agia Lavra Kalavriton, Metamorphosis Sotiros, Asomaton Petraki, Chryssoleontissa Eginis, Phlamourion Volou and Mega Spileo Kalavriton.

*34 Kokkinakis v. Greece, § 48.

Nazad (Back to) "Najnovije izdanje"