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Part I


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Kristin Henrard *

Minority Specific Rights: A Protection of Religious

Minorities Going Beyond the Freedom of Religion?

I. Introduction
What comes to mind when one considers the protection of religious minorities? Not
all religious minorities are confronted with the same hurdles (at least not equally
prominently) concerning the expression, protection and promotion of their religious
identity.1 Nevertheless, recurring problems for religious minorities span a broad range,
including the recognition of a persons religion; the registration of a religion; the possibility of organizing a group of adherents as a religious organization; being entitled to
establish and maintain places of worship; the accommodation of religious diversity at
work (working schedule, religious holidays, dietary requirements, notably rules concerning slaughter, and dress codes); religious diversity and education (religious education and similar issues, as with work); and broader questions pertaining to a religious
way of life, including burial customs etc. Central to all this is the right not to be
discriminated against on the basis of religion (and related intolerance) the arguably
intrinsically related point of churchstate relations and obligations of state neutrality.
When evaluating whether protection of religious minorities is adequate, the
benchmarks are the founding principles and goals of minority protection; in other
words, the right to identity on the one hand and the principle of real or substantive


Kristin Henrard is Professor of Minority Protection and Associate Professor of Constitutional Law at the Erasmus University of Rotterdam, the Netherlands.
In the Framework for communications devised by the Special Rapporteur on Religion
and Belief (E/CN.4/2006/5, paras. 28-35). She highlights inter alia the following as relevant in terms of the freedom to manifest ones religion:
Freedom to worship, places of worship, religious symbols, observance of holidays and
days of rest, appointing clergy, teaching and disseminating materials, the rights of
parents to ensure the religious and moral education of their children, registration of
religious associations.
She also recognizes that the freedom to manifest ones religion can be hindered by particular uses of the freedom of expression, more particularly expression which can be considered as inciting religious hatred and intolerance.

European Yearbook of Minority Issues Vol 8, 2009, ISBN 978 90 04 19521 9, 5-44.
2011 Koninklijke Brill NV. Printed in The Netherlands.

Kristin Henrard
equality on the other.2 In terms of adequate protection there is an ongoing debate as
to whether there is a need for minority-specific rights, in addition to general human
rights (and non-minority-specific rights in the broad sense).3 Even though minorityspecific rights or special minority rights are generally accepted as part and parcel of
human rights, different opinions exist with regard to their relative need and importance (in comparison with the minority-neutral norms). There are still states that are
reluctant to accept the obligations of minority-specific rights, including in Europe,
as manifested by ongoing resistance on the part of several countries to ratifying the
Framework Convention for the Protection of National Minorities (FCNM).4
As will be expanded infra, the interesting point in relation to religious minorities is that existing minority-specific standards reveal that not that much attention is
actually paid to the religious dimension of the minority right to identity. Furthermore
the standards in place do not seem to go beyond a general freedom of religion (in any
significant way). However, as is the case for human rights, the meaning of minority-specific rights is as much determined by the interpretation of the texts as by the
texts themselves. Here teleological and evolutive interpretation methods can (and are
likely to) be used, extending the reach and strength of fundamental rights. Hence,
it is important to check whether the supervisory practice of the standards concerned
reveals more explicit attention to religious issues.
The concept of supervisory practice is used here in a broad sense, to refer to all
practice by competent bodies that reflects interpretation of the norms concerned. Th is
means having regard to explanatory memoranda, thematic comments and recommendations, supervision of periodic state reports, as well as the outcome of judicial and
quasi-judicial procedures.
In terms of the relative importance of and need for minority-specific rights, the
outcome of this supervisory practice should then be compared to the supervisory practice in relation to freedom of religion in non-minority-specific instruments. The nonminority-specific freedom of religion has an obvious focus on religious issues, but the
question is how minority conscious its interpretation and application is. By contrast,
although minority-specific provisions by definition have a clear focus on minorities,
their implications for religious issues are hardly visible in the text and thus greatly
depend on interpretation of the norms concerned.
Since the FCNM has the most elaborate supervisory practice for minority-specific rights, the substance of its opinions will make up a large part of the coming analysis. Of course, attention will also be paid to relevant practice at the UN and OSCE

Patrick Thornberry, International Law and the Rights of Minorities, (Clarendon Press,
Oxford, 1991), 392. See also Report UN Secretary General, Protection of Minorities:
Possibly Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, 14 June 1995, UN Doc. E/CN.4/Sub.2/1995/33, 3.
See inter alia the book edited by Juha Rakk, Do We Need Minority Rights? Conceptual
Issues (Martinus Nijhoff, The Hague, 1996). There is a broad understanding and agreement
that minority-specific rights would be part and parcel of the broader human rights paradigm, see inter alia Art. 1 of the Framework Convention for the Protection of National
Minorities (hereinafter, FCNM).
Belgium, France and Greece are notorious examples.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

levels, even if this does not have the same status as FCNM supervision, which is a
legally binding convention.
Notwithstanding the lack of a standard setting mandate for the OSCEs High
Commissioner on National Minorities (HCNM), he has instigated and subsequently
endorsed the elaboration of substantial thematic recommendations and guidelines
pertaining to typical minority issues with which he is confronted in practice. Similarly
the UN Forum on Minority Issues also produces recommendations that merit consideration. While the UN Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities is not legally binding, and hence is
devoid of a typical supervision mechanism, the now defunct UN Working Group on
Minorities published a commentary interpreting its provisions.
The non-minority-specific counterpart is mainly the relevant jurisprudence of the
European Court of Human Rights (ECtHR). Other minority-neutral documents that
need to be included in the analysis concern notably recommendations by the European
Centre against Racism and Intolerance (ECRI), and the OSCEs Toledo Guiding
Principles on Teaching about Religions and Beliefs in Public Schools, promulgated by
the OSCE Office for Democratic Institutions and Human Rights (ODIHR).5 ECRIs
work, and more particularly its recommendations, is certainly relevant for religious
minorities given the substantial overlap between race and religion. Issues of religious
intolerance also form part of the ECRI mandate.6
This thematically structured comparative analysis will culminate in a final assessment of the relative importance of (and thus need for) minority-specific rights concerning religion, religious diversity and respect for religious identity. Importantly, the
evaluation will not disregard substantial differences in the type of supervisory mechanisms involved.
II. Adequate Protection of Religious Minorities?
Evaluating whether religious minorities can benefit from adequate protection presupposes an understanding of the concepts minority, religious minority and adequate
Despite the absence of a formal legal definition of the terms minority and religious minority it is broadly acknowledged that it concerns non-dominant groups with
a distinct religious identity, that are a numerical minority within a given territory, and
that wish to hold on to that identity.7 While not all states have fully embraced the idea,

Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools,
ODIHR 2007. At times reference is made in footnotes to similar stances noted in reports
of the UN Special Rapporteur on Religion.
There is an overlap between the concept of race (in the broad sense) and religion, while
differentiations on the basis of religion could amount to indirect discrimination on the
basis of race. The link between combating racism on the one hand and promoting interreligious dialogue on the other is also recognized at the EU level and more particularly in
Council Resolution on the Response of Educational Systems to the problem of Racism.
See inter alia Kristin Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination (Martinus

Kristin Henrard
there is a general trend towards accepting that non-nationals and people that are not
traditionally living in a particular country, notably immigrants, can still be considered
minorities. In this respect it is equally noticeable that an inclusive position concerning
the qualification of minority does not exclude differentiation in terms of the actual
rights to which groups are entitled, measured along a sliding scale.8 The inclusion
of immigrants among religious minorities is especially relevant in this context, since
immigrants have considerably enhanced religious diversity in their countries of residence.
Religious identity refers to adherence to a particular religion. The concept religion
should not be defined too narrowly, certainly not to the exclusion of non-traditional
and new religious movements. As correctly underscored by the Special Rapporteur
on Freedom of Religion in her latest report: the terms religion and belief are to be
interpreted in a broad sense and [that] human rights protection is not limited to members of traditional religions or to religions and beliefs with institutional characteristics
or practices analogous to those of traditional religions.9
Whether the protection provided to religious minorities is adequate depends on
the extent to which their religious identity is accommodated and substantive or real
equality is furthered (in this regard), noting in particular that the right to identity and
substantive equality are foundational principles and goals of minority protection.10
III. The Text of Minority-Specific Instruments:
What Can Be Found in Terms of Religion/Religious
When considering minority-specific standards, it is striking that most documents do
not actually have provisions that refer explicitly to the right to religious identity, provisions that might explain what the terse statement of Article 27 ICCPRthe right
to practice their own religioncould mean. The UN Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities not
only reiterates that terse statement (Art. 2(1)) but explicitly recognizes the duty of
states to protect and (encourage conditions to) promote the religious identity of minorities living in their territory (Art. 1(1)). Furthermore, Article 4(2) obliges states to take
measures to create favourable conditions to enable [] to express [] and to develop
their [] religion. These three phrases only consider religion as one of the relevant
characteristics without providing any further information regarding what religious
minority rights might be. Article 4(1), which obliges states to take measures to ensure


Nijhoff, The Hague, 2000), 30-31. See also the discussion and references at ibid. 30-48.
European Commission for Democracy Th rough Law (Venice Commission), Report on
Non-Citizens and Minority Rights, CDL-AD(2007)001, 18 January 2007. See also inter
alia Asbjrn Eide, The Rights of Old versus New Minorities, 4 European Yearbook on
Minority Issues (2004), 365-379; Fernand De Varennes, Language, Minorities and Human
Rights (Proefschrift Rijksuniversiteit Limburg, Maastricht, 1996), 169.
A/64/159, para. 31.
Substantive equality and the right to identity can be considered the guiding principles of
minority protection. See Henrard, op.cit. note 7, 11-13.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

that persons belonging to minorities may exercise their human rights in full, confirms
the importance of general human rights for adequate minority protection but does not
specify what religious minority rights would add to that.
The declaration does contain general state obligations in relation to minorities,
which would also benefit religious minorities, like the obligation to take measures to
enable minorities to participate in the economic progress of their country (Art. 4(5))
and to plan and implement national policies with due regard for the legitimate interest of persons belonging to minorities (Art. 5(1)). However, once again one obtains
no deeper insight into the substance of religious minority rights. What is striking,
though, is the absence of minority religions as a subject to be encouraged in the field
of education (in Art. 4(4)).
The OSCE Copenhagen document on the Human Dimension similarly contains
an obligation on states to protect and (create the conditions to) promote the religious
identity of minorities (para. 33), and acknowledges the right of persons belonging to
minorities to express, preserve and develop their religious identity (para. 32). Two
clarifications are made under paragraph 32, namely the right to establish and maintain
their own religious institutions, organizations or associations (para. 32(2)) and the
right to acquire, possess and use religious materials (para. 32(3)). While these rights
can convincingly be argued to be part and parcel of the general freedom of religion, as
recognized in the jurisprudence of the European Court of Human Rights (ECtHR),11
making this explicit is beneficial as it reduces contestation.
As in case of the UN Declaration the Copenhagen document also includes particular duties of states towards minorities in their territory, like effective participation
in affairs pertaining to the protection and promotion of their identity (para. 35), which
again contributes indirectly to the protection of religious minorities.
The Copenhagen document contains an interesting elucidation of measures that
could promote the religious identity of minorities in this respect, namely the establishment of local or autonomous administrations corresponding to the particular historical and territorial circumstances of minorities (para. 35 in fine). Nevertheless, all in
all there does not seem to be any outspoken effort to clarify the content of religious
minority rights.
The Council of Europes Framework Convention for the Protection of National
Minorities12 is remarkable because it takes up general human rights, explicitly enumerating the most relevant ones, and articulates them as rights of persons belonging to
national minorities.13 Their formulation is thus specifically attuned to special minority

See infra for further elaboration and references. It should be reminded that para. 31 already
recognizes the right to fully exercise human rights, including the freedom of religion.
The other minority instrument of the Council of Europe, the 1992 European Charter on
Regional or Minority Languages, does not contain any reference to religion.
For more information on the relationship between arts. 7 and 8 FCNM and Art. 9 European Convention on Human Rights (ECHR), because of the principles in arts. 19 (limitation) and 23 (interpretation) FCNM, see the chapters by Lauri Hannikainen, Article 19,
and Peter Hilpold, Article 23, in Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention on the Protection of National Minorities (OUP,
Oxford, 2005).

Kristin Henrard
needs, in the sense that dimensions that are particularly important for minorities are
made explicit. It should be highlighted, however, that several of these extra statements, like the freedom to establish religious institutions and organizations, are not
really substantive additions as they reflect the current understanding of the general
human rights concerned. However, what the jurisprudence of the supervisory bodies
of of human rights conventions has added through interpretation is taken up explicitly
here. In other words: the formulation of the FCNM arguably acknowledges that the
effective protection of individual human rights is an essential component of adequate
minority protection, and that certain minority-sensitive applications are called for.
Nevertheless, it is striking that in contrast to general human rights conventions,
the forum internum (the freedom to have a belief, conviction etc.) and the forum externum (the right to manifest ones religion or belief) are split between different articles,
with Article 7 a restatement of the general freedom of religion limited to the forum
internum,14 and Article 8 pertaining to the forum externum. Admittedly, differential
treatment between these two fora can also be found in general human rights law: the
forum internum is absolutely protected while legitimate limitations can be imposed
with regard to the forum externum.15 But be that as it may, the structure of the FCNM
and more particularly the use of a general limitations clause, makes it less likely that
this difference explains the split,16 especially as Article 19 explicitly refers back to the
European Convention on Human Rights (ECHR) as providing the basis17 and determining the confines of possible limitations.18
Concerning the relationship between the ECHR and the FCNM a possible
danger seems inherent in articles 19 and 23 FCNM,19 as the latter determines that [t]
he rights and freedoms flowing from the principles enshrined in the present framework Convention, in so far as they are the subject of a corresponding provision in the
ECHR or in the protocols thereto, shall be understood so as to conform to the latter
provisions. Eventually there was an explicit choice by the drafters not to include references to the case law of the ECtHR in Article 23. Nevertheless, it has been argued
that it is also the general spirit of the ECHR, as expressed by the European Court of






See the contribution by Zdenka Machnyikova, Article 7, in Weller, op.cit. note 13, 181.
Karl Hanson, Vrijheid van gedachte, geweten en godsdienst, in Johan Vande Lanotte
and Yves Haeck (eds.), Handboek EVRMDeel 2: Artikelsgewijze Commentaar (Antwerp,
Intersentia, 2005), 813-814.
According to Machnyikova the special, separate attention given to the right to manifest
ones religion can be explained by the history of state suppression to which many religious
minorities have been subjected: Machnyikova, op.cit. note 14, 232.
It seems to incorporate the limitation clauses of the ECHR in the corresponding provisions of the FCNM: Hannikainen, op.cit. note 13, 528. See also Zdenka Machnyikova,
Article 8, in ibid., 242.
Art. 19 acknowledges that it is nevertheless possible to impose limitations, but only those
which are provided for in international legal instruments, in particular the Convention
for the Protection of Human Rights and Fundamental Freedoms, in so far as they are
relevant to the rights and freedoms flowing from the said principles.
Hilpold, op.cit. note 13, 565; Tove Malloy, The Title and the Preamble, in Weller, op.cit.
note 13, 71-72.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

Human Rights, which has to be taken into consideration in the interpretation of the
provision of the Framework Convention.20 In any event, in view of the broad wording
of the ECHR rights, it would be incongruous not to take account of how these provisions have been interpreted and made more concrete by its supervisory body.21 In this
respect, it is remarkable that there are so few (at most a handful of)22 explicit references
in the supervisory practice relating to the ECHR. Still it has been maintained that the
monitoring bodies of the FCNM draw heavily on ECtHR jurisprudence.23
While in principle this reference to the ECHR is positive, confi rming the close
interrelation between general human rights and minority specific rights, it would be
a pity if the provision were to imply that the supervisory mechanism of the FCNM is
unable to disregard particular ECtHR jurisprudential lines that had been criticized for
not sufficiently accommodating religious diversity and protection of religious minorities. If that were the case the FCNM would not be able to go beyond the protection
offered by the ECHR, and hence would not be able to provide the additional protection
it is meant to offer.24 In this respect, the reference in Article 19 to possible legitimate



Hilpold, op.cit. note 13, 569. Emphasis added.

Patrick Thornberry and Maria Amor Martin-Estbanez, Minority Rights in Europe
(Council of Europe Publishing, Strasbourg, 2004), 91; Johan Vande Lanotte and Yves
Haeck (eds.), Handboek EVRM: Deel I: Algemene Beginselsen (Antwerp, Intersentia, 2005),
Having checked the PDF fi les of the published opinions of the Advisory Committee
(AC), I was only able to detect three explicit references to the case law of the European
Court of Human Rights (ECtHR): Advisory Committee, First Opinion on Bulgaria, 5
April 2006, ACFC/INF/OP/I (2006) 001, para. 58 (reference to Stankov and Nachova);
Advisory Committee, Second Opinion on Croatia, 13 April 2005, ACFC/INF/OP/II
(2004)002, para. 52; Advisory Committee, First Opinion on Germany, 1 March 2002,
ACFC/INF/OP/ I (2002) 008, para. 31 (right to traditional way of life). It was furthermore striking that they were confined to arts. 7-9 FCNM (as if no case law of the ECtHR.
is relevant to arts. 4 (equality) or 5 (identity) FCNM). The few references that were made
only concerned cases held against the state under review. Th is seems to disregard the fact
that clear lines of jurisprudence have been established, so that cases under review that
are not against the state are also important and relevant for that state (and its policy and
legislative development)
Hilpold, op.cit. note 13, 568.
An example would be that the special protection of the forum interim under the ECHR
has been said to be compromised because the ECtHR fails to recognize that at some
point burdening external manifestations of belief (by penalizing a refusal to act because
of a religious persuasion or by prohibiting an act which is felt to be mandated by ones
religion) have serious repercussions for the forum internum. See Carolyn Evans, Freedom
of Religion under the ECHR (OUP, Oxford, 2001), 76-78. It can be argued that obliging
someone to take the oath on the holy bible actually requiring him to swear allegiance
to a particular religion amounts for those who have a different religion (or none), to an
interference with the forum internum, which concerns a lack of accommodation of their
religious beliefs (see also Arcot Krishnaswami (Special Rapporteur on the freedom of
religion), Study of Discrimination in the matter of Religious Rights and Practices, UN
Doc. E/CN.4/Sub.2/200/Rev.1, UN Sales No. 60.XIV.2 (UN, New York, 1960), 42-43.
However, the Grand Chamber decided differently in Buscarini et al. v. San Marino, since


Kristin Henrard
limitations of ECHR rights, could also be read in a way that did not hinder broader,
more generous interpretations, providing no other human rights were restricted in
the process.25 Article 19 would merely imply that non-minority-specific rights are the
baseline upon which minority rights are built, a baseline that must be respected.26
As in case of the other minority-specific instruments, the FCNM does contain
state obligations in relation to minorities generally which would also benefit religious
minorities. Article 4, the equality provision, stipulates for example that the state parties undertake to adopt, where necessary, adequate measures to promote, in all areas
of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In addition to this provision aimed at realizing substantive equality, Article 5 identifies state
obligations aimed at protecting and promoting minority identity, which refers explicitly to religion as a relevant factor.27
Article 6 is also relevant as it obliges states to promote mutual respect and understanding among all persons living on their territory, and to encourage a spirit of tolerance and intercultural dialogue. An explicit reference is also made here, inter alia, to
peoples religious identity. The important role of education in this respect is taken up
in Article 12.
The preceding analysis has confirmed that minority-specific provisions do not in
themselves reveal how or to what extent religious minority rights go beyond freedom
of religion as a general human right. Hence, one needs to have a closer look at the
respective supervisory practices.
IV. Further Clarification in Terms of Supervisory Practice
It is important to explain the supervisory practice of the main instruments relied upon
in the subsequent analysis. The extensive differences between them should also be
taken into consideration when evaluating the depth and the breadth of their respective
Supervision of the ECHR is realized through complaints procedures, which
result in binding judgments. Most of the complaints are submitted by individuals,
with interstate complaints extremely rare. Consequently the clarification of religious
rights through jurisprudence is contingent on the kinds of complaints brought for-




it assumed that it was dealing with a case of manifestation of a religion. Even though the
Court still concluded to a violation of Art. 9 ECtHR (Grand Chamber), Appl. 24645/94,
Buscarini et al. v San Marino, 18 February 1999, para. 34, it remains a pity that the link
with the forum internum was not touched upon.
The Human Rights Committee recognizes a similar hierarchy between general human
rights and special minority rights in its General Comment 23 on Art. 27, para. 8. See also
Gaetano Pentassuglia, Minorities in International Law: An Introductory Study (Council of
Europe Publishing, Strasbourg, 2002), 108-109.
Hannikainen, op.cit. note 13, 520.
In terms of Art. 5 states undertake to promote the conditions necessary for persons
belonging to national minorities [] to preserve the essential elements of their identity,
namely their religion [] traditions and cultural heritage.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

ward. Obviously a judgment against a state has implications for all its residents, as
in the event of a violation the state concerned will make the necessary changes to
legislation, policy and practice. Furthermore, the Courts judgments will also resonate
in other states parties to the Convention since it reflects the highest interpretation of
the Convention. On the other hand, while the judgments are legally binding, there
remains concern about their actual implementation. Furthermore, the Court is careful
not to be too radical, notwithstanding its autonomous and evolving interpretation of
the Convention.28
This is evidenced by the fact that the Court grants a wide margin of appreciation to states in the absence of a common European consensus, which tends to occur
in relation to controversial issues. The granting of a margin of appreciation to states
by an international supervisory body is justified at least to some extent by considerations of subsidiarity.29 Nevertheless, there are cogent arguments which suggest that
the emphasis should be on supervision by the ECtHR, with the margin of appreciation (and judicial self restraint) constituting the exception and meriting narrow
construction.30 In any event, however extensive the states margin of appreciation, the
international control exercised should still be meaningful.31 In this respect, it has been
persuasively argued that from the point of view of human rights protection it is exactly
in circumstances where there is no consensus that the international supervisory mechanism should give direction and oblige dissenters to follow suit.
In terms of non-minority-specific rights, other supervisory practice by independent experts32 can also be relied upon. Especially where this practice is not restricted by
the nature and number of complaints submitted, it has the potential to cover (broader)






Alastair Mowbray, The Development of Positive Obligations under the European Convention
on Human Rights by the European Court of Human Rights (Hart, Oxford, 2004). See also
Kristin Henrard, Mensenrechten van uit Internationaal en Nationaal Perspectief (BJU, The
Hague, 2008), 161-163.
See inter alia Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle
of Proportionality in the Jurisprudence of the European Court of Human Rights (Intersentia,
Antwerp, 2002), 3; Eyal Benvenisti, Margin of Appreciation, Consensus, and Universal Standards, 31(4) New York University Journal of International Law and Politics (1999),
843-854, at 846; Janneke H. Gerards, Kroniek oordelen Commissie gelijke behandeling
2000-2003, Multiculturaliteit en botsing van grondrechten, NJCM-Bulletin (2004), 166;
Van de Lanotte and Haeck (eds.), op.cit. note 21, 205.
James A. Sweeney, Margins of Appreciation: Cultural Relativity and the European
Court of Human Rights in the Post Cold War Era, 54(2) International and Comparative
Law Quarterly (2005), 459-474, at 474.
Th is limited role for subsidiarity is arguably also supported by Greer when he considers subsidiarity as an interpretative device subordinate to the principle that fundamental
rights should be effectively protected: Steven Greer, The European Convention on Human
Rights: Achievements, Problems and Prospects (Cambridge University Press, Cambridge,
2006), 213. See also ibid., 225.
Indeed members of ECRI and UN special rapporteurs are meant to be independent. Similarly, the Toledo Guiding Principles were developed by the Advisory Council of Experts
on Freedom of Religion and Educational Experts, op.cit. note 5.


Kristin Henrard
issues that are considered relevant and important. The question is then always to what
extent these documents and their implementation is minority-conscious.
The supervisory practice of the FCNM is confined to a review of periodic state
reports. This has the advantage of theoretically addressing implementation of all
articles. However, the absence of individual complaints has the drawback, or at least
the risk, that particular issues of concern will be disregarded in the review process.
Nevertheless, in addition to state reports, this supervisory practice also takes into
account other sources of information, including shadow reports of non-governmental
organizations (NGOs) as well as data emerging from the country visits undertaken by
the Advisory Committee of independent experts (AC) itself. The latter seem to ensure
that problems experienced by persons belonging to minorities are communicated to
the supervisors.33
The review process of the FCNM leads to a non-binding opinion of the AC,
which forms the basis of a non-binding recommendation by the Committee of
Ministers. Fortunately, and notwithstanding the political motivations of members of
the Committee of Ministers, the opinions of the AC have been confirmed in these
recommendations (in summary form) from the beginning. In other words the often
rather daring positions of the experts are decisive to the outcome of the supervisory
process. Still, the non-binding nature of the mechanism is constraining as the recommendations need to be persuasive to the governments concerned, and are usually
negotiated through so-called constructive dialogue.
V. Thematic Analysis and Comparison
At first sight the ECHR and the jurisprudence of its Court seem to provide robust
protection for the freedom of religion, especially in relation to accommodation of religious diversity.34 The ECtHR tends to underscore that freedom of thought, conscience
and religion is one of the foundations of a democratic society and that the pluralism
inherent in a democratic society depends on it.35 Since the ECHR is formulated in
terms of rights for everyone, by definition it includes non-nationals, as well as immigrants.
There is even a steady line of jurisprudence that states have a positive duty to
ensure religious pluralism36. Thus, a confl ict between religions should not be solved by
removing one of the confl icting parties but rather by promoting mutual understanding





In this respect one would have expected more issues concerning head scarves to feature in
the opinions of the Advisory Committee. So far there is only one, and even then in relation to one of the most accommodating countries in this respect the UK.
Machnyikova, Article 7, op.cit. note 14, 179.
ECtHR, Appl. 14307/88, Kokkinakis v. Greece, 25 May 1993; and EctHR, Appl. 12875/87,
Hoffmann v. Austria, 23 June 1993. See also ECtHR, Appl. 24645/94 Buscarini and others
v. San Marino, 18 February 1999, and ECtHR, Appl. 18748/91, Manoussakis v. Greece, 26
September 1996. See also the discussion in Henrard, op.cit. note 7, 110-114.
Th is is in line with the position of the HRC that morals should be defined from several
religious traditions standpoint: General Comment no 22, para. 8.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

and tolerance.37 The Court has not shied away from identifying an obligation on the
part of states to take measures to reduce religious tensions and improve interreligious
relations. 38
The foundations on which the Court operates seem to bode well for the protection of religious freedom in relation to religious minorities.39 However, closer scrutiny
of the jurisprudence of the Court reveals sub-optimal accommodation of religious
diversity and (potential) protection of religious minorities. In this respect, it is important to examine how the supervisory mechanism of the FCNM interprets and applies
articles 7 and 8 FCNM as well as articles 4 (equality), 5 (identity), 6 (tolerance and
understanding) and 12 (education).
A. Non-Discrimination on the Basis of Religion and
StateChurch Relations
It should be recalled that the prohibition of discrimination40 enshrined in ECHR Article
14 concerns accessory protection, implying that all Convention rights, including freedom of religion in Article 9, are supported by a guarantee of non-discrimination.
Overall the Court is rather hesitant to find a violation of Article 14, and accords states
a broad margin of appreciation when evaluating whether or not differential treatment is reasonably and objectively justified.41 Marginal scrutiny of alleged instances
of discrimination is particularly problematic for persons belonging to minorities.42
Consequently, the development of heightened scrutiny for certain suspect grounds of
differentiation is to be welcomed, especially as these concern typical minority characteristics, such as religion.43






ECtHR, Appl. 38178, Serif v. Greece, 14 December 1999, para. 53; ECtHR, Appl. 71156/01,
97 Members of the Gldani Congregation of Jehovahs Witnesses and 4 others v. Georgia, 3 May
2007, para. 132.
See also Evans, op.cit. note 24, 155.
See inter alia ECtHR, Appl. 952/03, Biserica Adevarat Ortodoxa din Moldova and others v.
Moldova, 27 February 2007, para. 34. Th is is also buttressed by the several cases against
Greece which often pertained to Jehovahs Witnesses or other religious minorities: see
For a remark and brief assessment of the Courts jurisprudence on indirect discrimination,
see infra under IV.F.
See also Alexander E. Morawa , The Evolving Right to Equality, 1 European Yearbook
of Minority Issues (2001), 168-171; Dajo de Prins, Stefan Sottiaux and Jogchum Vrielink,
Handboek Discriminatierecht (Intersentia, Antwerp, 2005), 23-25.
Olivier de Schutter, Observations: Le Droit au Mode de Vie Tsigane devant la Cour
Europenne des Droits de lHomme, 29 Revue Trimestrielle des Droits de lHomme (1997),
47-93, at 89-90. See also Marc-Andr Eissen, Le Principe de Proportionalit dans la
Jurisprudence de la Cour Europenne des Droits de lHomme, in Luis Pettiti et al. (eds.),
La Convention Europenne des Droits de lHomme: Commentaire Article para Article (Bruylant, Brusssels, 1995), 80.
Aalt Willem Heringa, Standards of Review for Discrimination: The Scope of Review
by the Courts, in Titia Loenen and Peter R. Rodriguez (eds.), Non-Discrimination Law:


Kristin Henrard
While the Court seemed to accept religion as triggering heightened scrutiny in
the 1993 Hoffmann v. Austria case44, this was not explicitly confirmed since, even in
cases in which discrimination on the basis of religion is a key component.45 There are
actually several cases in which the Court grants states a wide margin of appreciation in
relation to differentiation in terms of religion,46 which are de facto difficult to reconcile
(as regards their practical outcome) with the state duty towards religious pluralism.47
Striking examples can be found in the educational sphere, and more generally in the
line of jurisprudence which grants states wide discretion when determining the appropriate relationship between church and state under Article 9.
Interferences with the freedom of religion are in principle strictly scrutinized,48
However, as soon as churchstate relations are (perceived to be) in play, the Court
grants states a wide margin of appreciation due to the lack of a common European
standard in this regard.49
Overall, the jurisprudence relating freedom of religion in itself and to the prohibition of discrimination is arguably burdened by ambivalence and a high degree of
indeterminacy resulting from seemingly contradictory positions. In terms of Article
9 the Court identifies a duty of state neutrality towards the various religions in its
territory but does not prohibit state churches as such, which is hardly suggestive of a






Comparative Perspectives (Nijhoff, The Hague, 1999), 29-31. However, see infra for other
formulations that also express or point to heightened scrutiny.
ECtHR, Appl. 12875/87, Hoffmann v. Austria, 23 June 1993, para. 36, by indicating that
a distinction based essentially on a difference in religion is not acceptable.
de Prins, Sottiaux and Vrielink, op.cit. note 41, 30-31. There was not even a hint at this
special status of religion as grounds of differentiation in the more recent Gldani case
where discriminatory aspects were key. Op.cit. note 38.
Samantha Knights, Freedom of Religion, Minorities and the Law (OUP, Oxford, 2007), 63.
It needs to be acknowledged that state obligations are not easily divided into two camps,
but run gradually along a continuum. Nevertheless, in relation to the Courts scrutiny of
limitations to the exercise of human rights, it can be noted that states tend to be accorded
a wide margin of appreciation in relation to questions of general policy with substantial
financial repercussions.
See supra, the discussion of ECtHR, Appl. 952/03, Biserica Adevarat Ortodoxa din
Moldova, 27 February 2007. See also ECtHR, Appl. 184/02, Kuznetsov and others v.
Russia, 11 January 2007 concerning the disturbance by police authorities of a meeting
of a religious community without basis in national law and obviously breaking the state
officials duty to be neutral and impartial.
ECtHR, Appl. 27417/95, Chaare Shalom ve Tsedek v. France, 27 June 2000, para. 84;
ECtHR, Manoussakis, op.cit. note 35, para. 44. See also Niraj Nathwani, Islamic Headscarves and Human Rights: A Critical Analysis of the Relevant Case Law of the ECHR,
25(2) Netherlands Quarterly of Human Rights (2007), 221-254, at 234. It should be noted
that the tendency to grant states a very wide margin of appreciation to decide on particular churchstate relations is widespread. It is indeed also visible in Declaration no. 11
annexed to Treaty of Amsterdam which states that the EU respects and does not prejudice the status under national law of churches and religious associations or communities
in Member States.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

neutral approach.50 This also translates into de facto lenient scrutiny of differentiations
between religions in so far as this would be linked to (decisions about) churchstate
relations. The Court does underscore that there are limits to which a state can promote
one particular religion. However, it does not provide clear guidance on where that
line is drawn, on how much support a state can give to a particular religion without
it resulting in inappropriate pressure on others to join that religion, or on what constitutes an in appropriate disadvantage for non-adherents.51 The bottom line seems
to be the rather vague criteria that the freedom to manifest ones religion should be
enjoyed by adherents to all religions present in the state52 or the necessary guarantees
should be in place to ensure that the freedom of others to have or change a religion
is respected.53 The wide margin of appreciation granted to states in this respect ultimately leads to a low level of protection for religious minorities.54
The lack of meaningful Article 14 jurisprudence is arguably also related to the
practice of the Court to consider it unnecessary to assess a discrimination complaint
where it has found a violation of the substantive right.55 While the Court initially
added the proviso that this would be different if a clear inequality of treatment in
the enjoyment of the right in question is a fundamental aspect of the case,56 this was
absent from later cases. Unfortunately, the Court does seem to abdicate an assessment
in terms of Article 14 even where a differential treatment is a key element of the case,





To the extent that states gives greater weight to a particular religion (calling it a state
religion, the traditional religion of state etc.), this is bound to have repercussions for other
religions. The dominant religion will of course be promoted as the religion that is considered part and parcel of society. In this respect, see inter alia the Inan judgment by
the Hoge Raad of the Netherlands in relation to religious days with the status of official
The fact that there seems to be a decline in state churches and systems based on a constitutionally dominant religion arguably confi rms that they are not appropriate for religiously
diverse societies. For a more detailed analysis of this decline see Silvio Ferrari, State
Regulation of Religion in the European Democracies: The Decline of Old Patterns, in
Gabriel Motzkin and Yochi Fischer (eds.), Religion and Democracy in Contemporary Europe
(Alliance Publishing Trust, London, 2008), 107-108.
Evans, op.cit. note 24, 81. See also Krishnaswami, op.cit. note 24, 46-47.
ECtHR, Appl. 11581/85, Darby v. Sweden, 23 October 1990, para. 45. See also ECtHR,
Appl.14307/88, Kokkinakis v. Greece, 25 May 1993. paras. 46-50; ECtHR, Massounakis v.
Greece, para. 36.
It cannot be denied that having a state church carries risks for minorities and religious
freedom in general.
Evans, op.cit. note 24, 50.
Generally the ECtHR grants states a broad margin of appreciation, especially where
churchstate relations are concerned: Evans, op.cit. note 24, 43 and Knights, op.cit. note
46, 55 (because of the lack of a common European standard) but also where it concerns
neutral laws that incidentally restrict the freedom to exercise ones religion.
See also Knights, op.cit. note 46, 56.
ECtHR, Appl. 6289/73, Airey v. Ireland, 9 October 1979, Series A no. 32, 16.


Kristin Henrard
as is often the case when religious minorities are implicated.57 In this way another
important avenue for an enhanced protection of religious minorities can be seen to
have been disregarded.58
Within the law and theory pertaining to the equality principle, the duty of reasonable accommodation is gradually but surely taking shape.59 The underlying ratio
for duties relating to reasonable accommodation is closely connected to the goal of
real, substantive equality, including equal opportunities60 for persons belonging to
particular groups that are unable to enjoy true equal and effective access to a particular
service, to effectively take up a particular function, and more generally to participate
fully in society.61






See inter alia ECtHR, Appl. 2512/04, Nolan and K v Russia, 12 February 2009, where a
missionary of the Unification Church was prevented from returning to Russia because his
activities would have been contrary to national security. While the Court accepted that
Russia was de facto preventing him from returning in order to stifle the spreading of the
teaching of the Unification Church (para. 66), and that the Russian concept of national
security in particular opposed the negative influence of foreign religious missionaries
(para. 65), it did not consider it necessary to consider the complaints under Art. 14 (para.
Th is is also clearly visible in two recent cases: ECtHR, Appl. 76836/01, Kimlya and others
v. Russia, 1 October 2009, about the problem that only religious groups that had existed
for 15 years in Russia could be accorded legal status (violation of Art. 9 in light of Art.
11); and ECtHR, Appl. 30814/06, Lautsi v. Italy, 3 November 2009, concerning the lack
of respect of the religious and philosophical convictions of the parents in the education
sphere (violation of Art. 2 prot. 1 read in conjunction with Art. 9).
Henrard, op.cit. note 7, 78.
See the enumeration of countries and legislation in the UN Enable document on the
UN website. In some countries, like the US and Canada, this is actually long and well
established, while in others, like South Africa, New Zealand and Israel, it is a relatively
new phenomenon. The terminology used varies: reasonable accommodation, reasonable
adjustments, adaptations or measures, effective or suitable modifications: see document
of the Ad Hoc Committee on a Comprehensive and Integral International Convention
on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, The Concept of Reasonable Accommodation in Selected National Disability Legislation, A/
AC.265.2006/CRP.1, 2005, 2.
Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination and Reasonable Accommodation, 46(1) Duke Law Journal (1996), 1-72, at 25; Lisa Waddington,
The New Equality Directives: Missed Blessings, in Cathryn Costello and Ellis Barry
(eds.), Equality in Diversity. The New Equality Directives (Irish Centre for European Law,
Dublin, 2004), 46.
David L. Hosking, Great Expectations: Protection from Discrimination because of Disability in Community Law, 31 European Law Review (2006), 667-689, at 682. See also
Jenny Goldschmidt, Reasonable Accommodation in EU Equality Law in a Broader Perspective?, ERA Forum, 2007, 45.
It should be noted that the UN Convention on the Rights of People with Disabilities
clearly shows that their rights are now conceived from the perspective of full participation in society, equal to people without a handicap. It is thus clearly aimed at substantive
equality, the equal enjoyment of fundamental rights (Art. 2).

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

The concept of reasonable accommodation has yet to be fully and explicitly recognized in relation to all grounds of differentiation.62 In most jurisdictions it focuses on
measures for disabled persons. However, its origins lay in the US and Canada where
it was conceptualized63 in reaction to increased religious diversity due to immigration
flows.64 In current norms and practice about reasonable accommodation duties, disability and religion feature most prominently.65
At the level of the ECHR the concept reasonable accommodation has yet to
feature explicitly in Article 14 jurisprudence. However, duties of reasonable accommodation are intrinsically related to the more general duty to differential treatment of
persons in significantly different situations,66 recognized in the Courts seminal case
Thlimmenos v. Greece of 6 April 2000.67
In Thlimmenos, the Court agreed that a person convicted of conscientious objection, exercising their freedom to manifest their religion, could not be treated in the
same way as someone who had committed a crime unrelated to the exercise of fundamental rights. However, to the extent that the Court has used the Thlimmenos rational
in other minorities cases, the results have been rather modest.68 The main achievement





The exception being Canada, where in the follow-up to the generous interpretation in the
O Malley v. Simpsons Sears case of 1985, Section 15 of the Canadian Charter of Rights and
Freedoms was interpreted as including duties of reasonable accommodation in relation
to all 14 of the enumerated and analogous grounds of prohibited differentiation: Pierre
Bosset, Reflections on the Scope and Limits of the Duty of Reasonable Accommodation in the
Field of Religion, Commission des droits de la personne et des droits de la jeunesse 2005,
2. See also Employment Equity Act para. 5(b).
See also Lisa Waddington and Marc Bell, More Equal than Others: Distinguishing European Union Equality Directives, 38 Common Market Law Review (2001), 587-611, at 597.
See also Jeff Cromwell, Cultural Discrimination: The Reasonable Accommodation of
Religion in the Workplace, 10(2) Employee Responsibilities and Rights Journal (1997), 155172, at 156-159. In Canada the reasonable accommodation jurisprudence is still mainly
concerned with religion: see inter alia Autobus Legault v. Commission des droits de la personne et des droits de la jeunesse [1998] RJQ 3022 (CA).
See also the UN Enable document which shows that, for example, in New Zealand duties
of reasonable accommodation exist in relation to both handicap and religion.
Furthermore, there is a close parallel to indirect discrimination and positive action: Kristin Henrard, Equal Rights versus Special Rights: Minority Protection and the Prohibition of
Discrimination, EC 2007, 25-31.
ECtHR, Appl. 34369/97, Thlimmenos v. Greece, 6 June 2000, para. 44: The Court has
so far considered that the right under Article 14 not to be discriminated against in the
enjoyment of the rights guaranteed under the Convention is violated when States treat
differently persons in analogous situations without providing an objective and reasonable justification [] However, the Court considers that this is not the only facet of the
prohibition of discrimination in Article 14. The right not to be discriminated against in
the enjoyment of the rights guaranteed under the Convention is also violated when States
without an objective and reasonable justification fail to treat differently persons whose situations
are significantly different. Emphasis added.
See also Lauren Baillie, Protection of Religious Minorities in Europe: The Council of
Europes Successes and Failures, 23(3) American University International Law Review
(2008), 617-645, at 620.


Kristin Henrard
to date is the recognition of the special duties of state authorities to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred
or prejudice may have played a role in the events.69 However, in its judgment in the
97 members of the Gldani Congregation of Jehovah Witnesses and 4 others v. Georgia case,
the Court missed the opportunity to extend this line of jurisprudence to instances of
violence inspired by religious discrimination.70
In terms of minority neutral documents ECRI Recommendation 5 also deserves
special attention here. It focuses explicitly on combating discrimination and intolerance against a particular religious minority in European countries: Muslims.71
Interestingly, the recommendation links the state duty of ensuring freedom of religious practice to (de facto) duties of reasonable accommodation towards all religious
faiths in their territory. Specific examples concern being entitled to erect and maintain
adequate places of worship, and the absence of obstacles to particular funeral rites.
There is even a call to public institutions to be aware of the need to make provisions in
everyday life for legitimate requirements arising from the multi-faith nature of society.
While this is not translated into more concrete measures (e.g. in terms of catering for
dietary requirements, religious worship and religious holidays), it undoubtedly qualifies as a duty of reasonable accommodation.
When one evaluates this theme in the context of minority-specific instruments,
it should be noted that in the case of the FCNM there is no outspoken criticism either
of systems with state religions or traditional religions of state in terms of Article 8
(freedom of religion) or Article 4 (equality). It is noted in Article 4 that such systems
might be problematic in terms of the prohibition of discrimination on the basis of religion and/or that this does not accommodate religious diversity (not complying with
the duty of state neutrality) in terms of Article 8.
Sometimes, the AC seems to follow the ECtHRs approach when it shifts the
focus of its assessment of state(-like) churches to whether or not the freedom of religion is respected. However, that freedom is then understood as not having intrinsic
requirements of neutrality and related duties of treating different religions similarly. A
good example is its opinion on Croatia, where it stipulated that differential treatment
is acceptable as long as special attention is paid to ensuring that religious minorities
can exercise their religious rights.72
Other opinions acknowledge that a state church system amounts to differential
treatment that might be problematic in terms of Article 4, or Article 4 and Article
8. For example the AC highlights a potential problem in the case of Norway, where



While this principle was fi rst articulated in ECtHR, Appl. 43577/98, Nachova v. Bulgaria,
26 February 2004, para. 158, it has been confi rmed many times since: inter alia ECtHR,
Appl. 15250/02, Bekos and Koutropoulos v Greece, 13 December 2005, para. 73; ECtHR,
Appl. 46317/99, Ognyanova and Choban v. Bulgaria, 23 February 2006, para. 148.
Op.cit. note 38.
CRI (2000) 21, ECRI General Policy Recommendation No. 5: Combating Intolerance
and Discrimination against Muslims.
Advisory Committee, First Opinion on Croatia, 5 April 2006, ACFC/INF/
OP/I(2002)003, para. 38; Advisory Committee, First Opinion on Georgia, 19 March
2009, ACFC/OP/I(2009)001, paras. 90-93.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

the state church system gives a number of benefits to just one particular religion.73
Similarly, it urges the Russian Federation to be careful to respect the principle of
equality when it acknowledges the special contribution of a particular religion to the
historical heritage of the country.74 Unfortunately there are no further assessments of
this potential problem.
However, practice does seem to indicate that particular kinds of preferential
treatment for dominant (state) religions/churches are not acceptable at all. For example in Eastern European countries the AC finds it problematic that the restitution of
church properties confiscated during the communist regime is said to be easier for the
dominant (state) church in comparison to other churches.75
Some of the AC opinions actually appear to indicate that for a state church system
(or a traditional religion of the state) to be acceptable it is vital that there is not a single
(legal) advantage for that religion. Even where that requirement is satisfied, special
care should be taken by the government to secure the rights of religious minorities,
possibly by drafting a new law on religious denominations.76
Hence, there does not appear to be a consistent approach to the question of
churchstate relations and how these should be evaluated (in terms of arts. 4 and/or
8).77 The AC does appear willing to explicitly identify a possible problem in terms of
the prohibition of discrimination,78 and sometimes even hints at rather strict scrutiny.


Advisory Committee, First Opinion on Norway, 12 September 2002, ACFC/INF/

OP/I(2003)003, para. 39:
Advisory Committee, Second Opinion on the Russian Federation, 11 May 2006, ACFC/
OP/II(2006)004, paras. 165-167.
Advisory Committee, First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001,
para. 96.
Advisory Committee, First Opinion on Bulgaria, ACFC/OP/I(2006)001, para. 65.
Th is question of acceptable statechurch relations also has repercussions in relation to
other articles. The AC seems to take more outspoken positions there. For example, it
clarified that a duty to register the name of ones children with the state church, a matter
under Art. 1(1), might raise problems of conscience with religious minorities. The AC
arguably considers such regulation a serious threat to these minorities and suggests (in
its typical non-obligatory language) that a change of law is realized to allow persons to
register the names of their children with public authorities instead of the state church
(Advisory Committee, First Opinion on Denmark, 22 September 2000, ACFC/INF/
OP/I(2001)005, para. 32).
Note that in its opinion in Finland it criticizes the discriminatory system of funding
(which only happens automatically for the two dominant churches concerned). While in
the fi rst round the AC merely noted that differential funding merits review (22 September 2000, ACFC/INF/OP/I(2001)002, para. 29), in the second round it concluded that
the (ongoing differential funding) does not fully accommodate the current situation as
regards religious diversity (20 April 2006, ACFC/OP/II(2006)003, para. 91).
Similarly In relation to Denmark, the Church of Denmark, as the state church, is not
criticized, but the fact that this is the only religion in Denmark receiving state support
is said to raise questions about the compatibility with the equality principle (22 September 2000, ACFC/INF/OP/I(2001)005, para. 29 and ACFC/INF/OP/II(2004)005, para.


Kristin Henrard
However, in the end, it fails to provide further (clear) criteria for evaluation (which
could potentially identify a prohibited discrimination on the basis of religion).
Practice relating to the prohibition of discrimination on the basis of religion does
warrant further comment. For example, the AC deems it important that a legislative
framework is in place which guards explicitly against religious discrimination.79
Although the supervisory practice of the FCNM does not articulate duties of reasonable accommodation as a dimension of the equality principle, it does identify positive obligations on states in relation to minorities and minority protection. In other
words, in terms of all substantive articles, the AC de facto identifies what can be qualified as duties of reasonable accommodation (this will be clarified infra).
There is an interesting discrimination point addressed under Article 8, concerning the fact that the UK blasphemy laws only protect Christian faiths. While the
European Court of Human Rights, in its judgment in Wingrove v. UK of 25 November
1996, chose not to assess the discriminatory nature of the UK legislation,80 the AC
provided additional protection to religious minorities by addressing the issue of illegitimate differentiation between religions directly.
Actually, this example demonstrates both a pro and con of the Advisory
Committee. On the one hand, the mechanism tends to give broader attention (and
be more sensitive to) minority-specific issues. However, on the other hand, the limits
of this non-legally binding supervisory mechanism were clearly demonstrated by the
rather stubborn position of the UK, which indicated in response to the first round of
criticism that it would keep its options on blasphemy under review but had no current
plans to change the law. However, the AC maintained its position in the second opinion, and even appeared more insistent when it stipulated that the government should
remedy the situation as a matter of priority so as to provide full and effective equality
and guarantees.81
B. Definitions of Religion and the Scope of Application of the
Freedom of Religion
In principle, the European Court of Human Rights adopts a broad definition of religion, which is not limited to traditional beliefs.82 However it does impose a requirement that seems reasonable at first sight, but which raises considerable uncertainty in
its application. The Court requires a certain level of cogency, seriousness and cohesion
in order to qualify as a religion or belief.83 The problem is that it is unclear what evi79



Advisory Committee, First Opinion on the United Kingdom, ACFC/INF/

OP/I(2002)006, paras. 57-58.
ECtHR, Appl. 17419/90, Wingrove v. UK, 25 November 1996, para. 57.
Advisory Committee, Second Opinion on the United Kingdom, 26 October 2007,
ACFC/OP/II(2007)003, paras. 152-154.
Various non-traditional religions were accepted as religions: druidism (Appl. 10461/83,
Chappell v. UK, 30 March 1988), divine light zentrum (Omakarande and Divine Light Zentrum v. Switzerland, 1981), Church of Scientology (X and Church of Scientology v. Sweden,
DR 16, 68) and so on. See also Hanson, op.cit. note 15, 803.
ECtHR, Appl. 7511/76; 7743/76, Campbell and Cosans v. UK, 22 March 1983, para. 36.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

dence is required to establish a belief, and from whose perspective this is to be judged.84
This uncertainty is particularly problematic for adherents of lesser known religions,
and where there is a lack of a common European standard the Court tends to defer to
decisions of domestic courts and national authorities.85
In relation to the duty to divulge ones religious conviction, the Court has for a
long time not taken an explicit position. However, in its Grand Chamber judgment
in the Folgero case pertaining to religion in education, the Court held that such a duty
could be incompatible with the requirements of the ECHR.86 It is noticeable that the
Court was once again hesitant to take an outright position on this issue. In view of the
vulnerable position of religious minorities, it would have been preferable for the Court
to adopt the position of the Human Rights Committee (HRC), namely the freedom of
religion and the right to privacy taken together imply a right to religious privacy which
would be violated in the event of pressure to divulge religious conviction.87
According to the AC, states should take care that any definitions they adopt concerning religion do not lead to unjustified distinctions.88 Arguably this entails a call for
an inclusive approach. This is confirmed by the Committees practice of underscoring
the importance of the protection of religious communities, particularly when they
belong to non-traditional religions.89 The Committee also considers it an important
element of the protection of the freedom of religion of persons belonging to minorities
that they should not be obliged to divulge their religious convictions to the authorities.90
This unequivocal protection of non-traditional religions, including in practice,
arguably constitutes an advance on the position of the European Court of Human



Knights, op.cit. note 46, 41.

Ibid., 42. See also Danchin and Forman who claim that the case law of the ECtHR
reveals a bias toward protecting traditional and established religions and a corresponding
failure to protect the rights of minority, nontraditional or unpopular religious groups:
Peter G. Danchin and Lisa Forman, The Evolving Jurisprudence of the European Court
of Human Rights and the Protection of Religious Minorities, in Peter G. Danchin and
Elizabeth A. Cole (eds.), Protecting the Human Rights of Religious Minorities in Eastern
Europe (Columbia University Press, New York, 2002), 204.
ECtHR, Appl. 15472/02, Folgero a.a. v. Norway, 29 June 2007, paras. 75-76 and 98.
Human Rights Committee, General Comment No. 22, para. 3.
Advisory Committee, Second Opinion on Albania, 29 May 2008, ACFC/OP/
II(2008)003, para. 125.
Advisory Committee, Second Opinion on Azerbaijan, 9 November 2007, ACFC/OP/
II(2007)007, para. 99 concerning conversion and wanting to change the name.
Advisory Committee, Second Opinion on Cyprus, 7 June 2006, ACFC/OP/II(2007)004,
para. 30.


Kristin Henrard
C. The Protection of Religious Minorities in Relation to Various
Manifestations of their Religion
The case law reveals that the ECtHR is overall rather demanding and strict in its
assessment of the negative obligations of non-interference, especially with common
manifestations of religion. This is nicely exemplified by the recent judgment Kimlya
and others v. Russia, in which the Court underscored that, at a minimum, states should
not interfere with the establishment of places of worship, the creation of educational
institutions, and the right to hold religious services in places accessible to the public.91
In view of the particular facts of the case, the Court also engaged with the issue of
religious literature: Article 8 implied the right to make and distribute such literature.92
A general feature of the Courts jurisprudence on freedom of religion which is
particularly positive for minorities and the accommodation of their special needs is
the explicit protection of the group aspect of the freedom to manifest ones religion.
As minority identity is inherently a group identity, the Courts protection of the community aspect of manifestation as an essential dimension of that right93 is surely to
be welcomed. A related point, which is important for the effective protection of the
freedom of religion, is the fact that churches and other religious organizations are
acknowledged to themselves have rights under Article 9.94 The disadvantaged, vulnerable position of persons belonging to minorities is to some extent countered when they
are able to unite and bring action as a collectivity.
The Court has not shied away from concluding that the protection of the collective manifestation may require that a particular religious community is granted legal
personality, as this is an important precondition for many activities based on collective
manifestation.95 In relation to registration procedures for religious bodies the Court is
justly critical of procedures that are prone to abuse by authorities, which restrict the
activities of religions96 other than the official faith.97





See supra on ECRI Recommendation No. 5, which also appears to refer to this kind of
state obligation.
ECtHR, Appl. 76836/01, 32782/03, Kimlya and others v. Russia, 1 October 2009, paras.
ECommHR, Appl. 8160/78, X v. UK, DR 27 (1981), at 34; ECtHR, Appl. 30985/96,
Hasan and Chaush v. Bulgaria, 26 October 2000, para. 62.
ECtHR, Appl. 25528/94, Canea Catholic Church v. Greece, 16 December 1997; ECtHR,
Appl. 45701/99, Metropolitan Church of Bessarabia v. Moldova, 13 December 2001; ECtHR,
Appl. 30985/96, Hasan and Chaush v. Bulgaria, 26 October 2000).
ECtHR, Appl. 45701/99, Metropolitan Church of Bessarabia and others v. Moldova, 13
December 2001, para. 118.
Th is can also be read in terms of effective protection, which is of particular importance
to disadvantaged, vulnerable communities, like minorities. See also Tarlach McGonagle,
Minority Rights and Freedom of Expression: A Dynamic Interface (Proefschrift University of
Amsterdam, Amsterdam, 2008), 145.
See inter alia ECtHR, Appl. 30985/96, Hasan and Chaush v. Bulgaria, 26 October 2000,
para. 77.

A Protection of Religious Minorities Going Beyond the Freedom of Religion?

It was already pointed out that, for the protection of religious minorities, the
Court has pursued several rather promising lines of jurisprudence concerning the need
to protect and promote religious pluralism. Where states are required to protect and
promote religious pluralism arguably this would also concern positive state obligations, not only to ensure that religious communities in the territory respect and tolerate one another, but also that the various religions are reasonably accommodated,
potentially to the point of receiving (some) financial support. However, in contrast to
the practice of the AC, the Court has not yet identified positive obligations with considerable financial implications. This is due in part to the fact that the Court has not
yet had the opportunity to deal with these more specific issues, and arguably in part to
the extensive margin of appreciation granted to states by the Court when statechurch
relations are in play.
The supervisory practice of the FCNM is generally outspoken about the various
obligations of states, and especially so in the context of non-traditional religions.98
This encompasses duties of abstention, like abstention from imposing strict controls on
importing of religious literature.99 The positive state obligations identified are varied in
nature and often rather specific, not only in terms of Article 8 but also articles 5 and 6.
Concerning Article 8, an important, almost preliminary, question for the exercise of the community (group) dimension of freedom of religion concerns unhindered
registration100 of religious communities.101 The AC is very critical of problems of registration experienced by minority religious institutions, especially where these hurdles
appear to be arbitrary,102 and/or disproportionately affect new religious groups or particular sub-streams within the same denomination.103





Advisory Committee, Second Opinion on Azerbaijan, 9 November 2007, ACFC/OP/

II(2007)007, para. 95.
Ibid., para. 98.
Problems with registration are especially problematic when that is the gateway to the
exercise of rights that are essential to the adequate manifestation of ones religion, like the
possibility to establish churches: Advisory Committee, Second Opinion on the Former
Yugoslav Republic of Macedonia, 23 February 2007, ACFC/OP/II(2007)002, paras. 102103.
In the UN Minorities Declaration the focus is on the right to have ones own minority
association (Art. 2(4)), rather than on registration issues. Th is is also not taken up in the
Commentary to the Declaration (para. 51 focusing on the right to set up religious institutions). Nevertheless, having the right to establish these institutions is rather meaningless
when lack of registration would deprive you of (several of the) essential means to enjoy this
right with its inherent group dimension.
Advisory Committee, First Opinion on Estonia, 14 September 2001, ACFC/INF/
OP/I(2002)005, para. 34; Advisory Committee, Second Opinion on Estonia, 24 February 2005, ACFC/INF/OP/II(2005)001, para. 79; Advisory Committee, Second Opinion
on Moldova, 9 December 2004, ACFC/INF/OP/II(2004)004, paras. 78-81.
Advisory Committee, Second Opinion on the Russian Federation, 11 May 2006, ACFC/
OP/II(2006)004, paras. 170-173. See also Advisory Committee, First Opinion on the
Former Yugoslav Republic of Macedonia, 27 May 2004, ACFC/INF/OP/I(2005)001,
para. 60.


Kristin Henrard
The (remaining) supervisory practice under Article 8 often concerns duties of
active protection and promotion. The AC takes up the jurisprudence of the European
Court, and refines it further by incorporating dimensions of participatory rights that
are central to the FCNM.104 Indeed, active duties of protection are identified that
include the obligation to protect against religious intolerance, and to take effective
action to counter tensions between religious denominations.105 In addition states have
an obligation to ensure and promote adequate dialogue, not only between minorities
and public authorities, but also between religious communities.106
Regarding the former, the AC deems it important that no religious minority
experiences difficulties when establishing dialogue with the government.107 Dialogue
between minorities and the authorities is of course intertwined with state obligations
of consultation under Article 15. Indeed, the AC often points out that states need to
involve minorities in decision-making when it concerns religious issues.108
Furthermore, the AC calls for various forms of accommodation of religious
diversity, like the need to respect burial customs of particular religious communities,109
and to allow the construction of religiously specific cemeteries when that is considered
important by the religious group concerned.110 Duties in relation to Article 8 would
also have implications for the education system and, more particularly, for the place of
religion and religious instruction.111
Several of these positive obligations actually have financial implications. For
example, states would need to provide adequate financial support to preserve the religious heritage of a country (in all its diversity)112 and more generally need to take all

104 Kristin Henrard, Participation, Representation and Autonomy in the Lund Recommendations and their Reflections in the Supervision of the FCNM and several Human
Rights Conventions, 12(2-3) International Journal on Minority and Group Rights (2005),
133-168, at 152-154.
105 Advisory Committee, First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001,
paras. 94 and 183.
106 Advisory Committee, First Opinion on Montenegro, 28 February 2008, ACFC/
OP/I(2008)001 para. 65; Advisory Committee, Second Opinion on Spain, 22 February
2007, ACFC/OP/II(2007)001, para. 111.
107 Advisory Committee, Second Opinion on the United Kingdom, 6 June 2007, ACFC/OP/
II(2007)003, para. 253.
108 Advisory Committee, Second Opinion on Azerbaijan, 9 November 2007, ACFC/OP/
II(2007)007; Advisory Committee, Second Opinion on Denmark, 9 December 2004,
ACFC/INF/OP/II(2004)005, para. 156.
109 Advisory Committee, First Opinion on Montenegro, 28 February 2008, ACFC/
OP/I(2008)001, para. 65-66.
110 Advisory Committee, Second Opinion on Moldova, 9 December 2004, ACFC/INF/OP/
II(2004)004, para. 82.
111 See infra, e.g. Advisory Committee, Second Opinion on Denmark, 9 December 2004,
ACFC/INF/OP/II(2004)005, para. 146.
112 Advisory Committee, First Opinion on Poland, 7 November 2003, ACFC/INF/
OP/I(2004)005, para. 592.


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

necessary steps to ensure the respect for and preservation of that religious heritage.113
At times the AC even recommends the increase of financial support to foster and preserve the religious identity of minorities.114
With the accession of numerous Eastern European states, the FCNM supervisory system is also confronted by problems typical to countries in full transformation,
having to remedy the consequences of civil strife and violent confl ict that resulted in
the destruction of religious property as well as the injustices of the conquered communist regime. The AC underscores not only the importance of reconstructing the religious buildings destroyed in the war,115 but also the restitution of property confiscated
under communism to religious communities.116
It is especially in terms of other, non-religious provisions of the FCNM that the
greatest advances (compared with the ECtHR) can be found in the protection of religious minorities, often in the form of far-reaching positive obligations with financial
Article 5 and its duty to protect and promote minority identity, including its
religious dimension, has elicited the identification of a duty to protect against attacks
on religious property. According to the AC, it also gives rise to a duty to revitalize the
religious heritage of particular minorities.117 Article 5 practice further strengthens the
theme touched upon under Article 8: authorities should not only be sympathetic to the
desire of religious communities to have their own cemeteries, but should provide the
necessary financial support.118 It is important to note that the AC extends protective
coverage under (at least) Article 6 to non-nationals, arguably including immigrants, by
urging states to protect foreigners against religious intolerance because of their adherence to an unusual religion.119
Most of the positive state obligations under Article 6 logically concern the
improvement of religious dialogue and tolerance. This also entails the need for public

113 Advisory Committee, First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001,

para. 97.
114 Advisory Committee, Second Opinion on Slovenia, 26 May 2005, ACFC/INF/OP/
II(2005)005, para. 192; Advisory Committee, Second Opinion on Moldova, 9 December
2004, ACFC/INF/OP/II(2004)004, para. 50.
115 Advisory Committee, First Opinion on Bosnia and Herzegovina, 27 May 2004, ACFC/
INF/OP/I(2005)003, paras. 74-75.
116 Advisory Committee, Second Opinion on Croatia, 1 October 2004, ACFC/INF/OP/
II(2004)002, paras. 102-103; Advisory Committee, Second Opinion on Romania, 24
November 2005, ACFC/OP/II(2005)007, para. 75.
117 Advisory Committee, Second Opinion on Cyprus, 7 June 2006, ACFC/OP/II(2007)004,
para. 73.
118 Advisory Committee, First Opinion on Poland, 7 November 2003, ACFC/INF/
OP/I(2004)005, para. 44; Advisory Committee, First Opinion on the Czech Republic,
12 September 2002, ACFC/INF/OP/I(2002)002, para. 48.
119 Advisory Committee, First Opinion on Montenegro, 28 February 2008, ACFC/
OP/I(2008)001, para. 48.


Kristin Henrard
authorities to emphasize the positive contribution of (immigrant) minorities.120 In view
of the important role of the media in influencing public perceptions of minorities,
and thus increasing levels of tolerance, the AC invites states to encourage the entry of
persons belonging to religious minorities in the media.121
The FCNM is not the only minority-specific instrument in which far-reaching
positive obligations are identified for religious minorities. Indeed, the Commentary to
the UN Declaration on Minorities also identifies duties to respect and protect the religious heritage of religious minorities (including buildings and sites such as churches,
mosques, temples and synagogues).122
D. The Protection of Religious Minorities and Accommodation of Religious
Diversity at Work
The jurisprudence of the ECtHR (taking up the jurisprudence of the now defunct
European Commission on Human Rights123) has been reluctant to identify a state duty
to accommodate religious diversity at work.124 In any event it has explicitly dealt with
several of the issues concerned.
While the Court does not rely explicitly on its margin of appreciation doctrine
in this respect, its reluctance might very well be explained by the lack of consensus
among European states about the proper nature and extent of the necessary accommodation of religious exercise in employment relations, especially in a military setting.125 Arguably, this reluctance is in line with (and confirms) the Courts permissive
approach to choices in churchstate relations (and the limits of its supervision there).
The Commission on Human Rights had a steady line of jurisprudence revealing
that it was unwilling to provide protection for persons who were dismissed because
they regularly came to work late or left early for religious reasons. While several cases
concerned Jews or Muslims, they were not confined to those religions, and included
120 Advisory Committee, Second Opinion on Armenia, 12 May 2006, ACFC/OP/
II(2006)005, para. 56; Advisory Committee, First Opinion on Bosnia and Herzegovina,
27 May 2004, para. 61; Advisory Committee, Second Opinion on Denmark, 9 December
2004, ACFC/INF/OP/II(2004)005, paras. 20, 84-85.
121 Advisory Committee, First Opinion on Denmark, 22 September 2000, ACFC/INF/
OP/I(2001)005, para . 102.
122 UN Declaration on Minorities, para. 24, in relation to Art. 1 duty to protect existence of
123 See infra on the Kosteski judgment; ECtHR, Appl. 55170/00 Kosteski. v the Former Yugoslav Republic of Macedonia, 13 April 2006.
124 Th is can be nicely contrasted with the older judgment of the European Court of Justice
in Vivien Prais v. Council, 1976 ECR 1589 10, Case 234/82 concerning the complaint that
the date for written tests of the competition to enter the service of the EU was set for a day
when she could not take the tests because of religious reasons. The Court held that, insofar as a candidate informs the appointing authority in good time about religious reasons
which make particular dates impossible for him/her, this should be taken into account.
While there would not be an absolute obligation to avoid such dates, it should in any event
be endeavored (paras. 16-18).
125 Renta Uitz, Freedom of Religion (Council of Europe Publishing, Strasbourg, 2007), 138.


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

also the Seventh Day Adventist Church or mainstream Christians.126 According to
the Commission a refusal to respect working hours, even if it is motivated by religious
conviction, cannot be protected by Article 9(1). The dismissal would thus not be due
to the religious convictions themselves but to the refusal to respect working hours.127
By this logic, the Commission arguably strengthens the dominant norm and does
not even invite contracting states to adopt a more pluralistic approach. Furthermore,
it can be argued that by denying that a particular act is a manifestation of religion,
the Commission (and later also the Court) substitutes its own assessment for that
of adherents of the religion. This is difficult to reconcile with the essential object of
Article 9, namely to protect individuals most private convictions.128
Alternatively, the Commission holds that dismissal as a consequence of absenteeism resulting from religious observance does not amount to interference because the
person concerned accepted the position in full knowledge that the working schedule
would be incompatible with particular religious observance.129
The Commission also considered manifestly ill-founded the complaint under
Article 14 that a country that adopts the Sabbath day of a particular religion as the official Sabbath day disadvantages adherers to other religions. Instead of focusing on the
relationship between the dominant and minority religions, the Commission totally
bypassed the issue of indirect discrimination, and merely stated that national legislation did not provide an absolute right for members of a religious community to have a
particular day set aside as their holy day. Hence, [a]ssuming that the applicant could
be considered to be in a situation comparable to that of members of other religious
communities, the Commission therefore finds that he has not been treated differently in comparison with such members. In this way, the Commission ignored the
differential treatment resulting from the apparently neutral rule of having one weekly
day of rest for all, irrespective of religious persuasion and hence not accommodating
religious commitments to the Sabbath. Arguably this was another manifestation of the
limited protection against discrimination on religious grounds whenever churchstate
relations are concerned.
126 ECommHR, Konttinen v. Finland, Appl. 24949/94 (1996) 87 D&R 68, concerned a man
working at the state railways who joined the Seventh Day Adventist Church. That religion
has Sabbath duty from sunset on Friday to Saturday. This meant that on a few Fridays in
winter he had to leave work early. His dismissal for these unauthorized absences did not
even raise issues under Art. 9(1), as these absences were not accepted as manifestations of
his religion.
In Stedman v. UK (1997) 23 EHRR CD 168, a private sector employer dismissed an
employee who did not want to work on Sundays. The Commission relied on its Kontinnen
reasoning and concluded that a fortiori unauthorized absences from work for religions reasons are not protected in relations between private persons (there would not be a positive
obligation for the state to ensure that private employers would accept this behavior from
their employees).
127 Inter alia, ECommHR, Konttinen v. Finland, Appl. 24949/94 (1996) 87 D&R 68.
128 Dissenting Opinion of judges Bratza, Fischbach, Thomassen, Tsatsa-Nikolovska, Pantiru,
Levits en Traja in Appl. 27417/95, Chaare Shalom Ve Tsedek v. France, 27 June 2000. See
also Evans, op.cit. note 24, 120.
129 ECommHR, Ahmad v. UK, (1982) 4 EHRR 126.


Kristin Henrard
The Court confirmed in Kosteski v. the Former Yugoslav Republic of Macedonia,130
that it, like the former European Commission, was not willing to establish an explicit
duty of reasonable accommodation of religious difference which would require the
state to take reasonable measures to ensure effective enjoyment of the freedom to
manifest ones religion, also for members of religious minorities.131 Unfortunately, the
Court was not called upon to investigate whether a lack of differential treatment (for
someone who finds themselves in a substantively different situation) amounted to a
violation of Article 14 under the Thlimmenos principle.
In the earlier case of Kala v. Turkey,132 the Court had already emphasized that
in exercising the freedom to manifest ones religion, an individual may need to take
account of their specific situation, especially if that involves a system of military discipline that was accepted at the point of choosing a military career. In casu the Court followed the arguments of the government that the Turkish Air Force employee had been
dismissed because of alleged unlawful fundamentalist tendencies and not because of
his religious convictions. Furthermore, the Court seemed to accept very vague accusations, without reference to any particular activities that were problematic in terms of
military discipline, in order to conclude to the absence of interference.133 In the absence
of convincing arguments to buttress the allegations of problematic activities, it is difficult to ignore that the main problems of the Turkish authorities seemed to be the
complainants adherence to the Suleyman (religious) community. The fact that, since
then, similar complaints have been declared inadmissible because they are manifestly
ill-founded does not augur well for adequate protection of religious minorities in the
working environment.134
Notwithstanding the broad reach ratione materiae of the supervision by the
Advisory Committee, its supervisory practice has not (yet?) clarified what the FCNM
implies in terms of a (religious) minority friendly working environment. A similar
lacuna is noticeable in the Commentary to the UN Minorities Declaration.

130 ECtHR, Appl. 55170/00, Kosteski v. the Former Yugoslav Republic of Macedonia, 13 April
2006. Note that in Appl. 49853/99, Pichon and Sajous v. France, 2 October 2001, the Court
adopted a similarly restrictive approach in relation to the professional activities of pharmacists who refused to distribute contraceptive pills because of their religious convictions. According to the Court the complaint was inadmissible because, in their capacity
of pharmacists, they were not entitled to express their religious convictions in this way, as
it amounted to imposition of their religious beliefs on others.
131 Julie Ringelheim, Diversit Culturelle et droits de lhomme. Lemergence de la problematique
des minorities dans le droit de la Convention Europeenne des Droits de l Homme (Bruylant,
Brussels, 2006), 169.
132 ECtHR, Appl. 20704/92, Kala v. Turkey, 23 June 1997.
133 Ibid., para. 30.
134 See also Javier Martinez-Torron, Limitations on Religious Freedom in the Case Law of
the European Court of Human Rights, 19(2) Emory International Law Review (2005),
587-636, at 602.


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

However, regard can and should be had to the HCNM-endorsed recommendations on policing in multiethnic societies,135 which are meant to provide practical guidance in developing policies and law in accordance with international norms
and standards and based on international experience and best practice. While it is
focused on the police force, several of its provisions can be applied by analogy to other
work situations. The recommendations make the point that for legitimacy reasons it is
important that the police force is representative of the diversity of the local population
(Recommendation 4). While the recommendations are framed in terms of ethnicity,
this also includes religion. Attention to religious diversity in the police force is also visible in the Explanatory Note, which states that representatives should go to religious
centres to inform people about employment opportunities within the police.136
While these legitimacy reasons might be less applicable to other working environments, the importance of a representative and diverse workforce is becoming
increasingly prominent, as evidenced by numerous documents on and calls for diversity management. The policing recommendations also make the important point about
the need to retain minority police members (Recommendation 7). One of the strategies in this respect would be to ensure that adherents of all religions are treated equally
(in substantive terms), in other words by guaranteeing a neutral working environment (Recommendation 7). Importantly, the Explanatory Note clarifies that neutral
should also be an environment that is sensitive to diversity in the needs, customs and
religions of different groups. Examples provided in this respect concern dress, diet,
and religious observances such as prayer and holy days.137
E. Education and Religious Minorities
Education is extremely important for religious minorities as it is connected to the
transmission of inter alia religious and related philosophical ideas.138
Arguably, this not only concerns the way and extent to which religion is included
in the curriculum, but also broader issues pertaining to the way a school is organized,
the extent to which students can express their adherence to a particular religion, and
whether they can abide by religious prescripts including prayer duties, dietary rules
and the like. The ECHR provision on education, Article 2 of the first additional protocol, does not deal with these issues explicitly but rather sets out a state obligation to
respect the religious convictions of parents in the education sphere. It is important to
underscore that the Court has recognized that this duty to respect applies to all tasks
undertaken by the state in relation to education. While most complaints pertain to the
curriculum, some also concern extracurricular activities, and even the accommodation
135 See also ECRI Recommendation No. 11 on combating racism and racial discrimination in
policing, which calls on states to include instruction on cultural and religious pluralism in
the police training (para. 16), and promotes internal respect for colleagues with a different
religious background.
136 Recommendations on Policing in Multi-Ethnic Societies, Explanatory Note 16 (in relation to Recommendation 6).
137 Ibid., 17.
138 Machnyikova, op.cit. note 14, 195.


Kristin Henrard
of religious holy days (of rest). Not surprisingly questions of churchstate relations
often figures here.139
The issue of headscarves in school is deliberately not included in the subsequent
analysis. Not because it would not be important or interesting, but rather because the
case law of the ECtHR in relation to headscarves at school has already been extensively analysed and criticized. However, neither the practice of the AC (nor any other
supervisory practice in relation to minority-specific provisions) has tackled this sensitive issue so far. There is only one reference to veils in the AC opinions, namely in
the second opinion on the UK, a country which has a tradition of accommodating
religious diversity. More importantly, the AC is careful not to adopt a clear position in
the respect, so one can only speculate on where it stands.140 The issue is also excluded
from the AC thematic commentary on education.
139 Uitz, op.cit. note 125, 123. The Recommendations flowing from the UN Forum on Minority Issues underscore inter alia that education represents an essential support for community identity (para. 1). While the problem of unequal or restricted access to quality
education is not really under discussion here, the need to ensure that measures taken in
the field of education for minorities should not constitute a programme of coerced assimilation is (para. 12), as is the importance of education towards the elimination of prejudices
among population groups and the promotion of mutual respect and tolerance (para. 43). It
is good to notice that the important role of education for combating racism and the promotion of inter-religious dialogue is recognized at the EU level (e.g. Resolution Council
23 October 1995, OJ C 3121, 23 November 1995, Response of Education Systems to the
problem of Racism and several reports of EUMC, more particularly on Muslims in the
EU: Discrimination and Islamophobia, December 2006).
The section of the recommendations which is most relevant (in relation to the focus of this
article) concerns content and delivery of the curriculum. While the recommendations
do confirm the rights of parents to ensure the religious and moral education of their children in conformity with their own convictions (para. 55), no further clarification is given
about the required neutrality and objectivity of the content of the curriculum, nor about
the requirements for a system of exemptions. The recommendations do underscore that
the form and substance of education, including curricula, should be culturally appropriate
(para. 56) and that curricula should reflect the diversity and plurality of society and the
contribution of minorities to society (para. 61). It has been argued by Evans that this can
create tensions with the requirement to respect the religious convictions of the parents;
Carolyn Evans, Religious Education in Public Schools: An International Human Rights
Perspective, 8(3) Human Rights Law Review (2008), 449-473, at 457-458.
It is even stipulated in the recommendations that the general compulsory curriculum for
all should include reaching of the history, culture and traditions of the minorities (para.
140 Advisory Committee, Second Opinion on the United Kingdom, 26 October 2007, ACFC/
OP/II(2007)003, para. 158: The Advisory Committee notes that the Government has
adopted new guidance for schools in England concerning school uniforms and the right
to wear religious dress in schools. According to these guidelines, schools have the ability to ban full face veils on grounds of security, safety or learning concerns, although
any decision must be preceded by proper consultations with the parents concerned. The
Advisory Committee notes that the governing boards of schools in England already had
the right to set their own regulations concerning school uniform and that most have opted
for a permissive approach. There is a risk that the new guidance may be interpreted by


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

1. Religious Accommodation and Curriculum Content/Exemptions
Ever since the Kjeldsen judgment141 it is clear that, while states have a broad margin of
appreciation in how they construct their curriculum, they need to respect the religious
and philosophical convictions of parents at all times. However, according to the Court
this obligation is not absolute, and not all parental religious convictions need to be
followed to the letter. What is crucial is that the information provided through the
public education system is objective, critical and pluralistic. Indoctrination is absolutely prohibited.142
In particular, it was noted that this would not enable parents to withhold information from their children on other ways of life or other population groups in the
state, let alone on classes on ethics, as long as that information was indeed critical,
objective and pluralistic. The latter point was recently confirmed by the Court in the
decision on the non-admissibility of Appel-Irrgang v. Germany. The refusal to exempt
a student from ethics classes, which were considered too secular and hence not in
line with the protestant belief of the parents, was held not to violate the Convention.
According to the ECtHR the ethics class discussed questions of ethics independently
of religious convictions and hence in line with principles of pluralism.
Nevertheless, the extent to which school curricula should be aligned with parental values and religious conviction remains an extremely complex issue, as does the
interaction between the primary duty to provide public education in an objective, critical and pluralistic manner, and the secondary duty of allowing exemptions when the
primary duty was not respected and the public curriculum clashed with the religious
convictions of parents.143
A number of critical remarks can be made about the practice of the ECtHR in
this respect. In addition to problems of evaluating the compatibility of educational
content with religious conviction, the Court is not sufficiently insistent on the primary
obligation that the content of the public education curriculum be neutral. Furthermore
the jurisprudence in relation to exemption schemes is flawed in several ways. First of
all, the Court prefers an objective assessment of the compatibility of particular educational materials with the religious convictions of the parents.144 Arguably, this not
only fails to accommodate the religious beliefs of the parents, but actually engages the
Court in theological debates with which it is not meant to be involved. The dissenting


schools in a way that restricts the right of every person belonging to a national minority to
manifest his or her religion and/or belief . One could argue that the last sentence seems
to indicate that the AC is in favour of allowing students to wear the veil at school. It is
clearly concerned about the danger that schools might consider the governments position
as an invitation to prohibit wearing the veil.
ECtHR, Appl. 5095/71; 5920/72; 5926/72, Kjeldsen, Busk Madsen and Pedersen v. Denmark, 17 December 1976.
ECommHR, Appl. 9411/81, X Y Z v. Federal Republic of Germany (1982) 29 DR 224;
ECommHR, Appl. 8811/79, Seven Individuals v. Sweden (1982) 29 CDR 104.
See also Evans, op.cit. note 138, 453.
ECtHR, Kjeldsen, Busk Madsen and Pedersen v. Denmark, 17 December 1976, para. 53;
ECtHR, Appl. 24095/94, Efstratiou v. Greece, 18 December 1996, paras. 29-34; ECtHR,
Appl. 21787/93, Valsamis v. Greece, 18 December 1996, paras. 28-33.


Kristin Henrard
opinion in Efstratiou, which claims that the starting point for discussions should be
the personal convictions of the parents, is very relevant here.
Secondly, the Court arguably indicated in Kjeldsen that the primary obligation of
states in relation to public education was to convey information in an objective, critical
and pluralistic manner and actually points to the active obligation of the state to devise
the public curriculum in such a way that it is acceptable to all, including all religious
minorities.145 However in several subsequent cases the Court too easily allowed attention to shift away from that primary obligation to the secondary obligation of exemptions, in the sense that these exemptions would prevent a finding of violation when the
content of public education was not objective or pluralistic.146
Other minority-neutral documents should also be considered, since to some extent
they address the flaws of ECtHR jurisprudence and advance the issue by addressing
questions of textbooks and teacher training.
The ODIHRs Toledo Guiding Principles on Teaching about Religions and
Beliefs in Public Schools147, notably Principle 5, underscore that attempts should first
be made to revise the curriculum, and only when that is not possible allow for exemptions or opt-out rights.
It should further be borne in mind that exemptions are not always feasible, for
example when controversial religious material is integrated within the curriculum as a
whole. This arguably strengthens the argument for stronger attention to and enforcement of the primary obligation to provide public education in an objective, critical and
pluralistic manner.148
By contrast, ECRI Recommendation No. 10 on Combating Racism and Racial
Discrimination in and through School Education goes one step further by spelling
out the implications for textbooks: not only should these be screened and stereotypical
information deleted (Article 2(d)), but they should be revised to reflect the diversity
and plurality of society, paying proper attention to minorities contributions to society
(Article 2(f)). The ECRI recommendations also focus on training teaching staff to
work in a multicultural environment which, while not explicitly translated into the
language of religious diversity, arguably addresses this implicitly.
A third critical remark pertains to the way the Court evaluates whether the primary obligation of providing objective, critical and pluralist information in the curriculum has been satisfied. These concepts are indeed rather vague and hence everything
depends on how they are applied in concreto. Particular controversies have emerged
in relation to education about religion. In a case against Sweden,149 the Commission
145 Henrard, op.cit. note 35, 123.
146 See inter alia, ECommHR, Appl. 10491/83, Angeleni v. Sweden, 3 December 1986.
147 Toledo Guiding Principles op.cit. note 5; See also ECRI Recommendation No. 5 and its
call to ensure that education respects cultural pluralism while taking care that the curricula do no reflect stereotypes about particular population groups.
148 See also ibid., 469.
149 It needs to be acknowledged that Angeleni v. Sweden turned on Art. 9 and not the second
article of the fi rst additional protocol because Sweden had fi led a reservation in relation to the latter article. Nevertheless, the Commission holds that Art. 9 also prohibits
indoctrination in education. According to the Commission there would not be religious


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

accepted that education about religion focused on a particular religion without
amounting to religious indoctrination. According to Evans this evaluation is hard to
understand, and she cautions against such reasoning because it would lead to proselytism and the marginalization of people who think differently.150 Fortunately, the Grand
Chamber reversed that line of thinking in Folgero v. Norway.151 While it acknowledged
that parents do not have the right to keep their children in the dark about other religions, it also noted that the class in question was de facto focused on Christianity.
Notwithstanding the granting of a wide margin of appreciation, and remarks that
a disproportionate attention to one particular religion would not in itself amount to
indoctrination,152 in practice the Court adopts a strict scrutiny approach and pursues
a detailed evaluation of all aspects of the case. All in all, the quantitative and qualitative differences between Christianity and the other religions were held to amount to a
failure to provide the requisite level of public education.
Unfortunately, in the more recent non-admissibility decision concerning AppelIrrgang v. Germany, the Court repeated its pre-Folgero stance that it was for the state
to decide whether or not its curriculum should dedicate more attention to a particular religion as a result of the countrys particular history. If anything, this seems to
counter the perception that in Folgero the Court indicated a readiness to become more
outspoken about appropriate churchstate relations.
Fourthly, a few remarks should be made about the way in which exemption
schemes are assessed by the Court, since this also determines the extent to which
religious minorities are protected. While it is explicit about the need for exemption schemes to be non-discriminatory,153 the Court does not pay sufficient attention
to the context or broader settings within which the exemption schemes function.




indoctrination, notwithstanding the fact that de facto instruction on religion focused on

Evans, op.cit. note 24, 94.
It should be noted that the Human Rights Committee pronounced on a case with the
same facts but concerning different parents (HRC, CCPR/C/82/D/1155/2003, Leirvag
et al. v. Norway, 3 November 2004). While neither the Committee nor the Court pronounced explicitly on the legitimacy of partial exemptions, they both seemed to question
it (see also Christian Moe, Religious Human Rights and Religion in Schools, Paper
presented at the international conference Religion in Schools: Problems of Pluralism in the
Public Sphere (Kotor, April 2005), 14. The Committee was clearly more sensitive and realistic about the context in which the exemption took place by taking into account the
loyalty issue for pupils and the disproportionate burden on parents (of having to scrutinize
closely the content of the education system).
ECtHR, Appl. 15472/02, Folger and Others v. Norway, 29 June 2007, para. 89. A catalogus
argumentation can be found in the more recent judgment of Hasan en Eylem Zengin v.
Turkey of 9 October 2007 where the Court also took into consideration that Islam is the
majority religion in the country (para. 63).
See also Ben Vermeulen, The Right to Education (Article 2 of Protocol 1), in Pieter van
Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights (Intersentia, Antwerp, 2005), 904. The Court underscored the importance of non-discriminatory
exemption schemes in ECtHR, Appl. 1448/04, Eylem Zengin v Turkey, 9 October 2007,
paras. 74-76.


Kristin Henrard
Furthermore, as with the Commission, the Court does not present more specific
guidelines as to how these exemption schemes should operate, for example in relation
to partial exemption schemes.
In CJ, JJ en EJ v. Poland, the Commission totally disregarded that pupils had to
wait in the corridor while religious classes were given, and were accosted by pupils and
teachers about their non-participation. The broader context of a society which discriminates and stigmatizes non-Christians was similarly ignored. However, it would
be hard to deny that this situation resulted in strong pressure to conform. Such an
insensitive attitude is actually difficult to reconcile with the steady line of jurisprudence about positive state obligations to make the enjoyment of convention rights real
and effective.154 The lack of a full assessment by the ECtHR of all relevant circumstances of exemption schemes is also evident in more recent case law.
In this respect the non-minority-specific Toledo Guidelines appear to offer some
solace. Principle 5 explicitly requires that exemptions be structured in a sensitive
manner. This would imply taking into account issues of de facto pressure on pupils and
possible stigmatization if they make use of the exemption scheme. Furthermore, the
Toledo Guiding Principles clearly focus on the need for exemption schemes to not be
so unduly burdensome as to be ineffective.155
Still, in two other respects the Court has clarified its position in a way that
advances the protection of religious minorities. In Folgero and Hasan and Eylem Zengin
v. Turkey, it stipulates that exemption schemes cannot require parents to explicitly
or implicitly disclose their religion without violating Article 9.156 In addition, concerns about the practical effect of exemption schemes should make one wary of partial exemption schemes. Hence it was important that in Folgero the Grand Chamber
clearly revealed its justified mistrust of such schemes, assessing the partial exemption
scheme in question very critically.157
It was already highlighted that the obligations flowing from Article 2 of the first
additional protocol to the ECHR are not confined to curriculum questions, but apply
to all functions undertaken in relation to public education.158 The prohibition of indoctrination as a founding principle of Article 2 of Protocol 1 also has implications for the
way in which classrooms are set up. Recently the Court was confronted by a complaint
154 ECommHR, Appl. 23389/94, CJ, JJ & EJ v. Poland, 84-A (1996) D&R 46, para. 3. See
also ECtHR, Appl. 40319/98, Saniewski v. Poland, 26 June 2001. In this respect the nonminority-specific Toledo Guidelines appear to offer solace. Principle 5 explicitly requires
the exemptions to be structured in a sensitive manner. Th is would imply taking into
account issues of de facto pressure on pupils and possible stigma if they make use of the
exemption scheme. Furthermore, the Toledo Guiding Principles clearly focus on the need
for the exemption schemes not to be so unduly burdensome as to be ineffective.
155 Toledo Guiding Principles, 69. In this respect reference can also be made to the ECRI
General Policy Recommendations No. 10 on Combating Racism and Racial Discrimination in and through the School System (December 2006).
156 ECtHR, Appl. 15472/02, Folger and Others v. Norway, 29 June 2007, paras. 75-76 and 98;
ECtHR, Hasan and Eylem Zengin v. Turkey, paras. 73-76.
157 ECtHR, Appl. 15472/02, Folger and Others v. Norway, 29 June 2007, para 100.
158 ECtHR, Appl. 24095/94, Efstratiou v. Greece, 18 December 1996, para. 28.


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

that allowed it to address the question of whether crucifi xes in the classroom exerted
improper pressure on the religious convictions of students. According to the Court,
having a crucifi x in the classroom sends a strong (and ever visible) signal that a particular religion is part of the school environment. This not only risks being particularly
disturbing for persons belonging to minority religions, it is contrary to the states obligation to be neutral regarding religion. Consequently the Court concluded a violation
of Article 2 Protocol 1 together with Article 9.159 So while the Court has been demonstrably reluctant to take a strong position in relation to churchstate relations, and has
not easily concluded that something amounts to indoctrination, this judgment is an
example of where it has adopted a suitably protective stance towards religious minorities. The case has been referred to the Grand Chamber and is thus not yet final. It is
to be hoped that the Grand Chamber will not revise this promising line of reasoning.
2. Religious Accommodation and Extracurricular Activities
Notwithstanding the steady stream of jurisprudence which suggests that the state duty
to respect parental religious convictions is not limited to the curriculum but applies
equally to extracurricular activities linked to public education,160 two cases pertaining to Jehovahs Witnesses161 reveal that in its application to the facts of particular
cases it arguably gives too much weight to the position of the public authorities. The
case concerned the exclusion from school of two pupils who refused to take part in a
school procession which they felt to be a military parade and hence a violation of their
religious commitment to pacifism. The governments position that this public occasion was primarily an expression of national values and national unity, thereby requiring the attendance of all pupils, was considered by the Court to be more persuasive
than parental perceptions.162 On this point, the dissenting judgments of judges Thor
Vilhjalmmosson and Jambrek were especially pertinent and would also be relevant
to other questions concerning the accommodation of religious diversity. According
to these judges the fundamental importance of the freedom of religion requires that
the impressions and perceptions of the parents be accepted by the Court, unless to do
so would be unreasonable and without good ground.163 This presumption in favour of
the claimant amounts to an enhanced level of accommodation of religious diversity,
particularly relevant for religious minorities.
In terms of the FCNM, it is important to highlight that educational issues should
be addressed not only in terms of Article 12 FCNM, but also articles 6 and 8.164

159 ECtHR, Appl. 30814/06, Lautsi v. Italy, 3 November 2009, paras. 55-58.
160 ECtHR, Appl. 24095/94, Efstratiou v. Greece, 18 December 1996, para. 28.
161 Ibid., and the similar case of Valsamis v. Greece (74/1995/580/666, 18 December 2006),
decided on the same day. The subsequent paragraph references will be confined to the
former case.
162 Ibid., para. 32.
163 Appl. 24095/94, Efstratiou v. Greece, 18 December 1996, dissenting opinion of judges Thor
Vilhjalmmosson and Jambrek, 16-17.
164 See also Advisory Committee, Commentary on Education under the Framework Convention for the Protection of National Minorities, ACFC/25DOC(2006)002, 4.


Kristin Henrard
In terms of Article 6 the AC has expressed concern about the tendency towards
religious segregation in the educational system, even where this occurs under the same
roof, and actually identifies a positive state obligation to counter such segregation.165
Under Article 6 one can also find very specific suggestions about the content of religious education in the public school system, more particularly that it should include
information on the history and culture of religious minorities. These remarks are consistent with Article 6, as they can be viewed in terms of the promotion of tolerance
through better understanding between various religious groups.166
Occasionally the content of religious education in public schools is addressed
under Article 8. More particularly, the AC criticizes religious education which is
not neutral in its approach towards religion and focuses strongly on the dominant
(state) church, especially when this goes hand in hand with the expression of hostility
towards people of a different faith. In this respect the AC deems it appropriate that
textbooks be adapted.167
Questions about the content of religious education and curriculum more generally are also addressed under Article 12, particularly in relation to the need to foster
knowledge of the culture, history, language and religion of their national minorities and of the majority. Furthermore, education about religion should also include
minority religions. In this context, the opinion on the UK is particularly enlightening. National norms pertaining to the course on religion stipulate an obligation that
teachers reflect the fact that the religious tradition of the country is Christian, while
allowing them to consider other principal religions. According to the AC, including
non-Christian religions in this course should not be a matter of discretion. The fact
that exemptions are available to parents who consider the course too imbalanced does
not make the insufficient coverage of non-Christian religions right.168 The need to
revise textbooks to promote the knowledge of minority religions also features regularly
in the opinions of the AC.169

165 Advisory Committee, Second Opinion on Bosnia and Herzegovina, 27 April 2004,
ACFC/OP/II(2008) 005, para. 121.
166 Advisory Committee, Second Opinion on Bosnia and Herzegovina, 27 April 2004,
ACFC OP II (2008) 005, para. 124.
167 Advisory Committee, First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001,
paras. 98-99.
168 Advisory Committee, Second Opinion on the United Kingdom, 6 June 2007, ACFC/OP/
II(2007)003, para. 159.
169 Advisory Opinion, First Opinion on Bulgaria, 27 May 2004, ACFC/OP/I(2006)001,
para. 84; Advisory Committee, Second Opinion on Denmark, 9 December 2004, ACFC/
INF/OP/II(2004)005, para. 79, 146. See also Advisory Committee, Second Opinion on
the Czech Republic, 24 February 2005, IACFC/INF/OP/I(2002)002, para. 36 (on Roma
but similarly applicable to religious minorities); Advisory Committee, Second Opinion
on the Russian Federation, 11 May 2006, ACFC/OP/II(2006)004. Advisory Committee,
First Opinion on Georgia, 19 March 2009, ACFC/OP/I(2009)001, paras. 139-140 where
it is also stipulated that because history is so sensitive in that country, it is important to
have an objective and pluralist approach to history teaching. Th is arguably will have a
religion dimension.


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

Be that as it may, the AC has followed the jurisprudence of the ECtHR that
any courses on religions in the public school systems are non-mandatory (e.g. allow
for exemptions). AC practice also makes further pronouncements on the exemption
scheme. It highlights inter alia that schools should have adequate alternative activities.170 It is also sensitive to context and to possible pressures that might result from
pupils being singled out in this process.171
Interestingly, the opinions on Norway take up the issues noted in the Folgero case
before the ECtHR. In its second opinion the AC acknowledges that the government
is making efforts to reform religious instruction in state schools, but expresses concern
about the system of exemptions. In any event, the AC is outspoken about its negative
stance concerning partial exemptions, inviting the government explicitly to consider
the use of full exemptions.172
The first thematic comment of the AC concerns education. However, in line with
the practice emanating from its periodic review of state reports, it only refers to religion incidentally, more particularly as one kind of population diversity that pupils
should learn about, understand and tolerate.173 Nevertheless, the Commentary underscores that the inclusivity of the curriculum should also be reflected in textbooks and
teacher training.174 The latter should equip teachers to work in multilingual and intercultural environments, and is particularly relevant in the context of teachers specializing in history and religion.175 The Commentary further stipulates that teachers should
be actively recruited from both majority and minority groups.
The fact that other minority specific instruments do not have many religionspecific rights is reflected in their supervisory practice, also in relation to education.
The Hague Recommendations on educational rights of persons belonging to national
minorities (endorsed by the HCNM) have at most some provisions that are implicitly
relevant for religions (and religious minorities).176 Recommendation 19 stipulates that
curricula should be inclusive, and include teaching of minority histories, cultures and
traditions. Similarly, the recommendations emerging from the first UN Forum on
Minority Issues, which had education as its thematic focus,177 were not particularly
explicit on the issue of religion, although recommendations 43 and 55 are noteworthy.
The former concerns the content of education and stipulates that it should counter



Advisory Committee, Second Opinion on Denmark, 9 December 2004, ACFC/INF/

OP/II(2004)005, para. 79.
Advisory Committee, Second Opinion on the United Kingdom, 6 June 2007, ACFC/OP/
II(2007)003, para. 160.
Advisory Committee, Second Opinion on the United Kingdom, 6 June 2007, ACFC/OP/
II(2007)003, para. 156.
Advisory Committee, Second Opinion on Norway, 5 October 2006, ACFC/OP/
II(2006)006, paras. 95-96. See also Advisory Committee, First Opinion on Norway, 12
September 2002, ACFC/INF/OP/I(2003)003, para. 40.
Advisory Committee, Commentary on Education, 8-9.
Ibid., 11, 19 and 27.
Ibid., 19.
Toledo Guiding Principles, op.cit. note 5, 37.


Kristin Henrard
prejudice, and promote mutual respect and understanding among all residents irrespective of religious background. The latter takes up the general human right and the
right of parents to have their religious convictions respected in the education of their
Overall, the interpretation of minority-specific rights does not add much in relation to the interpretation of the general right to freedom of religion. While issues of
adapting textbooks and teacher training do not feature in the case law of the ECtHR,
it is taken up in other minority-neutral documents. Furthermore the latter also pay
greater attention to exemption schemes, and are outspoken on the issue of partial
exemption schemes. Still, the practice of the Court in relation to the prohibition of
indoctrination is not consistently or de facto protective of religious minorities. In this
respect the inherent minority sensitivity of minority-specific instruments is bound to
entail stronger protection.
F. Other Issues Pertaining to a Religious Way of Life
Two issues have featured in the jurisprudence of the European Commission and
European Court on Human Rights that can be considered to (potentially) advance
respect for religious diversity: the accommodation of religiously inspired food requirements and the granting of exemptions to accommodate religious convictions.
There have not been many cases concerning the problem of accommodating
religiously inspired food requirements. This is probably why the Chamber to which
Chaare Shalom ve Tsedek v. France was assigned, decided to relinquish it to the Grand
Chamber. The case concerned a complaint by a Jewish liturgical organization in
France, with 40,000 adherents and 20 butcher shops administered by its own rabbinical committee, which had not received authorization to perform its own type of ritual
slaughter in line with the strictest version of Judaism subscribed to by the members of
the association. The alleged reasoning behind this refusal was the fact that authorization for ritual slaughter was already granted to the Joint Rabbinical Committee which
was supposed to be broadly representative of the Jewish community in France.
The reasoning developed in this case manifests an extremely narrow understanding of what amounts to interference. Because it was possible in practice for the applicant association and its members to obtain and eat meat which was compatible with
their religious prescriptions (glatt meat) inter alia via Belgium, the Court held that
there was no interference with the right enshrined in Article 9.178 Apparently, making
a particular religious observance more difficult and complicated would not count as
Furthermore, in this case the Court develops a secondary argument in terms of
legitimate limitations even if an interference would be accepted. According to the
Court the broad margin of appreciation doctrine concerning the delicate relations
between the Churches and the State meant that the proportionality requirement had
been met.179 This case confirms once again the central importance of the Courts stance
in relation to churchstate relations for its de facto protection of religious minorities.
178 ECtHR, Appl. 27417/95 Chaare Shalom v. France, 30 March 1999, para. 82.
179 Ibid., para. 84.


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

Arguably, its highly permissive stance in this respect entails a low level of accommodation of religious diversity, in casu concerning a minority within a minority, a
dimension which the Court glossed over completely. Indeed, as was pointed out by the
joint dissenting judgements of seven judges, the mere fact that approval has already
been granted to one religious body does not absolve the State authorities from the
obligation to give careful consideration to any later application made by other religious
bodies professing the same religion. In contrast to the majority, which disposed of the
Article 14 complaint without much argument, the dissenting minority regarded the
differential treatment as a central problem of the case.
While the dissenting judges accepted that states enjoyed a wide margin of appreciation with regard to the establishment of the delicate relations between church and
state, they emphasized another principle of steady jurisprudence according to which
the margin of appreciation was also determined by what was at stake. In casu, the need
to secure true religious pluralism, an inherent feature of a democratic society, would
be very weighty, thereby reducing the margin of appreciation. Conferring an exclusive
right to authorize ritual slaughters to one Jewish community, amounted to a failure to
secure religious pluralism, and thus to a violation of Article 14 in combination with
Article 9.180
This dissenting judgment exposes beautifully how the Courts reasoning in terms
of the margin of appreciation inappropriately excludes other important factors that
should also impact upon the level of discretion accorded to the state.
In relation to demands for exemptions from laws of general application (including laws on taxation, pension schemes, compulsory vaccination, rules about the way in
which animals should be slaughtered etc.), which impact disproportionately on adherents of a particular religion, the Commission and the Court have been reluctant to
even identify an interference with the freedom of religion.181 Because the norms were
neutral, they could not imply limitations to (interferences with) the freedom of religion. This stance reflected the fundamental unease of the Court (and the Commission)
with the concept of indirect discrimination. It is beyond the confines of this article to
discuss the slow development of jurisprudence in this respect. Ultimately the Court
seemed to come to terms with indirect discrimination in a case pertaining to racial
discrimination.182 However, it remains to be seen whether this understanding of dis180 As Spiliopoulou Akermark points out, the Convention does not guarantee the right of
minorities to be recognized. However, if recognition and privileges have been granted
to one religious group, church, conviction or other minority institution, this should be
done on a non-discriminatory basis. Sia Spiliopoulou Akermark, Justifications of Minority
Protection (Kluwer, London, 1997), 16. See also Geoff Gilbert, The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights, 24(3) Human Rights
Quarterly (2002), 736-780, at 768.
181 ECommHR, X v. UK , DR 14.
182 ECtHR (Grand Chamber), Appl. 57325, D.H. et al. v. Czech Republic, 13 November 2007.
For an extensive analysis if the development in the jurisprudence of the ECtHR pertaining to indirect discrimination, see inter alia Kristin Henrard, A Patchwork of Successful and Missed Synergies in the Jurisprudence of the ECHR, in Kristin Henrard
and Robert Dunbar (eds.), Synergies in Minority Protection (Cambridge University Press,
Cambridge, 2008), 314-364.


Kristin Henrard
proportionate impact as a potential indicator of indirect discrimination will be translated into a different evaluation of complaints about the lack of exemptions.
While the position of the supervisory practice of the ECHR is (thus far) not
particularly attentive to the particular needs and disadvantaged position of religious
minorities, these issues hardly feature in the supervisory practice of the minorityspecific instruments. Arguably this suggests that the related problems are not that
deeply felt, otherwise there would have been more complaints and/or information on
these problems before the AC or the HCNM.
In one of its opinions the AC noted the difficulties experienced by Jews in purchasing kosher products for religious holidays and urged the state concerned to address
this.183 In any event, this assessment seems more attentive to the concerns of the religious minority than the decision of the Grand Chamber in Tsedek.
In its practice, the AC also underscored the need to respect the burial customs of
particular religious communities.184
Somehow the question of religiously inspired exemptions from laws of general
application does not feature prominently in the supervisory practice of the AC either.
Only its second opinion on Cyprus reveals that it received complaints about an alleged
lack of exemptions. However, on closer scrutiny the complaint did not concern the
possible withdrawal of an exemption from the obligation to carry out military service.
The minority groups concerned only wanted to make sure that when they participated
in military service they would still be entitled to exercise their freedom of religion. The
AC agreed that this should include the right to opt out of any practices or activities
specific to another religion.185
Finally, it seems appropriate to refer back to the HCNM-sponsored recommendations on policing in multiethnic societies, which underscored the importance of
retaining minority police officers by accommodating their religious identity within
their working environment.
VI. Conclusion
The preceding analysis has shown that in relation to religious minorities, minorityspecific rights and the related supervisory practice do not add a significant layer of
additional protection. To some extent, this can be explained by a lack of attention to
typically religious issues in minority-specific rights. However, the relevant supervisory practice has failed to fi ll in the blanks, as would arguably have been possible
using articles not focused on religion, for example arts. 5 and 12. It is indeed striking
that several issues have not found their way into the supervisory practice of minorityspecific standards, particularly controversial issues such as the headscarf and religious
183 Advisory Committee, Second Opinion on Norway, 5 October 2006, ACFC/OP/
II(2006)006, para. 68.
184 Advisory Committee, First Opinion on Montenegro, 28 February 2008, ACFC/
OP/I(2008)001, paras. 65-66.
185 Advisory Committee, Second Opinion on Cyprus, 7 June 2006, ACFC/OP/II(2007)004,
para. 105.


A Protection of Religious Minorities Going Beyond the Freedom of Religion?

One tends to find provisions on the use of minority languages in education and/or
in relation to public authorities, but there are no similar provisions targeting religious
questions. Arguably this cannot be explained by the fact that the supervisory practice
the ECtHR, in terms of the freedom of religion, is such that it provides adequate
protection of religious minorities. Indeed, critical comments have been made concerning the Courts de facto abstention from pronouncements on national decisions about
churchstate relations and its tense relationship with the prohibition of discrimination
on the basis of religion.
Other repeated criticisms concern the ambivalent acceptance of non-traditional
religious beliefs as religion, questions about curriculum content and exemptions, the
lack of attention to the disproportionate impact of neutral measures on particular religious groups, the lack of accommodation of religious diversity in the workplace, and
so on.
Some of these issues are taken up in other minority-neutral provisions but
these recommendations and guiding principles arguably do not have the same status
since there is no proper supervision mechanism with public rulings and opinions.
Furthermore, none of these provide further guidance as to the requirements that can
be imposed, and the limits set, on decisions pertaining to churchstate relations.
Hence it is important to screen whether and to what extent the supervisory practice of minority-specific compensate for that. Minority-specific rights do yield some
noticeable advantages and improvements in the protection of religions minorities, for
example in the somewhat more critical assessment of state churches (also explicit in
the prohibition of discrimination), in the increasing articulation of positive obligations
(including under articles that are not focused on religion), in a more protective stance
against indoctrination, and notably by adding a participatory dimension. The latter
is particularly important for the empowerment of the population groups concerned.
However, in some respects the supervisory practice is equally disappointing. The
most striking example here is the absence of a clear position against state churches,
or at least the absence of the identification of clearer criteria concerning choices about
churchstate relations.
Other issues, including issues that generated heated debates in several states, are
either not or only barely addressed in the supervisory practice of minority specific
treaties. Examples here would include the wearing of headscarves in working or educational environments, accommodation of religious diversity at work, and the recognition of religious holidays. Although these omissions can to some extent be blamed
on the supervisory mechanisms, it was expected that these issues would feature more
prominently in the review of periodic state reports, given that these take into account
shadow reports of human rights NGOs and interviews with representatives of minorities organizations. Similarly, it was expected that these issues would be mentioned in
commentaries or thematic recommendations.186
186 It should be noted that Thematic Comment No. 3 of the EU Network of Independent
Experts on Fundamental Rights Concerning the Protection of Minorities in the European Union, CFR-CDF.ThemComm2005.en, 109, actually pays explicit attention to the
religious dimension; this is evident from its headings Accommodation of Religious Practices and Wearing of Religious Signs in Schools. Nevertheless, this is mainly a restate-


Kristin Henrard
Notwithstanding the advances made by minority-specific rights for the protection of religious minorities, it cannot be denied that several pressing issues are simply
not being addressed. Hence the overall perception is that minority-specific rights,
in their current interpretation, do not add that much to existing interpretations of
the non-minority-specific right to religious freedom. Furthermore, the crucial issue
of churchstate relations, and the possible limits to state discretion, is left similarly
untouched within the discourse of minority-specific rights.
One is tempted to argue, therefore, that further developments on minority specific rights are required, and that these should be much more explicit on issues of
religion and religious identity.

ment of the position of the ECtHR and actual practice in particular countries. There is
no normative assessment and, as such, it does not contribute in any meaningful way to a
clarification of state obligations in relation to their religious minorities.