The 2007 International ConferenceJune 7-9, 2007
Bordeaux, France
Globalization, Immigration, and Change in Religious Movements
The European Union Enlargement: Human Rights Perspective
Alessandro AMICARELLI ("Carlo Bo" University, Urbino - "La Sapienza" University, Roma)
A paper presented at the 2007 International Conference, Bordeaux, France. Please do not reproduce or quote without the consent of the author.
Textual version of the speech without references and notes
Ladies and Gentlemen, good afternoon.
First of all, just a little introduction to explain what I am going to say and what I am not.
It is not my intention to talk neither about the EU enlargement procedures nor about the EU as such.
And it is not my intention, as well, to talk about the respect of human rights and fundamental freedoms in each single new EU member State.
It is, instead, my intention to outline the situation of the respect of a single human right, the most important one, I mean, generally because it is tightly tied to eachone’s individuality and the most important one in the context of this Conference, as well.
And as you have clearly understood I am hinting at the right to religious freedom. Leonard Swidler said that: “Religious freedom itself is arguably the oldest and deepest of the rights embedded in the modern constellation of liberty”.
And it is not my intension, also, to talk about the right to religious freedom as such.
I am going to point out some crucial aspects related to religious freedom having regard to the legislation on religions operating in some actual EU member States or prospective members by the light of the international human rights law and the European jurisprudence due to the membership of these States to the Council of Europe – the COE consists, as you know, of 46 member States and almost 1 billion inhabitants. All these States are bound to the provisions of the European Convention on Human Rights (ECHR) whose Art. 9 statutes about religious freedom and, above all, they are bound to the decisions of the European Court of Human Rights created in 1950 by the Council of Europe through the ECHR.
And it is from a judgment of that Court that I want to start.
The recent judgement in the case Church of Scientology of Moscow v. Russia brings with it that I started this short speech in a different way from the one I wished to.
I would like you to let me start reading the Art. 9 of the ECHR:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public society, for the protection of public order, health or morals, or for the protection of the rights and freedom of others”.
The Parliamentary Assembly of the Council of Europe in the Recommendation 1396 of 1999 said that “The Council of Europe, by its statute, is an organisation which is essentially humanistic. At the same time, as a guardian of human rights, it must ensure freedom of thought, conscience and religion as affirmed in Art. 9 of the ECHR. It must also ensure that manifestations of religion comply with the limitations set out in the same article”.
In the judgement on the case Kokkinakis v. Greece of 1993, the European Court affirmed that “Freedom of thought, conscience and religion is one of the foundation of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it”.
THE RUSSIAN FEDERATION
And now for the judgment in the case Church of Scientology of Moscow v. Russia, the case involved the right of the applicant Church to be re-registered, on the basis of the new Religions Act entered in force on 1st October 1997, as a church in the Russian Federation and the refusal of the local authorities to register them as a religious community.
The applicant church, a religious association with the status of legal entity officially registered on 25th January 1994, applied in total 11 times for re-registration to the Moscow Justice Department in the period 11 August 1998 – 31st May 2005.
The Department refused to allow the registration all the times with different reasons for the refusal, e. g. because the Church had failed to produce originals of their charter and their registration certificate or because the Church did not provide sufficient information on the tenets of Scientology’s creed and practice; and about this last point I want to recall the judgement of the European Court on the case Manoussakis v. Greece of 26th September 1996 when the Court asserted that the right to religious freedom as in the ECHR excludes any appreciation by the State on the ground of the legitimacy of creeds and their manifestation.
The District Court of Moscow, as a result of a complaint filed by the president and co-founder of that community, held on 8th December 2000 that the Justice Department’s refusal to re-register the Church was unlawful and so the Justice department used, in essence, subterfuge to avoid re-registration of the church and pointed out that an association with no status as a legal entity was, in particular, prevented from renting premises for religious ceremonies and worship, receiving and disseminating religious literature or holding a bank account. The Department was ordered to re-register the Church.
Notwithstanding, the Justice Department continued refusing to allow the re-registration and justified the refusal with the failure to produce a document proving the presence of the Church in the Federation for at least 15 years.
The Church of Scientology decided to file a complaint to the European Court which declared it partly admissible on 28th October 2004.
The applicant Church relying on Artt. 9, 10 (freedom of expression) and 11 (freedom of assembly) ECHR complained that the refusal to re-register it as a religious organization had arbitrarily stripped it of its status as a legal entity and that they relying on Art. 14 (prohibition of discrimination) were discriminated against on account of the position of the Church as a minority religion in the Federation.
The Court found that the Church’s complaint had to be examined from the standpoint of Art. 11 in the light of Art. 9.
The Court noted that the Justice Department, just to name a few, acted in an arbitrary manner and their grounds for refusal of the Church’s application had not been in accordance with the law and that the last rejection on the ground that the Church did not prove to be present in the country for at least 15 years was not founded on a legal basis, it was not required by the law for the religious communities which had yet existed when the Religion Act entered into force in 1997; in fact the Church of Scientology of Moscow existed and operated in Moscow since January 1994.
Then, the Court observing that the Church had fully existed and operated in Moscow, as an independent religious community, for three years and that it had not been proven they had breached domestic law or any regulation governing their associative life and religious activities, the Court founded that the reasons given to deny the re-registration of the Church of Scientology by the Department of Justice and partially endorsed by the Moscow Court had had no legal basis; the Moscow authorities had not acted in good faith and had neglected their duty to be neutral and impartial vis-à-vis the Church’s religious community. Therefore the judges found that had been a violation of Art. 11 read in the light of Art. 9.
“What does it mean for all the religious communities and faiths in Europe?” Fabio Amicarelli, Director of European Public Affairs for the Church of Scientology was asked by journalists. “Church of Scientology v. Russia”, Amicarelli replied, “is a precedent-setting decision that will serve to ensure greater religious freedom not only to Scientologists, but also to members of all other religions”. And he added “With this decision the Court upheld the fundamental human rights policy of the European Community to religious freedom issues – “the need to secure true religious pluralism, an inherent feature of the notion of a democratic society”. Similarly, the Court has emphasized the importance of “pluralism, tolerance and broadmindedness, without which there is no democratic society”. As the Court has stressed, since religious entities exist in the form of organized structures, “the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords”.
With regard to the two newest EU member States, Romania and Bulgaria, they are two countries that changed a lot, above all Romania, after the collapse of the communist regimes.
They are not only changed from the economic and industrial point of view but from the political-juridical order point of view too.
As it regards, particularly, this last aspect it often happens that the Eastern European countries in order to become more integrated with their Western counterparts adopt the worst law and the worst systems present in those countries.
ROMANIA
This is for example, partially, the case of Romania with regard to religious freedom; in fact in 2005 the Romanian authorities decided to adopt a kind of “french-style” on the subject of religion.
Therefore, in October 2005 a number of Romanian minority religious communities expressed alarm about the draft of a new Religion law and the way it was rushed to parliament under “emergency procedure”.
The draft law was quickly approved in December 2005 by the High chamber, the Senate and in January 2006 it went to the Low chamber, the Chamber of Deputies where it was, conclusively, approved in December 2006.
On December 27th, 2006 President Traian Basescu decided not to send the Law back to the Chambers for reconsideration and approved it.
This Law provides different levels of legal recognition for religious communities, there is a ban on “religious defamation” and “public offence to religious symbols” which means, was affirmed, that people cannot compare their religious beliefs with those of others; there are also other peculiar provisions, e. g. the requirement that denominational schools will have to provide pupils of other faiths with religious education of their faiths which means eliminating specific denominational education, and causing undue burdens on denominational schools, and so on there is a rule over denominational cemeteries that is too vague and could lead to continuing denial of access to members of minority faiths being buried in the only available local cemeteries. There is, also, another provision that was pointed out, it regards the requirement for new religious communities to have at least the 0.1 % of the population – about 22,000 people – before they can register as a denomination, while those wanting to register as a lower-level religious organisation need 300 members, it looks strange if compared to just 3 people needed to register other NGOs.
The 7th Day Adventist Pastor Adrian Bocaeanu, stressed that the way the Law will be implemented would be crucial. “If the law is interpreted to silence other religions and this becomes a pattern, this would be dangerous”, he said.
Not only minority religions leaders and faithful are worried of this Act, in fact with regard to the religious symbols the Bucharest Patriarchate of the Romanian Orthodox Church said in a statement that “The presence of religious symbols in schools is not the result of an imposition, but rather of the desire and consent of parents, teachers and students in conformity with the religious and cultural values which they share” and that “Consequently, a decision to exclude them would represent a brutal and unjustified measure of restraining religious liberty, contrary to European democratic principles”, it continued. The hope is that the Romanian authorities would do their U-turn in order to respect the international human rights law’s provisions.
BULGARIA
And now for Bulgaria.
The Bulgarian Parliament adopted on December 20th, 2002 a new Religions Law; as in the case of the Romanian Religion Act, the Bulgarian Religions Law was the result of a rush by the Parliament and entered into force January 1st, 2003.
In that period the European institutions were strictly monitoring the Bulgarian life due to the actual process which would have brought Bulgaria in the EU January 1st, 2007.
So it did happen that this Law was criticised in a June 2003 Council of Europe report by Rick Lawson of the University of Leiden, and Malcolm Evans of Bristol University.
In particular, their report expressed concern about privileges granted to the Bulgarian Orthodox Church; that the Religious Affairs Directorate can exert pressure on the courts that register religious communities; and that the directorate can punish religious leaders.
The Law immediately ended up before the Constitutional Court which reviewed it on July 15th, 2003. Six of the Court's twelve judges ruled against the Law on Religions and five in favour. However, under the Bulgarian law, seven judges must rule against a law for it to be overturned, so the Law in fact survived the Constitutional Court challenge.
Furthermore, in July 2004 prosecutor's office and police officers forcibly expelled followers of the “Alternative” Orthodox Synod led by Metropolitan Inokenty from the churches they had been using for more than a decade.
Even though, some of the worst aspects of the Law have not been deployed, many members of religious minorities remain unsatisfied at what they regard as its inadequacies and its peculiar application at local level; so much concern continues over the widespread belief by local officials that religious communities also have to “register” with the local municipality to be able to conduct local religious activity. Even if this is nowhere stated in the law, officials often use this to suppress activities they do not like; this is because during the 1990s, several municipalities issued local decrees restricting religious activities, and some of those remain in force.
Then, in September 2004 the Parliamentary Assembly of the Council of Europe adopted a new resolution with some recommendations to Bulgaria. The resolution said that Bulgaria should not interfere with the religious societies in the country. The same statement was done in 2000 by the European Court of Human Rights in the case Hasan and Chaush v. Bulgaria when asserted that “[…] a failure of the authorities to remain neutral in the exercise of their powers in the field of registration of religious communities must lead to the conclusion that the State interfered with the believers' freedom to manifest their religion. Except in very exceptional cases, the right to freedom of religion excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express them are legitimate. State action favouring one leader of a divided religious community or to force the community to come under a single leadership against its wishes would likewise constitute an interference. In this case, the changes in the leadership of the Muslim community were announced without any reasons being given and the effect was to favour one faction, granting it the status of the single officially recognised leadership while depriving the first applicant of the possibility of continuing to represent at least part of the community. There was therefore an interference with the applicants' right to freedom of religion. However, since the relevant law does not provide for any substantive criteria for registration and there are no procedural safeguards against arbitrary exercise of discretion, the interference was not prescribed by law. Furthermore, the repeated refusal of the Council of Ministers to comply with the Supreme Court's judgments was a clearly unlawful act of particular gravity”. The European Court of Human Rights concluded for the violation of Art. 9 ECHR.
With regard to the content of the Bulgarian Law, it granted official status to the Bulgarian Orthodox Patriarchate in Art. 11, and granted it automatic registration, whereas all other faiths wanting legal status must register in a Sofia court or local courts. Art. 9 allowed the courts to punish religious organisations for a variety of alleged offences by banning their activities for up to six months, banning the publication or distribution of religious publications or cancelling an organisation's registration. Punishments for religious activity prescribed in the law include fines of up to 5000 leva (2600€ about). Art. 38 punishes “any person carrying out religious activity in the name of a religion without representational authority”, with second offences attracting a fine of up to 1000 leva (500€ about).
However, a short and important, as well, step has been taken, achieved; an exception to the official view of the primacy of the Orthodox Church is the arrangement made for members of religious communities to take religious holidays off work. A cabinet decision on December 2005 allowed non-Orthodox believers – Catholics, Muslims, Protestants, Armenians, Jews, Hare Krishna devotees, Baha'is and Buddhists – to take named religious holidays off work, with provision for Seventh-day Adventists to take four Saturdays off if they are part of their working time.
This important step was the result of the pressures of the European institutions focused to allow more freedom to religious communities in Bulgaria because it is clear that a religious community, wherever, would have no way of existing if it were not allowed to organize itself freely and, that is, if followers were not allowed to pray, carry out worship and activities of proselytism as typical activities of every religion. In the same way the existence itself of a community would not be ensured if each group were not allowed to freely choose its local heads and ministers just like if, as happens in certain cases, the community were barred from receiving financial support for the group’s development. That said, it would be necessary to add that these rights would be applied to the religious communities in the same way in which they are applied to other groups and associations which are not necessarily religious in nature.
The Parliamentary Assembly of the Council of Europe has intervened in this field on two occasions by issuing recommendations. In particular, in the Recommendation 1178 of 1992, relating to sects and new religious movements, the Assembly had judged not opportune and necessary the adoption of a different – stronger – legislation for cults because it could result in a violation of the freedom of conscience and religion allowed by Art. 9 ECHR, also for traditional religions (“estimé inopportun le recours à une législation majeure pour les sectes au motif qu’elle risquerait de porter atteinte à la liberté de conscience et de religion garantie par l’article 9 de la CEDH, ainsi qu’aux religions traditionelles”) and again, the Recommendation 1412 of 1999, invited, besides, the governments of the member States to use the ordinary procedures provided by criminal and civil laws against illegal behaviours and actions occurred inside of religious, esoteric and spiritual groups (“[…] 10.iii à utiliser les procédures normales du droit pénal et civil contre les pratiques illégales menées au nom de groupes à caractère religieux, ésotérique ou spirituel”).
However, the temptation for States to intervene in regulating the internal affairs of religious communities has been demonstrated often.
The European Parliament has thus recalled in the resolution of 13th April 2006 that freedom of expression should always be exercised within the limits allowed by law and should co-exist with the responsibility and respect of human rights, opinions and religious beliefs, regardless of whether they concern Islam, Christianity, Judaism or any other religion.
And the Parliamentary Assembly of the Council of Europe, again, in Resolution 1510 of 28th June 2006 asserted that: “The Assembly encourages religious communities in Europe to discuss freedom of expression and respect for religious beliefs within their own community and to pursue a dialogue with other religious communities in order to develop a common understanding and a code of conduct for religious tolerance which is necessary in a democratic society”.
Unfortunately, this does not always happen and so certain States subordinate the recognition of rights to religious communities to the requirement of registration or re-registration. Such registration can be carried out however, only by communities that count a certain number of followers in State territory and/or which have been present in that territory for a certain number of years. But this only impedes minority religions from existing in a certain country, which means the violation of general religious freedom and of individuals who are deprived of the right to express their own religion.
So the entry of these two counties, Romania and Bulgaria, involves for the EU an important challenge as it regards the maintenance of the democratic standards within its own borders and a test, someone says, at the same time, due to the presence of a great number of Muslims in Bulgaria, with regard to the possible adhesion of Turkey to the EU.
Bulgaria’s population of 8 million is composed of 83.5% Orthodox, 13% Muslim, 1.7% Catholic and 0.8% Jewish and many Protestants identify as religious freedom blackspots areas with a majority ethnic Turkish population – such as in and around Kurdzhali and Khaskovo in the Rhodope mountains in the south and in the area of Razgrad in the north-east – as well as what many regard as the “Communist-dominated” northern towns, such as Pleven, Vratsa and Vidin. “Local authorities try to put in place special unwritten rules that are more restrictive than the law” complained the protestant Pastor Nikolov. “When Christians try to do things in traditionally Muslim areas, the local authorities try to cancel them”, he added.
He cited cases in Muslim villages where Protestants have gained permission to rent publicly-owned halls for evangelistic meetings but which have been cancelled after Muslim organisations protested. He said Muslim villagers had on occasion threatened to burn down houses where Christian meetings had been held, while on one occasion in 2005 a mob had beaten a visiting evangelist and tried to destroy his car.
However, even though it seems, sometime, that Bulgarian authorities, as well as Romanian authorities, do feel worry about religion as such, as if it was the biggest hurdle in the way, last April research carried out in Bulgaria, among students and parents, pointed out that the majority of Bulgarian students and parents, 85% and 75% respectively, want an optional class on religion to be taught in the schools, which would be focused on informing about religion by qualified teachers; another aspect linked to the reason of such a class on religion was pointed out by that research: the main reason of such a class, according to the survey’s respondents is that it could help check juvenile delinquency, aggression and drug use.
TURKEY
And now I’d like to talk about Turkey.
As it is well known Turkey, in spite of a 99.9% Muslim population, is a secular State. This means that both minority religions and Islam faithful have some rights restricted.
With regard to Art. 9 ECHR Muslims, or precisely Muslim women are prevented from wearing the headscarf. In the case Sahin v. Turkey, concerning a Muslim student in a Turkish university who was in fact prevented from using the veil, both a Chamber and the Grand Chamber of the European Court of Human Rights decided that (1) due to the presence of a massive number of Muslims in Turkey and (2) a meagre quantity of faithful of other religion; and due to (3) the presence of some extremist groups and (4) because of the secularism of the institutions, preventing people from wearing headscarf was in accordance with the content of Art. 9.2 ECHR and the whole content of the ECHR and the previous Court jurisprudence. The European Court statuted that the secular Turkey is legitimated to restricting some rights of the national majority in order to safeguard the minorities from possible pressures by the majority.
It does not mean that the minorities have, always, the same treatment provided to the majority.
Instead, it often happens that minority religions missionaries are jailed on spot for proselytism as occurred to 4 foreign missionaries last April.
However, Turkey is moving toward the achievement of higher standards in theme of religious freedom.
In fact, since 2006, according to official declarations, in Turkey there are 305 worship halls and churches of different communities and 36 synagogues with Turkish faithful.
At the same time, the are 53 churches managed and attended by foreign people and 122 foreign missionaries are allowed to work in the territory of the State. Lastly, on 29th April 2006 entered into force the Law on the registration service which allows people to change, delete or simply not declare their religious membership on the ID card and on the register office family file.
CONCLUSIONS
Marshall McLuhan a Canadian writer who died in 1980 said that these days two different cultures do exist and compare each other.
They are the literary culture and the electro-magnetically one.
Apart from the context in which McLuhan expressed his thoughts, what we are interested to now, is the conclusion at which the writer arrived.
He said that the result of such a comparison would be/have been a more informed world, so a united world, a global village.
This last couple of words brings us to the title of this Conference (“Globalization, Immigration and Change in Religious movements”) and to the title of this session “Religion and globalization: social and legal issues”. Therefore, the word ‘globalization’ is tightly tied to the expression ‘global village’.
A global village does exist and a globalization process does exist as well; however is this global village so united as McLuhan probably thought or desired?
This writer used to talk about the existence of two cultures.
Now, bringing the sentence of McLuhan to the context of our interest we can introduce a change to the two kind of cultures.
So we can talk about a culture that does respect all the other cultures and religions and a culture of hate and prejudice against one, some or maybe all the other religions and cultures.
The two kind of cultures do not represent, obviously and obligatorily, two different parts of the world; instead, they are transversal in space and time and are present both, at the same time, in different contexts and societies.
Everyone has the right to believe which is the correct way and consequently the wrong one to face such problems in each different context.
In my opinion the best way to face such problems would be, in fact, the one run by the European Court of Human Rights that does consider in each single case the different social context in which the facts happened, having regard, also, to the majorities and minorities present in that society and to their relations with the history of the country and to the respect of the democratic standards as well.
There could be thousands, or maybe more, questions about these issues and, consequently, thousands and thousands of answers as well.
However, I want to conclude with the question below.
Nowadays, someone talks about the inversion of the legal protection between majorities and minorities – there are, we know, different meanings of majority and minority, and they do not refer strictly to the number of members and faithful of each group – so the question is “Are there new standards of equality and freedom in the pipeline, on the way?”.
Even if there are problems in this global village I want to conclude that there are some positive aspects, as well; globalization, so the global village, could unify the world, is actually unifying the world, and perhaps the “religious way” could be the perfect way to spark a constructive dialogue among the human beings in order to solve those problems and to preserve and improve humankind.
Thanks for your attention.
Special thanks to CESNUR, INFORM and WWRN and their websites for the support they give to the information and research in the field of religious freedom.
Special thanks also to The Family Europe newsletter and to the Turkish Embassy in Rome for the information provided.
