Law and Religion Scholars Network
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Case Database 2006
This list includes significant judgments delivered in 2006.
United Kingdom
GALLAGHER v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS [2006] EWCA Civ 1598 (24 November 2006): various buildings on the campus of the Mormon Temple in Chorley (including the Temple itself) were not to be excluded from the rating list pursuant to paragraph 11 Schedule 5 to the Local Government Finance Act 1988 as places of “public religious worship” because the activities carried out within them were"acts of ritual worship carried out in private" [per Neuberger LJ at para 30]: non-Mormons were entirely excluded from the Temple and even Mormon adherents had to be in possession of a “recommend” from a senior member of the hierarchy before being admitted.
WILKINSON v KITZINGER & ORS [2006] EWHC 2022 (Fam) (31 July 2006): a same-sex marriage validly contracted in Canada in 2003 was not a valid marriage in England and Wales, nor would the court grant a declaration of incompatibility with Article 12 ECHR (marriage since to do so would be ‘contrary to the sense in which it is apparently understood and applied by all but three European States’ (per Sir Mark Potter P at para 67).
BEGUM, R (ON THE APPLICATION OF) v DENBIGH HIGH SCHOOL [2006] UKHL 15 (22 March 2006): a school that refused a Muslim pupil permission to wear the long jilbab coat but offered alternative uniform options of trousers, knee-length skirt or shalwar kameez had not breached her rights either under Article of the First Protocol ECHR (education) nor under Article 9 (thought, conscience and religion): moreover, if there had been interference under Article 9, it would have been justified because it had the legitimate aim of protecting the rights and freedoms of others and was necessary in a democratic society: the Court of Appeal’s judgment ([2005] EWCA Civ 199) was therefore reversed.
EDGE v VISUAL SECURITY SERVICES [2006] Employment Tribunal Case No. 1301365/06: a practising Christian whose wish not to work Sundays had been flagged up at interview was transferred six months to a site where Sunday working was required; he complied under duress for about three months while the company trained another operative to take these duties but, ultimately, after arguments about time off for personal and religious reasons, he was dismissed: though VSS had a legitimate aim in requiring Sunday working, its failure to find alternative solutions because they were ‘simply too much trouble’ meant that it could not demonstrate proportionality.
ESTORNINHO v ZORAN JOKIC t/a ZORANS DELICATESSEN [2006] Employment Tribunal Case no. 23014871/06: a Roman Catholic chef whofollowed the Catechism (which, he claimed)obligedhim not to work on Sundays and holy days) had suffered indirect discrimination when dismissed for refusing to work onSundays: though there was potentially a legitimate businessneed to ask staff to work extra shifts and it was proportionate to ask Mr Estorninho to work extra shifts, it was disproportionate to instruct him to work on Sundays without discussing the matter with the other chef and trying to find ways of avoiding him having to work Sundays.
JAMES v MSC CRUISES LTD [2006] Employment Tribunal Case No. 2203173/05: a Seventh-Day Adventist had not been indirectly discriminated against by being obliged to work periodically on Saturdays; though the requirement to work on Saturdays did put Seventh-Day Adventists at a particular disadvantage, the employer had considered alternatives and the obligation was nevertheless justified by a compelling business need that outweighed the disadvantage to the employee.
Europe
IGORS DMITRIJEVS v LATVIA [2006] ECtHR (No. 61638/00) (30 November 2006) [French text only]: the refusal to allow the applicant to attend services in the prison chaplaincy while on remand for attempted rape, on the grounds that the prison authorities could not guarantee that he would be isolated during the ceremonies (ne [pouvait] pas garantir l'isolement pendant les célébrations), violated his rights under Article 9 ECHR (thought, conscience and religion).
MOSCOW BRANCH OF THE SALVATION ARMY v RUSSIA [2006] ECtHR (No.72881/01) (5 October 2006): the refusal to grant re-registration to the Moscow Salvation Army on the grounds, inter alia, that it was ‘subordinate to a centralised religious organisation in London’ and ‘in essence.., a quasi-military religious organisation that has a rigid hierarchy of management’ was a violation of Article 11 ECHR (peaceful assembly and association) read in the light of Article 9 (thought, conscience and religion).
AGGA v GREECE (No. 3) [2006] ECtHR (No. 32186/02) (13 July 2006) & AGGA v GREECE (No. 4) [2006] ECtHR (No. 33331/02) (13 July 2006): the applicant, a Greek national, was chosen as Mufti of Xanthi by the local Muslim community and refused to step down when the Government appointed another mufti; subsequent criminal proceedings for usurping the functions of a minister of a ‘known religion’ were not justified in the circumstances of the case by any ‘pressing social need’, nor was the interference with his right, in community with others and in public, to manifest his religion in worship and teaching ‘necessary in a democratic society ..., for the protection of public order’ under Article 9 § 2 ECHR (thought, conscience and religion): no separate issue arose under Article 10 (expression): for an earlier case involving the same applicant, see AGGA v GREECE (No. 2) [2002] ECtHR (Nos. 50776/99 & 52912/99) (17 October 2002).
ORGANIZAŢIA RELIGIOSĂ “MARTORII LUI IEHOVA-ROMÂNIA” & ORS v ROMANIA [2006] ECtHR (Nos. 63108/00, 62595/00, 63117/00, 63118/00, 63119/00, 63121/00, 63122/00, 63816/00, 63827/00, 63829/00, 63830/00, 63837/00, 63854/00, 63857/00, 70551/01) (11 July 2006: unreported): an application by group of Jehovah’s Witnesses, conscientious objectors denied exemption from military service as ministers of religion, alleging breaches of Articles 6 (fair hearing), 9 (thought, conscience and religion) and 14 (discrimination) was struck out on the grounds that a friendly settlement had been reached between the parties: the Romanian Government had agreed to withdraw all appeals against judgments of the national courts in favour of the individual applicants and to allow Jehovah’s Witnesses access to prisons in order to provide religious assistance to prisoners.
D v IRELAND [2006] ECtHR (Application No. 26499/02) (5 July 2006: unreported): where the applicant, pregnant with twins, one of which had died in the womb and the other of which had a fatal chromosomal abnormality for which the median survival age was six days, had travelled to the UK for an abortion rather than seeking legal advice as to her eligibility for an abortion in Ireland, the Court declared her application under Articles 1 (respect for human rights), 3 (inhuman or degrading treatment), 8 (private and family life), 10 (expression), 13 (effective remedy) and 14 (discrimination) ECHR inadmissible on the grounds that she had failed to exhaust domestic remedies.
ÖLLINGER v AUSTRIA [2006] ECtHR (No. 76900/01) (29 June 2006): the applicant, a Green Party member of parliament, was refused permission to hold a meeting at the Salzburg municipal cemetery war memorial on All Saints’ Day (when Austrians traditionally go to cemeteries to commemorate the dead) to remember Jews killed by the SS – which meeting would coincide with a gathering of Kameradschaft IV to commemorate SS soldiers: the Constitutional Court’s ruling that the prohibition was justified by the State’s positive obligation under Article 9 ECHR (thought, conscience and religion) to protect those practising their religion from deliberate disturbance by others was rejected, since it gave too little weight to the applicant’s interest in holding the intended assembly and protesting against the meeting of Kameradschaft IV and too much to protecting cemetery-users from limited disturbances: there had therefore been a violation of Article 11 (peaceful assembly).
FAZILET PARTISI & ANOR v TURKEY [2006] ECtHR 488 (No. 1444/02) (27 April 2006) [French text only]: an application by Fazilet Partisi (the Virtue Party, which had been closed down by the Constitutional Court on the ground that it offended against the secular nature of the Turkish Constitution) was formally struck out because Fazilet had withdrawn it, alleging bias by the Court and arguing that the Grand Chamber’s previous decision in REFAH PARTISI v TURKEY (qv) had been based on ‘unimaginable hypothetical interpretations by the Court and on assumptions totally at odds with the provisions of the Convention without any legal basis’: « des interprétations hypothétiques inimaginables de la Cour et par des suppositions en contradiction totale avec les dispositions de la Convention, sans aucun fondement juridique ».
KOSTESKI v “THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” [2006] ECtHR (No. 55170/00) (13 April 2006): docking the applicant’s pay for an unauthorised absence in order to celebrate a Muslim holiday had not violated Article 9 ECHR (thought, conscience and religion) or Article 14 (discrimination): attendance at a Muslim festival was not a manifestation of belief in the sense protected by Article 9, nor did the penalty for breach of contract interfere with those rights, since it was not unreasonable for an employer to regard unauthorised absence as a disciplinary matter.
ÜLKE v TURKEY [2006] ECtHR (No. 39437/98) (24 January 2006): in the case of a pacifist who had refused to perform compulsory military service, had served 701 days in prison as a result of various prosecutions for desertion and for refusing to wear military uniform and who, partly as a result, was unable to contract a legal marriage with his fiancée or to recognise their child as his son, the Court concluded that the cumulative effects of the criminal convictions and the constant alternation between prosecutions and terms of imprisonment, together with the possibility that he would be liable to prosecution for the rest of his life, had been disproportionate and breached Article 3 ECHR (inhuman or degrading treatment): it was not necessary separately to examine his complaints under Articles 5 (liberty and security), 8 (private and family life) and 9 (thought, conscience and religion).
LARSN Case Database
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