Law and Religion Scholars Network
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Case Database 2011
This list includes judgments delivered in 2011.
United Kingdom
ADEWOLE v BARKING, HAVERING AND REDBRIDGE UNIVERSITY HOSPITALS NHS TRUST [2011] ET (unreported): the discrimination claim of a midwife who objected to wearing scrub trousers rather than scrub dresses while working in the operating theatre (on the grounds that for a woman to wear men’s clothing was forbidden in the Old Testament) was dismissed: though the policy put her at a disadvantage in comparison with, for example, Muslim midwives who had no such religious objection to wearing scrub trousers, the Trust’s dress-code was justifiable as a proportionate means of achieving the legitimate aim of preventing infection in operating theatres.
EL GAMAL v AL MAKTOUM [2011] EWHC B27 (Fam) (22 December 2011): the applicant contended that she had gone through a valid ceremony of Islamic marriage which all those involved believed – erroneously – would be recognised as valid under English law, and at the preliminary proceedings (reported as G v M [2011] EWHC 2651 (Fam) (17 October 2011)), though the applicant could not produce a marriage certificate the court, nevertheless, found sufficient evidence supporting her contention on which to found a petition for nullity on the grounds that the alleged ceremony had amounted to a potentially-lawful marriage rather than a 'non-marriage' or a 'non-existent marriage’: however, at the substantive hearing it was held that, absent a written Islamic marriage contract, there was insufficient evidence to demonstrate that the parties had, in fact, believed that they had contracted a valid Islamic ceremony and, because there had been a wholesale failure to comply with the requirements of English marriage law, there was nothing recognisable at law that could be susceptible to a decree of nullity.
PRESIDENT OF THE METHODIST CONFERENCE v PRESTON [formerly Moore] [2011] EWCA Civ 1581 (20 December 2011): a Methodist Superintendent Minister could sue for unfair dismissal because the judgment in President of the Methodist Conference v Parfitt [1984] ICR 176 had, in effect, been overridden by the more recent decision in Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73 (15 December 2005) [2006] 2 AC 28 that the rebuttable presumption that, viewed objectively, there was an absence of an intention to create legal relations between the individual minister and the Church had been abandoned and it was no longer the case that the spiritual role of a minister could, of itself, justify denying effect to an arrangement which otherwise had the marks of a contract: ‘… although most of the speeches in Percy are characterised by a linguistic gentleness in their approach to Parfitt, that does not disguise the fact that they caused the tectonic plates to move’ (at para 25).
THOMPSON v LUKE DELANEY GEORGE STOBBART LTD [2011] NIFET 00007 11FET (15 December 2011): the claimant, a Jehovah’s Witness of Kazakh origin, who had been refused permission not to work at a time on Sundays that would have made it impossible for her to attend worship at the local Kingdom Hall, had been unfairly dismissed and discriminated against on grounds of religious belief (and also on grounds of race and gender): because there were other employees who could have covered the Sunday shift from 12.00 noon to 4.00 pm without difficulty, to require her to work on Sundays was an attempt to apply a provision, criterion or practice that would put persons of her religious belief at a particular disadvantage when compared with others.
LYONS v R [2011] EWCA Crim 2808 (1 December 2011): a Royal Navy Leading Medical Assistant who had refused to undertake weapons training prior to deployment to Afghanistan and applied for a discharge on grounds that he was a coscientious objector had been lawfully convicted of intentionally disobeying a lawful command, contrary to s 12(1)(a) Armed Forces Act 2006: the order had not contravened his rights under Article 9 ECHR, nor was it a breach of the Geneva Convention: the procedure for deadling with claims of conscientious objection were prescribed by law and necessary in a democratic society in the interest of public safety, the protection of public order and the protection of others: see also BAYATYAN v ARMENIA 23459/03 [2011] ECtHR (GC) 1095 (7 July 2011).
H v S [2011] EWHC B23 (Fam) (18 November 2011): a talaq decree pronounced by the respondent husband in Saudi Arabia and placed by Deed of Confirmation before the local sharia court was a sufficient ‘intervention and act of state or official agency within proceedings’ as to constitute a ‘proceedings’ divorce for the purposes of s 46(1) Family Law Act 1986 defined by s 54(1) as obtained by ‘judicial or other proceedings’ and was therefore entitled as of right to recognition by the domestic courts.
JGE v THE ENGLISH PROVINCE OF OUR LADY OF CHARITY & ANOR [2011] EWHC 2871 (QB) (8 November 2011): in preliminary proceedings the Court held that the Trustees of the Portsmouth Roman Catholic Diocese ‘standing in the shoes of the Bishop’ (para 5) could be vicariously liable for the acts of a priest (now dead) who had allegedly raped the claimant while she was resident at a children's home managed by an order of nuns: "by appointing Father Baldwin as a priest, and thus clothing him with all the powers involved, the defendant created a risk of harm to others, viz the tisk that he could abuse or misuse those powers for his own purpose or otherwise" (para 39): MAGA v TRUSTEES OF THE BIRMINGHAM ARCHDIOCESE OF THE ROMAN CATHOLIC CHURCH [2010] EWCA Civ 256 (16 March 2010) followed.
BIBI & ANOR, R (ON THE APPLICATION OF) v S OF S FOR THE HOME DEPARTMENT [2011] UKSC 45 (12 October 2011): a recent amendment had raised from 18 to 21 the minimum age for a person to be granted a visa in order to settle in the United Kingdom as a spouse or to sponsor another for the purposes of obtaining such a visa. This had been applied to unforced marriages. The Supreme Court (Lord Brown dissenting) held that this constituted an interference with Article 8 which had not been justified since it had not been proven that the interference was proportionate.
LISK v SHIELD GUARDIAN CO LTD & OTHERS [2011] ET 3300873/2011 (14 September 2011) (unreported): the claimant had not suffered a detriment on grounds of his philosophical belief when he was refused permission to wear a poppy at work during Remembrance Week: his views did not amount to a “belief” within the meaning of the Equality Act 2010: belief that one should wear a poppy to show respect to serviceman lacked the necessary characteristics of cogency, cohesion and importance and ‘it cannot fairly be described as being a belief as to a weighty and substantial aspect of human life and behaviour’ (Employment Judge George at para 10).
RE N (A Child: Religion: Jehovah’s Witness) [2011] EWHC B26 (Fam) (24 August 2011): where separated parents – the mother a Jehovah’s Witness, the father an Anglican – failed to agree the detailed arrangements for the care of their four-year-old child, N, though the mother's right to manifest her religion was guaranteed by Articles 9 and 14 ECHR, under s1(1) Children Act 1989 the paramount considertation was N's welfar: the cpurt had 'profound reservations' about the appropiateness of either parent 'teaching' their Christian beliefs to N in any formal sense (para 91) and on the most difficult question – consent to possible medical treatment for N involving transfusion – the court ordered that in the event of any medical professional recommending a blood transfusion the mother should immediately inform the medical authorities of the father’s contact details and of his ability to consent to such treatment.
SMITH & ORS v MORRISON & ORS [2011] CSIH 52 (12 August 2011): the congregation of the Free Church of Scotland (Continuing) that broke away from the Free Church of Scotland after the schism in 2000 was not entitled to continue to occupy the Free Church of Scotland church and manse in Broadford, Isle of Skye, in contravention of the provisions of the congregational trust deed; in order to satisfy the requirements of the trust it was not sufficient for the defenders merely to adhere to the principles and practice of the undivided Free Church but they also had to remain part of the institutional structures of that Church – which they had not done. See also SMITH & ANOR v MORRISON & ORS [2009] CSOH 113 (31 July 2009)
JIVRAJ v HASHWANI [2011] UKSC 40 (27 July 2011): the law prohibiting discrimination on grounds of religion or belief in relation to employment does not apply to the selection, engagement or appointment of arbitrators and, if it did, it is likely that the genuine occupational requirement could be relied upon. This reverses the decision of the Court of Appeal: [2010] EWCA Civ 712.
A & B BY C (THEIR MOTHER & NEXT FRIEND) v A– HEALTH & SOCIAL SERVICES TRUST [2011] NICA 28 (24 June 2011): the appellant twins were conceived in vitro using sperm of a different ethnic background from that of their mother and non-biological father, with the result their skin colour was much darker than that of their parents and they had been subjected to abuse and derogatory comments by other children on that account: nevertheless, their claim failed because ‘they cannot point to any damage or injury as a result of the error made by the Trust, the appellants having suffered no compensatable wrong, damage, injury or consequential loss as a result of the mistake made by the Trust’ (per Girvan LJ at para 9): McFarland v Tameside Health Board [2000] 2 AC 59 followed.
MRA v NRK [2011] ScotCS CSOH 101 (17 June 2011): the Court of Session refused to grant declarator of nullity in respect of a telephone marriage contracted in Scotland and Pakistan between parties who had met neither before or since the ceremony: the evidence suggested that the marriage might have been subsequently registered in Pakistan without the pursuer’s signature or knowledge – in which case it could have been a valid marriage by proxy on her behalf and “ If this marriage were truly a marriage by proxy valid in the place of solemnisation, I know of no authority which would allow me to nullify it” (per Lord Stewart at para 39): any remedy should therefore be sought in Pakistan [see also KC & ANOR v CITY OF WESTMINSTER SOCIAL & COMMUNITY SERVICES DEPT & ANOR [2008] EWCA Civ 198].
G v ST GREGORY'S CATHOLIC SCIENCE COLLEGE [2011] EWHC 1452 (Admin) (17 June 2010): where the claimant, of African-Caribbean ethnicity, had not cut his hair since birth and kept it in cornrows (braids close to the scalp) in accordance with family tradition, the refusal by the school to allow him to take up his place constituted unjustified indirect racial discrimination: in the view of Collins J, the requirement in Watkins-Singh [qv], to show that a particular practice was of “exceptional importance” put the threshold too high [per Collins J at 37]
FARRELL v SOUTH YORKSHIRE POLICE AUTHORITY [2011] ET 2803805/2010 (24 May 2011) (Unreported): the belief of the claimant, a Principal Intelligent Analyst, expressed in a report to his employers on ‘The Truth about 9/11’ and ‘The Truth about 7/7’ describing how the world faced the risk of the ascent of a ‘New World Order’ and outlined his belief that the two terrorist attacks were ‘false flag operations’ which were authorised by the respective national governments in order to give material with which they could persuade their respective populations to support foreign wars did not satisfy the definition of “belief” under the Employment Equality (Religion or Belief) Regulations 2003 because it did not meet the minimum standard of cogency or coherence: the difficulty for the claimant was “that the conspiracy theory he advances remains in the light of subsequent events and the weight of evidence, wildly improbable. There is no body of respected academic commentary in peer reviewed journals that supports the theory” (Employment Judge Rostant at para 6.4).
CHERFI v G4S SECURITY SERVICES LTD [2011] UKEAT 0379 10 2405 (24 May 2011): a Muslim security guard who was refused permission to leave the site on Fridays to attend midday prayers at a nearby mosque and who had been offered and refused a variety of alternatives, such as Saturday or Sunday working, had not been discriminated against on grounds of religion: the lower Tribunal had fulfilled the mandatory obligation under Regulation 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to direct itself on the law of justification, had given adequate reasons for its decision and had carried out the balancing exercise required of it when considering the defence of justification.
DHINSA v SERCO & ANOR [2011] ET 1315002/2009 (18 May 2011) (unreported): the refusal by SERCO and the Prison Service, in accordance with Prison Service Order 4550 (Religion Manual) para 2.22, to permit a trainee prison custody officer who was a baptised Sikh to wear his kirpan (ritual dagger) while on duty was not in breach of the Race Relations Act 1976, the Employment Equality (Religion or Belief) Regulations 2003 or Article 9 ECHR: even though baptised Sikhs were under a religious obligation to wear the kirpan as part of the “Five Ks”, the restriction was appropriate and necessary for the maintenance of prison security and the safety of staff, visitors and prisoners and SERCO's actions and the policy of the Prison Service was a proportionate means of achieving a legitimate aim.
BASHIR, R (ON THE APPLICATION OF) v THE INDEPENDENT ADJUDICATOR [2011] EWHC 1108 (Admin) (3 May 2011): the failure by a fasting Muslim prisoner to supply an adequate urine sample for drug testing did not constitute ‘failing to obey a lawful order’ and his conviction was quashed because there was ‘no real doubt’ that the claimant’s fast was intimately linked to his religious belief: Article 9 ECHR (thought, conscience and religion) was engaged and the Adjudicator should have considered its applicability.
CATHOLIC CARE v CHARITY COMMISSION FOR ENGLAND AND WALES [2011] UKFTT B1 (GRC) (26 April 2011): in his judgment in the Chancery Division as to whether or not Catholic Care (which refused on doctrinal grounds to provide adoption services to same-sex couples) should be permitted by the Charity Commission to change its objects so as to bring its activities within the exemption for charities in Regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 Briggs J had formulated the following test for the Commission to consider in applying the Regulations: ‘whether the less favourable treatment contemplated by the proposed amendment to the Charity's objects clause would constitute a proportionate means of achieving a legitimate aim, so that the less favourable treatment would be justified for the purposes of Article 14 ECHR’: on a further appeal, however, the First-Tier Tribunal (Charity) concluded that it was not: Catholic Care had failed to meet the statutory test imposed by s 193 Equality Act 2010 and the proposed changes to its objects could not, therefore, be permitted – moreover, the Public Sector Equality duty imposed by s 149 (1) Equality Act 2010 to pay due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity ‘would be likely in due course to impact upon the willingness of local authorities to work with a charity which discriminated on grounds of sexual orientation in respect of adoption placements’ (para 62): see also CATHOLIC CARE (DIOCESE OF LEEDS) v CHARITY COMMISSION FOR ENGLAND AND WALES & ANOR [2010] EWHC 520 (Ch) (17 March 2010))
SHOLL v PCC OF ST MICHAEL & ALL ANGELS w ST JAMES, CROYDON & ANOR [2011] ET 2330072/2010 (30 March 2011): where an organist was engaged on a verbal contract (the draft written contract never having been agreed and signed), it was held at a preliminary hearing on his employment status that, on the balance of the facts, the claimant (who had no financial risk, was not required to provide equipment, materials or premises, enjoyed a package of rights to holiday pay, sick pay and notice and grievance provisions and had been described as “employed” by the second respondent) was “employed” for the purposes of s 230(1) Employment Rights Act 1996 and the matter should proceed to a full merits hearing.
MAISTRY v BRITISH BROADCASTING CORPORATION [2011] ET 1313142/2010 (29 March 2011): a belief that public service broadcasting had the higher purpose of promoting cultural interchange and social cohesion could constitute a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003:GRAINGER PLC v NICHOLSON [2010] IRLR 4 (qv) followed.
PRESBYTERIAN CHURCH IN IRELAND, RE TRUSTS [2011] NICh 4 (23 March 2011): where the Trustees of the Presbyterian Church in Ireland sought authority from the court to make an ex gratia contribution of up to £1 m from its unrestricted charitable funds towards the Government’s financial rescue package in respect of the failed Presbyterian Mutual Society (which was governed by the Industrial and Provident Societies Act (NI) 1969 and therefore not covered by Government financial guarantees extending to banks and similar institutions) that authority was granted, on the grounds that “there is a loss to the funds of the charity ie the Church by the disbursement of this money but that the disbursement will lead to very considerable benefit to a considerable number of members of the Church and thereby in both the reputational and in all likelihood financial sense to the Church itself” [per Deeny J at para 25].
KIRK SESSION OF SANDOWN FREE PRESBYTERIAN CHURCH, RE JUDICIAL REVIEW [2011] NIQB 26 (22 March 2011): an adjudication by the Council of the Advertising Standards Authority that some of the text in a full-page advertisement placed by the applicant in the Belfast News Letter headlined ‘The Word of God Against Sodomy’ was homophobic and a cause of serious offence, in breach of the British Code of Advertising, Sales Promotion and Direct Marketing, constituted a disproportionate interference with the applicant’s rights under Article 10 ECHR (expression): ‘[T]he biblical scripture which underpins those views no doubt causes offence, even serious offence, to those of a certain sexual orientation. Likewise, the practice of homosexuality may have a similar effect on those of a particular religious faith. But Art 10 protects expressive rights which offend, shock or disturb’. [per Treacy J at para 73].
MOORE v PRESIDENT OF THE METHODIST CONFERENCE [2010] UKEAT 0219 10 1503 (15 March 2011): where a Methodist minister brought proceedings for unfair dismissal and the lower Tribunal had held that it was bound by President of the Methodist Conference v Parfitt [1984] ICR 176 to find that she was not an employee, the EAT concluded that, in the light of Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73 the Tribunal had been wrong simply to follow Parfitt and that, on the facts, the claimant was employed under a contract of service: the ratio in Parfitt based on absence of intention to create legal relations was no longer good law because May LJ’s conclusion on the issue was based on what he saw as the peculiar position of a minister of religion and ‘… the spirit if not the letter of the reasoning in Percy means that such reasoning is illegitimate; and New Testament Church of God v Stewart [2007] EWCA Civ 1004 has since confirmed that a clergyman appointed to minister to a particular church or group of churches may be an employee’ [per Underhill P].
WHITE & ORS v WILLIAMS & ORS [2011] EWHC 494 (Ch) (10 March 2011): where a small Church had split into two opposing factions, the Trustees had a continuing duty to promote the worship and witness of all the congregations that had constituted the Church prior to the schism: in the instant case, the Trustees had administered the affairs of the Trust on the basis that their obligation was to one side only and not both – there had therefore been a breach of trust: see also WHITE & ORS v WILLIAMS & ORS [2010] EWHC 940 (Ch) (05 April 2010).
R (EUNICE JOHNS AND OWEN JOHNS) v DERBY CITY COUNCIL [2011] EWHC (Admin) 375 (28 February 2011): the deferring of a decision relating to whether the claimants could be foster carers did not constitute discrimination on the basis of religion or belief. The claimants believed that sexual relations other than those within marriage between one man and one woman are morally wrong and the Tribunal found that the attitudes of potential foster carers to sexuality are relevant when considering an application for approval.
THOMAS SANDERSON BLINDS LTD v ENGLISH [2011] UKEAT 0316 10 2102 (21 February 2011): in an appeal against an adverse decision of the EAT dated 20 February 2008, the Court of Appeal had held that Mr English, who had been tormented by 'homophobic banter' by his fellow workerss, had thereby been harassed within the meaning of Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003 even though (a) he was not gay, (b) he was not perceived or assumed to be gay, and (c) he accepted that his co-workers did not believe him to be gay: at a further hearing before a subsequent EAT, in a dispute about whether or not the original proceedings had been out of time, it was held that the issue had not been argued by Thomas Sanderson Blinds Ltd at the earlier EAT hearing and there was therefore no proper basis upon which the Tribunal could hold a review: for the earlier proceedings see also ENGLISH v THOMAS SANDERSON LTD [2008] EWCA Civ 1421 (19 December 2008)
HASHMAN v MILTON PARK (DORSET) LTD [2011] ET 3105555/2009 (31 January 2011): a belief that foxhunting is wrong constituted philosophical beliefs both within the ordinary meanings of such words and within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
SCOTT v SECRETARY OF STATE FOR WORK AND PENSIONS [2011] EWCA Civ 103 (21 January 2011): pursuant to Regulation 6(2)(b) and (3) of the State Pension Credit Regulations 2002, the claimant, a Benedictine nun, was not entitled to state pension credit because she was a member of a religious order and was fully maintained by it: however, if at some future date her Order was unable to continue fully to maintain her then the position might be different and (as counsel for the Secretary of State expressly accepted) a claim might be capable of being made: appeal dismissed. See also SECRETARY OF STATE FOR WORK AND PENSIONS v SISTER IS [2009] UKUT 200 (AAC) (8 October 2009).
RE ST ANDREW, ALWALTON [2011] 2010/48 Ely Cons Ct (21 January 2011): in refusing a widow’s petition to exhume her late husband’s cremated remains after a dispute over the churchyard regulations in relation to the plot in which they had been interred, Jones Dep Ch held, inter alia, that because her petition was not motivated by conscience or religious belief Article 9 (thought, conscience and religion) ECHR was not engaged (para 54): as to Article 8 (private and family life), in the circumstances of the case the presumption of the permanence of Christian burial was a justified and proportionate interference in the petitioner’s rights (para 56) and he felt that the operation of the faculty system was generally within the margin of appreciation that would be granted by the ECtHR (para 57).
HALL AND PREDDY v BULL AND BULL (2011) Bristol County Court Case No 9BC02095/6 (4th January 2011): two civil partners had suffered discrimination on grounds of sexual orientation when they were refused a double room by Christian hotel owners who only let out the room to mixed sex married couples.
Europe
ERÇEP v TURKEY 43965/04 [2011] ECtHR (22 November 2011) [French text only]: the refusal of Turkey to provide alternative civilian service for conscientious objectors to compulsory military service violated Article 9 ECHR (thought, conscience and religion), while the practice of trying conscientious objectors before courts composed exclusively of military officers gave rise to legitimate fears about their independence and impartiality, contrary to Article 6 § 1 (fair trial): see also BAYATYAN v ARMENIA 23459/03 [2011] ECtHR (GC) 1095 (7 July 2011).
SH & ORS v AUSTRIA 57813/00 [2011] ECtHR (GC) 1878 (3 November 2011): in the case of two infertile married couples who wished to have children by methods of in vitro fertilisation that were forbidden by the Act on Procreative Medicine 1992:275, though Article 8 (private and family life) applied. there was no uniform approach to medically-assisted procreation across the Council of Europe and there had therefore been no violation of Article 8: the present stage of development of the law did not decisively narrow the margin of appreciation and Austria had not exceeded that margin either in respect of the prohibition of ovum donation for the purposes of artificial procreation or in respect of the prohibition of sperm donation for in vitro fertilisation (para 115) (by 13 votes to 4: Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria JJ dissenting).
M AND C v ROMANIA 29032/04 [2011] ECtHR 1452 (27 September 2011): in divorce and custody proceedings before the Romanian courts there was no evidence that the case might have been decided differently had it not been for the fact that the applicant was a Jehovah’s Witness.
WILLI, ANNA & DAVID DOJAN & ORS v GERMANY 319/08 [2011] ECtHR 1420 (6 September 2011): the refusal to allow a group of Evangelical Baptists to remove their children from mandatory sex education classes and associated activities in a state primary school did not violate their rights under on Article 2 of Protocol No. 1 ECHR (education) and Articles 9 (thought, conscience and religion) and 8 (private and family life): the Convention did not guarantee the right not to be confronted with opinions that were opposed to one’s own and the German authorities had not exceeded their margin of appreciation under Article 2 of Protocol No. 1, with the result that the complaints were inadmissible.
OUARDIRI and LIGUE DES MUSULMANS DE SUISSE & ORS v SWITZERLAND 65840/09 & 66274/09 [2011] ECtHR (8 July 20110) [French text only]: the recent Swiss constitutional prohibition on the building of minarets was not incompatible with Article 9 (thought, conscience and religion) and Article 14 (discrimination) ECHR: in any case, for an application to be admissible it had to be lodged by someone who could legitimately claim to be the ‘victim’ of a violation of the Convention – and the applicants did not meet that test.
BAYATYAN v ARMENIA 23459/03 [2011] ECtHR (GC) 1095 (7 July 2011): the conviction and imprisonment of a Jehovah’s Witness for refusing compulsory military service violated his freedom to manifest his religion under Article 9 ECHR (thought, conscience and religion): while Article 9 did not explicitly refer to a right of conscientious objection, opposition to military service motivated by conscience or genuinely-held religious or other belief was of sufficient cogency, seriousness, cohesion and importance to attract its provisions.
ASSOCIATION LES TÉMOINS DE JÉHOVAH v FRANCE 916/05 916/05 [2011] ECtHR 079 (30 June 2011) [French text only]: a retrospective instruction to the Association requiring it to declare gifts received between 1993 and 1996 which resulted in an unpredictable €45 million tax assessment breached of Article 9 ECHR (thought, conscience and religion): the tax assessment had reduced the Association’s operating resources, with the result that it had no longer been able practically to guarantee its followers the free exercise of their religion and had not been ‘prescribed by law’ with a sufficient degree of clarity to make it foreseeable.
RR v POLAND 27617/04 [2011] ECtHR 828 (26 May 2011): inadequate access for a pregnant woman to the available diagnostic services, thereby depriving her of the ability to make an informed decision about termination in light of their results, violated her rights under Article 3 ECHR (inhuman and degrading treatment) and Article 8 (private and family life): women sought such tests for many reasons – not merely so that they could have abortions – and patients should have access to the services to which they were legally entitled.
CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v UNITED KINGDOM [2011] ECtHR (No. 7552/09) (12 April 2011): the House of Lords having rejected the applicant’s contention that “public religious worship” should be construed as “congregational worship”, having unanimously dismissed the further appeal of the Church against the decision of the local Valuation Officer that in order to attract total exemption from non-domestic rates a place of “public religious worship” had to be open to the general public and, by four votes to one, having concluded that there had been no interference with the applicant’s rights under Article 9 ECHR, in the interim proceedings at Strasbourg the Court has put the following questions to the parties: ‘Do the facts of the case fall within the scope of Article 9 of the Convention, was there an interference with the applicant’s rights under Article 9, if so, was the interference justified under paragraph 2 of Article 9 [and] has there been a violation of the applicant’s rights under Article 14 taken in conjunction with Article 9?’ [see also GALLAGHER (VO) v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS [2008] UKHL 56 (30 July 2008)].
NADIA EWEIDA AND SHIRLEY CHAPLIN v UNITED KINGDOM [2011] ECtHR (No. 48420/10 738) (12 April 2011): Ms Eweida having been refused leave to appeal to the Supreme Court and Ms Chaplin having been advised that, in light of the Court of Appeal’s judgment in Eweida, appealing her own case on points of law to the Employment Appeal Tribunal would have no prospect of success, both applicants have complained that the domestic law has failed adequately to protect their right to manifest their religion by wearing a cross or crucifix on a neck-chain when in uniform, contrary to Article 9 ECHR taken alone or in conjunction with Article 14: in the interim proceedings in the conjoined cases the Court has put the following questions to the parties: ‘In each case, did the restriction on visibly wearing a cross or crucifix at work amount to an interference with the applicant’s right to manifest her religion or belief.., in the event that there was such an interference (a) in the first applicant’s case was there a breach of the State’s positive obligation to protect the applicant’s rights under Article 9? (b) in the second applicant’s case was the interference “necessary in a democratic society”, and was there a breach of Article 14 taken together with Article 9 in either case?’. [see also EWEIDA v BRITISH AIRWAYS Plc [2010] EWCA Civ 80 (12 February 2010) and CHAPLIN v ROYAL DEVON & EXETER HOSPITAL NHS FOUNDATION TRUST [2010] ET 1702886/2009 (21 April 2010)].
LILLIAN LADELE AND GARY MCFARLANE v UNITED KINGDOM [2011] ECtHR (No. 51671/10) (12 April 2011): the applicants, having been refused leave for further appeals in the domestic courts, have complained that the law failed adequately to protect their right to manifest their religion, contrary to Article 9 ECHR taken alone and in conjunction with Article 14, while Ms Ladele has complained separately that the domestic law did not give her an effective remedy, contrary to Article 13, and Mr McFarlane that the domestic law failed adequately to protect his right to a fair trial, contrary to Article 6, and to respect for his private life, contrary to Article 8: in the interim proceedings in the conjoined cases the Court has put the following question to the parties: ‘In respect of either applicant, has there been a breach of Article 9, taken alone or in conjunction with Article 14?’. [see also LONDON BOROUGH OF ISLINGTON v LADELE [2009] EWCA Civ 1357 (15 December 2009) and MCFARLANE v RELATE AVON LTD [2010] EWCA Civ B1 (29 April 2010)].
LAUTSI & ORS v ITALY [2011] ECtHR (GC) (No. 30814/06) (18 March 2011): reversing the decision of the Second Section, the Grand Chamber held by fifteen votes to two (Malinverni and Kalaydjieva JJ dissenting) that the display of crucifixes in the classrooms of Italian state schools was within the margin of appreciation accorded to member states of the Council of Europe and did not, therefore, violate Article 2 of Protocol No. 1 ECHR (education): it was not necessary separately to examine the complaints under Articles 9 (thought, conscience and religion) and 14 (discrimination).
WASMUTH v GERMANY [2011] ECtHR (No. 12884/03) (17 Feb 2011) [French text only]: though the obligation to inform the tax authorities of his non-affiliation to any church authorised to levy the church tax interfered with the applicant’s right not to disclose his religious convictions, the reference on his tax card carried only limited information about his religious or philosophical convictions since it simply indicated that he did not belong to one of the six churches authorised to levy the tax in Bavaria and served to protect him from any unauthorised deduction of the tax: there had therefore been no violation of Article 9 ECHR (thought, conscience and religion).
SIEBENHAAR v GERMANY [2011] ECtHR (No. 18136/02) (3 Feb 2011) [French text only]: though the applicant, a Roman Catholic childcare assistant in a day-nursery run by a Protestant parish in Pforzheim, had been dismissed without notice by the Baden Protestant Church on the grounds of her involvement in a religious community, the ‘Church Universal / Brotherhood of Mankind’, whose teachings were deemed to be incompatible with those of the Protestant Church, the Fifth Section concluded that there had been no breach of Article 9 (thought, conscience and religion) read in light of Article 11 (assembly and association): by putting in place a system of labour courts whose decisions were reviewable by a constitutional court Germany had complied with its positive obligations under the ECHR: moreover, ‘the complainant was or should have been aware, when signing her employment contract … that her membership in the Universal Church and her activities in support of it were inconsistent with her commitment to the Protestant Church’. [para 46].
BOYCHEV & ORS v BULGARIA [2011] ECtHR (No. 77185/01) (27 Jan 2011) [French text only]: the interruption a meeting of the Unification Church, an unregistered religious group, in a private house for an identity check and a search by the police had violated Article 9 ECHR (thought, conscience and religion): however, though reiterating that refusal by domestic authorities to grant the status of a legal entity to a religious community was capable of constituting an interference with rights to freedom of association and religion, in view of the fact that the applicants had ultimately applied for and obtained, unconditionally, the registration of their new association the Court found inadmissible further complaints under Articles 9, 11 (assembly), and 13 (effective remedy).
CHRYSOSTOMOS v TURKEY [2011] ECtHR (No. 66611/09) (4 Jan 2011): an application by Chrysostomos II, Archbishop of the Greek Orthodox Autocephalous Church of Cyprus, complaining of violations of Article 1 of Protocol No. 1 ECHR (property) in relation to property and places of worship that the Church had been forced to abandon during the events in northern Cyprus in 1974 and of Articles 9 (thought, conscience and religion) and 11(assembly) as a result of being prevented from holding religious services at sites belonging to the Church in northern Cyprus was rejected because available domestic remedies had not been exhausted: neither the applicant nor any other duly authorised representative of the Church nor individual churches or bodies for which title deeds have been provided had made use of the available mechanisms of the respondent State: the Immovable Property Commission and the possibility of further appeal to the High Administrative Court provided for in Law 67/2005, which were to be regarded as ‘domestic remedies’.
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