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Case Database 2012
This list includes judgments delivered in 2012.
United Kingdom
MBA v LONDON BOROUGH OF MERTON (Religion or Belief Discrimination) [2012] UKEAT 0332 12 1312: the claimant, a care worker, had not been discriminated against on grounds of religion or belief by being obliged by her employers to work on Sundays: however, that conclusion was not in any way intended as a general ruling about whether or not observant Christians were obliged to work on Sundays: “anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other … will … be disappointed. No such broad general issue arises. The questions raised must be determined in the specific circumstances of this particular case alone” [per Langstaff J at para 3].
R (HODKIN) & ANOR v REGISTRAR GENERAL OF BIRTHS, DEATHS AND MARRIAGES [2012] EWHC 3635 (Admin) (19 December 2012): the refusal of the Registrar General to register a chapel of the Church of Scientology as a “place of worship” under s 2 of the Places of Worship Registration Act 1855 and, consequently, to permit the solemnisation of marriages under s 26(1)(a) of the Marriage Act 1949 was justified: both the Registrar General and the Court were bound by the decision of the Court of Appeal in R v Registrar General ex parte Segerdal [1970] 2 QB 697 which had upheld a previous Registrar General’s refusal to register another Scientologist chapel as a “place of meeting for religious worship”: however, Ouseley J suggested (at para 102) that his decision might be properly appealed: “Forty years on from Segerdal, the Court of Appeal may find the route at least to reconsider its decision in Segerdal with the fuller material now available”.
BRITISH HUMANIST ASSOCIATION & ANOR v LONDON BOROUGH OF RICHMOND UPON THAMES & ORS [2012] EWHC 3622 (Admin) (14 December 2012): when it accepted proposals made under section 11(1A) of the Education Act 2006 for two new Roman Catholic voluntary-aided schools in Twickenham the Council had not breached its statutory obligation under section 6A – the so-called “academy presumption” – to seek proposals to set up an academy school: Parliament had not intended section 6A to operate so as to disapply the obligation of a local authority to consider on their merits proposals “put forward by persons by virtue of rights set out in or arising under the Act” and the “academy presumption” did not overwrite the possibility of establishing other schools that would not be academies.
X v MID SUSSEX CITIZENS ADVICE BUREAU & ANOR [2012] UKSC 59 (12 December 2012): Mrs X, a volunteer adviser with Mid Sussex CAB, had not been discriminated against on grounds of disability when the CAB dispensed with her services and was not protected by the Disability Discrimination Act 1995 and to the Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation: in a judgment that was of enormous interest to all voluntary bodies – Churches included – Lord Mance held that Directive 2000/78/EC ”does not cover voluntary activity” and was not prepared to refer the matter to the Court of Justice of the EU for an Opinion.
CATHOLIC CHILD WELFARE SOCIETY & ORS v VARIOUS CLAIMANTS AND THE INSTITUTE OF THE BROTHERS OF THE CHRISTIAN SCHOOLS [2012] UKSC 56 (21 November 2012): in considering the issue as whether or not the Institute was vicariously liable for alleged acts of sexual and physical abuse of children by its members between 1952 and 1992 at St William’s School, Market Weighton (for which it provided the teachers but did not own or manage) the Court held that that the necessary relationship between the brothers and the Institute and the close connection between that relationship and the abuse committed at the school had been made out: the relationship between the brothers and the Institute was close to that of employment, there was a very close connection between the relationship of the brothers to the Institute and their employment as teachers in the school and there was a very close connection between the brother-teachers’ employment and the sexual abuse that they must be assumed to have committed.
SMITH v TRAFFORD HOUSING TRUST [2012] EWHC 3221 (Ch) (16 November 2012): the demotion of the claimant, a housing manager employed by Stafford Housing Trust for posting comments on his personal Facebook page that were critical of the prospect that same-sex marriages might be conducted in church ad amounted to wrongfully dismissed from his original role because no reasonable reader have concluded that his posts were made on the Trust’s behalf, he had a right to promote his religious views in his own time and a code of conduct could not be interpreted to extend so far into an employee’s private life as to fetter his religious expression outside of work: however, because the claimant had accepted a new, lesser role under a new contract of employment the Court was severely constrained in the damages that it could award.
CATHOLIC CARE (DIOCESE OF LEEDS) v CHARITY COMMISSION FOR ENGLAND AND WALES [2012] CA/2010/0007 UKUT (Tax & Chancery) (2 November 2012): in the latest appeal in Catholic Care’s campaign for the Charity Commission’s consent to amend the objects clause in its Memorandum of Association so as to bring it within the exemption regime provided for charities under Regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 so as to allow it to continue to exclude same-sex couples from consideration as adoptive parents, Sales J concluded that the First-Tier Tribunal had been right to conclude that Catholic Care had failed to demonstrate sufficiently weighty reasons to justify the discrimination it proposed: appeal dismissed.
KS v TS [2012] ScotSC 100 (1 November 2012): in a dispute over their children’s religious upbringing after the divorce of a non-practising woman from a Brethren family and an Egyptian Muslim man, the sheriff concluded that a specific issue order that the children should be brought up as Muslims would not be in their best interests; but he did accept their mother’s undertakings that she was content that their father should teach them about Islam, pray with them and take them to the mosque when they were staying with him.
BLACK & MORGAN v WILKINSON [2012] EW (Misc) CC (18 October): the defendant’s refusal on grounds of her religious beliefs to let the claimants – a couple but not civil partners – stay in a room at bed and breakfast establishment with a double bed had discriminated against them, contrary to Regulation 20 of the Equality Act (Sexual Orientation) Regulations 2007: Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 followed.
NORTHERN IRELAND HUMAN RIGHTS COMMISSION, RE JUDICIAL REVIEW [2012] NIQB 77 (18 October 2012): the Court allowed the NIHRC’s application to challenge the Northern Ireland Executive’s failure to comply with the judgment of the House of Lords in P & Ors, Re (Northern Ireland) [2008] UKHL 38 (18 June 2008) that it was unlawful for the Family Division of the High Court to reject prospective adoptive parents (whether same-sex, opposite sex or in a civil partnership) on the ground only that they were not married and that Articles 14 and 15 of the Adoption (Northern Ireland) Order 1987 were in breach of Articles 8 (private and family life) and 14 ECHR (discrimination) – Treacy J concluding that “Issues relating to the sexual orientation, lifestyle, race, religion or other characteristics of the parties involved must of course be taken into account as part of the circumstances. But they cannot be allowed to prevail over what is in the best interests of the child” (at para 82).
G (CHILDREN), RE [2012] EWCA Civ 1233 (4 October 2012): in a case concerning the educational future of the children of divorced parents Orthodox Jews the Court dismissed the father’s appeal against the order of HHJ Copley that, with effect from September 2012, the children should attend the schools proposed by the mother rather than the schools proposed by the father: the principal interest of the judgment of the Court is that at paras 35 to 38 Munby LJ was at great pains to stress that there were places where judges simply will not go: “Religion … is not the business of government or of the secular courts, though the courts will … pay every respect to the individual's or family's religious principles. Article 9 [ECHR] … demands no less. The starting point of the common law is thus respect for an individual's religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society”.
SHERGILL v KHAIRA & ORS [2012] EWCA Civ 1582 (2 October 2012): in the long-running dispute about the trusteeship and governance of two Sikh gurdwaras, the Court of Appeal had stayed the action on the grounds that the issues pleaded were not justiciable – see KHAIRA & ORS v SHERGILL & ORS [2012] EWCA Civ 983 (17 July 2012) – and at the subsequent hearing on 2 October refused leave to appeal, Mummery LJ reiterating the that issues were not justiciable and that it was therefore for the Supreme Court itself to decide whether or not to take an appeal.
R (NICKLINSON) v MINISTRY OF JUSTICE & ORS: R (AM) v DPP & ORS [2012] EWHC 2381 (Admin): the court reject applications by two claimants with “locked-in syndrome” for orders, inter alia, that the DPP should clarify his published policy on assisting suicide, that in the claimants’ circumstances it would not be unlawful, on grounds of necessity, for a doctor to terminate or to assist the termination of their life and, further or alternatively, that the current law of murder and/or of assisted suicide violated Article 8 ECHR (private and family life) and was contrary to ss 1 and 6 Human Rights Act 1998 insofar as it criminalised voluntary active euthanasia and/or assisted suicide: though the situation of the claimants was extremely distressing, to accede to their requests would mean changing the law – and that was a matter for Parliament, not for the courts (per Toulson LJ at para 150).
NHS TRUST v BABY X & ORS [2012] EWHC 2188 (Fam) (30 July 2012): though the court accepted that the religious and other objections of the parents to removing their severely brain-damaged baby son, X, from life-support were genuinely-held, for reasons which he set out in detail (para 28) Hedley J concluded (para 29) that baby X should in future be treated on the basis of palliative care only, while stressing that that was not an order of the court but a declaration that so to treat X would be lawful as being in his best interests: WYATT v PORTSMOUTH NHS TRUST [2006] 1FLR 554: [2005] EWCA Civ 1181 (12 October 2005) followed.
XCC v AA & ANOR [2012] EWHC 2183 (COP) (26 July 2012): DD (who lacked capacity to a very significant degree) was married in Bangladesh to AA, who finally obtained a spousal visa and entered the UK in 2009: Parker J was satisfied that she had power to make a non-recognition declaration under the inherent jurisdiction of the High Court and therefore declared that the marriage of DD and AA, though valid according to Bangladeshi law, was not recognised as a valid marriage in England and Wales and that it would be in DD's best interests for a nullity application to be issued: KC & Anor v City of Westminster Social & Community Services Department & Anor [2008] EWCA Civ 198 followed.
RT (ZIMBABWE) & ORS v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2012] UKSC 38 (25 July 2012): an asylum claim could not be rejected on the grounds that the claimants (who did not support ZANU-PF) could have avoided persecution by lying and feigning loyalty to the regime: “[U]nder both international and European human rights law, the right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to express opinions” (per Dyson JSC at para 39): moreover, “[T]he right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law … There is nothing marginal about it” (at para 42): HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 followed.
MA v JA and the ATTORNEY GENERAL [2012] EWHC 2219 (Fam) (27 July 2012): where a couple, married in a sharia ceremony that – unknown to them – had not complied with the requirements of the Marriage Act 1949, had subsequently assumed that their marriage was valid in English law and sought a declaration to that effect, the court concluded that the ceremony had been within the scope of the 1949 Act and had created a potentially valid marriage: because the parties had not knowingly and wilfully married in breach of the notice and certification requirements of s 49 of the Act their marriage was not void and was entitled to be recognised as valid under English law: declaration granted.
AL-SAFFAR v AL-SAFFAR [2012] EWCA Civ (25 July 2012: unreported): where a couple had married in accordance with sharia as well as under civil law and concluded a prenuptial agreement in accordance with Islamic custom under which the wife gave up her rights to a share of the marital home in return for her husband paying her a lump-sum on marriage, she was nevertheless entitled to compensation when they divorced: the husband’s belief that maintenance payments were illegitimate or illegal under sharia did not relieve him of the obligation to comply with the order of the secular court.
KHAIRA v SHERGILL [2012] EWCA Civ 983 (17 July 2012): the case centred upon whether the ninth claimant was entitled to exercise a power to remove and appoint trustees as the ‘successor’ of the First Holy Saint. The Court of Appeal granted the defendants appeal to grant a permanent stay because the contested claim to be the successor turned on matters of religious faith, doctrine and practice. The particular core issue was not properly justiciable by the English courts.
JGE v PORTSMOUTH ROMAN CATHOLIC DIOCESAN TRUST [2012] EWCA Civ 938 (12 July 2012): though it was common ground that a priest was not an employee, an examination of the recent cases on clergy employment indicated that whether or not there was a contract of service between a minister of religion and his Church depended on the facts of the case, that there was no general presumption of a lack of intent to create legal relations between a cleric and the Church and that it did not follow that an ecclesiastical office-holder could not be employed under a contract of service: Viasystems (Tyneside) v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, [2006] QB 510 had established that for the purposes of vicarious liability the tortfeasor did not have to be an “old-fashioned employee” and “… the time has come emphatically to announce that the law of vicarious liability has moved beyond the confines of a contract of service” (per Davis LJ at 73): appeal dismissed (Ward and Davis LJJ: Tomlinson LJ dissenting), leave to appeal refused.
SG (CHILD OF POLYGAMOUS MARRIAGE) NEPAL [2012] UKUT 265 (IAC) (9 July 2012): the claimant, SG, had been born in Nepal in 2003 as the child of a polygamous marriage – which, though illegal in Nepal is nevertheless quite widespread – but in 2010 was refused entry clearance to join her father in the UK: she was not joining both parents and “… to the extent that the exclusion of the child is the indirect consequence of denying admission to the mother as a party to an actually polygamous marriage, the modest contribution to the discouragement of such marriages in Nepal or elsewhere is a legitimate aim in pursuit of morals and the rights of others particularly the pursuit of gender equality” (per Blake P at para 47).
LENNON v DEPARTMENT FOR REGIONAL DEVELOPMENT [2012] NIFET 00075 11FET (19 June 2012): the Fair Employment Tribunal upheld the claimant’s allegation of unlawful discrimination on ground of religious belief in relation to his unsuccessful application for the Chair of Northern Ireland Water but dismissed his further complaint of unlawful discrimination on ground of political opinion: under Regulation 24 of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 (which inserted a new section 38A into the 1998 Order) the burden of proof of non-discrimination rests on the respondent – and the Tribunal found that the Minister’s evidence that he had appointed the successful candidate on merit and had not known whether the five recommended candidates were Protestant or Catholic “… implausible and lacks credibility” (para xxvi).
FARRAH v THE GLOBAL LUGGAGE CO LTD [2012] ET 2200147/2012 (1 June 2012) (Unreported): the claimant wore a headscarf to work and was subsequently moved to another store. After taking an unauthorised extended lunch break, she was told she could resign and be paid wages for a month or be dismissed in a month’s time. She resigned but subsequently contended that she had suffered direct discrimination on grounds of religion and unfair dismissal. The Employment Tribunal held that there was no direct discrimination because although ‘the Respondents did not like the headscarf’, ‘there was no evidence to suggest that they did not like the Claimant’s religious faith as a Muslim woman’ (para 45). The Tribunal noted that they would in all likelihood have found for the claimant if she had brought a claim of indirect discrimination.
STREATFIELD v LONDON PHILHARMONIC ORCHESTRA LTD [2012] 2390772/2011(22 May 2012) (Unreported): confirms that Humanism is protected as a ‘philosophical belief’ under the Equality Act 2010 and that ‘any lack of consistency is not fatal to a determination that those beliefs were genuinely held’ (para 41). However, a claim for direct discrimination on grounds of belief failed because the claimant did not expressly raise the issue of her Humanist beliefs until she brought her claim to the Employment Tribunal. As a result, the Claimant would have considerable difficulty with proving that she had suffered less favourable treatment because of her philosophical belief.
C (A CHILD), RE [2012] EW Misc 15 (CC) (11 May 2012): where the divorced Jewish parents (of which the male partner had become a Christian) disagreed about whether or not their ten-year-old daughter should be allowed to be baptised, the circuit judge decided that it was in the girl’s best interests to be enrolled in a baptism class and to be baptised as soon as she was ready: however, because he regarded confirmation “as being … of much greater significance to C”, he ordered that she should not be confirmed before her sixteenth birthday without her mother’s consent (paras 64–66).
RAI & ORS v CHARITY COMMISSION FOR ENGLAND AND WALES [2012] EWHC 1111 (Ch) (1 May 2012): refusal by the Charity Commission to authorise charity proceedings under s 33(2) Charities Act 1993 in relation to a doctrinal dispute between the executive and trustees of a Sikh gurdwara and a group that disagreed with their adherence to the specific teachings of a particular Guru was upheld and the injunction proceedings stayed, in the hope that the parties might be able to resolve the matter by agreement.
LONDON CHRISTIAN RADIO & ANOR, R (on the application of) v RADIO ADVERTISING CLEARANCE CENTRE & ANOR [2012] EWHC 1043 (Admin) (20 April 2012): the refusal of clearance to broadcast a radio advertisement alleging marginalisation of Christians in the workplace and informing listeners that the applicants were ‘seeking the most accurate data to inform the public debate … [and] … help make it a fairer society’ was upheld on the grounds that such an advertisement was forbidden by the ban on political advertising in ss 319 and 321 Communications Act 2003: the statutory ban did not breach Article 10 ECHR (freedom of expression) because it was ‘necessary in a democratic society’ and within the margin of appreciation afforded to states parties (per Silber J paras 49–50).
RUDEWICZ, R (ON THE APPLICATION OF) v SECRETARY OF STATE FOR JUSTICE & ORS [2012] EWCA Civ 499 (24 April 2012): the refusal of the Divisional Court to review the decision of the Secretary of State for Justice to permit the exhumation and re-interment of the remains of Fr Jarzebowski, a Polish Marian Father, had been neither irrational nor disproportionate: the ‘general presumption of permanence’ of interment enunciated by the Court of Arches in Re Blagdon Cemetery [2002] Fam 299, based as it was on the ‘theology of burial’, was not relevant to secular applications for licences under section 25(ii) Burial Act 1857; moreover, Ms Rudewicz’s rights under Article 8 (family life) and Article 9 ECHR (thought, conscience and religion), as his first cousin once removed, had not been violated: appeal dismissed.
NICKLINSON v MINISTRY OF JUSTICE & ORS [2012] EWHC 304 (QB) (12 March 2012): the claimant, who is paralysed below the neck, unable to speak and able to communicate only by blinking or limited head movement, sought declarations that on grounds of necessity it would not be unlawful for his GP or another doctor to terminate or assist the termination of his life, that the current law of murder and/or assisted suicide was incompatible with Article 8 ECHR (private and family life) and that existing domestic law and practice failed adequately to regulate voluntary and involuntary euthanasia contrary to Article 2 (right to life): Charles J held that there was a tenable argument for the first two declarations sought and gave permission for the claimant to seek judicial review on those issues but struck out the third part of the claim.
DOOGAN & ANOR, RE JUDICIAL REVIEW [2012] ScotCS CSOH 32 (29 February 2012): the content of the supervisory roles of two midwifery sisters in a labour ward where abortions were carried out did not necessarily mean that their right of conscientious objection under s 4(1) Abortion Act 1967 had been violated: the key words in that subsection were ‘participate’ and ‘treatment’ and the petitioners had no direct involvement in terminating pregnancies: moreover, their rights under Article 9 ECHR were not being interfered with because the right of conscientious objection was not unqualified: they had in fact agreed to become Labour Ward Co-ordinators even though they now objected to content of their posts and, in any event, the nature of their duties did not in fact require them to provide any treatment to terminate a pregnancy directly.
SHARPE v WORCESTER DIOCESAN BOARD OF FINANCE & ANOR [2012] ET 1302291/2008 & 1316848/2009 (15 February 2012): a Church of England incumbent with freehold did not have a contractual relationship with the Diocesan Board of Finance or the Bishop and could not, therefore, successfully pursue a claim for constructive and unfair dismissal: because issues such as hours of work and holidays were left – non-contractually – to his discretion, subject only to guidelines as to how he exercised that discretion and because there was no supervision and control by the respondents or any element of personal service to them, there was neither a contract of employment nor a contract of service between them: a general duty to obey the law of the Church was not the same as entering into a contract of service.
SINGH v MANAGEMENT COMMITTEE OF THE BRISTOL SIKH TEMPLE & ORS [2012] UKEAT 0429 11 1402 (14 February 2012): the Employment Tribunal had erred in holding that a Sikh temple priest (granthi) could not be a ‘worker’ in terms of s 54(3)(b) National Minimum Wage Act 1998: though the Employment Tribunal had considered evidence that the relationship between the granthi and the Gurdwara was based on ‘voluntarism and a traditional interpretation and application of the Sikh scriptures’ there was no finding that a contractual relationship would be inconsistent with those scriptures or with the practice and beliefs of the Bristol Gurdwara and it was possible that the true effect of Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28 [qv] had not been fully taken into account: appeal allowed and case remitted to the original Tribunal for reconsideration.
BULL & BULL v HALL & PREDDY [2012] EWCA Civ 83 (10 February 2012): the refusal to honour a booking by a same-sex couple for a double-bedded hotel room constituted direct discrimination contrary to Regulations 3(1) and 394) of the Equality Act (Sexual Orientation) Regulations 2007: such a reading of the Regulations was not inconsistent with Articles 8 (private and family life), 9 (thought, conscience and religion), 14 (discrimination) and 17 (abuse of rights) in relation to the appellants’ religious beliefs that monogamous heterosexual marriage was the form of partnership uniquely intended for full sexual relations and that both same-sex and opposite-sex sexual relations outside marriage were sinful: see also HALL & PREDDY v BULL & BULL (2011) Bristol County Court Case No 9BC02095/6 (4th January 2011).
NATIONAL SECULAR SOCIETY & ANOR, R (ON THE APPLICATION OF) v BIDEFORD TOWN COUNCIL [2012] EWHC 175 (Admin) (10 February 2012): saying prayers as an integral part of the formal meetings of a town council was ultra vires s 111 Local Government Act 1972 and there was no statutory authority for continuing the practice: however, the manner in which the practice had been carried out in the circumstances of Bideford Town Council had not infringed the rights of the second applicant, Mr Bone – a former town councillor – under Article 9 ECHR, nor had it discriminated indirectly against him, contrary to Equality Acts 2006 and 2010, on grounds of his lack of religious belief.
Europe
H v FINLAND 37359/09 HEJUD [2012] ECHR 1916 (13 November 2012): the applicant and her spouse were lawfully married under domestic law and wished to remain so, but because domestic law did not permit same-sex marriages the applicant could obtain a new ID and passport as a woman only if her spouse consented to their marriage being turned into a civil partnership – which she did not: that did not, however, violates Article 8(private and family life) , 12 (marriage) and 14 (discrimination) ECHR because neither Article 8, Article 12 nor the jurisprudence of the Court imposed any obligation on states parties to grant same-sex couples access to marriage.
P AND S v POLAND 57375/08 HEJUD [2012] ECHR 1853 (30 October 2012): in the case of a fourteen-year-old who had become pregnant as a result of rape, her subsequent treatment and the uncertainty that she faced despite the fact that she had a right to lawful abortion under the Family Planning Act 1993 had amounted to a violation of Article 8 (private and family life): in addition, there had been unlawful disclosure of her personal data contrary to Article 8, she had been improperly detained in violation of Article 5§1 (liberty and security) and her treatment overall had violated Article 3 (inhuman or degrading treatment).
JEHOVAS ZEUGEN IN ŐSTERREICH v AUSTRIA 27540/05 HEJUD [2012] ECHR 1752 (25 September 2012): the refusal to allow the applicants to employ a couple from the Philippines as ministers on the grounds that the Jehovah’s Witnesses were not a “recognised religious society” under domestic law violated the denomination’s rights under Article 14 ECHR (discrimination) read in conjunction with Article 9 and the imposition of inheritance and gift tax (from which religious communities recognised as religious societies were exempt) contravened Article 14 taken together with Article 1 of Protocol No. 1 (peaceful enjoyment): the circumstances of the case were similar to those in Religionsgemeinschaft der Zeugen Jehovas & Ors v Austria 40825/98 [2008] ECHR 762 (31 July 2008).
CATHOLIC ARCHDIOCESE OF ALBA IULIA v ROMANIA [2012] ECHR 33003/03 (25 September 2012) [French text only]: the failure of the Romanian Government to return to the claimant property – an Astronomical Observatory and the Batthyaneum Library – confiscated by the Communist regime in 1947 was without legitimate justification and violated the claimant’s rights under Article 1 of Protocol No. 1 ECHR (peaceful enjoyment).
IORGOIU v ROMANIA 1831/02 [2012] ECHR (17 July 2012) [French text only]: though the prison conditions in which the applicant were held violated Article 3 ECHR (inhuman or degrading treatment), his further complaint that it was impossible for him to practise his Orthodox faith in prison, contrary to Article 9, was dismissed as manifestly ill-founded because the applicant had submitted no evidence of interference by the authorities in the practice of his religion.
FUSU ARCADIE & ORS v MOLDOVA 22218/06 [2012] ECHR 1605 (17 July 2012): the refusal – by inaction – of the Floreşti Regional Council to issue the Christian Orthodox Church, subordinate to the Metropolitan Church of Bessarabia, with confirmation of its legal existence in order that it could be legally registered had prevented the applicants from carrying out a number of essential functions and constituted a violation of Article 9 ECHR.
MOUVEMENT RAËLIEN SUISSE v SWITZERLAND 16354/06 [2012] ECHR 1598 (GC) (13 July 2012): the Grand Chamber upheld the earlier judgment of the First Section upholding the refusal by the domestic authorities to allow the Raëliens to display posters including their Internet address and telephone number because they had engaged in activities that were immoral and contrary to public order and promoted human cloning (which is prohibited under Article 119§2(a) of the Swiss Constitution): the national authorities had not exceed the broad margin of appreciation afforded them and their reasons in justification were “relevant and sufficient” and met a “pressing social need” and did not, therefore, violated the Raëliens’ rights under Article 10 ECHR (freedom of expression) – but the Grand Chamber so decided by the narrowest of margins: nine votes to eight.
STAATKUNDIG GEREFORMEERDE PARTIJ v NETHERLANDS 58369/10 [2012] ECHR (12 July 2012): the applicant political party (“SGP”: the Political Reformed Party) understands the New Testament to teach that women should not be eligible for public office: the decision of the Netherlands Supreme Court in April 2010 that the state was obliged to take effective measures to end the SGP’s refusal to grant women passive suffrage on biblical grounds had not violated the SGP’s rights under Articles 9, 10 (expression) and 11 (association) ECHR: the application was manifestly ill-founded and therefore inadmissible.
ASSOCIATION LES TÉMOINS DE JÉHOVAH v FRANCE 8916/05 [2012] ECHR (just satisfaction) (5 July 2012) [French text only]: in conclusion to the litigation between the Jehovah’s Witnesses and the French Government in which it had been held the Association’s Article 9 rights had been violated by a 1995 French parliamentary report classifying it as a sect and by a supplementary tax assessment that had reduced its resources to a level at which it was no longer ‘… able to guarantee to its followers the free exercise of their religion in practical terms’, the Court held that France was to reimburse the Association €4,590,295 (£3,600,000) for the taxes improperly levied and pay €55,000 (£43,000) for costs and expenses.
HIZB UT-TAHRIR & ORS v GERMANY 27306/07 [2012] ECHR 1045 (12 June 2012): the refusal by the Ministry of the Interior to register an Islamic group, Hizb Ut-Tahrir, a “global Islamic political party and/or religious society” which advocated the overthrow of governments throughout the Muslim world and their replacement by a recreated Caliphate and the destruction of the State of Israel, had not violated its rights under the ECHR: Article 17 prohibited the abuse of the rights and freedoms in the Convention and Hizb Ut-Tahrir had attempted to deflect its rights under Article 11 from their real purpose towards ends that conflicted with the Convention, notably the peaceful settlement of international conflicts and the sanctity of human life.
SAVDA v TURKEY [2012] ECHR 42730/05 (12 June 2012): TARHAN v TURKEY 9078/06 (17 July 2012) [French text only]: the system of compulsory military service in Turkey without exception on grounds of conscience failed to strike a proper balance between the general interest of society and that of conscientious objectors, nor were the penalties imposed on them necessary in a democratic society, contrary to Article 9 ECHR: moreover, though Turkish criminal law regarded an individual as a serviceman from the moment of incorporation into his regiment, a conscientious objector was not in the same situation as a regular solder who had willingly submitted to military discipline and the apprehensions of someone in that situation about the impartiality of a court which included a regular army officer were objectively justified, in violation of Article 6: BAYATYAN v ARMENIA 23459/03 [2011] ECtHR (GC) 1095 (7 July 2011) followed.
GENDERDOC-M v MOLDOVA 9106/06 [2012] ECHR 1000 (12 June 2012): the ECtHR rejected the argument of the respondent Government that refusing to allow the applicant NGO, whose object was to support the LGBT community, to hold a demonstration outside Parliament in May 2005 to encourage the adoption of laws to protect sexual minorities from discrimination was justified as having the legitimate aim of protecting the sensibilities of the Moldovan Orthodox Christian population (who would not tolerate same-sex relationships) even though it violated Article 11 ECHR (assembly): there had also been a violation of Article 14 (discrimination) taken in conjunction with Article 11: see also ALEKSEYEV v RUSSIA 4916/07 [2010] ECHR 1562 (21 October 2010).
FERNÁNDEZ MARTÍNEZ v SPAIN [2012] ECHR 6030/07 (15 May 2012) [French text only]: the decision not to renew the contract of a laicised and married Roman Catholic priest as a teacher of religion in a state school did not violate his rights under Article 8 ECHR (private and family life): Spanish law provided both for the autonomy of religious communities and for state religious neutrality and the religious or moral criteria under which to renew (or not to renew) such a contract were the exclusive prerogative of the Church authorities.
MANZANAS MARTÍN v SPAIN 17966/10 [2012] ECtHR (3 April 2012) [French text only]: the fact that ministers of the Evangelical Church, whose Church had not made social security contributions on their behalf, were treated differently from Roman Catholic clergy in terms of reckonable service for a state retirement pension was discriminatory, contrary to Article 14 (discrimination) ECHR taken in conjunction with Article 1 of Protocol No. 1 (property) and Article 9 (thought, conscience and religion).
FRANCESCO SESSA v ITALY 28790/08 [2012] ECtHR (3 April 2012) [French text only]: though the applicant, a Jewish lawyer, had been unable to represent his client at an adjourned hearing because the two dates offered by the court had both clashed with major Jewish religious festivals, his right freely to manifest his religion under Article 9 ECHR had not been infringed: even if there had been such an interference it would have been “… justified on grounds of the protection of the rights and freedoms of others – and in particular the public’s right to the proper administration of justice and the principle that cases be heard within a reasonable time” (para 38).
GAS AND DUBOIS v FRANCE 108 ECtHR [2012] (25951/07) [French text only]: refusal to grant a simple adoption order to Ms Gas in respect of the child of her civil partner, Ms Dubois, on the grounds that its effect would be to transfer parental responsibility from Ms Dubois to Ms Gas (something which was neither in the best interests of the child nor the intention of the parties) did not contravene Article 14 ECHR (discrimination) in conjunction with Article 8 (private and family life): although only married couples could apply for simple adoption orders and opposite-sex civil partners could circumvent the prohibition on simple adoption by marrying, that was not of itself discriminatory, since states that gave same-sex couples an alternative means of legal recognition enjoyed a certain margin of appreciation regarding the exact status that such recognition conferred: SCHALK AND KOPF v AUSTRIA [2010] ECtHR (Application No. 30141/04) (24 June 2010) followed.
GATIS KOVAĻKOVS v LATVIA 35021/05 [2012] ECHR 280 (31 January 2012): a member of the Hare Krishna movement who complained, inter alia, of ridicule while in prison because of his religious beliefs and that his cellmates’ conduct prevented him from adequately performing the fundamental religious rituals of his religion had not been discriminated against on religious grounds, contrary to Articles 9 (thought, conscience and religion) and 14 (discrimination) ECHR: his wish for isolation for reading, meditation and prayer had to be balanced against the degree of interference with the rights of other prisoners; and having to pray, read and meditate in the presence of others was an inconvenience almost inescapable in prison and did not go against the freedom to manifest.
SINDICATUL PĂSTORUL CEL BUN v ROMANIA 2330/09 [2012] ECtHR (31 January 2012) [French text only]: the refusal to register the Sindicatul Păstorul cel Bun (the Union of the Good Shepherd), a trades union established by Orthodox parish clergy and laity employed by the Church in order to defend their professional, economic, social and cultural interests in their dealings with the hierarchy and the Ministry of Cultural and Religious Affairs, violated its members’ rights under Article 11 ECHR (assembly and association): the Union’s claim related exclusively to the economic, social and cultural rights of salaried employees of the Church and recognition would not, therefore, have traversed the rights of the Church itself under Article 9 (thought, conscience and religion); moreover, because two such unions had already been recognised it had not been established either that the applicant Union’s program was incompatible with a ‘democratic society’ or that there was any ‘pressing social need’ for the refusal to register it.
BUKHARATYAN v ARMENIA 37819/03 [2012] ECtHR 14: TSATURYAN v ARMENIA 37821/03 [2012] ECtHR 13 (10 January 2012): the imprisonment of the applicants, Jehovah’s Witnesses, for refusal to undertake compulsory military service on grounds of conscience violated Article 9 ECHR (thought, conscience and religion): BAYATYAN v ARMENIA 23459/03 [2011] ECtHR (GC) 1095 (7 July 2011) followed.
COUNCIL OF EUROPE HIGH LEVEL CONFERENCE ON THE FUTURE OF THE ECtHR [2012] (19 and 20 April): the High Level Conference meeting at Brighton at the initiative of the UK Chairmanship of the Committee of Ministers of the Council of Europe issued a comprehensive declaration on the operation of the Court, covering implementation of the ECHR at national level, applications to the Court and their processing, judges and jurisprudence of the Court, the execution of judgments and the longer-term future of the Convention system and the Court: there is much in the declaration both about the importance of subsidiarity and about the need for consistency as between states parties – and one proposal as to how the latter might be achieved is by an optional Protocol giving the Court power to deliver advisory opinions on the interpretation of the Convention at the request of a domestic court, in a similar fashion to the practice in the European Court of Justice.
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