Law and Religion Scholars Network
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Case Database 2013
This list includes significant judgments delivered in 2013.
United Kingdom
NAEEM v SECRETARY OF STATE FOR JUSTICE (Race Discrimination: Indirect) [2013] UKEAT 0215 13 1501 (15 January 2014): the claimant had not been disadvantaged as a Muslim Prison Service chaplain and his claim of indirect discrimination on grounds of race and/or religion or belief failed: though the Employment Tribunal had erred in including pre-2002 chaplains in its pool of comparators, it had been correct to conclude that, though the claimant had been subject to a provision, criterion or practice (PCP) that had put him at a particular disadvantage, the employer had established that the PCP at issue was a proportionate means of achieving a legitimate aim under s 19 Equality Act 2010: the claimant had been treated in exactly the same way as any chaplain, of whatever race or religion appointed at the same time as him.
HODKIN & ANOR, R (on the application of) v REGISTRAR GENERAL OF BIRTHS, DEATHS AND MARRIAGES [2013] UKSC 77 (11 December 2013): the Church of Scientology’s central London chapel should be recorded as a ‘place of worship’ under s 2 of the Places of Worship Registration Act 1855, which meant that marriages could be solemnised there: the interpretation of ‘religious worship’ in R v Registrar General, ex parte Segerdal [1970] 2 QB 697 (by which the Registrar and the Court of Appeal had been bound) had carried within it an implicitly theistic definition of ‘religion’: there had never been a universal definition of ‘religion’ in English law, the 1855 Act had to be interpreted in accordance with contemporary understanding and ‘religion’ should not be confined to faiths involving a supreme deity: appeal allowed unanimously.
MBA v LONDON BOROUGH OF MERTON [2013] EWCA Civ 1562 (5 December 2013): the resignation of the applicant, a practising Christian who held very strongly to the Fourth Commandment, from her job as a care assistant at a children’s home run by the respondent London Borough because she felt unable ‘… to undertake duties outside normal working hours as required by the shift rota including weekends, Bank holidays and sleeping did not constitute unfair dismissal or indirect religious discrimination: though the Court of Appeal accepted the sincerity of her Sabbatarian beliefs, it had not been necessary to establish that all or most Christians, or all or most Nonconformist Christians, would be put at a particular disadvantage by that requirement: though there had been an error of law in the original determination by the Employment Tribunal it had made no difference and the appeal should be dismissed: and though it had been wrong for the ET to have weighed in the employer’s favour the fact that Ms Mba’s religious belief was not a core belief of her religion so that any group impact would be limited, that had not materially affected the Employment Tribunal’s conclusion.
SHARPE v WORCESTER DIOCESAN BOARD OF FINANCE LTD & ANOR: [2013] UKEAT 0243 12 2811 (28 November 2013): the claimant, as a beneficed priest in the Church of England with freehold, was an employee working under a contract of services for the purposes of the Employment Rights Act 1996, as amended, and the Employment Tribunal’s decision that Mr Sharpe was not a ‘worker’ within the meaning of s 230(3)(b) had been arrived at in error: the appeal was allowed and the case was remitted to the Employment Tribunal for a fresh hearing ‘in accordance with the legal principles set out in this judgment’ [para 244]. [It was subsequently announced that the Diocese had been given leave to appeal.]
BULL & ANOR v HALL & ANOR [2013] UKSC 73 (27 November 2013): the refusal by Mr & Mrs Bull of a double-bedded room in their private hotel to Mr Hall and Mr Preddy, a couple in a civil partnership, on the grounds that they believed as Christians that sexual activity should take place only within the context of (heterosexual) marriage had been in breach of the terms of the Equality Act (Sexual Orientation) Regulations 2007 (the law in force at the time): though the Court was divided as to whether the discrimination complained of was direct or indirect, it was unanimous in dismissing the appeal: see also BLACK & ANOR v WILKINSON [2013] EWCA Civ 820 (9 July 2013).
R (LONDON CHRISTIAN RADIO LTD & ANOR) v RADIO ADVERTISING CLEARANCE CENTRE [2013] EWCA Civ 1495 (19 November 2013): the Radio Advertising Clearance Centre refused clearance for a proposed advertisement on London Christian Radio's station, Premier Christian Radio, about the marginalisation of Christians in the workplace on the grounds that it would breach the statutory prohibition on political broadcasting: the Court rejected the argument that the term 'political' should be narrowly construed since the reference in section 321(3)(f) Communications Act 2003 to 'a matter of public controversy' was inconsistent with a nartrow interpretation of the Act and with the decision of the House of Lords in Animal Defenders v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312: appeal dismissed (Dyson MR and Richards LJ: Elias LJ dissenting).
A LOCAL AUTHORITY v SY [2013] EWHC 3485 (COP) (12 November 2013): where a 19-year-old woman, SY, with mild to moderate learning disability had entered into a purported Islamic marriage ceremony at the groom’s home, notwithstanding that the local authority and the police had told him that she was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed should he go through with the intended wedding, though there was no provision in the Mental Capacity Act 2005 to make a declaration in respect of the ceremony Keehan J was prepared of his own motion under the inherent jurisdiction of the High Court to make a declaration that the ceremony had not complied with the statutory requirements and that SY lacked the capacity, inter alia, to contract marriage.
MARWAHA & ORS v SINGH & ORS [2013] WLR (D) 429 (CA) (6 November 2013): in an internal dispute at a gurdwara in Leicester about a purported amendment to the charity’s constitution, the completion of a new list of members and amendment of the scheme governing the charity in order to facilitate an election of a new executive committee, Sir Terence Etherton C held, on appeal, that HHJ Pelling had taken too narrow a view of the issues and had been wrong to hold that he could not interfere unless there had been a dishonest exercise of discretion under the scheme and agreed that ‘where on the true construction of a trust, the trustees have a duty to exclude ineligible persons from membership and they breach that duty, the court is not prevented from intervening’: HHJ Pelling’s order that the claimants should pay half of the defendants’ costs would be set aside and there would be no order as to costs.
GRACE v PLACES FOR CHILDREN (Religion or Belief Discrimination) [2013] UKEAT 0217 13 0511 (5 November 2013): a nursery manager dismissed for gross misconduct, on the grounds, inter alia, that some of her discussions with staff members within the nursery (which included discussions of her religious views) had “damaged the trust and confidence” placed in her and that her behaviour towards other members of staff amounted to harassment had not been unlawfully discriminated against: there was not always a clear line between “belief” and “manifestation” and the lower Tribunal had been careful to say that the claimant had not been treated as she was “because of her religion but rather because of the way in which she manifested or shared it”: appeal dismissed.
BLACKBURN & ANOR v REVENUE & CUSTOMS [2013] UKFTT 525 (TC) (2 October 2013): though the Seventh-day Adventist Church did not consider its beliefs to be incompatible with the use of electronic communications, the claimants were entitled to the exemption under Regulation 25A Value Added Tax Regulations 1995/2518 exempting ‘a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications’ from filing VAT returns on-line: s 6 Human Rights Act 1998 required public authorities to act in accordance with Convention rights; and though that did not apply to primary legislation nor to secondary legislation which was in the form that it was in due to constraints imposed by primary legislation, the Regulations at issue were secondary legislation unconstrained by primary legislation and s 6 HRA 1998 therefore applied. HMRC's suggestion that they could simply deregister for VAT to avoid on-line filing would be disproportionate because recovery of input tax was a fundamental right under EU law [58]; and it to make them suffer financially as the cost of abiding by their religious beliefs was an undue restriction of their rights under Article 9(1) ECHR [para 59]: see also EXMOOR COAST BOAT CRUISES LTD v REVENUE & CUSTOMS [2014] UKFTT 1103 (TC) (17 December 2014).
DREW v WALSALL HEALTHCARE NHS TRUST [2013] UKEAT 0378 12 2009 (20 September 2013): the claimant, a paediatric consultant who worked in a multicultural and multi-faith department and who habitually used Christian references in his professional communications was ultimately dismissed after an internal investigation recommended, inter alia, that he should keep his personal and religious views to himself – a conclusion with which he disagreed: the EAT held that he had not been treated less favourably on the grounds of or because of his Christian religion or beliefs, contrary to the Employment Equality (Religion or Belief) Regulations 2003 because the ET had correctly directed itself in following and applying the guidance in Ladele and had identified the correct hypothetical comparator: someone whose relevant circumstances were the same as the claimants (save for his protected characteristic as an “orthodox Christian”) and who had acted in the same way as the claimant but in terms relating to that person’s own belief system – whether religious or non-religious.
HOLLAND v ANGEL SUPERMARKET Ltd & ANOR [2013] Employment Tribunal 3301005-2013 (20 September 2013): a Wiccan dismissed after her employers had made derogatory comments about her religion after she had change shifts to celebrate a Wiccan feast-day had been unfairly dismissed: the things said to her were a detriment within the meaning of s 39(2)(d) of the Equality Act 2010, since hypothetical Christian who had changed shifts in order to celebrate a feast-day which was not a public holiday would not have been subjected to that comment because the explanation for needing a change of shift would not have required disclosure that he or she was not a Christian
R v D (R) [2013] EW Misc 13 (CC) (16 September 2013): a Muslim defendant charged on indictment with witness intimidation who insisted on wearing a burqa and niqab in the dock would have to comply with all directions given by the court to enable her to be properly identified at any stage of the proceedings: she would be free to wear the niqab during trial except while giving evidence, she could not give evidence wearing the niqab and she might give evidence from behind a screen shielding her from public view (but not from the view of the judge, the jury and counsel) or via a live TV link.
BETWEEN F AND F [2013] EWHC 2683 (Fam) (5 September 2013): in the case of a dispute between separated parents as to whether or not their daughters (aged 15 and 11) should receive the MMR vaccination Mrs Justice Theis held that the girls should be vaccinated: when making decisions about the exercise of parental responsibility, the paramount consideration was the welfare of the children concerned, as determined by the welfare checklist in section 1 (3) of the Children Act 1989: though the mother had objections to the procedure partly because she was a vegan, there was no discussion as to whether or not of Article 9 ECHR was engaged
S, RE [2013] NIFam 8 (15 August 2013): the court agreed that blood products should be made available to S, an adult with severe learning difficulties (who lived with his mother P, a Jehovah’s Witness, and attended church with her) during dental surgery: though the facts engaged Articles 2 (right to life), 3 (inhuman or degrading treatment) and 8 (private and family life) ECHR, a measure which was a therapeutic necessity could not be regarded as inhuman or degrading (para 8) and because of the possible risk of severe bleeding Morgan LCJ was prepared to make the necessary declaration to permit the use of blood products – but only in the very limited circumstance that their use was necessary in order to preserve S’s life (para 9).
HASAN v REDCOAT COMMUNITY CENTRE [2013] ET (unreported) (August 2013): an imam, like a Christian minister of religion, is expected to make himself available to his congregation when needed but, unlike in those Churches with designated clergy, mosques may have either one imam or a number of them in its service and there is no hierarchy and each mosque committee determines how its mosque is to be run: nevertheless, the Employment Tribunal decided on the facts that the claimant imam was an employee: the ET noted Ur-Rehman v Doncaster Jahia Mosque (Unfair Dismissal: Compensation) [2012] UKEAT 0117 12 1008 (10 August 2012) in which a claimant imam was held to be an employee.
NICKLINSON, R (on the application of) v A PRIMARY CARE TRUST [2013] EWCA Civ 961 (31 July 2013): the three appellants – AM, aged 48, who lives with his wife and his wife’s daughter and who was virtually unable to move and unable to speak, Paul Lamb, who was so disabled that he could not commit suicide without the assistance of a third party and Mrs Nicklinson, who was a party to the proceedings below as administratrix of her late husband’s estate but since that hearing had become a party in her own right – contended that, as a matter both of common law and of Strasbourg jurisprudence, anyone who assisted a person to bring about his or her death ought not to be subjected to criminal consequences and that their fundamental rights – both at common law and under the ECHR – were engaged and that ‘as guardians of those rights, the judges cannot simply refuse to resolve the conflicting arguments that arise on the grounds that they raise difficult ethical and moral issues better suited to resolution by Parliament’ (para 4): the Court of Appeal held that the blanket prohibitions on euthanasia and assisted suicide did not constitute a disproportionate interference with Article 8 rights: in addition, however, the Court held (Lord Judge LCJ dissenting) that the DPP’s prosecution policy failed to provide sufficient clarity about the likelihood of prosecution of a person who helped someone else to die but had no close or emotional connection with that person.
SS (MALAYSIA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2013] EWCA Civ 888 (18 July 2013): the court rejected the asylum application of a Malaysian Roman Catholic who had come to the UK with her six-year-old son after her husband had said that he was going to convert to Islam (and subsequently did so) because she was afraid that the boy would be brought up a Muslim and circumcised against her will: inability to bring up one’s child in one’s own religion did not violate Article 9 ECHR, it was in the boy’s best interests to be brought up in his home country by both his parents and it was for the Malaysian courts to settle any dispute between them – nor could circumcision “be compared to other cultural or religious practices, such as female genital mutilation”.
BLACK & ANOR v WILKINSON [2013] EWCA Civ 820 (9 July 2013): the refusal of the defendant to let a room in her Bed & Breakfast establishment at her home to the claimants – a same-sex couple not in a civil partnership – because of her belief that same-sex relationships were immoral had discriminated unlawfully against them on grounds of their sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations 2007 (revoked with effect from 1 October 2010 by the Equality Act 2010 but not in relation to acts occurring before that date): see also BULL & ANOR v HALL & ANOR [2013] UKSC 73 (27 November 2013).
ARYA v LONDON BOROUGH OF WALTHAM FOREST [2013] ET/3200396/11 (unreported) (July 2013): though a philosophical belief that ‘the Jewish religion’s professed belief in Jews being “God’s chosen people” is at odds with a meritocratic and multicultural society’ was genuinely held, a belief and not merely an opinion and attained a certain level of seriousness – the tests enunciated by Burton J in Grainger Plc & Ors v Nicholson [2009] UKEAT 0219 09 0311 at para 24 – the claim of discrimination failed on the last of Burton J’s criteria: that, in order to be protected, a belief ‘… must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’.
SLINGER v DEPARTMENT FOR WORK & PENSIONS [2013] Social Entitlement Chamber (unreported) (July 2013): given that the relevant Regulations state that in order to claim benefit jobseekers must be available for work for a minimum of 35 hours a week, the Social Entitlement Chamber, which adjudicates benefits disputes, allowed the appeal of a nineteen-year-old Charedi (ie ultra-Orthodox) Jew who was denied Jobseeker’s Allowance for over six months and told that he must be available for work on Shabbat, even though he had agreed to be available for work for 53 hours a week – but not on Friday afternoons or Saturdays.
NORTHERN IRELAND HUMAN RIGHTS COMMISSION, RE JUDICIAL REVIEW [2013] NICA 37 (27 June 2013): the Court of Appeal dismissed an appeal against the ruling of Treacy J at first instance that the Adoption (Northern Ireland) Order 1987 created a right to apply to be considered as an adoptive parent, that that right engaged Article 8 – which under Article 14 was to be enjoyed without discrimination on any prohibited ground – and that the blanket ban under the Order excluding all but married couples from consideration as adopters when the true focus should be on the interests of the child was irrational and it was unjustifiable to deny unmarried couples the opportunity to apply to adopt.
RAABE, R (on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2013] EWHC 1736 (Admin) (20 June 2013): the revocation of Dr Raabe’s appointment asan unpaid member of the Advisory Council on the Misuse of Drugs established under the Misuse of Drugs Act 1971, after it had come to light that in 2005 he had co-written a disapproving article, ‘Gay Marriage and Homosexuality: some medical comments’, which he had not mentioned at his interview, did not engage Article 9 ECHR: that Article guaranteed only an absolute entitlement to hold religious views but not the absolute protection of their manifestation (para 155): in any case the disputed publication ‘… could not fairly be called a manifestation of religious beliefs. For instance it is no part of any Christian belief system that gay people are more prone to paedophilia or have a higher incidence of mental illness’ (para 155); moreover, Article 9 did not create a right to make offensive public statements with impunity simply because they were in some way religiously-motivated (para 155).
HAYE v GENERAL TEACHING COUNCIL FOR ENGLAND [2013) EWHC (Admin) (11 April 2013: unreported): the claimant schoolteacher, a Seventh Day Adventist, was dismissed after he had expressed views to pupils that were critical of homosexuality and of worship on Sundays: the Administrative Court upheld the General Teaching Council’s imposition of a prohibition order with a two-year minimum review period as proportionate, on the grounds that the comments had been insensitive, potentially offensive likely to undermine the ethos and values of the school – nor did the order interfere with H’s Article 9 rights.
FRASER v UNIVERSITY & COLLEGE UNION [2013] ET 2203290/2011 (22 March 2013): the claimant’s allegations that the Union’s acts and/or omissions in relation to criticisms of Israel in various motions and resolutions at its Congress constituted unlawful harassment contrary to ss 57(3) and 26(1) of the Equality Act 2010 were unfounded: belief in Zionism was not a protected characteristic under the Equality Act 2010 and, in any case, the behaviour of the respondent Union was not connected in any way whatsoever with the claimant’s Jewishness, nor did it have the effect of violating his dignity or creating the necessary adverse environment for him.
DOWSETT, R (o. a. o.) v SECRETARY OF STATE FOR JUSTICE [2013] EWHC 687 (Admin) (27 March 2013): the Secretary of State had not acted wrongfully in refusing to allow male prisoners to object to rub-down searches being administered by female officers where the male prisoners had "a genuine and sincere objection to cross-gender searching" (which fell short of the religious and cultural exceptions); nor did that amount to unlawful direct sex discrimination contrary to section 13(1) of the Equality Act 2010.
G v P [2013] Ashford Employment Tribunal (unreported): the termination of an employee’s contract because of her refusal, on grounds of her personal religious beliefs, to take part in structured prayer and training sessions that her employer, a Christian charity, regarded as necessary training for her and her colleagues in order to ensure that common standards were upheld was not an unfair dismissal: it was reasonable for the organisation to want uniformity its communication with its supporters because if employees communicated with the public on complex theological issues without any training or control over standards it would expose the organisation to a genuine risk; and the organisation had acted entirely reasonably by giving her opportunities to change her mind about refusing the training and allowing her to explain her objections before arriving at a decision.
CORE ISSUES TRUST v TRANSPORT FOR LONDON [2013] EWHC 651 (Admin) (22 March 2013): though its decision-making process had been “procedurally unfair”, the decision by Transport for London (TfL) not to allow on the outside of its buses an advertisement placed by Anglican Mainstream on behalf of the Core Issues Trust saying "NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” was not judicially reviewable: TfL’s decision was not irrational, nor was Article 9 ECHR engaged because though Article 9 rights might be enjoyed by religious communities and churches they could not be enjoyed by corporate entities or non-natural persons such as associations – and in any case the Trust was seeking to express its perspective on a moral/sexual issue, not the manifestation of a religious belief.
ST MARGARET’S CHILDREN AND FAMILY CARE SOCIETY SC028551: Report under section 33 of the Charities and Trustee Investment (Scotland) Act 2005 [2013] OSCR (22 January 2013): a Roman Catholic adoption society was adjudged by the Office of the Scottish Charity Regulator to have failed the charity test under the 2005 Act and was directed to amend its practices and procedures so as to ensure that the criteria applied in deciding whether or not enquirers about assessment as adoptive parents would be accepted for full assessment were clear and transparent and complied fully with the requirements of the Equality Act 2010 – in particular to ensure that the charity did not discriminate unlawfully in respect of the protected characteristics of religion or belief and of sexual orientation.
AI v MT [2013] EWHC 100 (Fam) (30 January 2013): where after the breakdown of their marriage the parties, both Orthodox Jews, had undertaken a process of arbitration before the New York Beth Din involving the welfare and upbringing of their children, the Court was prepared to make an order confirming the outcome of that arbitration, having been assured that the principles applied by the Beth Din were akin to the English paramountcy principle and subject to the proviso that the outcome was not binding without the Court’s endorsement.
HEAFIELD v TIMES NEWSPAPER LTD (RELIGION OR BELIEF DISCRIMINATION) [2013] UKEAT 1305 12 1701 (17 January 2013): after a Roman Catholic sub-editor on The Times had been offended during the Pope’s visit to the United Kingdom in 2010 when one of the newsroom editors shouted “can anyone tell what’s happening to the f***ing Pope?”, the Employment Tribunal held – and the Employment Appeal Tribunal confirmed – that this use of bad language was merely an expression of ill-temper which was not intended to express hostility to the Pope or to Roman Catholicism and did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
Europe
VARTIC v ROMANIA (No. 2) [2013] ECHR 1296 (17 December 2013): the failure to provide the applicant prisoner with a vegetarian diet in accordance with his Buddhist beliefs violated Article 9 ECHR (thought, conscience and religion): having regard to all the factors and despite the margin of appreciation left to the respondent state, the prison authorities had failed to strike a fair balance between their own interests and those of the applicant.
BOGDAN VODĂ GREEK-CATHOLIC PARISH v ROMANIA [2013] ECHR 1149 (19 November 2013): the failure by the authorities to enforce a judgment in the applicant parish’s favour in 1998 which would have obliged the village’s Orthodox parish to allow them to hold services in one of the local churches that had belonged to them prior to 1948 engaged Article 6 §1 ECHR and though the present dispute was between private parties it was for each state party to equip itself with adequate legal instruments to ensure the fulfilment of positive obligations imposed upon it under the Convention, which Romania had failed to do: there had therefore been a violation of Article 6(1.
ASBL CHURCH OF SCIENTOLOGY v BELGIUM [2013] ECHR 43075/08 (19 September 2013) [French text only]: the Court held that it could not rule on whether or not the publication in newspapers between 1999 and 2007 of comments attributed to public prosecutors in which certain accusations were made about the applicant association had breached the secrecy of the judicial investigation and had disregarded the presumption of innocence and the association’s right to a fair hearing, contrary to Article 6(2) ECHR, because the association had failed to exhaust domestic remedies: the only evidence produced was press articles for which the relevant journalists were solely , nor had it been shown that by making public statements about the inquiries in progress the authorities had breached their duty of discretion.
TUNCER GÜNEŞ v TURKEY [2013] ECHR 80 (3 September 2013): the refusal of the authorities to permit the applicant, a married woman, to use only her maiden name on the grounds that Article 187 of the Turkish Civil Code required a married woman to bear her husband’s surname violated Article 14 (discrimination) in conjunction with Article 8 (private and family life): it was not necessary to determine whether there had been a breach of Article 8 taken separately.
SINDICATUL PĂSTORUL CEL BUN v ROMANIA [2013] ECHR 646 (GC) (9 July 2013): in a case concerning the refusal of the authorities to register a trades union (the Union of the Good Shepherd) for clergy and laity of the Romanian Orthodox Church, the Grand Chamber reversed the Third Section, holding by eleven votes to six that there had been no violation of Article 11 ECHR (association): while acknowledging the special circumstances of clergy, the majority considered that though the refusal to register the applicant union amounted to interference with its Article 11 rights (para 149) it was ‘prescribed by law’ and pursued the ‘legitimate aim’ of protecting the rights of others – specifically those of the Romanian Orthodox Church (paras 157 & 158): as to whether or not it was ‘necessary in a democratic society’, the majority took a non-interventionist stance, stressing the role of the State as the neutral and impartial organiser of the practice of religions, faiths and beliefs’ (para 165) and the wide margin of appreciation enjoyed by states parties in that sphere (para 171).
AVILKINA & ORS v RUSSIA [2013] ECHR 515 (6 June 2013): the St Petersburg City Prosecutor’s instruction that doctors should disclose (confidential) information in their medical files by reporting every refusal of transfuction of blood or its compoenents by Jehovah's Witnesses violated Article 8 ECHR (private and family life) and Article 14 (taken with Article 8): there was no need separately to examine the complaint under Article 14.
ME v FRANCE [2013] ECHR 514 (6 June 2013) [French text only]: the applicant asylum-seeker, an Egyptian Coptic Christian who claimed that, beginning in 2007, he and his family had been attacked because of their religious beliefs and who had been condemned in absentia to three years in prison for proselytising faced a real risk of ill-treatment if he were deported, on account of his Coptic faith and particularly because of his religious activities and his prison sentence for proselytism – and to deport him to Egypt would violate Article 3 ECHR (inhuman or degrading treatment): as to his further complaint about the circumstances of his detention in France and his claim that he had not been given an effective remedy as required by Article 13, there had been no violation of Article 13 taken in conjunction with Article 3.
GROSS v SWITZERLAND [2013] ECHR 429 (14 May 2013): the failure of the medical authorities to provide a lethal dose of sodium pentobarbital to the claimant, a woman over 80 with no clinical illness who was unwilling to continue suffering the decline of her physical and mental faculties, engaged Article 8 ECHR (private and family life) and the Court held by four votes to three that there had been a violation of that Article because Swiss law did not provide sufficient guidelines to ensure clarity about the extent of the right to obtain a lethal dose of sodium pentobarbital on medical prescription and there had therefore been a violation of Article 8: the Court did not, however, take view on whether or not Ms Gross should have been granted the possibility of acquiring a lethal dose of the medication because it was primarily for the national authorities to issue comprehensive and clear guidelines to decide that question.
AUSTRIANU v ROMANIA [2013] ECHR 134 (12 February 2013): the prison authorities’ refusal to allow the applicant, a Baptist, to keep a radio-cassette player in his cell in order to listen to religious cassettes was not a breach of Article 9 ECHR: though Article 9 encompassed worship, teaching, practice and observance as manifestations of religion it did not protect every act motivated or inspired by religion or belief: in the present case, though confiscating his cassette-player had interfered with Mr Austrianu’s Article 9 rights it had not completely prevented him from manifesting his religion: LEYLA ŞAHIN v TURKEY [2004] ECHR 299 (GC) (29 June 2004) followed.
VOJNITY v HUNGARY [2013] ECHR 131 (12 February 2013): though it had pursued the legitimate aim of protecting the child’s best interests, the decision by the domestic courts to remove the divorced applicant’s access rights to his son, essentially on grounds of his eccentric religious convictions, had discriminated against the claimant in the exercise of his right to respect for family life on the basis of his religion, in violation of Article 14 (discrimination) taken together with Article 8 (private and family life): “… the approach adopted by [the] authorities amounted to a complete disregard of the principle of proportionality, requisite in this field and inherent in the spirit of the Convention” (para 42).
ZOKHIDOV v RUSSIA [2013] ECHR 110 (05 February 2013): the extradition of the applicant, an Uzbek national, from Russia to Uzbekistan (where he was wanted in connection with his presumed membership of the illegal religious organisation Hizb ut-Tahrir) had violated his rights under Article 3 ECHR (torture) and Article 5 §§ 1, 2 and 4 (liberty and security): as a person accused of participating in a banned religious organisation considered extremist by the Uzbek authorities he had run a real risk of ill-treatment and because he had been removed from Council of Europe territory the extradition had also violated his rights under Article 34 (right of individual petition).
ASSOCIATION CULTUELLE DU TEMPLE PYRAMIDE v FRANCE 50471/07 - HEJUD [2013] ECHR 105 (31 January 2013), ASSOCIATION DES CHEVALIERS DU LOTUS D'OR v FRANCE 50615/07 - HEJUD [2013] ECHR 104 (31 January 2013) and EGLISE EVANGELIQUE MISSIONNAIRE AND SALAUN v FRANCE 25502/07 - HEJUD [2013] ECHR 107 (31 January 2013) [French texts only]: in cases on similar facts, in which all three applicants argued that requiring them to pay tax on direct donations infringed their right to manifest and exercise their freedom of religion, contrary to Article 9 ECHR, it was held that the two Associations had been subjected to different treatment from that meted out to other religious associations, while the refusal to treat the Eglise Evangelique Missionnaire as an association cultuelle (religious association) in order to qualify for permanent exemption under Article 1342-4 of the General Tax Code had been unreasonable.
EWEIDA AND OTHERS v UNITED KINGDOM 48420/10 36516/10 51671/10 59842/10 - HEJUD [2013] ECHR 37 (15 January 2013) the ECtHR concluded as follows in four conjoined cases:
· in the case of Ms Nadia Eweida, a British Airways check-in clerk suspended for wearing a visible cross on a chain in contravention of BA’s uniform policy, she had suffered an interference with her right to manifest her religion, contrary to Article ECHR (by 5 votes to 2);
· in the case of Ms Shirley Chaplin, a nursing sister, her employing NHS Trust’s refusal to allow her to wear a crucifix on a chain because of its health and safety policy (based on Department of Health guidance) that “No necklaces will be worn to reduce the risk of injury when handling patients” had interfered with her Article 9 rights but that interference was justified and proportionate (unanimous);
· in the case of Ms Lillian Ladele, a registrar, her effective dismissal for refusing to register civil partnerships had not exceeded the local authority’s margin of appreciation in enforcing its policy of securing the rights of others that were also protected under the Convention and had not contravened Article 14 (discrimination) (by 5 votes to 2); and
· In the case of Mr Gary McFarlane, his dismissal for refusing to offer psycho-sexual counselling to same-sex couples, contrary to his employer’s Equal Opportunities Policy, had not exceed the wide margin of appreciation afforded in deciding where to strike the balance between his right to manifest his religious belief and the interest of his employer, Relate Avon Ltd, in securing the rights of others (unanimous).
See also NADIA EWEIDA AND SHIRLEY CHAPLIN v UNITED KINGDOM [2011] ECtHR (No. 48420/10 738) (12 April 2011), 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); and LILLIAN LADELE AND GARY MCFARLANE v UNITED KINGDOM [2011] ECtHR (No. 51671/10) (12 April 2011) 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).
JUMA MOSQUE CONGREGATION & ORS v AZERBAIJAN 15405/04 HEJUD [2013] ECHR (8 January 2013): a complaint that the Azerbaijani authorities had refused to re-register the Juma Mosque congregation and had made such registration conditional on the congregation’s submission to the authority of the Caucasus Muslims Board was inadmissible because the applicants had failed to exhaust domestic remedies; moreover, their complaint that their eviction from the mosque had violated their rights under Articles 9, 10 and 11 ECHR failed on the grounds that they had no proprietary rights to the Juma Mosque – and moreover, their eviction had not restricted their freedom to manifest their religion under Article 9 because they could do so in other mosques.
DIMITRAS & ORS v GREECE (No 3) 44077/09 HEJUD [2013] ECHR 18 (08 January 2013) [French text only]: the procedure under which witnesses before the criminal courts in Greece have to make a specific declaration that they are not Orthodox Christians and/or that they do not wish to reveal their religious beliefs in order to be allowed to make a solemn declaration instead of swearing an oath violates Article 9 (thought, conscience and religion) and 13 (effective remedy) ECHR.
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