Law and Religion Scholars Network
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Case Database 2014
This list includes significant judgments delivered in 2014.
United Kingdom
CHANDHOK & ANOR v TIRKEY (Race Discrimination) [2014] UKEAT 0190 14 1912 (19 December 2014): where a claimant alleged that her employers had treated her badly, in part because of her low status which was ‘infected with considerations of caste’, the Tribunal concluded that though ‘caste’ as an autonomous concept did not presently come within s 9(1) Equality Act 2010, many of the facts relevant to caste in many of its forms might be capable of doing so, since ‘ethnic origins’ in s 9(1)(c) had a wide and flexible ambit, including characteristics determined by ‘descent’: though the focus of the judgment had been on the appeal in this particular case, on the facts the claimant might yet establish that her treatment was of a kind proscribed by s 9 Equality Act 2010 [55].
EXMOOR COAST BOAT CRUISES LTD v REVENUE & CUSTOMS [2014] UKFTT 1103 (TC) (17 December 2014): though a company could not benefit from Reg 25A(6)(a) Value Added Tax Regulations 1995/2518 as ‘a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications’ because it could not have beliefs as a company, it could have human rights if and to the extent to which it was the alter ego of a natural person (or, potentially, a group of people) and could be a victim of a breach of Article 9 ECHR [71 & 72]: in the present case, however, the appellant company could not claim the exemption because, though the beliefs of the owner and sole director, Mr Oxenham, included a strong disinclination to use the Internet, he did use it to advertise his business and filed a number of other returns on-line via agents acting on his or his companies’ behalf [81]: see also BLACKBURN & ANOR v REVENUE & CUSTOMS [2013] UKFTT 525 (TC) (2 October 2013).
GREATER GLASGOW HEALTH BOARD v DOOGAN & ANOR [2014] UKSC 68 (17 December 2014): in interpreting the conscientious objection provisions of s 4 Abortion Act 1967, the course of treatment to which conscientious objection was permitted by s 4(1) was the whole course of medical treatment bringing about the termination – Royal College of Nursing v Department of Health and Social Security [1981] AC 800 followed – and ‘participate’ meant ‘taking part in a hands-on capacity’ rather than including the host of ancillary, administrative and managerial tasks which Ms Doogan and Ms Wood, as labour ward co-ordinators, carried out and to which they objected [38]: appeal allowed.
HALAWI v WDFG UK LTD (t/a WORLD DUTY FREE) [2014] EWCA Civ 1387 (28 October 2014): the applicant’s claim that the withdrawal of her airside pass at Heathrow (which meant, in effect, that she could no longer work as a beauty consultant at Terminal 3) was discriminatory on the grounds of race and/or religion [12] failed because there was no documentation to support the existence of an employment relationship with the respondent [44]: Articles 15 (right to work), 21 (non-discrimination) and 47 (effective remedies) of the EU Charter of Fundamental Rights and Freedoms did not alter the meaning of ‘employee’ (or worker) in EU law and were therefore of no assistance in determining the appeal [56-58] and the Court declined the request to refer the case to the CJEU for a preliminary ruling.
CHANDRA v ARYA SAMAJ VEDIC MISSION (WEST MIDLANDS) [2014] Birmingham County Court (unreported: July 2014): the claimant, recruited from India and employed by the Executive Committee of the Mission in March 2011 to work at its temple, found himself working a 65-hour week and was provided only with a small single room: his payment was therefore for ‘unmeasured work’ rather than a salary and, as a result, the Executive Committee had failed to pay him the National Minimum Wage rate, even taking into account the statutory accommodation offset rate under the National Minimum Wage Regulations: he was awarded just over £62,500 in damages.
R (NICKLINSON & ANOR) v MINISTRY OF JUSTICE; R (AM) v DIRECTOR OF PUBLIC PROSECUTIONS [2014] UKSC 38 (25 June 2014): whether or not the current law on assisted suicide was incompatible with Article 8 ECHR (private and family life) was a matter within the United Kingdom’s margin of appreciation and, therefore, for the United Kingdom to decide [66, 154, 218, 267, 339]: though the sensitivity of the issue did not justify the court ruling out the possibility of a declaration of incompatibility, it would be inappropriate for a court to decide whether s 2 of the Suicide Act 1961 was incompatible with Article 8 before giving Parliament the opportunity to consider the position in the light of this judgment [116]: as to the exercise of judgment by the DPP, the variety of relevant factors and the need to vary the weight to be attached to them according to the circumstances of each individual case were all proper and constitutionally necessary features of the system of prosecution in the public interest.
SHERGILL & ORS v KHAIRA & ORS [2014] UKSC 33 (11 June 2014): in a dispute about the power to remove and appoint trustees of two gurdwaras and the issue of the justiciability or otherwise of matters of religious doctrine, the Court noted that both in England and Scotland judges would not adjudicate on the truth of religious beliefs or on the validity of particular rites [45]: however, where a claimant sought the enforcement of private rights and obligations that depended on religious issues, a court might have to determine such religious issues as were capable of objective assessment – though doctrinal and liturgical disputes were non-justiciable unless they engaged civil rights or interests or reviewable questions of public law [46]: Lord Bingham’s dictum in R (Gentle) v Prime Minister [2008] 1 AC 1356 at 8(1) cited with approval.
J AND S (CHILDREN), RE [2014] EWFC 4 (23 May 2014): despite their Roman Catholic parents’ opposition to the placement for adoption of J and S, Roma children from the Slovak Republic, with a homosexual couple, Sir James Munby P saw nothing in all the material he had seen to suggest that the placement was inappropriate or wrong, let alone irrational or unlawful, having regard to the principles that the local authority had to apply: the process had been conscientiously and properly undertaken having regard, as the paramount consideration, to the children's welfare throughout their lives – though the fact that the local authority had at one stage referred to the parents' views on homosexuality as bigoted was ‘unnecessary and hurtful’ [36]: application refused and proceedings remitted to be heard in the Family Court at Canterbury by a ‘judge of circuit judge level’.
R (PLANTAGENET ALLIANCE LTD) v SECRETARY OF STATE FOR JUSTICE [2014] EWHC 1662 (23 May 2014): the Secretary of State for Justice’s decision to grant a licence to exhume the remains of Richard III without consulting or attaching conditions about their re-interment in the event that they were found and his further decision not to revisit the grant of the licence had not been irrational: as to the claim against Leicester University, it had not been exercising a public function in relation to the exhumation, retention and re-interment of the remains and was under no public law duty to consult: nor did Leicester City Council have any legal duty to consult on its decision about re-interment in Leicester Cathedral or power to intervene once the licence had been granted and the remains removed from its land: in short, there were no public law grounds on which to interfere with the decisions in question and the application for judicial review was dismissed.
SINGH v SINGH & ANOR [2014] EWHC 1060 (Ch) (8 April 2014): in a dispute within a Sikh family about the applicability of Hindu/Sikh religious law – Mitakshara – to ownership of family property, Sir William Blackburne concluded that he would have given effect to Mitakshara principles so far as they related to the ownership and management of joint family property had those principles applied to the situation before him, but at no material time had there been any common understanding between the parties that any property acquired and legally owned by each or any of them would be subject to Mitakshara principles: claim dismissed.
NORTHUMBERLAND & DURHAM PROPERTY TRUST LTD v OUAHA [2014] EWCA Civ 571 (7 April 2014): a Muslim widow married in an Islamic marriage ceremony but without a civil ceremony did not satisfy the terms of paragraph 2(1) of Schedule 1 to the Rent Act 1977, as amended, which uses the term ‘surviving spouse or surviving civil partner’, for the purpose of spousal succession to a protected Rent Act tenancy.
P, RE (CAPACITY TO TITHE INHERITANCE) [2014] EWHC B14 (COP) (20 March 2014): a petitioner with serious mental health problems nevertheless had capacity in terms of the Mental Capacity Act 2005 to make a large gift as a tithe to the Church of Jesus Christ of Latter-day Saints: on the balance of the evidence, though the petitioner had an ‘impairment of, or a disturbance in the functioning of, the mind or brain’ [para 89] his desire to make the donation was not part of his delusional belief system [para 93] and it was not the function of the court ‘to interfere with people's religious or political preferences and choices but where possible to give expression to their wishes and beliefs’ [para 128].
THOMAS PHILLIPS v THOMAS MONSON [2014] Westminster Magistrates Ct (20 March 2014): in a private prosecution under the Fraud Act 2006 of Mr Monson, President of the Church of Jesus Christ of Latter-day Saints, for asking members of the Church to make financial contributions while allegedly promoting theological doctrines which ‘might be untrue or misleading’, the Chief Magistrate directed that the summons should be withdrawn: the basis for the complaint that Monson had made the doctrinal claims dishonestly was ‘too tenuous’ and insufficient to found a criminal prosecution and he was satisfied that the private prosecution was an abuse of process: moreover, issues of the truth or falsity of religious doctrines were non-justiciable.
QH (Christians – risk) CHINA CG [2014] UKUT 86 (IAC) (14 March 2014): notwithstanding the fact that the appellant, a Chinese citizen, was the daughter of the pastor of an unregistered church in China who, if returned, would wish to proselytise on behalf of her father’s church, many millions of Chinese Christians worshipped within unregistered churches and were able to meet and express their faith as they wished and there was no consistent pattern of persecution, serious harm or other breach of fundamental human rights for unregistered churches or their worshippers; moreover, the appellant’s young children were Chinese citizens and it was in their best interests to return to China with their mother: appeal dismissed.
WARREN v CARE FERTILITY (NORTHAMPTON) LTD & ANOR [2014] EWHC 602 (Fam) (6 March 2014): where a couple had been given inadequate information about the conditions for a deceased person’s sperm to be used by his partner to create an embryo and the initial maximum storage period under the Human Fertilisation and Embryology Act 1990, as amended by Regulations in 2009, the court was satisfied from the written evidence that, had he known about his options and the legal requirements, the deceased husband would have consented to his sperm being stored for a period in excess of 10 years up to a maximum of 55 and would have obtained the necessary medical opinion required under the 2009 Regulations: Article 8 ECHR was engaged and it was ‘right and proper, and proportionate’ to make the declaration sought. The HFEA was given leave to appeal but, after considering its position, decided not to pursue the case further.
BIRMINGHAM CHILDREN’S NHS TRUST v B & C [2014] EWHC 531 (Fam) (13 February 2014): it was in Baby A’s ‘welfare best interests’ that he should undergo complex cardiac surgery and it was inevitable that he should receive blood transfusions during the course of the surgery and/or subsequently, in spite of the religious objections of his Jehovah’s Witness parents, B and C.
UNITED GRAND LODGE OF ENGLAND v REVENUE & CUSTOMS [2014] UKFTT 164 (TC) (3 February 2014): the United Grand Lodge of England appealed against HMRC’s decision that its supplies to its members in return for their subscriptions were not exempt from VAT under Article 132(1) of the Principal VAT Directive 2006/112 on the common system of value added tax: though the Masons’ Grand Principles of integrity, brotherly love and charity were intelligible and concerned important matters, Freemasonry did not have ‘any significant aims of a religious nature’ [para 130] even though it did have aims of a philosophical, philanthropic and, to some extent, a civic nature [para 167]: because its non-qualifying aims were not merely minor or ancillary to its qualifying aims [para 171] the appeal failed.
ST MARGARET’S CHILDREN AND FAMILY CARE SOCIETY v OFFICE OF THE SCOTTISH CHARITY REGULATOR [2014] Scottish Charity Appeals Panel App 02/13 (31 January 2014): the Office of the Scottish Charity Regulator had directed the appellant Society, a Roman Catholic charity established ‘to promote (irrespective of creed) the welfare of children, whose interests are paramount, to foster the stability of family relationships and to assess the suitability of applicants as adoptive parents, all in accordance with the teachings of the Catholic Church’ to amend its external statements, internal guidance and procedures to ensure that the acceptance criteria for prospective adopters would be clear, transparent and comply fully with the requirements of the Equality Act 2010, in particular in relation to the protected characteristics of religion or belief and sexual orientation [para 34]: on appeal, the Scottish Charity Appeals Panel held that, as to public benefit, OSCR should have considered all the activities of the charity – including those unrelated to adoption – then weighed the benefit against the disbenefit before coming to a conclusion and it had been wrong to have concluded that Article 9 ECHR (thought, conscience and religion) was not engaged, since the charity’s objects clause included the words ‘all in accordance with the teachings of the Catholic Church’.
AAN (Veil) AFGHANISTAN [2014] UKUT 102 (IAC) (17 January 2014): in an appeal against refusal of asylum in which one of the witnesses appeared in a niqab veil, the Upper Tribunal (McCloskey J, President, Mr CMG Ockelton, Vice President, and Upper Tribunal Judge Grubb) declared that where the face of a party or witness was substantially covered by a veil or other form of attire it was incumbent on tribunals to strike a balance between the rights of the person concerned, the administration of justice and the principle of open justice: options might include a sensitive enquiry about whether the covering could be removed in whole or in part, a short adjournment to enable the witness to reflect and, perhaps, seek advice, or limited screening of the person and/or minimising the courtroom audience: where a tribunal considered that veiling might impair its ability properly to assess the person’s evidence with possible adverse consequences for the appellant, it was obliged to ventilate that concern; but issues of religious attire and symbols should be handled with tact and sensitivity.
Europe
CHBIHI LOUDOUDI & ORS v BELGIUM [2014] ECHR 1393 (16 December 2014) [French only]: the refusal by the authorities to recognise a deed of kafala (a form of guardianship in Islamic law), executed in Morocco, as a basis for allowing the adoption of a Moroccan child in Belgium did not breach the rights of the child nor of the prospective adoptive parents under Article 8 ECHR (private and family life).
CUMHURIYETÇI EĞITIM VE KÜLTÜR MERKEZI VAKFI v TURKEY [2014] ECHR 1346 [French text only] (2 December 2014): an Alevi meeting-house [cemevi] was a place of worship [43] and Alevism was protected by Article 9 ECHR – see Eylem and Hasan Zengin v Turkey [2007] and Sinan Işık v Turkey [2010]: though there was no obligation on states parties to grant special status to places of worship, given that Turkey had done so, the Government had offered no justification for the difference in treatment between places of worship and cemevis with regard to payment of utility bills[48 & 50]: it had no objective and reasonable justification and had therefore violated Article 14 taken together with Article 9 and it was not necessary to examine the separate complaint under Article 9 (a conclusion from which Sajó J dissented, arguing that the limited status of cemevis under the current legislation did not fully respect Alevis’ Article 9 rights).
GÜLER and UĞUR v TURKEY [2014] ECHR 1342 [French text only] (2 December 2014): the conviction of the applicants on a charge of promoting a terrorist organisation on account of their participation in a religious service in memory of three members of an illegal organisation – the Kurdistan Workers' Party or PKK – who had been killed by security forces had amounted to an interference with their Article 9 rights, notwithstanding that those in memory of whom the service had been held had been members of an illegal organisation and that the symbols of the illegal organisation had been displayed at the service, because Article 7 §2 of Law No. 3713 (on which their arrest had been based) had not met the requirements of clarity and foreseeability and was not, therefore ‘prescribed by law’: Sajó & Keller JJ dissented in part because, in their view, the Article violated was Article 11 (assembly and association).
THINK SCHUHWERK v OHIM – MÜLLER (VOODOO) [2014] EUECJ T-50/13 [French text only] (18 November 2014): in a case involving a challenge to the registration of ‘VOODOO’ as a Community Trade Mark under Regulation (EC) No 40/94 of 20 December 1993 on the Community trade-mark (OJ 1994 L 11 p 1) [1], the First Chamber CJEU noted that the term ‘voodoo’ might have religious origins without being a religion in its own right [sans être une religion propre], referring to acts of worship originating in Haiti or Africa: none of the definitions of ‘voodoo’, nor the documents produced by the applicant, could demonstrate that specific clothes were used to practise voodoo or that the occult acts in question were linked to rituals, places or particular occasions reserved to specific groups of people [24]; there was no particular generic style of ‘voodoo’ clothing [33] and the Court saw no reason to commission an expert assessment of voodooism as a religion as requested by the applicant [37]: the claim was rejected as inadmissible.
ISLAM-ITTIHAD ASSOCIATION & ORS v AZERBAIJAN [2014] ECHR 1220 (13 November 2014): the applicant Association, a non-profit-making NGO active between 1991 and 2003 whose main aims included the repair and maintenance of abandoned mosques and other places of worship, organising pilgrimages to Islamic shrines, welfare and religious publishing, had been forcibly dissolved: there was no dispute that that had been an interference with its right to freedom of association under Article 11 ECHR but it was arguable whether or not the closure had been ‘prescribed by law’, pursued one or more legitimate aims under Article 11 §2 and was ‘necessary in a democratic society’ [42]: the expressions ‘prescribed by law’ and ‘in accordance with the law’ in Articles 8 to 11 were not merely about the basis of an impugned measure but also about the degree to which it was accessible to the persons concerned and sufficiently precise for its consequences to be reasonably foreseeable [43]: in the present case the condition of foreseeability had not been satisfied and there had accordingly been a violation of Article 11 [51 & 52] but there had not been any violation of Article 6 (fair trial) [54].
POTOMSKA and POTOMSKI v POLAND [2014] ECHR 1188 (4 November 2014): though the Court had already found that the fact that the applicants had been prevented from developing the land which they had bought from the Polish state in 1974 because the authorities had subsequently decided to enter the property (formerly a Jewish cemetery) in the Register of Historic Monuments had violated their rights under Article 1 of Protocol No. 1 (protection of property), the interference had pursued the legitimate aim of conserving historical or cultural heritage [25] and resulted not from unlawful dispossession but from the failure to strike a fair balance between the general interest and the applicants’ property rights [24]: the couple had claimed a total of some 180,000 euros in pecuniary and non-pecuniary damages, costs and expenses but the Court awarded them a total of 14,800 euros – less than a tenth of their claim.
SOCIEDAD ANÓNIMA DEL UCIEZA v SPAIN [2014] ECHR 1186 [French text only] (4 November 2014): the decision to register a plot of land owned by the applicant in the name of the Diocese of Palencia in spite of the fact that it was already registered to the applicant had rendered its ownership rights nugatory in violation of Article 1 Protocol 1 ECHR (property): the applicant had been a victim of the exercise of the right of registration granted by the Roman Catholic Church’s internal legislation without any apparent justification and without the Diocese having mounted a challenge on the basis of its own asserted ownership rights when the property had been registered by the applicant in 1979; moreover, the declaration by the Spanish Supreme Court that the applicant’s challenge was a substantive procedural issue that had prevented consideration of the merits of the case and had unjustly deprived the applicant company of its right of access to the court, in violation of Article 6 §1 (fair trial).
GOUGH v UNITED KINGDOM [2014] ECHR 1156 (28 October 2014): though the applicant’s belief in public nudity could be seen as a form of expression within the ambit of Article 10 (expression) and his arrest, prosecution, conviction and detention had therefore been an interference with his Article 10 rights [150], the responses to public nudity across the Council of Europe were ‘far from uniform’ and the applicable margin of appreciation was therefore wide [172]: Article 10 did not entitle individuals repeatedly to impose their antisocial conduct on unwilling members of society then claim disproportionate interference with their freedom of expression [176] – and in any case he had failed to exhaust domestic remedies.
BEGHELURI & ORS v GEORGIA [2014] ECHR 1032 (7 October 2014): where a group of Jehovah’s Witnesses complained of religiously-motivated violence and assault, contrary to Articles 3 (inhuman or degrading treatment), 9 (thought, conscience and religion), 13 (effective remedy) and 14 (discrimination) ECHR, the Court held that there had been violations of Articles 3 and 9, both taken separately and in conjunction with Article 14: Article 3 enshrined ‘core values of the democratic societies making up the Council of Europe’ and, unlike the other Articles, was absolute without any provisos: ‘Having regard to all the materials at hand, the Court finds … that the various forms of violence directed against the applicants either by state agents or private individuals were instigated by a bigoted attitude towards the community of Jehovah’s Witnesses and, … that the very same discriminatory state of mind was at the core of the relevant public authorities’ failure to investigate the incidents of religiously motivated violence in an effective manner, which confirmed that the authorities at least tolerated that violence’ [179] .
CHURCH OF SCIENTOLOGY OF ST PETERSBURG & ORS v RUSSIA [2014] ECHR 1019 (2 October 2014): repeated refusals to register the applicants, an unincorporated group formed for the collective study of Scientology and six individual members, violated their rights under Article 9 ECHR (thought, conscience, and religion) interpreted in the light of Article 11 (assembly and association): the refusal had not been based on an accessible and foreseeable interpretation of domestic law and therefore failed the ‘prescribed by law’ test [46]: though it was unnecessary further to examine whether it also pursued a ‘legitimate aim’ or was ‘necessary in a democratic society’, the Court reaffirmed that a long waiting period to obtain legal personality could not be considered ‘necessary in a democratic society’ [47].
DIMITRAS and GILBERT v GREECE [2014] ECHR 1023 [French text only] (2 October 2014): when Mr Dimitras appeared in court as a witness he had been asked his religion, pursuant to Article 217 of the Greek Code of Criminal Procedure, and said that he was an atheist so as not to be obliged to take a religious oath under Article 218 of the Code: a three-judge panel of the First Section noted that in three previous complaints by him about oaths in criminal proceedings the ECtHR had concluded that Article 9 ECHR (thought, conscience and religion) had been violated [23]: in the present case, the Government had not adduced any new facts or arguments that could lead to a different conclusion and though the relevant provisions of Code of Criminal Procedure had since been amended, that had been done after the disputed facts in the present case: Greece had therefore failed to provide an effective remedy as required by Article 13 [25] but the complaint under Article 6 (fair trial) was ill-founded and there had been no violation in relation to Ms Gilbert [28].
GROSS v SWITZERLAND [2014] ECHR 1287 (30 September 2014): Ms Gross had wished to end her life because she was over 80, becoming increasingly frail and unwilling to continue suffering the decline of her physical and mental faculties but the Swiss authorities would not give her permission to obtain a lethal dose of sodium pentobarbital with which to commit suicide and the Second Section held in Gross v Switzerland [2013] ECHR 429 that Swiss law was not unclear as to when assisted suicide was permitted and therefore in breach of Article 8 ECHR (private and family life): at the request of the Swiss Government the case was referred to the Grand Chamber. Ms Gross had lodged her original application in 2010 [29] but had then obtained a prescription for sodium pentobarbital and had killed herself in 2011. The Court had not been made aware of her death until 7 January 2014 [18] and a majority of nine held that she had deliberately misled it and that the application had been ‘an abuse of the right of application’ within the meaning of Article 35 §3(a) and therefore inadmissible: the minority, led by Spielmann P, took the more lenient view that it could have been struck out under Article 37 §1(c) ‘for any other reason established by the Court…’ in order not to stigmatise her memory. The Court did not return to the substantive issue of the alleged lack of clarity in the relevant domestic law.
Rozalia AVRAM v ROMANIA[2014] ECHR 945 [French text only] (16 September 2014): the return to the Romanian Government of a building that had previously belonged to the Roman Catholic Diocese of Oradea over the heads of the tenants (including Ms Avram) to whom the apartments were to be sold and the final judgment of October 2006 of the Timisoara Court of Appeal cancelling her contract to purchase had brought into question the authority of the Court’s own previous final judgment of December 1999 dismissing the Bishop of Oradea’s action for recovery of title: the principle of legal certainty was fundamental to the rule of law and, absent any new facts, the Court of Appeal had therefore violated the principle of res judicata when it reversed its own decision, in violation of Ms Avram’s rights under Article 6 ECHR (fair trial).
Mansur YALÇIN & ORS v TURKEY [2014] ECHR 938 [French text only] (16 September 2014): though religious education was not contrary to the Convention, always provided schoolchildren were not forced to participate in a particular form of worship or exposed to religious indoctrination [64], states parties’ duty of impartiality was incompatible with preferential treatment of any particular religious belief and required them to ensure toleration between competing groups [68 & 70] and the Sunni bias in the syllabus could amount to a breach of the principles of pluralism and objectivity: given the peculiarities of Alevism over the Sunni understanding of Islam, the applicants could legitimately conclude that the teaching-methods of the course to which they objected were likely to result a conflict of allegiance between the school and their children’s own values [71]. Article 2 of Protocol No 1 required states parties to respect parents’ religious and philosophical beliefs in teaching religion; therefore, so far as possible the state had to avoid causing pupils conflicts between school religious instruction and the religious or philosophical beliefs of their parents [72] and, absent an appropriate system of exemption, the course’s mandatory nature could not avoid facing students with such conflicts, did not, therefore, meet the criteria of objectivity and pluralism and violated Article 2 Protocol 1 (education): Hasan and Eylem Zengin v Turkey [2007] ECHR 787 followed.
HÄMÄLÄINEN v FINLAND [2014] ECHR 787 (GC) (16 July 2014): the refusal to register the applicant, a male-to-female transsexual, as a female and preserve her pre-existing marriage to her wife was not disproportionate: the Grand Chamber held by fourteen votes to three that there had been no violation of Article 8, that there was no need to examine the complaint under Article 12 (right to marry) and that there had been no violation of Article 14 (discrimination) taken in conjunction with Articles 8 and 12: though the GC noted that the applicant was not advocating same-sex marriage in general but merely wanted to preserve her own marriage, nevertheless, the current law in Finland was not disproportionate and there had been no violation of Article 8: ‘… the applicant’s claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other … [N]o such right currently exists in Finland’ [70] … Article 8 of the Convention cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage … the regulation of the effects of a change of gender in the context of marriage falls to a large extent, though not entirely, within the margin of appreciation of the Contracting [71].
SAS v FRANCE [2014] ECHR 695 (GC) (1 July 2014): though the Court (Nussberger and Jäderblom JJ dissenting) was not convinced by the Government’s arguments that the ban imposed by the Law of 11 October 2010 on covering the face in public was intended to promote equality between men and women [118] and human dignity [120], it concluded that, under certain conditions, the ‘respect for the minimum requirements of life in society’ referred to by the Government – or of ‘living together’, as stated in the explanatory memorandum accompanying the draft Law – could be linked to the legitimate aim of the ‘protection of the rights and freedoms of others’ [121]: respect for the conditions of ‘living together’ was a legitimate aim for the measure at issue, particularly as France had a wide margin of appreciation on the general policy question – about which there were significant differences of opinion – and the restriction could be regarded as proportionate to the aim of preserving the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others’ [157]: the impugned limitation could therefore be regarded as ‘necessary in a democratic society’ [158] and did not, therefore, breach either Article 8 or Article 9.
KRUPKO & ORS v RUSSIA [2014] ECHR 663 (26 June 2014): the disruption by the police of the annual celebration by the Jehovah’s Witnesses of the Memorial of the Lord’s Evening Meal in 2006 could not be regarded as having been ‘necessary in a democratic society’, especially where ‘the assembly in question was not a tumultuous outdoors event but a solemn religious ceremony in an assembly hall which was not shown to create any disturbance or danger to the public order’ [56], while the arrest and detention of the applicants had served no legitimate purpose under Article 5 § 1 ECHR (liberty and security of the person): they had not been charged with any offence and no criminal or administrative proceedings were instituted against them [40].
BIBLICAL CENTRE OF THE CHUVASH REPUBLIC v RUSSIA [2014] ECHR 606 (12 June 2014): in dissolving the applicant Pentecostal mission and biblical college in 2007, on the grounds that it had conducted educational activities without authorisation and in breach of sanitary and hygiene regulations, the domestic courts had failed to demonstrate what other less intrusive means of achieving the declared aim of protecting the rights of students had been considered and why they had been deemed insufficient: the dissolution had violated Article 9 because it had not been ‘necessary in a democratic society’ since, in ordering the applicant’s dissolution the Russian courts had not had regard to the case-law of the Constitutional Court or to relevant Convention standards and had not assessed the impact of dissolution on the fundamental rights of Pentecostal believers.
BULDU & ORS v TURKEY [2014] ECHR 567 [French text only] (3 June 2014): the successive convictions and the perpetual risk of prosecution of the four applicants, Jehovah’s Witnesses, for refusing to perform military service on the grounds that it was contrary to biblical teaching, were an interference with their Article 9 rights [84] and even though ‘prescribed by law’, the penalties were inconsistent with Article 9: the applicants had expressed themselves willing to perform some alternative civilian service but that option had not been available to them [90] and, in short, the measures taken against them because of their refusal to perform military service were not ‘necessary in a democratic society’ [paras 92 & 93]: Bayatyan v Armenia [2011] ECHR 1095, Erçep v Turkey 43965/04 [2011] ECHR and Feti Demirtas v Turkey 5260/07 [2012] ECHR followed.
Florin ANDREI v ROMANIA [2014] ECHR 400 [French text only] (15 April 2014): though the physical conditions of the applicant’s detention in the local prison cells in Constanţa in 2005 had violated Article 3 ECHR (inhuman or degrading treatment) [48], the refusal of his request to see a priest on the occasion of a religious festival on 15 August had not violated his Article 9 rights: the Court had already found that Romania had a well-established regime of religious assistance for Orthodox Christians in places of detention and, given the circumstances, the fact that he had not been able to make his confession on a specific day was not likely to prejudice his Article 9 rights and that aspect of his complaint was manifestly ill-founded: Iorgoiu v Romania [2012] ECHR 1831/02 followed.
MAGYAR KERESZTÉNY MENNONITA EGYHÁZ & ORS v HUNGARY [2014] ECHR 552 (8 April 2014): the applicant religious groups, previously registered under Act no. IV of 1990 (‘the Church Act 1990’), had lost their registrations after the entry into force of Act no. CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities: it was held (by five votes to two) that the Government had not given any adequate reason why it was necessary to scrutinise afresh religious groups that were already active on the grounds that they might be dangerous to society, nor had it demonstrated any element of actual danger emanating from the applicant communities [para 104]: the measures imposed by the Act of 2011 had not been ‘necessary in a democratic society’ and had therefore violated Article 11 read in the light of Article 9. [Leave to appeal to the Grand Chamber subsequently granted].
WH v SWEDEN [2014] ECHR 333 (27 March 2014): the applicant’s special situation as a single Iraqi woman from the Mandaean minority religion ‘would not prevent her from settling safely and reasonably in the Kurdistan Region’ [78] and the threats she had alleged did not show that she would face a risk of treatment prohibited by Article 3 ECHR (inhuman or degrading treatment) in the Kurdistan Region, because neither the general situation in that region nor any of her personal circumstances indicated the existence of such a risk. [Leave to appeal to the Grand Chamber subsequently granted].
CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v UNITED KINGDOM [2014] ECHR 227 (4 March 2014): the refusal to grant total exemption from business rates to a Mormon temple (to which admittance was restricted only to Mormons with a ‘temple recommend’ from their bishop), pursuant to paragraph 11 Schedule 5 to the Local Government Finance Act 1988 which exempted places of ‘public religious worship’ did not breach Article 9 ECHR (thought, conscience and religion) and Article 1 of Protocol No. 1 (protection of property), taken alone and in conjunction with Article 14 (discrimination): the issue was not about manifestation but about whether or not the place of worship was open to the public: any prejudice caused to the LDS by the operation of the relief was reasonably and objectively justified and the domestic authorities had not exceeded the margin of appreciation available to them.
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