Strictly speaking, the European Convention on Human Rights (hereinafter referred to as “ECHR”) does not include a specific provision aimed at protecting religious minorities. The relevant provisions are indeed Article 9 (Freedom of thought, conscience and religion) and 14 (Prohibition of discrimination); and while neither provision explicitly deals with religious minorities, the case-law of the European Court of Human Rights (hereinafter “ECtHR” or, simply, “the Court”) shows that the two provisions are in fact to be interpreted jointly and broadly. Article 9 not only provides for the right to freedom of thought, conscience and religion, but also the ‘freedom to change [one’s] religion or belief and freedom, either alone or in community with others and in public or private, to manifest [their] religion or belief, in worship, teaching, practice and observance’; and such freedoms may be limited only ‘as […] prescribed by law and […] necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ The Court has also pointed out in Kervanci v. France and Dogru v. France that such limitations must not only be prescribed by law, but also that the said law must be freely accessible and sufficiently precise as to avoid abuses by states against minority groups.
The recent judgment in Centre of Societies for Krishna Consciousness in Russia and Frolov v. Russia is in line with the ECtHR’s tradition of broadly interpreting Article 9 but, at the same time, not addressing the question of discrimination of religious minorities under Article 14. The case was brought by two applicants. One was a centralised religious organisation established under Russian law, and was centred on the failure by the state to put a stop to the instances of hostile speech targeting the Krishna movement by the Ulyanovsk state authorities. The said authorities included the Krishna movement as targets in projects to raise awareness against cults, painting the Krishnas as a ‘money‑greedy “totalitarian cult” “destructive” for Russian society’, and accusing them of psychological manipulation and “zombification” [sic] of the youth in publications that were freely available in the regional government’s website and disseminated amongst students. The second applicant was a follower of Vaishnavism who lamented being prevented by the council in Moscow to hold public religious meetings promoting the teachings of his religion.
With regard to the Krishna movement, the ECtHR underscored that that the state had overstepped the boundaries of their margin of appreciation – repeatedly recognized by the Court in the domestic application of the ECHR – as they did not consider the need ‘to reconcile the interests of various religious groups and to ensure that everyone’s beliefs had been respected’ with their campaign. Instead, the Court noted that the exclusion of minority religious groups was one of the hidden objectives of the project: there is hardly a different explanation, as pointed out by the Court, why the campaign used such emotionally charged and derogatory terms for describing the teachings of the Krishnas. This suggested that the state’s duty to abstain from assessing the legitimacy of religious beliefs or the ways in which those beliefs are expressed had not been considered at all. For these reasons, the Court found a violation of Article 9.
In light of Article 9, the Court also found a violation of Article 11 (Freedom of assembly and association) against the second applicant. Indeed, the state did not object with the events planned by the applicant being held at the chosen time in the chosen location, but rather to the religious nature of the event: according to the state, the promotion of Vaishnavism is to be considered a missionary activity which, under the Public Events Act, is inconsistent with the purposes of a public event, as well as incompatible with the respect for the religious beliefs of others. However, the Court found that the Public Events Act neither contains a list of permissible events, nor gives discretion to the authorities as to the nature of the events that can take place in public. The Court also found that the limitation raised by the state was not necessary in a public society: as Vaishnavists constitute a rather minority group in Russia, ‘[i]t would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.’
Whilst the judgment may be saluted as yet another example of the ECtHR championing freedom of religion, one cannot but question the treatment of religion as a personal – rather than collective – phenomenon, as well as the effect that the refusal to address the question from the perspective of Article 14 ECHR can have on the case-law of the Court. Indeed, in Centre of Societies for Krishna Consciousness in Russia and Frolov v. Russia, the Court held unanimously that there was no need to examine separately the applicant centre’s complaint under Article 14 taken in conjunction with Article 9. It is not uncommon for the ECtHR to not examine the question of discrimination in those cases in which the analysis would not lead to a different outcome than that based on Article 9. This approach, however, strengthen the consideration of religion, in the ECtHR case-law, of religion as an expression of one’s self – thus not dissimilar from any other expression of thought or conscience – and not of one’s identity as part of a group. This is rather problematic. Article 14 of the ECHR extends the freedoms protected by Article 9 by adding an additional shield against discrimination ‘on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ Even though it is not as explicit as Article 27 of the International Covenant on Civil and Political Rights (‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’), the reference to ‘association with a national minority’ in conjunction with ‘religion, political or other opinion, national or social origin’ allows to equate the combined scope of Articles 9 and 14 of the ECHR with that of Article 27 of the ICCPR. It is evident that, in Centre of Societies for Krishna Consciousness in Russia and Frolov v. Russia, the facts pointed to the discrimination of a minority group and an individual pertaining to a minority group on grounds of the very aspect that qualified them as minorities (religion, in the case at hand). By keeping the focus on Article 9 solely, the ECtHR treated the violations of the rights of the said group and individual as violation of individual rights. As pointed out by influential scholars almost 10 years ago now, ignoring the very existence of religious minorities and their status as minorities carries the danger of not only not tackling the discrimination they are subject to, but also perpetuating such discriminatory patterns. Moreover, the avoidance of addressing matters under Article 14 in conjunction with Article 9 leads to the impoverishment of the jurisprudence on minority rights. Protection of religious freedom is thus in danger of becoming a mere question of individual rights, and the ECtHR does not appear conscious of such danger.