In some cases, laws give so much discretionary power to the state that negotiation is hardly a question. In Russia, laws of different regions «ban religious groups, especially foreign ones, from using public buildings and fora, including schools, theaters, stadiums and radio and television stations - even if the groups have been accredited under local law.»[69] Religious associations encounter exceptional hardships in those countries where they are not permitted to own property or are denied the opportunity to hold worship services in their own buildings. State bodies, as a rule, do not permit the heads of religious organizations to unofficially lease such buildings. In countries where religious associations do not have the right of legal entity, other objects must be registered, which gives the state another opportunity to act on its discretion. Such a practice exists, for example, in Great Britain, where in compliance with the Places of Worship Registration Act of 1855,[70] places of worship can be registered. Although registration is not mandatory, an organization that does obtain registration receives certain advantages such as favorable tax benefits. And even when a religious organization does attempt to obtain this optional registration for tax purposes or otherwise, English officials have denied the requests in a seemingly arbitrary manner. For example, David McClean explained that «[t]he Church of Scientology wished to register a building as a place of worship, but the Court of Appeal held that this involved the assembly of persons to worship God or to do reverence to supreme being or deity; instruction in a secular philosophy was not sufficient. A humanist body, the South Place Ethical Society, was held for similar reasons not to be entitled to charitable status; it did not exist for the advancement of religion. The Mormon Church (the Church of Jesus Christ of Latter-Day Saints) would seem to qualify as a church, but its temple in England, which is only open to Mormons ‘in good standing’ especially recommended for the purpose, was held not to be a place of public religious worship for rating (local tax) purposes.»[71] While these problems arise in England, it is interesting to note that in many other countries both the Church of Scientology and the Church of Jesus Christ of Latter-day Saints have not faced such restrictions. The wider the discretionary authority, the more it is possible for those who wield the authority to conceal the true reasons for their decisions. One interesting example is the case of the Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.[72] In that case, Afro-Caribbean religion followers used some elements of animal slaughter and sacrifice. The court invalidated several city ordinances which prohibited ritual slaughter and sacrifice. The court held that despite the efforts of city officials to give plausible non-religious reasons for the ordinances, the laws were in fact aimed against religious ceremonies.[73] The court reached this decision despite extreme public indignation about the church’s presence in the community. The court held that public indignation by itself was not sufficient justification to allow the government to prohibit the activity of the religious association.[74] A most powerful argument against over-broad discretionary power was announced by the European Court of Human Rights in the Case of Hasan and Chaush v. Bulgaria.[75] In Hasan, the Bulgarian government was found to have improperly influenced the affairs of the Bulgarian Muslin community when the government effectively replaced the Chief Mufti of the Muslims and later reversed itself. The Court held that the government’s actions were improper because they were based on impermissibly vague laws. The requirement that government actions must be «prescribed by law» and «in accordance with the law»[76] means that [t]he law should be both adequately accessible and foreseeable, that is formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct.... For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.[77]
Hasan represents the first time that the Court has found a violation of the freedom of religion or belief on the basis of the «prescribed by law» requirement of Article 9. The Court’s clear and forceful articulation of the rule-of-law principle in this case sets a precedent that may become crucial in future cases that turn on the exercise of discretionary powers.
VI. Conclusion
In many countries, governments will continue using their discretionary authority to impede religious activities and to approve or disapprove various religions without a principled basis. Problems of discretionary state administration will no doubt exist for a long time in the practice of church-state relations. However, the existing international instruments on human rights and a growing body of international case law - and domestic case law, in many countries - emphasizes the essential principles by which the law will protect the freedom of religion or belief from abusive discretionary decisions. In particular, the increasingly well-defined requirements that discretionary decisions must follow the rule of law provide strong prospects for norms that secure religious freedom in all countries.
[1] In seven case studies of the socialization of international human rights norms into domestic practices, «[t]here is not a single case in which a sustained improvement of human rights conditions was not preceded by the country’s move toward the rule of law.» T. Risse and S. C. Ropp, «International Human Rights Norms and Domestic Change: Conclusions,» in T. Risse, S. C. Ropp, and K. Sikkink, ed., The Power of Human Rights (Cambridge University Press, 1999), 249. See also M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel, 1993) 236-41 (emphasizing the necessity of a «common minimum standard of the ‘rule of law’ in civil and criminal trials»). See generally I. Brownlie, The Rule of Law in International Affairs (The Hague: Martinus Nihjoff, 1998). [2] See I. Shapiro, «Introduction,» in I. Shapiro, ed., The Rule of Law (New York University Press, 1994), 1. See also J. Habermas, Between Facts and Norms, 188-89, trans. W. Rehg (Cambridge, Mass.: MIT Press, 1994). [3] See generally International Covenant on Civil and Political Rights, U.N. Doc. A/6316 (1966); Declaration of the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief, U.N. Doc. A/36/684 (1981); European Convention for the Protection of Human Rights and Fundamental Freedoms 213 U.N.T.S. 221 (1950); American Convention on Human Rights 1144 U.N.T.S. 123 (1978); African Charter on Human and People Rights 21 I.L.M. 58 (1982). [4] Restriction can be imposed only in case of the necessity to guarantee the security, order, health, morality, rights and freedoms of other people. See, for example, International Covenant on Civil and Political Rights 999 U.N.T.S. 171 (1966). [5] For example, Article 20 of the Italian Constitution of 1948 asserts: «No special restrictions shall be imposed by law upon any society or institution by reason of its ecclesiastical nature or its religious or its religious or liturgical purpose, nor shall any special fiscal burdens be imposed in respect of its constitution, its legal capacity, or its activities in any form.» M. Cappelletti, J. H. Merryman, and J. M. Perillo, The Italian Legal System: An Introduction (Stanford University Press, 1967), 285. [6] Eur.Ct.H.R. (ser.A), No.59/1995/565/651 (1996). [7] Ibid., para. 7-9. [8] Ibid., para. 10. [9] Ibid., para. 11, 51. [10] Ibid., para. 12. [11] Ibid., para. 23. [12] Ibid., para. 26. [13] Ibid., para. 15. [14] Ibid., para. 41. [15] Case of Malone, 82 Eur. Ct. H.R. (ser. A) ¶ 67 (1984). [16] Cole Durham, Freedom of Religion or Belief: Laws Affecting the Structuring of Religious Communities, ODIHR Background Paper 1999/4: 30. [17] Manoussakis, para. 40. [18] European Convention on Human Rights, Art. 9, Para. 2. [19] Manoussakis, para. 41. [20] Ibid., para. 41. [21] Ibid., para. 45. [22] Ibid. [23] Ibid. [24] Ibid., para. 51. [25] Constitution of the Islamic Republic of Iran (1979). [26] D. W. Carlson, «Understanding Chinese-U.S. Conflict Over Freedom of Religion: The Wolf-Specter Freedom From Religious Persecution Acts of 1997 and 1998,» Brigham Young University Law Review, 1998: 566-67. [27] Several writers provide an insight into European models of ecclesiastical law systems and church-state systems in G. Robbers, ed., State and Church in the European Union, (Baden-Baden: European Consortium for State and Church Research, 1996), 60-61, 324-326. See also W. Cole Durham, Jr., «Perspectives on Religious Liberty: A Comparative Framework,» in Johan D. van der Vyver and John Witte, Jr., eds., Religious Human Rights in Global Perspective: Legal Perspectives (The Hague: Martinus Nijhoff Publishers, 1996) 1, 12-25. [28] See, e.g., Vienna Concluding Document, Principle 16.3. [29] «[A]ny group with religious aims may be founded without the necessity of any authorization or prior registration and may operate within the Italian legal order.» S. Ferrari, «State and Church in Italy,» in G. Robbers, ed., State and Church in the European Union, (Baden-Baden: European Consortium for State and Church Research, 1996), 174. In Finland, «members of the group may decide to manifest their belief without forming a juridical person. In this case the Freedom of Religion Act affords their operation the protection of law.» M. Heikkilä, J. Knuutila, and M. Scheinin, «State and Church in Finland,» in Robbers, ed., State and Church in the European Union, 286. [30] See supra note 27. [31] W. Cole Durham and Lauren B. Homer write, «it is true that many European countries afford differing levels of recognition to different religious organizations.» W. C. Durham and L. B. Homer, «Russia’s 1997 Law On Freedom Of Conscience and Religious Associations: An Analytical Appraisal,» Emory International Law Review, 12 (1998): 196. [32] In addition, in some countries, the organizations are subdivided into public and private entities. Public Law or Public Corporations status is generally granted primarily to traditional religious associations or established churches. This means certain advantages as compared to those having the status of «private corporations» in the matters of public reputation, property status, state attitude, tax and other privileges. For example, in Germany, this approach means that religious communities having the status of public corporations are part of public life. See G. Robbers, «State and Church in Germany,» in Robbers, ed., State and Church in the European Union, 62. In Finland, «the public law nature of two State Churches (Lutheran Church and the Orthodox Church) is manifested in the fact that both Churches have an internal court system.» Heikkilä, Knuutila, and Scheinin, «State and Church in Finland,» in Robbers, ed., State and Church in the European Union, 286. [33] According to two American scholars, «[r]eligious organizations choose to adopt a civil law corporate form for many of the same reasons that businesses organized ‘for profit’ do: to limit liability, to own and control property in the name of organization, and to take advantage of benefits available to corporations under tax and other regulatory provisions of state and federal law.» M. S. Ariens and R. A. Destro, Religious Liberty in a Pluralistic Society (Carolina Academic Press, 1996), 489. [34] At the same time, in some countries not organizations but their bodies have legal capacity, or they are represented in legal actions by citizens. In Belgium, «[l]egal personality is attributed to the ecclesiastical administrations responsible for the temporal needs of the Church. The Church and Church structures themselves do not enjoy any legal personality.» R. Torfs, «State and Church in Belgium,» in Robbers, ed., State and Church in the European Union, 19. In Ireland, «[c]hurch and religious groups do not automatically have legal personality; in general their legal status is that of unincorporated associations.... [C]hurch property is normally vested in trustees.» See J. Casey, «State and Church in Ireland,» in Robbers, ed., State and Church in the European Union, 153. [35] See Durham and Homer, «Russia’s 1997 Law,» 230-31. [36] In Denmark, for example, «[t]he special recognition would be normally be given as a decision made administratively by the Minister of Ecclesiastical Affairs, but in the form of a royal resolution. See Inger Dubeck, «State and Church in Denmark,» in Robbers, ed., State and Church in the European Union, 43. [37] Manoussakis, para. 51. [38] Ibid. [39] Ibid., para. 52. [40] Ibid., para. 51 [41] See M. Nowak and T. Vosperhik, «Permissible Restrictions on Freedom of Religion or Belief,» in this volume. [42] Constitution of Argentina 1853 (Washington. D. C.: Pan American Union, 1968). [43] Constitution of the Republic of Iceland, Art. 62 (1944). [44] Andrei Protopopov, «Mongoliia Zakon ‘Ob otnosheniyakh mezdy tserkov’yu i gosydarstvom’ (Mongolian Law ‘On Relations Between Church and State’) 1993, Art. 4.2» in Religiya i Zakon (Religion and Law) (Moscow: Institute of Religion and Law, 1996), 56. [45] Federal’nyi Zakon O svobode sovesti i religioznykh ob’edineniyakh (Russian Federation Law On Freedom of Conscience and On Religious Associations) 1997, Sobranie zakonodatel’stva Rossiiskoi Federatsii. 1997. # 39 [46] Constitution of the Italian Republic, Art. 7 (1947). As Silvio Ferrari writes, «the Catholic Church and the six denominations which have reached an agreement with the State have the security that the legal status which they have at present will not be altered in peius against their will.» S. Ferrari, «State and Church in Italy» in Robbers, ed., State and Church in the European Union, 177. [47] R. Torfs, «State and Church in Belgium,» in Robbers, ed., State and Church in the European Union, 35. [48] V. Canas, «State and Church in Portugal,» in Robbers, ed., State and Church in the European Union, 264. Further progress has no doubt been made in the new law on religious associations adopted in Portugal in June 2001. See Sousa e Brito, this volume. [49] In many countries there is a mutual problem of registration or legal recognition for Jehovah’s Witnesses, the Church of Scientology, and the Unification Church. The Manoussakis case is a good example of this type of obstacle. See also Kokkinakis v. Greece, Eur.Ct.H.R. (ser.A), vol. 260-A (1993). [50] Federal’nyi Zakon O svobode sovesti i religioznykh ob’edineniyakh (Russian Federation Law on Freedom of Conscience and On Religious Associations) 1997, Art. 11, ¶ 5, Sobranie zakonodatel’stva Rossiiskoi Federatsii. 1997. # 39. [51] Andrei O. Protopopov, «Zakon Litovskoy Respubliki ‘O religioznykh obshchinakh i coobshchestvakh’ (Law of Lithuanian Republic «On Religious Communities and Associations»), 1995» in Religiya i Zakon (Religion and Law) (Moscow: Institute of Religion and Law, 1996), 54. [52] B. Basdevant-Gaudemet, «State and Church in France,» in Robbers, ed., State and Church in the European Union, 123. [53] S. C. van Bijsterveld, «State and Church in Netherlands,» in Robbers, ed., State and Church in the European Union, 217. [54] R. M. Martinez de Codes, «The Contemporary Form of Registering Religious Entities in Spain,» Brigham Young University Law Review, 1998: 379. [55] Ariens and Destro, Religious Liberty in a Pluralistic Society, 947. [56] A. de la Hera, «Relations with Religious Minorities: The Spanish Model,» Brigham Young University Law Review, 1998: 390. However, see Constitutional Tribunal of Spain, decision number 46/2001 of February 15, 2001, overruling the government’s administrative decision to deny the Unification Church recognition in the official Register of Religious Entities and holding that the administrative body «should not arrogate to itself the function of judging the religious component of entities seeking recognition in the Register» (paragraph 10). [57] U.N. Human Rights Committee, General Comment No. 22(48) on Article 18, U.N. Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in U.N. Doc HRI/GEN/1/Rev.1 at 35 (1994), para. 2. [58] C. J. Miner, «Losing My Religion: Austria’s New Religion Law in Light of International and European Standards of Religious Freedom,» Brigham Young University Law Review, 1998: 614-15. [59] Ibid., 615. [60] Cole Durham, Freedom of Religion or Belief, 52. [61] Eur. Ct. H.R. application no. 30985/96, judgment of 26 October 2000. [62] Manoussakis, para. 47. [63] See supra section V.B. [64] L. B.Homer and L. A. Uzzell. «Federal and Provincial Religious Freedom Laws in Russia: A Struggle for and Against Federalism and the Rule Of Law,» Emory International Law Review, 12 (1998): 291. [65] Manoussakis, para. 51. [66] Ibid. [67] Larkin v. Grendel’s Den, 459 U.S. 116, 123, 126 (1982). [68] Ferrari, «State and Church in Italy,» in Robbers, ed., State and Church in the European Union, 174. [69] Homer and Uzzell, «Federal and Provincial Religious Freedom Laws in Russia,» 268. [70] Places of Worship Registration Act, 1855, 18 & 19 Vict., c. 49. [71] D. McClean, «State and Church in the United Kingdom,» in Robbers, ed., State and Church in the European Union, 313. [72] 508 U.S. 520 (1993) [73] Ibid. at 547. [74] The words of the First Amendment to the U.S. Constitution «have given legal protection to a wide range of faiths, even those originating abroad and deeply offensive to a majority of citizens.» Homer and Uzzell, «Federal and Provincial Religious Freedom Laws in Russia,» 250. [75] Eur. Ct. H.R. application no. 30985/96, judgment of 26 October 2000. [76] European Convention on Human Rights, Articles 8 through 11. [77] Hasan, para. 84.
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