European Rights Watch

Human Rights Court Says Mandatory Religious Education in Greek Schools Violates the Convention

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

ATHENS, Greece — On October 31, 2019, the European Court of Human Rights (“ECHR”) held that mandatory religious education in Greek schools was a violation of Article 2 of Protocol No. 1 (Right to Education) of the Convention, interpreted in light of Article 9 (Freedom of Thought, Conscience, and Religion).

The applicants in this case were two sets of parents and their daughters, who live on small Greek islands. Under the Greek Constitution, religious education is compulsory for all students at primary and secondary level.

In July 2017, the applicants had requested the Supreme Administrative Court to invalidate the religious education curriculum for the 2017-18 school year, when their daughters were entering the third and fourth grades respectively. With the new school year fast approaching, the two families requested to have their case considered urgently but the court dismissed their requests.

In January 2018, arguing that the procedure for exemption from religious classes conflicted with the European Convention, the applicants lodged a complaint with the ECHR. They claimed that if they were to have their daughters exempted from religious education, they would have to state that they were not Orthodox Christians. In filing their complaint, the applicants relied on Article 9 and Article 2 of Protocol No. 1 of the Convention.

The Court found that submitting a formal declaration saying that their children were not Orthodox Christians would place an undue burden on parents. The Court reasoned that the existing system in Greece for exempting children from religious education classes could potentially reveal sensitive aspects of an applicants’ private lives. In addition, the likelihood of conflict wound probably dissuade them from seeking exemption, particularly if they lived in a small and religiously condensed society, where the risk of stigmatization was much higher than in larger cities. Lastly, no other classes were offered to exempted students, which would lead to lost hours of schooling just for their professed beliefs.

Therefore, the Court held that there had been a violation of Article 2 of Protocol No. 1, as interpreted alongside Article 9 of the Convention. The Court emphasized that the authorities did not have the right to interfere in the scope of individual conscience, to establish individuals’ religious belief or to compel them to divulge their beliefs.

Greece lags behind almost all of the member states, where such an exemption procedure, or the option of attending a class in an alternate subject are already offered. This decision by ECHR is a monumental victory for religious minorities in Greece as it acknowledges their religious beliefs, allows them to be heard and strengthens their ability to pursue a modified curriculum in schools.

For further information, please see:

European Court of Human Rights – Greek System for Exempting Schoolchildren from Religious Education Classes Breaches the European Convention – 31 Oct. 2019

Law & Religion UK – Mandatory Religious Instruction Again: Papageorgiou – 31 Oct. 2019

 

Citing Article 8, ECHR Grants Psychiatric Patient Right to Attend a Family Funeral

By: Michelle Leal

Journal of Global Rights and Organizations, Associate Articles Editor 

PĀDURENI-GRAJURI, Romania – On October 8, 2019, the European Court of Human Rights (“ECHR”) held that the Romanian Government unfairly restricted a citizen from attending her mother’s funeral, thus violating Article 8 of the European Convention on Human Rights.

Luminiţa Zamfira Solcan is a Romanian national currently living in a psychiatric facility in Pădureni-Grajduri. In 2005, Solcan committed a murder in France.

During the criminal investigation, medical experts diagnosed Solcan with paranoid schizophrenia. Further, the experts opined that Solcan’s acts were due to her paranoid delusions. The Mâcon County Court discontinued the criminal investigation against Solcan, opining that she committed the offense in a state of diminished responsibility. The court ordered Solcan’s placement in a psychiatric facility in France for an unspecified time.

In 2011, Solcan requested to be transferred to a facility in Romania to be closer to her mother. In 2012, Solcan was transferred to a psychiatric facility in Pădureni-Grajduri. About a year later, Solcan’s mother died.

The day after her mother’s death, Solcan lodged a request with the Iaşi District Court for leave to attend her mother’s funeral. However, a month later, the court refused to grant Solcan’s leave. The court determined that under Article 39 of the Mental Health Act, the safety of others justified Solcan’s continuous detention.

Solcan filed an appeal, arguing that the laws allowing the temporary interruption of a custodial sentence for family reasons should also apply to detentions in psychiatric facilities. The court dismissed Solcan’s appeal, determining that the laws regarding the temporary interruption of imprisonment on family grounds did not apply to Solcan’s circumstances.

Before the ECHR, Solcan alleged that the authorities violated Article 8, the Right to Respect for Private and Family Life, by not allowing her leave of her involuntary psychiatric hospitalization to attend her mother’s funeral. The Court noted that any interference with an individual’s right to respect for her private and family life constituted an Article 8 breach unless the interference was necessary or in accordance with the law.

The Court first determined that the refusal to grant Solcan leave to attend her mother’s funeral was an interference under Article 8. Secondly, the Court found that the interference was an Article 8 breach because it was not necessary. The Court referenced relevant case law, which concluded that the State can only refuse an individual the right to attend a parent’s funeral for compelling reasons and if there is no alternative. The Court stated that neither the first-instance court or the Iaşi County Court accurately assessed Solcan’s situation. Moreover, the Court noted that due to the seriousness of the situation, the domestic courts should have explored alternative ways for Solcan to attend the funeral. The Court stated that the domestic courts failed to consider alternatives like escorted or compassionate leave.  Considering the seriousness regarding Solcan’s request and the domestic courts’ failure to consider alternatives, the Court found that the denial of leave was not necessary.

Ultimately, the Court determined that there had been a violation of Article 8 of the Convention and awarded Solcan six thousand euros for non-pecuniary damages.

For further information, please see:

ECHR Case Law – Failure to Allow a Psychiatric Detainee to Attend her Mother’s Funeral Violates her Right to Family Life – 20 Oct. 2019

European Court of Human Rights – Case of Solcan v. Romania – 8 Oct. 2019

European Court of Human Rights- Guide on Article 8 of the European Convention on Human Rights – 31 Aug. 2019

 

ECHR Says UK Bedroom Tax Violates Occupancy Rights of Gender-Based Domestic Violence Victims

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

LONDON, England — On October 24, 2019, the European Court of Human Rights (“ECHR”), in a highly significant decision, held that a reduction in housing benefits based on occupancy violated Article 14 (Prohibition of Discrimination) and Article 1 of Protocol No. 1 (Protection of Property) in relation to domestic violence victims.

The UK Government has been ordered to pay “A” 10,000 Euros. Photo Courtesy of Getty.

“A”, a British national, was a victim of rape, assault, harassment, and stalking at the hands of her ex-partner. She was living in a “Sanctuary Scheme” home – properties specifically designed to enable women and children in grave risk of domestic violence to live securely in their own homes – with her 11-year old son. The adaption to the three-bedroom house included the installation of a “panic room” in the attic for herself and her son.

In 2013, new rules on housing benefits in the social housing sector, more commonly known as the “Bedroom Tax,” reduced the benefit by 14% for people with a “spare” room in their home. Proponents of the new rules claimed that the Bedroom Tax was designed to free up much-needed bigger homes. Since “A” and her son were living in a three-bedroom house, their housing benefit decreased as a result. “A” challenged the Bedroom Tax, contending that the reduction in the benefit put them in unstable circumstances, which were not remedied by other payment schemes. The UK Supreme Court dismissed their claim and they appealed to ECHR in 2017 on the basis of gender discrimination as the victim of gender-based violence, relying on Article 14.

The Court noted that “A” and her son would face hardship and a risk to personal safety if they had to move. The Court then stated that the regulation’s aim to urge people to move was in conflict with the Sanctuary Scheme’s goal of allowing victims of gender-based violence to stay in their homes. The progress of gender equality is a major goal for the member States and “very weighty reasons” must be provided before gender discrimination could be considered lawful.

Here, the Court determined that treating all people in Sanctuary Schemes in the same manner was disproportionate as it did not relate to the legitimate aim of the measure. The Government failed to offer any weighty reasons to rationalize prioritizing the aim of the Scheme over that of enabling victims of domestic violence to stay in their homes. Therefore, the Court held that “A” had endured a violation of her rights under Article 14 in conjunction with Article 1 of Protocol No. 1.

In the aftermath of this decision by ECHR, lawyers have demanded action on nearly 300 women estimated to be in similar situations. As the vast majority of those in the Sanctuary Scheme are women, this decision will help limit gender-based and domestic violence victim discrimination. This ruling is significant not only because it over-turned a troubling UK Supreme Court decision, but this ECHR ruling can potentially favorably impact other domestic violence victims in similar situations in other member states.

For further information, please see:

24housing – European Court Lands Blow on the ‘Bedroom Tax’ – 25 Oct. 2019

European Court of Human Rights – New UK Housing Benefit Regulation Discriminated Against a Woman Who Had Suffered Domestic Violence – 24 Oct. 2019

American Society of International Law – European Court of Human Rights Holds UK “Bedroom Tax” is Discriminatory – 24 Oct. 2019

Mirror – DWP Bedroom Tax Dealt Defeat in European Court of Human Rights – 24 Oct. 2019

Human Rights Court Finds Holocaust Denial Not Protected Under Freedom of Expression

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

BERLIN, Germany – On October 3, 2019, the European Court of Human Rights (“ECHR”) held that denying the Holocaust happened is not protected expression under Article 10.

Udo Pastörs being arrested by police following a far-right demonstration in May 2012. Photo Courtesy of the Reuters/Fabien Bimmer.

On January 28, 2010, the day after Holocaust Remembrance Day, Udo Pastörs, a far-right politician, a member of Parliament and chairperson of the National Democratic Party (“NDP”) of Germany at the time, delivered a speech in which he declared that commemorations of the Holocaust were “theater” and claimed that “the so-called Holocaust is being used for political and commercial purposes.” In August 2012, he was convicted by the district court for violating the memory of the dead and intentional defamation of the Jewish people. Subsequently, his appeals to the regional court, the Court of Appeals and the Federal Constitutional Court were also rejected. After exhausting all his remedies in Germany, Pastörs filed a complaint with the ECHR in 2014.

The Court firmly rejected Pastörs’ claim that his statements were protected under Article 10 of the Convention, which protects freedom of expression. The Court emphasized that Pastörs had planned his speech in advance and intentionally chose his words while denying the Holocaust, contradicting established historical facts, and exhibiting disdain to its victims. The Court further noted that while an interference with freedom of speech over statements made in a Parliament warranted close scrutiny, these specific statements deserved little protection, if any, given that they were at odds with the democratic values of the Convention. In addition, this case also had to be analyzed in the context of the special moral responsibility of States which had experienced Nazi horrors.

Ultimately, the Court held that Pastörs had deliberately stated lies in order to defame the Jewish people and the oppression they had endured. Therefore, the conviction by the domestic courts had been proportional to the goal pursued and was an essential decision in a democratic society.

Interestingly enough, Pastörs, who is a clockmaker by trade, had previously run into trouble with the German authorities as well. In 2010, he was convicted of treason for calling Turkish-German men “semen cannons” and for referring to Germany as a “Jew Republic.” He also referred to famous American economist, Alan Greenspan, as a “hooknose.”

The NDP was founded by the supporters of the former Hitler regime and has an extensive history of being rallying point for new generations of German Nazis. The party has consistently failed in local and national elections and has been unable to make a significant impact in the European Parliament. If their chairperson had not been disciplined for his remarks in the Parliament, the NDP could have gained some momentum. However, the ECHR and the domestic courts correctly determined that the freedom of expression defense was ill-founded in this scenario.

For further information, please see:

The Algemeiner – Denying Holocaust is not a Human Right, Eu Court Determines in Ruling Against German Neo-Nazi – 4 Oct. 2019

Courthouse News Service – Court Rules Holocaust Denial Not Protected by Rights Law – 3 Oct. 2019

European Court of Human Rights – Holocaust Denial is not Protected by the European Convention on Human Rights – 2 Oct. 2019

European Court of Human Rights – Pastörs v. Germany – Oct. 2019

Stoian v. Romania: Disabled Boy’s Right to Education Denied by European Court of Human Rights

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

BUCHAREST, Romania — On June 25, 2019, the European Court of Human Rights (“ECHR”), in a highly controversial decision, held that Romania did not deny the right to education and did not discriminate against a disabled boy and his single mother.

Stefan Stoian, now 18 years old. Photo Courtesy of Validity.

Stefan Stoian, a young boy with quadriplegia born in 2001, and his single mother, Luminita Stoian, complained that two state schools failed to accommodate Stefan and were mostly inaccessible for wheelchair users. They allege that learning was not customized with respect to teaching or testing the curricula, and the variety of therapies that Stefan required were not available. Luminita had to provide her son with personal assistance during school time, including carrying him around, helping him go to the toilet, and helping him with his physiotherapy exercises.

Luminita turned to a number of authorities in Romania to request the support that Stefan needed. The Government argued that both schools had adequate facilities and authorities had taken steps to enhance and modify them over time. They argued that he benefited from some educational support, physiotherapy, and occupational therapy, and he was also provided a personal assistant for short periods. Minimal change resulted from years of litigation and complaints, so Luminita turned to ECHR in 2013.

The complaint alleged a violation of the right to respect for private and family life, prevention of discrimination, and right to education violations, claiming that the authorities failed to take required measures to conform with their obligations under both national law and the European Convention. The Court noted that the authorities determined that Stefan should attend mainstream schools, which aligned with international standards. The Government admitted that there were delays in making sure that the school buildings in question met adequate standards.

The applicants also relied on United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Romania ratified in 2011. It acknowledges the right to education in comprehensive settings for children with disabilities and requires governments to provide support (reasonable accommodation and personal assistance) to attain full participation and inclusion for children with disabilities in mainstream schools. The Court held that the authorities had not turned a blind eye to Stefan’s needs, but had apportioned resources to his schools to accommodate his special needs. There were certain issues along the way, but some of those problems had been generated by Luminita herself. As a result, the Court found that the authorities had complied with their obligations, and therefore, did not violate the Articles of the Convention.

The Court’s holding that fundamental rights of persons of disabilities are predominantly a matter of resources that prohibits them from protection under the Convention is discouraging. Furthermore, how the Court reached their judgment is troublesome: the case was downgraded to a three-judge Committee level, facts were distorted, Government’s views were given more weight and meaningful scrutiny was not applied. This case exposes the degree to which children with disabilities are marginalized and denied justice, and they are running out of options regarding what litigation strategies may produce an encouraging result at the Court.

For further information, please see:

Strasbourg Observers – Stoian v. Romania: The Court’s Drift on Disability Rights Intensifies – 5 Sept. 2019

European Court of Human Rights – Romania Took Sufficient Steps to Make Reasonable Accommodation for Disabled Child to Attend School – 25 June 2019

Validity – Romania: Justice denied for Stefan Stoian after a decade of legal action – 28 June 2019