In an unprecedented ruling, judges turned the long-standing interpretation of articles 9, 10, 11 of the European Convention on Human Rights on its head.
by James T. Richardson*
* A paper presented at the Webinar “Jehovah’s Witnesses, Shunning, and Religious Liberty: The Ghent Court Decision,” April 9, 2021 [see video of the Webinar].
In 2007, the Belgian government approved a new very substantial anti-discrimination law in response to a directive from the European Union to establish laws against discrimination comporting with EU values. The law, which was meant to establish the primacy of anti-discrimination values over other concerns, contains both criminal and civil elements, so cases can involve both. Belgium’s Constitutional Court has ruled, however, that the law has limitations, and that some exemptions are to be allowed in its application, including the internal affairs of religious groups.
In 2015, a case was brought by the public prosecutor of Ghent on behalf of some former members against a local congregation of Jehovah’s Witnesses for violating the anti-discrimination law because of their practice of shunning those who had left or been expelled from the congregation. Both criminal and civil elements of the law were invoked in the legal action. The legal action seemed very coordinated, and a result of an organized effort to attack the Jehovah’s Witnesses. Claims were made by plaintiffs and a number of witnesses that the congregation had “incited discrimination or segregation against a person” and had “incited hatred or violence against a person,” in violation of the criminal elements of the anti-discrimination law.
The defendant congregation through its legal counsel explained to the Court in some detail the theological basis for the practice of shunning. The congregation also initially claimed a violation of Article 6 (1) of the ECHR (right to a fair and impartial hearing), but the claim was disallowed, as was a claim that the statute of limitations should bar the action. Other defenses included citing Article 19 of the Belgian Constitution guaranteeing “freedom to worship, its free exercise, as well as the freedom to express one’s opinion in any field” and Article 21 which states, “The State has no right to interfere in the internal affairs of a religion.” The congregation also cited articles 9, 10, and 11 of the European Convention, which guarantee freedom of religion, association, and expression, claiming that if charges were considered proven by the Court, this would violate the duty of neutrality and impartiality as required by those articles, as well as the very substance of those articles.
All these ECHR claims were rejected by the Court, stating that they were not absolute, citing articles 9.2, 10.2, and 11.2. The Court also ignored voluminous defendant’s witness statements and other evidence, and did not discuss them at all in the judgment.
The Court’s astounding logic
Article 9.2 ECHR provides: “Freedom to manifest one’s religion or beliefs shall be subject to such limitations as are prescribed by law and are necessary in a democratic society for public order, health or morality or the protection of the rights and freedoms of others.” Concerning 9.2, the Court said: “A state may well interfere with the autonomy of religious communities when such interference responds to a compelling social need, where there must be a reasonable relationship of proportionality between the legal objective pursued on the one hand and the restriction on those freedoms on the other.”
Concerning Article 10.2, the Court said: “The expression of an opinion is punishable if it knowingly and intentionally publicly incites discrimination, hatred or violence towards one or more persons on account of one of the criteria listed in the law. Incitement to hatred, segregation, discrimination or violence on the basis of one of the criteria listed in the General Discrimination Act can be made punishable by law, without violating the freedom of expression.” It also stated: “Article 10.2 ECHR provides that the exercise of freedom of expression may be subject to certain formalities, conditions, restrictions or sanctions, if they are provided for by law, and are necessary in a democratic society, including for the protection of the good name or rights of others.”
Concerning Article 11.2, the Court said: “Article 11.2 ECHR provides that the exercise of the freedom of assembly and association may be tested against legal restrictions and those that are necessary in a democratic society in the interest of, inter alia, the protection of public order and the prevention of criminal offences or the protection of the rights and freedoms of others… (I)n light of these restrictions… this court can indeed interfere and has the power to rule on the crimes charged to the defendant.”
The Court’s quite stunning conclusions
“By teaching the faithful that they should ignore, shun, and socially isolate this category of persons with the aim of bringing about repentance on the part of these ex-believers so that they re-join the Jehovah’s Witnesses, the freedoms of belief and to change belief guaranteed byArticle 9 of the ECHR and Article 19 of the Belgian Constitution are inadmissibly restricted on the part of this category of persons.”
“By the way the defendant propagates the exclusion policy and teaches it to the local religious communities, an impermissible restriction is committed on the right to respect for private and family life of the (former) members of Jehovah’s Witnesses, as guaranteed by Article 8 ECHR and Article 22 of the Constitution.” “The defendant impermissibly curtailed several rights guaranteed by the ECHR including the right to respect for private and family life (Article 8 ECHR), freedom of thought, conscience and religion (Article 9 ECHR), the right to freedom of expression (Article 10 ECHR) and finally the prohibition of discrimination (Article 14 ECHR).”
“By covering this criminal special intention under the cloak of the guaranteed rights of freedom of religion and other rights they cited, the defendants themselves flagrantly violate the right to respect for private and family life guaranteed by the ECHR (Article 8 ECHR), freedom of religion and freedom to change religion (Article 9), freedom of association (Article 11 ECHR) on behalf of those who have been excluded and have withdrawn from the religious community and the prohibition of discrimination (Article 14 ECHR).”
“The discussion of whether or not the exclusionary policy is based on the interpretation of verses from the Bible or other scriptures is irrelevant” (emphasis mine).
“The conduct of the accused is irresponsible and reprehensible. Incitement to discrimination and incitement to commit moral violence and hatred because of a different religious belief cannot be tolerated under any circumstances in our pluralistic society. The legislature has made such behaviour punishable by law. It is therefore the task of the judiciary to put a stop to the acts committed by the accused. The accused must realize that as members of our democratic society they must respect its core values, which are also protected by criminal law, at all times.”
“It is also the task of the judiciary to ensure that freedom of religion and expression are not abused to commit crimes and irreparably harm people morally. In our rule of law, the primacy of the law applies. Religious rules are not above the law in our society.”
“The court hopes that this criminal case will make the defendants aware of the seriousness of the acts they have committed for years, and that this criminal case will prompt them to adjust their exclusion policy without delay so that they will refrain from committing new crimes in the future.”
The Court’s unprecedented ruling
On March 16, 2021, a judgment was rendered against the congregation for violating this criminal law, and fines of 96,000 Euros were rendered against the group (plus costs of the proceedings). Possible civil penalties were deferred until later (after appeals are exhausted).
This decision is a quite dramatic outliner. The decision also ignored explicit statements which allow exemptions for religious organizations in the European Union’s directive that led to the 2007 law. And note that the judgment completely ignored the voluminous evidence offered by the defendant in the case, as well as case law precedents in Belgium, and around the world, which heretofore have ruled in favour of Jehovah’s Witnesses congregations managing their own internal affairs.
Potential implications of the ruling
The use of articles 9.2, 10.2, and 11.2 against the JWs represents a dramatic shift in how articles 9, 10, and 11 have usually been interpreted in cases involving minority faiths. Those articles have been very important for protecting minority faiths in the past, but in the Ghent decision they have been turned on their head and used against a minority faith, raising a number of questions.
Could this be the beginning of a major shift within judicial systems in how the ECHR and religious freedom provisions of national constitutions are interpreted in cases involving minority religions?
Could this decision, if upheld, possibly raise questions about the way JW cases have been treated within the European Court of Human Rights (ECtHR)? (They have won over 60 ECtHR cases since 1993).
If not overturned on appeal in Belgium’s judicial system or won at the ECtHR, does this mean that courts would henceforth be attempting to manage the internal affairs of religious groups?
And finally, how would the Jehovah’s Witnesses handle such matters in the future if courts did seek to interfere in the internal affairs of the organization?