Equality & Non-discrimination between the European Court of Justice and the European Court of Human Rights. Challenges and Perspectives in the Religious Discourse

Abstract

Whereas gender, race and ethnicity have been placed at the very center of the rediscovery of European Union anti-discrimination law in the last decades, religion seems to stand in the backyard of the European Union Agenda. Efforts to tackle discrimination based on religious belief have not yet invested all areas of European Union anti-discrimination law, whose preference has been progressively devoted to other factors, even by leaving religion aside from the material scope of the Race Directive 43/2000/CE. The Employment Equality Directive, in fact, only prohibits discrimination on grounds of religion and belief in the fields of employment and occupation, vocational training, membership of employer and employee organizations, though refraining from following the Race Directive approach as to the width of protection. Freedom of religion within the European Union is then enshrined under Article 10, Freedom of thought, conscience and religion, of the European Union Charter of Fundamental Rights together with the general guarantee of non-discrimination under Article 21 and that of cultural religious and linguistic diversity set forth under Article 22. On the Council of Europe side, the European Convention – through Article 9, 14 and, to some extent, 1, Protocol no. 12 – and the European Court of Human Rights (ECtHR) have instead played a prominent role in addressing issues pertaining to freedom of religion, although generally disregarding the discriminatory implications of the scrutinized cases. Reference is made to the ECtHR consistent case-law on: proselytism (see Kokkinakis v. Greece); religious communities and their legal recognition (see Hasan and Chaush v. Bulgaria, Metropolitan Church of Bessarabia and Others v. Moldova); religious holydays (Francesco Sessa v. Italy, ); religious symbols in the public sphere (see Leyla Sahin v. Turkey, S.a.s. v. France; Eweida and others v. the United Kingdom; Hamidovic v. Bosnia Herzegovina); disposal of public services in the interest of religious communities (Izzetin Dogan v. Turkey). The European Union Charter of Fundamental Rights, together with the above mentioned Articles of the European Convention of Human Rights, set therefore the framework where to situate the lines of intervention towards discrimination on account on religion in european multicultural and multi-religious society. Moving ahead and beyond the existing legal background on religious anti-discrimination law, the presentation intends to discuss and compare the European Union Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) approaches towards discrimination claims on religious ground, by highlighting weaknesses and challenges faced by the principle of equality and non-discrimination on account of religious belief at the european level. As to the method, the proposed analysis, through selected case studies, will address and disclose achievements and perspectives in the fight against discrimination based on religious belief by looking at the following issues: the notion of religion with specific reference to its overlapping relationship with that of ethnicity; the notions and implications of direct and indirect discrimination; the collective or “group” resonance of discrimination on account of religious belief. The parallel and combined investigation of the EU Court of Justice (see Achbita v. G4S and Bougnaoui v. Micropole) and the ECtHR case-law will thus offer an insight into the unsolved questions behind the understanding and the legal awareness towards discrimination based on religion. The presentation will eventually bring about: the urge to challenge western countries approach to anti-discrimination strategies by acknowledging the inadequate realization of existing measures and suggesting diverse mechanisms which might embrace a focus on minorities’ rights as an additional tool to overcome discrimination; the adequacy of approaching anti-discrimination claims by interlacing religion and ethnicity; the challenges encountered by anti-discrimination law and Courts’ dependence on the so-called comparator methodology.