Dr. Ján Figeľ is a long-serving EU official and was Special Envoy for Freedom of Religion or Belief outside the EU from 2016 to 2019. He is seeking to defend freedom of religion in his home country and has submitted an application to the European Court of Human Rights on the issue of religious freedom violations stemming from Slovakia’s Covid-19 response. Figel is bringing a challenge to the Court regarding the legality and necessity of communal worship bans.
ADF International is Co-Counsel in the case at the ECtHR.
“The international legal framework is very clear in its protection of this right as it benefits everyone – people of faith as well as people of no faith. Fundamental freedoms apply to all, and in times of crisis they must be protected rather than weakened,” said Dr. Adina Portaru, Senior Counsel for ADF International.
“Religious freedom as a basic human right must be given the highest level of protection. Prohibiting people from doing so is profoundly illiberal and non-democratic. Worship bans are an unfair and disproportionate infringement on the right to religious freedom.”
– Dr. Ján Figeľ
Case Summary
In October 2020, the Slovak Republic banned religious services in the context of cultural, social, and sporting events. Exceptions were made only for baptisms and weddings with up to six people including priests and assistants. The measure was prolonged in February 2021.
The ban on communal worship for all religions was not backed by the Slovakian emergency law. It therefore lacked a clear legal basis, which would be one of the preconditions for a restriction of a basic human right such as freedom of religion.
In fact, both the European Convention on Human Rights and the Constitution of the Slovak Republic protect freedom of religion as a fundamental right. This explicitly includes the “freedom … to manifest [one’s] religion or belief in worship.” (Article 9 ECHR)
Restrictions lacked a legal basis
Restrictions of fundamental human rights must at least fulfil three criteria: lawfulness, the pursuit of a legitimate aim, and the necessity of the restriction to achieve the aim.
None of these criteria were fulfilled, argues Figel in his application to the European Court of Human Rights. Since the decreed worship ban had no clear legal basis, it was not justified under Slovak emergency law. Furthermore, no specific and detailed research was presented as to whether the ban on religious gatherings would help to reach the pursued aim, nor whether it was needed across the country.
The initiative has been backed by a civil society coalition of diverse representatives from the arts, academia, and politics with various faith backgrounds. Bishops and faith leaders also have welcomed the case.
“Worship bans are religious freedom violations”
“Religious freedom as a basic human right must be given the highest level of protection. Everyone has the right to live according to their convictions. Prohibiting people from doing so is profoundly illiberal and non-democratic. Worship bans are an unfair and disproportionate infringement on the right to religious freedom, as evidenced by the significantly greater flexibility and openness elsewhere in Europe. National judicial decisions Europe-wide (for example in Germany and France) have shown that worship bans are religious freedom violations,” stated Dr. Ján Figeľ, former Special Envoy for freedom of religion and belief outside the EU.
“We are committed to supporting Dr. Ján Figeľ and his defence of religious freedom. The international legal framework is very clear in its protection of this right as it benefits everyone – people of faith as well as people of no faith. Fundamental freedoms apply to all, and in times of crisis they must be protected rather than weakened,” said Dr. Adina Portaru, Senior Counsel for ADF International. “It is disingenuous to pit religious freedom against safety when both can work in harmony. Communal worship is an essential part of navigating times of crisis for many people, and can be done safely and prudently, in accordance with necessary and balanced restrictions,” Portaru further stated.
The COVID-19 pandemic introduced a period of unprecedented restrictions to fundamental rights, unthinkable no less than five years ago: freedom of movement, assembly, and expression, and the right to private life, among others, were all impacted.
Freedom of religion or belief (FoRB) was no exception. In the name of public health, governments all around the world closed church doors and forbade in-person worship. In some places, churches remained closed even when other establishments such as bicycle repair shops and cinemas were open for business (e.g. Scotland and Switzerland).
While many may want to put the pandemic behind them, violations of human rights should be corrected, at the very least so we can prevent them from happening again. In the case of FoRB, the ECtHR now has the chance to do exactly that.
Ján Figeľ, the former Special Envoy for FoRB outside the EU (2016-2019), and a practicing Catholic, is challenging before the ECtHR the COVID-19 related restrictions to religious worship imposed by his home country, Slovakia, starting from February 2021. I have the honour of co-representing Figeľ before the ECtHR in a potentially precedent setting case for how the 46 member states of the Council of Europe should deal with FoRB in times of public health crisis.
Scope of the case
During the second wave, Slovakia prolonged its pandemic restrictions, banning religious services, except for baptisms and weddings with up to six people. The case centers on the 40-day prolonged blanket ban on religious worship (8 February-19 March 2021), which transpired amidst a longer period of previous restrictions.
The government of Slovakia contends there was no violation of FoRB because:
individual worship was still possible. But such an argument is contradicted by international and European human rights law, which protect FoRB manifested either alone or in community with others.
“online worship” was available. This claim disregards the fact that this is “best viewed as an alternative to worship, rather than worship itself” (Reverend Dr William J U Philip and Others, paras. 60-61), and that for some faiths, such as Judaism, religious celebrations cannot be filmed or livestreamed (Belgian Conseil d’État arrrêt n° 249.177).
Proportionality test
The case rests on the ECtHR’s analysis of proportionality and necessity, and the margin of appreciation Slovakia had at that particular time.
At the start of the pandemic, due to the novelty and lack of knowledge about the virus, governments had a wider margin to curtail fundamental rights. This gradually shrank with increased scientific information. Freedom-restrictive measures that might have been deemed legitimate at the beginning of 2020were likely not proportionate and necessary in 2021 and 2022.
In advancing a justification for restricting FoRB, the onus is on Slovakia to prove proportionality. In this case, the government’s blanket ban on religious worship during the later stages of the pandemic, once more scientific evidence became available, was at best a “useful” form of restrictions, though certainly not the most useful and “necessary”.
The government also must show that the ban was the least restrictive means available, which will be difficult in light of other options, such as social distancing within churches or other measures recommended by the WHO.
A precedent for FoRB at the ECtHR
While the ECtHR has dealt with applications related to FoRB during the pandemic (such as Magdić v Croatia, which was declared inadmissible, or Spînu v Romania in which no violation was found in the prison context), it has not yet ruled on the proportionality of bans on public worship, and certainly not with regards to the second wave of the pandemic. There are at least three noteworthy cases pending (Mégard v France, Chirilă v Romania and Association d’Obédience Ecclésiastique Orthodoxe c. Grèce ) and the timeline indicates that Figel may be the first case where the ECtHR will assess the proportionality of worship bans during COVID-19. Should the Court do so, it would take the symbolic opportunity to rule on the case of the former Special Envoy for FoRB, who has repeatedly stated that “The EU cannot credibly advance religious freedom throughout the world if its member states fail to uphold fundamental freedoms at home.”
Adina Portaru serves as Senior Counsel for ADF International, where she focuses on freedom of religion or belief at the European Union and on litigation at the European Court of Human Rights. Prior to joining ADF International, she was a research assistant at Maastricht University in the Netherlands and at the European Training and Research Centre for Human Rights and Democracy in Austria, where she assessed human rights policies. She obtained her doctorate in Law and Religion at Karl Franzens University in Austria.
The theme I wish to explore briefly is the relation between human dignity, religious freedom and current corona virus pandemic. Evidently, medical situation in the world is critical in many countries. It will take time and make serious impact on economies, on social situation and on human, interpersonal and international relations. Our world will change.
Each crisis in history left repetitive lesson: We can get out of crisis to the new perspective or fall even more deeply into problems, conflicts and tragedy. Second lesson is that (only) two fundamental components and inputs are decisive to get out of any crisis: Common sense (sound reason) and living conscience (ethics of responsibility).
Why do we need to emphasize the dignity? Because we need to defend principles of justice against religious fundamentalism, ideological and totalitarian oppression, or ethical relativism. We witness opposition to universality of fundamental HRs, divisions among countries and nations on human rights, refusal or questioning of these rights in time of migration crisis. Dignity of each human person is the foundational principle of all HRs. Dignity is a privileged way to address issues of freedom and equality in society correctly.
For me, this is critical since the notion of human dignity is the pivot of freedom of religion and belief, as well as of all universal human rights. If there is a point of convergence and of consent between religious humanists and secular humanists, it is HD as a base of each person’s undeniable and inalienable rights.
All three Abrahamic traditions consider that religious freedom is rooted in the dignity of the human person. It is their common denominator, from the past and for the future.
Human dignity can be articulated in three dimensions which are critical for a positive change in the human rights climate: Me – Thee – We. They need to be brought together.
Human dignity concerns me, personally, my-self. My specificity is my uniqueness. In common with each and every person, past, present and future, with billions, I am unique. And from this uniqueness, I draw my dignity and project my specificity. This is something original that nobody can ever replicate or replace. It is a specific and unique contribution to my fellow human beings. If this originality, authenticity and uniqueness is not “revealed”, is not “fulfilled”, it will be lost. My own dignity causes me to interpret the world, make choices, and interact with others, according to my own conscience, my reason and my convictions. To do so I need to exercise all my freedoms: freedom of thought, of expression, of action.
Human dignity is not limited to my own freedom. It includes the freedom of the other. It invites me to exercise tolerance and to define my limits, in order to respect the other. There is of course also an imperative of equity and equality and therefore of justice.
Human dignity is a responsibility that must be shouldered. If dignity gives rise to rights, it also implies duties and responsibilities. These responsibilities are not fixed or static, but must be developed and exercised, and maintained through time.
In addition, human dignity is not only an individual responsibility. Since I am part of community, the dignity has also a collective, a social or societal dimension. The ‘religious social responsibility’ in particular is that of seeking the ‘common good’: for their part religious actors need to contribute to the strengthening of social cohesion and justice in society.
Freedom of religion or belief is very central and expansive human right. It is in the middle of the Universal Declaration of Human Rights (1948), it has private and public dimension, it concerns individuals and communities as well. I see it as the deepest expression of personal freedom because it comprise freedom of thought, conscience and religion or conviction. Therefore FoRB is linked to the dignity of every person. It is important for believers and non-believers as well. Looking onto the international scene we can say, that FoRB is a litmus test of all human rights. Because if FoRB is respected then other freedoms and rights may follow the same principal respect. But if FoRB is neglected or oppressed, freedom of opinion, freedom of association or assembly are refused or not observed as well.
When we study economic and social level of living standards in various countries or compare HDI (Human Development Index), we can clearly say that there is direct correlation between respect of FoRB and socio-economic strength of society. Freedom of conscience and religion is very important precondition for successful and sustainable development of each country. Why? Because it is important source of pluralism, openness and tolerance in society. Moreover, peaceful and free society is harvesting fruits of justice, when this freedom is respected. Because – again – it is litmus test of all other human rights. And respect of human rights of all citizens is in the center of fair and just society.
CORONA-19 virus puts all these fundamental principles at stake, because we see how strong this invisible enemy is – the both, locally and globally. Superpowers and technologically advanced states show their limits, powerlessness and painful vulnerability. Due to necessary constraints, restrictive measures and socio-economic impact there are tendencies in some countries to limit FoRB, to oppress religious or belief minorities. This must be refused, as members of minority communities suffer even higher level of intolerance or discrimination. In the shadow of corona crisis free thinkers and democratic personalities in Hong Kong suffer oppression. We see how proponents of hatred, militant ideology and terrorism from ISIS are advancing in Burkina, Nigeria and Mozambique. It is not about “land grabbing”, but about possession of territory, Mosul-type invasions and killings. In several regions “under cover of COVID” the attacks on religious minorities have intensified, militants using top class weapons. State militaries remain weak in defense of the defenseless.
The corona virus is taking a tragic toll on all countries around the world, andgovernments everywhere should take the opportunity to release all religious prisoners. This is not only a responsible act in light of our current crisis, it is a humanitarian gesture and the right thing to do. Therefore I support appeal of the US Ambassador-at-Large Sam Brownback and the USCIRF on religious prisoners. People imprisoned on account of faith are among the vulnerable, religious minority communities affected by COVID-19, with limited access to basic necessities, including food and health care. In many cases, detention facility or prison conditions are dangerously overcrowded and unsanitary. We should remember and also to remind respective authorities, that prisoners of conscience have been wrongly imprisoned for exercising their faith. There are many religious prisoners in North Korea, China, Pakistan, Vietnam, Indonesia, Iran, Egypt, Eritrea, Saudi Arabia, Turkmenistan, Russia, Tajikistan and in other countries.
Human dignity must be respected in all phases of human life. The most vulnerable group at risk are the elderly. Therefore governments should adopt specific assistance and measures for the older generation. Our grandfathers and grandmothers deserve advanced care, timely support and responsible solidarity.
International community must show its ability to learn from its weaknesses and to cooperate on common interests. Defeat of corona crisis is the key objective of our times, but we should not neglect FoRB as very timely objective and criterion of new, sustainable development. Let us serve human dignity and dignity will serve us. Crisis shows again our significant and growing interdependence. Therefore we cannot stay ignorant or indifferent, commenting the situation or lamenting over the worrying trends.
Dignity for everyone and everywhere needs our courage, active engagement and education. The Punta del Este Declaration on Human Dignity for Everyone Everywhere is important and timely appeal, invitation and re-commitment (www.dignityforeveryone.org). When we signed this document in December 2018 there was no global or major international crisis. In 2020 this document is even more urging for correct understanding of human dignity, to respect dignity of all and for actions to defend and promote dignity for all. Declaration is still open for additional signatories.
We need to learn how to live in diversity, not only to exist in diversity. In dignity we are all equal, whether one comes from a royal family or from homeless one. And in identity we are all different. This is not the problem, but defining principle of creativity and of the creation. Consequently, we need to rediscover the old notion of the “common good”, coined in the 13th century, in the middle ages, by Thomas Aquinas. It is basis of win-win policy. Bonum communae was decisive objective for Schuman, Adenauer, de Gasperi, when they launched unparalleled project of European integration. However, it seems again the most relevant ethical and political vision to face the most burning issues we need to address today in the world.
As a conclusion I wish to stress: This pandemic crisis, challenging the whole world, should not be missed as it represents a very special and very expensive opportunity for better times, for more humane 21st century. This noble objective is important. We may achieve this goal only if humanity, solidarity and ethics of shared responsibility prevail. And this is personal, non-transferable invitation for everyone everywhere.
Ján Figeľ was nominated in May 2016 by the European Commission as the first Special Envoy for promotion of freedom of religion or belief (FoRB) outside the European Union. He was European Commissioner for Education, Training & Culture and State Secretary of the Ministry of Foreign Affairs and was the Chief Negotiator for Slovakia’s accession into the EU.
This Conversation was developed from contributions to an international Webinar held 16 April 2010: Freedom of Religion or Belief, COVID-19 and Human Dignity , Episode 2 of the Webinar Series COVID-19 and Freedom of Religion or Belief. Panelists in this Webinar addressed the following and other questions: How is this global emergency affecting our concept of human dignity? How can we ensure that restrictions to civil liberties that we accept for our collective safety respect human dignity and human rights?
This Webinar Series was organized by the Cambridge Institute on Religion and International Studies, the Center for Religious Studies at Bruno Kessler Foundation, the Center for Justice and Society at Fundação Getulio Vargas (FGV) Law School-Rio de Janeiro, the International Center for Law and Religion Studies at Brigham Young University Law School, the European Union Office of The Church of Jesus Christ of Latter-day Saints, and the University of Siena.
