Article 9’s ‘manifestation’ of beliefs within the spheres of both employment and education is largely limited due to the Court’s belief that entrance into both employment and education (particularly, tertiary education) is essentially based on the ‘voluntary’ acceptance of their established rules and regulations.
In terms of general employment, the Court does not hold employers to positive obligations in allowing employees to manifest their personal beliefs. Employees are expected to adhere to their contractual agreements. In this sense, dismissals or disciplinary action taken as a result of an employee neglecting official duties or being absent from work in order to observe or adhere to ‘religious’ commitments, is not considered a violation of Article 9 (see, Konttinen v. Finland (dec.), Stedman v. the United Kingdom (dec.) and Cserjés v. Hungary (dec.). Furthermore, ‘disciplinary’ action taken against employees who neglect official duties for religious purposes does not amount to interference.
Within the public sector there are two limits to the Article 9 provision: firstly, due to the obligation of impartiality in public office, employees may be required to carry out their duties in a unbiased way without any religious beliefs or philosophical beliefs bearing on their responsibilities (see, Refah Partisi (the Welfare Party) and others v. Turkey [GC], §94). Secondly, a state can require employees to disclose their beliefs and can dismiss employees for incompatibility with state values (see, Vogt v. Germany, §§41-68. (disposal under Articles 10 and 11). States are however, still obligated to carry out these limitations in a neutral manner and should not display intolerance towards particular religious groups.
In the case of employment within the religious sector, those employed within established churches are required to fulfil their religious as well as secular duties, even when it is perceived as conflicting with their personal beliefs. The highlight once again being that employment is essentially voluntary (see, Rommelfanger v. Germany (dec) and Knudsen v. Norway (dec.)). The court however, has reiterated that within the religious sector, state authorities are expected to take into consideration the prospects of the dismissed individual, to find alternative employment (see, Schüth v. Germany, §§53-75).
Religious and philosophical beliefs within the realm of education is protected by Article 9 as well as Article 2 of Protocol 1 to the European Convention on Human Rights. Herein, basic education, regardless of religious or philosophical beliefs is a protected right and by this provision, furthermore affords parents partial control over the ideas or beliefs their children are exposed to. This is ultimately to safeguard pupils from ‘indoctrination’. In, this sense, the personal beliefs of parents are to be respected and as such, they can refuse certain teachings which conflict with their personal beliefs (see, Angeleni v. Sweden). Requiring parents to explain or ‘prove’ their personal beliefs to education authorities is limited as it requires an unnecessary invasion of the parent’s ‘intimate’ personal beliefs. Ultimately violating both Articles 8 (Respect for private and family life) and 9 (see, Folgerø and Others v. Norway [GC], §98). On the other hand, the court approaches the manifestation of religious/philosophical beliefs within tertiary education, in the same manner as that of employment. The view being that the rules, regulations and traditions of these institutions should be adhered to as any given tertiary institution was essentially chosen by the student (see, Karaduman v. Turkey).
Although Article 9 is limited in the realm of employment and education, the exercise of freedom of thought, conscience and religion within these sectors remain a protected right and is ‘necessary’ in any democratic society. The Court has shown in its case law that employees and students are required to adhere to their contractual obligations while at the same time requires the relevant authorities, to implement rules and regulations in a way that safeguards and promotes the democratic values of pluralism and tolerance.
Crystal Malan, legal researcher