NGOs under European Convention on Human Rights / Tymofeyeva

The checklist of questions posed by the Court in the course of assessment of the materials of the case is similar to the one under Article 8 described above. The consequence of the textual formulation is as follows: 1) What is the scope of the particular guarantee? 2) Has there been any interference with the right guaranteed? 3) Does the interference have a legitimate aim? 4) Is the interference ‘in accordance with the law? 5) Is the interference ‘necessary in a democratic society’? 766 By answering the first question, it is important to concentrate on the notions of ‘thought’, ‘conscience’ and ‘religion’, which form a wide scope for Article 9. It has to be noted that the case-law of the Court provides for a narrower explanation of these freedoms. The Court noted many times that such views must “attain a certain level of cogency, seriousness, cohesion and importance”. 767 Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act, which is in some way inspired, motivated or influenced by a belief constitutes a ‘manifestation’ of the belief. It should be noticed that acts or omissions, which do not directly express the belief concerned or which are only remotely connected to a precept of faith, fall outside the protection of Article 9 § 1 of the Convention. 768 In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion, which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement for the applicants to establish that they acted in fulfilment of a duty mandated by the religion in question. 769 As an example of an interference with an Article 34 NGOs’ rights may serve, for example, a court or administrative decision requiring active acts or omission. In the case of Metropolitan Church of Bessarabia and Others v. Moldova , 770 the Court analysed the question of whether there was an interference with the applicant’s church rights. The Moldovan government submitted that the refusal to recognise the church did not prevent the applicants from holding beliefs or manifesting them within the other church recognised by the state. The Court observed that without recognition, the applicant church could not operate in the country. In particular, its priests might not conduct divine service, its members might not meet to practise their religion and, not having legal personality, the church was not entitled to judicial protection of its assets. The Court therefore concluded that the government’s refusal to recognise the 767 Eweida and Others v. the United Kingdom , no. 48420/10, § 81, ECHR 2013 (extracts). See also Bayatyan v. Armenia [GC], no. 23459/03, § 110, ECHR 2011; Leela Förderkreis E.V. andOthers v. Germany , no. 58911/00, § 80, 6 November 2008; Jakóbski v. Poland , no. 18429/06, § 44, 7 December 2010. 768 Skugar and Others v. Russia (dec.), no. 40010/04, 3 December 2009 and, for example, Arrowsmith v. the United Kingdom , Commission’s report of 12 October 1978, Decisions and Reports 19, p. 5; C. v. the United Kingdom, Commission decision of 15 December 1983, DR 37, p. 142; Zaoui v. Switzerland (dec.), no. 41615/98, 18 January 2001. 769 Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 73-74, ECHR 2000-VII. 770 Metropolitan Church of Bessarabia and Others v. Moldova , no. 45701/99, ECHR 2001-XII. 766 Ibid , p. 13.

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