THE OSCE CHALLENGED - NHC/IHF

PART II: OSCE PRIORITIES AND PERSPECTIVES FROM CIVIL SOCIETY
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mr. krassimir kanev (bulgarian helsinki committee)
on religious freedom and the struggle against terrorism:
“Indirectly, ‘September 11’ affected religious freedom”

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Worldwide, after “September 11” the general human rights situation deteriorated, says Mr. Krassimir Kanev, from the Bulgarian Helsinki Committee. Specifically, throughout the OSCE region, the right to profess and practice religion or belief was affected as well. Not directly, however. Mr. Kanev maintains that these rights were affected indirectly, by restrictions of other human rights, restrictions purportedly on the grounds of national security protection but often based on a political agenda which preceded the so-called “Struggle against terrorism” by many years.
As a typical example of the indirect way in which rights to profess and practice religion or belief have been restricted in the aftermath of “September 11”, Mr. Kanev cites a 2003 European Court of Human Rights ruling approving the banning of the Turkish Welfare party (Refah Partisi) (?). In this case, the European Court took over completely the Turkish Constitutional Court’s view, which was an unpardonably limited one, in Mr. Kanev’s opinion.
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“’September 11’ had a detrimental effect on the respect for human rights worldwide. Since then, many governments have passed laws and introduced measures restricting human rights by:

extending definitions of terrorism in criminal law;
denying protection against arbitrary arrests and due process for some categories of detainees;
restricting the state’s asylum and immigration policies;
arbitrarily extraditing, expelling and deporting aliens;
restricting the right to privacy and the right to freedom of expression.

In regions where the situation had been bad already before ‘September 11’, human rights and humanitarian crises deteriorated further. Governments of the Central Asian countries took additional measures to combat what they claimed to be ‘terrorism’, and increased their repression of the political opposition and dissident civil society groups. Some of these governments were eagerly adopted as partners in the ‘anti-terrorist coalition’. In Chechnya, crimes against humanity continued unabated and the conflict was transferred outside its territory (?).

There is no doubt that, throughout the region, the right to profess and practice religion or belief were affected in practice as well. In many countries, anti-terrorist measures targeted Muslims; they became victims of hate crime, arbitrary detention, expulsion and interference in their private and family lives. As a result, the expression of Muslim identity in all its forms, especially in public, became a serious problem in most OSCE-participating states. In a number of countries, hate crimes against Muslims increased several times after September 11. For instance in the USA, anti-Muslim acts increased almost five times during the period September 2001 - March 2002, as compared with previous years. Increases in the anti-Muslim acts were also registered in the United Kingdom, Denmark, Canada, Germany and Italy (?). In the Central Asian countries, extended definitions of ‘terrorism’ and arbitrary law enforcement allowed local governments to continue repression of the Muslim opposition, which, in effect, had also a negative effect on the expression of some forms of Muslim religious identity.
However, this restriction of religious freedom in the OSCE region wasn’t based on specific laws targeting this particular right. True, during 2002 and 2003, several OSCE countries adopted laws that restricted religious freedom and discriminated against religious minorities. In October 2002, Belarus adopted a Law On Freedom of Conscience and Religious Organizations, which privileged the Russian Orthodox Church and discriminated against religious minorities. In June 2002, Croatia adopted a Law on the Legal Position of Religious Communities, which privileged the Roman Catholic Church vis-à-vis other religious denominations in the country. In December 2002, Bulgaria adopted a Religious Denominations Act, which tries, through administrative coercion, to reunite the split-up Bulgarian Orthodox Church and effectively bans one of the wings formed as a result of a schism in 1992. This Act also discriminates against religious minorities. In November 2003, Turkmenistan adopted a new religious law, which made registration of religious groups very difficult, while at the same time banning activities of unregistered religions. This Turkmen law gives the Ministry of Justice excessive powers to interfere with religious communities’ internal affairs. The Ministry may cancel a denomination’s registration on a wide range of grounds.

However, all these restrictive laws were adopted in a context of discriminatory policy against religious groups, rooted in political developments in these countries that had nothing to do with the aftermath of ‘September 11’. In many cases they were a continuation or justification of policies that developed long before.
Discrimination against religious denominations took hold or continued in a number of countries on an existing legal basis (or even without any legal basis whatsoever). An example in this regard is Russia, where a discriminatory law, adopted in 1997, continued to be applied against non-Orthodox religious minorities in the subsequent period. Another example is Georgia, where mob attacks against Jehovah’s Witnesses, Baptists, Pentecostals and other non-Orthodox minorities continued unabated during 2002 and 2003.

On the positive side and, again, without any connection to ‘September 11’, discriminatory pressure of some European countries towards religious minorities was eased. In Germany, persecution by the central government of some new religious and psychological movements ceased after adoption (in 1998) of a German parliamentary commission’s report on so-called sects and psycho-groups that found that these groups did not pose a real danger to state or society
Although the attitudes of some local governments remained a matter of a serious concern, the situation gradually improved. France also changed its ‘anti-sect’ policy when the government acknowledged, in November 2002, its past abuses and set up a new governmental body to replace the ‘Mission for the fight against sects’. This new body adopted a much more moderate approach to ‘sects’.

The very nature of the right to freedom of religion and belief is another explanation for the fact that restrictions of this right in the aftermath of ‘September 11’ were, in fact, side effects of restrictions of other human rights. Firstly, it encompasses a number of other rights, such as the right to freedom of expression, freedom of association and assembly, the right to own property, etcetera. Restriction of any of these rights affects the right to profess and practice religion or belief. Secondly, unlike most of the other rights and freedoms, the right to freedom of religion or belief cannot be restricted on the basis of protecting ‘national security’. International law prohibits this, just as it prohibits its derogation in time of public emergency which threatens the life of the nation. Given this, as well as the fact that the major concern in the aftermath of ‘September 11’ was ‘national security’, it’s unlikely that governments would restrict the right to freedom of religion on the basis of ‘national security’. Restricting constitutive rights on this basis, however, has had a similar effect.

For example, restrictive jurisprudence on freedom of association may have serious effects on the right to profess and practice religion or belief. A case in point is the decision of the European Court of Human Rights (ECHR) in the case of ‘Refah Party and others v Turkey’, delivered on February 13, 2003. This unanimous Grand Chamber decision, which came after a split 4/3 Chamber decision from July 31, 2001, has clear signs of being influenced by what the International Helsinki Federation called ‘a new human rights status quo’ in the aftermath of ‘September 11’. The judgment confirms the Turkish Constitutional Court’s outlawing of the Refah (Welfare) Party. In so doing, the European Court of Human Rights accepted almost entirely the arguments of the Turkish Constitutional Court, which is not known for its impartiality and objectivity. The Refah Party was banned because it allegedly posed a threat to the democratic development of Turkey: it advocated plurality of legal systems, possible recourse to force in its struggle for political power and the introduction of Islamic religious law, Shari’a. In its assessment of the evidence, the ECHR followed entirely the methodology of the Turkish Constitutional Court, which was to judge some statements from leading Refah politicians taken out of their original contexts. Both the Turkish Constitutional Court and the ECHR did not bother to analyse these statements in their broader context or to find out more about their possible effects. They failed to analyse the political process in Turkey and the methods of political propaganda that are accepted by all political parties. The ECHR took over the Turkish Constitutional Court’s interpretation of Refah politicians’ statements even when it was clear that those interpretations were false and biased.
In this case, perhaps the most striking statements of the ECHR, where one can see the direct effect of ‘September 11’, are those dealing with Shari’a. Among them we read: ‘The Court concurs in the Chamber's view that Shari’a is incompatible with the fundamental principles of democracy, as set forth in the Convention.' (?) One can expect such sweeping statements from a person on the street, but certainly not from a respected court, when it deals with the prohibition of one of Turkey’s biggest political parties, with a history of holding power at different levels, in a case where a former Prime Minister and a Justice Minister of Turkey are applicants. Neither the Turkish Constitutional Court, nor the ECHR tried to examine:

the interpretation of Shari’a offered by Refah’s politicians; (?)
the legal and social areas where Refah’s politicians proposed to introduce Shari’a;
the circumstances in which these statements were made;
the effects these statements might have had.

Perhaps the most curious development related to this judgment of the ECHR was that, after the ban, a faction of the Refah Party, renamed as the ‘Justice and Development Party’ (AKP), won the parliamentary elections on November 3, 2002 and is now successfully leading Turkey towards EU membership. Mr. Recep Erdogan, former mayor of Istanbul, elected on the Refah ticket, who spent several months in a Turkish jail for his ‘Islamist views’, is now Turkey’s Prime Minister. During the past year with AKP in office, there have been no signs of any establishing plurality of legal systems or any introduction of Shari’a anywhere in Turkish society. According to testimonies of both international and local human rights monitors, Turkey’s human rights record continued to improve during Refah’s term in office although there is left much to be desired. (?)

In conclusion: ‘September 11’ affected the respect for religious freedom, just as it affected the respect for any other human right. The new political and social climate, created in its aftermath, brought discomfort in the expression of the Muslim religious identity in non-Muslim environments. It also gave free hand to repressive governments in Central Asia to continue their suppression of peaceful Muslim opposition and civil society. And, last but not least, the ‘new human rights status quo’ allowed an abusive atmosphere with regard to religious freedom to prevail, and allowed processes that encouraged violation of religious rights, unrelated to ‘September 11’ events and concerns, to developed unrestricted and unabated.”

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