José M. González Del Valle, Spain

• Citation: Vol. 19 No. 2
• Publication year: 2005
• topic: Constitutional Law

THE PERMISSIBLE SCOPE OF LEGAL LIMITATIONS ON THE FREEDOM OF RELIGION OR BELIEF IN SPAIN

José M. González del Valle^*

I. PUBLIC ORDER AS A LIMITATION UNDER THE SPANISH CONSTITUTION

The current Spanish Constitution, dating from 1978, refers to the limits on freedom of religion in the following terms: "Freedom of ideology, religion and worship of individuals and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law."¹Nevertheless, Article 3.1, of the July 5, 1980 Organic Law of Religious Freedom establishes that "rights deriving from the freedom of worship and religion may not be exercised to the detriment of the rights of others to practice their public freedoms and fundamental rights or of public safety, health and morality, elements which constitute the order ensured under the rule of Law in democratic societies."²This last assertion-that public order in democratic societies is constituted by the four elements-is debatable.

The four elements in the Religious Freedom law distort while attempting to be inspired by Article 9.2 of the European Convention on Human Rights [ECHR].³Spain ratified the ECHR on September 26, 1979 and deposited the instrument of ratification on October 4, 1979. The ECHR does not define elements of public order protected by law within the scope of a democratic society. The Convention states that, "[f]reedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public security, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."⁴Such a structure cannot be preserved under the Spanish Constitution because it states that the maintenance of public order is the only limit. The Organic Law of Religious Freedom, however, states that in a democratic society public order is constituted by four elements: public freedoms and the fundamental rights of others, public security, public health, and public morals.⁵

Three additional Spanish laws highlight the difficulty of understanding the meaning of "public order" in the Spanish Constitution. First, Article 45.1 of the December 20, 1991, Military Service Law states that that "freedom of ideology, of religion and of worship will have no other limits, in their manifestations, than those derived from the safeguarding of discipline and national security."⁶The law does not specify whether or not the safeguarding of discipline and national security constitute elements of public order in democratic societies. Second, the preambles to the agreements of cooperation between the Spanish State and the Federation of Evangelical Entities of Spain, the Federation of Israelite Communities of Spain and the Islamic Commission of Spain say that the Spanish Constitution guarantees freedom of religion "to the greatest extent allowed by the requirements derived from the maintenance of public order protected by the law and by the respect due to the fundamental rights of others."⁷Finally, Article 6.2 of the Legal Protection of Minors Law, after proclaiming the right of minors to religious and ideological freedom, states that "the exercising of the rights stemming from this freedom have solely the limitations prescribed by the Law and the respect for the fundamental rights and freedoms of others."⁸

From the preceding Spanish legislation, one may conclude that as to the issue of limits to freedom of religion, Spanish law does has not overcome a somewhat conventional phase in its enunciation. As a consequence of legal tradition, the limit indicated in the Constitution is that of public order.⁹Public order, however, is then broken down into diverse elements by separate legislative acts including: public health, public morals, public security, national security, discipline and the rights and freedoms of others. The concept of public order, according to some scholars, is an indeterminate legal concept. This means that someone must specify whether a particular form of conduct infringes on public order or not. This is not helped by the concepts of public health, public morals, public security, national security, discipline and the rights and freedoms of others because these concepts are also indeterminate legal concepts.

II. INTERNATIONAL STANDARDS INFLUENCING FREEDOM OF RELIGION IN

SPAIN

A. International Treaties and Founding Documents

Article 10.2 of the Spanish Constitution states that the "[p]rovistions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratified by

Spain."¹⁰This principle is inspired by Article 16.2 of the Portuguese

Constitution, which reads: "The provisions of this Constitutional and of laws relating to fundamental rights shall be construed and interpreted in harmony with the Universal Declaration of Human Rights."¹¹

Neither the Portuguese Constitution of 1976 nor the Spanish Constitution of 1978 invented the right to freedom of religion or the other fundamental rights contained in their respective constitutions. These fundamental rights remain, to a certain extent, outside of the constitutional text. Both legal texts presuppose that certain human rights exist, prior to the Constitution, which Constitutions must adopt and protect.

The Universal Declaration of the U.N., as the name itself indicates, is no more than a declaration-a non-legally binding text. To convert the contents of the Universal Declaration into a binding text for States two international treaties, the International Covenant on Civil and Political Rights [ICCPR] and the International Covenant on Economic, Social and Cultural Rights [ICESCR], were adopted on December 16, 1966. These treaties reproduce the contents of the Universal Declaration, differentiating between two categories of rights. Spain ratified both treaties on April 13, 1977, and deposited the instrument of ratification on April 27, 1977.¹²

Article 18.3 of the ICCPR states: "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."¹³This precept is not inspired directly by the

Universal Declaration, but by Article 9.2 of the ECHR, which slightly modifies the text of Article 29 of the Universal Declaration. Article 29 does not indicate specific limits on freedom of religion, but rather on rights and freedoms in general. The document states that rights and freedoms "shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morals, public order and the general welfare in a democratic society."¹⁴

In the ECHR, the generic limits of all the fundamental rights of Article 29 of the Universal Declaration are transformed, with a slight modification, into specific limitations on the right to freedom of religion. The European Convention, like the Spanish Constitution, opts, in contrast with the Universal Declaration, for indicating specific limits on each right. Article 18.3 of the ICCPR also opts for indicating specific limits on the right to freedom of religion, which coincide with those of the ECHR, though there are differences between the two. The public order, morals, security and health that the ECHR establishes as limits are those characteristic of a democratic society. There is no mention in the ICCPR of public order, morals, security and health having to be characteristic of a democratic society.

1. Interpreted Under the European Court of Human Rights

The requirement that the limits of fundamental rights must constitute necessary measures in a democratic society is consistently articulated in the jurisprudence of the European Court of Human Rights [EHR Court], since the Convention. The EHR Court however indicates different limitations on each right, uses formulas that are repeated in part and that allude in some cases to the requisite that the limiting measure must be characteristic of a democratic society. Thus, in McCann v. United Kingdom the EHR Court analyzes whether or not the use of firearms, by the police, to detain terrorists is characteristic of a democratic society.¹⁵In Engel v. Netherlands, the EHR

Court is presented with a question of whether it is legitimate for a democratic society to limit freedom of expression in defense of order in the heart of the armed forces. ¹⁶

A significat difference exists between the Universal Declaration, the ECHR and the ICCPR on the one hand and Spanish law concerning freedom of religion on the other. The Universal Declaration, the ECHR and the ICCPR limit activity that falls within the scope of the legislator. The legislator, according to these documents, may only limit the exercise of freedom of religion with the sole aim, or when faced with the necessity, of ensuring the recognition of and respect for the rights and freedoms of others, or to satisfy the just demands of morals, public order, etc. In Spanish law of Religious Freedom, what appears to be limited is not the activity of the legislator, but the exercise itself of the rights stemming from freedom of religion.

To affirm that the protection of the rights of others and the safeguarding of public security, health, and morals are constitutive elements of public order protected by law within a democratic society constitutes an inappropriate affirmation of a law to the extent that it is not within the scope of law to define, but rather to regulate. Above such a move is an act of gross stupidity. What Universal Declaration Article 29 and ECHR 9.2 say is that the recognition of and respect for the rights...