JOINT DISSENTING OPINION OF JUDGES TULKENS, POPOVIĆ AND KELLER

(Translation)

We do not share the position of the majority that there has been no violation of Article 9 of the Convention in the present case. We will explain our reasons below.

1. The facts of the case are relatively straightforward. In his capacity as a lawyer, the applicant represented one of the two civil parties in a set of criminal proceedings against certain banks. On 7 June 2005 he appeared before the investigating judge at a hearing concerning the production of evidence. The judge in charge of the case was prevented from sitting and his replacement invited the parties to choose between two dates for the adjourned hearing – 13 and 18 October 2005 – in accordance with the timetable already drawn up by the judge in charge of the case. The applicant pointed out that both the proposed dates coincided with Jewish religious holidays (Yom Kippur and Sukkot respectively). The judge nevertheless scheduled the hearing for 13 October 2005.

2. On the same day, 7 June 2005, the applicant lodged an application with the judge in charge of the case for the hearing to be adjourned. On 20 June 2005 the latter added the application to the case file without ruling on it.

3. At the hearing on 13 October 2005 the judge observed that the applicant was absent for “personal reasons”. After consulting the prosecution and counsel for the defendants, he rejected the application to adjourn the case made by the applicant on 7 June 2005, although counsel for the other civil party had supported the application.

4. The Court’s assessment is based on rather brief reasoning which, viewed in terms of both its aspects (the existence of interference and proportionality), appears to us to raise issues as regards freedom of religion, which “is ... one of the most vital elements that go to make up the identity of believers and their conception of life, but ... is also a precious asset for atheists, agnostics, sceptics and the unconcerned ... and entails, inter alia , freedom to hold or not to hold religious beliefs and to practise or not to practise a religion” [1] .

Existence of interference

5. The majority first consider that there was no interference with the applicant’s rights under Article 9 of the Convention. They observe that the decision by the investigating judge not to allow the applicant’s request for an adjournment was based on the provisions of the Code of Criminal Procedure according to which hearings concerning the immediate production of evidence take place in private and the public prosecutor and counsel for the defendant must be present. The majority infer from this that the presence of counsel for the complainant was therefore not required (see paragraph 36 of the judgment) and that, accordingly, the fact that the case was set down for hearing on a date which coincided with a Jewish holiday, and the refusal to adjourn it to a later date, did not amount to a restriction on the applicant’s right to practise his religion freely (see the first sub ‑ paragraph of paragraph 37 of the judgment).

6. We cannot subscribe to this reasoning. Although Article 401 of the Code of Criminal Procedure states that the attendance of the public prosecutor and counsel for the defendant is compulsory, it also states that “[c]ounsel for the injured party shall ... have the option of attending”. It is therefore up to the lawyer and no one else to decide, with an eye to his or her client’s interests, whether or not to take advantage of this option; the judicial authorities may not interfere in the exercise of individuals’ defence rights or presume that the attendance of counsel is not required.

7. In support of their argument the majority further note, curiously, that the applicant did not demonstrate that any pressure had been exerted on him to make him change his religious beliefs or to prevent him from manifesting his religion or beliefs (see the second sub-paragraph of paragraph 37 of the judgment). It seems to us to be contrary to the enjoyment of freedom of religion guaranteed by Article 9 of the Convention for the exercise of that freedom, in either its internal or external aspect, to be subordinated to or even made conditional upon the furnishing of evidence by the applicant of the pressure to which he was allegedly subjected.

Relationship of proportionality

8. Next, the majority consider that, even supposing that there was interference with the applicant’s rights under Article 9 § 1 of the Convention, it was justified on the ground of the protection of the rights and freedoms of others, namely the public’s right to the proper administration of justice, and that there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. We do not agree.

9. As to the proportionality requirement, which is the test of whether the interference was necessary in a democratic society, the Court’s case-law is very clear: for a measure to be proportionate, the authorities, when choosing between several possible means of achieving the legitimate aim pursued, must opt for the measure that is least restrictive of rights and freedoms [2] . From that standpoint, seeking a reasonable accommodation of the situation in issue may, in some circumstances, constitute a less restrictive means of achieving the aim pursued [3] .

10. In the present case we believe that the conditions were met for attempting to reach a reasonable accommodation of the situation, that is to say, one that did not impose a disproportionate burden on the judicial authorities. By dint of a few concessions, this would have made it possible to avoid interfering with the applicant’s religious freedom without compromising the achievement of the clearly legitimate aim of ensuring the proper administration of justice.

11. First of all, as soon as the date of the hearing was set, the applicant drew attention to the difficulty it presented for him, and requested an adjournment. He therefore notified the judicial authorities four months in advance, giving them a reasonable opportunity to organise the timetable of hearings in order to ensure that the various rights at stake were respected.

12. By converse implication, the decision in S.H. and H.V. v. Austria (no. 18960/91, Commission decision of 13 January 1993) seems to us to acknowledge the force of this argument. The applicants, who were practising members of the Jewish faith, criticised the refusal of an Austrian court to grant their request for a hearing in a case concerning them to be adjourned on the grounds that the date set coincided with an important Jewish holiday. The Commission found that, had the applicants, on learning of the date of the hearing, duly informed the court that it presented them with a problem for religious reasons, the court would have had to set a new date. In that case, however, the applicants had reacted too late: although they had been informed on 30 May that the hearing would take place on 4 October, they had not written to the court until 25 September in order to request an adjournment. In view of the complexity of the proceedings, which involved a large number of persons, and the fact that the request had been made at short notice, the Commission held that the court’s decision had not been unreasonable.

13. Next, it has not been demonstrated in the instant case that the applicant’s request, had it been granted, would have caused such a degree of disruption to the functioning of the public judicial service. This is what we might refer to as the public-service disturbance test. The reasonable-time requirement relied on by the Italian judge in refusing the applicant’s request is undoubtedly legitimate but, in the absence of any further explanation, appears in this case to be more in the nature of an excuse. Of course, the requested adjournment might have caused some administrative inconvenience stemming, for instance, from the need to inform the parties involved of the new date for the hearing. But this seems to us to be minimal and should perhaps be seen as the small price to be paid in order to ensure respect for freedom of religion in a multicultural society [4] .

14. Lastly, it is not apparent from the case file that the hearing in question was urgent, as it did not relate to a detention measure or to persons in detention. Had that been the case it would have been for the applicant to make some concessions, for instance by arranging to be replaced at the hearing.

15. In these circumstances, and given that the authorities have furnished no evidence that they took the reasonable steps required to ensure respect for the applicant’s right to freedom of religion under Article 9 of the Convention, we are of the view that there has been a violation of that provision.

[1] . See Bayatyan v. Armenia [GC], no. 23459/03, § 118, ECHR 2011. See also, among other authorities, Kokkinakis v. Greece , 25 May 1993, § 31, Series A no. 260-A, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I.

[2] . S. V an D rooghenbroeck, La Proportionnalité dans le droit de la Convention européenne des droits de l’homme. Prendre l’idée simple au sérieux , Brussels, Bruylant, Publications des Facultés universitaires Saint-Louis, 2001, pp. 190-219.

[3] . E. B ribosia, J. R ingelheim and I. R orive, “Aménager la diversité: le droit de l’égalité face à la pluralité religieuse”, Revue trimestrielle des droits de l’homme, 2009, pp. 319 et seq.

[4] . Ibid., p. 342.