The "Hosts' Case" at the ECHR

The European Court of Human Rights (ECHR) has granted leave to the European Centre for Law and Justice (ECLJ) to intervene in the case of Asociación de Abogados Cristianos v. Spain (No. 22604/18), on behalf of the Spanish Bishops' Conference. The ECLJ filed its written observations on 30 June 2020. This case, dubbed the "Hosts’ case", involves the most extreme sacrilege ever brought before the judges in Strasbourg.

The Facts

The Spanish State is sued by a Christian association for supporting an artistic performance attacking Catholics. This performance of process art consists of several parts:

• the theft of 242 consecrated hosts by the performer during masses in several parishes of the archdiocese of Pamplona and Tudela (Spain);
• the placing of these hosts on the ground in order to write the word "pederastia", under the pretext of denouncing the paedophilia of priests;
• photographs of the performer posing naked next to the hosts, with black wings on his back, in reference to a demon;
• the exhibition of 12 of the consecrated hosts and of the photographs, in several cities and on several occasions; in particular, in Pamplona, the exhibition was entitled “Amen” and took place in a desacralized church, including on its altar (20/11/2015 - 17/01/2016); this former church is now the largest exhibition hall in the city of Pamplona and was made available to the performer free of charge by the municipality ;
• the dissemination on the performer's website and Twitter account of photographs of bishops, priests and believers, offended by the exhibition, accompanied by mocking and hostile comments;
• the theft of additional consecrated hosts by admirers of the performer during masses, with the performer's support;
• the sale for 285,000 euros of the photos, which are still being used for various exhibitions in Spain.

The procedure in Spain

The Archdiocese of Pamplona and Tudela and the Asociación de Abogados Cristianos have both lodged complaints against the exhibition. The Spanish courts rejected these complaints.

The complaint filed by the Asociación de Abogados Cristianos was rejected by the Pamplona Court on 18 November 2016. The appeal against this judgement before the Provincial Court of Navarra was also rejected by a decision of 28 April 2017. The association appealed again to the Constitutional Court of Spain, which ruled on 7 November 2017 that the appeal was inadmissible.

The parties to the ECHR

The Asociación de Abogados Cristianos filed an application against Spain before the ECHR on 26 April 2018. The applicant association alleges infringement of the right to freedom of religion, protected by Article 9 of the European Convention on Human Rights.

Two parties are therefore opposing each other today before the European judges:

• Spain, whose current government (Sánchez II) is the result of a coalition between the Socialist Party and Unidas Podemos. This case will be judged in a context of dechristianisation of the country by the government: taking back from the Catholic Church some of its places of worship, removal of the obligation for schools to offer Catholic religious education, demolition of crosses in public spaces, change of street names that refer to persons or religious beliefs, illegitimate interruptions of public masses... [Read observations of the Spanish Government]
• The Asociación de Abogados Cristianos, which acts on all these issues in court, in order to oppose acts of anti-Christian hostility on the part of Spanish public institutions [Read Applicants comments].

The ECLJ has raised awareness of several European organisations on this case, some of which have decided to ask the Court to intervene as amicus curiae. Rarely have eight third party interveners been allowed by the Court to file written observations:

• the Government of the Republic of Poland [Read observations of the Polish Government];
• the European Centre for Law and Justice (ECLJ) and the Spanish Episcopal Conference, jointly [Read our observations];
• the Slovak Bishops' Conference [Read observations of the Slovak bishops];
• the Ordo Iuris Institute for Legal Culture (Poland) [Read observations of Ordo Iuris]; 
• the Unione giuristi cattolici italiani (Italy) [Read observations of UGCI];
• the Observatory on Intolerance and Discrimination against Christian in Europe [Read observations of OIDCE];
• l'Observatoire de la Christianophobie (France) [Read observations of Observatoire de la Christianophobie];
• l'Observatorio para la libertad religiosa y de conciencia (Spain) [Read observations of Spanish Observatory].

The arguments of the ECLJ

In its observations, the ECLJ demonstrated that the right to freedom of religion has been violated by the Spanish State, which has not honoured its positive and negative obligations under Article 9 of the European Convention.

1. A violation of the State's positive obligations under article 9

The State has a positive obligation to ensure "the peaceful enjoyment of the right guaranteed under Article 9 "[1].  To this end, the Court has already held that "as a matter of principle it may be considered necessary to punish improper attacks on objects of religious veneration ". 2] Indeed, "the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State". [3] However, the domestic courts have chosen not to sanction the artistic performance in question. This choice is questionable for several reasons:

• A sanction was provided for by provisions of the Spanish Criminal Code punishing offence to religious feelings and public denigration of dogmas, beliefs, rites and ceremonies [4]. Spanish law was therefore not applied.
• The attack was particularly extreme because of the importance of the Eucharist in the Catholic faith, the massive nature of the desecration, the staging in an old church, and the ridiculing of believers.
• The approach of the performer was deliberately and gratuitously offensive to believers, without any contribution to a debate of general interest. The performer thus failed to respect the "duties and responsibilities" inseparable from the right to freedom of expression (Article 10 of the European Convention).
• The performer's actions led to further desecrations and numerous anti-Christian messages, thus fuelling social hostility against Catholics.
• The performer could have chosen a less hurtful artistic expression, while achieving the same result, for example by using unconsecrated hosts or by not targeting individual believers.

The ECLJ also recalled in its observations the norms of international law in the light of which the ECHR interprets human rights. In particular, the 1966 International Covenant on Civil and Political Rights obliges states to prohibit by law "any advocacy of […] religious hatred that constitutes incitement to discrimination, hostility or violence. " (art. 20). Moreover, the United Nations has already repeatedly condemned "Christianophobia", alongside "anti-Semitism" and "Islamophobia"[5]. 5] On the other hand, while the ECHR has already condemned "antisemitism" and "Islamophobia" in its jurisprudence, it has never used a similar classification for anti-Christian acts. This case could provide an opportunity to do so. 

By failing to sanction the performer, the Spanish state has thus violated its positive obligation to protect the right to freedom of religion of Catholics. This protection requires at the very least a prohibition of hate speech against them.

1. A breach of the State's negative obligations under article 9

The State also has a negative obligation not to interfere arbitrarily with the right to freedom of religion of believers [6]. Any interference by a public authority must be provided for by law, have a legitimate aim, and be necessary to achieve that aim (Art. 9 § 2 of the European Convention). Furthermore, the State must respect, in religious matters, a role of "neutral and impartial organiser of the exercise of various religions, cults and beliefs"[7]. 7] This "duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed;”[8] These limitations on State action also apply to any public authority.

There is no doubt that the Spanish public authorities have exceeded their role in this case. In particular:

• The city council of Pamplona has given strong support to the "Amen" exhibition, making the largest exhibition space in the city available to the performer free of charge. The city council also decided that access to the exhibition would be free for all visitors. It financed the costs of the exhibition (printing of photographs, mounting of the exhibition, production costs for materials such as frames, soil and printing of texts) as well as the organisational costs (curator, guards).
• The choice of location by the municipality contributed to the seriousness of the attack on the Christians. Indeed, the exhibition took place in the Monumento de los caidos, a former church that the performer used for a staging that aggravated his sacrilege. The Archdiocese of Pamplona and Tudela had donated this church to the city in 1997, with the condition that it would be used for cultural purposes. By making the church available to the performer, the city of Pamplona allowed him to have a place with a sacred dimension, which he used both for the promotion of the exhibition (photos of sacred paintings) and for the exhibition itself (use of the altar).
• The municipality of Pamplona promoted the exhibition. In particular, it covered all the costs, although it was not the municipality but the artist himself who benefited from the sale of photos after the exhibition (285,000 euros). The promotion of the exhibition by the municipality was carried out by means of media promoting a "political and subversive" performance, without any mention of any other objective (such as the legitimate objective of denouncing paedophilia).
• Judge Fermin Otamendi of the Pamplona Court defined the consecrated hosts according to his personal convictions and his contempt for Christianity. According to him, the hosts, whether consecrated or not, are "small, round, white objects" that the performer would have treated "confidentially, without being able to describe his behaviour as disrespectful, offensive or irreverent". The Pamplona court violated its obligations of neutrality by basing its judgment on his own religious (un)belief.

These interferences by Spanish public authorities with the right to freedom of religion of Catholics were clearly not provided for by law and had no legitimate objective. They justified and amplified the performer's gratuitous offence against Catholics. They also generated additional offences, which would not otherwise have taken place, without respect for their duty of neutrality and impartiality.  

Conclusion

For all these reasons, the ECLJ considers that Spain has violated its obligations under the Convention. If the Court were to not sanction Spain, then Christians would be deprived of protection and all symbolic attacks against them would be made possible.

N.B.: The ECLJ has already intervened in many cases concerning freedom of expression in religious matters, consistently defending a balanced position. The ECLJ is committed to reason-based debate, whether political or scientific, and to the freedom to criticize religions. On the other hand, blasphemy and vulgarity should not be considered a human right. There is no right to blasphemy, but a right to freedom of expression that carries with it responsibilities and limits. Only the dissemination of gratuitously offensive obscenities and speech inciting immediate violence should be restricted. It should be possible for obscenity and incitement to violence to be censored, but not for criticism.

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[1] Otto-Preminger-Institut v. Austria, no. 13470/87, 20 September 1994, § 47.

[2] I.A v. Turkey, no. 42571/98, 13 September 2005, § 24.

[3] Otto-Preminger, op. cit., § 47.

[4] Articles 524 and 525 of the Spanish Criminal Code.

[5] See for example: United Nations, General Assembly, Resolution No. 72/177, "Freedom of religion or belief", 19 December 2017, § 4.

[6] See, for example, Hasan and Chaushv. Bulgaria [GC], no. 30985/96, 26 October 2000, § 62.

[7] S.A.S. v. France [GC], no. 43835/11, 1 July 2014, § 127. See also: Manoussakis and Others v. Greece, no. 18748/91, 26 September 1996, § 47; Hassan [GC], op. cit. § 78; Refah Partisi (Prosperity Party) and others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003, § 91.

[8] Ibid.