Proselytism and the Right to Change Religion: The Romanian Debate

Chapter 20
Proselytism and the Right to Change Religion: The Romanian Debate

Nicolae Dură


Romanian law defines religious freedom as ‘the right of each person to belong to a specific religion or to adopt one, to express this either individually or in groups, in public or privately, through specific customs and rituals, including religious education, as well as the freedom to maintain or change religious faith’ (art. 2, para. 1 of the Law 489/28 December 2006 regarding religious freedom and the general regime of the cults).1

Obviously, in defining the contents of the term ‘religious freedom’ the Romanian legislator reproduced almost entirely the text of certain international and European treaties and agreements to which Romania is a signatory. We can mention here the text of art. 18 of the Universal Declaration of Human Rights (UDHR), which explicitly underlines the freedom ‘of each person’ to ‘change his religion’; art. 18 of the International Covenant on Civil and Political Rights (ICCPR); and art. 9 of the European Convention on Human Rights (ECHR).

Although each person’s right to change religious affiliation is explicitly mentioned in the UDHR, there is no mention of the so-called right or freedom of religious proselytizing. Moreover this term is not included in any international or European conventions regarding fundamental human rights and liberties. Since proselytizing, on the one hand, and the right of each person to change religious affiliation, on the other hand, can only be understood through the analysing of religious freedom and how it is enforced by international and European conventions, this chapter will first consider the relevant texts. It will then analyse the text of legislative documents and regulations in Romanian law allowing each person to freely express in public his/her religious belonging or ability to change religion, as a result of international and European laws governing fundamental human rights and liberties.2

International and European Provisions Regarding the Right to Religious Freedom

According to the provisions of the foundational law of Romania, ‘the constitutional provisions relating to citizens’ rights and freedoms shall be interpreted and applied in accordance with the UDHR, the Covenants and other treaties to which Romania is a party’ (art. 20, para. 1 of the Constitution of Romania). The same foundational law stipulates that when ‘inconsistency exists between the Covenants and Treaties on fundamental human rights to which Romania is a party, and national law, the international regulations shall prevail except where the Constitution or domestic laws comprise more favourable provisions’ (art. 20, para. 2). This means that the Constitution of Romania provides that international human rights law has priority over national law. This provision should regard those regulations included in ‘the treaties ratified by Romania: once considered that no discrepancy, contradiction, conflict, and disagreement appears between international regulations and the national ones’.3 As for the sentence ‘except where the Constitution or domestic laws comprise more favourable provisions’ in art. 20, para. 2, the Romanian Constituent Assembly mentions that this is ‘in accordance with the spirit and the letter of the main international legal instruments in the field of human rights’.4

The UDHR – adopted by the United Nations General Assembly through Resolution 217A (III)/10 December 1948 – stipulates that ‘everyone has the right to freedom of … religion’ and ‘this right includes the freedom to change religion or belief, as well as the freedom, either alone or in community with others and in public or in private, to manifest religion or belief in teaching, practice, worship and observance’ (art. 18). Thus, freedom of religion involves each person’s freedom to change religion and belief and, ipso facto, to manifest this religion either alone or in community with others in public or in private. The basic tenet of the UDHR is also contained in the ICCPR (cf. art. 18). The same UDHR provides that ‘everyone has the right to the freedom of peaceful assembly and association. No one may be compelled to belong to an association’ (art. 20). Based on this article, each person has the right to belong to an association, including, therefore, a religious one.

The ICCPR – adopted by the UN General Assembly on 16 December 1966, brought into force on the 23 March 1976, and ratified by Romania on 9 December 1974 – includes a number of provisions regarding freedom of religion. For example, art. 4, para. 1, stipulates that ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant’, provided that such measures ‘do not involve discrimination solely on the ground of … religion’. Thus the right of derogation (which all parties to the ICCPR can invoke) does not permit any discrimination with regard to religious belief.

The ICCPR provides that ‘no one shall be subject to coercion which would impair one’s freedom to have or to adopt a religion’ (art. 18, para. 2), and ‘freedom to manifest one’s religion … 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’ (art. 18, para. 3). In principle, the freedom to manifest religious beliefs can only be restricted or limited by exceptional needs provided for by law, i.e., national security, public order and public health; but freedom of religion can be limited even to protect ‘public morality’ (cf. art. 18, para. 3) and the fundamental rights and liberties of other persons.

At the same time, the ICCPR obliges parties to respect ‘the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’ (art. 18, para. 4). Clearly, the text mentions ‘the religious and moral education of the children’ in accordance with the religious convictions of the parents and legal guardians. But this freedom granted to the parents and legal guardians is maintained and respected as well when they change religion. Therefore, art. 20, para. 2 of the ICCPR should be understood on the same basis: ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.

The text of the ICCPR provides that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’. In other words, the ICCPR explicitly forbids any discrimination on the grounds ‘of religion’ and also mentions that ‘religious minorities’ shall not be denied ‘the right … to profess and practice their own religion’ (art. 27). The right to legal protection regarding religious freedom directly involves the equal status clause, i.e., no discrimination of any kind (ethnic, racial, language, religious, etc.) is permitted. At the same time, the freedom of religious manifestation can only be subjected to the restrictions provided by the ICCPR, which contains the right of religious freedom. Even if the ICCPR does not mention expressis verbis this right and only presumes it, the European Convention on Human Rights – adopted in Rome on 4 November 1950, brought into force in September 1953 and ratified by Romania in 1994 – explicitly mentions that ‘each person’ has ‘the right’ to ‘religious freedom’ and affirms that ‘this right includes the freedom to change religion … either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance’ (art. 9, para. 1).

Finally, it should be noted that, according to the Convention on Education, adopted at the General Conference of the UN Educational, Scientific and Cultural Organization, on 14 December 1960 – ratified by Romania on 20 April 1964 – ‘the establishment or maintenance, out of religious or linguistic reasons, of separate educational systems or institutions offering an education in accordance with parents’ or legal guardians’ choice’ (art. 2b), shall not be considered as discrimination. The same Convention provides for parents’ liberty to ensure ‘the religious and moral education of their children in conformity with their own convictions’, and also that no person or group of persons should be compelled to receive religious instruction inconsistent with their convictions (art. 5b, pt. 2).

Romanian Laws that Provide the Right to Freedom of Religion

The present-day foundational law of Romania – the revised Constitution enforced in 2003 – provides that ‘Romania is the common and indivisible homeland of all citizens, without any discrimination on account of race, nationality, ethnic origin, language, religion’ (art. 4, para. 2). Thus, in Romania any discrimination on account of religion is forbidden. At the same time, art. 16 of the Constitution explicitly provides that ‘citizens are equal before the law and public authorities, without any privilege or discrimination’ (art. 16, para. 1).

In Romania, in order to prevent and punish all forms of discrimination, including religious ones, a number of norms have been enacted, based on the Constitution. For example, based on the Constitution approved by referendum on 8 December 1991, Government Ordinance n. 137/2000 regarding the prevention and punishment of all forms of discrimination5 has been enacted, as well as the Ordinance, approved with amendments by the Law n. 48/20026 and the Government Decision n. 1194/2001 regarding the organization and functioning of the National Council for Fighting against Discrimination.7