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International standards I3b


FREEDOM OF RELIGION OR BELIEF

b) Places of worship

1981 Declaration of the General Assembly

Art. 6 (a) : The right to freedom of thought, conscience, religion or belief includes the freedom, "To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;".

Human Rights Council resolution 6/37

9 (e): The Human Rights Council urges States, "To exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights and humanitarian law, to ensure that religious places, sites, shrines and symbols are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction;".

9 (g): The Human Rights Council urges States, "To ensure, in particular, the right of all persons to worship or assemble in connection with a religion or belief and to establish and maintain places for these purposes [...];".

Human Rights Committee general comment 22

Para . 4 : "The concept of worship extends to [.] the building of places of worship."

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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

E/CN.4/1997/91/Add.1, para. 93 (country visit to India):

"93. The Special Rapporteur also considers that places of worship should be used exclusively for religious, and not political, purposes. As places for prayer and meditation, they should be protected against tension and partisan struggle. The State should therefore ensure that places of worship remain neutral ground and are sheltered from political currents and ideological and partisan controversy. In this connection the Special Rapporteur urges that the dispute concerning Ayodhya should be settled on terms acceptable to the Muslim and Hindu communities. Although the Babri Masjid case can be partially settled by legal means, it must be approached with an exceptional degree of caution and an equally exceptional degree of wisdom. Calling into question situations and rights that are rooted in the distant past is likely to open the door to a sequence of events which could have unforeseeable consequences and in particular lead, through acts of violence performed in the name of an extremist conception of religion, to disorders in various parts of India, the news of which, as it spreads internationally and, more especially, throughout the region, may affect peace and security within the region. The most logical solution would seem to be to restore these places of worship as they were before the riots occurred - unless the religious communities concerned decide to effect a symbolic exchange as a means of cooling passions and reducing tensions. The authorities must remain on the watch to prevent the recurrence of such traumatic incidents, which are sources of division and hate between communities. It is important that the Indian authorities should be fully aware that the dangers in this area are not purely theoretical."

A/55/280/Add.1, para. 160 (country visit to Turkey):

"160. The following recommendations are made to the Turkish authorities with respect to the Christian, Greek Orthodox and Armenian minorities: [.] (d) The Government should guarantee minorities the right to establish and maintain their own places of worship, and should allow them to build such facilities in places where new communities have taken root. Any limitations in this respect, for example urban development regulations, should be consistent with international jurisprudence (see General Comment of the Human Rights Committee), and this means that any non-conforming regulations should be repealed or revised."

A/56/253, paras. 27-28:

"27 [.] The Bamayan statues were destroyed. During this Year of Dialogue among Civilizations, the international community should react strongly and take steps to effectively protect religious sites and monuments, including those which are part of the cultural heritage of mankind. The Special Rapporteur notes with satisfaction that on 31 May 2001, the General Assembly adopted resolution 55/254 on the protection of religious sites, in which it condemns all acts or threats of violence, destruction, damage or endangerment, directed against religious sites as such; calls upon all States to adopt adequate measures aimed at preventing such acts or threats of violence, and invites relevant intergovernmental and non-governmental organizations to contribute to those efforts by developing appropriate initiatives in this field; encourages all States, relevant intergovernmental and non-governmental organizations and the media to promote, inter alia, through education, a culture of tolerance and respect for the diversity of religions and for religious sites, which represent an important aspect of the collective heritage of mankind.

28. The Special Rapporteur draws attention to Commission on Human Rights resolution 2001/42, entitled "Elimination of all forms of religious intolerance", in which the Commission requests States to exert utmost efforts, in accordance with their national legislation and in conformity with international human rights standards, to ensure that religious places, sites and shrines are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction."

E/CN.4/2002/73/Add.1, paras. 112-113 and 150 (country visit to Argentina):

"C. Situation of indigenous peoples [.]

112. The principal problem regarding freedom of religion and freedom to manifest one's religion or belief relates to the question of land. Land is the sine qua non for the maintenance and development of an indigenous identity. A Mapuche tenet holds that "the land does not belong to the Mapuche, the Mapuche belongs to the land". The land, the source of identity, thus has a religious dimension and meaning for indigenous peoples. It constitutes the matrix for their beliefs and a support for the manifestation of those beliefs.

113. The claims of the indigenous communities regarding the restitution of property thus implicitly embody a religious dimension, namely, access to sacred sites and to graves. The situation varies widely in practice: some provinces have granted definitive community property title to land, others have recognized indigenous lands without granting property title; disputes involving private property have led to instances of expropriation or have yet to be resolved. Serious disputes remain, particularly involving companies (for example, in Patagonia , the expropriation by multinational companies, including Benetton, of land belonging to the Mapuche community), as well as State institutions (for example, the army). In this connection INAI has been criticized for a lack of consultation with indigenous groups, the meagre results obtained and, above all, in the view of some, a paternalistic approach to indigenous issues. [...]

150. [...] The process of returning land to indigenous people, as the touchstone of their identity, is thus a precondition for providing access to holy sites and burial grounds and hence for legitimate religious or spiritual activities."

E/CN.4/2004/63/Add.2, paras. 100-108 (country visit to Romania):

"100. With regard to the issue of returning religious property, the Special Rapporteur believes that this concerns situations that do not necessarily violate the right to freedom of religion or belief. The Special Rapporteur makes a distinction between, on the one hand, the actual places of worship and the religious items used in acts of worship and, on the other, other property that belonged to religious communities. The Special Rapporteur notes that most of the confiscated property in the latter category was in one way or another in the possession of the State, whereas the places of worship and associated items had mostly been handed over to the Orthodox Church.

101. The Special Rapporteur notes that it has taken a very long time to return the religious property that was confiscated during communist rule and then entered the possession of the State - this concerns most of the religions in Romania - and that most of the property in this category had not yet been returned at the time of the Special Rapporteur's visit. Consequently, while stressing that the failure to return property or the length of time taken to return it is not, at least for property in this category, necessarily a violation of the right to freedom of religion or belief of the members of the communities concerned, the Special Rapporteur requests the authorities to significantly speed up the process of returning property and to complete it as soon as possible.

102. With regard to the places of worship and the items used in acts of worship that were handed over to the Orthodox Church, the Special Rapporteur notes that this mainly concerns churches that had previously belonged to the Greek Catholic Church. The authorities expressly told the Special Rapporteur that they did not wish to become involved in the process of dispute settlement in these cases and that they preferred solutions to be found through dialogue between the two churches concerned. The regulations that have been adopted in this respect reflect the authorities' position.

103. In this connection, the Special Rapporteur takes note in particular of the comments by representatives of the Orthodox Church to the effect that, in the Orthodox tradition, churches are places of worship that belong to the community of believers who use them, not to the Church authorities. This form of ownership demonstrates how the link between the actual places of worship and the right to freedom of religion or belief is far closer than the link between this right and other types of property belonging to religious communities. The Special Rapporteur is of the opinion that, in certain circumstances, the closeness of this link shows how the deprivation of the right to attend a place of worship may constitute a violation of the right to freedom of religion or belief.

104. International obligations in respect of freedom of religion or belief are primarily obligations incumbent upon the State, not upon religious communities of any kind. Consequently, in cases where members of the community are prevented from using a place of worship that belongs to them, this thereby constituting a violation of their right to freedom of religion or belief, the State cannot abdicate its responsibilities in favour of a process involving an amicable settlement between the two parties concerned. International law requires it to take positive steps to put an end to any situation in which the freedom of religion or belief is violated.

105. From this viewpoint, the Special Rapporteur requests the Romanian Government to end its policy of refusing to become involved in the complex process of returning religious property to the Greek Catholic Church and encourages it to take practical steps to rectify situations that constitute violations of the right to freedom of religion or belief. In this respect, he stresses that the sooner the questions of restitution are settled, the sooner the inter-faith dialogue, which has suffered greatly because of them, can be resumed between the Orthodox Church and the Greek Catholic Church.

106. As for the court cases brought by the Greek Catholic community, the Special Rapporteur is concerned by the attempts to dissuade this community from resorting to this procedure for settling disputes over real estate and by the position of certain authorities that reject court cases in such disputes. The Special Rapporteur believes that an appeal to an independent judiciary is, in a democratic State, the principal means of seeking a remedy for a human rights violation, particularly within the meaning of article 2, paragraph 3, of the International Covenant on Civil and Political Rights.

107. The Special Rapporteur is particularly concerned by reports that final decisions of the courts to grant restitution could not be implemented because of obstacles raised by the Orthodox Church, sometimes with the cooperation of the local authorities. Such actions are flagrant obstacles to the normal exercise of justice and to the independence of the judiciary and may amount to a serious failure by the Government to comply with its international obligation to provide effective remedies for the victims of human rights violations. The Special Rapporteur requests the Government to take appropriate measures to ensure the implementation of the final decisions of the courts in such matters, as well as future decisions on questions of restitution.

108. The Special Rapporteur also points out that international human rights law in matters of freedom of religion or belief, and particularly article 18 of the International Covenant on Civil and Political Rights, implies that the State has positive obligations, in cases where religious minorities are the victims of acts of intolerance or religious violence, including when these acts are perpetrated by non-State individuals or groups, to take the necessary steps to ensure that religious minorities can exercise their right to freedom of religion or belief in complete safety."

E/CN.4/2005/61, paras. 48-52:

"D. Places of worship and other religious buildings or properties

48. During the period under review, an important number of communications related to situations or cases where either a place of worship or a religious building or property had been attacked or otherwise subjected to other forms of restriction. States to which such a communication has been transmitted are disparate and no region is spared this form of human rights violation. Moreover, the Special Rapporteur notes that in addition to places of worship, different types of buildings or properties that have more than a material signification for the religious community that is attached to it, such as cemeteries, monasteries or community headquarters, have been targeted. Finally, while attacks on such places have usually been committed by non-State actors, other forms of harm or restrictions were usually committed or imposed by State authorities.

49. Regarding, in particular, attacks on places of worship, the Special Rapporteur wishes to point out that in addition to the special protection that is granted to religious places, sites and shrines by resolution 2004/36, members of religious communities or communities of belief, whenever they find themselves in places of worship, are in a situation of special vulnerability given the nature of their activity. The Special Rapporteur is therefore of the opinion that States should pay increased attention to attacks on places of worship and ensure that all perpetrators of such attacks are properly prosecuted and tried.

50. More generally, as mentioned, inter alia, in paragraph 4 of the Human Rights Committee's general comment No. 22,4 the Special Rapporteur insists that places of worship are an essential element of the manifestation of the right to freedom of religion or belief to the extent that the great majority of religious communities or communities of belief need the existence of a place of worship where their members can manifest their faith.

51. Moreover, unlike other forms of violations of the right to freedom of religion or belief, attacks or other forms of restriction on places of worship or other religious sites and shrines in many cases violate the right not only of a single individual, but the rights of a group of individuals forming the community that is attached to the place in question.

52. Finally, the Special Rapporteur draws attention to article 53 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and article 16 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), which protect places of worship in times of armed conflict."

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