Sweden: Jehovah’s Witnesses Have Right to State Funding

[Guest Nicole]

(Feb. 24, 2017) On February 20, 2017, the Swedish Supreme Administrative Court decided that Jehovah’s Witnesses have the right to state funding and that not providing such support would violate articles 14 and 19 of the European Convention on Human Rights. (Case No. 2310-16, Högsta förvaltningsdomstolen [Swedish Supreme Administrative Court], Feb. 20, 2017, HÖGSTA FÖRVALTNINGSDOMSTOLEN [SUPREME COURT REPORTER) (HFD).)

Background

Under Swedish law, the government provides state funding to faith-based organizations (trossamfund), provided that they contribute to “upholding and strengthening the fundamental values upon which the [Swedish] society rests.” (3 § 1 Lagen om Stöd Till Trossamfund [Act on Support to Faith-Based Organizations (the Act), Svensk författningssamling [SFS] 1999:932, NOTISUM.)

The Swedish government has refused to grant money to Jehovah’s Witnesses because of the group’s stance against blood transfusions for minors, which the government considers a risk to “individual children’s life and health.” (HFD at 7.)  This in turn violates the requirement in the Act that the organization must contribute to upholding and strengthen the fundamental values of Swedish society.  (HFD at 7.)  According to the Act’s legislative history, “upholding fundamental principles of [the Swedish] society includes operating with respect for all peoples’ equal value and contributing to developing norms in society that are compatible with that of democracy … .  The organization should also work to develop the conditions for equality between women and men.”  (HFD at 8.)

The Court’s Ruling

The Court noted that religious freedom is internationally protected and that any limitation must be a based on “serious and compelling reasons,” as prescribed in the European Convention on Human Rights. (HFD at 10.)  The European Court of Justice has identified some limitations on religious freedom that do not violate the European Convention on Human Rights, such as prohibitions against “polygamy, child marriages, flagrant crimes against the equality between the sexes and acts forced upon members of a religious organization against their will.”  (HFD at 11; Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4,1950, as amended), European Court of Human Rights website.)

The Court found that there is a presumption in Swedish case law (established in HFD 2011 ref 10) that all applicant organizations subscribe to the fundamental values of Sweden. (HFD at 10-11.)  Thus, the burden of proof rests with the government to prove that the organization in question does not support these values.  (Id.)

The Court observed that Swedish law has long recognized that a patient has an unrestricted right to refrain from medical treatment. (HFD at 12.)  By statute, “healthcare as a rule cannot be provided without the consent of the patient.”  (Id.; 4 ch. 2 § Patientlagen SFS 2014:821.)  Therefore, the Court argued, a personal choice not to accept blood transfusions would not violate the fundamental values of Swedish society; rather, that choice is part of the fundamental value that medical decisions belong to the patient.  (HFD at 12.) Moreover, parents have the right to object to certain treatments on behalf of their children.  (HFD at 13.)  The Court further observed that  Swedish law provides for a system whereby the state can take over the health responsibility of a child (by means of compulsory care under the law on forced treatment of youths) from the parents, and Jehovah’s Witnesses encourage parents, if this happens, to cooperate with the state.  It therefore concluded that Jehovah’s Witnesses’ position against blood transfusions for minors does not violate fundamental Swedish principles.  (HFD at 13; Lag med Särskilda Bestämmelser om Vård av Unga [Act on Special Provisions on Care of Youths [LVU] (SFS 1990:52), LAGEN.NU.)

One judge dissented and argued that the fact that children belonging to Jehovah’s Witnesses have been subject to “compulsory care” by the state for medical reasons demonstrates that Jehovah’s Witnesses do not subscribe to the fundamental principles required to receive state funding.  (HFD at 17.)

Aftermath of the Court Decision

The ruling sends the application back to the government, which will have to make a new decision consistent with the verdict. (HFD at 13-14.) If there are no reasons other than the practice of refusing children’s blood transfusions to deny the Jehovah’s Witnesses’ application for funding, the application should be granted.  (HFD at 13-14.)

Religious organizations may soon see another set of rules apply, however, as the Swedish government is researching a new law on state funding of faith-based organizations; a report is expected to be issued in March 2018.  (Översyn av statens stöd till trossamfund [Review of State Funding for Religious Organizations], REGERINGSKANSLIET (June 30, 2016).) Among the reasons for the review is to evaluate whether the government should withdraw funding when it is discovered that the faith-based organization receiving the grant has developed in a non-democratic direction. (Kommittédirektiv (Dir. 2016:62), Översyn av statens stöd till trossamfund, KULTURDEPARTEMENTET (June 30, 2016), at 3.) Moreover, the committee reviewing the state-funding program has been asked by the Department of Culture to look at ways to make the law more religiously neutral by using language other than “ceremony and service” ( gudstjänst).  (Id. at 6.)  The committee was also directed to propose language that would permit the recovery of funds that have been used to fund non-democratic ideas.  (Id.)

Several Members of the Swedish Parliament (Sveriges Riskdag), representing five out of seven political groups, have previously voiced similar concerns and objected to the funding of religious organizations that promote gender inequality and discrimination against sexual minorities.  (Fel att skattepengar går till hederskultur [Wrong that Tax Funds Honor Cultures], AFTONBLADET (Feb. 25, 2016).)

Author: Elin Hofverberg

Topic: Discrimination, Freedom of religion, Religious minorities

Jurisdiction: Sweden

Date: February 24, 2017

http://www.loc.gov/law/foreign-news/article/sweden-jehovahs-witnesses-have-right-to-state-funding/