Individual and Group Religious Freedom in the European Court of Human Rights: Cracks in the Intellectual Architecture

Abstract

The Evolution of Religious Freedom in the European Court of Human RightsArticle 9 of the European Convention on Human Rights, which protects religious freedom, looked for many decades as though it was going to be effectively a dead letter. The European Court of Human Rights (“the Court”) did not find a violation of Article 9 until the case of Kokkinakis v. Greece which was decided only seventeen years ago, in 1993. Even after that seminal decision, religious freedom cases were still relatively rare for several years; in 2001, there had been fewer than thirty Court cases on Article 9. However, in the last decade the case law has expanded significantly; and from 2001 to 2010 there have been more than sixty additional cases. Thus, in a relatively short period, the Court has been pushed to develop a jurisprudence of religious freedom to deal with increasingly complex and controversial cases. As the case law has multiplied and the issues have diversified, however, it has become clear that the Court has not yet developed a sufficiently coherent and principled approach to this area. So far, its approach has proved of very limited utility to individuals making claims of religious freedom.This is not to suggest that the Court has played no role in the protection of religious freedom in Europe. Indeed, in recent years, it has arguably played an increasingly positive role, particularly in cases involving group religious rights. However, this jurisprudence has not translated into greater protection for religious individuals in many instances.