Procedural Fairness as a Vehicle for Inclusion in the Freedom of Religion Jurisprudence of the Strasbourg Court

Abstract

The increasing religious diversity in western Europe poses challenges for courts, including the European Court of Human Rights (‘the Court’), whose jurisprudence on the right to freedom of religion has been widely criticized for being too restrictive, unprotective and non-inclusive. This criticism mainly refers to the substantive aspect of the Court’s case law. Indeed when dealing with the question how the religious diversity can be best dealt with from a human rights perspective, the first focus of the Court should relate to the substantive inclusion of this diversity. However, in a diversity context it is inherently impossible to substantively accommodate all religious claims and needs. Building on the social psychology notion of procedural fairness, this article will show how, despite the impossibility of always providing applicants with favourable in- clusive outcomes in their case, the Court can, and should always, ensure that it communicates inclusion at a procedural level. It does so through an in-depth analysis of the Court’s Article 9 case law delivered from 1999 until today.