Abstract
The manifestation of religious beliefs under Article 9 of the European Convention on Human Rights is not absolute but may be subject to prescribed limitations. This article discusses the nature and extent of those limitations, as interpreted in the case law of the European Court of Human Rights from its decision in Kokkinakis v. Greece up to the present. It contrasts the prescriptive text of the Article with its loose and inconsistent interpretation by the Court in Strasbourg. Particular attention is given to the criteria of ‘prescribed by law’, ‘necessary in a democratic society’, ‘public safety’, ‘public order, health or morals’ and ‘the rights and freedoms of others’. This article seeks to extract clear principles from the contradictory and confusing jurisprudence, particularly at its intersection with the Court’s illusory doctrine of margin of appreciation.
Highlights
In common with most qualified rights contained in the European Convention on Human Rights, the first part of Article 9 sets out the content of the right while the second part specifies the grounds on which the right may lawfully be limited: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.2
Particular attention is given to the criteria of ‘prescribed by law’, ‘necessary in a democratic society’, ‘public safety’, ‘public order, health or morals’ and ‘the rights and freedoms of others’
In determining whether there has been a breach of Article 9, the Court has developed a methodology which consists of addressing, sequentially, the following questions: (i) Does the complaint fall within the scope of Article 9? (ii) Has there been any interference with Article 9 rights? (iii) Is the limitation on manifestation of religion or belief ‘prescribed by law’? (iv) Is the limitation on the manifestation of religion or belief in pursuit of a ‘legitimate aim’? (v) Is the limitation on manifestation of religion or belief ‘necessary in a democratic society’? The burden of proof in respect of questions (i) and (ii) lies on the individual applicant and only if they are both answered in the affirmative will the Court will proceed to consider the issue of justification
Summary
In common with most qualified rights contained in the European Convention on Human Rights (the Convention), the first part of Article 9 sets out the content of the right while the second part specifies the grounds on which the right may lawfully be limited: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Article 9(1) has been interpreted by the European Court of Human Rights (the Court) to contain an ‘internal’ and an ‘external’ aspect.. The ‘internal’ aspect of Article 9, the right to freedom of thought, conscience and religion, is an absolute right such that it may not be restricted.. The ‘external’ aspect of Article 9, the right to manifest a ‘religion or belief’ in ‘worship, teaching, practice and observance’, is subject to the limitations in Article 9(2).. Article 9(1) has been interpreted by the European Court of Human Rights (the Court) to contain an ‘internal’ and an ‘external’ aspect. The ‘internal’ aspect of Article 9, the right to freedom of thought, conscience and religion, is an absolute right such that it may not be restricted. In contrast, the ‘external’ aspect of Article 9, the right to manifest a ‘religion or belief’ in ‘worship, teaching, practice and observance’, is subject to the limitations in Article 9(2). This article examines the approach of the Court to these restrictions with a particular focus on their inter-relationship with the judicial deployment of the so-called margin of appreciation
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