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8 - An Alternative Approach to ECHR Article 9 and the Related ECtHR Jurisprudence

from Part III - reappraising the understanding of the right to freedom of thought, conscience and religion in echr article 9

Published online by Cambridge University Press:  02 December 2023

Caroline K. Roberts
Affiliation:
Oxford Brookes University
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Summary

Part III draws together the central threads in the preceding chapters and takes the analysis a step further. Chapter 8 draws particular attention to the importance of context in ECtHR jurisprudence relating to ECHR Article 9, contending that in taking different approaches and reaching different outcomes in ostensibly similar Article 9 cases, the ECtHR is not necessarily being inconsistent. Rather, its approach can be explained by recognising the significance of the facts; the facts help the ECtHR identify what is at stake in a particular case and respond accordingly. In developing this, this chapter explores the importance placed on contextual differences between, and within, Member States by the ECtHR in Article 9 cases, and refers to the major role of the facts in cases concerning other ECHR Articles. Finally, it explores some of the broader cultural, social and political factors the ECtHR may legitimately take into account in Article 9 assessments, and considers the impact of the increased focus on the local context in declarations on reform of the ECHR system on the ECtHR.

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Publisher: Cambridge University Press
Print publication year: 2023

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