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The ‘Precious Asset’: Freedom of Religion Under the European Convention on Human Rights

Published online by Cambridge University Press:  16 April 2012

Nicolas Bratza
Nicolas Bratza
Affiliation:
President, European Court of Human Rights
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Abstract

The European Court of Human Rights has stated that Article 9 of the European Convention on Human Rights in its religious dimension is not only one of the most vital elements that go to make up the identity of believers and their conception of life but also a precious asset for atheists, agnostics, sceptics and the unconcerned. In the past 20 years, the Court has been called upon to address the scope and content of the Article in a variety of key cases, involving matters as diverse as proselytism, the grant and refusal of registration of religious bodies, the refusal of authorisations for places of worship and prohibitions on the wearing of religious dress or symbols in public places. The Court's case law has not been without its critics, some complaining that the Court has interpreted Article 9 too narrowly and has given too little weight to the freedom to manifest one's religion in teaching, practice and observance. Others, in contrast, have criticised what they see as the excessive weight given to religion when in conflict with other ECHR rights, notably that of freedom of expression. Still others have charged the Court with failing to interpret Article 9 in such a way as to realise its full potential by not engaging with what is meant by the word ‘religion’. This article considers some of these criticisms, and the need for the Court to strike a balance between the effective protection of individual rights and the need to respect very different constitutional traditions among the Contracting States.1

Type
Articles
Information
Ecclesiastical Law Journal , Volume 14 , Issue 2 , May 2012 , pp. 256 - 271
Copyright
Copyright © Ecclesiastical Law Society 2012

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References

1 This is the revised text of a public lecture given on 29 September 2012 at St Stephen's House, University of Oxford, at the invitation of the Ecclesiastical Law Society as part of the European Consortium for Church and State Research's Twenty-third Annual Congress. The views expressed are personal to the author and are not binding on the European Court of Human Rights. The entire proceedings of the Congress, including Sir Nicolas' address have since been published in Hill, M (ed), Religion and Discrimination Law in the European Union (Trier, 2012)Google Scholar.

2 The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Rome, 4 November 1950. The European Commission on Human Rights ceased to exist following a remodelling of the Strasbourg institutions and the creation of the newly constituted Court in 1998. For an exhaustive discussion of the operation of the Court, see Martinez-Torrón, J, ‘Religious liberty in European jurisprudence’ in Hill, M (ed), Religious Liberty and Human Rights (Cardiff, 2002)Google Scholar.

3 Kokkinakis v Greece, 25 May 1993, para 31, Series A no 260-A, (1994) 17 EHRR 397.

4 Pretty v the United Kingdom, no 2346/02, ECHR 2002–III, paras 82 and 83, (2002) 35 EHRR 1.

5 Buscarini and Others v San Marino, no 24645/94, ECHR 1999–I, Grand Chamber, (2000) 30 EHRR 208.

6 Ibid, para 39. See also Alexandridis v Greece, no 19516/06, 21 February 2008, concerning the fact that the applicant was forced to reveal whether he was Orthodox or not when taking the oath of office required to practise as a lawyer before the Athens Court of First Instance.

7 Sinan Işık v Turkey, no 21924/05, ECHR 2010. See also Wasmuth v Germany, no 12884/03, 17 February 2011.

8 Arrowsmith v the United Kingdom, no 7050/75, Commission's report of 12 October 1978, Decisions and Reports (DR) 19, p 5, (1978) 3 EHRR 218.

9 Harris, D, O'Boyle, M and Bates, E, Law of the European Convention on Human Rights (second edition, Oxford, 2009), p 433Google Scholar.

10 Leyla Şahin v Turkey, no 44774/98, ECHR 2005–XI, Grand Chamber, (2007) 44 EHRR 5.

11 Ibid, para 78.

12 Kosteski v ‘the former Yugoslav Republic of Macedonia’, no 55170/00, 13 April 2006, (2006) 45 EHRR 712.

13 See, for example, Stedman v the United Kingdom, no 29107/95, Commission decision of 9 April 1997, unreported.

14 See Konttinen v Finland, no 24949/94, Commission decision of 3 December 1996, Decisions and Reports (DR) 87-A, p 68; Karlsson v Sweden, no 12356/86, Commission decision of 8 September 1988, unreported; Knudsen v Norway, no 11045/84, Commission decision of 8 March 1985, Decisions and Reports (DR) 42, p 247. Compare Ivanova v Bulgaria, no 52435/99, 12 April 2007, (2007) 47 EHRR 1173.

15 Hasan and Chaush v Bulgaria, no 30985/96, ECHR 2000–XI, Grand Chamber, para 62, (2002) 34 EHRR 55.

16 Ibid.

17 See, in particular, ibid, paras 86 and 87.

18 See Serif v Greece, no 38178/97, ECHR 1999–IX, para 53, (1999) 31 EHRR 561. See also Agga v Greece (no 2), nos 50776/99 and 52912/99, 17 October 2002; Supreme Holy Council of the Muslim Community v Bulgaria, no 39023/97, 16 December 2004, (2004) 41 EHRR 23.

19 Metropolitan Church of Bessarabia and Others v Moldova, no 45701/99, ECHR 2001–XII, paras 116 and 117.

20 Manoussakis and Others v Greece, no 18748/91, 26 September 1996, Reports of Judgments and Decisions ECHR 1996–IV, (1996) 23 EHRR 387.

21 Grandrath v Germany, no 2299/64, Commission report of 12 December 1966, Yearbook 10, p 626.

22 Ülke v Turkey, No 39437/98, 24 January 2006, (2006) 48 EHRR 1128; Taştan v Turkey, No 63748/00, 4 March 2008.

23 Thlimmenos v Greece, no 34369/97, ECHR 2000–IV, Grand Chamber, (2000) 31 EHRR 411.

24 Bayatyan v Armenia, No 23459/03, 7 July 2011, Grand Chamber.

25 Karaduman v Turkey, no 16278/90, Commission decision of 3 May 1993, DR 74, p 93.

26 Dahlab v Switzerland (dec), no 42393/98, ECHR 2001–V.

27 Leyla Şahin, para 116.

28 A Vakulenko, ‘Islamic headscarves and the European Convention on Human Rights: an intersectional perspective’, (2007) 16 Social & Legal Studies 190, with further references therein.

29 Köse and Others v Turkey (dec), no 26625/02, ECHR 2006–II; Dogru v France, no 27058/05, 4 December 2008, (2008) 49 EHRR 179; Kervanci v France, no 31645/04, 4 December 2008.

30 Ahmet Arslan and Others v Turkey, no 41135/98, 23 February 2010.

31 Otto-Preminger-Institut v Austria, no 13470/87 20 September 1994, Series A no 295-A, (1994) 19 EHRR 34; Wingrove v the United Kingdom, no 17419/90 25 November 1996, Reports of Judgments and Decisions 1996–V, (1996) 24 EHRR 1; Lautsi v Italy, no 30814/06, 18 March 2011, Grand Chamber.

32 Otto-Preminger-Institut, para 49.

33 Lautsi v Italy, no 30814/06, 3 November 2009.

34 Nos 48420/10 and 59842/10, lodged on 10 August and 29 September 2010. Statement of facts and questions to the parties are available from the Court's communicated cases collection at <http://www.echr.coe.int/echr/en/hudoc/>, accessed 5 December 2011.

35 Nos 51671/10 and 36516/10, lodged on 27 August 2010 and 24 June 2010.