The introduction sets out the context, aims and approach of this book. It explains that over the past thirty years, the number of cases before the ECtHR concerning freedom of thought, conscience and religion has increased significantly and interest in this right in the literature has grown exponentially. It notes that ECtHR jurisprudence relating to ECHR Article 9 has been heavily criticised by commentators but there has been very little interrogation of the core premises that underpin doctrinal analyses of Article 9 in recent years. In particular, the fundamental question—what is the law in relation to freedom of religion or belief?—has not been fully explored. The introduction explains that this book aims to address this important question in relation to ECHR Article 9 and, in doing so, it challenges the classic approach to freedom of thought, conscience and religion in the literature and offers an alternative interpretation of ECHR Article 9 and the related ECtHR jurisprudence. The detailed overview of the structure of this book in the introduction details the approach which will be taken, and sets out the the materials which form the basis for the analysis.

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.

Chapters 6 and 7 examine cases which one would expect to fall in the middle circle in the loose concentric circles model, where both forum internum relevance and countervailing factors may both be strong or both be weak and, as such, for the degree of protection offered to depend heavily on the way in which the ECtHR balances the factors. Chapter 6 explores cases concerning limitations on proselytism, and the wearing of religious clothing and symbols. It seeks to show that, again, the ECtHR’s approach is consistent with its general principles concerning Article 9 as the ECtHR balances factors indicating a violation (primarily, but not only, forum internum relevance) with countervailing factors indicating no violation, in order to reach its decision. Given that such cases are highly fact sensitive, the degree of forum internum protection offered ranges from a high to a low degree depending on the particular circumstances of the case.

This conclusion summarises the arguments presented in the chapters in Parts I, II and III. It also explores some of the implications of the reappraisal of ECHR Article 9 and the related ECtHR jurisprudence in this book for academics and legal practitioners alike.

Chapter 2 focuses on the text of ECHR Article 9 and other international provisions protecting the right to freedom of thought, conscience and religion including Article 18 of the Universal Declaration of Human Rights (UDHR), Article 18 of the International Covenant on Civil and Political Rights (ICCPR), and Article 1 of the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief (1981 Declaration). It also explores the drafting history of these Articles through an examination of the relevant travaux préparatoires. By analysing this material, and drawing upon a recent, deeply valuable contribution to the understanding of ICCPR Article 18, Chapter 2 seeks to demonstrate that it is more faithful to these text of the ECHR Article 9 and the relevant travaux préparatoires to understand the forum internum and forum externum aspects of the right to freedom of thought, conscience and religion in terms of a relationship rather than in terms of a binary and hierarchical distinction.

Chapter 3 focuses on the ECtHRs general principles concerning ECHR Article 9 in its jurisprudence. It contends that the ECtHR recognises the forum internum and forum externum relationship, intuitively understanding that, because actions flow from the forum internum, the forum internum is always relevant to some degree in Article 9 cases. As such, this chapter recommends conceptualising the forum internum and forum externum aspects of the right on a continuum. Whilst, this chapter argues, forum internum relevance is the principal factor weighing in favour of the applicant, it contends that it is not the only factor the ECtHR takes into consideration in Article 9 cases; the ECtHR balances in all Article 9 cases, weighing up factors pointing to a violation of Article 9 (primarily, but not forum internum relevance) with countervailing factors pointing away from a violation, to reach its decision. Given the ECtHR offers a range of protection as a result, this chapter suggests that a useful way of grouping Article 9 cases for analysis is a loose concentric circles model, comprising three circles, as this better reflects the ECtHR jurisprudence than a binary and hierarchical framework.

Chapter 5 focuses on cases in which States have restricted the activities of individuals or communities due to concerns about religiously motivated harm. Firstly, it explores cases concerning sexual relations with minors, corporal punishment of children, compulsory vaccination refusal, and ceremonial use of illegal substances. These are the kinds of cases one would expect fall into the outermost circle in the loose concentric circles model, where there is weakest forum internum relevance and strongest countervailing factors and, thus a very low degree of forum internum protection. This chapter seeks to demonstrate that the ECtHR’s approach in such cases is as expected. Secondly, through an analysis of cases concerning allegations of threats to national security, challenges to rights and freedoms of members, and transgressions of health and safety laws, this chapter also aims to show that where the ECtHR considers the harm in question is not substantiated, or State actions are disproportionate, the ECtHR can, and does, give greater weight to forum internum relevance than to countervailing factors, and offer a higher degree of protection.

The chapters in Part II—which analyse the way in which the ECtHR applies its general principles relating to Article 9—follow the loose concentric circles model. Chapter 4 focuses on cases concerning deprogramming, coercive psychiatric treatment, indoctrination, and sanctions on employment due to religion or belief affiliation. These are the kinds of cases one would expect to fall into the innermost circle in the loose concentric circles model, where there is strongest forum internum relevance and weakest countervailing factors and, thus, a high degree of forum internum protection. Through the case law analysis, this chapter aims to demonstrate that the ECtHR’s approach is consistent with its general principles relating to Article 9. Even in these kinds of cases, the ECtHR does not offer absolutely absolute protection to the forum internum, rather, the ECtHR balances factors indicating a violation (primarily, but not only forum internum relevance) with countervailing factors in order to reach its decision. This chapter explains that the ECtHR only offers a very high degree of protection where it considers forum internum relevance to be strong and countervailing factors to be weak.

Chapter 7 forms the second of the two chapters examining cases which one would expect to fall into the middle circle in the loose concentric circles model, where both forum internum relevance and countervailing factors may both be strong or both be weak and, as such, for the degree of protection offered to depend heavily on the way in which the ECtHR balances the factors. Chapter 7 examines cases in which applicants have objected to acting contrary to their religion or belief, or have objected to disclosing their religion or belief. Again, this chapter seeks to show that the ECtHR’s approach is consistent with its general principles concerning Article 9 as the ECtHR balances factors indicating a violation (primarily, but not only, forum internum relevance) with countervailing factors indicating no violation, to reach its decision. This chapter reiterates that the fact-sensitive nature of such cases means that protection offered ranges from a high to a low degree depending on the particular circumstances of the case.