The Qualified Right to Freedom of Religion: An examination of the limitations contained in Article 9 of the European Convention on Human Rights
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.
Keywords:
Kokkinakis, freedom of religion, Article 9, limitations, public order, rights and freedoms of others, prescribed by law, necessary in a democratic society, margin of appreciation, European Court of Human Rights, European Convention on Human RightsReferences
Bratza, Nicolas. 2012. ‘The “Precious Asset”: Freedom of Religion under the European Convention on Human Rights’. In Religion and Discrimination Law in the European Union, ed. by Mark Hill, 9-26. Trier: European Consortium for Church and State Research.
Evans, Malcolm. 1997. Religious Liberty and International Law in Europe. Cambridge: Cambridge University Press.
Hill, Mark. 2013. ‘Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of Strasbourg’s Judgment in Eweida and others v. United Kingdom’. Ecclesiastical Law Journal 15: 191-203.
Cardiff University
Queen's Counsel;
Associate professor at the Centre for Law and Religion, Cardiff University, Wales - http://www.law.cf.ac.uk/clr/
Pretoria University, South Africa;
King’s College, London University, United Kingdom;
Notre Dame University, Sydney, Australia;
Lecturer in Law, Open University, United Kingdom
https://orcid.org/0000-0001-9614-8349License
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