scholarly journals An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights

2020 ◽  
Vol 15 (1-2) ◽  
pp. 96-133
Author(s):  
Thiago Alves Pinto
Keyword(s):  
Human Rights ◽  
Empirical Investigation ◽  
The State ◽  
Freedom Of Religion ◽  
High Threshold ◽  
Legal Certainty ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Right

Abstract Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.

scholarly journals Right to freedom of religion and the principle of neutrality of the state in in the case-law of the European Court of Human Rights and the decisions of the Committee of Ministers of the Council of Europe. Ukrainian Perspective and view to the future

2020 ◽  
Vol 3 ◽  
pp. 41-55
Author(s):  
Pavlo Pushkar ◽  
Oleksii Ivanets
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Freedom Of Religion ◽  
Council Of Europe ◽  
Effective Protection ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Right ◽  
Collective Dimension

This article suggests a review of the case-law of the European Court of Human Rights and the practices of the Committee of Ministers of the Council of Europe as sources of evaluation of the material and procedural requirements as to the right to freedom of expression. These practices, being synchronised and coherent, are aimed at ensuring implementation of the requirements of the Convention. The right to freedom of expression reflects several aspects of realisation of this right – its realisation as an individual and its collective dimension – together with other persons, or even refusal to exercise a right to freedom of religion. Also, most importantly, the article deals with the requirements of the procedural protection of this right, supplemented guarantees of preventive nature and procedural nature aimed at ensuring effective protection of the right domestically. Such measures include domestic administrative or judicial action. The right to freedom of religion is a right, which integrates some aspects of its subsidiary implementation. In particular, in determining existence of legitimate aim and proportionality of interference with the right to freedom of religion. The article also discusses the relevance of “margin of appreciation” and “proportionality” as elements that influence academic discussions and public criticism of some of the approaches taken by the European Court of Human Rights in assessing compliance of measures taken by the states to limit exercise of freedom of religion.

Passive Proselytism

2021 ◽  
Vol 9 (2-3) ◽  
pp. 244-269
Author(s):  
Christine Carpenter
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Freedom Of Religion ◽  
Article 9 ◽  
European Court ◽  
The Right

Abstract Article 9 of the European Convention on Human Rights protects the right to freedom of religion and conscience. The language of Article 9(1) has been interpreted by the European Court of Human Rights as including protections for acts of proselytism, when properly committed and respectful of the rights and freedoms of others. This was the view taken in the foundational Article 9 case of the Court, Kokkinakis v. Greece. In the decades since Kokkinakis, however, the view of the Court on proselytism appears to have shifted, in particular in Article 9 cases involving religious garments. This article seeks to determine whether the Court is consistent in its views on proselytism between these religious garment cases and earlier examples of Article 9 case law.

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

7. Freedom of religion and expression

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
European Convention ◽  
Freedom Of Religion ◽  
Essential Information ◽  
European Court ◽  
State Restriction ◽  
The Uk ◽  
The Right

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on freedom of religion and freedom of expression, which are classified as qualified rights, and examines Article 9 of the European Convention on Human Rights (ECHR), which explains the right to hold or not hold a belief as well as the right to manifest a belief. It also considers how the European Court of Human Rights (ECtHR) decides if there has been manifestation of belief, interpretation of Article 10 with respect to views that shock and disturb and some forms of hate speech, and state restriction of expression. The chapter concludes with a discussion of freedom of religion and expression in the UK.

scholarly journals Freedom of Religion and Freedom from Religion

2016 ◽  
Vol 19 (01) ◽  
pp. 3-13 ◽  
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Well Being ◽  
European Convention ◽  
Freedom Of Religion ◽  
Religious Expression ◽  
European Court ◽  
Religious Extremism ◽  
Domestic Courts ◽  
The Right

The right to freedom of religion, enshrined in the European Convention on Human Rights has been frequently tested, both in UK courts and in the European Court of Human Rights, where successive decisions over a number of years led to the establishment of several well-known principles. However, in recent years religious extremism has brought into focus a tension between the right of freedom of religious expression and the well-being of individuals (not least children) and society. The Strasbourg court requires neutrality on the part of the state and its courts. However, unlike the European Court of Human Rights, the domestic courts have had to face situations where religious observance can be seen to be causing serious harm and where interference in religious freedom and family life has been shown to be justified.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

scholarly journals Religious Freedom and the European Court of Human Rights’ Two Margins of Appreciation

2017 ◽  
Vol 12 (2-3) ◽  
pp. 198-209
Author(s):  
Stephanie E. Berry
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
The State ◽  
Complete Picture ◽  
European Convention ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation ◽  
Religious Clothing

Abstract The European Court of Human Rights’ (ECtHR) use of the margin of appreciation (MoA) in cases concerning religious clothing is well-documented. This article paints a more complete picture of the use of the doctrine in cases falling within Article 9 and Article 2, Protocol 1 of the European Convention on Human Rights (echr). The ECtHR’s use of the normative MoA often appears to be superfluous as it does not seem to extend past the Article 9(2) echr, limitations clause. In contrast, the systemic MoA allows almost complete deference to the State, which has the potential to undermine the religious freedom of minorities.

Principles of National Constitutionalism limiting Individual Claims in Human Rights Law

ICL Journal ◽  
2013 ◽  
Vol 7 (1) ◽  
Author(s):  
Paul De Hert ◽  
Stefan Somers
Keyword(s):  
Human Rights ◽  
Church And State ◽  
Freedom Of Religion ◽  
Proper Function ◽  
Religious Conflicts ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Treaties ◽  
The Relationship

AbstractThe scope of the fundamental right to freedom of religion has been broadly dis­cussed in recent jurisprudence and doctrine. Doctrine has however paid little attention to the role of constitutionalism and its principles such as this of the separation of church and state and the division of power. These principles are often not mentioned as such in inter­national human rights treaties. Does this mean that they are irrelevant in human rights adjudication?This article addresses the proper function of constitutionalism in human rights jurisprudence and in settling religious conflicts more in general. The Lautsi judgment of the European Court of Human Rights is used as a trigger to look at the relationship between religion, constitutionalism and human rights, and at the legitimacy of supranational courts. The article argues that international human rights jurisprudence must take national consti­tutionalism and its principles into account when dealing with the freedom of religion, even when those principles are not explicitly enshrined in human rights treaties. For this the use of the margin of appreciation seems to be appropriate.

Limitations on Freedom of Religion and Belief in the Jurisprudence of the European Court of Human Rights in the Quarter Century since Its Judgment in Kokkinakis v. Greece

2017 ◽  
Vol 12 (2-3) ◽  
pp. 174-197
Author(s):  
Mark Hill ◽  
Katherine Barnes
Keyword(s):  
Human Rights ◽  
Religious Beliefs ◽  
Case Law ◽  
Democratic Society ◽  
European Convention ◽  
Freedom Of Religion ◽  
Public Order ◽  
Quarter Century ◽  
European Court ◽  
Margin Of Appreciation

Abstract The manifestation of religious beliefs under Article 9 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 lose 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”. It seeks to divine principles from the varied jurisprudence, particularly at its intersection with the Court’s illusory doctrine of margin of appreciation.

New Trends in Religious Liberty and the European Court of Human Rights

2010 ◽  
Vol 12 (3) ◽  
pp. 266-279 ◽  
Author(s):  
Ian Leigh
Keyword(s):  
Human Rights ◽  
Religious Education ◽  
Military Service ◽  
Religious Freedom ◽  
Religious Affiliation ◽  
The State ◽  
Religious Liberty ◽  
European Convention ◽  
European Court ◽  
The Right

This article analyses recent trends in the jurisprudence of the European Court of Human Rights concerned with the right to freedom of thought, belief and religion (Article 9, European Convention on Human Rights) and the right of parents to respect by the state for their religious and philosophical views in the education of their children (Article 2, Protocol 1).1 These developments include notable decisions concerned with protection from religious persecution in Georgia, with religious education in Norway and Turkey and with the display of crucifixes in state schools in Italy. It is apparent that the European Convention religious liberty jurisprudence increasingly stresses the role of the state as a neutral protector of religious freedom. For individuals religious freedom is now also recognised to include not only the right to manifest their religious belief but also freedom from having to declare their religious affiliation. As the religious liberty jurisprudence comes of age, other significant developments, for example in relation to conscientious objection to military service, can be anticipated.

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