scholarly journals The Qualified Right to Freedom of Religion: An examination of the limitations contained in Article 9 of the European Convention on Human Rights

2020 ◽  
Vol 23 ◽  
pp. 73-99
Author(s):  
Mark Hill
Keyword(s):  
Human Rights ◽  
Religious Beliefs ◽  
Case Law ◽  
Democratic Society ◽  
European Convention ◽  
Freedom Of Religion ◽  
Public Order ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation

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.

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.

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.

The European Court of Human Rights and Religious Rights

1998 ◽  
Vol 47 (3) ◽  
pp. 680-687 ◽  
Author(s):  
Peter W. Edge
Keyword(s):  
Human Rights ◽  
Public Safety ◽  
Teaching Practice ◽  
Democratic Society ◽  
European Convention ◽  
Public Order ◽  
Article 9 ◽  
European Court ◽  
Freedom Of Thought ◽  
The Right

Article 9 of the European Convention on Human Rights provides:1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

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.

Physical Education and Religious Freedom

2019 ◽  
pp. 144-155
Author(s):  
Konstantinos Margaritis
Keyword(s):  
Human Rights ◽  
Physical Education ◽  
Religious Freedom ◽  
Case Law ◽  
Democratic Society ◽  
The Other ◽  
Recent Case ◽  
Freedom Of Religion ◽  
Other Hand ◽  
European Court

Freedom of religion has been constantly characterized as one of the foundations of a democratic society. On the other hand, the significance of physical education in the development of children's overall personality is beyond dispute. Thus, the question that arises is, What happens in a case of a conflict involving the above? The aim of this chapter is to provide an answer on the basis of the case law of the European Court of Human Rights. In particular, the fundamental cases of Dogru vs. France and Kervanci vs. France will be examined, as well as the recent case of Osmanoglu and Kocabas vs. Switzerland. Through the analysis of the cases, useful conclusions will be drawn on the possible impact of religious freedom on physical education.

Introduction

2020 ◽  
pp. 1-10
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
Juvenile Justice ◽  
Family Law ◽  
Case Law ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
Margin Of Appreciation ◽  
Growing Body ◽  
International Instruments

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.

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.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Margin Of Appreciation ◽  
Essential Question ◽  
Domestic Courts ◽  
The Right ◽  
Domestic Law

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

School Bans on the Wearing of Religious Symbols: Examining the Implications of Recent Case Law from the UK

2009 ◽  
Vol 4 (1) ◽  
pp. 7-24 ◽  
Author(s):  
Erica Howard
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Religious Symbols ◽  
Article 9 ◽  
European Court ◽  
Religious Clothing ◽  
Religious Dress ◽  
The Uk ◽  
The Right

AbstractThis article examines school bans on the wearing of religious symbols and starts with a discussion of the arguments for the imposition of a ban and the counter arguments against these. The question whether a ban on the wearing of religious clothing in schools is a violation of the right to manifest one's religion as guaranteed by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is analyzed using the case law of the European Court of Human Rights and of the English courts in relation to such bans in education. The cases appear to suggest that such bans can be considered an interference with the right to manifest one's religion under Article 9(1), but that these bans can be justified under Article 9(2) in certain circumstances. Two important considerations in the decision of the courts are the way decisions to ban certain forms of religious dress are made and whether alternative ways of manifesting the religion are available.

scholarly journals True Believers? – Sincerity and Article 9 of the European Convention on Human Rights

2021 ◽  
pp. 1-28
Author(s):  
Tim Wolff
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
European Convention ◽  
Ulterior Motive ◽  
Article 9 ◽  
European Court ◽  
Freedom Of Belief

Sincerity of belief as a condition for the protection of Article 9 of the European Convention on Human Rights – Three types of insincerity in the context of freedom of belief – Parody religions – Fraudulent religions – Conceptual linkage between insincerity and ulterior motive – Insincerity defined as demanding to practise one’s ‘belief’ while solely having an ulterior motive – Circumstances that should not be considered evidence of insincerity: implausible manifestations, inconsistency with co-believers – Circumstances that should be considered evidence of insincerity: obvious unseriousness, ignorance, personal inconsistency – Comparison to rejected and accepted forms of evidence of insincerity in the case law of the European Court of Human Rights – Burden of proof in the case law of the European Court of Human Rights.

Sign in / Sign up

Export Citation Format

Share Document