This is part 1 in a series of four articles on understanding the Council of Europe´s Article 9 Freedom of thought, conscience and religion case-law handbook; Part 1:Its relevance, Part 2: Manifestation of beliefs/religion, Part 3: Interference and Part 4: Employment and education.
In a world scarred by a history of religious wars and intolerance for the beliefs of others, the right to hold one’s own set of beliefs and to not be persecuted or discriminated against for them, has become a fundamental human right. A right confined not only to the European continent but is largely upheld by liberal democratic states across the globe as can be seen in the United Nation’s Article 18 of the Universal Declaration of Human Rights.
In Europe, this principle is found in the Council of Europe’s European Convention on Human Rights and is protected by 2 specific provisions namely: Article 9 European Convention on Human Rights: 1. Everyone has the right to freedom of thought, conscience and religion and this 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. Article 2 of Protocol 1 to the European Convention on Human Rights: (Right to education) …in relation to education and to teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
Cemented over decades internationally, regionally and domestically among liberal democracies as a basic human right, what makes freedom of thought, conscience and religion so important today? A ‘globalised’ world is consequently amounting to increasingly ‘mixed’ societies. States and its citizens are more and more exposed to different cultures, religions and philosophical beliefs. In this sense, EcHR case-law has shown that Article 9 has three simultaneous functions; firstly, it confers on the state the role of ‘neutral’ arbiter to safeguard and cultivate both individual and collective identity by upholding the democratic principles of pluralism, and tolerance when dealing with issues of religion and beliefs. The state is therefore required to not become ‘unduly’ involved in religious/philosophical matters. The word ‘unduly’ indicates that there are instances in which states can and are required to get involved in matters of religion and beliefs. State authorities are required to become involved in matters concerning belief/religion when public order/safety is threatened. For instance, the state may be required to mediate between conflicting religious factions or belief groups however, this too should be done in a neutral, unbiased fashion (see, Supreme Holy Council of the Muslim Community v. Bulgaria and Hasan and Chaush v. Bulgaria [GC], §78. State interference will be discussed in part 3 of the series).
Secondly, on a citizen level, it serves to safeguard individuals from discrimination for their beliefs (see, Ivanova v. Bulgaria, §§81-86) and serves to protect the individual from indoctrination or undue pressure to conform to certain ideas or beliefs (see, Kjeldsen, Busk Madsen and Pederson v. Denmark, §53). In other words, protecting the individual’s right to have and change their own ideas and beliefs without interference.
Lastly, it imposes on all of society, the duty to maintain and manifest beliefs in such a way that it does not encroach on the rights and well-being of others (manifestation will be discussed in part 2 of the series). In other words, an environment of respect and ‘mutual tolerance’ is to be created. As the Strasbourg Court has highlighted within various Article 9 cases brought before it, a democratic society is one defined by the existence of pluralism and tolerance. The objective is therefore, to cultivate and respect the individual beliefs and ways of life of all members within society.
Crystal Malan, legal researcher