Hem / English / Understanding the Council of Europe’s Article 9 Freedom of thought, conscience and religion case-law handbook. Part 3 – Interference

Understanding the Council of Europe’s Article 9 Freedom of thought, conscience and religion case-law handbook. Part 3 – Interference

The right to hold and manifest one’s religious and or philosophical beliefs is guaranteed by Article 9. Photo: Liv&Rätt

The right to hold and manifest one’s religious and or philosophical beliefs is guaranteed by Article 9. In this sense, ‘interference’ refers to any action (restrictions placed on individuals which prevent them from carrying out their personal beliefs, including the banning of religious symbols, as well as the use of positions of authority to discriminate and marginalise individuals due to their beliefs), as well as inaction of the state which restricts individuals from upholding their deeply held beliefs. Inaction therefore, refers largely to the failure of states to uphold their ‘positive obligation’ to create a safe environment in which individuals can live according to their beliefs.

Although the ‘manifestation’ of beliefs is protected by the provision, this manifestation can be limited by the state and therefore, before the Strasbourg Court, it is the responsibility of the applicant to prove that the state has ‘interfered’ with their Article 9 right. Consequently, should the court agree that there indeed was an interference, the state is then required to prove that such interference was ‘justified’. Whether a state’s actions/inaction (interference) was justified is determined by addressing three main questions:

Did the interference have a valid aim?

The role of the state as a impartial entity in matters of religion and belief requires that any ‘involvement’ in such matters would have to be justified as having sought to pursue a ‘legitimate aim’. As stated in Article 9, recognised ‘legitimate’ aims include that of protecting public order and safety (see, Serif v. Greece §§49-54 and Metropolitan Church of Bessarabia and others v. Moldova §§111-113) as well as seeking to protect the “rights and freedoms of others” (see, Kokkinakis v. Greece §44).

1. Is it according to prescribed law? 

The state is required to show that interference was based on existing domestic law which prohibits certain actions or manifestations of religion or belief. In this way, it would have to be shown that a law or norm regarding restrictions on manifestation is readily accessible to citizens and that it is formulated well enough for an individual/group to reasonably understand and predict the consequences of their actions.(see, Kokkinakis v. Greece, §§32-35, Svyato-Mykhaylivska Parafiya v. Ukraine, §§121-152).

2. Whether this interference was ‘necessary in a democratic’ society?

The manifestation of religion and or belief can be limited/restricted for the overall ‘good’ of society. This final question therefore, addresses whether any limitations placed on manifestation serves to uphold and respect the pluralist nature of democratic societies and maintains tolerance of different religions/beliefs. The state is then required to show in what way a particular form of manifestation, posed a threat to the safety and well-being of its citizens. The court determines the ‘necessity’ of restrictions by taking into account the international as well as European common practices, (Kokkinakis v. Greece).

These questions reflect the responsibility of the Strasbourg Court to, on a case by case basis, balance the needs of an individual or group with that of society at large. Allowing the space for different individuals to have and manifest their beliefs is certainly a hallmark of a democratic society however, when faced with the choice between protecting an individual’s need to maintain beliefs and the ‘good’ of society, the court will inevitably choose to protect the well-being and safety of society.  With regards to the manifestation of beliefs in areas of employment which may not necessarily and directly affect society at large, the court tends to use a different approach (Part 4 of the series).

 

Crystal Malan, legal researcher

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