May 12, 2009

Article 9 of the European Convention of Human Rights

Freedom of thought, conscience and religion

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 subjected 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.

All European Union Member States are also members of the Council of Europe and signatories to the European Convention of Human Rights. The European Convention of Human Rights has also been annexed to the Treaty of Amsterdam, and is therefore also codified into European Union law and therefore, the issue of religious freedoms is now justiciable not only at the European Court of Human Rights but also the European Court of Justice.

In order to bring a claim to the European Court of Human Rights, the claim must be against a Member State, in whatever capacity. A claim cannot be brought against a private individual. Also, all domestic remedies must be exhausted. This does not necessarily mean that that the case must be decided before the Supreme Court of a nation, only that it be appealed to its highest level. A remedy which is not effective or is illusory need not be exhausted.

The European Court of Human Rights has held that the right to freedom of thought, conscience and religion is one of the foundations of a democratic society; that religious freedom is one of the vital elements that go to make up the identity of believers and their conception of life. The freedom to hold beliefs and convictions is unconditional with the sole limitation of regulations ensuring that this freedom is practiced without disruption to liberty and peaceful enjoyment of Convention rights, as exercised within a democratic and pluralistic society. The term philosophical or religious convictions must be interpreted by the Convention as a whole, thus being worthy of respect in a democratic society and which are not incompatible with human dignity.

The Court has acknowledged that implicit in Article 9 is that religious freedom includes the right to try and convince one’s neighbor of the truth of one’s religious or philosophical convictions. The right to freedom of religion excludes any discretion on the part of the state to determine whether religious beliefs or the means used to express such beliefs are legitimate.

For the state to lawfully restrict religious freedom under the European Court of Human Rights, it must meet three criteria: (a) that the interference must be prescribed by law; that the interference must have a legitimate aim; and that the interference must be necessary in a democratic society. Generally speaking, the interference in question must be the act of a state ; however, the European Court of Human Rights has held that any inter partes intervention by a court constitutes interference if this intervention challenges a de facto situation safeguarded by the Convention or if it gives effect to law that conflicts with prevailing European Convention law .

In order to be prescribed by law, the law in question must be accessible and foreseeable in its effects. It thus cannot suffer from vagueness; that the “quality” of the law must clearly and precisely define the conditions and forms of any limitations on basic Convention safeguards and must be free from any arbitrary application.

The Court, in Metropolitan Church of Bessarabia held that domestic law, to meet the clarity requirement, must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention: “in matters affecting fundamental rights it would be contrary to the rule of law- one of the basic principles of a democratic society enshrined in the Convention- for a legal discretion granted to the executive to be expressed in terms of an unfettered power; consequently the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise.”

The second prong of the Article 9 analysis of interference is whether the interference in question pursues a legitimate aim. Restrictions on rights guaranteed by the European Convention of Human Rights must be narrowly tailored, must be adopted in the interests of public and social life as well as the rights of other people within society. Article 9.2 restricts these legitimate aims to 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.

The final criterion that must be met for government interference into Article 9 protections to be legitimate is that the interference in question must be necessary in a democratic society. The European institutions have stated that the typical features of a democratic society are pluralism, tolerance and broadmindedness. For such an interference to be necessary in a democratic society it must meet a pressing social need whilst at the same time remaining proportionate to the legitimate aim pursued.

The state has a duty to remain impartial and neutral, since what is at stake is the preservation of pluralism and the proper functioning of democracy, even when the state or judiciary may find some of those views irksome. Furthermore, the Court has held that the role of the state is not to remove the cause of tension between two conflicting groups by eliminating pluralism but it is to ensure that the groups tolerate each other.

Article 9 usually does not stand on its own, and depending on the circumstances, are generally conjoined with Article 10 (freedom of expression), Article 11 (freedom of assembly and association), Article 13 (right to an effective remedy), Article 14 (prohibition on discrimination), Protocol 1, Article 1 (protection of property), and Protocol 1, Article 2 (right to education).