Freedom of Religion and Secular Human Rights in the European Court of Human Rights

Discrimination on the grounds of religion or belief is expressly condemned and forms a necessary ‘feature’ of the secular human-rights regime. The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), contain specific provisions relating to freedom of religion. Moreover, the United Nations Declaration on the Elimination of all Forms of Intolerance and Discrimination (1981) is dedicated entirely to the issue of religious freedom. However, as Javaid Rehman points out, it is the administrative practice and the application of legislative norms that have proven to be highly problematic in respect of full compliance with the right to freedom of religion.1 This is likely based on the limitation clause, such as the one contained in Article 9(2) of the European Convention of Human Rights,2 which states: “Freedom to manifest one’s religion or belief’s 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.” Therefore, it may be argued that freedom of religion is in essence only a right in expressed terms, whereas the practical application of right goes only as far as to assist the principle of non-discrimination as a necessary feature of the human rights regime.

This contention is supported by the appalling case law of the European Court of Human Rights3 on Article 9 of the Convention. For example, in Leyla Sahin v Turkey (2005), the European Court considered the restriction on wearing the headscarf as ‘necessary in a democratic society’.4 Since most Muslim women see wearing the headscarf as a religious obligation, which is why they choose to wear it, such a restriction on a religious right is nothing less than discriminatory. Rehman, while commenting on the European Court’s decision in the Sahin case, supports this assertion by expressing that the European Court’s position is not only open to criticism for endorsing an oppressive state restriction on article 9, but also for its insensitivity towards freedom of religion and the personal autonomy of women in relation to the manifestation and practice of religion. He sees such cases as anti-Islamic bias on the part of the European human-rights institutions.5

Carolyn Evans provides a more supple explanation. She argues that the conceptual foundations on which Article 9 case law is built are weak and difficult cases are beginning to expose the cracks in the intellectual architecture of the Court’s religious freedom jurisprudence.6 Evans points out that the question of balancing religious freedom against other important rights and freedoms

1 Rehman p412 Hereinafter, the Convention3 Hereinafter, European Court 4 Rehman p455 Rehman p456 Evans p322

(including gender equality and the right to be free from religion) is one that vexes courts with responsibility for protecting rights at both international and domestic levels. She nonetheless recognise European Court’s aim to protect secularism, as she points out that the European Court clearly feels some sympathy for the desire to protect secularism and defend against fundamentalism, aims it considers compatible with Convention values.7 This is also obvious from the European Court’s decision in Refah Partisi (Turkish Welfare Party) Case (2003), in which it was held that Shariah is incompatible with human rights law.8 Thus a cold war between secular human rights law and Shariah is noticeable.

Nonetheless, Evans still see hope for the right to freedom of religion in the secular human rights system. She points out that in these complex cases, the Court needs a robust intellectual approach to assist it to fairly and appropriately balance out important competing interests. However, she admits, it has yet to develop such an approach and its failure is leading to an incoherent body of case law that does not give sufficient protection to religious freedom. 9 This is reinforced by an analysis of the headscarf cases, which mention no discussion of the religious beliefs of the applications, no consideration of the considerable hardships that this ruling might cause them, and no serious justification for why the religious practice was considered inimical to other Convention values such as gender equality or State ideologies such as secularism.10 Individual religious freedom therefore tends to be compromised fairly easily when brought into conflict with other values that the Court implies are more important to the human rights agenda. Thus, whether there genuinely is a hope for the right to freedom of religion will depend on a discussion on the universality of human rights.

7 Evans p3398 Rehman p449 Evans 34010 Evans P341