The right to freedom of thought, conscience and religion

8/9/2019 The right to freedom of thought, conscience and religion

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Protectingthe right to freedom

of thought, conscienceand religion

under the European Conventionon Human Rights

Jim Murdoch

Council of Europe human rights handbooks


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Prot

to freedom of thought, conscienunder the Europ

on

Council of Europe huma


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Jim Murdoch is Professor of Public Law at the University of Glasgow, and was formerly Head of the School of Law. His

research interests are in domestic and European human rightslaw. He is a regular participant in Council of Europe seminarprogramme visits to central and east European states and hasdeveloped a particular interest in non-judicial human rightsenforcement mechanisms.

Directorate General of HumaCouncil of EuropeF-67075 Strasbourg Cedexwww.coe.int/justice

© Council of Europe, 2012Cover illustration © rolffimag

1st printing, February 2012Printed at the Council of Eur

The opinions expressed in

author and do not engage th Europe. They should not blegal instruments mentionecapable of binding the govCouncil of Europe’s statutovirtue of the European Conv


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The requirement of state neutrality: controls upon placesof worship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

The requirement of state neutrality: interfering in internaldisputes between adherents of a religious community . . . . . . 62

Related guarantees under the Convention having an

impact upon the free exercise of conscience or belief . . . . . . . . 66

Religious convictions and education: Article 2 of

Protocol No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Freedom of expression and thought, conscience and belief:

Article 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Medical treatment issues: Artic

State recognition of decisions oArticle 6 . . . . . . . . . . . . . . . . .

Discrimination on the basis of

Article 14 . . . . . . . . . . . . . . . .

Protocol No. 12. . . . . . . . . . .

Conclusion . . . . . . . . . . . . . . . . .

Index of cases . . . . . . . . . . . . . .


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Article 9 of the European Convention on Human R

Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscienceand religion; this right includes freedom to change his religionor belief and freedom, either alone or in community withothers and in public or private, to manifest his religion or belief,in worship, teaching, practice and observance.

2. Freedom to manifest subject only to such limitatnecessary in a democraticsafety, for the protection ofor the protection of the rig


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thought, conscience and religion has been considered neces-sary. In particular, and as will become apparent from discus-

sion, Article 9 is closely related both textually and in respect of the values underpinning its interpretation to Article 10’s guar-antee of freedom of expression and to the right of associationunder Article 11.5 Additional provisions provide support, suchas Article 2 of Protocol No. 1, which requires that parents’ phil-osophical and religious beliefs are accorded respect in the pro-

vision of education to their children. Secondly, in discussing theextent of a state’s responsibilities under the European Conven-tion on Human Rights, it will be necessary to consider whetherthese responsibilities are in any way modified at national level.In particular, Article 57 permits any state, when signing theConvention or when depositing its instrument of ratification,

to make a reservation in respthe Convention to the exten

territory is not in conformity

What then follows is a basic ithis area. What makes the stuantees) such a fascinating oground of many cases but

developed and consolidated oular context of many of the rich tapestry of European cultural diversity. Nevertheless,upon the Continent a unifyEurope to prepare for and be

by an increasingly secular butety. The clarion-call is to resperance. The right to freedomgranted.

5. Cf Young, James and Webster v. the United Kingdom, §57: “the protection of per-sonal opinion afforded by Articles 9 and 10 in the shape of freedom of thought,conscience and religion and of freedom of expression is also one of the purposesof freedom of association as guaranteed by Article 11”.


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Freedom of thought, conscience and religion) inte

regional standards

Guarantees of religious liberty and respect for conscience and

belief are inevitably found in the constitutional orders of liberaldemocratic societies and in international and regional humanrights instruments. To some extent, these reflect the concernsat the time of those charged with drafting these instruments.Examples abound, each with perhaps subtly different empha-ses. In particular, Article 18 of the Universal Declaration on

Human Rights of 1948 provides thatEveryone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his reli-

gion or belief, and freedom, either alone or in community

with others and in public or private, to manifest his religion

or belief in teaching, practice, worship and observance.

dom, either individually

public or private, to mship, observance, pract

2. No one shall be sub

his freedom to have or

choice.

3. Freedom to manifsubject only to such lim

are necessary to prot

morals or the fundame

4. The States Parties

to have respect for the


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PROTECTI! THE RI!HT TO FREE"O#


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to place, especially in an era characterised by an ever-

growing array of faiths and denominations. By reason of

their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better

position than the international judge to give an opinion on

the exact content of these requirements with regard to the

rights of others as well as on the “necessity” of a “restriction”

intended to protect from such material those whose deepest

feelings and convictions would be seriously offended.150

The Strasbourg Court thusreviewing certain decision-

ited. This appears self-evidto reflect historical, culturinternational forum is noputes.151 Such considerationtic level where domestic colocal circumstances (and pthe Strasbourg Court. Doexplore the context in whiConvention operate at natio

150. Wingrove v. the United Kingdom, §58. 151. See also, for example, Murphy


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law as having the right to exercise certain judicial and adminis-trative state responsibilities (and thus since legal relationshipscould be affected by the acts of religious ministers, the public

interest may indeed justify measures to protect individualsagainst deception), in the present instance there had been noindication that the applicant had attempted at any time to exer-cise these functions. Further, since tension is the unavoidable

consequence of pluralism,democracy for a state to sunder a unified leadership b

others.203

203. Agga v. Greece (no. 2), §§56-61.


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ConclusionFreedom of thought, conscience and religion is a vital humanright. The jurisprudence of the European Court of HumanRights (and of the former European Commission on HumanRights) provides powerful restatements of the importance of

the values inherent in Article 9. A proper appreciation of theseunderlying principles and ideals is critical: in particular,freedom of thought, conscience and religion must be seen ashelping to maintain and enhance democratic discussion andthe notion of pluralism. Its two facets – the individual and thecollective – are crucial. This freedom is,

in its religious dimension, one of the most vital elementsthat go to make up the identity of believers and their con-

ception of life, but it is also a precious asset for atheists,

agnostics, sceptics and the unconcerned. The pluralism

indissociable from a democratic society, which has been

d l h d d

functioning of democrac

tics of which is the possi

try’s problems through

irksome.249

In other words, the protepromote rather than discourance of others’ beliefs. Thus the responsibility of merelyArticle 9 rights, and the proaction on the part of state auan effective one. On the othedictate at the same time thcannot expect to have these cism and must

tolerate and accept the


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community coherence all call for some assessment of thei t f t t

Convention expectations. St b C t d th


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appropriateness of state responses.

This kaleidoscope of national arrangements must now be

viewed through the prism of democracy, the rule of law andhuman rights. But the European Convention on Human Rightsdoes not impose a set of rigid requirements: the treaty merely sets out certain minimum standards, and religious traditionsand differences in constitutional arrangements regulatingchurch and State will continue to form part of the continent’s

landscape, providing always that these are compatible with

Strasbourg Court, and thereligion and belief will of

Europe lacks a common apthe interplay between religitional level, and is much tpossesses, on the other hantees which strengthens thgroups such as religious ass

for respect for thought, con


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A, 'Agga v. Greece (no. 2), 17 October 2002 62,64/65

Ahmet Arslan and others v. Turkey, 23February 2010 14

Aktas v. France (dec.), 30 June 2009 23, 50Alexandridis v. Greece, 21 February 2008 18Al-Nashif and others v. Bulgaria, 20 June

2002 15Alujer Fernández and Caballero García v.

Spain (dec.), 14 June 2001 15, 56, 77

Angeleni v. Sweden (dec.) 3 December 1986 16, 21

Arrowsmith v. the United Kingdom (dec.),16 May 1977 16, 21/22

Autio v. Finland (dec.) 6 December 1991 45

Aydın Tatlav v. Turkey, 2 May 2006 72

Bayat yan v. Armenia (GC), 7 July 2011 7,37, 39, 45/46

Belgian Linguistic case, 23 July 1968 16

Bernard Septem

BowmanFebruar

Bruno v. 53/54

BuscarinFebruar

Inde of casesCases are cited with the date of the judgment or, where appropriate, the decision (dec.). Wh

are referred to in the text, each date appears in the index entry. Cases not final at the time

asterisk.

Please refer to the HUDOC on-line database, http://hudoc.echr.coe.int/, for further informa


Chappell v. the United Kingdom, (dec.), 14July 1987 17 61

Church of Scientology Moscow v. Russia, 5April 2007 60

Cserjés31


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July 1987 17, 61Church of Scientology and 128 of its

members v. Sweden (dec.) 14 July 1980 71/72

April 2007 60Clift v. the United Kingdom, 13 July 2010 76

31

Cyprus27

"D. v. France (dec.), 6 December 1983 22D.H. and others v. the Czech Republic, 13

November 2007 76/77Dahlab v. Switzerland (dec.), 15 February

2001 50

Darb y v. Sweden, 23 October 1990 15, 18,21, 26, 52

Dimitras and others v. Greece, 3 June 2010 18

Dogru v. France, 4 December 2008 50

DubowApril

E, F, !Efstratiou v. Greece, 18 December 1996 27/28

El Majjaoui and Stichting Touba Moskee v.the Netherlands, dec. 14 February 2006,

judgment (GC) 20 December 2007 16, 60Eriksson v. Sweden, 22 June 1989 66

Feldek v. Slovakia, 12 July 2001 12

Finska församlingen i Stockholm and TeuvoHautaniemi v. Sweden (dec.), 11 April 1996 24

Folgerø and others v. Norway (GC), 29 June2007 20, 68/69

Georgi

2008 Giniew

GottesmDecem


I, =


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I.A. v Turkey, 13 September 2005 72

Ingrid Jordebo Foundation of ChristianSchools and Ingrid Jordebo v. Sweden(dec.) 6 March 1987 66

Inhabitants of Leeuw-St Pierre v. Belgium(dec.), 16 December 1968 15

Institute of French Priests and others v.Turkey (friendly settlement), 14 December

2000 61ISKCON and 8 others v. the United

Kingdom (dec.), 8 March 1994 17Ivanova v. Bulgaria, 12 April 2007 27, 31/32Jakóbski v. Poland, 7 December 2010 54/55

Jehovah’sJune 20

JerusalemJohansen44

Johnston1986 15

(Kalaç v. Turkey, 1 July 1997 30/31Karaduman v. Turkey (dec.), 3 May 1993 50Keenan v. the United Kingdom, 3 April 2001 73

Kervanci v. France, 4 December 2008 50

Khan v . the United Kingdom (dec.), 7 July1986 26

Khristiansko Sdruzhenie “Svideteli naIehova” (Christian Association Jehovah’sWitnesses) v. Bulgaria, 3 July 1997 61

Kimlya and others v Russia 1 October 2009

Kjeldsen, Busk Madsen and Pedersen v.Denmark, 7 December 1976 21, 68

Klein v. Slovakia, 31 October 2006 72/73Knudsen v. Norway (dec.), 8 March 1985 22,24, 32

Kokkinakis v. Greece, 25 Ma y 1993 6, 14,17, 21, 27, 35/38, 40/41, 47/48, 73, 82

Konrad and others v. Germany (dec.), 11September 2006 67

Konttinen v. Finland (dec.), 3 December1996 30

Köse andJanuary

Kosteski Macedo

Kurtulm

50

Kustannuothers v24/25

Kuznetso2007 39


Logan v. the United Kingdom (dec.), 6September 1996 61

Lombardi Vallauri v. Italy, 20 October 2009 19, 31


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September 1996 61 19, 31

#, , OManoussakis and others v. Greece, 26

September 1996 14, 56, 61

Martins Casimiro and Cerveira Ferreira v.Luxembourg (dec.), 27 April 1999 66, 69

McFeeley and others v. the United Kingdom(dec.), 15 May 1980 54

Metropolitan Church of Bessarabia andothers v . Moldo va, 13 December 2001 23/24, 36, 41, 56, 59/60

Miroïubovs and others v. Latvia, 15September 2009 63

Moscow Branch of the Salvation Army v.Russia, 5 October 2006 59

Murphy v. Ireland, 10 July 2003 43, 69/70,72

N. v. Sweden (dec.), 11 October 1984 19

Nielsen v. Denmark, 28 November 1988 73

97 memJehovGeorg

Nolan a60

Obst v.

Omkar v. Sw

Otto-PSepte

P, -, R

Palau-Martinez v. France, 16 December 2003 79

Paturel v France 22 December 2005 72

Phull v. France (dec.), 11 January 2005 50

Poltoratskiy v. Ukraine, 29 April 2003 54

P h U i d Ki d (d ) 8 A il

Religioand o77/78


%


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Sabanchiyeva and others v. Russia (dec.), 6November 2008 15

Salonen v. Finland (dec.), 2 July 1997 22Savez Crkava “Riječ Života” and others v .

Croatia, 9 December 2010 15, 75/76, 81Schüth v. Germany, 23 September 2010 32/33

Sejdić and Finci v. Bosnia and Herzegovina

(GC), 22 December 2009 80/81

Serif v. Greece, 14 December 1999 35/36,64

Sidiropoulos and others v. Greece, 10 July1998 16

Siebenhaar v. Germany, 3 February 2011 32Sinan Işik v. Turkey, 2 February 2010 19Sluijs v. Belgium, 9 September 1992 67Stedman v. the United Kingdom (dec.) 9

April 1997 30

StefanovMay 20

Sunday T1), 26 A

SupremeCommu28/30,

Svyato-M

June 20

T, $, >Taştan v. Turkey, 4 March 2008 45

Thlimmenos v. Greece (GC), 6 April 2000 31, 45, 79/80

Tsirlis and Kouloumpas v. Greece, 29 May1997 45

Ülke v. Turkey, 24 January 2006 44/45

Valsamis v. Greece, 18 December 1996 14,27/28, 67

Van den Dungen v. the Netherlands (dec.) 22

February 1995 12, 18, 22, 26Verein “Kontakt-Information-Therapie”

(KIT) and Siegfried Hagen v. Austria (dec.),12 October 1988 25

Vereinigu25 Janu

Vergos v

Vogt v. G19, 31

? @ B


X v. the United Kingdom (dec.), 18 May1976 55

Young, James and Webster v . the UnitedKingdom, 13 August 1981 8


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X v. the United Kingdom (dec.), 4 October

1977 17

g g

Z and T v. the United Kingdom (dec.) 28

February 2006 15

Directorate Generalof Human Rights and Rule of Law Council of Europe

b d


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F-67075 Strasbourg Cedex

www.coe.int/justice

Jim Murdoch is Professor of Public Law at the University

of Glasgow, and was formerly Head of the School of

Law. His research interests are in domestic andEuropean human rights law. He is a regular participant

in Council of Europe seminar programme visits to

central and east European states and has developed a

particular interest in non-judicial human rights enforce-

ment mechanisms.

The right to freedom of thought, conscience and religion

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Transcript of The right to freedom of thought, conscience and religion