Freedom of Religion under the European Convention on Human Rights: A Precious Asset

By Tulkens, Françoise | Brigham Young University Law Review, May 1, 2014 | Go to article overview

Freedom of Religion under the European Convention on Human Rights: A Precious Asset


Tulkens, Françoise, Brigham Young University Law Review


I would like to begin by saying that I am very grateful to your prestigious university and its law school, as well as to the International Center for Law and Religion Studies, for this invitation. It is an honor and a pleasure to be here with such an outstanding audience of judges, scholars, lawyers, NGOs, and public officials from all over the world. Let me also say that I am really moved by your hospitality and kindness and how grateful I am to all of you, especially to the volunteer students. Many thanks from the bottom of my heart.

As the voice coming from Europe and as a modest contribution to the work of this conference, I shall touch on two issues, which are of course interrelated. First, how, in the European Convention on Human Rights, freedom of religion has built itself as a fundamental human right, and how this right has been interpreted by the case law of the European Court of Human Rights in the context of our contemporary society. Secondly, I will address the question of conflicting rights and the various approaches used by the European Court of Human Rights to judge them.

As we know, the European Convention on Human Rights was drafted and adopted on November 4, 1950, in the aftermath of World War II, and it entered into force in September 1953. It has just celebrated its sixtieth anniversary.1 Today, it has been ratified by forty-seven State Parties, and it has become the fundamental charter (magna carta) of the "common home Europe." As far as the key elements of the Convention are concerned, its preamble is highly significant. It traces the outlines of a European ordre public. The rights and freedoms guaranteed by the Convention "are the foundation of justice and peace in the world" and are best maintained "by an effective political democracy."2 Democratic society is the focal point of human rights, the unifying force within a Europe of human rights in which the Convention acts as a basic law. Democracy is the central value of European ordre public. It would be a mistake to see the preamble as merely rhetorical. In interpreting and applying the Convention, the European Court of Human Rights relies heavily on these principles not only as a source of inspiration but also as a basis for its action.

There are three key provisions of the European Convention on Human Rights that deal with religion. Article 9 provides the basic framework for freedom of religion. Article 14 ensures that the rights acknowledged by the Convention should be free from any discrimination. Article 2 of the First Additional Protocol to the Convention gives parents the right to regulate the religious education of their children. If the first and most central is Article 9, the two others are gaining importance, especially Article 14.3

As a matter of fact, the "new" European Court of Human Rights set up in 1998 has received a growing number of applications concerning freedom of religion. As observed by Clare Ovey and Robin C.A. White, "[t]his increase in applications is seemingly attributable to factors such as the expansion of the Council of Europe eastwards, the contemporary importance of religion on the global political arena, and the changing religious demography of Europe."4

I. FREEDOM OF RELIGION AS A FUNDAMENTAL RIGHT

A. A Precious Asset

As in many international treaties, Article 9, section 1 of the European Convention on Human Rights guarantees to everyone (every person) the right to freedom of thought, conscience and religion.5 As Malcolm Evans has pointed out, the idea that freedom of religion is for everyone is essential.6 In a nutshell, this right includes freedom to change religion and belief either alone or in community with others and in public or private and also freedom to manifest one's religion or belief in worship, teaching, practice and observance. But only the last one may be subjected under Article 9 section 2 to limitations (interferences) prescribed by law and necessary in a democratic society in the interests of public safety and for the protection of public order, health, morals, and the rights and freedoms of others. …

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