Perspectives on Religious Freedom from the Vantage Point of the European Court of Human Rights
Fuhrmann, Willi, Brigham Young University Law Review
The European Court of Human Rights ("ECHR" or "the Court") was established in 1959 to interpret and apply the European Convention for the Protection of Human Rights and Fundamental Freedoms ("Convention"), which opened for signature in 1950 and entered into force in 1953. The Convention has now been ratified by forty-one European states, including most recently Russia, Ukraine, and Georgia. The ECHR's jurisdiction covers a geographical area with a population of some 800 million.
The Convention was designed to give binding effect to some of the rights and freedoms set out in the United Nations' Universal Declaration of Human Rights. It was unprecedented in international law in three important respects. First, it empowered states to bring before an international tribunal other states alleged to have violated the rights of their own citizens. Second, it recognized individuals as subjects of international law by giving them the right to petition directly an international body with complaints directed against a state or states. Finally, it set up an enforcement mechanism to ensure that the contracting parties to the Convention respected their engagements.1
Before going into an analysis of the Convention case law relating to freedom of religion as protected in Article 9, I should just say a word about the nature of the ECHR's jurisdiction. The Convention system is a subsidiary one; as the Court has often repeated, it is primarily for the national authorities to secure the protection of the rights and freedoms set forth in the Convention. There are two main aspects to this. One is practical: an international Court cannot act as a court of first instance or even a court of appeal, or it runs the risk of being submerged by a massive case load. Moreover, national authorities are often better placed to make the initial assessment of what is necessary.
The second aspect is more directly related to the philosophy underlying the Convention. The Convention is predicated on the existence of a community of democratic states governed by the rule of law. Within this system, the Court operates as a fail-safe to catch those violations of fundamental rights that escape the scrutiny of the national review bodies. In so doing, it owes a degree of deference to the decisions of democratically elected bodies, sometimes expressed as a margin of appreciation accorded to the national authorities. The margin is variable in the sense that the closer you get to the core values of democracy, the narrower the margin will be. Thus, for example, in relation to the freedom of expression, interference with political expression will attract a narrow margin, whereas interference with artistic expression on grounds of morality will qualify for a much wider margin of appreciation. In other words, we could say that while a democratic society cannot, consistent with the Convention, restrict the pure exercise of democracy, it can legitimately decide within reason where art crosses over the line of obscenity or blasphemy. This margin operates in particular in relation to the rights and freedoms set out in Articles 8 to 11 of the Convention, which include the right to a private family life and the freedoms of expression, religion, and association.
II. THE ARTICLES OF THE EUROPEAN CONVENTION
The articles of the Convention (and Protocol No. 1 to the Convention) that expressly refer to freedom of religion-the so-called "religious" articles-are Article 9, which guarantees freedom of thought, conscience, and religion; Article 14, which prohibits discrimination on any ground, such as sex, race, color, language, or religion, political or other opinion, national or social origin, association with a national minority, property, birth, or status; and Article 2 of Protocol No. 1 to the Convention, which safeguards the right to education.
Religious freedom under the Convention is protected by Article 9, which reads: