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Human Rights Law - Article 9 (Freedom of Religion) Summary
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Comprehensive summary/exam notes on the Article 9 ECHR right to freedom of religion. This document covers the principles underlying Article 9 (secularism, pluralism, coexistence, human agency), the test employed under Article 9 (legality, legitimacy, necessity and proportionality) and the applicati...

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  • October 7, 2024
  • 7
  • 2022/2023
  • Summary

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Article 9 – Freedom of Religion
Article 9 ECHR:
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 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.

Principles underlying Article 9 ECHR:
- Secularism
o The principle of separation of the State from religious institutions.
o Does not favour any religion between the State and religion.
- Pluralism
o Religious pluralism is the state of being where every individual in a religiously
diverse society has the rights, freedoms, and safety to worship, or not, according to
their conscience.
o Means recognition of all religions and tolerance among the different communities for
the other communities.
- Coexistence
o Religious coexistence is the idea that peoples of different religions can live together
in peace and harmony.
 Is this what the Court was drawing on in SAS v France with the idea of
“living together”?
- Human agency
o The capacity for human beings to make choices and to impose those choices on the
world.
o Martin (2004) – Agency is the capability of individuals to make choices and to act on
those choices in ways that make a difference in their lives.

Article 9 ECHR does not offer applicants enough protection.
This is especially so in regard to minority groups.

1. The Test:
Article 9(2) ECHR provides that a State may interfere with an individual’s right to
manifest one’s religion or beliefs where such limitation is “prescribed by law”, is
“necessary in a democratic society” and which has the purpose of pursuing one of
the aims laid down.
As the ECtHR outlined in SAS v France, in determining a question of whether there
has been an infringement of Article 9, the Court will generally engage in a 3-part
test: legality, legitimacy and necessity (and proportionality).
The application of the first two steps is far too formalistic to provide any
substantial degree of protection to applicants.
This means that the Court is too quick to defer to the State’s
arguments and fails to fully consider the application of the steps to
the facts before it.
In relation to the final stage, while the case of Larissis v Greece demonstrates
that the Court is willing to apply a more nuanced approach to the
proportionality assessment, sensitive to particular distinctions in the facts, the
Court in general has been seen to afford, by default, a wide MOA to the State.

, This is particularly problematic as it rests on a false assumption,
made by the Court, that they are assessing an intrinsically
controversial issue as part of the proportionality assessment.
2. Legality:
The Court has shown itself to be very flexible in determining whether the measure is
“prescribed by law” (Article 9(2)).
This is particularly evident in the case of Dahlab v Switzerland, in which the
applicant, a teacher, was prohibited from wearing her religious headscarf in the
school.
There was no law prohibiting the wearing of the headscarf, however, the
Court found that the University Guidelines which prevented the applicant
from expressing her religion was sufficient to fulfil this requirement.
The idea behind this flexibility is that of subsidiarity; the Court is flexible because it
has to be.
This is evidence that the Court recognises its place as a supranational Court
whose role is not to define how Governments should respect freedom of
religion or belief, just that they have to, and as such should refrain from
passing judgement on the quality of domestic laws.
3. Legitimacy:
In order to pass this requirement, the impugned measure by the State must be proven
to be in pursuit of one of the aims laid down in Article 9(2) ECHR.
Namely, public safety, protection of public order, health, or morals, or for the
protection of the rights and freedoms of others.
The ECtHR in Nolan and K v Russia were clear that such exceptions must be
narrowly interpreted, “for their enumeration is strictly exhaustive and their definition
is necessarily restrictive.”
This is consistent with the structure of not only Article 9 but all the other
qualified rights in the Convention, that the right is primary, and the
limitations should be secondary and strict/exceptional.
The case law shows that, instead, a lot more emphasis is put on these
exceptions.
As raised by Alves Pinto, a notable omission from such exceptions, contrary to other
qualified rights, such as freedom of expression under Article 10, is that freedom of
religion or belief cannot be limited on grounds of “national security”.
In its guide to Article 9, the ECtHR stated that the omission of national
security as one of the permissible bases of limitation reflects the fundamental
importance of religious pluralism as “one of the foundations of a democratic
society”.
The most problematic of the exceptions, in relation to the level of protection afforded
to applicants, is the “protection of the rights and freedoms of others”.
The first point to be raised is that the wording of Article 9(2) on this point is
unhelpfully vague: are these “rights and freedoms” confined to those rights to
be found in the ECHR or can other rights be included?
The ECtHR in Osmanoglu v Switzerland seems to suggest that this
exception is not confined to those rights and freedoms found within
the Convention.
This case concerned Muslim parents who did not want their
daughters to attend mixed swimming lessons on the ground
that it went against their faith.
The Court accepted the argument raised by the State on the
basis of the protection of the rights and freedoms of others,
namely that the contested measure was aimed at the
“integration of foreign children from different cultures and
religions, as well as the smooth functioning of the education

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