ABSTRACT Esko RIMPI
Analyses and Development of the Articles of the European Convention of Human Rights for Health and Ethics
Signed in 1950, the convention is a living instrument strengthened by half a dozen protocols.
Article 9 deals with Freedom of thought, conscience and religion :
§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.”
It gives no definition of religion or belief, however. The Convention has left this job up to the Court and the Commission. As there is no consensus concerning the definition of “religion or belief”, the courts from different countries have had to establish limits on a case by case basis.
Similarly, the right to freedom of religion and that of changing religion are unlimited, and no dispensation is permitted, be it to a State, a group or an individual if not provided for in the Convention.
Article 9 enshrines the freedom to manifest a person’s religion or beliefs through practice. However, not all acts motivated by religion or beliefs are protected by Article 9. There has to be a direct link between the religion and the practice. Claimants must be capable to show that they are able to show that they were expected to act in a certain way because of their religion or their beliefs.
Article 9(2) sets limitations to these manifestations of religion or beliefs: in the Draft for the European Constitution this special to Article 9 combined restriction clause is abolished and replaced only by general provisions under article 52. The future will show if it is a weakening or a strengthening for these important limitations.
Even though States are the best placed to determine whether or not a particular restriction should be applied to a law, the Court retains its supervisory role.
It is enough to ban the activities of religions and beliefs which are directly involved in injuries, threats to the State or public health, by virtue of Article 9(2).
When we are talking about the more delicate aspect of a human being – their emotional life – their is no rule that can possibly govern the person in question, or the manner in which they should behave. It is high time we dared to criticise the dark side of all religions, independently of each other, and to stop continuously falling back on the same old line: “religion is a fundamental right”.