Human Rights Encyclopedia

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Freedom of Thought, Conscience and Religion

Freedom of thought, conscience and religion is listed under Article 18 of the Universal Declaration of Human Rights 1948, which is legally binding upon Member States of the International Covenant on Civil and Political Rights.

“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 teaching, practice, worship and observance”(emphasis added)

This right finds similar expression in many legal instruments, notably the African Charter on Human and People’s Rights 1981 (Article 8), the American Convention on Human Rights 1969 (Article 12) and the European Convention on Human Rights 1950 (Article 9).

Meaning of “thought, conscience and religion”

The Human Rights Committee’s[1] General Comment No. 22 fleshes out the intended meaning of this right, but it is subject to varied interpretations across the global range of protection systems listed above. The former emphasises that this right is “far-reaching and profound”, forbids derogation “even in time of emergency”, states that each freedom is to be “protected equally” and “no one can be compelled to reveal his thoughts or adherence to a religion or belief”, meaning one is entitled to keep their religion or belief an exclusively private matter.

While the above suggests a potentially wide and comprehensive scope for Article 18, the case law shows its protection to be somewhat circumscribed in practice, and it varies according to region. Article 9 of the European Convention on Human Rights 1950 protects beliefs when they relate to a “weighty and substantial aspect of human life and behaviour”[2] and are deemed worthy of protection in a democratic society. As such, much of the jurisprudence focuses on religious beliefs, while, for example, beliefs in how to dispose of remains after death[3], assisted suicide[4] (see below) and language preferences[5] are not encompassed. It should be stated, however, the right to non-belief is continually recognised by the courts as a ‘precious asset’.[6]

On freedom of conscience, Pretty v UK [2002][7] and Sanlés v Spain [2000][8] advanced the arguments that one’s freedom to choose the manner and timing of death should not be restricted by legislation fuelled by religious sensitivities, but this was ultimately rejected by the European Court, where it was held that positions taken in relation to politics and/or ideology do not, in general, qualify for Article 9 protection.

Article 12 of the American Convention includes “freedom to maintain or to change one’s religion or beliefs”, much like Article 9 of the European Convention. The European Court of Human Rights, which hears applications in relation to alleged violations of the Convention, described this as “one of the foundations of a democratic society”[9]. Article 8 of the African Charter, on the other hand, does not include freedom of thought or protect the freedom to adopt or change one’s religion or belief according to particular convictions.

The freedom to “manifest” religion or belief

The Article 18 entitlement to manifest religion or belief both publicly and privately means States are forbidden from requiring religious associations to register in order to enjoy this freedom, as noted by the Human Rights Committee.[10]

The American Convention, under Article 12 (1), states that the “freedom to profess or disseminate one’s religion” is protected, while the African Charter affirms the “profession and free practice of religion” under Article 8.

Article 9(1) freedoms under the European Convention include, in principle, the right to attempt to convince one’s neighbour, through teaching, to change religion.[11] The European Court, however, does not find an interference with freedom where the state refuses to authorise an applicant’s wish to approve ritual slaughters, especially as this meat could easily be obtained elsewhere.[12] In other words, the state would have to be rendering impossible something fundamental to religion in order to be interfering with this freedom.

Justified limitations to the freedom to “manifest” religion or belief

According to Article 18 (3), this freedom “may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others”. The Human Rights Committee added that limitations must not be discriminatorily implied. Legislation requiring workers to protect themselves from injury by wearing hard hats, for instance, is a limitation justified by the grounds laid down in article 18(3), namely health.[13]

The American Convention converges with rules enumerated by the International Convention on Civil and Political Rights, as does that of the European Court, the latter of which adds the necessity test “in a democratic society”. Kokkinakis v Greece [1993] showed that a limitation of a right must be justified by some “pressing social need”, for example to dissuade “improper proselytism”.[14] While the United Nations’ General Comment states that limitations “must be based on principles not deriving exclusively from a single tradition”[15], this aspect has proved controversial for the European Court particularly in the realm of religious dress.

Rights limited, religious attire and the proportionality test

 In Dahlab v Switzerland [2001] the European Court justified limiting a teacher’s freedom to wear a headscarf on the basis that it was “a powerful external symbol” which might have some “proselytising effect” on the pupils, adding that it imposed upon women a “religious precept that was hard to reconcile with the principle of equality”.[16] The Court cited the same dicta later in Sahin v Turkey [2005][17] but in a case concerning a Muslim university student’s choice to wear a headscarf, making no distinction as to the ease with which very young children and university students are influenced. Critics of the case and a dissenting judge (Tulkens) spotted the adverse impact this could have on Muslim women’s rights and access to education, as well as the pernicious risks of potentially portraying Islam as a threat to democracy.[18]

Although there is wide agreement on the necessity step or the principle of proportionality, its credibility was been brought into question in the Sahin case, because in theory the link should be between Sahin’s act and the extremities Turkey legitimately sought to oppress: “the scenes of violent confrontation between opposing radical groups”[19]. Given the student’s illustration that, prior to the prohibition, she had worn the headscarf without causing any “disturbance…to the public order”, it is not clear what constituted the necessity link. Controversy also arose over the Court’s application of the proportionality test, in which it should consider whether “less intrusive means”[20] could have obtained the legitimate aim. Indeed, in Sahin the court stated that more restrictive means had not been taken, noting in paragraph 118: “habitual forms of Muslim observance” remain open. That the Court ostensibly inversed the proportionality test has worried some observers. Excluding all Muslims or even closing the university would achieve the aim, but they go no way in proving that the interferences are proportionate.

 The issue arose once again in SAS v France [2014][21] where the French ban on clothing worn in public designed to conceal the face was not held to be a breach of the European Convention. The Court held that this was proportionate and justified for the aim of “living together”, accepting the French government’s case that a full face veil prevents interaction between individuals. Human Rights Watch has noted the conceivable effects of such a ban: confining women to their homes and isolating them further from society.[22]

Margin of appreciation

Finally, the European Court affords a margin of appreciation to states, allowing them a certain space for manoeuvre in granting rights, owing to the “diversity of approaches in Europe”.[23] While the lessons drawn from the cases are not inconsistent, they are difficult to reconcile with the aforementioned requirement that limitations be based on principles not deriving from a single tradition; ‘veil-wearing’ is arguably conflated with fundamentalism[24], but also because they fail to explain why being institutionally compelled to remove a headscarf might be a more liberating experience than feeling normative pressure to wear it. Commentators have noted that if the end result is in fact the exclusion of many women (who are already socio-economically disadvantaged in states like Turkey) from important public spaces such as schools and universities, the struggle for equality will arguably be retarded, not advanced.[25]

 

Bibliography

  

Primary sources

 

  1. Universal Declaration of Human Rights, 1948

 

  1. International Covenant on Civil and Political Rights, 1966

 

  1. European Convention on Human Rights, 1950

 

  1. Sahin v. Turkey, Application no. 44774/98, Council of Europe: European Court of Human Rights, 10 November 2005.

 

 

Secondary sources

 

  1. Office of the High Commissioner for Human Rights in Cooperation with the International Bar Association,“Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers.” (2002).

 

  1. Jim Murdoch, Council of Europe human rights handbooks, “Protecting the right to freedom of thought, conscience and religion under the European Convention on Human Rights”, Council of Europe, Strasbourg, (2012).
  1. Nicholas Gibson, “Faith in the courts: religious dress and human rights”, The Cambridge Law Journal66.03 (2007): 657-697.
  1. G. van der Schyff & A. Overbeeke, “Exercising religious freedom in the public space: A comparative and European convention analysis of general burqa bans.” European Constitutional Law Review, 7(03), (2011): 424-452.

Adam Thompson

[1] The body responsible for monitoring implementation of the International Covenant on Civil and Political Rights

[2] Campbell and Cosans v. the United Kingdom, §36.

[3] X v. Germany (1981) (but matter can fall within the scope of Article 8).

[4] Pretty v. the United Kingdom.

[5] . Belgian Linguistic case, Law, §6

[6] See Kokkinakis v Greece 25 May 1993 Series A no 260-A p. 17 at para 3; Buscarini and Others v San Marino [GC] no. 24645/94 at para 34 ECHR 1999-I; Sahin v Turkey [2005] Application no 44774/98 at par 104.

[7] Pretty v. United Kingdom (2346/02)

[8] Application No 48335/99 Manuela Sanles v Spain (26 October 2000)

[9] Ibid, para. 31.

[10] UN doc. GAOR, A/56/40 (vol. I), pp. 63-64, para. 24.

[11] Eur. Court HR, Case of Kokkinakis v. Greece, judgment of 25 May 1993, Series A, No. 260-A, p. 17, para. 31.

[12] Eur. Court HR, Case of Cha’are Shalom Ve Tsedek v. France, judgment of 27 June 2000; the text used is the unedited text found on the Court’s website: http://hudoc.echr.coe.int, para. 58.

[13] 39. Communication No. 208/1986, K. Sing Bhinder v. Canada (Views adopted on 9 November 1989), in UN doc. GAOR, A/45/40 (vol. II), p. 54, para. 6.2.

[14] Eur. Court HR, Case of Kokkinakis v. Greece, judgment of 25 May 1993, Series A, No. 260-A, p. 12, para. 16.

[15] United Nations Compilation of General Comments, p. 145, para. 8.

[16] Dahlab v Switzerland [2001] ECtHR (No. 42393/98) (15 January 2001)

[17] Sahin v. Turkey, Application no. 44774/98

[18] Ibid

[19] Sahin v. Turkey, at para. [96]

[20] 253. Eur. Court HR, Case of Nilsen and Johnsen v. Norway, judgment of 25 November 1999, Reports 1999-VIII, pp. 72-75, para. 25, and p. 76, para. 27.

[21] SAS v France (application no 43835/11) [2014]

[22] http://www.hrw.org/news/2014/07/03/france-face-veil-ruling-undermines-rights

[23] The Margin of Appreciation in International Human Rights Law: Deference and Proportionality, by Andrew Legg. Oxford: Oxford University Press, 2012, 264pp

[24] Piatti-Crocker, A., & Tasch, L. (2013). Unveiling the Veil Ban Dilemma: Turkey and Beyond. Journal of International Women’s Studies13(3), 17-32.

[25] Gibson, Nicholas. “Faith in the courts: religious dress and human rights.” The Cambridge Law Journal 66.03 (2007): 657-697.

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