ECHR – Article 9 PDF

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ECHR – Article 9 Article 9 ECHR – ‘Thought, Conscience & Religion’ Article 9(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. Article 9(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 is a mixed absolute and qualified right – (absolute) rights which cannot be interfered with by the state or derogated from even in a state of emergency; (qualified) rights which have to be balanced against the public interest and may therefore be interfered with, subject to a number of conditions set out in the relevant provisions. Therefore, it is not subject to the restrictions in 9(2) as these only apply once the beliefs have been manifested. Positive obligation on the state to allow citizens to enjoy their beliefs peacefully without interference. Issues relating to Article 9 ECHR CASE Pretty v UK [2002] 35 EHRR 1 

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The applicant was dying of a neuron disease. She was paralyzed but could make decisions. She wanted to die to be spared of suffering and indignity but could not do it by herself. She thus wanted her husband to help her commit suicide. However, it was a crime to assist another to commit suicide under the British laws and her request to guarantee her husband freedom from prosecution if he helped her was refused. Issue: The applicant claimed that the U.K. violated Article 3 (prohibition of inhuman or degrading treatment or punishment), Article 2 (right to life), Article 8 (right to respect for private life), Article 9 (freedom of conscience) and Article 14 (prohibition of discrimination)

Held The ECHR found no violation of article 2, 3, 8, 9 and 14. Article 2: (1) enjoined States to refrain from the unlawful taking of life and to take appropriate steps to safeguard lives. Article 2 could not be interpreted as conferring a right to die so there was no violation of article (2) Moreover, as article 3 was construed in conjunction with Article 2 there was no violation of article 3 either. CASE Sahin v Turkey [2004] 19 BHRC 590 

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Held

(Grand Chamber) The applicant had been denied access to written examinations and to a lecture at the University of Istanbul because she was wearing an Islamic headscarf. This was prohibited not only by the rules of the university but also by the Constitution of Turkey. Şahin claimed that her rights under Articles 8, 9, 10, and 14 of the European Convention on Human Rights (ECHR) and Article 2 of Protocol No. 1 of the ECHR had been violated by both the headscarf ban and her subsequent suspension from Istanbul University.

However, as an initial matter, the ECtHR found that Sahin’s arguments under Articles 8, 10, and 14 are all related to her allegations under Article 9 (freedom of religion). As such, the ECtHR addressed only the violations alleged under Article 9 and Article 2 of Protocol No. 1 (the right to education). The ECtHR found that her religious freedom had been restricted, but that the restrictions were proportionate to the aims of the University and of the state in their attempts to protect the nation’s secularism. The ECtHR ruled in favour of Turkey because it found that the actions of the University were in accordance with Turkish Law. The ECtHR also held that the restriction of religious freedoms in the form of religious attire was proportionate to the aim of promoting democracy through the maintenance of secularism. The ECtHR ruled, 16-1, that there had been no violation of either Article 9 of the ECHR or Article 2 of Protocol No. 1, and it held unanimously that there had been no violation of Articles 8, 10, or 14. CASE Choudhury v UK [1991] 12 HRLJ 172 

Someone accused Salman Rushdie of blasphemous libel.

Held The divisional court dismissed the claim on the grounds that blasphemous libel was only available against those who “vilified the Christian religion”, which the Satanic Verses didn’t do. They also said that articles 9 and 14 did not require the crime to be extended to all religions. The court says that the book has not prevented Muslims from practicing their religion, while article 14 (non-discrimination) has been interfered with on reasonable grounds, in that to extend the offence of blasphemous libel would lead to great incursions into free speech. Because of its not requiring intentional offence, in reality it would lead to all criticism of religion which people find offensive being banned. The Court stated: “The mere fact that the law is anomalous or even unjust does not, in our view, justify the court in changing it, if it is clear. If the law is uncertain, in interpreting and declaring the law the judges will do so in accordance with justice and to avoid anomaly or discrimination against certain classes of citizens; but taking that course is not open to us, even though we may think justice demands it, for the law is not, we think, uncertain. [ … ] We have no doubt that as the law now stands it does not extend to religions other than Christianity. Can in the light of the present conditions of society be extended by the courts to cover other religions? […] In our judgement, where the law is clear it is not the proper function of this court to extend it; particularly so in criminal cases, where offences cannot be retrospectively created. It is in that circumstance the function of Parliament alone to change the law [ …] The common law of blasphemy was confined to protecting only the Christian religion and the court would not extend the law of blasphemy to cover other religions because it would be virtually impossible by judicial decision to set sufficiently clear limits to the offence if it were to be extended. Furthermore, the absence of a law protecting religions other than Christianity was not a breach of the United Kingdom’s obligations under the European Convention for the Protection of Human Rights and Individual Freedoms because the protection of freedom of religion in article 9 of that convention did not require a domestic law to provide a right to bring criminal proceedings of blasphemy and such proceedings would be contrary to the author’s right of freedom of expression under article 10 of the convention…”...