Article 9 - The Right to Freedom of Thought, Consience and Religion : A study on whether banning of religious symbols in order to preserve the principle of secularism can be justified under article 9 of the European Convention on Human Rights

Abstract:

The tension between the banning of religious symbols and the principle of secularism is the subject of this study. The presence and visibility of religious symbols in the public sphere has given raise to a debate around Europe. Within the member states of the Council of Europe the role of religion differs and the principle of secularism is interpreted differently. The right to freedom of thought, conscience and religion is provided for in article 9 of the European Convention on Human Rights under which the right to manifest religion or belief is protected. This right is of fundamental character and cannot be derogated from. The right to manifest religion or belief however can be subject to limitations under given conditions. The case law of the European Court of Human Rights indicates that member states has been left with a wide margin of appreciation in dealing with the freedom of religion and regulations falling under this right. The Strasbourg Court has accepted that the protection of secularism can be a justified ground for banning religious symbols. However, this is an interference with the right to express and worship one’s religion or belief and there is a need to strike a balance between the public interest and the interest of the individuals and determine whether such interference is necessary in a democratic society. This thesis discusses two values of fundamental character, on the one hand the right to freedom of religion and on the other hand the principle of secularism as a constitutional value. With regard to this, the application of the margin of appreciation is of relevance to consider. The author of this thesis argues that the role of the Court is to ensure that domestic laws are not in conflict with the Convention rights and thus that it shall not take any position on whether or not symbols shall be prohibited. The role of it shall be to secure that interference with article 9 by state authorities does not extend the conditions provided for in the Convention.