Religious dress and the rights of others – an analysis of the case law of the European Court of Human Rights
Abstract: This essay examines the protection of the wearing of religious dress under article 9 (freedom of religion) of the European Convention on Human Rights, according to the case law of the European Court of Human Rights. It examines how religious dress is protected as a manifestation of religion and with reference to which rights of others and under which circumstances it can be restricted with reference to the legitimate aim protection of the rights and freedoms of others. It also investigates how the right to manifest one’s religion through religious dress is balanced against those rights of others in the ECtHR proportionality assessment as well as what margin of appreciation the states are given in these cases. The main material consists of judgments and admissibility decision from the ECtHR where these questions are treated. The results show that the right of others that is most often referred to in this context is secularism, but the right to gender equality and living together are also referred to. The results also show that the states are most often given a wide margin of appreciation in restricting religious dress, with the only exception being when the legitimate aim is the protection of secularism and it concerns private citizens in public places open to all such as streets and public squares. It also shows that in 22 of the 24 cases of this study the rights of others outweigh the right to wear religious dress in the proportionality assessment of the cases.
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