Article 9 of the Convention provides as follows:
(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.
Article 10 of the EU Charter corresponds to Art.9 ECHR and is subject to the limitations set out in 9(2). This means, in effect, that where Member States are adopting Directives prohibiting discrimination or implementing EU working time rules, they are bound to respect the religious beliefs and activities of their citizens. This also authorises the slaughter of animals without pre stunning to satisfy the demands of Halaal consumers despite the provisions of Directive 93/104/EC on the protection of animals at the time of slaughter. The right to freedom of religion is also associated with the particularly highly protected EU right for individual to move across borders to join religious groups, preach etc.
Art.9 covers the sphere of private, personal beliefs and religious creeds. The Strasbourg authorities emphasise the democratic importance of an open forum of beliefs and opinions; atheists and agnostics may therefore claim the protection of this right (Kokkinakis v Greece (1993)17 EHRR 397).
The Strasbourg Court has accepted the following views and positions as beliefs under Art.9 :
(1) Veganism: United Kingdom Application No.00018187/91 (1993) Unreported.
(2) Scientology: Sweden Application No.0007805/77 (1979) 16 DR 68.
(3) Kosher diet: United Kingdom Application No.0008231/78 65 DR 245.
(4) Jehovah’s Witness: Kokkinakis v Greece (1993).
The right to freedom of conscience was argued in the right to die cases R v DPP ex parte Pretty and Pretty v UK following Sanles v. Spain [2001] EHRLR 348. The argument in both cases was that one’s own freedom to choose the manner and timing of one’s death should not be restricted by legislation fuelled by religious sensitivities. The argument was rejected in Strasbourg: see Pretty (2) for a critique of this element of the judgment. In general, positions taken in relation to politics and ideology do not qualify for Article 9 protection. There is no right, for example, under Article 9 to conscientious objection: Application No.0007705/76 (1977) 9 DR 196. Art.9 only protects actions and gestures that are intimately connected with a creed or belief. In Arrowsmith v United Kingdom (1978) 19 DR 5 the Commission rejected a complaint that the prosecution of the applicant for handing out leaflets to soldiers urging them not to serve in Northern Ireland breached her rights under Article 9. This was a specific action and not a general expression of her pacifist ideals. However the explicit exclusion of non-theistic belief systems by the Court may have to be reviewed in the light of the current inflamed debate about the impact of religion on various freedoms, such as the freedom to marry according to one’s choice, and of course the general freedom of expression.
There is some scepticism about an express right to respect for religion in a largely secular society and recent cases upholding the right to religious practices have attracted strong criticism. When the High Court ruled in May 2011 that a Muslim prisoner could not be disciplined for refusing to give urine for a drugs test because he was in the midst of a voluntary fast the general view was that the courts were once again cravenly giving way to abusive reliance on human rights by unsavoury characters: see the comments on our report of the case.
Furthermore, the idea that freedom of speech must give way to religious sensitivities under the increasing cloud of offence is becoming a highly contentious issue, made more so by the tensions surrounding Islamic extremism and the murderous attacks in Europe of those deemed offensive to the religion.
Article 9 does not impose a positive obligation on the State to introduce legislation to criminalise blasphemy or, where blasphemy laws are present, there is no duty on public authorities to bring proceedings against publishers of works that offend the sensitivities of any individual or group: Choudhury v United Kingdom Application No.00017439/90 (1991). States which impose conscription will not therefore be in breach of Article 9 if they sanction such objections.
Churches and associations with religious and philosophical objects are capable of exercising Article 9 rights. Profit-making corporations on the other hand cannot rely on Article 9 rights. In Refah Partisi v Turkey (2003)the Court held that the dissolution of a political party that was held to desire to establish a theocracy was consistent with the ECHR on the grounds that theocracy flew in the face of the liberal and democratic principles of the Convention.
Article 9 does not require active facilitation of religious beliefs in the workplace (Stedman v United Kingdom (1997) 23 EHRR CD 168, although the Strasbourg Court has adopted a more generous approach in Eweida and Others v United Kingdom (2013) by concluding that the applicant’s employer had breached her Article 9 rights by refusing to allow her to wear a crucifix. This was a minor victory however since the Court also decided that a policy requiring employees to serve all customers irrespective of sexual orientation was a legitimate restriction on religious freedom (this part of the case involved a Christian registrar disciplined for refusing to register same-sex couples and a second involving a marriage therapist dismissed for refusing to counsel same-sex couples). The Strasbourg Court is generally unsympathetic to individual claims for exemption on religious grounds to generally applicable laws; thus, in Pichon and Sajous v France (an inadmissibility ruling of 2001), the conviction of pharmacists who refused on religious grounds to supply contraceptives that had been lawfully prescribed was upheld on the basis of the need to take account of both health policy and the rights and freedoms of others. In Dahlab v Switzerland (2001) the Court upheld the refusal by the authorities to allow a teacher to wear a headscarf, on the basis that the state was entitled to seek to ensure the neutrality of the education system. Beyond the private sphere, therefore, states have a broad margin of discretion in deciding what religious actions and symbols to restrict.
Section 13 Human Rights Act 1998 provides that if a court’s determination of any question might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion under Art.9 , the court must have particular regard to the importance of that right. See Alison Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375 for judicial discussion of the practical effect of this section. However see comments by Laws LJ on the proposal to accord special treatment in the courts to claimants or defendants relying on supernatural backing for their behaviour: McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010)
The freedom of religion also includes a negative aspect, including the rigth not having to manifest one’s religion or beliefs. In the case of Sinan Isik v. Turkey the Strasbourg Court ruled that it was an interference with Art.9 to require a citizen to indicate his religion in his application for an ID card or formally ask for the religion box to be left empty. That in itself, in the Court’s view, violated the Convention. This presumably covers all forms of state-sanctioned identification documents or registers.
The Human Rights Act 1998 also provides that priests, ministers and officials of any church are excluded from liability under s.6 where they refuse to administer a marriage “contrary to [their] religious doctrines or convictions”.