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Is There a Right to Be ‘Free from’ Religion or Belief at Strasbourg?

  • Caroline K Roberts (a1)
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The theme of the Ecclesiastical Law Society's 2016 Day Conference, ‘Freedom of/from religion’, reflects the growing interest in the idea that, in addition to a right to freedom of religion, there is a right to ‘freedom from’ religion. In recent years, there has been a trend towards increased use of the language of freedom from religion in academic literature and in material produced by practitioners, organisations and activists in discussions of the right to freedom of thought, conscience and religion.

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2 See, for instance, Franklin, J, ‘Freedom from religion and freedom from irreligion’, (2014) 9 Connor Court Quarterly 112 ; Gogineni, R and Gule, L, ‘Humanism and freedom from religion’ in Lindholm, T et al. (eds), Facilitating Religion or Belief: a deskbook (Leiden, 2004), pp 699719 ; Guoira, A, Freedom from Religion: rights and national security (Oxford, 2013); Wallace, M, Freedom from Religion: rethinking Article 18 (Sydney, 2015); Weiler, J, ‘Freedom of religion and freedom from religion: the European model’, (2013) 62:2 Maine Law Review 760768 .

3 This is the central focus of my PhD thesis, ‘The development of the Strasbourg jurisprudence concerning religious freedom and the need for a reappraisal of the understanding of Article 9 of the European Convention on Human Rights’ (to be submitted to Bristol University).

4 Buscarini and Others v San Marino App no 24645/94 (ECtHR, 18 February 1999) at para 34.

5 X v Austria (1963) Collection 13, pp 42–54.

6 Alexandridis v Greece App no 19516/06 (ECtHR, 21 February 2008) at para 32; Sinan Işik v Turkey App no 21924/05 (ECtHR, 2 February 2010) at para 38.

7 The distinction most frequently used in the literature relating to Article 9 is that between rights which fall within the scope of the forum internum (the internal realm of the mind) and the forum externum (the external realm of action).

8 H Bielefeldt, ‘Streit um die Religionsfreiheit’, Erlanger Universitatsreden 77/2012 (2012), p 16, available at <https://www.zuv.fau.de/einrichtungen/presse/publikationen/erlanger-universitaetsreden/Unirede-77.pdf>, accessed 11 October 2016.

9 Article 9 protects ‘the right to hold and not to hold religious beliefs’. See Buscarini v San Marino at para 34 and, most recently, Güler and Uğur v Turkey App nos 31706/10, 33088/10 (2 Feb 2014) at para 34.

10 Darby v Sweden (1990) Series A no 187, at para 51.

11 Eg Bielefeldt, H, Ghanea, N and Weiner, M, Freedom of Religion or Belief (Oxford, 2016), p 106 ; Howard, E, Law and the Wearing of Religious Symbols (Abingdon, 2013), pp 4, 24, 25, 159, 160; Lerner, N, Religion, Secular Beliefs and Human Rights (Leiden, 2006), p 18 .

12 National Secular Society, ‘What is secularism?’, available at <http://www.secularism.org.uk/what-is-secularism.html>, accessed 31 August 2016.

13 See Gogineni and Gule, ‘Humanism and freedom from religion’, pp 705–706. For a discussion of this trend, see Bielefeldt, H, ‘Misperceptions of religion or belief’, (2013) 35:1 Human Rights Quarterly 3368 .

14 Lautsi v Italy App no 30814/06 (ECtHR, 3 November 2009).

15 Ibid at para 56.

16 Ibid at para 47(e). This is the first time that ‘negative freedom’ was used by Strasbourg in relation to Article 9. In support, the Court cited its use in relation to the Article 11 case of James, Young and Webster (1981) Series A no 44 at paras 52–57.

17 Lautsi v Italy I at para 55.

18 Karaduman v Turkey App no 16278/90 DR 93 at p 108. See also Dahlab v Switzerland App no 42393/98 (ECtHR, 15 February 2001); Sahin v Turkey App no 44774/98 (ECtHR, 10 November 2005); Kose and 93 Others v Turkey App no 26625/02 (ECtHR, 24 January 2006); Kurtulmuş v Turkey App no 65500/01 (ECtHR, 24 January 2006).

19 Lautsi v Italy I at para 50.

20 Ibid at para 55.

21 Ibid at para 55.

22 Ibid at para 57.

23 Evans, M, ‘And should the first be last’ (2014) 3 BYU Law Review 531545 at 532.

24 Lautsi and Others v Italy App no 30814/06 (ECtHR, 19 March 2011) at para 60.

25 This reading is bolstered by reference to Judge Bonello's interpretation of freedom from religion as the ‘the right not to embrace a religion at all’. Ibid, concurring opinion of Judge Bonello at para 2.6.

26 SAS v France App no 43835/11 (ECtHR, 1 July 2014).

27 Ibid at para 157.

1 This Comment is based on a presentation at the Law and Religion Scholars Network Annual Conference at the Centre for Law and Religion, Cardiff University, on 6 May 2015.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
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