Protecting Freedom to Manifest One's Religion or Belief: Strasbourg or Luxembourg?
| Author | Erica Howard |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| DOI | http://doi.org/10.1177/016934411403200204 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human Ri ghts, Vol. 32/2, 159–182, 2014.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 159
PROTECTING FREEDOM TO MANIFEST
ONE’S RELIGION OR BELIEF:
STRASBOURG OR LUXEMBOURG?
E H*
Abstract
Persons who want to manifest their religion through the wear ing of religious symbols but
who are prohibited from doing so appear to be unlikely to be successful in challenging
these prohibitions under Articles9 or 14 ECHR before the European Court of Human
Rights in Strasbourg, although very recent case law might tentatively suggest a shi
in this approach. is article gives an overview of this case law, including the recent
judgment in Eweida and others v. the United Kingdom, and this is followed by an
analysis of a number of arguments which sugge st that a challenge to bans on the wearing
of religious symbols would have more chance of being su ccessful in the Court of Justice of
the European Union in Luxembourg.
Keywords: ECHR; EU law; freedom of religion; manifestations of religion or belief;
religious discrimination
1. INTRODUCTION
In a number of cases, the European Court of Human Rights in Strasbourg (the
Strasbourg Court or ECtHR), the Court tasked with overseeing the European
Convention for the Protection of Human Rig hts and Fund amental Freedoms of 1950
are a breach of the freedom to manifest one’s religion contrary to Article 9 ECHR
and/or the right to non-discrim ination in Article14 ECHR. e Strasbou rg Court has
le a wide margin of appreciation to States in these cases and, although it generally
nds an interference with these rights, it usually considers this interference to be
* All websites were la st visited on 1March 2014.
1 e ter m ‘religious symbol ’ will be used to i ndicate a symbol wh ich signi es an important part of a
person’s religious identit y. It includes symbols worn becaus e of a religious obligation or l inked to or
inspired by a person’s relig ion or belief.
Erica Howard
160 Intersentia
justi ed. e Strasbourg Court seems, as will be discussed below, to readily accept
the justi cation brought forward by the State Party. A person a ected by the bans is
therefore unl ikely to be successfu l in claiming an infringement of their human rights
before this Court, although very recent case law might tentatively suggest a shi in
this approach. But would a chal lenge of bans on the wearing of religious symb ols have
more chance of being successful in the Court of Justice of the European Union2 in
Luxembourg? Will the lat ter decide these cases di erently a nd be more willing to nd
a breach of human rights or anti-di scrimination law? A number of arguments sug gest
that the Luxembourg C ourt might deal with bans on relig ious symbol s in a di erent
way from the Strasbourg Cou rt and nd that t hese are not justi ed under EU law.
is a rticle starts w ith an overview of the case law of the St rasbourg Court on bans
on the wearing of relig ious symbols, including an ex amination of the justi cation test
applied under both Articles9 and 14 ECHR. It then proceeds with an analysis of the
arguments which sug gest that t he Luxembourg Court, if called upon to do so, could
very well deal with these bans in a di erent way by applying a stricter justi cation
test, which makes a ndi ng that these bans are not justi ed under EU law more likely.
ese arguments are, rst, that EU law does not generally allow for justi cation of
direc t discr iminatio n except in c ertain , clearly pr escribed circumst ances. S econd, the
Lu x em bo ur g Co u rt ha s co ns i st en t ly he ld t ha t r es t ri c ti on s on th e ri g ht s l a id do wn i n t h e
EU anti-discrimination directives must be interpreted strictly. ird , the EU Charter
of Fundamental Rights expressly states that the EU can go beyond the provisions of
the ECHR. And, fourth, the Luxembourg Court is generally more concerned with
a uniform application of EU law, while the Strasbourg Court gives States a certain
margin of appreciation. In the conclusion, an attempt is made to answer two
questions: whether it is li kely that the Luxembourg Court wil l provide a better route
to successful ly claim a violation against ban s on the wearing of religious symbols a nd
whether the recent tentative shi in approach in the Strasbourg Court might mean
that the latter route could, in the future, be more successful as well. In other words,
which court, Stra sbourg or Luxembourg, would provide the best protection for those
people who want to wear a religious sy mbol but who are prohibited from doing so?
It must be noted that it is much easier for an individual to reach the Strasbourg
Court, because that Court can ‘receive applications from any person, non-
governmental organisation or group of individuals claiming to be the victim of
a violation by one of the High Contracting Parties of the rights set forth in the
a ected by a ban on the wearing of religious symbols can apply directly to the
Strasbourg Court, once all domestic remedies are exhausted. In contrast, the right
2 ere are th ree strands to the cour t system in the EU: the Cour t of Justice, the General C ourt and
the special ised court s in speci c areas. e Court of Justic e gives ruli ngs on requests for prelim inary
rulings a nd, as mentioned below, a case on bans of reli gious symbols would reach t he EU courts in
this way, so, in the fol lowing, ‘the Luxembou rg Court’ refers to the C ourt of Justice of the EU. Any
references in quotes to the E CJ are also to this C ourt.
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