Individual manifestations of religion and belief under the ECHR

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Abstract

Recently, the European Court of Human Rights (ECtHR) handed down two judgments on individual manifestations of religion and belief: Lautsi v Italy and Bayatyan v Albania. Lautsi is a controversial judgment in which the Grand Chamber reinterpreted many of its previous rulings and principles. Bayatyan, on the other hand, is a renewed confirmation of long standing principles under the European Convention on Human Rights (ECHR). This article will explore and compare the two aforementioned cases. It will start with a description of the judgments, followed by an outline of what acts qualify as manifestations of religion and belief under the ECHR. Thereafter, the article will discuss various aspects of the ECtHR's caselaw relating to manifestations of religion and belief, in particular the unsatisfactory manner in which the doctrine of the margin of appreciation has been developed. In the discussion, Lautsi will be criticised for its approach to European consensus and the margin of appreciation, for its failure to ensure a common European protection of the freedom of religion, for an enhancement of a doctrine of compensation when States limit religious rights, for its failure to protect the right party in the dispute and for neglecting the rights of children. In contrast, the article will advocate the approach taken in Bayatyan, a case in which the Grand Chamber rightly left it to the religious believer to decide what forms part of his religion, and in which the Court took, it is submitted, the correct approach towards the question of European consensus and the protection of religious minorities. It will conclude by exhorting the Court to return to the principles it has previously set and to return once again to the substantive protection of the rights of individuals under the ECHR.
Original languageEnglish
Pages53-73
Number of pages21
Volume6
Specialist publicationHong Kong Journal of Legal Studies
Publication statusPublished - 2012
Externally publishedYes

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