Human Rights : Article 9 - Freedom of thought, conscience and religion
Qualified right – but with an absolute element
Represents one of the foundations of a “democratic society” within the meaning of the Convention.
Protects religious beliefs BUT that is not all, it entails freedom to hold or not to hold religious beliefs and to
practise or not to practise a religion
Church or an organization satisfies the requirement of a victim by bring a collective claim on behalf of the
organization
Convictions Protected under Article 9
Very wide scope as it protects both religious and non-religious convictions
No definition of religion – not in the text or case law
Remains open ended and wide in order to offer flexibility and not exclude new or old religions
However, not all opinions or convictions necessarily fall within the scope of the provision, and the term
“practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or
belief (we will discuss this a bit later).
If a personal or collective conviction is to benefit from the right to “freedom of thought, conscience and religion”
it must attain a certain level of cogency, seriousness, cohesion and importance.
Atheism
Based on the belief you condition the perception of the world and act accordingly and therefore it is no
different from a religious belief.
The Court has made it clear that freedom of thought, conscience and religion is “a precious asset for atheists,
agnostics, sceptics and the unconcerned”.
Examples of coherent and sincerely-held philosophical convictions:
Pacifism (Arrowsmith v. the United Kingdom)
Principled opposition to military service (Bayatyan v. Armenia [GC])
Veganism and opposition to the manipulation of products of animal origin or tested on animals (W. v. the
United Kingdom)
Opposition to abortion (Knudsen v. Norway)
A doctor’s opinions on alternative medicine, constituting a form of manifestation of medical philosophy
(Nyyssönen v. Finland)
The conviction that marriage is a lifelong union between a man and a woman and rejection of homosexual
unions (Eweida and Others v. the United Kingdom)
The right to Hold a Belief vs The Right to manifest that Belief
To Hold;
The right to deeply hold any belief (whether religious or not) and to change one’s religion or beliefs is absolute
and unconditional.
The State cannot interfere with it, for instance by dictating what a person believes or taking coercive steps to
make him change his beliefs
Manifestation of Religion
This right is not absolute
The manifestation by one person of his or her religious belief may have an impact on others
For example, a clash of rights between religious beliefs and sexual orientation (we will look at this when we
look at equality and Article 14)
The drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 § 2.
, Examples
The action must be a direct expression of the belief, though it need not be a definite, universally
acknowledged, requirement.
Examples:
Forms of dress
Dietary requirements
Burial in a cemetery
The Manifestation of Religion - Legitimate Interference
Since manifestation is qualified, the state may justify interference when:
Prescribed by law
Pursuing legitimate aim
Necessary in democratic society
Proportionality
Corporal Punishment in schools
R (Williamson) v Secretary of State for Education and Employment (2005)
FACTS: Parents and teacher in Christian schools challenged a ban on corporal punishment in all schools –
public and private.
Article 9 violation?
DECISION: HoL ruled that there was an interference. Could it be justified?
It had a legitimate aim of protecting others – namely the children. It was an appropriate way of achieving the
aim and within the wide margin of appreciation afforded to the states. No violation.
Conscientious Objection
Compulsory military conscription used to be a common practice in many countries – including European
States. Refusing, could result in a prison sentence.
The UK ended this in 1960s.
Could someone be exempt from such service based on conscientious objection?
Initially it was believed that NO
The reason for this was linked to Article 4 (prohibition of slavery and compulsory labour), which specifically
makes an exemption for military conscription. – The Convention must be read holistically and whole.
However, over the time, the views evolved and the case law reflected this change.
Bayatyan v Armenia (2012)
FACTS: Jehovah’s Witness who declined for conscientious reasons, to do compulsory military service. He was
sentenced to 2 and a half years in prison.
A violation?
DECISION: Yes! The Court explained the shift as a result of international developments favouring
conscientious objection and phasing out of conscription.
Article 9 was confirmed to no longer be read in light of Article 4 (3)(b).
R v Lyons (2011)
FACTS: The applicant joined Royal Navy – voluntarily. During the UK’s involvement in Afghanistan, he formed
the view that this was morally wrong. He refused to obey the orders in order to prevent from being sent there.
DECISION: Article 9 was still relevant, however the fact that he was there as a volunteer would be relevant for
the balancing exercise.
The Royal Navy’s procedures satisfied the requirement of Article 9(2) – No violation.
Qualified right – but with an absolute element
Represents one of the foundations of a “democratic society” within the meaning of the Convention.
Protects religious beliefs BUT that is not all, it entails freedom to hold or not to hold religious beliefs and to
practise or not to practise a religion
Church or an organization satisfies the requirement of a victim by bring a collective claim on behalf of the
organization
Convictions Protected under Article 9
Very wide scope as it protects both religious and non-religious convictions
No definition of religion – not in the text or case law
Remains open ended and wide in order to offer flexibility and not exclude new or old religions
However, not all opinions or convictions necessarily fall within the scope of the provision, and the term
“practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or
belief (we will discuss this a bit later).
If a personal or collective conviction is to benefit from the right to “freedom of thought, conscience and religion”
it must attain a certain level of cogency, seriousness, cohesion and importance.
Atheism
Based on the belief you condition the perception of the world and act accordingly and therefore it is no
different from a religious belief.
The Court has made it clear that freedom of thought, conscience and religion is “a precious asset for atheists,
agnostics, sceptics and the unconcerned”.
Examples of coherent and sincerely-held philosophical convictions:
Pacifism (Arrowsmith v. the United Kingdom)
Principled opposition to military service (Bayatyan v. Armenia [GC])
Veganism and opposition to the manipulation of products of animal origin or tested on animals (W. v. the
United Kingdom)
Opposition to abortion (Knudsen v. Norway)
A doctor’s opinions on alternative medicine, constituting a form of manifestation of medical philosophy
(Nyyssönen v. Finland)
The conviction that marriage is a lifelong union between a man and a woman and rejection of homosexual
unions (Eweida and Others v. the United Kingdom)
The right to Hold a Belief vs The Right to manifest that Belief
To Hold;
The right to deeply hold any belief (whether religious or not) and to change one’s religion or beliefs is absolute
and unconditional.
The State cannot interfere with it, for instance by dictating what a person believes or taking coercive steps to
make him change his beliefs
Manifestation of Religion
This right is not absolute
The manifestation by one person of his or her religious belief may have an impact on others
For example, a clash of rights between religious beliefs and sexual orientation (we will look at this when we
look at equality and Article 14)
The drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 § 2.
, Examples
The action must be a direct expression of the belief, though it need not be a definite, universally
acknowledged, requirement.
Examples:
Forms of dress
Dietary requirements
Burial in a cemetery
The Manifestation of Religion - Legitimate Interference
Since manifestation is qualified, the state may justify interference when:
Prescribed by law
Pursuing legitimate aim
Necessary in democratic society
Proportionality
Corporal Punishment in schools
R (Williamson) v Secretary of State for Education and Employment (2005)
FACTS: Parents and teacher in Christian schools challenged a ban on corporal punishment in all schools –
public and private.
Article 9 violation?
DECISION: HoL ruled that there was an interference. Could it be justified?
It had a legitimate aim of protecting others – namely the children. It was an appropriate way of achieving the
aim and within the wide margin of appreciation afforded to the states. No violation.
Conscientious Objection
Compulsory military conscription used to be a common practice in many countries – including European
States. Refusing, could result in a prison sentence.
The UK ended this in 1960s.
Could someone be exempt from such service based on conscientious objection?
Initially it was believed that NO
The reason for this was linked to Article 4 (prohibition of slavery and compulsory labour), which specifically
makes an exemption for military conscription. – The Convention must be read holistically and whole.
However, over the time, the views evolved and the case law reflected this change.
Bayatyan v Armenia (2012)
FACTS: Jehovah’s Witness who declined for conscientious reasons, to do compulsory military service. He was
sentenced to 2 and a half years in prison.
A violation?
DECISION: Yes! The Court explained the shift as a result of international developments favouring
conscientious objection and phasing out of conscription.
Article 9 was confirmed to no longer be read in light of Article 4 (3)(b).
R v Lyons (2011)
FACTS: The applicant joined Royal Navy – voluntarily. During the UK’s involvement in Afghanistan, he formed
the view that this was morally wrong. He refused to obey the orders in order to prevent from being sent there.
DECISION: Article 9 was still relevant, however the fact that he was there as a volunteer would be relevant for
the balancing exercise.
The Royal Navy’s procedures satisfied the requirement of Article 9(2) – No violation.
