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Treading a Tightrope: The Fragility of Family and Religious Minority Rights in the Jurisprudence of the European Court of Human Rights

Date:22 NOV 2016

This article examines the uncertainties in the jurisprudence of the European Court of Human Rights (ECtHR) relating to religious minorities, particularly case law involving families, and particularly children. In view of the increasingly religiously diverse and pluralist societies of the European Union, the ECtHR is required to ensure that, in terms of the European Convention on Human Rights (ECHR), both individuals and collective religious or non-religious minorities are afforded religious freedom against so-called secular values which pursue majority interests, although there may be genuine cases where minority rights to freedom of religion need to be limited. This article argues that, in several cases, the ECtHR, with respect, appears to have allowed some secular laws of various States which restrict the freedom of religious minorities, to prevail without the need to adequately justify such limitations. Furthermore, the margin of appreciation doctrine has been widely used by the ECtHR, and has permitted States Parties to interpret religious rights and freedoms within the broader context of their national cultures, values and traditions. However, the argument that a lack of consensus between the laws of Contracting States allows a wide margin of appreciation may risk jeopardising the protection of minority religious rights, including those of children. Although the margin of appreciation doctrine is integral and essential to the Convention’s system of constitutional-interpretive principles, it should be confined within acceptable limits, mainly by appreciating its subordination to the Convention’s primary constitutional principles and also its relationship with other secondary principles, particularly proportionality. The ECtHR is urged to follow a careful and considered process of balancing of interests in the application of Article 9.2 to ensure that the legitimate interests of families of religious (and non-religious) minorities are protected, and to avoid a mechanistic or over-deferential application of the margin of appreciation doctrine.

This article has been accepted for publication in Child and Family Law Quarterly in Issue 1, Vol 29, Year 2017. The final published version of this article will be published and made publicly available here 24 months after its publication date, under a CC-BY-NC licence.  

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