EUROPEAN LAW

European Law

European Law

Article 9 of the European Convention on Human Rights (ECHR) guarantees the right to freedom of thought, conscience and religion and provides that “freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

Article 10 of the Convention protects the right to freedom of expression whereby the exercise of these freedoms “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

Freedom of expression, as guaranteed under article 10 of the Convention, is applicable not only to “information” or “ideas” which are favourably received or regarded as inoffensive or as a matter of indifference, but also those which offend, shock or disturb the State or any sector of the population. At the same time, the exercise of freedom of expression also entails duties and responsibilities.

Several decisions of the European Court of Human Rights underline that the limitation to freedom of expression under article 10 of the Convention applies to expressions that do not merely criticize, oppose or deny religious beliefs, but inhibit those who hold such beliefs from exercising their freedom of religion

According to the European Court of Human Rights, the test for determining whether restrictions of freedom of expression are “necessary in a democratic society” is if they correspond to a “pressing social need”, are proportionate to the aim to be pursued (the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference), and whether the reasons justifying the interference are relevant and sufficient.

With regard to the “need” for restrictions on freedom of expression and the measures that should be adopted to deal therewith, the Court has held that national authorities have a certain margin of appreciation, which is not unlimited but goes hand in hand with the supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by article 10.

In Otto-Preminger-Institut v. Austria (1994), the European Court of Human Rights noted that “those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile ...