The (Un)protection of Individual Religious Identity in the Strasbourg Case Law

Abstract

Despite the many positive aspects of the European Court of Strasbourg's case law on religious freedom, the Court has not provided an adequate protection of individual religious or moral identity, especially when it is expressed in particular actions in ordinary life, beyond traditional expressions of religiosity such as rites or preaching. Two main factors have contributed to this. One is the old European Commission of Human Rights's doctrine stating that ‘neutral’ laws of general applicability did not constitute an interference with the rights protected by Article 9 ECHR, even in cases of clear conflict with the individual's moral obligations; the Court has not explicitly accepted this doctrine but seems to have used it on some occasions. The other factor is a peculiar understanding of the ‘neutrality’ of the public sphere as implying or requiring the exclusion of the visibility of religion, which has served to justify national policies banning the wearing of religious garments or clothing. Significantly, most cases of this nature decided by the European Court involve situations related to the educational environment. However, some recent decisions of the Strasbourg Court (Ahmet Arslan, Lautsi GC, Bayatyan) might be expressive of a change in the Court's jurisprudence.

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