The Other Side of the Coin?

: A Critical Examination of the Right Not to Manifest Religion of Belief in Article 9 of the European Convention on Human Rights

Abstract

In recent years there has been a considerable increase in Article 9 cases heard by the European Court of Human Rights (ECtHR). As a result, academic literature dedicated to the discussion of freedom of thought, conscience and religion has grown significantly. The majority of Article 9 cases have concerned the right to manifest religion or belief, therefore, this right has been subjected to considerable academic scrutiny. However, the Court has also considered a substantial number of cases concerning the right not to manifest religion or belief, yet, in comparison to the right to manifest, the right not to manifest has been almost completely neglected in the literature. This dissertation seeks,
for the first time, to redress this imbalance. This dissertation adopts the approach of close documentary analysis to explore the right not to manifest religion or belief. It juxtaposes both the case law of the ECtHR and the literature on this right, to critically analyse whether the right is understood coherently and protected consistently by the Court. It argues that the presentation of the right not to manifest is confused both in case law and the literature. It also contends that the treatment of this right by the European Commission on Human Rights (ECnHR) and the ECtHR has often been inconsistent. The Court, in particular, has tended to present the right not to manifest as an absolute right which cannot be limited by the state, yet, when it has applied the right to the facts of the case, it has often treated it as a qualified and subjected it to limitations.
This dissertation offers some reasons for the inconsistencies. It also makes some
recommendations for the improved understanding and protection of this right. It
suggests that the right not to manifest should be reconceptualised as the right to refrain from disclosing religion or belief, and, should be conceived of as an absolute right when no positive ‘action’ has been taken by the claimant on the basis of their religion or belief

Date of Award	2014
Original language	English
Awarding Institution	Aberystwyth University
Supervisor	Ryszard Piotrowicz (Supervisor)