ECHR Articles 9 and 14

May 1st, 2018

In R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London (2018) EWHC 969 (Admin) a Divisional Court (Singh LJ and Whipple J) observed (paragraph 94) that in Eweida v UK the ECtHR emphasized the importance of the rights set out in Article 9, and stated that there are several things of importance to note about the terms of Article 9:-

“96.      First, it does not protect only freedom of religion. It protects freedom of all thought (including the beliefs of those who have no religious faith) and freedom of conscience.

 

  1. Secondly, the first right set out in Article 9 (the right to freedom of thought, conscience and religion) is an absolute one. The second right (freedom to change religion or belief) is also absolute. However, the third right (freedom to manifest one’s religion or beliefs) is not absolute but can in principle be subject to limitations.
  2. Thirdly, as para. (2) of Article 9 makes clear, for those limitations to be lawful the following requirements must be satisfied:

(1)        The limitation must be “prescribed by law”. …

(2)        The limitation must be necessary in order to serve one of the legitimate aims set out: in particular reliance can be placed … on “the protection of the rights and freedoms of others.”

  1. For a limitation on a fundamental right such as this to be “necessary”, it must satisfy the principles of proportionality … the following four questions have to be addressed:

(1)        Is the legitimate objective sufficiently important to justify limiting a fundamental right?

(2)        Are the measures that have been designed to meet it rationally connected to that objective?

(3)        Are they no more than are necessary to accomplish it? and

(4)        Do they strike a fair balance between the rights of the individual and the interests of the community?”

As regards Article 14, the Court said:-

“114.     The principle of equality is one of the most fundamental in a democratic society and is certainly one of the most cherished rights in the Convention and the HRA. …

  1. The kind of society which is envisaged by the Convention and the HRA is one which is based on respect for everyone’s fundamental rights, on an equal basis. As we have seen earlier, it is a society which is characterised by pluralism, tolerance and broad-mindedness. It regards democracy as being a community of equals. …
  2. It is well established that the principle of equality in Article 14 requires that:

“Like cases should be treated alike and different cases treated differently. This is perhaps the most fundamental principle of justice.” …

  1. Although the principle of equality requires like cases to be treated alike, it is not always sufficiently appreciated that it also requires that different cases should be treated differently. …
  2. …in a discrimination case, what has to be justified is not only the underlying measure but the discrimination: …”

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