The Legitimacy of the European Court of Human Rights in Light of Its Article 9 Jurisprudence: a Multisided Perspective

Chapter 15 The Legitimacy of the European Court of Human Rights in Light of Its Article 9 Jurisprudence: A Multisided Perspective

Eva Brems and Saïla Ouald-Chaib

1 Introduction

Twenty-five years after Kokkinakis, cases brought under Article 9 of the European Convention on Human Rights (echr) are still relatively rare. How- ever, when the European Court of Human Rights (Strasbourg Court, ECtHR, the Court) rules on the right to freedom of religion or belief (hereafter “freedom of religion’), the decision or judgment is often, if not always, held under a magnifying glass. This does not come as a surprise. Not only is the freedom of religion case law an interesting matter for academic Strasbourg watchers, as this volume shows, in addition the Strasbourg Court is considered to be a stan- dard setter for domestic debates. Indeed, both domestic judges and legislators regularly refer to the Court’s case law in matters concerning religion. Religion is one of the most debated topics of this era in Western societies. Common to these debates is that they tend to be held in a confrontational and often polarizing way.1 Multiple societal evolutions and realities are at play. First, Western European countries are becoming increasingly religiously diverse. This diversity is partly due to the growing popularity of new religious movements and ‘spiritualities’.2 Its main origin is however in migration, not only because of the ongoing influx of migrants to Europe, but also because of the growing visibility of the already present European (religious) diversity. This diversity in- evitably leads to more religious accommodation claims in daily life situations

1 See also Grace Davie, ‘Understanding Religion in Europe: A Continually Evolving Mosaic’, in P. Cumper and T. Lewis (eds.), Religion, Rights and Secular Society (Cheltenham: Edward Elgar Publishing, 2012), pp. 251–270 who calls them ‘ill-informed’ and ‘ill-mannered’. See also among others: Thomas Hammarberg, Human Rights in Europe: No Grounds for Complacency (Council of Europe Publishing, 2011), p. 41. 2 See e.g. Marie-Claire Foblets and Katayoun Alidadi, ‘The RELIGARE Report: Religion in the Context of the European Union: Engaging the Interplay between Religious Diversity and Secular Models’, in M-C. Foblets, K. Alidadi, J. Nielsen and Z. Yanasmayan (eds.), Belief, Law and Politics. What Future for a Secular Europe? (Farnham: Ashgate, 2014), at p. 5.

370 Brems and OUALD-CHAIB such as in the workplace and in schools. Secondly, Western European societies are at the same time also confronted with a decline of religiosity in the majority population, because of, on the one hand, a growing importance of secularism and on the other hand, the undeniable process of ‘unchurching’.3 Finally, as many reports show, Western Europe is confronted with a rise of xenophobia, islamophobia, racism and religious discrimination.4 As a result, debates involv- ing religion in society often take place in a hostile atmosphere with little room for human rights arguments. This is especially so when Muslims are concerned, which is often the case with contemporary debates on religious practices.5 In this context, it can be expected that the Court will increasingly be confronted with claims concerning religious freedom restrictions. When it comes to cases concerning religion in society, the Court is not only closely watched, it is also confronted with different – sometimes even conflicting – expectations. Indeed, members of majority religions might have other expectations than followers of minority religions. And while believers expect more accommodation in certain domains, secularists will argue in fa- vor of making religion even more invisible in the public sphere. Against this sensitive backdrop, it is undoubtedly difficult, if not sometimes impossible, for the Court to find answers to contemporary challenges that satisfy all stake- holders. Moreover, adding some more weight to its shoulders, the Strasbourg Court is also increasingly confronted with debates questioning its legitimacy as a supranational human rights body. Without any doubt, this overall context puts the Court under a lot of pressure which in practice leads to a restrained adjudication in Article 9 cases. Considering this challenging context, we will reflect in this chapter on what can be expected of the ECtHR in freedom of religion matters, starting from a rich, multi-sided perspective on legitimacy. The first section of this chapter starts with the state-based conception of legitimacy that is commonly found in the literature on the ECtHR’s “legitimacy crisis”. This conception ties ECtHR

3 Ibid. 4 See amongst others Hammarberg, supra note 1; European Network Against Racism (enar), ‘Racism and Discrimination in the context of migration in Europe’, enar Shadow Report 2015– 2016, , accessed 28 September 2017; and European Union Agency for Fundamental Rights (fra), ‘Second European Union Minorities and Discrimination Survey (eu-midis ii) Muslims – Selected findings’, eu-midis ii, 2017, www.fra.europa.eu/en/publication/2017/ eumidis-ii-muslims- selected-findings, accessed 28 September 2017. 5 See also Carolyn Evans, ‘Introduction’, in P. Cane, C. Evans, and Z. Robinson (eds.), Law and Religion in Theoretical and Historical Context (Cambridge: Cambridge University Press, 2011), pp. 1–15.