The Margin of Appreciation in Freedom of Thought, Conscience, and Religion under Article 9 of ECHR

Abstract

This article analyses the manner in which the margin of appreciation has been developed by the European Court of Human Rights in Article 9 cases. As a principle of subsidiarity European Convention States Parties enjoy a margin of appreciation but its scope varies according to particular principles. It is generally certain, when a proportionality test applies (eg concerning proselytism, places and buildings of worship, legal recognition of religious communities, prisoners’ rights), narrow, when the Court has already formulated specific interpretational criteria (eg concerning State’s interference with the internal affairs/dissolution of a religious community or restrictions sought by religious employers), or wide, when there is no widespread consensus and State authorities are in a better place to determine on the matter (eg levying of church taxes, freedom of religion in workplace, public places, and educational institutions). This article appraises the rationale and circumstances which produce particular outcomes with a view to increasing predictability and consistent practice by States.