Panel: RELIGIOUS FREEDOM IN TENSION: COMPARATIVE CHALLENGES TO CONFLICTING RIGHTS



586.4 - A RELIGIOUS INTOLERANCE TEST: IS THE EUROPEAN COURT OF HUMAN RIGHTS FULFILLING ITS COUNTER-MAJORITARIAN MANDATE?

AUTHORS:
Gruev I. (Academy for European Human Rights Protection, University of Cologne ~ Cologne ~ Germany) , Van De Graaf C. (Ghent University ~ Ghent ~ Belgium)
Text:
The European Convention on Human Rights (ECHR) was adopted in the aftermath of World War II, with religious intolerance playing a pivotal role in shaping its foundational principles. Despite this historical context, the European Court of Human Rights (ECtHR) has not consistently prioritized religious intolerance as a key criterion in assessing and determining violations in its interpretation and application of the ECHR. This is evident in key cases where the Court has sought to balance individual rights with collective interests, often without directly addressing the underlying issues of religious discrimination. Recognizing this gap, Judges Spano and Karakaş have proposed incorporating a "religious intolerance test" into the Court's analytical framework. This test would entail that, when addressing the translation of majoritarian sentiments into legislation that adversely impacts religious minorities, the Court would have "a duty to investigate and detect, as far as possible, whether the imposition of measures which have nevertheless been largely endorsed by the legislative sphere is motivated by hostility or intolerance towards a particular idea, opinion or religious denomination". This contribution examines what a religious intolerance test might consist of and analyzes its potential impact on the Court's "legitimate aim" and "proportionality" assessments if incorporated into the ECtHR's jurisprudence. We argue that implementing this test would necessitate robust evidentiary mechanisms, including heightened scrutiny of legislative intent, historical context, and the direct or indirect discriminatory effect of state actions. Ultimately, we evaluate whether the procedural and evidentiary challenges posed by the test can be effectively addressed and, if not, whether these challenges are outweighed by the potential for enhanced protection of religious minorities.