Religious Freedom And The European Court Of Human Rights

Religious freedom and the European Court of Human Rights

Although the right to religious freedom collected in constitutional texts is of recent configuration, born at the dawn of the Modern Age, religious feeling is as primitive as the human being.

World globalization, and specifically, the birth of an increasingly multicultural Europe, have created heterogeneous societies where different cultures and religions coexist, each loaded with its own history and ideology, and whose antagonisms are the beginning of a seriesof conflicts that can only be overcome by coexistence, tolerance, and as a last resort, justice.

The right to work and freedom of business, configure one of the inflection points, which will lead to numerous conflicts with the right to religious freedom, causing both direct and indirect discriminations to their exercise. We cannot forget that the right to religious freedom has an internal manifestation, which I consider has to be absolutely inviolable;And another external, which I understand is the one that should occupy jurisprudence and law, such as the freedom of the company, the power to address and control the work activity, without forgetting, the rights of the co -workers, or even the users (administered, patients or customers), who receive the services offered or provided byThe company or public agencies.

Well, this enumeration of reciprocal rights needs a weighting, or where appropriate, limitation to its exercise, a fact that will come from the hand of norms and jurisprudence, since, in said weighting of interest in play,The individual interest and the general of society as a whole should be taken into account as a whole.

And in the case of limitations, they must be carried out according to the proportionality of the restrictive measure and the other values that are intended to be protected .

The doctrine of the ECHR, has played an essential role in the assessment, both of the right to religious freedom by integrating it into the workplace, as well as that of the employer’s right to mark their business guidelines, seeking the need to balance and protect both.

Sure example of this are the sentences analyzed in this work, of which, in three of them, the Court gives in to the labor claims, considering them completely reasonable and provided, without diminishing the right to religious freedom, overvalued in some cases, and consequently also subject to the limits included in the law. For all this, as has been exposed in this work, the ultimate work of the ECHR, is to be the guarantor to the exercise of rights, a work that will carry out in one way or another by virtue of whether the employer is public personnel or public staff orprivate.

If it is a public entity, it will be subject directly to CEDH, for which it will be analyzed on the one hand, the degree of interference of the State in a democratic society, and on the other, compliance with article 9.2 of CEDH. In the case of a private company, the court’s work consists in verifying whether the State has launched all the necessary measures to protect the exercise of rights. That is, the burden falls on the legislation of each State, however, in those cases in which the definition or delimitation of a right has legal gaps, or on which there is no consensus between states, the Court opts to recognize theState a certain margin of appreciation, which constitutes a clear concession, although conditioned to the particularity of each right, which I believe has a very important job to avoid inflexibilities in the application of these.

For all this as a final reflection, and under the prism of the Eweida judgment and others, in these cases I have to position myself in favor of the employer’s right, this does not prevent, that there are many other assumptions within the jurisprudence of the ECHR, whose ruling isIn favor of the bearer of the right to religious freedom. I must also value, as both the ECHR and TC, in the case of Spain, they have made a balanced weighting of rights, without establishing among them a prejudged hierarchy in society, since although the right to religious freedom is a fundamental right, it is not an absolute right, at least in its external manifestation, to which limits must.

It is the least striking or contradictory as some practitioners of a certain religion, (Case Ladle and McFarle), they put their faith in an obvious way to a social evolution and an unquestionable reality, in which, the protection of rights is extended to peopleo Group harshly persecuted, showing attitudes close to cruelty, within a context aimed towards coexistence, non -discrimination and mutual respect for rights.

It comforts me to know how not only the national courts were up. Ireland, has always maintained a position of non -discrimination against this group.

With this I do not intend to guarantee one right or another (let’s not forget that I am only referring to the Eweida sentence and others.), all I want is to show that the violation of rights affects everyone, and that they depend on a plural and toleration society in which there are no first or second rights, or traditions or beliefs that endorseNo assessment or prejudice, a very difficult thing in increasingly heterogeneous societies in which absurd radicalisms emerge more frequently in search of greater positioning, instead of greater equality, tolerance and balance.

It is for all this, so, on numerous occasions, these antagonisms creative conflicts remain in the hands of justice, which, although it is a human construction, with all the variants that this can offer, does not infuse us with any doubt that inthe European sphere, human rights are guaranteed.