Rights explained Article 9
Article 9 ECHR: Freedom of Thought, Conscience and Religion Explained
Article 9 of the European Convention on Human Rights protects freedom of thought, conscience and religion, including the freedom to change one's religion or belief. The text allows limits only on the freedom to manifest a belief, not on the freedom to hold one. The Court has dealt with the article in sport mostly through school physical education and swimming lessons.
What does Article 9 protect?
Paragraph 1 states: "Everyone has the right to freedom of thought, conscience and religion." The right includes freedom to change religion or belief and to manifest it, alone or in community with others, in public or private, in worship, teaching, practice and observance.
The Court's guide cites Kokkinakis v. Greece (1993) for the point that the freedom is also a "precious asset for atheists, agnostics, sceptics and the unconcerned". It follows that the article covers the freedom not to hold religious beliefs as well as to hold them. The guide also notes that a religious body may, as such, exercise on behalf of its adherents the rights the article guarantees.
Which limits does paragraph 2 allow?
Paragraph 2 applies only to the manifestation of religion or beliefs, not to the inner freedom of thought. Limitations must be prescribed by law and necessary in a democratic society in the interests of public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others. The list is shorter than in Articles 8 to 11: it does not mention national security or the prevention of crime.
How have sport and physical education reached the Court?
In Dogru v. France and Kervanci v. France (4 December 2008), two Muslim pupils enrolled in the first year of a state secondary school repeatedly attended physical education classes in headscarves and refused to remove them despite requests from their teacher. The school's discipline committee expelled them for failing to participate actively in those classes, and the courts upheld the decision. The Court found no violation. It held that the national authorities had not been unreasonable in treating the headscarf as incompatible with sports classes for reasons of health or safety, and accepted that the penalty followed from the refusal to comply with school rules.
In Osmanoğlu and Kocabaş v. Switzerland (10 January 2017), Muslim parents refused to send their daughters, who had not reached puberty, to compulsory mixed swimming lessons. The Court found no violation, placing weight on the children's interest in a full education and social integration and on the flexible arrangements offered, such as burkinis and undressing without boys present.
What do these cases have in common?
Both judgments concern compulsory schooling, and in both the Court accepted that the State had not exceeded its margin of appreciation. The factsheet records that the Court regarded sport education as of special importance for children's development and health. In the French cases it accepted that the penalty followed from the pupils' refusal to comply with school rules of which they had been properly informed, not from their religious convictions. In the Swiss case it noted that the interest of a child in attending swimming lessons was above all to take part in the activity with all the other pupils, with no exception on account of the parents' convictions.
