Cautelas y excesos en el tratamiento del factor religioso en la jurisprudencia del tribunal europeo de derechos humanos

Abstract

This work studies some presuppositions and argumentative strategies used by the European Court of Human Rights in their consideration of the religious element. It shows the cautious approach of the Court with regard to the irruption of religion in the public dominion, which results in a restrictive interpretation of the meaning of the term religious “practices” and the granting to the Contracting States of a wide margin of discretion to justify interferences in the exercise of individual rights. This approach leads to a limited conception of freedom in the manifestation of one’s own religious beliefs and the admission of harsh restraints of freedom of expression when the latter impinges on religious matters. The result is a jurisprudence inclined to the overprotection of the majority religious confessions, and which reveals a limited consideration of the value of pluralism.