Freedom of speech and religion at the European Court of Human Rights: Clash or synthesis?
How has the European Court of Human Rights balanced interests in freedom of religion with interests in freedom of speech? Read on to find out!
Even in parts of Europe where the number of religious individuals decreases, opinions about differing religions remain strong. In France, for instance, opinions about religion, particularly Islam, consistently dominate politics.  Some of these opinions can raise thorny problems for democratic governments: how freely can antagonistic opinions be publicised? When does speech veer into hate? Who gets to decide? Alternatively, where does one person’s freedom of speech run out and another’s freedom of religion begin?
While the countries of Europe have their own varying ways of handling these questions internally, sometimes disputes spill beyond national boundaries and wind up in the European Court of Human Rights (ECHR). This article explores two recent cases. The first case, Tonchev and Others v. Bulgaria (2022), arose when preachers challenged city officials in Bulgaria who circulated material to local schools, accusing certain religions of being harmful. The other case, Zemmour v. France (2022), arose in France and weighed free speech versus incitement to hatred or violence. Together, these two cases help us better understand how the ECHR draws lines between freedom of expression and of religion.
The European Court of Human Rights (ECHR) – what is it?
Before exploring the cases, some background is helpful. Firstly, what exactly is the European Court of Human Rights? The ECHR is a court of the Council of Europe, not the European Union. The Council of Europe, often confused with – but nonetheless distinct from – the European Union, is a supranational entity that was founded in 1949. The Council, conceived of in the aftermath of the destruction of World War II, now contains 46 member states and advocates “freedom of expression and of the media, freedom of assembly, equality, and the protection of minorities.”
Shortly after being created, the Council, inspired by the United Nations and its Universal Declaration of Human Rights, generated the European Convention on Human Rights, which contains a series of fundamental rights. These rights include several basics, like a right to trial, a right to life, and a ban on slavery and torture.
In order to ensure the protection of these rights, the Council contains bodies, like the European Court of Human Rights, to adjudicate potential questions that might affect these rights. Procedurally, the cases will begin in individual national courts, and then can be appealed all the way up to the ECHR. To be a member of the Council means that the decisions of the ECHR are binding on the country. So, for instance, a question arising in France could go through all French courts and the courts could come down one way. The losing party could appeal to the ECHR, which could rule the other way. France is bound by the ECHR’s decision.
The ECHR on freedom of religion – Article 9
One of the rights protected by the ECHR is the freedom of religion, contained in Article 9 of the European Convention on Human Rights. It starts: “everyone has the right to freedom of thought, conscience and religion…” This right, however, is not absolute. Governments are allowed to impose restrictions, and many do. These restrictions are allowed for preserving the “interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Tonchev and Others v. Bulgaria
In one such situation, officials of a city government in Bulgaria circulated material to the city’s schools which attacked certain religions. The writing called certain sects, including Evangelical Christians, antithetical to Bulgarian legislation and society. In fact, the documents went as far as to warn that people who attended meetings of these religions could develop “mental disorders.”
Pastors affected sued. Ultimately, the decision made it to the ECHR, in Tonchev and Others v. Bulgaria. The court weighed the competing interests. On the one hand, were the interest of the pastors to preach and on the other, that of the state to warn citizens of what it considered problematic or dangerous. The Court noted that the letters did not prevent preaching, only warned. Yet, ultimately, the Court felt that the allegations made were unfounded. Worse yet, the Court found that the documents seemed to warn that following those religions would be a threat to Bulgarian unity. Ultimately, therefore, the Court found the action to be a violation.
The ECHR on freedom of expression/speech – Article 10
Article 10 protects freedom of expression, but like Article 9 is not an absolute one. States can cut back on certain expressions in certain special circumstances when necessary. Such situations include “interests of national security, territorial integrity or public safety… for the protection of the reputation or rights of others…” and so on. As in Tonchev, freedom of expression can clash with the protection of one’s freedom of religion.
Zemmour v. France
In 2016, Eric Zemmour, a far-right French journalist, now politician, made comments about Muslims in France in a televised interview. In the interview, he compared the increasing Islamic minority in France to a “colonisation, an invasion” and stated that Muslims had to choose between their religion or France. 
Soon thereafter, a French court found Zemmour guilty of inciting discrimination, hatred, or violence, and fined him 3,000 euros. Zemmour appealed. Ultimately, French courts remained unified. Zemmour brought the suit to the ECHR. Again, the court weighed the two sides: Zemmour’s right to expression against France’s interest in protecting society from incitement.
Lessons from the Court
Ultimately, the Court held that the French fine did not violate his freedom of expression.  In so considering, it paid particular attention to Zemmour’s position as a journalist. This result – in which the government’s action was upheld – differs from Tonchev. The two decisions in juxtaposition, therefore, show different approaches to the interplay of religion and expression. Scrutiny, it appears, is higher on those in official roles – either government or a journalist position. That said, it would be wrong to say that any criticism of religion is forbidden.
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