ABSTRACT

This chapter shows that the divergence in the case law of the HRC and the ECtHR regarding new minorities’ religious freedom can mostly be pinpointed on the different levels of scrutiny applied by the two bodies in the assessment of the condition of proportionality. As a result, diverging levels of protection of new minorities’ manifestations of religious beliefs can be observed: The HRC, on the one hand, has proven more open to the rights claims and arguments brought forward by new minorities. Thus, it recognised a state duty to provide for exemptions in seemingly neutral laws to accommodate new minorities’ religious practices where this is reasonable. Moreover, the HRC protected new minorities against restrictions of their right to manifest religious beliefs aiming at safeguarding the interests of the majority. The ECtHR, on the other hand, has only recognised a state duty for the reasonable accommodation of their religious beliefs in specific contexts and has allowed for far-reaching restrictions of new minorities’ religious practices to protect the interests of the majority. Such low level of protection is mostly owed to granting a wide margin of appreciation to states in the relevant cases.