ABSTRACT
The crucial factor for the divergent approaches of the European court of human rights (ECtHR) and the human rights committee (HRC) with regard to new minorities’ right to manifest their religious beliefs can however be located in the third requirement for justification, the condition of proportionality. Such extensive use of the margin of appreciation in the case law regarding new minorities might be linked to the fact that the ECtHR employs a different perspective on the applicants in the relevant cases than the HRC. The most significant institutional difference between the ECtHR and the HRC, namely the lack of legal bindingness of the HRC’s views, has however been identified as less incisive for the divergent approaches in the area of new minorities’ religious freedom. The ECtHR makes too extensive use of the concept of the margin of appreciation in cases regarding new minorities’ religious freedom, precluding any real weighing and balancing of first-order reasons.
