Laicidad y libertad religiosa en la jurisprudencia de la Corte Europea de Derechos Humanos: una convivencia necesaria y difícil

Abstract

In Europe, legal regulation of the relationship between the State and the churches, or between the State and the religious phenomenon, is closely linked to the national history of each country. Therefore, the European Court of Human Rights, a jurisdiction that is necessarily committed to the integration of national disparities, has been especially respectful with the «margin of national appreciation» of State authorities when it comes to regulate the management of religious pluralism. Nonetheless, this has not prevented the ECHR from stating the objective value of religious freedom, and the assumption of State secularism as an inherent element of the democratic system, and thus as a value that integrates the European public order. The fact that secularism has been erected as one of the Convention values calls for a better definition of the juridical outline of this principle, that is, to determine what is meant as secularism. In this article we purport that, within the Convention scope, and considering the objective relevance of religious freedom, secularism should be understood both as a principle inalienable of the State based on the rule of law, and as a minimum threshold, and hence it is inassimilable to the specific profiles of this principle in the French and Turkish legal systems, in which the principle of secularism legitimates certain infringements of the right to religious freedom on historical and social grounds.

Keywords

• tribunal europeo de derechos humanos
• margen de apreciación nacional
• libertad religiosa
• laicidad