The principle of proportionality

A restriction on or interference with the right to freedom of religion must be in accordance with the principle of proportionality. In assessing whether there is any necessity for a limitation on or interference with the right to freedom of religion, the State enjoys a certain margin of appreciation. Nevertheless, in delimiting the extent of the margin of appreciation afforded to a State, the importance of freedom of religion for religious pluralism, an essential and integral part of a democratic society, must be taken into account.¹⁶⁴⁸ As to the aforementioned restrictions on or interferences with the right to freedom of religion, the HRC, in principle, could not establish a reasonable justification for the State authorities’ conduct. On the other hand, restrictions placed on detainees’ religious freedom pursue a legitimate aim if necessary in a democratic society in the interests of public safety, for the protection of public order or for the protection of the rights and freedoms of other prisoners. In addition, the notion “order” has a particular meaning that has to be construed in the context of “a prison as an institution” (the order that must prevail within the confines of a prison). The question is, therefore, whether the interference is necessary to maintain “order” within the confines of a prison. In answering this question, it is essential to examine whether restrictions on detainees’ religious freedom are necessary or whether the public interest is more important.¹⁶⁴⁹

In Case No. CH/01/7488-A&M, the Human Rights Chamber found no difficulty in the fact that a Catholic priest had been made available by the prison authorities to the applicant, who had chosen not to avail himself of the services of this priest, because the priest had not been the one the applicant had wished to see. However, Article 9 of the ECHR does not provide the right to be given access to a priest of one’s own choosing. In this context, there is a wide margin of appreciation afforded to States to assess whether or not a certain priest is indispensable for maintaining order and discipline in prison.¹⁶⁵⁰