The scope of protection

The necessity of securing true religious pluralism is an inherent feature of the notion of democracy. In the context of religious opinions and beliefs, active protection measures are often necessary to prevent unjustified interference with or attacks on religious objects. In extreme cases, protection measures must also include the punishment of persons.¹⁶²⁹ The freedom protected by Article 9 of the ECHR is one of the foundations of “a democratic society” within the meaning of the ECHR. The freedom to manifest one’s religion is one of the most vital elements that goes to make up the identity of believers and their conception of life, but it is also a precious “asset” for atheists, agnostics, sceptics and the unconcerned. The pluralism, which is inseparable from the notion of democracy and which has been dearly won over the centuries, depends to a large extent on the freedom to manifest one’s religion. Neither the BiH Constitution nor the ECHR nor international law require the separation between state and church or the establishment of collective equality of religious communities. Therefore, “a State Church” system cannot in itself be considered to be in violation of Article 9 of the ECHR on condition that it includes specific safeguards for the individual’s freedom of religion.¹⁶³⁰ The right to freedom of religion as guaranteed under the ECHR excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.¹⁶³¹ Freedom to manifest one’s religion, on the one hand, relates to the issue of individual conscience and, on the other hand, it functions as the freedom of expression of one’s own beliefs. A State must undertake the obligation to regulate the relations towards religious beliefs and doctrines and, particularly, to guarantee the free exercise of the rights safeguarded under Article 9 of the ECHR. Therefore, a State must refrain not only from an unjustified interference with the right to freedom to manifest one’s religion but it must take measures aimed at securing it. Otherwise, if a State creates or allows an atmosphere in public which prevents freedom of expression, that State violates the rights safeguarded under Article 9 of the ECHR.¹⁶³² In extreme cases, the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them. In democratic societies, in which several religions coexist within one and the same population, it may therefore be necessary to place restrictions on the freedom of manifestation in order to reconcile the interests of the various groups and to ensure that everyone’s beliefs are respected.¹⁶³³

Therefore, the right to freedom of religion includes the freedom of members of a religion or belief to worship or assemble in connection with a religion or belief, and to establish and maintain places of warship or similar objects and to communicate and express their feelings.¹⁶³⁴ The expression of religious feelings protected under Article 9 of the ECHR encompasses also religious funerals as well as funerals in cemeteries that are usually reserved for members of another religion.¹⁶³⁵ The taking of Confession and Holy Communion during the Easter Holidays must be considered as acts of worship essential to the practice of Catholicism and that Catholicism is a religion widely practised in the Federation of Bosnia and Herzegovina. As such, they are protected under Article 9 of the ECHR.¹⁶³⁶

The protection under Article 9 of the ECHR implies the peaceful enjoyment of religious rights also to those detainees who hold such religious beliefs so that any limitation placed in this context on such rights must be justified for the purposes of paragraph 2 of Article 9 of the ECHR.¹⁶³⁷

The status and rights of the religious communities are regulated within the domestic legal system by the ordinary law, i.e., by the SRBiH Law on the Legal Status of Religious Communities, which was enacted in 1976.¹⁶³⁸