3 - The ECtHR’s General Principles Concerning ECHR Article 9

Summary

Chapter 3 focuses on the ECtHRs general principles concerning ECHR Article 9 in its jurisprudence. It contends that the ECtHR recognises the forum internum and forum externum relationship, intuitively understanding that, because actions flow from the forum internum, the forum internum is always relevant to some degree in Article 9 cases. As such, this chapter recommends conceptualising the forum internum and forum externum aspects of the right on a continuum. Whilst, this chapter argues, forum internum relevance is the principal factor weighing in favour of the applicant, it contends that it is not the only factor the ECtHR takes into consideration in Article 9 cases; the ECtHR balances in all Article 9 cases, weighing up factors pointing to a violation of Article 9 (primarily, but not forum internum relevance) with countervailing factors pointing away from a violation, to reach its decision. Given the ECtHR offers a range of protection as a result, this chapter suggests that a useful way of grouping Article 9 cases for analysis is a loose concentric circles model, comprising three circles, as this better reflects the ECtHR jurisprudence than a binary and hierarchical framework.