Le opinioni dissenzienti della Corte di Strasburgo e la tutela della libertà religiosa: un capovolgimento di prospettiva

Abstract

Since the fall of the Berlin Wall, the religious question has taken on a “new central role” in the current geopolitical and multicultural scenario. This religious protagonism is also reflected in the jurisprudential dynamics and, in particular, in those of the European Court of Human Rights, the organ responsible for the protection of the rights consecrated in the European Convention on Human Rights signed in 1950. Europe, in fact, both at the legislative and jurisprudential level, on religious freedom, has taken a constant oscillatory movement between the need to establish an incremental protection of the fundamental rights of individuals and the need to respect the different constitutional traditions of individual States, which has also been reflected on majority judgements of the Strasbourg Court. With this essay, a reversal of perspective will be made: instead of analyzing the jurisprudential orientations arising from the majority judgments of the Court, an attempt will be made to identify a parallel jurisprudential trend, taking into consideration only the dissenting opinions expressed in the judgments relating to Article 9 ECHR, through which the positions of those judges who, in the context of a judicial body, wish to express their dissent to the majority position. The hope is that the instrument of dissent may penetrate the “wall” of the discretionary power of individual States, so that national law can adapt and spontaneously accept the principles that resulting from it, while maintaining, each one, its own peculiarities. [edited by Author]