Sarah Leyli Rödiger, Dana-Sophia Valentiner
»living together« Zum Pluralismuskonzept des EGMR unter besonderer Berücksichtigung der Burka-Entscheidung
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This contribution takes a closer look at the European Court of Human Rights' (ECHR) concept of pluralism, based on its case law (II.). Furthermore it specifically analyses the judgement of the ECHR S.A.S. v. France (III.) and develops a minority-protective approach to pluralism within the context of freedom of religion (IV.). In the jurisprudence of the ECHR the protection of pluralism has repeatedly been used as a controversial argument. A recent example of this is the judgement S.A.S. v. France, in which the ECHR confirmed the ban of the burka as a justified interference and finds that the »respect for the minimum requirements of life in society« (vivre ensemble, living together) can be linked to the legitimate aim of the »protection of the rights and freedoms of others«. The judgement is proof that the ECHR's concept of pluralism is ambivalent. On the one hand pluralism is centred round individual rights and is recognized as the foundation of human rights guarantees and as a consequence of the protection of minorities. On the other hand the ECHR considers pluralism to be one of the main characteristics of a democratic society and sees pluralism as something that is to be protected and guaranteed by the state. As a result rights may be restricted in order to protect pluralism. The Janus-faced concept of pluralism in the case law of the ECHR surfaces whenever there is a conflict between the minority based non-discrimination maxim and the majority based principles of democracy. Especially religious conflicts challenge the concept of pluralism. Religious freedom is a fundamental right not only for the majority of society. Moreover communication is characteristic of democratic societies and cannot be left to solely be defined by the majority. It crucial to understand that feelings of unease are not automatically infringements of individual right and that the majorities view of social standards is in no way able to set binding rules of conduct. In a democratic society, interventions with regard to the freedom of religion, as a special minority-protecting fundamental right, can only be justified in order to protect other rights and freedoms. By granting substantial margins of appreciation to the contracting states the ECHR makes an attempt at managing pluralism, but by doing so it also turns away from its previously developed basic principles. A minority-oriented perspective on pluralism is indispensable to enable diversity, especially religious diversity within modern societies. Societies have to accept other opinions and values. As long as they do not want to impose their views on others, these opinions and values can much rather be considered to be a contribution to pluralism. Pluralism consists of a diversity of values, opinions and groups and the absence of dominance of individual values, opinions and groups. According to the jurisprudence of the ECHR pluralism, tolerance and broadmindedness are hallmarks of a »democratic society«. Pluralism and democracy must be based on dialogue and compromise; the role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.