From Crucifix to Burka: A Bias of the ECtHR towards Christian versus Muslim symbols?

From crucifixes to burqas, wearing and displaying religious symbols and garments creates controversy. Article 9 of the European Convention on Human Rights guarantees the right to freedom of thought, conscience and religion, including the right to manifest one's religion or beliefs. However, the European Court of Human Rights has been criticized for alleged bias towards Christian as opposed to Muslim symbols. This essay examines the Court's case-law on allegations of violations of Art. 9.

Leyla Şahin lodged an application to the Chamber of the European Court on Human Rights (ECtHR) based on an alleged violation of Article 9 of the European Convention of Human Rights (ECHR) after she was banned from wearing the headscarf at the University of Istanbul. Article 9 provides that everyone has the right to manifest his or her religion. After the Chamber found that there had been no violation of Art. 9, Leyla Şahin appealed to the Grand Chamber. The latter unanimously found that there had been no violation of Articles 8, 10 and 14 of the Convention, and found, by sixteen votes to one, that there had been no violation of Art. 9 and the first sentence of Art. 2 of Protocol no. 1. There was, however, a dissenting opinion by Judge Tulkens. in which she expressed that the State's margin of appreciation underpinned the majority's judgment, since relations between the Church and the State are a sensitive area. [1]

As the Court recognizes, the wearing of religious symbols and clothing is protected by Article 9, but it is not an absolute right. The Court's jurisprudence distinguishes between four areas in which it has ruled on a violation or non-violation of Article 9 of the Convention: a) the public sphere; b) schools and universities; c) public service and administration; and d) the workplace.[2]

Regarding the first area, the public space, the Court has ruled in cases involving religious symbols of Islam. In the case of Ahmet Arslan and Others v. Turkey, the Court decided that there had been a violation of Article 9 because the applicants, members of a religious group, wore a specific type of religious clothing in a public space. The Court considered that these were ordinary citizens who did not pose a threat to public order nor exert pressure on others. On the other hand, the Court found that there had not been a violation of Article 9 in the case of S.A.S. v. France, in which the applicant, a devout Muslim woman, was banned from wearing a niqab in public under French law, which prohibits any garment that covers the face. In two similar cases against Belgium, the Court found that there had been no violation of Article 9 of the Convention (Dakir v. Belgium; Belcacemi et Oussar v. Belgium). In other cases, where the applicants had refused to temporarily remove religious items, such as veils or turbans, for security or identity reasons, the applications were dismissed. In all of these aforementioned cases, the applicants were Sikhs or Muslims.[3]

In the second area, where schools and universities are concerned, the Court finds that States Parties enjoy a wide margin of appreciation. The Court distinguishes between applicants who are teachers or students. In all the cases falling within this specific area, the applicants were Muslim women who were prohibited from wearing the headscarf at school or university. In addition to the case of Leyla Şahin, there are other cases involving the wearing of the headscarf in educational institutions. In all cases, the applications were lodged against France and Turkey, where secularism is considered a strong principle for democratic society and consequently students are not allowed to wear religious symbols at school. [4] In the case of teachers, the Court has not found a violation of Article 9, as teachers are required to respect the principles of respect, equality and non-discrimination required of them as state school teachers and to avoid influencing pupils, especially young pupils (Dahlab v. Switzerland; Kurtulmuş v. Turkey; Karaduman v. Turkey).[5]

Within the third area, public establishments, the Court distinguishes between users of public services versus public officials. The Court generally assumes that users are free to express their religion in these spaces. Accordingly, it found a violation of Article 9 of the Convention in two cases where the applicants were Muslim (Hamidović v. Bosnia and Herzegovina and Lachiri v. Belgium)[6]. However, this may not be the general rule in certain countries where the state attaches greater importance to the principle of secularism than to the right to express religious beliefs, such as in France. This is directly related to another case in which a Muslim woman’s contract as an employee at a public hospital was not renewed after she refused to remove her headscarf in the workplace (Ebrahimian v. France). Some patients had complained about her headscarf, and given the importance the state attached to the principle of neutrality, the Court held that there was no violation of Article 9. [7]

The fourth and final area relates precisely to the wearing of religious symbols in the workplace. In addition to the case mentioned above, the case of Eweida and Others v. United Kingdom concerns the wearing of Christian religious symbols in the workplace. This case was adopted as a joint application. The Court found that there was no violation of Article 9 in the case of the second applicant, who was also an employee in a public hospital. It did, however, find a violation in the case of the first applicant, who was employed by a private company and was suspended for refusing to conceal a cross while other religious symbols were permitted in the same company. [8]

There are other cases concerning Article 9 in which the Court found that the State had a wide margin of appreciation. For example, in the case Cha’are Shalom ve Tsedek v. France, the Court had found that there had been no violation of Article 9 alone nor in conjunction with Article 14. The applicant, a Jewish association, alleged a violation of Article 9 when they were refused access to slaughterhouses by the French state to perform slaughter rituals according to Jewish ultra-Orthodox practices. While this case does not involve religious symbols, the Court nevertheless held that the “interference with the right to freedom to manifest one's religion” of the measure complained of by the applicant pursued a legitimate aim and was not disproportionate. The dissenting opinion of seven judges in this judgement refers to the case Mannousakis and Others v. Greece, in which the Court held that the purpose of limiting the discretion of the State, Greece, was to ensure genuine religious pluralism. The judgment does not ensure this pluralism by discriminating against the applicant's association vis-à-vis another religious association authorized to perform battle rituals.[9]

In the above-mentioned case, Mannousakis and Others v. Greece, the Court unanimously held that there was a violation of Article 9. The applicants, Jehovah’s Witnesses living in Greece, had been denied permission to establish a place of worship according to their faith and had been convicted by a national court for using the premises without such permission. Therefore, the judgement reads: “the Court is of the opinion that the impugned conviction had such a direct effect on the applicants’ freedom of religion that it cannot be regarded as proportionate to the legitimate aim pursued, nor, accordingly, as necessary in a democratic society”.[10]

Finally, in the judgement of the case of Lautsi and Others v. Italy, the Court considered that the margin of appreciation of the state was wide and therefore found that there had ”been no violation of Article 2 of Protocol No. 1 and that no separate issue arises under Article 9 of the Convention”. The religious symbol concerned was a crucifix on the wall of a State school. The Italian Government considered that these symbols were not merely religious, but related to Italian values and cultural identity (paragraph 67). However, the dissenting opinion emphasises that the majority decision does not take into account the principle of neutrality that States Parties should adopt in order to promote respect and tolerance.[11]

Overall, it seems that the Court generally finds that States enjoy a wide margin of appreciation when it comes to religious symbols. I believe that the best way to ensure religious freedom and pluralism is to maintain the principle of neutrality. It is true that this is handled differently from State to State and therefore there is no European consensus in this sensitive area. However, I think that on the basis of the Court's jurisprudence, it is difficult to reach a consensus when, on the one hand, individuals are obliged to respect neutrality in schools and, on the other hand, it is a state educational institution that is allowed to not comply and impose instead a religious symbol that belongs to the religious majority of the country. Neutrality in public life should also be respected in non-secular states in order to truly promote religious tolerance and pluralism.

In the vast majority of cases involving religious symbols, the respondent states are France and Turkey, both of which consider secularism a pillar of democratic society. Moreover, in the majority of cases, the applicants are Muslims and mostly women. It is true that certain religious symbols are more difficult to conceal than others. In general, however, in all cases involving religious symbols and clothing, the ECtHR found that there was no violation of Article 9 of the Convention in cases involving Muslim symbols, while the decisions were less restrictive when Christian symbols were involved.

Bibliography

Affaire Lachiri c. Belgique. Arrêt - Requête no 3413/09 (Cour Européene des Droits de L'Homme, 18 September 2018).

Case of Cha'are Shalom ve Tsedek v. France. Judgement - Application no. 27417/95 (European Court of Human Rights, 27 June 2000).

Case of Ebrahimian v. France. Judgement - Application no. 64846/11 (European Court of Human Rights, 26 November 2015).

Case of Eweida and Others v. the United Kingdom;. Judgement - Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 (European Court of Human Rights, 15 January 2013).

Case of Hamidović v. Bosnia and Herzegovina. Judgement - Application no. 57792/15 (European Court of Human Rights, 5 December 2017).

Case of Lautsi and Others v. Italy. Judgement - Application no. 30814/06 (European Court of Human Rights, 18 March 2011).

Case of Leyla Şahin v. Turkey. Judgement - Application no. 44774/98 (European Court of Human Rights, 10 November 2005).

Case of Manoussakis and Others v. Greece. Judgement - Application no. 18748/91 (European Court of Human Rights, 26 September 1996).

European Court of Human Rights. “Guide on Article 9 of the European Covention on Human Rights.” Strasbourg, 2020.

[1] Case of Leyla Şahin v. Turkey. Judgement - Application no. 44774/98 (European Court of Human Rights, 10 November 2005). [2] European Court of Human Rights. “Guide on Article 9 of the European Covention on Human Rights.” Strasbourg, 2020, 32. [3] (European Court of Human Rights 2020, 32-33). [4] Köse and Others v. Turkey; Dogru v. France; Kervanci v. France; Gamaleddyn v. France; Aktas v. France; Ranjit Singh v. France; Jasvir Singh v. France. (European Court of Human Rights 2020, 35). [5] (European Court of Human Rights 2020, 34-35). [6] Case of Hamidović v. Bosnia and Herzegovina. Judgement - Application no. 57792/15 (European Court of Human Rights, 5 December 2017). Affaire Lachiri c. Belgique. Arrêt - Requête no 3413/09 (Cour Européene des Droits de L'Homme, 18 September 2018). [7] Case of Ebrahimian v. France. Judgement - Application no. 64846/11 (European Court of Human Rights, 26 November 2015). [8] The two other applications did not concern the wearing of religious symbols. Case of Eweida and Others v. the United Kingdom;. Judgement - Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 (European Court of Human Rights, 15 January 2013). [9] Case of Cha'are Shalom ve Tsedek v. France. Judgement - Application no. 27417/95 (European Court of Human Rights, 27 June 2000). [10] Case of Manoussakis and Others v. Greece. Judgement - Application no. 18748/91 (European Court of Human Rights, 26 September 1996). [11] Case of Lautsi and Others v. Italy. Judgement - Application no. 30814/06 (European Court of Human Rights, 18 March 2011).