Freedom of Religion in the ECHR: Discrimination between Islam and Christianity
Wearing or displaying religious symbols in public spaces has been a controversial issue in European society for years, if not centuries. A phenomenon widely accepted by psychologists is that human beings have a basic need to create a positive social identity for themselves. Indeed, the choice of clothing is a crucial factor in manifesting one's identity, particularly in regard to gender, class, sexual orientation, and religious beliefs. However, not all clothing or garments are attributed the same significance, especially when it comes to clothing that clearly reveals a religious affiliation. In the contemporary environment, characterized by globalization and unprecedented migration flows, traditionally homogenous nations are faced with the blurring of established spheres of their cultural identity. To cope with these changes, national governments are changing laws, policies and political approaches. These political, judicial, and legislative changes, however, have led to differing interpretations of religious freedom as defined by national and international law. In the context of the European Union and the Council of Europe, Art. 9 of the European Convention on Human Rights (ECHR) protects the right to freedom of thought, belief and religion. However, some states parties to the ECHR, such as France, Belgium, Switzerland, and Turkey, have banned the wearing of religious clothing in certain places or altogether. These have been found to be justified interferences with the freedom of thought in order to guarantee and underline the protection of the right for freedom of others. Posing the question, “is there a bias by the ECtHR over Christian or Muslim symbols?,” this essay examines the approach of the European Court of Human Rights when it comes to cases involving the right to religious freedom.
Article 9 ECHR: The Context
Article 9 ECHR states as follows:
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
With this article, the ECHR describes freedom of religion as a foundation of a democratic society. However, the organs of the Convention do not have the power to define religion, which is why it may not be applied restrictively by individual states. Nonetheless, religious belief may not be limited to mainstream religions. As stated in Kokkinakis v. Greece “it is in its religious dimension, one of the most vital elements that go 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.” In this context, Article 9(1) has both an internal and an external dimension. On the one hand, the internal dimension includes the right to conscience and religion, which has a more private character and thus belongs to the privacy of an individual. On the other hand, the external dimension refers to the right of a person to manifest his or her faith in a public setting.This right may be practiced through worship, teaching and observance, in a community, with others or alone.Restrictions on this freedom, as explained in 9(2), can be justified only in cases: 1. required by law; 2. in pursuit of the legitimate goals enumerated in the article; 3. necessary in a democratic society to achieve those goals. In addition, each state must apply discretion when considering a case of religious freedom. This margin of appreciation was first set out by the Court in Handyside v. the United Kingdom, in which it stated that the authorities “by reason of their direct and continuous contact with the vital forces of their countries [are] […] in principle in a better position than the international judge to give an opinion on the [...] ‘necessity’ of a ‘restriction’ or ‘penalty’”. Finally, it is a general premise of the European legal order that states should remain neutral towards religious beliefs and institutions. However, in some rulings related to the wearing or display of religious symbols, the Court seems to take a different stance, leading to many hotly debated controversies regarding minority religions such as Islam.
The Court's Approach
In the context of the emerging European scenario, traditional majority churches struggle to maintain their presence in the public sphere, while religious minorities demand non-discriminatory treatment. The protection of the rights of religious minorities is closely linked to the idea of pluralism, which is considered by the Court as one of the main characteristics of a democratic society.
The roots of the effort to explore equal treatment of religions originated in Choudhury v. United Kingdom.This was not the first case of discrimination, but it was the first to trigger important reactions from the Muslim community. The facts of the case involved Mr. Choudhury, a British Muslim who sought private prosecution in the United Kingdom for what he perceived as a blasphemous attack on Islam in Salman Rushdie's "The Satanic Verses." However, the Chief Magistrate refused to issue a summons for blasphemy against Rushdie and his publisher on the grounds that the offense could not be committed if the religion was not Christianity. After approaching other domestic courts and receiving the same response, the plaintiff exhausted domestic remedies and decided to take his complaint to the European Commission of Human Rights. He claimed a violation of Article 9 regarding his freedom of religion and of Article 14 as a violation of discrimination on the basis of religion. However, the Court ruled in favor of the country, finding that the UK had not committed any interference or violation as there was no positive obligation on the state under the ECHR to protect all religious sentiments. It was also emphasized that the fact that the English law on blasphemy extends only to the Christian religion accordingly does not constitute discrimination on the basis of religion. The nature of this complaint was not without precedent in the case law of the ECtHR.
On the same basis, but in relation to Christianity, Gay News Ltd. v. United Kingdom, eight years before Choudhury v. United Kingdom, should have set precedents for subsequent decisions on the same matter. The facts of the case involved a British newspaper that published a poem that the plaintiff perceived as blasphemous in reference to Christians. When the Commission considered the case, it found that the prosecution of the newspaper in question was consistent with the objective of English common law regarding blasphemy, “protecting the rights of citizens not to be offended in their religious feelings by publications."
This was not just the case with the United Kingdom. A similar case followed in 1994 with the decision of the European Court of Human Rights to uphold the Austrian government's decision to seize the movie Das Liebeskonzil (The Council of Heaven) on the grounds that it was perceived as an attack on the Christian religion by violating "the respect for the religious feelings of believers as guaranteed in Article 9 and by the provocative portrayals of objects of religious veneration." After these judgments, evidences of disparity in the treatment of cases involving Christianity and Islam began to emerge as important dividing factors in European society. After the events of September 2001, these issues came to the forefront of legal and political life. Among the many events following the tragedy, the most outstanding were the decisions of some countries, including France, Belgium and Turkey, to ban the wearing of symbols or attire exhibiting a religious affiliation in public places such as grocery stores, public schools, universities, etc. In this context, one can cite the case of Leyla Şahin v. Turkey of year 2005. The facts of the case saw Leyla, a medical student at the University of Istanbul, faced with a decision under Turkish law to either abandon her studies or abandon her religious belief of wearing a headscarf in public spaces. The ECtHR ruling upheld the decision of the Turkish Constitutional Court, which upheld the ban on the wearing of headscarves as an expression of Islamic faith at Turkish universities. Although this judgment can be seen as proclaiming the victory and legitimation of “secularism” in the battle against Islamic fundamentalism, the reality is substantially different. In the case of Turkey, it condones the Turkish military's constant threats to intervene in the government when perceived threatening behavior related to the country's secularism. Moreover, at the European level, this decision has binding and precedent-setting effects on all signatory states to the Convention, and thus will affect other countries that are currently involved in their own version of the headscarf debate.
However, the Court again does not seem to take the same stance when it comes to Christian symbols of religious affiliation. In the 2011 case of Lautsi and Others v. Italy, the applicant complained about the presence of crucifixes in her children’s public school, defending her position based on the principle of secularism. After requesting the removal of the symbols and receiving a refusal, she unsuccessfully brought administrative proceedings and lawsuits based on the violation of the principle of secularism. After exhausting national remedies, she brought an action before the Court, basing her request on Article 2, which concerns the right to education, and Article 9. The complaint was found not to fall within those two articles, and the Court emphasized in its decision that “religious symbols in classrooms was, in principle, a matter falling within the margin of appreciation of the State provided that decisions in that area did not lead to a form of indoctrination.” In this case, “the fact that crucifixes in State-school classrooms in Italy conferred on the country’s majority religion predominant visibility in the school environment was not in itself sufficient to denote a process of indoctrination.” This ruling was, in turn, the de facto implementation of a consistent trend of discriminatory rulings by the European Court of Human Rights in favor of majority religions over minorities.
In the cited cases involving complaints of violations of Article 9 ECHR in relation to the religious freedom of Muslim believers, the Court was seen to give greater weight to the principles of secularism and freedom of expression. However, when similar complaints were raised with Catholic viewpoints, the Court emphasized the importance of strengthening religious freedom for a cohesive and pluralistic democratic society. In the case of Leyla Sahin, it was particularly visible how the Court perceived a biased and erroneous association of wearing a headscarf and belonging to an Islamic fundamentalist group. Meaningless fear of Islam, along with a simplistic and reductive reading of Islamic rules and traditions have led the Court to contribute to the negative stereotyping of the public manifestation of the Islamic faith. The persistence of discrimination between Islamic and Christian religious grievances is again a factor that undermines the role and importance of minorities in the European context and causes the Muslim community's dissatisfaction, alienation, and subsequent failure to integrate as future European and non-European citizens. A more reflexive self-understanding of the premises of Article 9 jurisprudence would be an appropriate, albeit late, approach in attempting to overcome religious discrimination in ECtHR judgments.
Barnett, L., Freedom of Religion and Religious Symbols in the Public Sphere, Background Paper, Legal and Legislative Affairs Division
Bleiberg, B. Unveiling the real issue: Evaluating the european court of human rights' decision to enforce the turkish headscarf ban in leyla sahin v. turkey. Cornell Law Review, 91(1), 129-170, 2005
Choudhury v. United Kingdom, App. No. 17439/90, 12 HUM. RTs. L.J. 172 (1991)
Cumper, P., Lewis T., ’Taking religion seriously’? Human rights and hijab in Europe—some problems of adjudication, Journal of Law and Religion, Vol. 24, No. 2 (2008-2009), pp. 599-627, pp. 601-602.
European Convention on Human Rights, Article 9
Gay News Ltd. v. United Kingdom, App. No. 8710/79, 5 Eur. H.R. Rep. 123, 130, 11(1982).
Handyside v the United Kingdom, paras 48-49.
Isaksson, A. Religious dress and the rights of others, Lund Univeristy, 2019 Renucci, Jean-François. Article 9 of the European Convention on Human Rights: freedom of thought, conscience and religion. Vol. 88. Council of Europe, 2005.
Kokkinakis v. Greece, Application no. 14307/88, 25 May 1993, para 31.
Otto-Preminger-Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) at 1, 17-18 (1994).
Peter G. Danchin, Islam in the Secular Nomos of the European Court of Human Rights, 32 MICH. J. INT'L L.
Publication No. 2011-60-E, 2011
R v. Chief Metro. Stipendiary Magistrate (Ex ParteChoudhury),  1All E.R. 306 (Q.B) at 308.
Romero, A. C., "The European Court of Human Rights and Religion: Between Christian Neutrality and the Fear of Islam." NZJPIL 11 (2013): 75.
Strand, B., Prohibitions against Religious Clothing and Symbols in Public Schools and Universities: Narrowing the Scope by Introducing the Principle of Equal Treatment of Religious Manifestations, 10 Religion & Hum. Rts. 160, 2015, p. 161.
Tajfel, H., Turner, J., An Integrative Theory of Intergroup Conflict, in The Social Psychology of Intergroup Relations 33-48 (William G. Austin & Stephen Worchel eds.), Brooks-Cole, 1979.
 Strand, B., Prohibitions against Religious Clothing and Symbols in Public Schools and Universities: Narrowing the Scope by Introducing the Principle of Equal Treatment of Religious Manifestations, 10 Religion & Hum. Rts. 160, 2015, p. 161.  Tajfel, H., Turner, J., An Integrative Theory of Intergroup Conflict, in The Social Psychology of Intergroup Relations 33-48 (William G. Austin & Stephen Worchel eds.), Brooks-Cole, 1979.  Cumper, P., Lewis T., ’Taking religion seriously’? Human rights and hijab in Europe—some problems of adjudication, Journal of Law and Religion, Vol. 24, No. 2 (2008-2009), pp. 599-627, pp. 601-602.  Barnett, L., Freedom of Religion and Religious Symbols in the Public Sphere, Background Paper, Legal and Legislative Affairs Division Publication No. 2011-60-E, 2011  Ibid.  European Convention on Human Rights, Article 9  Isaksson, A. Religious dress and the rights of others, Lund Univeristy, 2019  Ibid.  Renucci, Jean-François. Article 9 of the European Convention on Human Rights: freedom of thought, conscience and religion. Vol. 88. Council of Europe, 2005.  Kokkinakis v. Greece, Application no. 14307/88, 25 May 1993, para 31.  Isaksson, A. Religious dress and the rights of others, Lund Univeristy, 2019  Ibid.  Handyside v the United Kingdom, paras 48-49.  Romero, A. C., "The European Court of Human Rights and Religion: Between Christian Neutrality and the Fear of Islam." NZJPIL 11 (2013): 75.  Choudhury v. United Kingdom, App. No. 17439/90, 12 HUM. RTs. L.J. 172 (1991)  Peter G. Danchin, Islam in the Secular Nomos of the European Court of Human Rights, 32 MICH. J. INT'L L. 663 (2011). Available at: https://repository.law.umich.edu/mjil/vol32/is  R v. Chief Metro. Stipendiary Magistrate (Ex ParteChoudhury),  1All E.R. 306 (Q.B) at 308.  Choudhury v. United Kingdom, App. No. 17439/90, 12 HuM. RTs. L.J. 172, 172-73 (1991); see also STEPHEN H. BAILEY, DAVID J. HARRIS & DAVID C. ORMEROD, CIVIL LIBER- TIES: CASES AND MATERIALS 1050-53 (5th ed. 2001); Paul Kearns, The Uncultured God: Blasphemy Law's Reprieve and the Art Matrix, 5 EUR. HUM. RTs. L. REv. 512, 515 (2000).  Gay News Ltd. v. United Kingdom, App. No. 8710/79, 5 Eur. H.R. Rep. 123, 130, 11(1982).  Otto-Preminger-Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) at 1, 17-18 (1994).  Bleiberg, B. Unveiling the real issue: Evaluating the european court of human rights' decision to enforce the turkish headscarf ban in leyla sahin v. turkey. Cornell Law Review, 91(1), 129-170, 2005  Ibid.  Ibid. 14