[dropcap]F[/dropcap]or the last few years, wearing religious symbols has triggered a major debate across Europe. The debate, which started after the imposition of prohibitions laws on religious symbols in several European states, has become a controversial human rights issue among scholars.
France, Denmark, Turkey, Germany, Switzerland and other member-states of the European Convention of Human Rights (ECHR) have discussed, endorsed and some have already passed legislation banning religious symbols such as Islamic veils, Jewish kippahs, Sikh turbans, large Christian crosses and others.
The debate has mostly concentrated on the religion of Islam and on Islamic veils, also pointing out the significance of other issues revolving around these bans, such as the extensive dimensions of Muslim immigration in Europe and the predominant position of Islam in the Western world (Guven, 2013, pp.111-114).
Basing their justification mostly on the grounds of the protection of individuals’ freedoms and rights, national security and protection against terrorism, many advocated and interpreted bans on religious symbols as a means of preserving the values of secular states and enhancing gender equality and women’s rights.
However, many explicitly expressed their opposition against ban laws and restrictions on religious symbols as a violation against their right to religion (Art. 9 of ECHR), prohibition of discrimination (Article 14 of ECHR) and the right to education (Article 2 Protocol 1 of ECHR).
In their effort to support their right to manifest their religious beliefs and find justice, many applicants have sought justice to the European Court of Human Rights (ECtHR).
Right to Religion
Based on Article 9  of the ECHR, every individual has the right to support his/her religious beliefs, manifest/practice them individually or with other people “through worship, practice, teaching and observance” within both private and/or public frames. Any kind of arbitrary prohibition against people’s right to religion can be considered a breach of Article 9 of the ECHR.
Limitations on people’s right to manifest their religion are only accepted under specific circumstances, when it is prescribed by law and it is necessary in a democratic society (Art. 9 , ECHR). In cases where the danger of extreme manifestation (by fundamentalist groups or individuals) exists, the right to religion can be subjected to limitations.
One’s right to manifest his/her religious views can be limited in exchange for the protection of a state’s public prosperity, security health and morals and the protection of the rights and freedoms of others. According to Jim Murdoch “In this area […] the Strasbourg Court is likely to recognize a certain “margin of appreciation” on the part of state authorities, particularly where the justification advanced by the state is public safety or the perceived need to prevent certain fundamentalist religious movements from exerting pressure on others belonging to another religion or who do not practice their religion” (Murdoch, 2007, p.50).
Using the Dahlab v. Switzerland case as an example, Ms. Dahlab, a primary school teacher who denied removing her Islamic headscarf in school (during her teaching duties) complained for violation of her freedom to manifest her religion (Article 9 of the ECHR). The European Court of Human rights (ECtHR) claimed that under article 9 the applicant had every right to wear her headscarf at school. Nevertheless, considering that she was a teacher in a primary school, wearing her headscarf could be considered a symbol of extreme religious manifestation. Based on this, the court stated that Ms. Dahlab should remove her headscarf in school as it was possible to have a proselytizing effect on her students (due to the young of their age). Furthermore, it (court) noted that wearing her headscarf does not reconcile with the principles of gender equality and the respect of freedom of others (Murdoch, 2007).
The court’s decision on this case was intensively criticized among scholars. As Cumper and Lewis note, Ms. Dahlab’s choice to wear her headscarf had not caused any kind of negative reactions or public disorder up to that point, while the court did not take into consideration her right to wear whatever she likes within the frame of individuals’ personal autonomy (Cumper and Lewis, 2008, p.609). Moreover, her choice to wear her headscarf could have had a positive effect instead, delivering “positive messages about the equality of different religious and cultural groups”, an issue that the ECtHR did also not take into account during its judgment (Ovey and White, 2006, p.310).
Prohibition of Discrimination
Many cases on the issue of religious symbols have been examined not only under Article 9 of ECHR but also under a number of other relevant articles of the Convention. One of these articles is prohibition of discrimination (art.14). According to Article 14:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (Art. 14 ECHR).
Article 14 (in conjunction with other rights of the ECHR) protects a wide number of ECHR’s substantive rights, such as the right to private and family life and freedom of thought, conscience and religion. In cases where discrimination is associated with one of the rights set forth in the Convention, the ECtHR may examine complaints for possible violation of Article 14. While Article 14 secures “the enjoyment of the rights and freedoms set forth in [the] Convention”, Protocol 12 extends its prohibition against discrimination “for the enjoyment of any right set forth by law” (Art. 1 Protocol 12).
One who has been deprived of his/her enjoyment of the right to religion as is guaranteed in the Convention, is also possible to face discrimination based on the ground of religion (Article 14 in conjunction with Article 9 – religious discrimination).
For example, in the case of Ms. Eweida, the issue of religious symbols is discussed within both under Article 9 and Article 14 of ECHR. The applicant Ms. Nadia Eweida, a British Airways’ employee, complained that domestic laws did not succeed to protect her properly against her employer’s restrictions on wearing her visible Christian cross at work. Based on these, Ms. Eweida claimed that both Articles 9 and 14 of ECHR had been breached. British Airways supported that wearing a visible cross while at work was not acceptable as it did not fit with the idea of their corporate image.
Having to balance the applicant’s wish to manifest her religious views and British Airways’ wish to maintain a specific corporate image, the court held that the applicant’s right to religion under Article 9 had been breached. Particularly, the court claimed that “there was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance”(Eweida and Others v. United Kingdom, para 94). Furthermore, regarding the applicant’s claim on Article 14 the court held that “it does not consider it necessary to examine separately the applicant’s complaint under Article 14 taken in conjunction with Article 9” (Eweida and Others v. United Kingdom, para 95).
Right to Education
Article 2 of Protocol 1 of the ECHR provides that every person has the right to education and the state should respect “the right of parents to ensure such education and teaching in conformity with their own religious and philosophical conviction”. Within this context, parents have the right to provide education to their children in accordance with the religious and philosophical ideas, values, beliefs and principles that the student’s family wishes to preserve. Based on this, it appears that the right to education (Art. 2 Protocol 1) is closely associated with the freedom of the right to religion (Art. 9). In countries where the values of secularism have a principal role in the state’s operation such as Turkey and France, European bans and restrictions on religious symbols in schools and universities have become a major controversial issue.
In all following cases, Aktas v. France, Bayrak v. France, Gamaleddyn v. France, Ghazal v. France J. Singh v. France and R. Singh v. France the court found the applications inadmissible. It is important to note here that in 2003 President Jacques Chirac asked for the introduction of a law prohibiting conspicuous religious symbols in French state schools (Aldred, 2003). Having its grounds on the protection of secularism and religious neutrality of the state, the law (Law No. 2004-228, of 15th March 2004) passed in 2004.
Miss Aktas, Miss Bayrak, Miss Gamaleddyn, Miss Ghazal, Mr. Jasvir Singh and Mr. Ranjit Singh were students in several state schools in 2004-2005. After the girls’ refusal to remove their Islamic headscarves and the boys’ to remove their Sikh underwear turbans at school, they got expelled “for wearing conspicuous symbols of religious affiliation”.
The applicants complained about violation against their right to religion and religious discrimination (Article 9 in conjunction with Article 14) and claimed that the fact “that they had been denied access to the schools concerned” constituted a breach of their right to education under Article 2 of Protocol 1, ECHR. The court examined the applicants’ complaints only under Article 9 and held that “the interference by the authorities with the pupils’ freedom to manifest their religion was therefore justified and proportionate to the aim pursued. Consequently, their complaints under Article 9 had to be rejected as manifestly ill-founded”. Regarding the applicants’ complaints under Article 2 Protocol 1 of the Convention the court decided that “no separate question arose under that head and that it did not need to examine these complaints”.
Based on the above case studies, the ECtHR has supported many states’ bans on religious symbols in public spaces, work and educational institutes. More applicants have lost in cases similar to the ones discussed above, including Sahin v. Turkey, Köse and others v. Turkey and Dogru v. France.
With the welcome exception of the Eweida v United Kingdom case, which is also one of the few cases where the court recognized an individual’s right to manifest its religious views, in the majority of cases the court seems to struggle to protect individuals’ rights under this context and subsequently ends up discounting their right to autonomy.
In its effort to maintain the balance between the two sides (applicant and state), the court instead focused primarily on maintaining the principle of secularism and protecting the rights of others. Such decisions have a negative impact not only on individuals’ right to religion, prohibition of discrimination and right to education, but also a number of other rights such as individuals’ right to private life (Art. 8) and freedom of expression (Art. 10).
[toggle title=”References” state=”close”]
- Aldred J, (2003). Jacques Chirac backs headscarf ban. The Guardian. Retrieved from: http://www.theguardian.com/education/2003/dec/17/schools.uk1
- Bayrak v. France (no. 14308/08), Gamaleddyn v. France (no. 18527/08), Ghazal v. France (no. 29134/08), Jasvir Singh v. France (no. 25463/08) and Ranjit Singh v. France (no. 27561/08) (30 June 2009)
- Cumper P, and Lewis T, (2008). Taking Religion Seriously? Human Rights and Hijab in Europe-Some Problems of Adjudication. Journal of Law and Religion Vol. 24, No. 2
- Dahlab v. Switzerland, App. No. 42393/98, (ECt.H.R 2001-V)
- Dogru v. France, (App. No. 27058/05), 49 Eur. H.R. Rep. 8
- European Convention on Human Rights 1950 [ECHR] Retrieved from: http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm
- European Union Agency for Fundamental Rights & Council of Europe (2010.) Handbook on European non-discrimination law. Luxembourg: Imprimerie Centrale
- Eweida and others v United Kingdom App Nos 48420/10, 59842/10, 51671/10, 36516/10 (ECtHR, 15 January 2013)Hasmi H, (2010).Too Much to Bare – A Comparative Analysis of the Headscarf in France, Turkey, and the United States. 10 U. Md. L.J. Race, Religion, Gender & Class 409
- Ismail Guven “Globalisation, Political Islam and the headscarf in education with specific reference to the Turkish educational system”, In Watson and Ozanne (eds.) Education Religion: Global Pressures, Local Responses (Routlegde, 2013)
- Jones N, (2012). Justice must be seen to be done: Organisational Justice and the Headscarf and Burqa laws in France. International Journal of Organisational Behaviour Vol. 17 (2)
- Köse and others v. Turkey, (App. no 26625/02), ECHR 2006–II
- Leyla Şahin v. Turkey [GC], (App. No. 44774/98), ECHR 2005-XI
- Murdoch J, Freedom of thought conscience and religion. A guide to the implementation of Article 9 of the European Convention on Human Rights’, Human rights handbooks, No. 9,Council of Europe, Strasburg, 2007
- Nathwani N, (2007). Islamic Headscarves and Human Rights: a critical analysis of the relevant case law of the European Court of Human Rights. Netherlands Quarterly of Human Rights Vol. 25/2
- Ovey C, and White R.C.A, Jacobs and White the European Convention on Human Rights.Oxford University Press, 4th ed., 2006