During the 20th century population movements, immigration and refugees have submerged in many States and multiculturalism has dominated, thus bringing with it ”diversity and differences”. Different religious beliefs are just one consequence which leads to the reflection of the society as ‘multi faith’. Moreover, “Europe has become a land of Islam” which is considered as ”one of the world’s great religions”. An important characteristic motivated by Islam is the Islamic headscarf or ‘hijab’. This kind of clothing in public has caused practical challenges over Europe the last few years by distracting the media, the ‘political scrutiny’ and the Courts.
However, this issue led to controversy which acquired an international implication and some problems have arisen. On the one hand, there are those people who claim their rights to manifest their religion and on the other hand there are the states which place restrictions on these rights by regulating against religious dogmas. Nevertheless, the right of the freedom of thought, conscience and religion as it is elaborated in the article 9 of the European Convention of Human Rights and which includes ”the freedom to change a religion or belief”, ”the right to manifest a religion through worship, teaching, practice and observance” is of great significance and it is the main issue which dominates in the applications in the Court.
This paper argues that the case law and the state’s position with regard to the religious clothing resulted to the disrespect of the manifestation of the individuals’ religious beliefs which relegate them in the private sphere only. People should enjoy their right of freedom of religion and should wear the religious dress of their choice in any place they want. The qualification of the right should not be exploited by the States because the victim each time is the individual who is deprived by his rights. This paper firstly highlights the importance of the right to freedom of religion and then it turns on to the religious dress debate. After this, it focuses on some very important cases such as Karaduman v Turkey, Dahlab v Switzerland and Sahin v Turkey cases by analysing the approach of the European Court of Human Rights and the European Commission of Human Rights as regards the freedom of religion. Apart from this, it also gives emphasis to the margin of appreciation and the consequences that have been created by the repulsion against religious dogma by the States.
Freedom of Religion in general
The right of freedom of religion is recognized both by the International and Regional level and it constitutes a right that belongs to the category of the first generation of civil and political rights. Its importance has been stressed by the ECtHR which stated that “freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. 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, skeptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it”. Therefore “while religious freedom is primarily a matter of individual conscience it also implies inter alia freedom to manifest one’s religion”. One of the ways of manifestation, as it has been said earlier, is wearing the religious dress. Religious dresses constitute a kind of symbolic clothing and they can be both an ”important expression of an individual” and part of its identity. In addition to this, this paper centres on Muslim women’s’ religious dress, namely the headscarf, which can take different forms depending on the country it appears. In general the headscarf hijap is a form of veiling which can be more widespread and wrap both the body and face.
The Religious Dress debate
In the United Kingdom “Jack Straw MP, leader of the House of Commons and a former Home and Foreign Secretary, commented that he felt uncomfortable talking to women at his constituency surgery who wore the Muslim veil sparked a storm of intense”. Mainly, this debate has been raised by the most European Countries in educational institutions. Especially in France, there was a debate because of the prohibition on schoolchildren wearing the Islamic headscarves and on the 15th March a law for this prohibition has been adopted . More specifically, the Islamic dress code issue was dealt by the ECtHR and the ECmHR many times since the controversy began.
Karaduman V Turkey
Karaduman case was about a student who finished her studies at Ankara University in Turkey. This woman was refused to receive her degree certificate because she did not comply with the University rules which required that University students should have their head uncovered because in a photograph she gave to the University she was wearing a headscarf. The applicant claimed that those actions violated her freedom of religion right as it is guaranteed by the article 9 ECHR. On the other hand, the Turkish government supported that in this case the principle of secularism was applied and that did not constitute any breach.
Furthermore, the Commission stated that it was her choice as pursuing “her higher education in a secular university a student submits to those university rules, which may make the freedom of students manifest their religion subject to restrictions such as to place and manner intended to ensure harmonious coexistence between students of different beliefs”. The dress regulations were important in order to ensure the protection of the ”public order in higher education”. Those Internal rules were sought to promote the secular nature of the University. It was believed by the Commission, that by ”regulating the religious dress and refusing administrative services” there was not any interference to the right to freedom of religion. As a result, emphasis was given on the rights of other students of other beliefs, like not to be pushed in order to ensure the public safety. Nonetheless, the Commission evoked its post jurisprudence and cited that according to article 9 does not warrant people to behave publicly as their religion dictates. In addition to this, ”the term ‘practice’ in the sense of article 9 does not denote any act motivated or inspired by a religion or a conviction”. As it seems, the Commission included in its reasoning the ‘exclusion clause’ which gave the permission to the Court to ”restrict the manifestations of belief” and as a result the Court had the potential to exclude some acts or manifestations from the protection of article 9. Accordingly, the actions by the people who claimed that they manifest their belief by their religious dress were excluded of the situations which constitute ‘manifestation’.
Dahlab v Switzerland
According to the Swiss case Dahlab there was no violation found of the article 9 ECtHR. That case was about a primary teacher in a school at Geneva who decided to wear in the class an Islamic headscarf. After that, she was requested to stop wearing it because that action was incompatible with the section 6 of the Public Education Act. For this reason, Mrs. Dahlab alleged that there has been a violation of her right to freedom of religion. The ECtHR in its judgment appreciated the Federal court’s decision. In addition, according to the Swiss Federal Court, ”the wearing of a headscarf and loose fitting clothes consequently indicated allegiance to a particular faith and a desire to behave in accordance with that”. However, the applicant stressed that she wore those clothes for 5 years and there was not any reaction or complaints. The ECtHR did not deal with that argument directly and it agreed with the Federal’s Court argument that some did not react directly because they might have waited from the education authorities to act. Generally the ECtHR, after having considered the circumstances and the margin of appreciation and the requirements for legitimate restrictions, said that: “It cannot be denied that the wearing of a headscarf might have some king of proselytizing effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which… is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and above all, equality and non discrimination that all teachers in a democratic society must convey to their pupils”. More specifically, the teacher was considered as a representative of the State and she should follow all the rules which are necessary to keep neutral in that public space because the pupils were at the age where they wanted to know everything. Further ”public agents have a ‘devoir de reserve’ (obligation of restrain), they must not display any sign of religious allegiance, so as to show equal respect to all users of public services.” Children between four and eight years old could have been easily influenced especially by a strong religious symbol such as the headscarf. Therefore, it would have been better for the teacher not to manifest her religion in that public place. This case is a form of what constitutes indoctrination because it shows the courts view on the impact the wearing of such religious symbols has in front of young children. On the other hand, it could be argued that the restriction of wearing the headscarf enforces the persons who are in dilemma between the manifestation of their religion and their job or other public actions to stop one of them in order to prescribe that conflict. In general, emphasis has been given on the principle of neutrality, the importance of religious harmony in schools, on the principle of secularism and on gender equality. However, the principle of gender equality has not been justified sufficiently. It stated that the headscarf is not conformed to gender equality but the fact that she was an adult woman and could make her own her choices was overlooked.
Leyla Sahin v Turkey
Leyla Sahin was a medical student in Istanbul University who was practicing her religion as a Muslim and used to wear the Islamic headscarf in lectures and tutorials. In 1998 the Vice Chancellor of the University issued a circular which prohibited students whose heads were covered and students with beards to be admitted in lectures, courses or tutorials. Despite that, Sahin continued to wear it and she was denied access to written examinations. She was also denied to join lectures and tutorials. After that, she was excluded by the University and she continued her studies at Vienna University.
Under those circumstances, Sahin alleged that the ban was an unjustified interference into her right to manifest her religion. ‘By wearing the headscarf, she was obeying a religious precept and thereby manifesting her desire to comply strictly with the duties imposed by the Islamic faith’. On the other hand, the Turkish Government argued that the headscarf ban in Universities was necessary to protect the constitutional values of secularism and gender equality. More specifically, in that case there was found an interference of her right under the article 9 ECHR, but it was justified under the requirements of article 9(2) ECHR. Unlike Dahlab and Karaduman cases, in Sahin case the prohibition of the headscarf in public places was considered as an issue under the article 9 ECHR and the Court concentrated its analysis on the requirements of the article 9(2) ECHR. In that case, the Court underlined the ban by giving importance to the principle of secularism, pluralism and equality of men and women principles which lead the authorities to promote ‘the secular nature of the institution’. Additionally, in relation to Karaduman case, no violation of the article 9 ECHR has been found and the requirements of article 9(2) ECHR have not been determined. Moreover, the Chamber and Grand Chamber in Sahin case reinterpreted Karaduman to be a case of interference but one that was justified under article 9(2) ECHR. However, the Court could not do this assertions and the consideration is not correct because in Karaduman case it was held that there has not been an interference of the article 9 ECHR. With Karaduman case the wearing of headscarf did not constitute a manifestation of religion. Moreover in Sahin case the Court did not use the ‘exclusion clause’ in order to limit the manifestation but it accepted that the wearing of headscarf constituted a manifestation. Accordingly, the characterisation of Sahin’s action as manifestation resulted to the fact that wearing a religious dress is not an action outside the article 9 ECHR.
Article 9(2) of the ECHR
The right of Freedom of Religion, Conscience and Thought is an absolute right. However, the manifestation of a right such as wearing religious dress may impose limitations. This means that under some circumstances it is possible for a state to interfere into the requirements of the article 9(2) ECHR. The principles that are implied are the following. The restriction should have a legal basis in domestic law and should constitute a legitimate aim by protecting the ‘public order’, ‘health’, ‘morals’ and ‘the rights and freedoms of others’ and should be necessary in a democratic society because of the “several religions which coexist within one and the same population and it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected”. The state should be ‘neutral’ and ‘impartial’ in order to maintain harmony and tolerance in society. “Pluralism, tolerance and broadmindedness are hallmarks of a democratic society”. The problems that may arise should be resolved though dialogue in order to promote the values of democracy. Moreover, the Court should allow the States a margin of appreciation to regulate the issue for which there is dispute because sometimes it is better for the state to resolve the problem by assessing a balance. Of course the Court does not lose the responsibility to supervise the State. Moreover the requirement of the necessity in a democratic society was criticized by the Judge Tulkens mainly based on the margin of appreciation, the principle of secularism and equality.
Margin of appreciation
To begin with, the margin of appreciation is a very important doctrine created by Strasbourg and it does not included in the ECHR by itself. The margin of appreciation, as it has been said above, it is applied in cases such as the religious expression when the relationships between Religion and State are at stake and it could be better for the national authorities to promote ‘the balance between the individual and the social good’. Nevertheless, the subject matter is the factor which determines the width of the margin. For example, in cases when the State, in a crucial issue, does not agree on a common ground, that is to say when there is not a consensus the Court allows a wide margin of appreciation in order to solve the problem. In Sahin case, the Court noted that the religious dress in educational institutions is the issue to which the margin of appreciation is especially given because around Europe there is not a uniform conception but only different approaches by the states. Moreover, this argument is misplaced. First of all, the ban of the headscarf in Universities is not prohibited by any other European country. Furthermore, the lack of consensus observed in other European Countries concerns the wearing of religious dress in primary and secondary schools but not in universities. Besides all these, Sahin was an adult who could decide by herself what she really wanted and acted by her free will without any influence. The same thing is in effect for the other students in the University. They were in the intellectual condition to choose for example the religion they wished without letting themselves be influenced. Also, something very important is the supervisory role of the Court which should keep the real evaluation of the situation and ”ensure that the national decision making process is fair”. Moreover, in Sahin case it seems that the Court abdicates by its responsibility and that it acts arbitrary. Even if it refers to the fact that the European Supervision ‘goes hand in hand’ with the margin of appreciation, this supervision, as Judge Tulkens notes, lucks judgment. As it can be seen, the ECtHR inappropriately granted a wide margin of appreciation to the Turkish government which is unjustifiable and this causes two serious problems. Firstly, Sahin could not enjoy the human rights she deserves and secondly the Court harmed public’s confidence and as it is natural individuals do not have any motive to place their affairs in front of a court which fails to achieve its role.
Principle of Secularism
Furthermore, the majority noted that secularism created the ‘pressing social need’ in order to protect ‘the rights and freedoms of others’ in a country where the majority of the population is adherent to Islam by justifying the restrictions under the article 9(2) ECHR. In addition to this, the justifications should be proved by ‘concrete examples’ something which this case lacked. There was not any proof that Sahin wanted to offend the principle of secularism to proselytise or put pressure on other students or to disrupt teaching. Thus, the Court continued seeing the headscarf as a threat by endorsing Turkey’s analysis for its significance without taking into account Sahin’s assertions. Also, because of lack of explanation on how the headscarf was necessary to protect others, it could be argued that the Court’s approach is Islam phobic. In general, the ECtHR decided without doing any investigation. It was simply argued that without the ban, the principle of secularism would lead to jeopardy. It is clear that the Court kept a position against the individual and gave a superior position to secularism.
The court also examined the impact the headscarf imposed on those who choose not to wear it. Judge Tulkens noted that in the light of the case law this has not been regarded as a good enough reason to limit expression. For example, “in the sphere of the freedom of expression the Court has never accepted that interference with the exercise of the right to freedom of expression can be justified by the fact that the ideas or views concerned are not shared by everyone and may even offend some people”. The ECtHR once more failed to provide a concrete example about the pressure that ”extremist political movements sought to impose on the society” and ”merely wearing the headscarf cannot be associated with fundamentalist” because ”not all women who wear it are fundamentalist”.
Hence, in Sahin case there was not clarification if the ban was concerned only with students or if it was concerned with teachers too. Furthermore, in relation to Dahlab case, Mrs Dahlab was considered as a representative of the State and she might have influenced young children through the way she chose to manifest her religion. Accordingly, the neutrality of the State required the education to be without manifestation of any religion. In this point, Judge Tulkens made a distinction between public servants and pupils and students on the other. What she wanted to show is that the situation for students and public servants is not the same as teachers who have the role of the representative. Students and pupils do not belong to the government function.
Principle of Equality
Apart from the principle of secularism, the majority also noted the importance of the principle of equality. For many people the headscarf is considered as an object of ”humiliation and oppression of women” and that with the ban that which was sought was the support of equality between the sexes and free women. Moreover, there was not any evidence showing the connection between the ban and gender equality nor was there any reference of the opinion of women who chose to wear the headscarf. “There was nothing to suggest that Sahin was not telling the truth” about her intention to wear the headscarf. How could the decision of the Court be justified when there is lack of evidence? For example, it could have been a strong argument if the headscarf was worn under pressure by her family. Despite that, there was not any evidence for that and the partiality the ECtHR kept is shown. Finally “if wearing the headscarf was really contrary to the principle of equality between men and women in any event, the State would have a positive obligation to prohibit it in all places, whether public or private”. In view of this, it seems that the ban was not a threat nor oppression for women because the ECtHR in any case did not keep in mind the importance such a symbol may have for some women.
According to all these, it seems that in Sahin case the ban of the Islamic headscarf constitutes an unjustifiable interference. Moreover, the Court through its case law showed its unwillingness to recognize individuals’ freedoms by approving the weakness of the article 9 ECHR. The Court has strengthened states’ power and as a consequence the requirements of article 9(2) are used abusively. After these cases, the ECtHR dealt with other cases related to restrictions of wearing religious dress and which showed that it kept the same tactics. Dogru v France case is about a Muslim girl who was expelled from school because she refused to remove the headscarf during the physical education classes. In this case the Court used the same principles as in Sahin case, founding the appropriate interference and by not giving any importance to the arguments about their right to education. In cases like these, the Court could have changed its strategies and be more neutral. Through the case law one can see the unfair treatment of certain people.
The consequences of the State’s power to regulate the religious dress
The margin of appreciation doctrine, as it has been said earlier, is that which gave power to the Courts in order to regulate the religious dress in public and to deprive the individual by its human rights. Sahin is a very strong example of the application of this doctrine which gives the signal to domestic courts to allow power to national authorities and to regulate against religious dogmas. An example of this is the R (on the application of Begum) v Headteacher and Governors of Denbigh High School case, which was about a Muslim girl who refused to wear the ‘shalwar kameeze’, the religious dress code which was worn at school. Instead she wanted to wear the ‘jilbab’. The school refused to satisfy her requirement and she was alleged a breach of right to manifest her religion and she was aware of the school uniform. In that case, the House of Lord used the margin of appreciation which Strasbourg allows in its domestic law. “In applying the principles of Sahin v Turkey the justification must be sought at local level and it is there an area of judgment, comparable to the margin of appreciation that must be allowed to the school”. Despite the margin of appreciation, which ECtHR allowed, this could cause problems because in this way the court abstained to investigate the case by giving the allowance to the school to regulate in the way it wants.
A similar strategy appears in a German case, Ludin v Land Baden Wurttemberg , where a teacher wanted to wear the headscarf. The Constitutional Court held that because of the religious differences, it might be necessary to have restrictions in public schools, but these restrictions could only be imposed only by the ‘democratically legitimised regional legislator’. After this decision, many States in Germany such as Baden Wurttemberg and Hissi adopted strict laws and banned the religious dress clothing in the public environment.
In Europe, the consequences of the laws which ban the religious dress mainly harm women who are discriminated on the grounds of religion and gender. Because of the laws, Muslim women were dismissed of their jobs and others were denied employment. Moreover, other women were forced to deny their religion and conscience because this was required by the cost of life and the conditions of their life.
The ban is not actually a threat or a danger in society. States should re examine their legislation and use policies that will not unjustifiably restrict the human rights and in particular the right to freedom of religion.
To sum up, the religious dress is an issue which received a lot of criticism and it has been the subject of controversy through the years. The right to freedom of religion and more specifically the right to manifest a religion, even if it is important for people’s identity, it has been breached many times.
As it has been shown by the case law, the Court was reluctant to consider the individuals’ expectations and to promote the rights people deserve. It seems that most of the times the Court follows the government’s assertions and decides without adequate investigation or evidence acting in the blinds. The Court’s weakness may result in feelings of distrust on the part of the people. Moreover the approach of the Court and the wide margin of appreciation allowed to the States lead to the violations of people who wear specific religious clothes in public. Furthermore as it has been shown through the case law is given emphasis to the principle of secularism and neutrality but the different reasoning of the Court in some cases prove its weakness to protect people’s manifestation of a belief. An example is the confusion that has been observed between Karaduman v Turkey and Sahin v Turkey.
Finally the restrictions that have been imposed by the States as regards the religious dress are a result of the power they have and the restrictions are not justified. That which is necessary is a stronger Court and States not to use their power abusively. People have rights and should not be deprived of them. Consequently, people should wear the religious dress of their choice in any place they desire and should be free to enjoy their right without unjustifiable restrictions.
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http://www.hrw.org/en/reports/2009/02/25/discrimination name neutrality? (accessed: 26 April 2009).
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