I have seen great intolerance shown in support of tolerance.
~Samuel Taylor Coleridge
While inherently diverse in its variation, the concept of religion as a whole has been aptly described as “…one of the most vital elements that go to make up the identity of believers and their conception of life” (Kokkinakis v. Greece). Given the historical role and significance of religion throughout European history, it is no wonder that respect for religious freedom is nowadays, albeit to varying extents, categorically enshrined in some form or other within each Council of Europe member state.Furthermore, Article 9 of the European Convention of Human Rights (ECHR)guarantees freedom of religion- not only the right to choose one’s own religion but also the practice and manifestation of such.
This protection however, despite its national, European and International guarantees,has in practice given rise to many conflicts of interest between the individual and the state. This is primarily due to the non-absolute nature of freedom to manifest one’s religion under Article 9 ECHR, as qualified under Article 9(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.”
The following assessment will focus on various European national practices in limiting the right of the individual to manifest his/her religious beliefs and the European Court’s evaluation and response to such curtailments. Of specific focus will be the challenges faced by Muslim women within Europe and their right to wear the hijab in the conduct of their daily life, particularly within the education system.
A divided approach
As will be examined below, the Court has often sought to establish whether there exists a common approach throughout the member states as regards the domestic legal position of the Islamic headdress in the education environment. Such a European consensus does not currently exist, understandably due to the different ethnic demographics and prominence of religion within the state itself, as well as the varyingly politicised dimension of the issue. Take Turkey for instance. Despite its majority Muslim population, the state’s staunchly secularist nature has repeatedly trumped the right to freedom of religion, notwithstanding the constitutionally enshrined protection of the latter. The ban on the hijab within the public education system has lead to large-scale national debate on the issue, and has prompted substantial litigation at national and European level. Only within recent years and due to considerable public pressure has Turkey somewhat eased the staunch restrictions on the headscarf.
Conversely in the United Kingdom, where Islam is neither traditionally the religion of the state nor the majority religion today, the quintessentially multicultural approach has manifested without any such institutional prohibitions on the hijab generally, as well as within the sphere of education. Numerous schools have been considered to go to lengths to provide school uniforms tailored to Muslim dress code, as too have the Metropolitan Police Force.
In 2004, France introduced legislation prohibiting the wearing of the hijab and other overtly religious symbols in both primary and secondary schools, though it does not extend to universities. France has also gone one step further as regards the full-face Islamic veil (the niqab and burka) and has banned such religious dress entirely within the public sphere. The impetus of the law stemmed from security concerns, where it was argued that a person is not readily identifiable while their faces are concealed. In addition, the political debate has focussed strongly on the compatibility of the full-face veil with concepts of equality and women’s rights, leading the French parliament to condemn the religious headdress as “an affront to the nation’s values of dignity and equality” (BBC World News, ‘The Islamic veil across Europe’). In 2011, Belgium followed the French lead and became the second EU state to prohibit the burqa, while the issue has also been strongly debated in the Netherlands in recent years.
In Denmark, it is currently not prohibited to wear the Islamic veil in education institutions. However, as of 2008, it is prohibited for members of the judiciary to wear distinctly religious symbols, including the hijab, so as to maintain a religiously and politically impartial courtroom. Finally, in Germany, the constitutional court ruled in 2003 that the banning of the hijab in education institutions was permissible, providing it had legislative underpinning.
The evaluation by the European Court of Human Rights
As noted above the right to manifest one’s religion is clearly susceptible to limitations by the state providing the interference is, “prescribed by law…necessary in a democratic society in the interests of public safety, for the protection of the rights and freedoms of others” (Article 9(2) ECHR). On the other hand, the Strasbourg judiciary is also quick to reiterate the vital role of freedom of religion and its importance in defining a pluralist, democratic society:
“Freedom of…religion is one of the foundations of a ‘democratic society…The pluralism indissociable from a democratic society which has been dearly won over the centuries depends on it.” (Kokkinakis v. Greece)
However, as its jurisprudence clearly attests, the Court has shown significant reluctance in rebuking domestic legislation and the rulings of national courts where interferences with the manifestation of religion have arisen. The wide margin of appreciation (i.e. the room for legal variation) afforded to the member states in this regard has been justified on the basis of a lack of European consensus on, “the importance of the significance of religion in society…[and] must inevitably be left up to a point to the State concerned, as it will depend on the domestic context…”(Leyla Şahin v. Turkey). In this regard, the deference by the Court toward the relevant member states has been highly criticised as undermining the fundamental nature of the right to religion and instead “adopt[ing] the intellectually lazy option of running for the cover [of] the margin of appreciation.”(Lewis, ‘What not to wear: religious rights, the European Court and the margin of appreciation’)
In Karaduman v. Turkey, the University of Ankara had refused to issue the applicant’s university degree, pending the provision of an identification photograph that showed the applicant without any headdress. The European Commission of Human Rights (the Commission) upheld the ruling of the national courts that the requirement that students could not wear headdress of any sort in their identification photographs, including the Islamic veil, did not violate Article 9. Critical in the decision to dismiss the applicant’s case, the Commission highlighted that the applicant had knowingly enrolled in a secular university, where restrictions on the manifestation of religion could be expected so as “to ensure harmonious coexistence between students of different beliefs.” (Karaduman v. Turkey, p. 108). The European Court approved of the Turkish Constitutional Court’s fears that the veil worn by some Muslim women at the university might adversely affect those who had chosen not to wear such. Finally, the Commission concluded that all other considerations aside, the provision of a photograph for identification purposes only, which was not intended for exposure to the general public, could not be seen as a manifestation of religion. Thus, it determined that no interference had in fact occurred under Article 9 ECHR.
The case of Dahlab v. Switzerland concerned a Muslim primary school teacher, who had been prohibited from wearing the hijab at school, as it was in contravention of the denominational neutrality required within the Swiss education system. Section 6 of the cantonal Public Education Act of 1940 explicitly required that “the religious beliefs of pupils and parents [be] respected”. Here, the Court examined the ruling of the Federal Court in significant detail. Particular importance was attached to the domestic court’s finding that the age of the pupils in the applicant’s class (between 4 and 8 years) made them highly impressionable by the “role-model” figure of a teacher. The Court was concerned that given the children’s young age, there was a possibility that the hijab would have a proselytising effect on the children, despite the lack of any complaints by the students’ parents to that effect. Finally, in holding that the state had not exceeded its margin of appreciation, the Court appeared to agree with the Federal Court that the hijab itself was difficult to reconcile with the concepts of “tolerance, respect for others and …equality and non-discrimination”. Thus, having found that the restriction was justified in principle and was proportionate given the young age of the children, the Court held that the limitation was therefore necessary in a democratic society and dismissed the application.
With due regard to the above, the most significant case in this area is Leyla Şahin v. Turkey. The applicant had been in her fifth year of medical school at the University of Istanbul when the alleged violation occurred. Şahin was on several occasions refused access to various aspects of her medical education on the grounds that her hijab was in contravention of the various regulations in place. The Constitutional Court had previously ruled in 1991 that the prohibition on wearing the veil and headscarf in higher education institutions did not conflict with the Constitution given that such a restriction was necessary to preserve the secular nature of the state, as enshrined in Article 2 of the Turkish Constitution and also gender equality inherent in the Constitution’s Preamble (the introductory founding principles). Having thus found a basis in law, the Grand Chamber further held that the restriction had also pursued a legitimate aim in that it sought to preserve the secularist nature of the state and also the rights and freedoms of others of differing religious convictions. In the final element of evaluating whether the restriction was “necessary in a democratic society”, the Court cited Dahlab, where the hijab was seen to be a “powerful external symbol”, its potential proselytising effect and the anomalous nature of such with the concepts of tolerance and equality for women. In the final proportionality assessment, the Court highlighted the fact that the ban affected all religious attire, not merely that of Islamic origin (para. 118). Furthermore, the ban had come in light of a prolonged public debate on the issue, as well as extensive examination by the Turkish courts, and thus had supposedly taken all the relevant affected parties’ rights into account (para. 120). On such a basis, the Court did not find a violation of the applicant’s right to freedom of religion by virtue of the legitimate restriction provided under Article 9 (2) ECHR.
Despite a lack of controversy from within the Grand Chamber panel itself (16 votes to one), the judgment of the Court opened itself up to substantial criticism by human rights groups and religious organisations alike. The ruling of the majority also incurred pointed disapproval from the sole dissenting judge- Judge Tulkens- in her dissent. It is submitted by the author, much in the same vein as Judge Tulkens, that the Court failed to properly distinguish the situation in Dahlab, where one of the crucial factors in the case was the authoritative role of the applicant vis-à-vis her young students. Here however, the applicant had been 25 years old at the time of the interference and had consistently maintained that she chose to wear the veil of her own volition. In no uncertain terms, Judge Tulkens voiced her concerns about the Court’s paternalistic approach in its subjective opining of the alleged fears associated within Islamic practice, where she firmly believed that such pronouncements went far beyond the Court’s role. As to the majority’s claim that the veil was inter alia “hard to reconcile with the principal of equality” (para. 111), Judge Tulkens pointed out (and it is submitted correctly) that:
“It is not the Court’s role to make an appraisal of this type…[nor should it] impose its viewpoint on the applicant…”
She reiterated on several occasions that the Court had not been furnished with sufficient evidence that the hijab posed a security threat to Turkish society and that the Court hadn’t sufficiently supervised the domestic restriction.
After the judgment in Şahin, the prominent human rights NGO Human Rights Watch echoed the concern and disappointment of Judge Tulkens, maintaining that the Court had:
“let down thousands of women who will be prevented from studying in Turkey’s universities… It missed an important opportunity in this case to stand firmly behind principles of freedom of religion, expression, and non-discrimination…” (Human Rights Watch, ‘Turkey: Headscarf Ruling Denies Women Education and Career’)
Since the case of Şahin, significant developments have occurred in Turkey regarding the prohibition on the Islamic headscarf. After an initially unsuccessful attempt in 2008, the ban on the headscarf in universities was finally lifted at the end of 2010. As recently as October 2013, the restrictions have also been eased in the workplace, allowing women employed in the public sector to wear the headscarf, for the first time since the modern Turkish state was founded. The lifting of the ban has split public opinion in Turkey; many believe that such comes as a large step in restoring freedom of religion and expression as well as enabling women to take a more active role in the workforce, while opponents warn of the eroding effect it may have on the secularist state.
S.A.S. v. France: Strasbourg to evaluate the French Burqa Ban
The Grand Chamber of the Court is currently adjudicating the highly pertinent and seminal case of S.A.S. v. France, with the judgment due sometime this year. At the core of the complaint is the French law criminalising the full-face veil. The applicant, a devout Muslim woman who wears the burqa, complains that the French law violates her rights to: freedom from inhumane or degrading treatment (Article 3 ECHR), private life (Article 8), freedom to manifest religious beliefs (Article 9 ECHR), freedom of association and assembly (Article 11 ECHR), and prohibition from discrimination (Article 14 ECHR). Under the law, first introduced in October 2010, those found to be wearing a full-face covering in public places, except in places of worship, can be fined by up to €150, while those found guilty of coercing others to wear the veil face a fine of up to €30,000 and a year in prison. Furthermore, anyone found to have breached the law is also required to take mandatory citizenship training to remind the convicted person of the “republican values of tolerance and respect for human dignity’ (Open Society Foundations, ‘S.A.S. v. France: Criminal Penalty for Wearing a Full-Face Veil in Public Spaces’). Several NGOs have filed amicus curiae (third party) briefs in support of the applicant, including the Open Society Justice Initiative, Liberty, Article 19 and Ghent University Human Rights Centre. The general common thread of the support is the argument that the law is disproportionate in its aims, unfairly prejudices the ability of certain Muslim women to conduct their daily life according to their religious convictions and stands to encourage the stigmatisation of Islam. Furthermore, the former Council of Europe’s Commissioner for Human Rights also voiced serious concern with regard to the ban, expressing that:
“Those who have argued for a general ban on the burka and niqab have not managed to show that these garments in any way undermine democracy, public safety, order or morals. The fact that a very small number of women wear such clothing has made the proposals even less convincing. Nor has it been possible to prove that these women are victims of more gender repression than others.” (Thomas Hammarberg, ‘The Europe Must Not Ban The Burqa’ The Guardian, March 2010)
Similarly, the Council of Europe’s Parliamentary Assembly also issued a recommendation, which inter alia “calls on members states not to establish a general ban on full face veiling or other religious or special clothing” (Recommendation 1927: ‘Islam, Islamism and Islamophobia in Europe’, June 2010). Rather, the recommendation focuses on the prevention and punishment of those who try to coerce others into wearing such clothing by: “penalising, on the one hand, all forms of coercion, oppression or violence that compel women to wear the veil or the full veil, and by creating, on the other hand, social and economic conditions enabling women to make informed choices through the promotion of genuine policies on equal opportunities for women and men which embody access to education, training, employment and housing.” (Recommendation 1927, para. 3.15)
It is the author’s contention that by shifting the focus from punishing the individual believer to those who coerce female Muslims to wear the veil is the correct approach by which to tackle the concerns regarding gender empowerment and equality. A mandatory ban on the veil does not take into account the debilitating effects it will have on those women who adhere to a certain religious interpretation, whereby their personal manifestation of such is dependent on wearing the veil. Not only does it have the potential to ostracise these women from daily life should they feel they cannot go outdoors without their covering, but it can also create negative stigmatisation within society itself. Minority adherents, as is the case with the estimated 2,000 Muslim women that wear the full-face veil in France, stand to be the target of a distinctly hostile and negative stereotype fostered by a law that tells society that these women pose a threat to democracy and the French nation as a whole.
This case provides the Grand Chamber with the opportunity to move away from its earlier paternalistic approach as seen in Şahin, and to narrow the excessive margin of appreciation it has tended to afford to states in their limitations on religious manifestations. It is predicted that the crux of the issue to be determined by the Court will be whether the French law is “necessary in a democratic society”. In this regard, it is hoped that the Court will recognise the disproportionate effects the law creates. Firstly, should it be argued that the law is a national security measure (regarding facial identification), then the Court should take note of the very small percentage of women who actually wear the full-face covering in France. The second relevant issue relates to the correlation of the full-face veil with being irreconcilable with the principles of tolerance and equality, as highlighted in Dahlab and Şahin. The focus should not be on punishing fully consenting Muslim women for adhering to an interpretation of their religion, but rather to examine whether the law adequately protects women who are being coerced into wearing the veil. In this regard, it is submitted that the relevant paragraph of the French law which criminalises the coercion of forcing the veil upon another can be considered “necessary in a democratic society”, while the automatic criminalisation of fully-consenting women is paternalistic, disproportionate and has detrimental effects on the individual. From the perspective of the applicant in S.A.S. v. France, namely a fully consenting Muslim woman, it is hoped that the Court will find the restriction on her right to manifest her religion to be in violation of Article 9 ECHR.
Instead of liberating the women from the alleged shackles of oppression, domestic laws such as those seen in the extreme in France and Belgium, fail to entertain the notion that women may choose to wear these symbols. Thus by banning the veils, the laws not only encroach on women’s right of autonomy and self-determination, but also render them with a de facto ultimatum of choosing between pursuing education, work and daily life or adhering to their religious convictions.
The sensitivities that are involved in cases of this sort go to the very core of the individual’s identity and also define a state’s efforts to strike that much sought after balance between appeasing both the religious zealots and hard-core secularists. In the middle of both extremes are the individuals who are looking to pursue their religious duties, and those individuals preferring not to be affected by those rituals by proxy. If the Court is to be convinced by national measures against so-called “fundamentalist movements”, such strongly-worded allegations need to be substantiated by some sort of empirical proof before the Court should readily endorse such controversial sentiments. Similarly, the Court should be more willing to examine the individual applicant’s situation more closely and whether the respondent government’s arguments make practical sense in light of the facts. On this basis, it is the author’s contention that the Court in Şahin should have put greater emphasis on the applicant’s free choice and age, as was done by Judge Tulkens. At the very least, the Court should have disassociated itself from the point that she was being a so-called victim of the veil. As to the case of S.A.S. v. France, it is contended that the Court should seize this opportunity to recognise and protect minority religious adherents, leaving misplaced paternalism and societal prejudice aside.
Samuel Coleridge, English poet and essayist (1772-1834). As quoted in, “Finding Common Ground: How to Communicate with those outside the Christian Community…While we still Can” Tim Downs, page 30 (Moody Press U.S., August 1999).
Kokkinakis v. Greece (1993) 17 EHRR 397, para 31. [Hereinafter Kokkinakis]
European Convention for the Protection of Human Rights and Fundamental Freedoms, 1953.
Article 9 ECHR “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.”
Freedom of religion is enshrined in Article 18 of the Universal Declaration of Human Rights, 1948 [hereinafter UDHR] and Article 18 of the International Covenant on Civil and Political Rights, 1976 [hereinafter ICCPR].
In Leyla Şahin v. Turkey (application no. 44774/98) (Grand Chamber) Judgment of 10 November 2005, the Grand Chamber of the Court examined the approaches of several different member states regarding the role of the Islamic headgear in state education (see paras. 55- 65).
Karaduman v. Turkey (Application no. 16278/90) (Comm.) Decision 3 May 1993].
Dahlab v. Switzerland (Application no. 42393/98) Decision of 15 February 2001).
The secular nature of the Turkey is confirmed in Articles 2, 4 and 14 with Freedom of religion guaranteed under Article 24, with the explicit limitation that “prayer, worships and religious services” must not violate or undermine inter alia the secular nature of the state under Article14
In the United Kingdom, the most up to date census of 2011, showing that Islam accounted for 4.8% of the population, the second largest religion after Christianity. Available at UK Office for National Statistics, ‘Religion in England and Wales 2011’:
http://www.ons.gov.uk/ons/rel/census/2011-census/key-statistics-for-local-authorities-in-england-and-wales/rpt-religion.html#tab-Measuring-religion (last accessed 16 April 2014).
In R (on the application of Begum) v. Headteacher and Governor of Denbigh High School  UKHL 15, the House of Lords did accept the school authority’s refusal to allow the applicant to wear a jilbab (a full-body cloak) as they school provided a similar Islamic garment, shalwar kameeze, designed specially in keeping with the Islamic manifestation and also the school uniform requirement.
Islamic Human Rights Commission, “Briefing: Good Practice on the Headscarf in Europe” 9 March, 2004. http://www.ihrc.org.uk/show.php?id=1030 (last accessed on 16/04/2014).
Article L. 141-5-1 of the French Education Code. The religious symbols envisioned by the amendment include the Islamic veil, the Jewish kippa and Christian crosses that are manifestly over-sized.
The French law no. 2010-1192 “Act prohibiting concealment of the face in public space” came into force on 10 October, 2010 http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000022911670&categorieLien=id (last accessed 13 April 2014). The maximum fine for violating the ban is €150. For those that enforce the full veil on others, the punishment is imprisonment of one year and a fine of €30,000 or €60,000 in the case of girls less than 18 years.
BBC World News “The Islamic veil across Europe” 15 June 2010. http://news.bbc.co.uk/2/hi/5414098.stm (last accessed on 23/03/2014)
BBC World News “Belgian ban on full veils comes into force” 23 July 2011 http://www.bbc.co.uk/news/world-europe-14261921 (last accessed 24/03/2014). “Dutch Cabinet moves towards burqa ban” 27 January 2012
http://www.nydailynews.com/news/world/dutch-cabinet-moves-burqa-ban-article-1.1013259 (last accessed 23/04/2014).
Human Rights Watch, ’Turkey: Headscarf Ruling Denies Women Education and Career’ 16 November 2005. Available at: http://www.hrw.org/news/2005/11/15/turkey-headscarf-ruling-denies-women-education-and-career (last accessed 16 April 2014).
BBC World News ‘Court Annuls Turkish Scarf Reform’ 5 June 2008. Available at: http://news.bbc.co.uk/2/hi/europe/7438348.stm (last accessed 13 April 2014).
BBC World News ’Turkey’s Universities Drop Islamic Headscarf Ban’ 31 December 2010. Available at: http://www.bbc.com/news/world-europe-12097885 (last accessed 13 April 2014).
The Turkish ban on the headscarf was not lifted however with regard to members of the policy, judiciary or military. See Euronews ’Ending Ban on Islamic Headscarf Divides Turkey’ 9 October 2013. Available at: http://www.euronews.com/2013/10/09/ending-ban-on-islamic-headscarf-divides-turkey/ (last accessed 13 April 2014).
SAS v. France (Application no. 43835/11) Grand Chamber Judgment pending. Press release available at: hudoc.echr.coe.int/webservices/content/pdf/003-4584709-5542384 (last accessed 13 April 2014].
Open Society Foundations ’S.A.S. v. France: Criminal Penalty for Wearing a Full-Face Veil in Public Spaces’. Available at: http://www.opensocietyfoundations.org/litigation/sas-v-france (Last accessed 13 April 2014).
Written submission by Liberty, available at: http://www.liberty-human-rights.org.uk/sites/default/files/SAS%20v%20France%20-%20Written%20Subs.pdf (last accessed 13 April 2014).
Written submission by Article 19, available at: http://www.article19.org/data/files/THIRD_PARTY_INTERVENTION_SUBMISSIONS_BY_ARTICLE_19.pdf (last accessed 13 April 2014).
Written submission by Ghent University Centre for Human Rights, available at: http://www.ugent.be/re/publiekrecht/en/department/human-rights/publications/sas.pdf (last accessed 13 April 2014).
Former Council of Europe Commission for Human Rights Thomas Hammarberg in The Guardian, ’Europe Must Not Ban The Burqa’ 8 March 2010. Available at: http://www.theguardian.com/commentisfree/2010/mar/08/europe-ban-burqa-veil (last accessed 13 April 2014).
Council of Europe Parliamentary Assembly, ’Recommendation 1927: Islam, Islamism and Islamophobia in Europe’ 23 June 2010. Available at: http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta10/EREC1927.htm (last accessed 15 April 2014).
BBC World News, ‘French Senate Votes to Ban Islamic Full Veil in Public’ 14 September 2010. Available at: http://www.bbc.co.uk/news/world-europe-11305033 (last accessed 16 April 2014).