Article 9 - The Right to Freedom of Thought, Consience and Religion : A study on whether banning of religious symbols in order to preserve the principle of secularism can be justified under article 9 of the European Convention on Human Rights

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ÖREBRO UNIVERSITY

Department of Legal, Psychological and Social Science Legal Science Program with International Approach Rättsvetenskap C, Tillämpade studier, C-uppsats, 15 hp May 2013            

Article 9 – The Right to Freedom of

Thought, Conscience and Religion

A study on whether banning of religious symbols in order to preserve

the principle of secularism can be justified under article 9 of the

European Convention on Human Rights

Author: Bozang Hussein

Supervisor: Mona Samadi

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Abstract

The tension between the banning of religious symbols and the principle of secularism is the subject of this study. The presence and visibility of religious symbols in the public sphere has given raise to a debate around Europe. Within the member states of the Council of Europe the role of religion differs and the principle of secularism is interpreted differently. The right to freedom of thought, conscience and religion is provided for in article 9 of the European Convention on Human Rights under which the right to manifest religion or belief is protected. This right is of fundamental character and cannot be derogated from. The right to manifest religion or belief however can be subject to limitations under given conditions. The case law of the European Court of Human Rights indicates that member states has been left with a wide margin of appreciation in dealing with the freedom of religion and regulations falling under this right. The Strasbourg Court has accepted that the protection of secularism can be a justified ground for banning religious symbols. However, this is an interference with the right to express and worship one’s religion or belief and there is a need to strike a balance between the public interest and the interest of the individuals and determine whether such interference is necessary in a democratic society. This thesis discusses two values of fundamental character, on the one hand the right to freedom of religion and on the other hand the principle of secularism as a constitutional value. With regard to this, the application of the margin of appreciation is of relevance to consider. The author of this thesis argues that the role of the Court is to ensure that domestic laws are not in conflict with the Convention rights and thus that it shall not take any position on whether or not symbols shall be prohibited. The role of it shall be to secure that interference with article 9 by state authorities does not

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Preface

It is with great pleasure I introduce you to this work where one of the most fundamental rights is in focus, the right to freedom of thought, conscience and religion and thereby the freedom to manifest it. My interest to write about the banning of religious symbols started when I attended a seminar where the issue was discussed. After that seminar I started to consider the issue and found out that there are problems with the banning of religious symbols and that it might be clash with human rights. I wanted to find out more about how the European Court of Human Rights viewed the issue and what arguments was made by the state in order to justify the interference. What I noticed during the time of researching was that secularism is one of the grounds invoked in order to justify the banning of religious symbols. What caught my attention was what secularism had for legal value and if secularism as a constitutional principle can stand above fundamental human rights. Dear readers, this work presents the situation within the Council of Europe and my hope is that it can give you awareness of the problem and the jurisprudence of the European Court of Human Rights as related to the issue.

There are some thanks that have to be expressed. Firstly, I would like to express my sincere thanks to my family that has been supporting me and made it possible to write this thesis. My love and thanks goes especially to my parents, Tamar and Shahida to whom I am grateful for their positive encouragement throughout my life. Thank you also to the University of Örebro for providing me with help during the period of writing this thesis.

Bozang Hussein 2013.05.27 Örebro, Sweden

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Abbreviations

ECHR European Convention on Human Rights

EU European Union

EU Charter European Charter on Fundamental Rights EUJ European Court of Justice

ECtHR European Court of Human Rights

ICCPR International Covenant on Civil and Political Rights NGO Non-Governmental Organization

UDHR Universal Declaration of Human Rights UN United Nations

UN Charter United Nations Charter

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Table of Contents

1. Introduction  ...  1  

1.1   The subject of the study  ...  2  

1.2 Statement of purpose  ...  3  

1. 3 Delimitation  ...  3  

1.4 Methodology  ...  4  

1.5 Disposition  ...  4  

2. The Right to freedom of thought, conscience and religion  ...  5  

2.1 Article 9 paragraph 2 – the conditions for limitation  ...  7  

2.2.1 Prescribed by law  ...  8  

2.2.2 A legitimate aim  ...  9  

2.2.3 Necessary in a democratic society  ...  10  

3. Case law  ...  12  

3.1 Dahlab v. Switzerland  ...  12  

3.2 Leyla Sahin v. Turkey  ...  13  

3.3 Lautsi v. Italy  ...  15  

4. Secularism and the banning of religious symbols  ...  16  

4.1 Pluralism and the European Court of Human Rights  ...  17  

4.2 The Principle of Secularism and the Jurisprudence of the ECtHR  ...  19  

5. Analysis  ...  25  

6. Conclusion  ...  30  

8. Bibliography  ...  31    

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1. Introduction

The right to freedom of thought, conscience and religion is one of the fundamental rights of extreme importance. This right is enshrined in the majority of regional, international and national legal regulations concerning human rights.1 In the constitutions of almost all countries in the world this right has been established.2 Within the European context article 9 of the European Convention on Human Rights (ECHR) is the basis for the right to freedom of religion and provides that:

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, and 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.

In a society where several religions and various opinions are represented it is natural that clashes between different interests arises. The state authorities have a positive obligation to secure to everyone within their jurisdiction the rights and freedoms as enshrined in the ECHR.3 Since the European Court of Human Rights (ECtHR) holds a subsidiary role, the state parties have the primary responsibility in upholding the Convention rights. To do so, member states are free to claim a state religion or to declare themselves as a secularized nation.4 Freedom of religion has been the cause of controversy within Europe for centuries and is still being a disputed issue. This thesis highlights the role of religious symbols in contrast to the principle of secularism.

                                                                                                               

1 See international regulations e.g. article 18 of the Universal Declaration on Human Rights (UDHR) 2 Renucci Jean-Francois, Article 9 of the European Convention on Human Rights, Freedom of thought,

conscience and religion, Council of Europe Publishing, Human Rights Files, No. 20, 2005, p. 6.

3 Article 1 of the ECHR: Obligation to respect human rights: The High Contracting Parties shall

secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

4 E. Maret Rebecca, Left Hanging: The Crucifix In The Classroom And The Continuing Need For

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1.1 The subject of the study

Within recent years, the ECtHR has been called upon to address the content and the scope of article 9. The case law of the Court was until recent years limited regarding the freedom of thought, conscience and religion. Earlier jurisprudence of the Court was more or less concentrated on the freedom of religion in for instance prisons or regarding conflicts between respect for belief and contracted duties within the labor market.5 Cases concerning the collective manifestation of religion have been very

few. However, the development under recent years has been showing an increasing number of cases involving matters on for instance proselytism6, prohibitions on the wearing of religious symbols in public places7 or in some cases the refusals to grant authorization for places of worship for religious groups.8 The mentioned matters has given the Court opportunity to stress the importance of the criteria as provided for in article 9 which state authorities must establish when showing the necessity of any interference with the right guaranteed for.9

The banning of religious symbols is becoming more and more of a question on the agenda of the ECtHR. The case law of the Court indicates that the protection of the principal of secularism has been an accepted ground for interfering and limiting the freedom to manifest religion or belief by banning religious symbols. The Court has been loyal to its acceptance on the margin of appreciation guaranteed to states, especially when it comes to the freedom of religion. By relying on the doctrine, the question rises whether the status of the Court may decrease.10 Moreover, it is questionable whether or not the banning of religious symbols in order to preserve the principal of secularism is in line with the right protected in the ECHR.

                                                                                                               

5 Murdoch Jim, Handbook on the 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 2007, Strasbourg June 2007, p 9.

6 See e.g. Case of Kokkinakis v. Grecce, (Application no. 14307/88), 25 May 1993. 7 More on this matter see below.

8 Case of Manoussakis and Others v. Greece, (Application No. 18748/91), 26 September 1996. Case of

Vergos v. Greece, (Application No. 65501/01), 24 June 2004.

9 Murdoch Jim, Handbook on the 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 2007, Strasbourg June 2007, p 9.

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1.2 Statement of purpose

The thesis aims to highlight problems concerning banning of religious symbols in public sphere in order to preserve the principal of secularism. Wearing of religious symbols is a way to manifest ones religion and to express the faith and affiliation to a certain religion. The Court has in its case law pointed out the importance of freedom of religion and that the right is one of the foundations of a democratic society in meaning of the Convention.11 The second paragraph of article 9 provides three

conditions under which the freedom to manifest religion can be subjected to limitation. Regarding the subject of this thesis, the Court has in majority of cases concerning the banning of religious symbols by state authorities in order to preserve the constitutional secularity, accepted the approaches of the governments. The foundations of the ECtHR system are democracy and human rights and it appears that the Court is identifying those values with pluralism and tolerance.12 The issue concerned in this thesis is if the acceptance of banning of religious symbols in secularized states is the best tool to use in order to achieve religious pluralism and to protect the secularity. The purpose of this thesis is to highlight and discuss how the regulations and case law approaches this issue.

1. 3 Delimitation

Due to the extent of this thesis only article 9 of the ECHR will be touched upon.

Freedom of religion covers different aspects, which cannot be covered in this thesis. With regard to this focus is on when contracting states interfere with the freedom to manifest religion by banning religious symbols in the public sphere in order to preserve the principle of secularism as a fundamental principle regulated in the constitutions of the states concerned. In order to understand the issue of the thesis it is of importance to give an overview of article 9 of the ECHR and clarify what is protected and circumstances under which the freedom can be subjected to limitation. As regard to the problem of banning religious symbols, the jurisprudence of the ECtHR and its case law concerning article 9 is the cornerstone and other international regulations is left untouched.

                                                                                                               

11 Case of Kokkinakis v. Grecce, (Application no. 14307/88), 25 May 1993, para. 31. 12Morini Claudia, Secularism and freedom of religion: the approach of the European Court

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1.4 Methodology

The method used in this thesis is the dogmatic method. The reason for my choice is because the dogmatic method focuses on interpretation and systemization of lex lata13 and aims to establish law as a coherent system of rules and exceptions. Argumentation and analysis of the applicable law are the tools used and the method does also develop normative standing point that aims to justify and criticize applicable law. The dogmatic method is bound by the sources of law and is thus distinguished from moral views. Sources of law such as for instance existing legislation, preparatory work, case law and doctrines are sources that describe the status of the dogmatic method. The material are analyzed and described in relation to the issue concerned and the materials used are tools aimed to bring clarity.

The dogmatic method is a suitable method to use in order to analyze problems with the banning of religious symbols in order to preserve secularity of the State. Case law of the ECtHR considering article 9 have been a very important source that is used in order to analyze the issue. Legal writings and doctrines have also been helpful sources and used in this thesis.

1.5 Disposition

The thesis is divided into seven chapters. The first part is of introductory character where the aim is give an overview of the thesis, the purpose of it, the method that will be used and its delimitation. The second chapter provides an overview of the context of article 9 and a view of what is protected and conditions under which the article can be limited. Furthermore, chapter three introduces the three most important cases which this thesis mainly touches upon. Chapter four provides the ground for this thesis where the issue is being highlighted and discussed. Chapter five is the analytical part. Under this chapter an analysis is made on the problems emerging from banning of religious symbols being set against secularism. The analysis is mainly focused on whether secularism can be a justified argument for banning religious symbols and how the Court has approached the issue. Chapter six provides a conclusion of the issue and chapter seven is the bibliographical part.

                                                                                                               

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2. The Right to freedom of thought, conscience

and religion

There is no definition of the term religion and nor has there been any significant efforts in trying to provide such a definition. The issue is of controversial character and it has been difficult to establish a common meaning of the term.14 The ECtHR has held that it seeks to interpret rights as enshrined in the Convention in a way that is most appropriate in order to achieve the aim and object of the treaty15 and further that it strives to ensure that Convention rights are effective and practical rather than merely theoretical and illusory.16 Before the Court can consider a complaint it must

establish whether or not it falls under the scope of the article. What is of importance to emphasize is that provision as guaranteed for does not only cover the possession of thought, conscience and religion as to say the sphere of private or personal belief, though it also covers collective manifestation of a opinion or belief which could be individual or in community with other.17 Article 9 has two aspects, one internal and one external, where the latter includes the practice of belief both in private sphere and also in public sphere.18 As has been pointed out, article 9 protects freedom of thought, conscience and religion (or as in the second paragraph religion or belief). What is exactly included in those terms? As regards to the term conscience, the Court has reiterated that consciousness of belonging to a minority group and seek to protect its cultural identity is not an issue falling under article 9.19 Further, the Court has distinguished “belief” from having an “opinion”. In the case of Campbell and Cosans

v. The United Kingdom, the Court stated that for personal belief to fall under the

protection of article 9 it must “attain a certain level of cogency, seriousness, cohesion

and importance”. 20 Belief in assisted suicide is one example of a “belief” not protected under article 9.21 What is of relevance is that the ECtHR has in its case law                                                                                                                

14 Evans Carolyn, Freedom of religion under the European Convention on Human Rights, Oxford

University Press, New York, 2001, p 51.

15 Case of Wemhoff v. Germany, (Application No. 2122/64), 27 June 1968, [The law], para. 8. 16 Case of Artico v. Italy, (Application No. 6694/74), 13 May 1980, para. 33.

17 Case of Kokkinakis v. Grecce, (Application no. 14307/88), 25 May 1993, para. 31.

18 Murdoch Jim, Handbook on the 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 2007, Strasbourg June 2007, p 11.  

19 Case of Sidiropoulos and others v. Greece, (Application No. 57/1997/841/1047), para. 41.

20 Case of Campbell and Cosans v. The United Kingdom, (Application No. 13590/88), 25 March 1992. 21 Case of Pretty v. the United Kingdom, (Application No. 2346/02), 29 April 2002, para. 82.

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affirmed that not each act motivated or influenced by a religion or a belief are covered in article 9.22 In the case of Kokkinakis, which also was the first case that directly

addressed the question on freedom of religion, the Court stressed the importance of the right protected.23 In this case the Court pointed out 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, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”24 The Court has reiterated this statement in several

cases in order to stress the importance of the right.25

Two distinctive rights can be found in article 9 of the ECHR. The first right guarantees the right to freedom of religion, thought and conscience, and the second guarantees the right to manifest religion or belief. These two rights are established in the first paragraph of article 9. The second paragraph on the other hand, provides for conditions under which the right to manifest religion or belief might be subjected to limitations. The first paragraph is an absolute right which can not be derogated from, while the second paragraph is seen as a qualified right which contracting states can derogate from under given circumstances. In relation to what has been stated, a distinction is often made between forum internum26 and forum externum27.28 In the

case of C. v. United Kingdom, the Court held that article 9 primarily protects the                                                                                                                

22 Ibid.,para., 82. See also Arrowsmith v. United Kingdom, (Application No. 7050/75), Eur. Comm’n

H.R. Dec. & Rep. 5, (1978).

23 Case of Kokkinakis v. Grecce, (Application no. 14307/88), 25 May 1993. 24 Ibid., para. 31.

25 See e.g. Case of Dahlab v. Switzerland, (Application No. 42393/98), 15 February 15 2001. Case of

Leyla Sahin v. Turkey, (Application no. 44774/98), 10 November 2005, para. 104. Case of Buscarini

and Others v. San Marino, (Application No. 24645/94), 18 February 1999, para. 34.Case of Refah

Partisi (The Welfare Party) and Others v. Turkey, (Application Nos. 41340/98, 41342/98, 41343/98

and 41344/98), 13 February 2003, para. 90. Case ofEweida and Others v. the United Kingdom,

(Application No. 48420/10, 59842/10, 51671/10 and 36516/10), 15 January 2013, para. 79.  

26 Forum internum protects the sphere of personal belief and religious creeds, right as guaranteed for in

article 9.1. Forum internum is inviolable and absolute which cannot be limited or derogated from. State interference is not justified in any circumstances.

27 Forum externum is not an absolute right and can therefor be subjected to limitations. The second

paragraph of article 9 regulates the forum externum where the freedom to manifest religion or belief is protected and at the same times the conditions under which the manifestation can be subjected to limitations.

28 Howard Erica, Law and the Wearing of Religious Symbols, European bans on the wearing of

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sphere of personal belief and religious faiths and referred to the forum internum. The article protects acts that are intimately related to attitudes such as worship and devotion, which are aspects of practice of the belief in ways that are recognized in general.29

The case law of the Court does not challenge the right to have a religion but is more concentrated on the second paragraph of the article where the Court has to establish whether the inference with the right to manifest religion or belief by state authorities can be justified or not. Consequently, this leads us to analyze the second paragraph in order to see how the Court justifies interference taking into consideration the conditions as provided for.

2.1 Article 9 paragraph 2 – the conditions for limitation

The limitation grounds provided for in the second paragraph concerns the manifestation of religion or belief. The Court reiterated in the case of Kookinakis30 that article 9 can only be subject to limitations concerning the way the right is manifested. By saying this, the Court distinguishes article 9 from articles 8, 10 and 11 of the Convention where the whole right guaranteed for can be subjected to limitation and thus not only when it comes to the manifestation of the rights.31 The Court recognizes that in a democratic society where several religions coexist, the necessity to place restrictions is needed in order to secure the interest of various groups and to assure that the beliefs of everyone are protected.32

Three conditions are established in article 9 that have to be fulfilled in order to justify limitations or interference with the right. Margin of appreciation is granted to States in regard to the freedom of thought, conscience and religion and the Court acknowledges that states can determine whether or to what extent interference is necessary, but this margin can still be subject to European supervision.33 The

conditions that have to be met are; interference must be prescribed by law, pursue a                                                                                                                

29 Case of C. v. United Kingdom, (Application No. 10358/83), 1983. 30 Case of Kokkinakis v. Grecce, (Application no. 14307/88), 25 May 1993. 31 Ibid., para. 33

32 Ibid., para. 33. See also case of Dahlab, para. 83.

33 Case of Synday Times v. United Kingdom (No.2), (Application No. 13166/87), 26 November 1991,

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legitimate aim and be necessary in a democratic society.34 In order to give a view on what each condition requires and the position of the Court it is of relevance to go through each one of them per se.

2.2.1 Prescribed by law

To be able to establish this criterion it is necessary to clarify the term “law”. The ECtHR has in several cases tried to clarify what is meant by the term and has interpreted it broadly. The Court has established that it has always understood “law” in its substantive and non-formal sense. The concept of “law” is taking to mean all existing law, whether statutes, regulations or case law and international conventions applying in the domestic system.35 The Court has also clarified that it is important to ensure that the term includes unwritten law also in order to include states that have a common-law system where case law represents the main source of law.36 Within the European context the ECtHR established two conditions that has to be met in order to satisfy the “prescribed by law” requirement. Firstly, the law in question must be adequately accessible so that the citizens are able to have an indication on that the legal rule is applicable to a given case. Secondly, the Court stated that a norm cannot be regarded as law. The law must be formulated with sufficient precision to enable citizen to regulate their conducts, “he must be able – if need be with appropriate

advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”.37

In the case of Kokkinakis the ECtHR stated that it is unavoidable that the wording in many laws of states will attain an absolute precision. In this matter the Court agreed with the Government that the existence of a legal body which settled and published domestic case law that complemented legal provision was sufficient enough to meet the condition prescribed by law.38 In the case of Hasan and Chaush v. Bulgaria, the Court found that interference with the internal organization of the Muslim community                                                                                                                

34Article 9 the second para. 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”.

35 Case of Leyla Sahin v. Turkey, (Application no. 44774/98), [GC], 10 November 2005, para. 88. 36 Case of Sunday Times v. United Kingdom (No.1), (Application No. 6538/74), 26 April 1979, para.

47.  

37 Ibid. para. 48.

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and the Applicants’ freedom of religion was a violation of article 9 because the test of prescribed by law was not met. In this case the Court noted that the interference was not notified to those directly affected and that those decisions lacked necessary reasoning and did not meet the requirements of clarity and foreseeability and concluded that the condition was not met.39

2.2.2 A legitimate aim

The second condition that has to be met in order to justify an interference with freedom of religion is that it must pursue a legitimate aim. Restrictions on rights guaranteed for in the Convention must be adopted in order to protect public safety, public order, health and morals and to protect rights and freedoms of others. Very often the Court makes a superficial analysis of this condition and tends to accept rather to challenge the aim claimed by the states to justify the limitations.40 In the case of Metropolitan Church of Bessarbia and Others v. Moldova, the ECtHR considered that states were “entitled to verify whether a movement or association carried on,

ostensibly in pursuit of religious aims, activities which were harmful to the population or to public safety”. 41 Further, in the case of Sahin, the Court refereed to its earlier

case law on the headscarf issue and stated that in a democratic society the state was entitled to place restrictions on the wearing of the Islamic headscarf if it could be established that it was incompatible with the pursued aim of protecting rights and freedoms of others, public order and public safety.42 In the case of Kokkinakis, the

Court considered that the impugned measures taken by Greece authorities pursued a legitimate aim namely the protection of rights and freedoms of others.43 The level of detail given regarding this condition may vary from case to case. What can be said is that this condition is easiest to satisfy and it rarely happens that the aims declared by states are being rejected.44

                                                                                                               

39 Case of Hasan and Chaush v. Bulgaria (Application No. 30985/96), 26 October 2000, para. 86.

40 M.Taylor Paul, Freedom of Religion, UN and European Human Rights Law and Practice,

Cambridge University Press, Cambridge, 2005, p. 302.

41 Case of Metropolitan Church of Bessarbia and Others v. Moldova, (Application No. 45701/99), 13

December 2001, para. 113.

42 Leyla Sahin v. Turkey, (Application no. 44774/98), [GC], 10 November 2005, para. 111. See also

Case of Dahlab v. Switzerland, (Application No. 42393/98), 15 February 15 2001.

43 Case of Kokkinakis v. Grecce, (Application no. 14307/88), 25 May 1993, para. 44.

44 M.Taylor Paul, Freedom of Religion, UN and European Human Rights Law and Practice,

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2.2.3 Necessary in a democratic society

The third condition that has to be established is that interference must be necessary in a democratic society. This concept is vague and gives rise to problems of interpretation. It is difficult to show if an interference or limitation was or is necessary in a democratic society. In applying this condition and to justify the interference it is the responsibility of the state to show that interference corresponds to a pressing social need, that it is proportionate to the legitimate aim pursued and the interference is justified by relevant and sufficient reasons.45 In the United Communist Party case46 it was pointed out that the Convention was designed to promote the values of a democratic society. Further, the Court stated that interference with articles 8, 9, 10 and 11 must be evaluated with a criterion of what is necessary in a democratic society.47

When responsibility shifts from the Contracting state to the ECtHR to determine whether the measures taken by states are justified or proportionate, the difficulties arise because the Court may not be able to review domestic determinations. The test on what is necessary in a democratic society is complex.48 What is of significance for the ECtHR is that unlike other international instruments or courts it allows a certain margin of appreciation to the Contracting states. The Court has recalled that Contracting states has the primary responsibility in protecting human rights.49 In the

case of Handyside v. United Kingdom, the Court explained the concept of margin of appreciation. It recalled that national authorities are in principle better placed than international judges or courts to evaluate local needs and conditions.50 Under the doctrine of margin of appreciation some discretion is given to governments in the manner to implement the Convention rights. What is important to point out is that margin of appreciation is subjected to European supervision. The power of the margin                                                                                                                

45 Case of Sunday Times v. United Kingdom (No.2), (Application No. 13166/87), 26 November 1991,

para.50.d. See also Case of Gillow v. United Kingdom, (Application No. 9063/80), 14 September 1987, para.55.

46 Case of United Communist Party of Turkey and Others v. Turkey, (Application

No.133/1996/752/951), 30 January 1998.

47 Ibid. para. 45.

48 Renucci Jean-François, Article 9 of The European Court of Human Rights, Freedom of thought,

conscience and religion, Human Rights Files, No. 20, Council of Europe Publishing, Strasbourg, 2005,

p 47.  

49 Case of Handyside v. United Kingdom, (Application No. 5493/72),7 December 1976, para. 48. 50 Ibid.

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is not unlimited. The Courts task is to supervise whether measures taken by national authorities are justified in principle, meaning whether the given reasons to justify the measures are relevant and sufficient and proportionate to the legitimate aim pursued.51

The given margin of appreciation does not differ between particular articles in the Convention, however case law shows that states are given a wider margin of appreciation for article 9. The relation between states and religion is a controversial and complex issue. 52 The Court has held that it is not possible to determine a uniform conception of the significance of religion in society throughout Europe. The conception of religion may vary even within the same country.53 In each case where the Court has to determine the scope of the margin of appreciation, it is of relevance to take into account what is at stake. It needs to maintain true religious pluralism as inherent in the idea of democratic society. The Court has to be very careful and call for very strict examination when manifesting the restrictions imposed on the freedom to manifest religion.54 The Court has identified some factors to the width margin provided to states. Those are the level of consensus on the issue, the extent of the interference in with the applicant’s private life, the importance of the right in a pluralistic and democratic society and the background and circumstances for the interference in the specific case.55

The ECtHR has stressed that democracy is without doubt a fundamental part of the European public order. This is enshrined in the preamble of the Convention, which establishes a clear connection between democracy and the Conventions. The Court establishes that the maintenance of human rights and fundamental freedoms as protected in the Convention, can best be guaranteed for by an effective political democracy.56 Furthermore, the Court has stated that interference with articles 8, 9, 10                                                                                                                

51 Case of Sunday Times v. United Kingdom (No.2), (Application No. 13166/87), 26 November 1991,

para. 50. See also Case of Kokkinakis v. Grecce, (Application no. 14307/88), 25 May 1993, para. 47.

52 Evans Carolyn, Freedom of religion under the European Convention on Human Rights, Oxford

University Press, New York, 2001, p.143.

53 Case of Otto-Preminger-Institut v. Austria, (Application No. 13470/87), 20 September 1994, para.

50.

54 Case of Manoussakis and Others v. Greece, (Application no. 18748/91), Chamber judgment, 26

September 1996, para. 44.

55 Evans Carolyn, Freedom of religion under the European Convention on Human Rights, Oxford

University Press, New York, 2001, p.143.

56 Case of United Communist Party of Turkey and Others v. Turkey, (Application No.

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and 11 must be considered by yardstick of what is necessary in a democratic society and went on to say that the only type of necessity that might be qualified as just for an interference on the mentioned articles is the one claiming to spring from a democratic society. The only political model that seems to appear from the Convention is democracy and hence the only model compatible with it.57

What has been pointed out regarding the limitation conditions is necessary to bear in mind for further discussion on the issue of the thesis. The conditions are what the Court takes into consideration when determining whether the interference in question can be justified with regard to the second paragraph of article 9. Regarding the conditions, it is clear that the requirement that interference has to be necessary in a democratic society is the most complex under which problems of interpretation may rise.

3. Case law

The ECtHR has adjudicated several cases concerning the limitation on the freedom to manifest religion. The cases that will be of importance for the purpose of this thesis are those regarding banning of religious symbols in public places because of the clash with the protected principle of secularity. What will be of importance are the grounds under which the state parties adopt the banning and how the Court views the issue and the reasoning behind its judgments. Firstly, three important cases regarding the mentioned issue will be addressed.58 Furthermore, an analysis on the principle of secularism and the Courts judgments regarding the cases will be done.

3.1 Dahlab v. Switzerland

The Applicant, Ms Dahlab, of Swiss nationality, worked as a primary-school teacher in Geneva. After converting to Islam in 1991, she started to wear the Islamic-headscarf. A few years later in 1996, the Director of General of the school requested Ms Dahlab to stop wearing the headscarf when acting as a teacher in the State school and argued that wearing of the headscarf was incompatible with Section 6 of the                                                                                                                

57 Ibid.

58 The cases that will be in focus are the Case of Dahlab v. Switzerland, (Application No. 42393/98),

15 February 15 2001, case of Leyla Sahin v. Turkey, (Application No. 44774/98), 10 November 2005 and case of Lautsi v. Italy, (Application No. 30814/06), 18 March 2011.

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Public Education Act59 of Switzerland. The Applicant submitted the case to the ECtHR60 where she alleged violation of article 9 and 14 and claimed that the

measures taken did not have a legal basis in Swiss law and that the national court had made a wrong interpretation considering that wearing of the veil was a threat to public safety and public order. The Government argued that as a representative of the state, her conducts should not be identified with a religion rather than another. By wearing the Islamic headscarf, which was seen as a powerful symbol by the Government, she was acting contrary to the neutrality in state schools.

In its judgment the Court referred to its settled case law by pointing out the margin of appreciation granted to the Contracting states. The Court further made it clear that the margin of appreciation can be subject to supervision. The role of the Court is to determine whether the measures taken by state authorities were justified and whether or not reasons brought before it were relevant and sufficient. Furthermore, it has to determine if the arguments were proportionate to the legitimate aim pursued. The Court stated that even if there was interference with the Applicants right to manifest her religion, the measures taken by the Swiss authorities did not exceed the given margin of appreciation and therefore the interference was not unreasonable. The Court found that the conditions set forth in article 9 to justify interference were met.

3.2 Leyla Sahin v. Turkey

In November 2005, the Grand Chamber delivered its judgment on the Leyla Sahin v.

Turkey case61, where the decision of the Chamber was established. The Applicant, Ms Sahin, was a fifth-year medical student at the University of Istanbul. The case was submitted to the ECtHR where the Applicant claimed that her right to manifest her religion by wearing the Islamic headscarf was violated by school authorities and the Turkish government. She complained about a rule announced in 1998 where students were prohibited from wearing the Islamic headscarf.62 The domestic courts dismissed

the application and the case was submitted to the ECtHR where the Applicant claimed that the ban on wearing the Islamic headscarf in institutions of higher education                                                                                                                

59 Section 6 of the Public Education Act of 6 November 1940 provides: “The Public education system

shall ensure that the political religious beliefs of pupils and parents are respected”.

60  Case of Dahlab v. Switzerland, (Application No. 42393/98), 15 February 15 2001.    

61 Case of Leyla Sahin v. Turkey, (Application No. 44774/98), 10 November 2005.

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constituted an unjustified interference with her right to freedom of religion and especially her right to manifest it.63

The Court found that there was no violation of article 9 holding that the interference was justified on the grounds that it had legal basis, pursued the legitimate aims for protecting rights and freedoms of others and public order. Further, the Grand Chamber found that the interference was necessary in a democratic society as it was based on the principles of secularism and equality as being established in the Turkish Constitution. Furthermore, the Court stated that the law that justified the interference was accessible and considered it to be sufficiently precise in its terms to satisfy the requirement of foreseeability.64 The Grand Chamber referred to the statement of the Chamber, which took into consideration the impact the wearing of the headscarf may have on those who choose to not wear it.65

As to whether the interference was necessary in a democratic society the Grand Chamber emphasized that upholding the principle of secularism, which is a fundamental principle, needs to be considered as necessary in order to protect the democratic system in Turkey.66 It was the principle of secularism as explicated by the Turkish Constitutional Court that was the underlying factor for banning of religious symbols in universities. The Court concluded that the reason adduced by the Government was understandable in regard to that the authorities wished to preserve the secular nature of the university and thus to allow religious symbols was seen as contrary to this.67 By relying on the margin of appreciation given to states, the Grand

Chamber found that the interference was justified in principle and proportionate to the aim pursued.68

                                                                                                               

63 Ibid., para. 70.

64 Leyla Sahin v. Turkey, (Application no. 44774/98), [GC], 10 November 2005, para. 98.

65 Case of Leyla Sahin v. Turkey, (Application No. 44774/98), [Fourth section], 29 June 2004, para.

108.  

66 Case of Leyla Sahin v. Turkey, (Application no. 44774/98), [GC], 10 November 2005, para.  114. 67 Ibid., 116

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3.3 Lautsi v. Italy

Moving from Islam to the Christian religion, the Court has very recently given a judgment on a case concerning the presence of crucifix in classrooms.69 The Applicant, Ms. Lautsi, mother of two schoolchildren, submitted her claims to the Court, stressing the fact that the presence of the crucifix in state schools was contrary to the principle of secularism as established in the Constitution of Italy by which she wished to raise her children. Ms. Lautsi informed school authorities of her position and concerns but the school authorities decided to not remove the crucifix from the classrooms. In their argument the Government pointed out that the crucifix was the symbol of the principle of equality, liberty and tolerance and represented the symbol of the Italian State.70 The domestic Courts agreed with the Government and stressed that the cross has to be seen as representing the secular value of Italian Constitution and as representing values of civil life.71

The Applicant complained before the ECtHR and claimed violation of article 2 of Protocol No. 172 and of article 9. The Court held that among the different meanings the crucifix might have, the religious one is dominant.73 This might not only clash with the secularity which the Applicant is seeking to raise her children in but also being disturbing for pupils of non-Christian religion or atheists. The Court set as the second section, held unanimously that there was a violation of the articles claimed by the Applicant. Italy appealed to the Grand Chamber where the judgment of the Second Section was reversed. Unlike the Second Section, the Grand Chamber noted that the crucifix is a religious but essentially passive symbol and held that it cannot be regarded to have influence on pupils who do not believe in the Christian faith.74 The Grand Chamber supported its conclusion by concluding that there was no evidence that Italian authorities was intolerant to pupils belonging to another religion or those not belonging to a religion. The placement of the crucifix within school classrooms was seen as an act that falls within the margin of appreciation afforded to the                                                                                                                

69 Case of Lautsi v. Italy, (Application no. 30814/06), [GC], 18 March 2011. 70 Ibid., para. 15.

71 Ibid., para. 16.

72 Article 2 of Protocol No. 1 establishes the provision of the right to education and states: “No person

shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.

73 Case of Lautsi v. Italy, (Application No. 30814/06), [Second Section], 3 November 2009, para. 51. 74 Case of Lautsi v. Italy, (Application no. 30814/06), [GC], 18 March 2011, para. 72.

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Contracting states and the placement of symbol was not seen as a form of indoctrination.75 The Grand Chamber concluded that there was no violation of the

articles claimed for.76

Dhalab, Sahin and Lautsi are cases which are often raised when discussing banning of

religious symbols and the principle of secularism. In the following chapter reference will be made to those cases as well as some other relevant cases. The summarized cases are of importance for this thesis because they show how the ECtHR is arguing regarding the interference with the freedom of religion by the state parties. In all cases the doctrine of margin of appreciation is an essential factor on which the Strasbourg Court relied on. In the following discussion this will be brought into attention to see how wide this margin is and its role in this context.

4. Secularism and the banning of religious

symbols

The cases of Dahlab, Sahin and Lautsi, have both the issue of banning of religious symbols and the principle of secularism as protected in the constitutions of the states concerned in common. The central issue of this thesis is as has been mentioned, the banning of religious symbols in order to protect the principle of secularism as enshrined in the constitutions of some states. Beside the argument of necessity to protect the secularity of the state, banning of religious symbols is seen as necessary in order to improve safety and security, to avoid segregation and separation within some parts of the community and to promote equality between men and women.77 It is of course of importance to preserve the principles established in the constitutions, secularism being one of those. Nevertheless, what is questionable is if introducing bans are the most effective and necessary way to protect constitutional principles. Should secularism be interpreted as not allowing religious symbols to be visible in the public sphere or should it be the other way, that to allow all religions and the symbols affiliated to them to freely be expressed without interference by state authorities? The                                                                                                                

75 Ibid., 71. 76 ibid., 78.  

77 Howard Erica, Law and the Wearing of Religious Symbols, European bans on the wearing of

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conditions as established in the second paragraph of article 9 are the criteria that have to be fulfilled in order to justify interferences. In addition to the previous questions the forthcoming chapters of this thesis will discuss whether secularism can be a justified ground for limiting the manifestation of religion or belief.

4.1 Pluralism and the European Court of Human Rights

Tolerance and pluralism are two terms which the Court seems to use nowadays in identifying the values of democracy and human rights. It has taken the approach that any form of religious manifestation that is not in line with the values of democracy and human rights, is seen as posing threat.78 The Court has considered restriction on the freedom to manifest religion as justified considering the principle of pluralism and indicates that this principle is of fundamental value. The necessity to put restriction on religious freedom is in the interest of the governments in order to reconcile the interests of various groups and to guarantee that believes of everyone are being respected.79 The aim in putting restrictions must be to maintain pluralism and a proper function of democracy and not to remove the tensions by abolishing the pluralistic society.80 Restrictions on manifestation of religious belief because it is seen as being necessary in a democratic society must show that a true, identifiable necessity exists in order to justify the restrictions. General statements as for example that manifestation of religion can be or might be a threat to the democratic society should not be allowed and the ability of governments to put such restriction shall be limited. The Court has to determine whether measures taking by state authorities to restrict the freedom to manifest religion in order to allow various religious groups to coexist, are justified in principal and if the restrictions are proportionate. In this regard a balancing test is necessary to be done and the doctrine of the margin of appreciation is a central element to take into consideration.81

The core principle that seems to guide the jurisprudence of the Court in cases involving the freedom of religion is the principle of pluralism. The Kokkinakis case is                                                                                                                

78 In the Refah Partisi case this approach was taking in the assessment of the Court, (paras. 86-105). 79 See e.g. Kokkinakis v. Grecee para., 33, Refah Partisi case para. 91.

80 Morini Claudia, Secularism and freedom of religion: the approach of the European Court

of Human Rights, Israel Law Review, Vol. 43:611, 2010, p 615.  This has been stressed in several cases, see e.g. case of Kokkinakis, para. 33.  

81 Morini Claudia, Secularism and freedom of religion: the approach of the European Court

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one example of how the Court identifies the freedom of religion as a good tool to protect and encourage the goods of democratic pluralism.82 In the case of

Metropolitan church of Bessarabia and others v. Moldova83, the Court stated that

state parties has a duty to stay neutral and impartial regarding religious issues in order to ensure that pluralism has a proper functioning of democracy.84 What can be seen is that the Court links democracy with pluralism and speaks of pluralism as the sine qua

non of a democratic stability.85 Religious pluralism is the cornerstone of human rights systems and the norm by which other norms are to be determined.86 At the same time as the Court strives to establish the importance of religious pluralism, it has failed to endorse the normative pluralism it associates with religious freedom. That has been shown in cases where religion challenges Europe’s secular identity which the Court finds to be threatening.87 The principle of pluralism as incorporated in the Convention is not only an observation that different religions co-exist within the Contracting States but also a principle that obligates state governments to allow religions to flourish in society as long as it is not in conflict with the limitation as specifically provided for. The need to raise the problem that to the extent that secularism functions as an exclusionary tool for public manifestation of religious views, it is indeed in conflict with the pluralism the Convention is invoking.88 In the case of Dhalab for instance, pluralism was believed to weaken the preservation of religious harmony and having the latter in mind the Court declared that limitations on the Applicant’s freedom to religious manifestation was justified.89 Furthermore, in the Sahin case, the Court stated that pluralism “is to be based on dialogue and a spirit of compromise

entailing various concessions ... in order to maintain and promote the ideals and values of a democratic society”.90 This wording indicates that while pluralism is an                                                                                                                

82 Calo R. Zachary, Pluralism, Secularism and the European Court of Human Rights, Journal of Law

and Religion 261, Vol. XXVI, 2010-2011, p. 261. See also the Kokkinakis case, para. 31.

83 Case of Metropolitan church of Bessarabia and others v. Moldova, (Application No. 45701/99), 13

December 2001.

84 Ibid. para. 116.

85 See e.g. Case of the United Communist Party of Turkey v. Turkey, (Application. No.

133/1996/752/951), 30 January, 1998, para. 43, where the Court stated that there can be no democracy without pluralism.

86 Calo R. Zachary, Pluralism, Secularism and the European Court of Human Rights, Journal of Law

and Religion 261, Vol. XXVI, 2010-2011, p 263.

87 Ibid. p 264.

88 Morini Claudia, Secularism and freedom of religion: the approach of the European Court

of Human Rights, Israel Law Review, Vol. 43:611, 2010, p 626.  

89 Case of Dahlab v. Switzerland, (Application No. 42393/98), 15 February 15 2001.

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essential democratic value, the scope of it needs to be limited in order to preserve democracy for all.91

4.2 The Principle of Secularism and the Jurisprudence of the ECtHR

The principle of secularism provides that in order to preserve secularity the state and society must be protected from religious overreaching.92 Claudia Morini93 argues that

two types of secularism exists, a pluralist and a fundamentalist. The two different approaches of secularism agree upon that religion is a private issue, but the way in which they argue for this separates them.94 Regarding pluralist secularism, religion is seen as neither a public responsibility nor a right to enforce a religion or non-religion on citizens. Religion and belief shall be a concern of individual conscience and identity. The role of the state is to not take any positions on the truth of different religious doctrines and further to not discriminate its citizens because of their religion or belief. It further argues that religious groups could not as such have power over political institutions or have influence indecision-making procedures in a way that can restrict the rights and freedoms of others. What is of importance to stress is that the pluralist secularism does not support the exclusion of religious manifestation in the public sphere nor inside public institutions.95 On the other side the fundamentalist conception of secularism approaches that religious manifestation does not have a place in the public sphere and shall be kept within the private sphere, e.g. private homes. According to the fundamentalist view the freedom to manifest religion shall be as much restricted as possible, especially within public institutions. This approach requires or obliges individuals to act in a way required by secularism every time they enter the public sphere. This means that for those whose religious identity requires certain manifestations as for instance wearing certain symbols or certain clothing, they must act contrary to their convictions. 96

                                                                                                               

91 Calo R. Zachary, Pluralism, Secularism and the European Court of Human Rights, Journal of Law

and Religion 261, Vol. XXVI, 2010-2011, pp 264-265.

92 Morini Claudia, Secularism and freedom of religion: the approach of the European Court

of Human Rights, Israel Law Review, Vol. 43:611, 2010, p 617.  

93 PhD in International and EU Law, Faculty of Law at the Universitá degli Studi di Bari in Italy. 94 Morini Claudia, Secularism and freedom of religion: the approach of the European Court

of Human Rights, Israel Law Review, Vol. 43:611, 2010, p 617.  

95 Morini Claudia, Secularism and freedom of religion: the approach of the European Court

of Human Rights, Israel Law Review, Vol. 43:611, 2010, pp 617-618.

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In February 2003, the ECtHR sitting as Grand Chamber delivered its judgment in one of the most important cases in its history.97 The case of Refah98 challenged the

decision of the Constitutional Court of Turkey in 1998 where the domestic court ordered the dissolution of Refah, a Turkish political party. The ECtHR upheld the decision of the Constitutional Court and declared that the closure of the Party was compatible with article 11 on the right to freedom of association and also that it was in line with the Convention’s basic principles of democracy and human rights. Furthermore the Court added that the Turkish government acted within the given margin of appreciation. In the time Refah was dissolved, it was the leading Party in the government of Turkey and gained the largest share of votes during election in 1995. The main reason for dissolving the Party was on the ground that their activities was seen as being contrary to the principle of secularism as protected in the Constitution of Turkey.99 In viewing the principle of secularism as a ground for dissolution, the Court assessed that an attitude which fails to respect the fundamental principles of the state, such as the principle of secularism being of fundamental character, will not necessarily enjoy the protection of article 9.100 The task of the

ECtHR is to strike a balance between unity and diversity within its 47 member states, whose constitutional traditions differs. The principle of secularism and secularized religions are used in order to protect the cultural homogeneous character of European societies that sometimes is seen as being threatened by pluralism and globalization.101

The question regarding religious symbols in state schools and the banning enforced by some contracting states, give rise to conflicts between various interests. One conflict that arises is the extent under which the right to wear religious symbols can be limited in the name of other rights and principles as protected in the constitutions. The French Law of 2004102 prohibits the wearing of religious symbols in public schools and is neutral in the way that it covers all religions and all symbols. However,                                                                                                                

97 Boyle Kevin, Human Rights, Religion and Democracy: The Refah Party Case, Essex Human Rights

Review, Vol. 1 No. 1, New York University Law School, 17 of March 2004, p., 1.

98 Case of Refah Partisi (The Welfare Party) and Others v. Turkey, (Application Nos. 41340/98,

41342/98, 41343/98 and 41344/98), 13 February 2003.

99  Ibid., para. 134. This provision is provided for in the Constitution of Turkey in article 69 § 8.  

100 Case of Refah Partisi (The Welfare Party) and Others v. Turkey, (Application Nos. 41340/98,

41342/98, 41343/98 and 41344/98), [GC], 13 February 2003, para. 93.

101 Manicin Susanna, The Power of Symbols and Symbols as power: Secularism and Religion as

Gurantors of Cultural Convergence, Cardozo Law Review 2629, Vol. 30:6, 2008-2009, p. 2631.    

102 Law No. 2004-228 of Mar. 15, 2004, Journal Officiel de la République Francaise [J.O.][Official

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what is controversial is the relation to the right of pupils belonging to religious minorities to wear their religious symbols especially affecting Islamic schoolgirls wearing the headscarf.103 Another type of conflict rises when state authorities

identifies themselves with certain religious symbols like for instance the crucifix as has been noticed in the case of Lautsi.104 With regard to the crucifix, it often represents the dominant religion of the state concerned but for the headscarf issue for instance, it often concerns minority religions.105 Very often, the symbols of Christians are seen as having cultural significance and not a symbol of a given religion. It has been seen as sharpening the historical and cultural dimension of the national identity. As for the symbols of minority religions, in particular symbols representing the Islamic faith are interpreted as symbols expressing cultural and political values and practices and thus seen as e contrario to the liberal and democratic values.106 The

Dhalab case is an example where the Government viewed the veil as being a

“powerful symbol” and the Court did not challenge that statement.107 The prohibition on wearing the Islamic female clothing is often prohibited or limited because it supposedly clashes with gender equality or as being contrary to the principle of secularism.108 In the case of Sahin, the principle of secularism formed the basis for the banning of religious symbols. According to the Court it was understandable that the Turkish authorities whished to preserve the nature of secularity in the universities.109 What is remarkable is that the Court did not make any attempt to demonstrate that the secular nature of institutions would be undermined if it were allowed to wear the headscarf. Furthermore, no efforts were made to show that the absolute ban of wearing of the headscarf was proportional to the aim of preserving the secularity.110

The Sahin case is not the first case where the Court relied on the Turkish principle of secularism, but as has been mentioned this was also done in the case of Refah and in                                                                                                                

103 See e.g. Case of Dogru v. France, (Application No. 27058/05), 4 December 2008 and Case of

Kervanci v. France (Application No. 31645/04), 4 December 2008.

104 Case of Lautsi v. Italy, (Application no. 30814/06), [GC], 18 March 2011, para.15.

105 Manicin Susanna, The Power of Symbols and Symbols as power: Secularism and Religion as

Gurantors of Cultural Convergence, Cardozo Law Review 2629, Vol. 30:6, 2008-2009, pp 2629-2630.

106 Ibid., p 2631.

107Case of Dahlab v. Switzerland, (Application No. 42393/98), 15 February 15 2001, (The Facts),

”Such garments may even be said to constitute a ’powerful religious symbol’ - that is to say, a sign that is immediately visible to others and provides a clear indication that the person concerned belongs to a particular religion”.

108 Case of Leyla Sahin v. Turkey, (Application No. 44774/98), 10 November 2005, para.116. 109 Ibid.

110 Morini Claudia, Secularism and freedom of religion: the approach of the European Court

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