Religious pluralism and the European Court of Human Rights: An assessment through the looking glass of Article 9 ECHR

NATALIE ALKIVIADOU

During a conference that took place in the Netherlands in January 2018, there was an interesting discussion about pluralism and the important role the European Court of Human Rights (ECtHR) plays in protecting and promoting this value. That discussion has prompted this blog piece and particularly whether the ECtHR is, itself, endorsing pluralism when faced with cases regarding Article 9 of the European Convention on Human Rights (ECHR).

Article 9 provides for the freedom of thought, conscience and religion, which includes the freedom to manifest one’s religion in worship, teaching, practice and observance. In several cases, ranging from Kokkinakis on the sanctions for alleged proselytism by a Jehovah’s witness, to Leyla Şahin on the wearing of a headscarf by a university student on university premises, the ECtHR has underlined that ‘the pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on [the freedom of religion].’ The freedom to manifest one’s religion is not absolute with restrictions being legitimized under Article 9(2) if they are necessary to, inter alia, protect public order or the rights and freedoms of others. At this early stage of discussion, all seems in order. An individual can exercise a right insofar as this is not harming someone else or the society, and the ECtHR recognizes the importance of pluralism in a functioning democracy. The main argument put forward in the present analysis is that, notwithstanding this recognition, the Court has not been pluralist in its approach to freedom of religion cases.

This argument emanates from the comparative assessment of the Court’s treatment of the manifestation of Islam on the one hand, and Christianity on the other hand, in the forms of dress and symbols. In this respect, three cases are particularly relevant: Dahlab v Switzerland (concerning a primary school teacher who was prohibited from wearing her hijab at work); Leyla Şahin v Turkey (involving the prohibition of hijabs on university premises); and S.A.S v France (regarding the French blanket bans on wearing burkas in public spaces). In Dahlab v Switzerland, the applicant was dismissed for wearing her hijab at work. To decipher whether there was a violation of Article 9 ECHR, the Court looked at, inter alia, the ‘tender’ age of the applicant’s pupils and the fact that the hijab is a ‘powerful external symbol’ that could have a ‘proselytising effect’ on her young pupils. It also found that it was important for schoolteachers who are members of the State education system to tolerate proportionate restrictions on their freedom of religion for the general importance of ensuring denominational neutrality in schools. Moreover, it noted that it ‘appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.’ In this light, it found that there was no violation of Dahlab’s freedom of religion. In Leyla Şahin v Turkey, the applicant was banned from attending university because she was wearing her headscarf. Here, the Court found no violation of Article 9, endorsing the opinion that the hijab had ‘taken on political significance in Turkey in recent times,’ relying almost completely, throughout its judgement, on the Turkish Constitutional Court’s findings and the significance it attached to the notion of secularism. In fact, as noted in Judge Tulkens’ dissenting opinion, ‘only indisputable facts and reasons whose legitimacy is beyond doubt’ supported by ‘concrete examples’ are necessary to justify an interference with ECHR rights and that ‘such examples do not appear forthcoming in the present case.’ In S.A.S, the applicant argued that the burqa ban deprived her of the possibility of wearing the full-face veil in public which resulted in a violation of, inter alia, Article 9. Although the judgement commenced with the Court disregarding the public safety argument put forth by France, it subsequently went on to find the restriction legitimate under Article 9 in order to protect the rights of others who, apparently, wish to ‘live in a space of socialisation of which makes living together easier.’ However, as noted in the partly dissenting opinions of Judges Nussberger and Jäderblom, the ‘very general concept of living together does not fall directly under any of the rights and freedoms guaranteed within the Convention’.

800px-European_Court_of_Human_Rights,_courtroom,_2014_(cropped)So, in brief, restrictions on Islamic dress are deemed legitimate for purposes of, amongst others, protecting allegedly impressionable children from proselytism or ensuring that people can ‘live together.’ If a comparator did not exist, namely the treatment of cases involving Christian symbols, the Court’s case-law could be deemed unsatisfactory but probably not controversial. However, a comparator does exist. Turning to the manifestation of the Christian religion, in Lautsi and Others v Italy, the Court dealt with an application brought by Ms. Lautsi and her two children regarding the presence of Christian crucifies in classrooms. The applicants argued that the presence of the crucifixes violated their Article 9 rights as they chose not to adhere to a religion and also their Article 2 (Protocol 1) rights on the respect of the rights of parents to ensure education and teaching in conformity with their own religious and philosophical convictions. The Chamber followed the reasoning set out in Dahlab about the impact of a religious symbol on school children and held that crucifixes displayed in the classroom were also ‘powerful external symbols,’ thereby finding a violation of Article 9. As was to be expected, this decision sent ‘shockwaves throughout Europe’ with the Grand Chamber finally overturning this decision and holding that a crucifix is an ‘essentially passive symbol’ and thus did not interfere with the applicants’ decision to raise their children with no religion. Noteworthy, of course, is the fact that no explanation or justification has been given as to why a crucifix is passive and a hijab is powerful.  In Eweida and others v The United Kingdom, the ECtHR dealt with four applications, two of which are of direct relevance to the present discussion, namely the cases of Ms. Eweida and Ms. Chaplain. These two applicants complained about restrictions placed by their employers on the wearing of crucifixes around their necks. Eweida worked for British Airways and Chaplain was a nurse for the National Health Service. No violation of Ms. Chaplain’s rights was found given her role as a nurse and the health and safety issues that were deemed to arise when wearing a cross and conducting related duties. In relation to Ms. Eweida, the ECtHR found that no real encroachment on the rights of others resulted from her wearing a crucifix and carrying out her work. It reached this conclusion by balancing the desire of Ms. Eweida to manifest her religious beliefs, on the one hand, and her employer’s wish to maintain a corporate image, on the other hand. The ECtHR  found that the domestic court had accorded the latter with too much weight and, as a result, a fair balance was not achieved. In light of this, it held that Eweida’s Article 9 rights had been violated. Legitimately, a parallel with Dhalab and Lautsi could not be drawn since it did not involve allegedly impressionable children. Further, although Şahin involved adults studying at university, the Court had almost absolutely relied on the Turkish Constitutional Court’s evaluation of the risks posed to wearing a hijab on campus, risks that did not arise in the present case. Dhalab could, however, have designed a framework for future cases involving a hijab in the workplace. It was no surprise that it did not and, when the Court was confronted with the prohibition of the wearing of a hijab in the workplace in Ebrahimian v. France, the Court found no violation (regardless of Eweida). However, the difference with Eweida, which the ECtHR focused on, was that Ms. Ebrahimian was working for the public service, which sought to ensure religious neutrality in a context where users of the public service were in a vulnerable situation. Nevertheless, at the end of the day, apart from Ms. Chaplain, whose crucifix posed a health and safety issue, the other cases involving the manifestation of the Christian religion were considered by the Court as legitimate exercises of Article 9. On the other hand, the cases involving the manifestation of the Islamic religion in the form of clothing has not fallen within the framework of freedom of religion for reasons ranging from the need to prevent the proselytism of young children, to campus unrest, to ensuring equal treatment of vulnerable groups in the public sphere.

However, within the European Union legal framework, the Court of Justice of the European Union (CJEU) has made a greater effort than the ECtHR to strive towards neutrality and equality in the two preliminary references it has made involving the wearing of the Islamic headscarf in the workplace. Although there is not yet any comparator with the manifestation of the Christian faith, it does appear that the CJEU is on a more equitable path to ensure non-discrimination and equal treatment in the workplace, which is the framework in which the two cases have been looked at. In G4S v Achbita, the CJEU dealt with the dismissal of an employee wearing a headscarf following the implementation of an internal blanket ban on wearing any signs of religious or political beliefs at work. The case involved the request for a preliminary ruling concerning the interpretation of Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, which deals with direct discrimination. The CJEU found no violation of the principle of equal treatment and no direct discrimination against Ms. Achbita since the rule was used for all religious symbols and not just the Islamic headscarf, which was at the core of this case. Importantly it noted that if the blanket ban, which is an apparently neutral obligation, results in a particular disadvantage for persons of a particular religion or belief, an issue of indirect discrimination could arise if there was no legitimate aim attached to it. Although pluralism as an objective of the Court is not to be deduced from this judgement, it is anyhow rather relieving when compared with the above-discussed ECtHR case-law as it establishes a theoretical framework of equality in terms of how religious manifestation is to be treated (at least in employment), therefore potentially preventing Lautsi-Dahlab-Eweida style differentiations in treatment.

article-2637413-1e24078b00000578-482_634x402-800x519A second case, Bougnaoui v Micropole SA, concerned the request for a preliminary ruling concerning the interpretation of Article 4(1) of Council Directive 2000/78/EC (2000). This case involved the dismissal of Ms. Bougnaoui because of her refusal to remove her Islamic headscarf when sent on assignments to customers of Micropole, who had complained of her appearance. Article 4(1) of the relevant directive allows for differential treatment based on certain characteristics, such as religion, and on a ‘genuine and determining occupational requirement.’ Here, the Court found that a genuine and determining occupational requirement under Article 4(1) does not include the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf. Therefore, it could be said that the CJEU has taken a more equitable approach when dealing with the wearing of the headscarf, at least in the workplace, with neutrality and equality in terms of actions taken underpinning its analysis. However, at the end of the day, structural reality means that the majority of employees that will be affected from blanket bans, which have been allowed for by the CJEU, will be Muslim women. If the thresholds and requirements of indirect discrimination are not met, they will still be the victims of a society, which strives to be pluralist, but just cannot get its head and soul around actually endorsing and living out this principle.

In sum, it just seems that the ECtHR ‘cannot bring itself to look through the eyes of such a very different other.’ Christian crucifixes, defined as passive symbols, have been allowed to remain in the classroom and to be worn by company employees as long as they do not affect health and safety rules. On the other hand, the ECtHR has allowed the dismissal of a primary school teacher wearing a headscarf because of, inter alia, the possible proselytizing effects of her headscarf and the negative gender and equality messages that surmount from its wearing by women. The Court has legitimized the banning of a medical student from her classes and exams because she was wearing a hijab which, according to the Turkish Constitutional Court at the time and as fully endorsed by the ECtHR, bore significant political messages. It has also allowed for the group entrapment of all women wearing full-face veils from public spaces in adherence to the French notion of ‘living together.’ That is anything but pluralist. Whether the sphere through which the CJEU is dealing with relevant cases, namely non-discrimination in employment proves to offer more well-rounded protection to the manifestation of all religions, remains to be seen. What is sure for the moment is that European Union law can only directly tackle religiously discriminatory conduct in the sphere of employment and occupation given the nature of the aforementioned Council Directive and the absence of one that goes beyond the designated context.

Meet the author

Dr. Natalie Alkiviadou (PhD, LLM, LLB) is a lecturer in EU Law and Human Rights at the University of Central Lancashire Cyprus and Director of AEQUITAS, an NGO working on human rights education.

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