Master thesis
The ECtHR’ approach to religious manifestation through
clothing and/or symbols under Article 9 ECHR: challenges to
religious minorities
Student name: Eleni Zenteli Master track: Public International Law Student no: 12298174 Supervisor: Prof. Dr. Yvonne Donders E-mail: elzenteli@gmail.com
Contents
Table of Primary sources...2
Statutes...2
Case law...2
Abstract...4
1. Introduction...6
2. The freedom of religion under Article 9 ECHR...8
2.1 The religious manifestation through clothing and/or symbols and the application of the Margin of Appreciation...9
3. The Margin of Appreciation Doctrine of the European Court of Human Rights...11
3.1 “Shared responsibility” and Subsidiary role of the ECtHR...12
3.2 The Margin of Appreciation Doctrine...13
4. An emerging inconsistency: Dakir v. Belgium versus Hamidović v. Bosnia and Herzegovina and Lachiri v. Belgium...21
a) Prescribed by law...23
b) Legitimate aim...23
c) “Necessary in a democratic society”...25
5. A normative assessment...27
5.1 The power of majority over minorities’ rights...30
6. Concluding remarks...33
Bibliography...36
Books...36
Journal Articles...37
Table of Primary sources
Statutes
Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols Nos. 11 and 14 (ECHR), 4 November 1950, ETS
005, available at: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005
Council of Europe, Protocol 15 to the European Convention for the Protection of Human Rights
and Fundamental Freedoms Amending the Convention for the Protection of Human Rights and Fundamental Freedoms, 24 June 2013, CETS 213, available at:
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213
European Court of Human Rights, Preliminary opinion of the Court in preparation for the
Brighton Conference (adopted by the Plenary Court), 20 February 2012, available at: https://www.echr.coe.int/Documents/2012_Brighton_Opinion_ENG.pdf
Case law
Handyside v UK App no 5493/72 (ECtHR, 7 December 1976)
Tyrer v. the United Kingdom, ECtHR 25 April 1978, appl. no. 5856/72 Airey v. Ireland, ECtHR 9 October 1979, appl. no. 6289/73
Z. v Finland ECHR 25 February 1997, App no. 22009/93
Dahlab v Switzerland App no 42393/98 (ECtHR (dec), 15 February 2001);
Christine Goodwin v the United Kingdom App no 28957/95 (ECtHR (GC) 11 July 2002), M.C. v Bulgaria App no 39272/98 (ECtHR, 4 December 2004)
Mamatkulov and Askarov v. Turkey, ECtHR (GC) 4 February 2005, appl. nos. 46827/99 and 46951/99.
Hirst v The United Kingdom (No2) App no 74025/01 (ECtHR, 6 October 2005) Leyla Şahin v Turkey App no 44774/98 (ECtHR, GC, 10 November 2005);
Kurtulmus v Turkey App no 65500/01 (ECtHR (decision, further dec), 24 January 2006)
Information Note on the Court’s case-law No. 82;
Demir and Baykara v. Turkey, ECtHR (GC) 12 November 2008, appl. no. 34503/97 Dogru v France App no 27058/05 (ECtHR, 4 December 2008);
Aktas v France App no 43563/08 (all ECtHR (dec), 30 June 2009); Bayrak v France App no 14308/08 (ECtHR (dec), 30 June 2009); Gamaleddyn v France App no 18527/08 (ECtHR (dec), 30 June 2009);
Ghazal v France App no 29134/08 (ECtHR (dec), 30 June 2009); Jasvir Singh v France App no 25463/08 (ECtHR (dec), 30 June 2009);
Ranjit Singh v France App no 27561/08 (ECtHR (dec), 30 June 2009);
Schalk and Kopf v Austria App no 30141/04 (ECtHR, 22 November 2010);
Eweida and others v. the United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and
36516/10 (ECtHR, 15 January 2013);
S.A.S. v France App no 43835/11 (ECtHR, 1 July 2014);
Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015); Dakir v Belgium App no 4619/12 (ECtHR, 11 July 2017);
Belcacemi and Oussar v. Belgium App no. 37798/13 (ECtHR, 11 July 2017);
Hamidović v. Bosnia and Herzegovina App no 57792/15 (ECtHR, 5 December 2017)
G.I.EM. S.R.L. and others v Italy App nos 1828/06, 34163/07 and 19029/11 (ECtHR, GC, 28 June 2018)
Abstract
There has been a considerable discussion as regards the European Court of Human Rights’ (ECtHR, Court) jurisprudence in cases falling within Article 9 of the European Convention of Human Rights (ECHR, Convention) concerning the freedom to manifest religion through clothing and/or symbols. The application of the margin of appreciation (MoA) doctrine to States wishing to restrict religious manifestation for the “protection of the rights and freedoms of others” is the argument that has been mostly used by the Court in this type of cases. Recently, the respect to “pluralism and tolerance” was acknowledged by the Court as a basis to protect the right in question. This thesis seeks to address to what extent the differing approaches of the Court concerning restrictions on the display of religious symbols influence the protection of religious minorities by reviewing three recent cases of the ECtHR related to Article 9 on religious dress and/or symbols. On the basis of this review, it is addressed how the views of majority within democratic states in Europe may relate with the Court’s approach and to what extent this interlinkage may risk disenfranchising religious minorities from their right to manifest their religion or belief through clothing and/or symbols. Last but not least, and more critically, it is suggested that the ECtHR should provide clear guidance through its judgments to the Contracting States as to the substantive human rights standards required in their respective legal systems.
Keywords: human rights, freedom of religion or belief, religious clothing/symbols, religious
ACKNOWLEDGEMENT
I would first like to thank my thesis supervisor Professor Dr. Yvonne Donders of the Law School at the University of Amsterdam for always being at my side whenever I ran into a trouble or had a question about my research or writing. She consistently allowed this paper to be my own work, but patiently steered me in the right direction whenever she thought I needed it.
I would, also, like to express my very profound gratitude to my parents, to my partner and my loved ones for providing me with unfailing support and continuous encouragement throughout my years of study and through the process of researching and writing this thesis. This accomplishment would not have been possible without them. Thank you.
1. Introduction
Judgments of the European Court of Human Rights (ECtHR or Court) related to the right to manifest religious belief through clothing and/or symbols, protected under Article 9 of the European Convention on Human Rights (ECHR or Convention) have been increasingly challenged mainly due to the noticeably weak protection provided by the Court. The issue of religious clothing and/or symbols, specifically of garments concealing the face worn by female Muslims, has been the subject of an intense debate for years in Europe. Several States such as France, Belgium, the Netherlands and others have already adopted or are in the process to implement bans on religious clothing at schools, workplace and public spaces.1 The Court usually resorts to general principles and rationales2 to justify that an impugned restriction to this right was within the State’s margin of appreciation (MoA or margin). More precisely, as it is proved from the overwhelming majority of its case law,3 when the Court is unable to find European consensus (it will be thoroughly analyzed below) on the matter, which would help it follow evolutive interpretation, it usually leaves the matter in question to the States’ margin of appreciation. However, it is proved by its latest cases of Hamidović v Bosnia and Herzegovina and Lachiri v Belgium that the Court has started to take well into account the rights of those with the most obvious interest. Although the right in question was finally protected, it is questionable
1 Also, the Swiss canton of Ticino, Bulgaria, Latvia, Austria and Denmark have partially or fully adopted bans on religious manifestation through clothing and/or symbols, see Stéphane Mechoulan, ‘The case against the face-veil: A European perspective’ (2019) 16 Oxford University Press and New York University School of Law, p. 1272, see further, Tom Lewis, ‘What not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’ (2007) 56 The International and Comparative Law Quarterly, p. 395.
2 Such as secularism, subsidiarity, neutrality, public safety,” living together” as a condition for the “protection of the rights and freedoms of others”, Melanie Adrian, ‘The principled slope: religious freedom and the European Court of Human Rights’, Religion (2017) 45 State & Society, p. 175, 179; Eva Brems, Corina Heri, Saïla Ouald Chaib and Lieselot Verdonck, ‘Head-Covering Bans in Belgian Courtrooms and Beyond: Headscarf Persecution and the Complicity of Supranational Courts’ (2017) 39 Human Rights Quarterly, p. 900-901.
3 Dahlab v Switzerland App no 42393/98 (ECtHR, 15 February 2001); Leyla Şahin v Turkey App no 44774/98 (ECtHR, GC, 10 November 2005); Kurtulmus v Turkey App no 65500/01 (ECtHR, 24 January 2006); Dogru v France App no 27058/05 (ECtHR, 4 December 2008); Aktas v France App no 43563/08 and Bayrak v France App no 14308/08 and Gamaleddyn v France App no 18527/08 and Ghazal v France App no 29134/08 and Jasvir Singh v France App no 25463/08 and Ranjit Singh v France App no 27561/08 (all ECtHR, 30 June 2009) in French; Eweida and Chaplin v. the United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 (ECtHR, 15 January 2013); S.A.S. v France App no 43835/11 (ECtHR, 1 July 2014); Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015); Dakir v Belgium App no 4619/12 (ECtHR, 11 July 2017); Belcacemi and Oussar v. Belgium App no. 37798/13 (ECtHR, 11 July 2017).
whether the Court has provided with adequate and consistent justification in these recent cases and to what extent its judgments influence the rights of religious minorities.
The purpose of this thesis is to examine whether and to what extent the divergent approaches of the ECtHR on cases concerning the display of religious clothing and/or symbols influence the protection of religious minorities. The reason why Article 9 of the ECHR was particularly chosen concerns both the significance of the right and its relatively weak protection, as it is confirmed by the Court’s case law. The special nature of the right to manifest religion and the commitment of the Court to deference to national authorities until the very recent decisions have triggered this research. Furthermore, those three recent cases were chosen due to the fact that they describe best the Court’s latest views on the issue. Also, even if the cases are not identical in facts, they provide with important elements that will help conclude this research. The fact that the Court has been leaning on the MoA was determinative to examine why this doctrine was developed in its jurisprudence and why it is so deeply embedded in its reasoning .The analysis was based on the ECtHR’ jurisprudence, since this doctrine was developed and applied by this particular Court.
In order to address if and to what extent minorities’ rights are challenged, both descriptive and normative research have been used. The former has been conducted from the internal perspective to show that the law as regards a particular right is in fact what the Court applies as law. Normative research is subsequently used in order to highlight what the Court should adopt as judicial model in its case law related to Article 9 ECHR. So as to show all the aforementioned, both primary and secondary sources were used. The primary sources concern legal instruments and case law, the latter both anglophone and francophone. The secondary sources concern anglophone academic sources such as articles, books and online publications.
Accordingly, this thesis adopts the following structure: Part 2 introduces Article 9 and the Court’s approach in some key cases related to it; Part 3 considers the development and application of the MoA doctrine as a useful adjudicative tool by the Court; Part 4 explores how the Court has differently adjudicated in its latest cases related to religious manifestation through clothing and/or symbols; and Part 5 suggests that the Court’s reasoning is so far imposed by which manifestation majority within a state considers acceptable and Part 6 concludes that its
approach must be better substantiated in order to ensure that minorities’ rights are adequately protected.
2. The freedom of religion under Article 9 ECHR
In this chapter, the right to manifest religion under Article 9 ECHR and the possible limitations to the right provided for in the Convention will be analyzed. Further, it will be shortly presented how the Court adjudicates on right claims under Article 9 by affording States a wide MoA based on key cases of its jurisprudence.
A leading principle of the Convention system, as developed and described by the Court itself, is the fact that ‘it is crucial that the Convention be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory’.4 What might be proved problematic, though, is the existence of judgments where the Court, by continuously applying a wide MoA, finds no violation.5 This might make one wonder whether the Convention rights are practically and effectively protected.
The protection of the right to manifest religious belief through religious symbols and/or clothing, covered by Article 9 of the ECHR6, has been faced with considerable challenges.7 Cases in which victims have been claimed breaches of religious rights through displaying religious clothing or symbols have been brought before the Court, with the latter hardly ever adjudicate in favor of the applicants’ rights.8 Even if it has acknowledged that the freedom of religion constitutes a central tenet of pluralism9 and thus when it is restricted it limits the identity of the individual
4 Christine Goodwin v the United Kingdom App no 28957/95 (ECtHR (GC) 11 July 2002) para 74; G.I.EM. S.R.L. and others v Italy App nos 1828/06, 34163/07 and 19029/11 (ECtHR, GC, 28 June 2018) para 216; Leyla Şahin (n 3) para 136, among other judgments.
5 Eva Brems, ‘Positive subsidiarity and its implications for the margin of appreciation doctrine’ (2019) 37(3) Netherlands Quarterly of Human Rights, p. 219.
6 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (ECHR) , 4 November 1950, ETS 005, available at:
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005, art 9.
7 It is believed that the Court’s jurisprudence has provided very weak protection to Muslim women to manifest their beliefs through wearing the face veil or the headscarf, see Peter Cumper and Tom Lewis, ‘Empathy and Human Rights: The Case of Religious Dress’ (2018) 18 Human Rights Law Review, p. 63.
8 See n 3 above.
9 In Leyla Şahin v Turkey, the Court has stressed once again the importance of pluralism and noted that ‘the role of authorities in such circumstances is not to remove the cause of tension by eliminating pluralism but to ensure that the competing groups tolerate each other’, see Leyla Şahin (n 3) para 107.
endangering pluralism and a healthy democratic society10, it has been argued that the Court itself has not been pluralist in its approach to freedom of religion cases.11
Article 9, together with Article 8 (private and family life), 10 (freedom of expression) and 11 (association and assembly) contain a limitation clause, which allows for a balance to be struck between the individual’s right and the greater social good.12 In cases related to Article 9, the protection of religious pluralism and harmony versus the “protection of the rights and freedoms of others” are respectively the individual right and the public interest that the Court is called to balance.13 Thus, the Court in order to find out whether a restriction on fundamental rights by a particular state is legitimate, it has to examine and verify that the restriction: was prescribed by law, had a legitimate aim and was necessary in a democratic society.14
2.1 The religious manifestation through clothing and/or symbols and the application of the Margin of Appreciation
When scrutinizing the aforementioned criteria, the Court usually recurs to the margin of appreciation doctrine.15 In practice, it has afforded a wide MoA to States that have either adopted headscarf bans or other limitations to the right, in cases concerning religious clothing, mainly clothing or garments covering the face.16 The Court justifies this wide MoA firstly, by the fact that individual manifestation of religion threatens ‘the rights and freedoms of others’.17 For instance, the Court’s reasoning in S.A.S v France18 reads as follows: the ‘face plays an important
role in social interaction’ and it is thus a vital part of “living well together”.19 Therefore, the
10 Andrian (n 2) p. 179.
11Natalie Alkiviadou, ‘Freedom of religion: lifting the veils of power and prejudice’ (2019) The International Journal of Human Rights, p. 2.
12 Art 9(2), ECHR: “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.”, see ECHR (n 6), art 9(2), Cumper and Lewis (n 7) p. 72; see also Steven Greer, ‘Europe’ in Daniel Moeckli and others (eds), International Human Rights Law (Oxford University Press, 3rd edn, 2018), p. 462; Eva Brems, ‘ ‘‘Burkini’’ bans in Belgian municipal
swimming pools: Banning as a default option’ (2018) 36 Netherlands Quarterly of Human Rights, p. 274.
13 Stephanie E. Berry, ‘Religious Freedom and the European Court of Human Rights’ Two Margins of Appreciation’ (2017) 12 Religion and Human Rights, p. 203.
14 Article 9(2) ECHR (n 12). 15 Brems (n 5) p. 219. 16 See n 3 above.
17 S.A.S. (n 3) para 119; Berry (n 13), p. 205; Alkiviadou (n 11) p. 8.
18 Once the Court has to deal with a case regarding a ban on religious clothing, it usually quotes its reasoning in the leading case of S.A.S. v. France, see S.A.S. (n 3).
Court accepted that ‘a veil concealing the face is perceived as breaching the right of others to live in a space of socialization which makes living together easier’20 and held that the impugned restriction be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.21
Accordingly, the Court contends that States are allowed to determine the appropriate weight to be afforded to such competing interests and, thus, affords them a wide MoA.22 The Court’s justification for this idea usually consists of the ‘better-placed’ argument23 and the existence of great diversity across Europe as to the value of religious manifestation.24 It is, therefore implied that the Court either focuses on general principles, such as secularism, neutrality, public safety,” living together” as a condition for the “protection of the rights and freedoms of others”25 or as to Cumper and Lewis and others argue, on legislative deliberations that precipitated alleged breaches of rights at national level than on the substantive merits of the case in question.26 They contend that the Court from the S.A.S. judgment and onward27 has been emphasizing on the quality of national debates that resulted to an impugned ban and by doing so the Court implements the principle of subsidiarity, which will be described below.28. In this way, the Court
20 Ibid.
21 The Court has acknowledged this principle since its previous case law, even in cases that were inadmissible. Until S.A.S., the Court was referred to the ‘protection of the rights and freedoms of others’ to justify the contested provision of the case. After S.A.S., it has been using the principle of “living together” as an element of the “rights and freedoms of others”: see Dahlab (n3) p. 12; Leyla Şahin (n 3) para 99, 158, 158; Kurtulmus v Turkey (n 3), Information Note on the Court’s case-law No. 82, p. 1; Dogru v France (n3) para 76; Aktas v France (n 3) p. 10, para 2,3 and Bayrak v France (n 3) p. 8 para 2 and Gamaleddyn v France (n 3), p.10 para 2 and Ghazal v France (n 3) p. 8, para 2 and Jasvir Singh v France (n 3) p. 9, para 2 and Ranjit Singh v France (n 3) p. 9, para 2; Eweida and others v. the United Kingdom (n 3) para 109; S.A.S. v France (n 3) para 157; Dakir v Belgium (n 3) para 60; Belcacemi and Oussar v. Belgium (n 3) para 61.
22 Berry (n 13) p. 205. 23 Ibid, p. 207.
24 Cumper and Lewis (n 7) p. 70. 25 See n 17 above
26 Peter Cumper and Tom Lewis, ‘BLANKET BANS, SUBSIDIARITY, AND THE PROCEDURAL TURN OF THE EUROPEAN COURT OF HUMAN RIGHTS’ (2019) 68 International and Comparative Law Quarterly, p. 612; Başak Çalı, ‘Regional Protection’ in Daniel Moeckli and others (eds), International Human Rights Law (Oxford University Press, 3rd edn,
2018), p. 422.
27 The Court has expressly referred to the ‘decision-making process leading to the impugned ban’ taken place in the domestic level in its subsequent cases of Belcacemi and Oussar and Dakir. According to Cumper and Lewis, it seems that when the Court examines the proportionality of an impugned restriction, it is vital for its judgment whether there has been a debate in the domestic legislature in which national authorities have weighted competing rights and interests. See Cumper and Lewis (n 26) p. 617- 618.
ensures that national authorities have the primary role of protecting the human rights of individuals within their jurisdiction.29
As to the lack of European consensus, the Court has acknowledged in its own wording that ‘… it is not possible to discern throughout Europe a uniform conception of the significance of religion in society and the meaning or impact of the public expression of a religious belief will differ according to time and context.’30 Thus, the Court argues that the lack of a common European understanding of the importance of the right to manifest religion or belief in contemporary Europe -emanated from very different historical, legal and constitutional models across the continent- is closely linked to the wide margin of appreciation that it affords to States.31
Hence, whilst acknowledging the problems that bans on religious clothing or symbols cause, mainly, to individual Muslim women and Sikh men32, the Court has never found a violation until the cases of Hamidović and Lachiri as it will be analyzed in Part 4. The question of whether someone should be permitted to wear the full-face veil in public, the Court says, constitutes a ‘choice of society’.33 It is, however, still to be answered whether the legitimation of this “living together” argument might give space to majority’s intolerance to religious manifestation through religious clothing and/or symbols.34
3. The Margin of Appreciation Doctrine of the European
Court of Human Rights
In this part, the reasons for the application of the MoA are thoroughly explained, namely the principle of subsidiarity, the “better-placed” argument and the issue of European consensus. Moreover, it is going to be analyzed how its scope depends on the nature of the right in question. Finally, based on several scholars’ argumentation, it will be explained why for some the application of the MoA could be justified, while for others its application could be problematic.
29 Ibid, p. 623.
30 Leyla Şahin (n 3) para 109. 31 Cumper and Lewis (n 7) p. 71. 32 Brems and others (n 2) p. 900.
33 S.A.S. (n 3) para 153; see also Belcacemi and Oussar (n 3) para 53; Dakir (n 3) para 56.
34 S.A.S. (n 3)Joint Partly Dissenting Opinion of Judges Nussberger and Jäderblom para. 14; Brems and others (n 2) p. 903; Berry (n 13) p.200, 205.
.1 “Shared responsibility” and Subsidiary role of the ECtHR
In most of its cases, the Court has to find a common ground between the need to provide effective protection of the Convention rights and the need to respect national sovereignty.35 It is, therefore, accepted by the Court itself that there is a ‘shared responsibility’ between the ECtHR and the national courts to protect the rights under the Convention, by means of the active involvement36 of the national courts in the Convention system.37
Occasionally, the Court takes the position of subsidiarity by acknowledging that it is the national authorities’ primary responsibility to safeguard the Convention rights. 38 It is thus assigning to national authorities a ‘procedural priority’39, namely a freedom to decide and determine themselves which restrictions are reasonable, given that they do not fall below the minimum level of protection of the rights under the Convention.40 Moreover, the national authorities are not only the primary responsible for dealing with complaints and providing remedies, but they are sometimes better aware of the national traditions and particularities.41 In this respect, the Court assigns them a “normative priority”42 in deciding on human rights issues, since they have even more legitimacy and they can better appraise the pertinent individual and general interests.43 This is what is going to be explained below as the “better placed” argument. In this respect, the
35George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) Oxford Journal of Legal Studies, p. 722; Mónika Ambrus, ‘The European Court of Human Rights and Standards of Proof: An Evidentiary Approach towards the Margin of Appreciation’ in Lukasz Gruszczynski and Wouter Werner (eds), Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation (Oxford University Press 2014), p. 236; Janneke Gerards and Joseph Fleuren (eds), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case Law: A Comparative Analysis (Intersentia 2014), p. 21; Dimitrios Tsarapatsanis, ‘The Margin of Appreciation Doctrine: A Low-Level Institutional View (2015) 35 Legal Studies, p. 687; Oddný Mjöll Arnardóttir, ‘Rethinking the Two Margins of Appreciation’ (2016) 12 European Constitutional Law Review, p. 40; Fiona de Londras and Kanstantsin Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave Great Debates in Law, Macmillan International Higher Education, 2018), p. 95; Brems ( n 5) p. 210-214.
36 Involvement here has a double meaning: on the one hand it concerns the obligations, interpretations and standards imposed on the national courts and on the other hand, it is referred to the amount of latitude the national authorities have in applying the Convention rights, see: Gerards and Fleuren (35) p. 21.
37The Court has expressly mentioned the need for ‘shared responsibility’ in its Preliminary Opinion in preparation of the Brighton Conference, see European Court of Human Rights, Preliminary opinion of the Court in preparation for the Brighton Conference (adopted by the Plenary Court), 20 February 2012, available at: https://www.echr.coe.int/Documents/2012_Brighton_Opinion_ENG.pdf , para. 4.
38 Ibid, p. 28; Brems (n 5) p. 214.Cumper and Lewis (n 26) p. 620-621. 39 Letsas (n 35) p. 722.
40 Gerards and Fleuren (35) p. 28; Brems (n 5) p. 214.
41 Gerards and Fleuren (n 35) p.28; Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli and others (eds), International Human Rights Law (Oxford University Press, 3rd edn, 2018), p. 102.
42 Letsas, (n 35) p. 722.
Court assumes a subsidiary and supervisory role, though keeping its coordinating role in implementing the ECHR by closely cooperating with national authorities when leaving them a wide margin of appreciation.44
.2 The Margin of Appreciation Doctrine
The doctrine of the margin of appreciation, which has been developed by the ECtHR in its case law is neither mentioned in the Convention45, nor does the Court ever gave a definition of it.46 It has been employed as a ‘judge-made’ doctrine in order to provide deference to national authorities (executive, legislative, judicial) as regards the interpretation of the scope of rights and of possible restrictions to them.47 Yourow defines the national margin of appreciation as “the freedom to act and maneuver” or as “the latitude of deference or error which the Court will allow to national authorities…”.48
One would wonder, why is the MoA so widespread in the Court’s case law? Benvenisti argues that the MoA doctrine could be seen as an incentive by the Court for States and national authorities to ensure domestic democratic processes and effective judicial review.49 As to the former, the Court by using the MoA focuses on the States’ discretion to implement a human right norm in the national level -because of their democratic legitimacy to deal with complex human rights concerns.50 It will later be examined whether states, as ultimate responsible for adequately promoting human rights standards, are capable of being left with this task. At to the latter, it delineates the level of scrutiny by itself.51 In sum, by taking the position of subsidiarity and applying the MoA, the Court aims to accomplish the protection of the Convention rights and
44 Ibid.
45 However, Protocol 15, amending the Convention on the Protection of Human Rights and Fundamental Freedoms provides for the inclusion of the doctrine, together with the principle of subsidiarity, on the Preamble of the Convention, once it comes into force, see Council of Europe, Protocol 15 to the European Convention for the Protection of Human Rights and Fundamental Freedoms Amending the Convention for the Protection of Human Rights and Fundamental Freedoms, 24 June 2013, CETS 213, available at:
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213, art 1. 46 De Londras and Dzehtsiarou (n 35) p. 104.
47 Eyal Benvenisti, ‘Margin of Appreciation, Consensus and Universal Standards’ (1999) 31 International Law and Politics, p. 843; Çalı (n 26) p. 421.
48 Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (International Studies in Human Rights, volume 28, Martinus Nijhoff Publishers 1996), p.13.
49 Benvenisti (n 47) p. 847; Eyal Benvenisti, ‘The Margin of Appreciation, Subsidiarity and Global Challenges to Democracy’ (2018) 9 Journal of International Dispute Settlement, p. 241.
50 Ambrus (n 35) p. 236; De Londras and Kanstantsin Dzehtsiarou (n 35) p.105. 51 Ambrus (35) p. 236.
reduce its amount of work.52 This practice may be simply explained by taking into account the fact that the Court is bound to show a certain amount of respect and deference to national authorities, because of the Contracting States’ consent to the foundation of Convention obligations and the need that the judgments of the Court are approved as legitimate by the Contracting States.53
As to the right to manifest religion, in particular, Lewis argues that the Court sometimes applies the MoA because it has failed to address the reasons why religious freedom initially matters as such.54 He supports: either religious belief and its manifestation through symbols and/ or clothing is something that one chooses independently or it is something that someone has divinely ordained, the Court, in the absence of such “guidelines” and rationales of why is religious freedom valued, has adopted the MoA as a significant adjudicative tool in this specific area.55 The Court has been critiqued for applying the MoA with inadequate justification or without providing precise rules for it, however this does not mean that it has not tried to explain to a certain degree how the doctrine operates to its reasoning.56 In any case, this doctrine is an essential tool at its disposal that allows for balancing national interests with minority rights.57 In this respect, there are several factors that determine the application and the scope of the margin of appreciation. Initially, the ECtHR pays attention to two elements in order to grant states a margin of appreciation. Firstly, the Court usually finds that the national authorities are in a better position than an international judge to decide on human rights issues raised by the applicant’s complaints when individual freedoms and collective goals need to be balanced.58 This idea was well expressed by the Court in one of its early landmark cases, the Handyside v. United
Kingdom case59, where it supported:
‘… By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on
52 Benvenisti (n 47) p. 847; Benvenisti (n 49) p. 241. 53 Arnardóttir, (n 35) p. 40.
54 Lewis (n 1) p. 396. 55 Ibid, p. 402-405.
56 Kanstantsin Dzehtsiarou, ‘Criticism of European Consensus’ in European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press 2015), p. 135.
57Andrian (n 2) p. 175.
58See n 3 above; further see Letsas (n 35) p. 705, 721; Gerards and Fleuren (35) p. 28; Tsarapatsanis (n 35) p. 675, 685; Brems (n 5) p. 211.
the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them. … Consequently, … leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force’.60
This is what Letsas describes as ‘substantive concept’ and explains that national authorities may take all necessary measures in order to advance collective goals such as public order or public health or morals, even if they may interfere with specific fundamental freedoms, given that these measures are prescribed by law and do not amount to a violation of these rights.61
Secondly, a wide margin of appreciation is applied by the Court particularly in cases where no common European approach could be discerned among the Contracting States62 as to how to deal with a particular legal issue, which most of the times concerns ‘sensitive moral or ethical issues’.63 European consensus is a method, which is based on comparing the legal and policy positions between the individual States in Europe as regards fundamental freedoms under the Convention.64 It is argued that the Court may apply the MoA as a sign of awaiting the formation of European consensus65 on a specific issuehaving in mind that the law is in a transitional stage in the Contracting States,66 Thus, the MoA that is applied to the interpretation of a particular
60 Ibid, para. 48. 61 Letsas (n 35) p. 709.
62 This is called ‘structural concept’ of the MoA by Letsas. To his view, by using this method, the Court refrains explicitly from employing a substantive test of human rights review. See Ibid, p. 705.
63 Letsas (n 35) p. 722; Ambrus (n 35) p. 240-241; George Letsas, ‘The ECHR as a living instrument: its meaning and legitimacy’ in Andreas Føllesdal and others (eds), Constituting Europe: The European Court of Human Rights in a National, European, and Global Context (Cambridge University Press 2013), p. 114; Tsarapatsanis (n 35) p. 680; Eirik Bjorge, ‘Domestic Application of the ECHR: Courts as Faithful Trustees’ (Oxford University Press 2015),p. 178; Kristina Trykhlib, ‘The doctrine of the «Margin of Appreciation» in the Case-law of the European Court of Human Rights’ (Conference Papers, Vilnius University, April 2016), p. 346; De Londras and Dzehtsiarou (n 35) p. 80, 105. Benvenisti (n 47) p. 845, 851;Letsas (n 135) p. 722; Dzehtsiarou (n 56) p. 137; De Londras and Dzehtsiarou (n 35) p. 80; Mechoulan (n 1) p. 1271; Mégret (n 41) p. 102.
64 De Londras and Dzehtsiarou (n 35) p.79.
65 Letsas has pointed out that the Court might use the lack of consensus so as to justify the application of the MoA as a means to inform States thata new standard is not yet evolving. Thus, the Court allows them the time to reform their policies gradually, in line with present-day conditions. This might be the case when the Court is afraid that a State may renounce its membership if the former impose a strict human right obligation without any warning. See Letsas (n 35) p. 730.
66 Yutaka Arai- Takahashi, ‘The Margin of Appreciation Doctrine: a Theoretical Analysis of Strasbourg’s Variable Geometry’ in Andreas Føllesdal and others (eds), Constituting Europe: The European Court of Human Rights in a National, European, and Global Context (Cambridge University Press 2013), p.89; Letsas (n 35) p. 722; Dzehtsiarou (n 56) p. 137; De Londras and Dzehtsiarou (n 35) p. 80, Benvenisti (n 47) p. 851; Mechoulan (n 1) p. 1271; Mégret (n 41) p. 102.
right is a matter that can evolve over time.67 For instance, some years ago states may had enjoyed a certain margin of appreciation as regards homosexuality, however the Convention is interpreted quite differently nowadays because of changes on European consensus on this particular issue.68
Taking into account the aforementioned, European consensus could be seen as the mediator between the margin of appreciation and the evolutive interpretation of the Convention: if there is no European consensus, the MoA takes precedence, but once consensus is established, the ECtHR can apply the evolutive interpretation of the Convention and detach the issue in question from States’ discretion.69 The ‘evolutive’ or ‘dynamic’ interpretation of the Convention rights, namely interpretation ‘in the light of present day conditions’ is vital in order to allow individuals exercise their rights ‘in a practical and effective manner’.70 Consensus is, also, vital to the dynamic interpretation because it helps to ensure that the Court is reflecting reality rather than creating law.71
However, it has been argued that this method is not and ideal and objective criterion to grant the MoA.72 In the absence of further reasoning, the lack of consensus as the decisive factor to grant States a wide MoA has been criticized.73 For instance, in the case of Schalk and Kopf v Austria judges Rozakis, Spielman and Jebens dissented to the Courts decision to find no violation on the basis that at that time there was no consensus amongst contracting states providing legal recognition of same-sex partnerships. 74 They argued that in the absence of a convincing argument to justify the difference in treatment by the States, there should be no room to apply the MoA.75 In their view, whether a common ground between the laws of the Contracting States
67 Mégret (n 41) p. 102. 68 Ibid, p. 102-103.
69 Dzehtsiarou (n 56) p. 138.
70 Tyrer v. the United Kingdom, ECtHR25 April 1978, appl. no. 5856/72; Airey v. Ireland, ECtHR 9 October 1979, appl. no. 6289/73; Mamatkulov and Askarov v. Turkey, ECtHR (GC) 4 February 2005, appl. nos. 46827/99 and 46951/99; Demir and Baykara v. Turkey, ECtHR(GC) 12 November 2008, appl. no. 34503/97; Gerards and Fleuren (n 35 ) p. 2.
71 De Londras and Dzehtsiarou (n 35) p.79. 72 Dzehtsiarou (n 56) p. 137.
73George Letsas, ‘Judge Rozakis's Separate Opinions and the Strasbourg Dilemma’ (2011) SSRN <https://ssrn.com/abstract=1872384> accessed 21 September 2019, p. 11.
74 Schalk and Kopf v Austria App no 30141/04 (ECtHR, 22 November 2010), JOINT DISSENTING OPINION OF JUDGES ROZAKIS, SPIELMANN AND JEBENS, para 8.
exists, consists only a subordinate basis and not a decisive factor for the application of the MoA.76 Benvenisti, also, argues that consensus together with the margin of appreciation are barriers to the effective protection of minorities, since the latter are hardly reflected in national policies.77
As far as Article 9 is concerned, the granting of a margin of appreciation to States in the absence of a pan- European consensus on religious matters may be proved to be problematic.78 Having accepted that the rationale for protecting the right to manifest religion is to leave the right holder depart from consensus and follow the religion/ belief of his/her choice, it makes no sense to await for European consensus, which would be probably expressed by the existence of one accepted European faith.79 If that was the case and everybody was adhered to one and only religion there would be no need to protect the respect to freedom of religion.80 On the contrary, as it will be further analyzed below, this right is essential because pluralism and diversity are central to the whole Convention system.81
As regards the scope of the MoA, the nature and the importance of the Convention right is one of the determinative factors for the Court to decide on whether the afforded MoA will be narrow or wide.82 States do not enjoy a MoA in cases concerning absolute rights (for instance prohibition of torture) but they enjoy a narrow margin as regards the interpretation of rights that are essential to healthy democratic processes.83 The MoA is absent as regards negative obligations84 of absolute rights85 (namely under article 3 “prohibition of torture”). However, in relation to
76 Ibid. 77 Benvenisti (n 47) p. 851. 78 Lewis (n 1) p. 405. 79 Ibid. 80 Ibid. 81 Ibid.
82 De Londras and Dzehtsiarou (n 35), p. 109. 83 Çalı (n 26) p. 421-422.
84 The states’ negative obligation to refrain from torture, inhuman or degrading treatment or punishment, see Takahashi (n 63) p. 76; De Londras and Dzehtsiarou (n 35) p. 109.
85 Unqualified, non-derogable or absolute rights are rights which cannot be balanced against the needs of other individuals or against any general public interest. They may be subject to specific exceptions, e.g. the right not to be deprived of liberty, Article 5; or to no exceptions at all, when they are called absolute rights, e.g. freedom from torture, Article 3, see definition in: Council of Europe Portal, ‘Toolkit: Definitions’ <https://www.coe.int/en/web/echr-toolkit/definitions> Accessed 1 January 2020.
positive obligations86 under Article 387, States appear to have a certain MoA and the Court would intervene only if the actions taken by the State would be manifestly deficient.88
On the contrary, States enjoy a broad margin of appreciation as far as qualified rights89 are concerned, namely rights under Articles 8-11 of the ECHR.90 Firstly, the existence of the limitation clauses facilitates the Court to decide that State authorities’ are ‘better-placed’ to balance competing interests. 91 Secondly, when ‘sensitive moral or ethical issues’ or broad concepts are concerned (that are mainly covered by the provisions of the aforementioned articles), the Court usually applies a wider margin of appreciation, because it is not able to find European consensus as stated above. Thus, as regards these provisions of the Convention, States are those which appear to determine the scope of a particular right in the name of collective interests, such as public order, security, health or morals.92
Moreover, in the case of the so-called ‘super-qualified’ rights93, States generally enjoy even a wider margin of appreciation. 94 An example of such a right is the right to free elections (Article 3 of Protocol 1), and specifically the prisoners’ right to vote. For instance, there was a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote was imposed or in which there was no provision allowing prisoners to vote.95 Thus, a broad MoA
86 Positive obligations for states under Article 3 concern the protection of people from ill-treatment from other individuals and the obligation to investigate situations of torture, inhuman or degrading treatment or punishment, see Council of Europe Portal, ‘Toolkit: Definitions’ < https://www.coe.int/en/web/echr-toolkit/interdiction-de-la-torture> Accessed 1 January 2020.
87 In the Case of M.C v Bulgaria, which concerned an alleged rape and thus a violation of the positive obligation of the State to protect people from torture, inhuman and degrading treatment or punishment, the Court held that the action taken by state authorities was inadequate, though stated that ‘in respect of the means to ensure adequate protection against rape, States undoubtedly enjoy a wide margin of appreciation’, see M.C. v Bulgaria App no 39272/98 (ECtHR, 4 December 2004).
88 De Londras and Dzehtsiarou (n 35) p. 109.
89 Qualified rights are rights which may be interfered with, in order to protect the rights of another or the wider public interest, e.g. the right to private and family life, Article 8, see definition in:
https://www.coe.int/en/web/echr-toolkit/definitions/#Qualified
90 Yourow (n 48) p. 14-15; Letsas (n 35) p.722; Ambrus (n 35) p. 237.
91 Letsas (n 35) p.722; Ambrus (n 35) p. 240-241; Letsas (n 63) p. 114; Tsarapatsanis (n 35) p. 680; Bjorge (n 63) p. 178; Trykhlib (n 63) p. 346; De Londras and Dzehtsiarou (n 35) p. 80.
92 Tsarapatsanis (n 35) p. 680.
93 These rights do not only include provisions explicitly defining which restrictions are legitimate under the particular right, but further it is provided that they can be limited for any aim provided by a State, given that they do not cut into the core of the right, see De Londras and Dzehtsiarou (n 35) p. 111.
94 Kanstantsin Dzehtsiarou, ‘Prisoner voting saga: reasons for challenges’ in Helen Hardman and Brice Dickson (eds), Electoral Rights in Europe: Advances and Challenges (Routledge 2017) 92, p. 103; De Londras and Dzehtsiarou (n 35) p. 111.
to the Contracting States could be justified, unless it was otherwise proved that an alleged interference with the right by a State goes ‘to the very heart of the right’.96 In the case of Hirst v
United Kingdom (No 2), however, the Court acknowledged that the lack of consensus could not
of itself be determinative for depriving all convicted prisoners of the right to vote, and whereas the margin of appreciation in this field was wide, it held that it was not comprehensive.97 Even if the judgment showed that the issue was not well settled since there were five dissenting judges,it resulted in many States acknowledgment that blanket bans on prisoners’ voting are not acceptable.98
Last but not least, the MoA can be applied in connection with Article 14, though this article lacks independent existence and can only be invoked in combination with another right.99
The application of the MoA has been criticized, because the Court seems unable or unwilling to scrutinize whether a particular interference with a Convention right is permissible.100 Brems notices thus if such judgments are continuous and lack any guidance on where are the limits of the MoA may end up problematic as national authorities might deduce that any kind of restriction is permissible.101 In addition, partly dissenting Judge De Meyer has stated that the MoA is a doctrine that should be abandoned human rights adjudication.102 In Z v. Finland, he has stated that ‘it is time for the Court to banish the concept of the MoA from its reasoning, since as far as human rights are concerned, there should be no room for a MoA which allows States to decide or determine what is acceptable and what is not’.103 Moreover, he has made clear that it is the Court’s responsibility and not each State’s individually, to delineate the boundaries and the limitability of the Convention rights, and the Court’s views must apply to everyone within the jurisdiction of each State.104
In addition, the continuous application of the MoA might become problematic if we take into account that democratic processes within a state cannot always guarantee the adequate protection
96 Dzehtsiarou, (n 94) p. 103. 97 Hirst (n 95) paras 81-85. 98 Dzehtsiarou, (n 94) p. 102, 109. 99 Ambrus (n 35) p. 244. 100 Letsas (n 35) p. 714. 101 Brems (n 5) p. 219.
102 Z. v Finland ECHR 25 February 1997, App no. 22009/93, PARTLY DISSENTING OPINION OF JUDGE DE MEYER 103 Ibid.
of human rights.105 What is more, national courts are sometimes unable to fix failures that may exist in their democratic systems.106 As Benvenisti argues, it is possible that the inherent flaws in a domestic democratic process deprives certain groups of voters, mainly cultural, ethnic, religious, racial or national minorities, of their right to effective judicial protection domestically.107 This issue is going to be examined thoroughly in Part 5.
As regards Article 9, it is argued that the fact that its judgments lack substantial guidance and reasoning might be problematic.108 For instance, even if the MoA is reasonably applicable, it is not clear in a case by case basis which are the limits of the doctrine and what is particularly permitted under the Convention.109 Moreover, inconsistent applications in seemingly similar cases due to different margins allowed by the Court might raise concerns about judicial double standards110 or might inadequately protect the right in question.111 It is, further, questionable whether such judgments if they are based on majorities’ unease and/ or intolerance as regards Islam create inequalities for minority groups.112 The case law analysis in Part 4 will try to shed some light on those questions.
Despite the criticism, the vague and often imprecise scope of the MoA, the doctrine seems to be deeply embedded in the Court’s reasoning and considered important by the Contracting Parties.113 This can be simply verified by the inclusion of the doctrine, together with the principle of subsidiarity, on the Preamble of the Convention, once Protocol 15 amending the ECHR comes into force.114 It is suggested that this is a strong message sent by the Contracting States to the Court: prevent it from severely criticize their policies in order not to lose their support from which its whole work depends on.115
105 Benvenisti (n 49) p. 241. 106 Ibid. 107 Ibid. 108 Brems (n 5) p. 219- 220. 109 Ibid, p. 220. 110 Benvenisti (n 47) p. 844. 111 Brems (n 65) p. 220.
112 Brems and others (n 2) p. 903; Letsas (n 73) p. 12; Helga Molbæk-Steensig, ‘In Defence of Dynamic Interpretation Tradition at the ECtHR’ (The Universal, 2(1), (2018) 45; Natalie Alkiviadou (n 11) p. 9.
113 De Londras and Dzehtsiarou (n 35) p. 107; Dzehtsiarou(n 56) p. 133. 114 See n 45 above.
4. An emerging inconsistency: Dakir v. Belgium versus
Hamidović v. Bosnia and Herzegovina and Lachiri v.
Belgium
In this part, the three latest cases of the Court will be examined, in order to clarify whether and to what extent the Court’s judgments are consistent or some type of contradiction is created its reasoning.
As already mentioned in Part 2, once the Court has to deal with a case regarding a ban on religious clothing, it usually quotes its reasoning in the leading case of S.A.S. v. France116 to
either justify a wide margin of appreciation or to find a violation of Article 9 as it will be analyzed below. Namely, on the one hand, the Court has acknowledged the importance of “living together” as an element of the “protection of the rights and freedoms of others” so as to afford a wide MoA to the State which is ‘better-placed’ to decide on the interpretation of the right given that there is no European consensus. 117 On the other hand, the Court has highlighted all the aforementioned principles, yet without affording a MoA to the State but finding a violation of Article 9.118 This has recently been observed in its latest cases of Dakir v. Belgium,119 Hamidović
v. Bosnia and Herzegovina and Lachiri v. Belgium.
It would be now useful to examine how the Court’s same reasoning for scrutinizing whether an impugned restriction was legitimate was used to end up in different outcomes in these three cases. Prior to this, it needs to be clarified that the three cases did not have identical contexts between themselves. Namely each case concerned different State that has adopted a ban120,
116 See n 18 above.
117 The outcome in Dakir as will be described below, see n 129 below.
118 The outcome in Hamidović and Lachiri as will be described below, see n 166 and n 174 respectively below. 119 The case of Belcacemi and Oussar v. Belgium is identical to Dakir v. Belgium concerning the Court’s reasoning, thus the same could be supported for the former case as well.
120 The state in question in Dakir was Belgium, in Hamidović it was Bosnia and Herzegovina, in Lachiri it was Belgium.
different type of religious symbol121 that was restricted, different kind of restriction122 imposed in a different place123 and, last but not least, the applicants were not all of the same gender.124
Firstly, the case of Dakir concerned the adoption of a by-law by three Belgian municipalities in June 2008, concerning a ban on wearing clothing that conceals the face in public spaces.125 The applicant’s claim before the Belgian Council of State for the annulment of the ban was dismissed.126 Given that she did not have an effective domestic remedy, she alleged a violation of Article 9 -between others127- on the basis that ‘the ban on wearing in public spaces clothing designed to conceal the face deprived her of the possibility of wearing the full-face veil’.128 The found no violation of Article 9 on the grounds of “living together” as an element of the “protection of the rights and freedoms of others” by affording to the State in question a wide margin of appreciation.129
On the contrary, in its latest decisions of Hamidović v. Bosnia and Herzegovina and Lachiri v.
Belgium, the Court has departed from the MoA and held that there is indeed a violation of the
right to freedom of religion. Both cases concerned the appearance of the applicants in courtroom (not a legislated ban on religious clothing) and in both cases the Court found a violation of Article 9 on their freedom to manifest their religion through religious clothing and/or symbols. More precisely, the former case concerns the applicant’s punishment with imprisonment when he refused to comply with the court’s order to remove his skullcap when he was asked to testify.130 The latter concerns the applicant’s exclusion from a courtroom where she, as well as other
121 The religious symbol in question: in Dakir it was the full-face veil, in Hamidović it was the skullcap, in Lachiri it was the hijab.
122 The impugned restriction in Dakir concerned a restriction on religious clothing concealing the face, in Hamidović a punishment with imprisonment because the applicant refused to remove his religious symbol while testifying in the court, in Lachiri the exclusion of the applicant from the courtroom because she refused to remove her religious symbol.
123 The place in which the restriction has taken place: in Dakir the restriction was imposed in public space, in Hamidović it concerned the appearance in courtroom as a witness and in Lachiri it concerned the appearance in courtroom as a civil party in the criminal case concerning the violent death of her brother, together with other members of her family.
124 In Dakir the applicant was a woman, in Hamidović the applicant was a man and in Lachiri the applicant e=was a woman.
125 Dakir (n 3) para 10. 126 Ibid, para 11.
127 She also alleged a violation of Articles 8 & 10 of the Convention, ibid, para 3. 128 Ibid, para 3.
129 Ibid, para 60.
members of her family, was a civil party in the criminal case concerning the violent death of her brother, on account of her refusal to remove her hijab.131
The Court’s reasoning differed considerably as to its test of whether the impugned action by the States in each case could constitute a legitimate restriction of the Convention right, namely whether the restriction in question was prescribed by law, had a legitimate aim and was necessary in a democratic society132. More precisely:
a) Prescribed by law
Firstly, it was acknowledged by the Court that the actions taken by the States, namely the ban on religious symbols covering the face in Dakir, the punishment imposed in Hamidović and the exclusion from the court in Lachiri, all constituted a restriction on the applicants’ freedom to manifest religion.133 Subsequently, when scrutinizing whether the restrictions were prescribed by law, the Court found that in all the three cases there was indeed a basis in the domestic law for the restrictions in question.134
b) Legitimate aim
However, when it came to decide whether there was a legitimate aim of the restriction in question linked to one of those listed in Article 9(2)135, the Court used the following reasoning. In
Dakir, the Court noted that the aims136 claimed by Belgium for the impugned restriction pursued the aims established under Article 9(2), namely ‘the protection of public order, health or morals, or the protection of the rights and freedoms of others’.137 The Court, as in S.A.S., found that the State was concerned to ensure that the minimum requirements of life in society were observed.138 It was, also, acknowledged that the exposure of the face in human interaction was important in Belgian society.139 Therefore, the Court held that these two elements could justify the imposition
131 Lachiri v Belgium App no 3413/09 (ECtHR, 18 September 2018), paras 3, 8. 132 Article 9(2) ECHR see n 12.
133 Hamidović (n 130) para 30; Lachiri (n 131) para 32; Dakir (n 3) para 48. 134 Hamidović (n 130) para 33; Lachiri (n 131) para 33-36; Dakir (n 3) para 48. 135 Article 9(2) ECHR see n 12.
136 The ban under the municipal by-laws pursued the aims of public safety, gender equality and a certain conception of “living together” in society, see Dakir (n 3) para 49.
137 Article 9(2) ECHR see n 12. 138 Dakir (n 3) para 51.
139 Human Rights Centre of Ghent University, ‘Third Party Intervention’ Lachiri v. Belgium, Application No. 3413/09 ECtHR < https://hrc.ugent.be/clinic/third-party-interventions-before-ecthr/ > accessed 20 October 2019, p. 9.
of the ban in public spaces in order to guarantee the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.140
Accordingly, in Hamidović, the State had invoked two aims in order to justify the restriction: firstly the “protection of the rights and freedoms of others” on the grounds of secularism and tolerance within a post-conflict society141 and, secondly, the maintenance of the authority and impartiality of the judiciary. 142 The Court decided in favor of the first aim, on the grounds that secularism is a protected belief under Article 9 and, thus, ‘an aim to uphold secular and democratic values can be linked to the legitimate aim of the “protection of the rights and freedoms of others” within the meaning of the Article 9(2).’143 It did not consider the second aim legitimate since it is not expressly referred144 in Article 9(2).145
Conversely, in Lachiri, Belgium claimed that the restriction only pursued the aim of “the maintenance of the authority and impartiality of the judiciary”.146 In contrast to its reasoning in
Hamidović, the Court acknowledged this aim as legitimate under Article 9(2) by saying that even
this aim is not expressly mentioned, it could constitute one of the legitimate aims for a restriction under Article 9(2) as well.147 Hence, the aim of the restriction for “the maintenance of the authority and impartiality of the judiciary” was considered legitimate in the case of Lachiri, while in Hamidović the Court unequivocally reasoned that this aim is not provided under Article 9(2).
Therefore, an inconsistency is observed in two particularly similar cases as regards the aim pursued for the restriction in question. One could wonder why in Hamidović the Court avoided examining and answering whether ‘the maintenance of the authority and impartiality of the judiciary’ could have been a legitimate aim since it is not provided in Article 9(2). Was it because “the protection of the rights and freedoms of others” was an aim persuasive enough in
140 Dakir (n 3) para 51. 141 Hamidović (n 130) para 35. 142 Ibid.
143 Ibid.
144 This aim is provided only under Article 10(2) of the ECHR, see ECHR (n 6) art 10(2). 145 Ibid.
146 Lachiri (n 131) para 38.
147 According to the Court, ‘there is nothing to prevent that the “maintenance of the authority of the judiciary” being linked to the legitimate aim of “protection of order” covered by the latter provision”, see ibid.
order to justify the impugned restriction, or maybe because the Court was reluctant at that particular time to examine the legitimacy of the second aim provided?
c) “Necessary in a democratic society”
As to the last test of whether the limitation by the respondent State was “necessary in a democratic society”, the Court’s reasoning differed as follows in between the three cases. Firstly, in Dakir, the Court reiterated the general principles concerning Article 9, as stated in S.A.S. v.
France148: it was based on the subsidiary role of the Convention system, the fact that the national
authorities had direct legitimacy in protecting human rights and last but not least, the absence of consensus between the States parties to the Convention.149 It was, also, considered that whether it should be permitted to wear the full-face veil in public spaces in Belgium constitutes a choice of Belgian society.150 This can be seen as follows: the respondent State by imposing the impugned limitation on Article 9 was intended to address a practice which was considered incompatible with the rules of communication and the establishment of human relations that are essential for living together in this particular society.151 Thus, by enacting this ban the State, in its view, sought to protect a form of interaction between individuals, which was considered essential to the functioning of a democratic society.152 This element together with the fact that there was still no European consensus as to ‘whether there should be a blanket ban on the wearing of the full-face veil in public spaces’153 justified the application of a wide margin of appreciation to the respondent State.154 Therefore, the Court held that there was no violation of Article 9 ECHR, since the impugned limitation was “necessary in a democratic society” and proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedom of others”.155 It is not surprising that the Court justified and decided in favor of the State as it did in S.A.S, since the cases are quite similar. Therefore, it could be argued that the Court was consistent to its judgments, which reflect what was particularly accepted within the Contracting States of the Council of Europe at that moment.
148 S.A.S. (n 3) paras 124- 131. 149 Dakir (n 3) para 54. 150 Ibid, para 56. 151 Ibid, para 56. 152 Ibid, para 56. 153 Ibid, para 59. 154 Ibid, para 60. 155 Ibid, para 60-62.
In Hamidović and Lachiri, whilst using almost identical argumentation, the Court ended up to the opposite outcome of the one in Dakir. Namely the Court found a violation of Article 9 in both cases. Firstly, in Hamidović, the Court reapplied in its scrutiny the general principles156 concerning Article 9, however, it paid due respect to another argument that was not determinative in other cases such as the “living together” condition. Accordingly, the ECtHR acknowledged that it was the duty of the State in question ‘to ensure mutual tolerance between opposing groups’ (see S.A.S. v. France, §127), and that ‘pluralism and tolerance are special indicators of a democratic society’.157 Hence, according to the ECtHR, individual interests must not always be subordinated in the name of majority (see S.A.S. v. France, §128).158 Despite the fact that the applicant had no choice but to appear before the domestic court,159 that national authorities were indeed “better-placed” to evaluate local needs and conditions,160 and that the national judge had to deal with maintaining the order and ensuring the integrity of the trial,161 the Court considered that in this case it was more important to respect particular features of different religions.162 Although it was provided by the law of the State to order a witness to remove a religious symbol163 when there was adequate justification, the Court acknowledged that the freedom to manifest religion was more essential for two reasons: to tolerate and sustain pluralism and diversity in a healthy democratic society and to enable an individual communicate his/her belief to others when religion is a central tenet of his/her life.164 Also, given that the applicant did not show any disrespect towards the judiciary and he was willing to testify and follow the procedures and laws of the courts of the country, the Court held that the restriction of
156 Namely the subsidiary role of the Convention system, the “better-placed argument and the existence or not of a European consensus on the subject matter, see n 148 above.
157 Hamidović (n 130) para 36, see also S.A.S. (n 3) paras 124-131. 158 Ibid.
159 This element is not implied or explicitly acknowledged to be decisive for the Court’s outcome, see Hamidović (n 130) para 37.
160 Ibid, para 38. 161 Ibid, para 39. 162 Ibid, para 41.
163 In the case of R v. D (R) ([2013] Eq LR 1034), a British judge ruled as follows: “(1) The defendant must comply with all directions given by the Court to enable her to be properly identified at any stage of the proceedings. (2) The defendant is free to wear the niqab during trial, except while giving evidence. (3) The defendant may not give evidence wearing the niqab. (4) The defendant may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean[s] of a live TV link. (5) Photographs and filming are never permitted in court. But in this case, I also order that no drawing, sketch or other image of any kind of the defendant while her face is uncovered be made in court, or disseminated, or published outside court.”, see Ibid, para 22.
contempting the applicant of the court merely because he refused to remove his skullcap was not necessary in a democratic society.165 As a result, the domestic authorities had exceeded their wide margin of appreciation.166
The same reasoning was followed in Lachiri. The Court reiterated the general principles once again.167 While it recognized that the court is a “public space” open to all where respect for neutrality is important,168 it did not examine the case based on this rationale since it was not the objective.169 Rather, the ECtHR examined whether the measure was justified for the maintenance of order, as linked to the maintenance of the authority of the judiciary’ in the previous stage of the Court’s scrutiny.170 In this examination, the Court stressed the fact that the applicant was a mere citizen and not a State representative171 acting in official capacity.172 Moreover, she was neither disrespectful in the way she entered the courtroom nor did she constituted or threatened to constitute a threat to the proper conduct of the proceedings.173 Therefore, the Court held that the restriction in question was not justified in a democratic society and consisted a violation of Article 9 of the Convention.174
5. A normative assessment
There is a considerable difference in the Court’s reasoning between Dakir, on the one side and
Hamidović and Lachiri on the other. One might consider that this is justified because of the
diversity of contexts between the three cases.175 However, this thesis proposes that it is more than that.
In Dakir, the Court has indeed followed its reasoning in S.A.S., which is probably explained by the fact that the display of the face veil in public spaces is still a controversial issue among
165 Ibid, para 42. 166 Ibid, para 43.
167 Lachiri (n 131) para 39, also see n 148 above. 168 Ibid, para 45.
169 Ibid, para 46. 170 Ibid.
171 That would imply that she would have been subject to an obligation of discretion in the public expression of her religious beliefs.
172 Lachiri (n 131), para 44. 173 Ibid, para 46.
174 Ibid, para 47-48. 175 See n 119-124 above.
