Article 9 of the European Human Rights Convention stress on the right to freedom of religion, conscience, and thought. The rights entail freedom to shift from one religion or belief to another and to manifest one’s religion or belief in observance, worship, teaching, and other practices pertained to the religion either in private or public. The article further states that freedom of faith or religion shall only be subject to limitations as set by law and fundamental in a self-governing society in public interest to protect the liberty and rights of others, moral and health and for the protection of public order. However, there has been an intense criticism that the European Court of Human Rights has given insufficient protection to Article 9 of the European Convention on Human Rights in regards to religious symbols and clothing. The issue of religious dress mainly female Muslim religious dressing code has provoked an intense debate within the European Union in recent years. The policy and legal conversation on the substantive constitutional rights or wrongs of limiting freedom to religious dressing academicians and many commentators have extensively exploited a complex and. The aim of this paper scrutinizes the European Court of Human Rights’ approach to the freedom of religion regarding the prism to its perception towards religious dress.
Freedom of religious thought and conscious is an essential human right which is treasured not only in the European Human Rights Convention but also in many national and international texts. However, the protection of Article 9 on the freedom to manifest one’s religion through dressing has been outstandingly weak. Some researchers maintain that giving insufficient protection to Article 9 is symptomatic of a deeper problem in the European Court of Human Rights. The failure of the Court to strengthen religious freedom should be a concern to many people, as it is an indication of a sense of discrimination to minority religions. The philosophical foundations for the lesser protection of Article 9 of the European Convention on Human Rights religious symbols and clothing are tentative and not up to scratch in comparison to other rights such as freedom political expression. The vagueness has created an extremely reverent approach by the European Court of human rights; a self-denying regulation which has resulted in a virtual lack of scrutiny of the circumstances of the apparent violation of the freedom of religion.
Nonetheless, this may be regarded as inevitable, owing to the liberal secular pattern, alongside the prevailing international atmosphere within which the European Court of Human right operates. Religious adherents feel that the court is biased in its protection to human rights. There is a belief that the European court of human rights gives many privileges and have a clear conceptual grasp to those rights as sexual autonomy and political freedoms that freedom of religious belief. Other concerned groups maintain that there will be ease for other courts or states to curtail the liberty of religious faith through dress copying from the European court of human rights, considered to be one of the significant courts on the planet.
Cases concerning breach of religious freedoms are referenced under Article 10 and 9 of the European Convention on Human Right on freedom of expression, and right to religion and conscience respectively. The Articles alongside Articles 11 and eight on freedom of association and assembly and right to family and private life contain two-paragraph sentences which explicitly strive to strike a balance between people’s rights/freedoms and the greater social good. They both hold a universal agreement that fundamental rights can only be interfered with in pursuit of social ideals, and the interference must be per the law and essential in a democratic society. The European Court of Human Right has held the latter requirement to mean that interference to fundamental freedom must be proportionate to the aim pursued regardless of the facts of the case and should be designed to respond to a demanding social need. The reason by the state for the interference must be sufficient and relevant.
It is at this juncture where the European Court assess the proportionality of the interference with a fundamental right by the state, that the margin of appreciation assumes the relevance as the most critical adjudicative tool in many cases. The margin of appreciation is a doctrine applied globally for legal defense or self-restraint. It appears predominantly in lawsuits concerning the right to religion and religious symbols. The margin of appreciation is purely a judge-made doctrine and has a textual foundation in any convention. The adjudication by the Court is supervisory. The decision by the court is only secondary to the primary protection for that particular right in question as pronounced by the national authorities closer to the vital forces of their nations. The primary purpose of the margin of appreciation doctrine is to provide for a degree of autonomy to the States as to how they approach the protection of individual rights set out in the convention. The margin of appreciation has been held to assist in areas such as religion and morals where there is no consensus across European nations adopting the protocol.
The width of the margin of appreciation is dependent on the subject matter concerning the right in question. The margin accorded to the state regulating political or journalistic issues as pronounced in Article 10 of the Convention or consensual homosexual issues outlined in Article 8 is narrower; thus the level of protection by the court or intensity of scrutiny is much higher contrary to cases touching on freedoms of religion in Article 9. Excellent examples of the difference in the levels of protection the Court accord to political and religious expressions are the cases of VgT Verein Gegen Tierfabriken v State of Switzerland and Murphy v State of Ireland. The two cases are outwardly similar in that they both entail a quest to ban some forms of broadcasting. VgT Verein Gegen Tierfabriken v State of Switzerland, the Court made a ruling that barring the political advertising constituted a breach of applicant’s rights as established in Article 10 of the Swiss law. The ban was designed to regulate cases where large and financially endowed organizations acquire large slots of airtime dictate the kind of political messages to broadcast. VgT which is a small charitable organization was also caught in the ban despite not meeting the threshold for larger organizations. The court ruled that it is disproportionate to interfere with the organization’s Article 10 rights. The reason given by the court were insufficient and irrelevant according to many scholars. Murphy v State of Ireland case is about the injunction on broadcast religious adverts, intended to safeguard religious harmony and avoid benefiting only the dominant religions. Even though the applicant was not part of the dominant and powerful religious groups and the message was also innocuous, the court found no offense for broadcast religious advertising. The Court deliberately distinguish VgT Verein Gegen Tierfabriken v State of Switzerland case on the basis that the type of manifestation obligated that a more significant margin appreciation is given to the State.
“While there is little scope for restrictions on political speech…a wider margin of appreciation is generally available…when regulating freedom of expression…within the sphere of religion or morals… what is likely to cause substantial offense to persons of a particular religious persuasion will vary significantly from time to time and from place to place.”
The justification for the dissimilarity in approach to the cases seems to be grounded on the relative influential value of the particular freedoms or rights in question. Political and journalistic expressions are essential to the society’s democratic process according to the court, thus central to the ethos of the Convention. The goal to secure a representative democracy is attained by having a robust political expression which has been used to refer to represent the public interest. The court has declared on numerous occasions that a democratic society requires strong freedom to political discussions and this triumphs throughout the Convention. Researchers argue that there a pan-European con when it comes to political right discussions. The value attached to religious manifestation and expression is vague. It is given less consideration in regards to overall societal benefit. It is conceivably due to the absence of clear externalized societal benefit that leads to lack of true conception of the significance of religion across Europe, and subsequently justifies an extensive margin of appreciation.
Dudgeon v UK also provides an excellent comparison between the widths of the margin of appreciation according to religious expression versus other rights. The case Dudgeon v UK concerns criminalizing consensual same-sex conducts in private. The court held that Northern Irish breached the right to respect for family and private life according to Article 8 ECH by penalizing the homosexual practice. The ruling was made despite the majority of people in Northern Ireland supporting the ban as a way of protecting the society’s moral fabric. The fact that the ban was to protect the society’s morals and the public was in agreement with the restriction invited a broader margin of appreciation.
On the contrary, the margin of appreciation accorded to the case was very narrow. The Court maintained that the issue touched on a most intimate facet of private life. Thus serious considerations were necessary before the ban by the Irish public authorities could be legitimate. The European court of human rights convention applied the Millian principle in the ruling. Millian principle maintains that:
“Power is rightfully exercised over a member of civilized society against his will only when the purpose is to prevent harm to others.”
Therefore activities in private life receive a narrow margin of appreciation as it is less likely to harm other members of the society whatsoever the definition compared to conduct in public.
The same Millian principle used for the case of Dudgeon v UK also seems to be applied directly with regards to the interpretation given to religious expression under Article 9 of the European Convention of Human Rights. It is argued that internal space has absolute protection under paragraph one which states that every person has the right to manifest religious belief either in private or public. The manifestation of one’s religious expression is, however, subject to some degree of restrictions in paragraph two of the same Article 9. Section 2 states that religious expression is subject to restrictions but only as prescribed by the law and essential in a democratic space for the protection of public order, safety, morals and rights of others. It can be argued that paragraph two of Article 9 only restrict the manifestation of religious expression. Therefore, privately religious beliefs just like any other private and family expressions are highly protected. Nonetheless, once such beliefs emerge into the public sphere, they become manifest, and state is permitted to enforce some form of restrictions as long as such limitations are in pursuant of a legitimate aim, in accordance to the law, and are fundamental in democratic space. As such, a religious believer who wish to manifest his or her belief in the public area inescapably run the risk that the manifestation is likely to impact on others, and to some extent result to some harm than when conducts contained entirely in the private purview.
Based on such widely held ideology by the courts under ECHR, religious believers who manifest their beliefs, for example by putting on a particular garment in public runs the worst when it comes the margin of appreciation to adjudicate their rights. Such insufficient protection of religious freedom under Article 9 and the broader margin of recognition granted to cases involving religious expression is perhaps because religion is not dominant to the active operation of political democracy. Spiritual manifestation scores lower than even intimate sexual behaviors because of its public dimension. Some scholars argue that manifestation itself means that the concept is already visible in the public share, thus the reason why it attracts restrictions.
European Court of Human Rights, on numerous occasions, has been keen to uphold the prohibition on dressing in clothes that signifies religious symbols in educational settings. The right to the manifestation of one’s religious beliefs in public as guaranteed by the European Convention on Human Rights is however undermined by the claim that wearing a headscarf as a teacher could result in a detrimental and proselytizing impact on the students. For instance, in the case of Dahlab v the State of Switzerland, the applicant was prohibited from wearing a headscarf which she has been putting on for years without disapproval. The submission was not even deliberated on its merit. The European Court on Human Rights declared that the prohibition of the applicant’s headscarf was reasonable on the basis that it was meant to protect the minors under her care. The argument was that the juveniles who are also members of the public tend to be more vulnerable; thus there is the need to protect them against religious pressure and indoctrination.
European court also upholds the decision to expel two Muslim girls from a high school in France on the basis that they refused to remove their headscarf during a physical education lesson. The French Government in its submission to the European Court maintain that right to religious expression is not unrestrained resonate with the restrictions on the grounds of the safety of the public sphere, keeping order, or the protection of the rights of others. Even though the Court acknowledged that the prohibition limited the rights of the girls to manifest the freedom of religious beliefs, it held the ban was justifiable. The court argued that the expulsion of the girls was because they refused to adhere to the dress code of the school and not because of their religious beliefs they alleged.
The perception of the European Court regarding the expulsion of the girls appears to disregard broader issues. The argument that the eviction was informed by the fact that the girls disobeyed the school’s dress code and not because of their religious belief is disputably a myopic consideration of the situations. It is girls’ religious beliefs that informed the feeling of obligation to wear the headscarf; thus expulsion based on wearing the hijab is based on religious conviction a broader perspective that on disobeying the dress code of the school. In simple term, the applicants were expelled because of the headscarves which are a religious symbol. Therefore, the Court’s decision to ignore the significance of religion their choice cannot be considered to answer the question of whether banning the headscarf in learning institution is lawful.
The European Court seemed to have ignored the significance of diversity in this ruling. The accepting and embracing different beliefs is a fundament facet of a functioning democracy, the importance of such differences should not be undermined — research effective democracy political democracy at the forefront of defending human rights. However, the European Court’s conception of pluralism seems to rely on a fictional absence of religion in most of the judgments. The court does not apply a genuine pluralism in cases involving religious difference just as in the case of expulsion of the Muslim girls from a French school because of the headscarf. There is an emphasis on the protection of secularism which instead is the function of the state.
In Şahin v Turkey, a case that many have regarded as the landmark ruling by the European Court, the Court upheld the prohibition on the applicant’s putting on a headscarf in a Turkish University. Submission by the Turkish government stated that the Republic of Turkey is a social, democratic and a secular State and as such, the protection of the secular identity of the nation in an essential function of the state. The European Court in the judge upheld that the prohibition of the headscarf in Turkish universities was justifiable on the basis that the action ensured public safety, order and the protection of the rights of others. Limiting the applicant from wearing a headscarf which is the court considered an Islamic religious manifestation as meeting the social need, by protecting the secular order. Banning hijab in Turkish universities was seen as a move to reconcile diverse religious interests but not to bare Turkish students from adhering to Islamic beliefs. The judgments by the European Court can be perceived as an indication that the Court regards wearing a headscarf as a sign that one is supporting political Islam.
It is unfortunate that the European Court has allowed the right to religious manifestation to determine by other people’s perception of what the expression means to them, as contrary to what it says to the individuals making the manifestation. It is unfair to hold a person responsible for what other people perceive of her unless there is an attempt to provoke unacceptable reactions such as ethic, racial or religious hatred. Banning the headscarf on the basis that it display political Islam assign some degree of culpability to people manifesting religious beliefs. The judgments and the Court arguments as presented in this paper are a clear manifestation that the European Court of Human Rights has given insufficient protection to Article 9 of the European Convention on Human Rights, as such is creating a room for the society to underestimate other people’s religious beliefs. The court should allow everybody in the community to manifest their religious beliefs in a way that they believe is sincerely their divinely ordained obligation.