Hostname: page-component-cd9895bd7-fscjk Total loading time: 0 Render date: 2024-12-28T04:23:49.024Z Has data issue: false hasContentIssue false
  • English
  • Français

Indoctrination, Secularism, Religious Liberty, and the Echr

Published online by Cambridge University Press:  17 January 2008

Sylvie Langlaude
Get access Rights & Permissions [Opens in a new window]

Extract

With its judgment in Leyla Şahin v Turkey,1 the Grand Chamber of the European Court of Human Rights has once again addressed the place of religion within the European Convention system. The Court considers two types of cases. The first focuses on individuals but has repercussions on the relationship between State and religious communities. The Court is much more individualistic in these cases, in that it focuses more on the individual and the protection of the rights and freedoms of others. The Court emphasizes values such as the prevention of indoctrination, neutrality, secularism and laïcité, especially in relation to Islam. The Court tries to promote and enforce a normative order of secularism but this has unfortunate consequences for religious freedom. The second deals with the compatibility of entire domestic regimes regulating religious affairs with the Convention, including questions of legal personality and registration, leadership and property ownership, positive obligations of the State towards the protection of religious communities against third parties, and freedom of religious choice. The aim is to promote tolerance, religious diversity, pluralism and a market place within religious beliefs. It will be shown that these two strands in the caselaw do not always sit happily together.

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 55 , Issue 4 , October 2006 , pp. 929 - 944
Copyright
Copyright © British Institute of International and Comparative Law 2006

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Leyla Şahin v Turkey, Application 44774/98 (2005).Google Scholar

2 Dahlab v Switzerland, Application 42393/98, admissibility decision (2001).Google Scholar

3 See Cha'are Shalom Ve Tsedek v France, Application 27417/95 (2000).Google Scholar

4 On the principle of respect, see Evans, MD ‘Believing in Communities, European Style’ in Ghanea, N (ed) The Challenge of Religious Discrimination at the Dawn of the New Millennium (Martinus Nijhoff Leiden/Boston 2004) 133–155, at 140–144.CrossRefGoogle Scholar

5 Wingrove v UK, Application 17419/90 (1996)Google Scholar; Otto-Preminger v Austria, Application 13470/87 (1994)Google Scholar

6 Kokkinakis v Greece, Application 14307/88 (1993)Google Scholar; Larissis v Greece, Applications 23372/94–26377/94–26378/94 (1998).Google Scholar

7 Evans, (n 4) 141.Google Scholar

8 She further complained that the Swiss courts had erred in accepting that the measure had a sufficient basis in law and in considering that there was a threat to public safety and to the protection of public order. She observed that the fact that she wore an Islamic headscarf had gone unnoticed for four years and did not appear to have caused any obvious disturbance within the school.

9 Kopftuch-Urteil [Headscarf Decision] (24 09 2003), BVerfGE 108, 282Google Scholar; NJW 56 (2003), 3111.Google ScholarSee von Campenhausen, AF ‘The German Headscarf Debate’ (2004) 2 Brigham Young University Law Review 665–99Google Scholar; Schiek, D ‘Just a Piece of Cloth? German Courts and Employees with headscarves’ (2004) 33(1) Industrial Law Journal 68–73.Google Scholar

10 Lerner, NReligion, Beliefs and International Human Rights (Orbis Book MaryKnoll NY 2000) 110–16.Google Scholar

11 IT Plesner ‘The European Court on Human Rights between fundamentalist and liberal secularism’ (Strasbourg Conference), available at <http://www.strasbourgconference.org/papers/ Plesner%27s%20Strasbourg%20paper%20(revised).pdf> (page 7).

12 Pedain, A ‘Do headscarfs bite?’(2004) 63(3) CLJ 537–40, 537.Google Scholar

13 For a recent House of Lords' decision on a local school uniform policy, the right to wear a headscarf, a Muslim pupil's refusal to comply with school uniform policy and the meaning of ‘constructive’ expulsion, R (on the application of Begum (Shabina)) v Denbigh High School Governors [2006] 2 WLR 719 (22 Mar 2006).Google Scholar

14 Loi n° 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics (JO n° 65 du 17 mars 2004 page 5190)—Law n° 2004–228 (15 03 2004)Google Scholar prohibiting children in public schools from wearing clothing and insignia that ‘conspicuously manifest a religious affiliation’ (Official Journal n° 65, 17 03 2004, page 5190)Google Scholar

15 Raihon Hudoyberganova v Uzbekistan, Communication 931/2000 (2005).Google Scholar The Committee considered both freedom of manifestation under Article 18(1) and freedom from coercion under Article 18(2). The Committee considered that the freedom to manifest one's religion encompasses the right to wear clothes or attire in public which is in conformity with the individual's faith or religion. Furthermore, it considered that to prevent a person from wearing religious clothing in public or private may constitute a violation of Article 18(2). The Committee noted that the State party did not invoke any specific ground for which the restriction imposed on the author would in its view be necessary in the meaning of Article 18(3). In the particular circumstances of the present case, and without either prejudging the right of a State party to limit expressions of religion and belief in the context of Article 18 and duly taking into account the specifics of the context, or prejudging the right of academic institutions to adopt specific regulations relating to their own functioning, the Committee was led to conclude, in the absence of any justification provided by the State party, that there had been a violation of Article 18(2).

16 Leyla Şahin v Turkey, Application 44774/98 (2005), para 115.Google Scholar

17 [2006] 2 WLR 719 (22 03 2006).Google Scholar It concerned Miss Begum, a pupil at a secondary school where the majority of pupils were Muslims. The school uniform allowed the shalwar kameeze with the headscarf. However, the applicant argued that this was not sufficient and that her Muslim beliefs required her to wear the jilbab, which is a more covering form of dress. This was not accepted by the school, and she was told not to come back to school until she stopped wearing the jilbab.

18 Scolnicov, A ‘A dedicated follower of (religious) fashion?’ (2005) 64 CLJ 527–9, 528–9.Google Scholar

19 Especially paras 58 and 94.

20 Lord Nicholls and Baroness Hale disagreed and argued that there was an interference with her freedom of manifestation.

21 Paras 58–94 (per Lord Bingham).

22 For example, see Mandella v Dowell Lee [1983] 2 AC 548.Google Scholar In a case involving a turban-wearing Sikh child with unshorn hair, a uniform requirement of short hair and caps for boys, and unlawful indirect discrimination, the headmaster's objection to the turban on the ground that he sought to run a Christian school, accepting of all religions and races is particularly interesting. He argued that the Christian character of the school would not be accurately reflected by the inclusion of the non-Christian turban as part of the uniform, that the turban was an outward manifestation of a non-Christian faith and that it amounted to a challenge to that faith.

23 G Robbers ‘Religion in Public Schools’ (Strasbourg Conference), available at: <http://www. strasbourgconference.org/papers/Religion%20in%20Public%20Schools.pdf> (page 2).

24 G Haarscher ‘Muslim Minorities and Democracy: Battle of Memories v. Genuine Integration’ (Strasbourg Conference), available at:<http://www.strasbourgconference.org/papers/ Haarscher.pdf> (page 10).

25 See Kjeldsen, Busk Madsen and Pedersen v Denmark, Applications 5095/71–5920/72–5926/72 (1976)Google Scholar; Martins Casimiro and Cerveira Ferreira v Luxemburg, Application 44888/98, admissibility decision (1999)Google Scholar; Jimenez Alonso and Jimenez Merino v Spain, Application 51188/99 (2000).Google Scholar Whereas State indoctrination that does not respect parental religious and philosophical convictions in education and teaching is prohibited, parents cannot object to a neutral curriculum, and their convictions must not conflict with the fundamental right of the child to education. Accordingly the threshold is so high for parents that it does not mean much anymore.

26 Çiftçi v Turkey, Application 71860/01, admissibility decision (2004).Google Scholar

27 Öktem, N ‘Religion in Turkey’ (2002) 2 Brigham Young University Law Review 371–403, 397.Google Scholar Niyazi Öktem points out that mandating eight years of secular education for all children was one among other measures introduced by the Government in 1997 in order to contain fundamentalism.

28 See Rivers, J ‘Religious liberty and education: coping with diversity’, International Conference Human Rights and Our Responsibilities Towards Future Generations: an Inter-Religions Perspective, organized by the Future Generations Programme in collaboration with UNESCO and the Mediterranean Academy of Diplomatic Studies at the Foundation for International Studies (Valletta, Malta, 6–8 05 1999).Google Scholar Julian Rivers points out that ‘there is no such thing as neutrality in matters of faith. To pretend that there is, is to deny the existence of fundamental differences and ultimately to devalue the faiths themselves. However, there can be consensus and compromise, and neutrality is to be understood in this sense’.

29 Scolnicov, A ‘Children's right to freedom of religion in a multi-religious society’, paper presented at the 2001 International CESNUR Conference ‘The spiritual supermarket: religious pluralism in the 21st century’ (London, 19–22 04 2001), available at <http://www. cesnur.org/2001/london2001/scolnicov.htm> (footnotes omitted) (last visited 9 Jan 2006).+(footnotes+omitted)+(last+visited+9+Jan+2006).>Google Scholar

30 Leyla Şahin v Turkey, Application 44774/98 (2005), para 116.Google Scholar

31 It is worth pointing out that on the issue of proportionality, the Court never really analysed the issue, whereas less restrictive alternatives would have been possible.

32 Pedain, (n 12) 539Google Scholar: notably the fact that she complies with a duty that follows from her relationship with Allah/God.

33 ibid 540.

34 Plesner, (n 11) 5–6.Google Scholar

35 ibid 15.

36 ibid.

37 On different conceptions of laïcité in France, see Idriss, MM ‘Laïcité and the banning of the “hijab” in France’ (2005) 25 Legal Studies 260–295, 261–262.Google Scholar He distinguishes an interpretation of laïcité according to which the exercise of religion is permissible in private but where the French State will not openly support a particular religion within the public sphere, in the interests of non-discrimination, and another interpretation (and one, he argues, which seems to prevail in most governmental and educational institutions) that is far more aggressive and where the state will strive hard to maintain its religious neutrality by curtailing religious freedom, in the interests of public order.

38 Refah Partisi (The Welfare Party) and others v Turkey, Applications 41340/98–41342/98–41343/98–41344/98 (2003).Google Scholar

39 TJ Gunn ‘Fearful Symbols: The Islamic Headscarf and the European Court of Human Rights’ (Strasbourg Conference), available at: <http://www.strasbourgconference.org/papers/Sahin%20by%20Gunn%2021%20by%20T.%20Jeremy%20Gunn.pdf> (page 16).

40 AE Mayer ‘The Refah Case: Did Islam and Islamism Distract the ECHR from Appraising the Merits of the Case?’ (Strasbourg Conference), available at: <http://www.strasbourg confer-ence.org/papers/The%20Refah%20Case.pdf>

41 Plesner, (n 11) 9.Google Scholar

42 Plesner, (n 11) 9.Google Scholar

43 Evans, (n 4) 144.Google Scholar

44 Serif v Greece, Application 38178/97 (1999), para 51.Google Scholar

45 Hasan and Chaush v Bulgaria, Application 30985/96 (2000), paragraph 78Google Scholar; Supreme Holy Council of the Muslim community v Bulgaria, Application 39023/97 (2004), para 96.Google Scholar

46 Metropolitan Church of Bessarabia and others v Moldova, Application 45701/99 (2001).Google Scholar

47 1997 Federal Law on Freedom of Conscience and Religious Associations (Federal Law No 125–F3). See Gunn, TJ ‘Caesar's Sword: The 1997 Law of the Russian Federation on the Freedom of Conscience and Religious Associations’ (1998) 12 Emory International Law Review 43–99Google Scholar; Brossart, J ‘Legitimate Regulation of Religion: European Court of Human Rights Religious Freedom Doctrine and the Russian Federation Law on Freedom of Conscience and Religious Organizations’ (1999) 22 Boston College International and Comparative Law Review 297–321.Google Scholar

48 Church of Scientology Moscow and others v Russia, Application 18147/02 (2004)Google Scholar

49 Moscow branch of the Salvation Army v Russia, Application 72881/01 (2004)Google Scholar

50 Religious Community of Jehovah's Witnesses in the City of Moscow, Judicial Chamber for Civil Cases of the Moscow City Court (16 06 2004, Civil Case No 33–9939)Google Scholar

51 See Evans, MD ‘Freedom of Religion or Belief and Permissible Limitations’ (17–18 07 2003) OSCE Supplementary meeting on freedom of religion or belief (Hofburg, Vienna), Document ODIHR.GAL/57/03.Google ScholarAlso, see Durham, C ‘Facilitating freedom of religion or belief through religious association laws’ in Lindholm, T, Durham, WC and Tahzib-Lie, BG (eds) Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff Leiden 2004) 321–405, 321CrossRefGoogle Scholar; Lehnhof, LS ‘Freedom of Religious Association: The Right of Religious Organizations to Obtain Legal Entity Status Under the European Convention’ (2002) 2 Brigham Young University Law Review 561–609.Google Scholar

52 Lotter and Lotter v Bulgaria, Application 39015/97 (2004)Google Scholar: case involving the refusal of the authorities to re-register the Jehovah's Witnesses' organization in Bulgaria and the authorities' attempt to expel the applicants (members of the Jehovah's Witnesses) from the country. Following a friendly settlement between the authorities and the applicants, which included the registration of the Jehovah's Witnesses as an association, the case was struck out of the list.

53 Sergei Malakhovsky and Alexander Pikul v Belarus, Communication 1207/2003 (2005).Google Scholar

54 Greco-Catholic parish Sìmbăta Bihar v Romania, Application 48107/99 (2004).Google Scholar

55 eg, Canea Catholic Church v Greece, Application 25528/94 (1997).Google Scholar

56 97members of the Gldani congregation of Jehovah's Witnesses and four others v Georgia, Application 71156/01 (2004).Google Scholar

57 Šijakova and others v the Former Yugoslav Republic of Macedonia, Application 67914/01, admissibility decision (2003).Google Scholar

58 The Court stated: ‘the issue of maintaining contacts and communication between parents and children who are not minors, and the respect and affection they extend to each other, is a private matter, which concerns and depends on the individuals bound in a family relationship, the lack of which, and the reasons for and origins of such lack, do not call for a positive undertaking by the State and cannot be imputable to it. Even assuming that Article 8 of the Convention may be understood to guarantee the right of the applicants to receive support and care from their children as they grow old and in the event of sickness and infirmity, the applicants' complaint in this connection is premature’.

59 Evans, (n 4) 145.Google Scholar

60 Riera Blume and others v Spain, Application 37680/97 (1999).Google Scholar

61 Guidelines for review of legislation pertaining to religion or belief, prepared by the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief in consultation with the European Commission for Democracy through law (Venice Commission), adopted by the Venice Commission at its 59th Plenary Session (Venice, 18–19 June 2004), welcomed by the OSCE Parliamentary Assembly at its Annual Session (Edinburgh, 5–9 07 2004).Google Scholar

62 For example, see Gil-Robles, A, Commissioner for Human Rights Conclusions on the seminar concerning Church-State relations in the light of the exercise of the right to freedom of religion (Strasbourg, 10–11 12 2001).Google Scholar

63 Rivers, J ‘Religious liberty as a collective right’ in O'Dair, R & Lewis, A (eds) Law ami Religion (OUP Oxford 2001) 227–46, 231.Google Scholar

64 Plesner, (n 11) 5.Google Scholar

65 Knights, S ‘Religious symbols in the school: freedom of religion, minorities and education’ (2005) 5 EHRLR 499–516, 510.Google Scholar

66 J Gadirov ‘Plurality of Legal Systems and Religious Freedom’ (Strasbourg Conference), available at: <http://www.strasbourgconference.org/papers/Plurality%20of%20Legal%20 Systems%20and%20Religious%20Freedom.pdf>

67 Refah Partisi (The Welfare Party) and others v Turkey, Applications 41340/98–41342/98–41343/98–41344/98 (2003), para 93.Google Scholar