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Secularism And Freedom of Religion: The Approach of the European Court of Human Rights

Published online by Cambridge University Press:  19 March 2012

Claudia Morini
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Abstract

This Article focuses on the approach of the European Court of Human Rights, based in Strasbourg, concerning the relationship between secularism and freedom of religion and the application of the “margin of appreciation doctrine.” Through the investigation of the relevant jurisprudence of the Court dealing with religious freedom and the principle of secularism (the Şahin, Dahlab, and Lautsi cases), the Author demonstrates that Court jurisprudence is moving from the application of principles of “pluralist secularism” toward a “fundamentalist approach” to secularism. Having evaluated the modus operandi of the Court in the light of the competing interests at stake, the Author suggests that in deciding cases where secularism and freedom to manifest religion collide, the Court should follow a case-by-case approach primarily aimed at protecting individual liberties and has to consider the political and cultural background of each situation and the effective impact on the State's life of the individual behavior.

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Articles
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Israel Law Review , Volume 43 , Issue 3 , 2010 , pp. 611 - 630
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR] was opened for signature in 1950 within the Council of Europe and by April 2010 it has been ratified by 47 States.

2 The Council of Europe was established in 1949 as a political intergovernmental organization. It represents 47 European pluralist democracies. Its aims are defined along the lines of protection of human rights and the rule of law in all Member States; consolidation of democratic stability in Europe by backing political, legal and constitutional reform nationally, regionally and locally; seeking of solutions to social problems such as discrimination against minorities, xenophobia, intolerance, bioethics and cloning, terrorism, trafficking in human beings, organised crime and corruption, cybercrime, violence against children; promotion and development of a European cultural identity, with special emphasis on education and promotion of social cohesion and social rights. See Winkler, Günther, The Council of Europe: Monitoring Procedures and the Constitutional Autonomy of the Member States (2006)Google Scholar; Beddard, Ralph, Human rights and Europe: a Study of the Machinery of Human Rights Protection of the Council of Europe (1980).Google Scholar

3 ECHR, supra note 1, art. 34.

4 Id. art. 32. The current Court is composed of 47 judges, each nominated by a Member State and appointed by the Parliamentary Assembly of the Council of Europe. The judges are expected to be neutral and not to act as representatives of their nominating State. The Court will not consider a petition unless all domestic remedies have been exhausted and the petition is filed within six months of the final domestic decision. See Zwaak, Leo F. & Cachia, Therese, The European Court of Human Rights: A Success Story?, 11 Hum. Rts. Brief 32 (2004).Google Scholar

5 Greer, Steven, The European Convention on Human Rights: Achievements, Problems and Prospects (2006).CrossRefGoogle Scholar

6 Diverse authors have produced voluminous literature on freedom of religion. See, e.g., Tahzib, Bahiyyih G., Freedom of Religion or Belief: Ensuring Effective International Legal Protection (1996)Google Scholar; Evans, Malcolm D., Religious Liberty and International Law in Europe (1997)CrossRefGoogle Scholar; Evans, Carolyn, Freedom of Religion Under the European Court on Human Rights (2001)CrossRefGoogle Scholar; Uitz, Renáta, Freedom of Religion in European Constitutional and International Case Law (2007).Google Scholar

7 See Kokkinakis v. Greece, App. No. 14307/88, 17 Eur. H.R. Rep. 397 (1993). See Lerner, Natan, Proselytism, Change of Religion and International Human Rights, 12 Emory Int'l L. Rev. 477 (1998).Google Scholar

8 See Kokkinakis v. Greece, supra note 7, para. 31. In the context of the case, the Court itself avoided taking sides, emphasising the failure of the domestic court to apply the domestic law properly since it had not spelt out sufficiently clearly how the applicant had committed the elements of the offense of “improper proselytism.”

9 See, e.g., Otto-Preminger-Institut v. Austria, 34 Eur. Ct. H. R. (1995), judgment of Sept. 20, 1994.

10 See Şahin v. Turkey, App. No. 44774/98, 44 Eur. H.R. Rep. 5, (Grand Chamber, 2005), para 107.

11 Refah Partisi (the Welfare Party) and Others v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98 and 41344/98, 2003-II Eur. Ct. H.R. 267, judgment of Feb. 13, 2003. See Boyle, Kevin, Human Rights, Religion and Democracy: the Refah Party Case, 1 Essex Hum. Rts. Rev. 1 (2004).Google Scholar

12 See Serif v. Greece, App. No. 38178/97, 53 Eur. Ct. H. R. (1999), judgment of Dec. 14, 1999.

13 For a critique of the Court's application of the concept of “necessity,” see Evans, Carolyn, The ‘Islamic Scarf’ in the European Court on Human Rights, 7 Melb. J. Int'l L. 52, 56–57 (2006).Google Scholar

14 See Yourow, Howard C., The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996)Google Scholar; Prebensen, Søren C., The Margin of Appreciation and Articles 9, 10 and 11 of the Convention, 19 Hum. Rts. L. J. 13 (1998)Google Scholar; Hutchinson, Michael R., The Margin of Appreciation Doctrine in the European Court on Human Rights, 48 Int'l & Comp. L. Q. 638, 640 (1999)CrossRefGoogle Scholar; Arai-Takahashi, Yutaka, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the European Court on Human Rights (2002)Google Scholar; Lerner, Natan, How Wide the Margin of Appreciation? The Turkish Headscarf Case, the Strasbourg Court, Secularist Tolerance, 13 Willamette J. Int'l L. & Dispute Res. 65 (2005)Google Scholar; Letsas, George, Two Concepts of the Margin of Appreciation, 26 Oxford J. Legal Studies 705 (2006).CrossRefGoogle Scholar

15 See Lerner, supra note 7, at 77.

16 See Parker, M. Todd, The Freedom to Manifest Religious Belief: an Analysis of The Necessity Clauses of the ICCPR and the ECHR, 17 Duke J. Comp. & Int'l L. 91, 100 (2006).Google Scholar

17 See Manoussakis and Others v. Greece, 1996-IV Eur. Ct. H. R. 1364.

18 See Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 449, para. 101. The case involved a Swiss primary school teacher dismissed for refusing to work without her headscarf. The case demonstrates the Court's view that the hijab was a powerful symbol; it concurred with the Swiss authorities' view that as a teacher in a position of authority, this could produce some sort of subliminal message to the children. They referred to similar German cases, where the reasoning behind the ban on teachers wearing headscarves is that it clashes with two key German legal concepts, religious freedom for all and the right of children to have a religiously neutral education, as prescribed in Article 18 of the International Covenant on Civil and Political Rights (ICCPR) (Dec. 16, 1966, 999 U.N.T.S. 171). The Court held the view that in this case the Swiss authorities were upholding a restriction which was seen as protecting the rights and freedoms of others, namely young children from a teacher whose hijab was a “powerful external symbol,” connecting it to proselytism and seeing it as irreconcilable with gender equality, in that it would be unavoidable for her to keep from the children her reasons for wearing the hijab, implying that the wearing of the hijab was based on gender inequality. See Dahlab v. Switzerland, supra, para 4.

19 See Pena-Ruiz, Henri, Histoire de la laïcité: Genèse d'un idéal (2005).Google Scholar

20 For a discussion on the lack of a coherent human rights theory of secularism see Freeman, Michael, The Problem of Secularism in Human Rights Theory, 26 Hum. Rts. Q. 375 (2004).CrossRefGoogle Scholar

21 See Dahlab v. Switzerland, supra note 18. See Westerfield, Jennifer M., Behind the Veil: an American Perspective on the European Headscarf Debate, 54 Am. J. Comp. L. 637 (2006)CrossRefGoogle Scholar; Bennoune, Karima, Secularism and Human Rights: a Contextual Analysis of Headscarves, Religious Expression and Equality under International Law, 45 Colum. J. Trans. L. 367 (2007).Google Scholar

22 See Dahlab v. Switzerland, supra note 18.

23 Id.

24 The Government pointed out that the State's neutrality as regards religious beliefs was even more valuable as it made it possible to preserve individual freedom of conscience in a pluralistic democratic society. The need to preserve such pluralism was even more pressing where the pupils came from different cultural backgrounds. In the applicant's case, her class comprised pupils of a wide range of nationalities. Lastly, it should not be forgotten that teachers were important role models for their pupils, especially when, as in the applicant's case, the pupils were very young children attending compulsory primary school. Experience showed that such children tended to identify with their teacher, particularly because of their daily contact and the hierarchical nature of their relationship (See id. at 9).

25 See id at 13.

26 See Şahin v. Turkey, 11 Eur. Ct. H.R. 175, 208, 216 (2005). See also Skach, Cindy, Leyla Şahin v. Turkey: “Teacher Headscarf” Case, 100 Am. J. Int'l L. 186 (2006)CrossRefGoogle Scholar (for a discussion on the case).

27 That circular also stated, “Consequently, the name and number of any student with a beard or wearing the Islamic headscarf must not be added to the lists of registered students. However, students who insist on attending tutorials and entering lecture theatres although their names and numbers are not on the lists must be advised of the position and, should they refuse to leave, their names and numbers must be taken and they must be informed that they are not entitled to attend lectures. If they refuse to leave the lecture theatre, the teacher shall record the incident in a report explaining why it was not possible to give the lecture and shall bring the incident to the attention of the university authorities as a matter of urgency so that disciplinary measures can be taken.” (Şahin v. Turkey, supra note 26, para. 16 of the judgment).

28 See Şahin v. Turkey, supra note 10, paras. 72–73.

29 See Şahin v. Turkey, supra note 26, para. 71.

30 See Şahin v. Turkey, supra note 10, para. 98.

31 See Şahin v. Turkey, supra note 26, para. 111.

32 Id. para. 122.

33 See Lautsi v. Italy, App. No. 30814/06, referred to the Grand Chamber on Mar. 1, 2010.

34 The crucifix is listed in the “furnishing of all classrooms” of public schools in two royal decrees that date back 1920s (Royal Decree, Apr. 26, 1928 n. 1297, art. 19; Royal Decree, Apr. 30, 1924 n. 965, art. 118). The two Royal Decrees had been enacted by the fascist government before the Italian Constitution came into force in 1948. The aim of the decrees was to introduce a confessional system, which was actually established by the Lateran Treaty of 1929 with the Vatican, when Catholicism became the official state religion. These decrees are administrative law sources. In the Italian system, administrative acts can be repealed only by administrative courts, while the Italian Constitutional Court may review only primary (legislative) sources. Since the Italian Constitutional Court has never constitutionally reviewed the decrees that establish that it is obligatory for crucifixes to be displayed in public schools, different judges have in the past decided very different solutions. While administrative courts (which traditionally have a conservative approach) have consistently upheld the effectiveness of the two decrees (with the consequence that they were never repealed) decisions by ordinary judges, which tend to be more liberal, often went in the opposite direction, but could not repeal the “fascist decrees.” For an in-depth analysis of this case, see Mancini, Susanna, Taking Secularism (Not Too) Seriously: The Italian “Crucifix Case,” 1 Religion & Hum. Rts. 179 (2006).CrossRefGoogle Scholar

35 See Lautsi v. Italy, supra note 33, para 15.

36 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, 213 U.N.T.S. 262.

37 See Lautsi v. Italy, supra note 33, para 55.

38 See judgments nos. 508/2000, nos. 925/88, 440/95, 329/97, 440/95, 203/89, 259/90, 195/93, & 329/97.

39 Editor's note: On March 18, 2011 the final decision found that the requirement that crucifixes be shown in state school classrooms does not violate the European Convention on Human Rights.

40 See ECHR, supra note 1, art. 9, para 2. For comments on the necessity clauses of the ECHR, see Parker, supra note 16.

41 See Troper, Michel, French Secularism, or Laïcité, 21 Cardozo L. Rev. 1267 (2000)Google Scholar (discussing the French notion of secularism).

42 In relation to that “risk,” there is an aspect that needs to be stressed. In each country the national identity debate has coalesced around a pattern of events and themes specific to that country. Each nation tends to move toward the assimilationist model in a way that is consonant with the values upon which that nation has been built. For instance, in Germany in recent years whilst rightwing politicians (such as Edmund Stoiber) have been fostering fears of identity loss, more liberal observers, and indeed the ruling red-green coalition, have acknowledged that multi-ethnicity has by now become an integral part of this identity. The debate experienced its provisional climax in late 2000 and early 2001. At that time Friedrich Merz, then parliamentary leader of the CDU party, introduced the term “Leitkultur” into the political discourse. The notion suggests the existence of a clearly identifiable spectrum of German cultural values and proposes that foreigners who wished to live in Germany should adhere to these values. See Manz, Stefan, Constructing a Normative National Identity: The Leitkultur Debate in Germany, 2000/2001, 25 J. Multilingual & Multicultural Dev. 481 (2004).CrossRefGoogle Scholar With reference to the topic of this article, religious symbols can also be considered part of these values and they have different treatment depending on the Country concerned. Hence, according to different religious and cultural background, States can decide differently in questions of culture and identity. This was the position held by the Italian Government during the Grand Chamber hearing on June 30, 2010. The text of the written observations presented by the Government is only available in French, http://www.governo.it/Presidenza/CONTENZIOSO/contenzioso_europeo/grande_camera/Memoria_Rappresentanza_Lautsi_Grande_Camera.pdf.

43 For comments on the effects of and reactions to the Lautsi judgment in Italy, see Mancini, Susanna, The Crucifix Rage: Supranational Constitutionalism Bumps against the Counter-Majoritarian Difficulty, 6 Eur. Const. L. Rev. 6 (2010).Google Scholar

44 See supra note 42.

45 See Rorive, Isabelle, Religious Symbols in the Public Sphere: in Search for an European Answer, 30 Cardozo L. Rev. 2669, 2676 (2009).Google Scholar

46 See Lerner, supra note 7, at 85.