Religious signs in public schools: Belgian Council of State shows judicial bravery

Co-authored by Yousra Benfquih* and Saïla Ouald Chaib**

As in many other countries in Europe, the wearing of religious signs has been the topic of heated debate in Belgium. This has been the case for public servants, teachers, employees in private firms and the wearing of religious signs by pupils in school. It is the latter issue that was the subject of two recent judgments of the Belgian Council of State (Conseil d’Etat, Belgium’s highest administrative court), judgments that might prove to mark a watershed in the Belgian discourse on headscarf bans, freedom of religion and the right to education of pupils. (The judgments are in Dutch and can be found here and here)[1] The judgments are furthermore interesting because of their inclusive comprehension of neutrality through systematic reference to the case law of the European Court of Human Rights. This post will start by briefly shedding light on the structure of the Belgian education system and the implementation of a ban on religious signs in Flanders. We will subsequently highlight the crucial parts of the judgments of the Council of State (hereafter ‘the Council’) and conclude with some reflections.

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Mansur Yalçın v. Turkey: religious education and the (easy) way out

This guest post was written by Yousra Benfquih, FWO aspirant, PhD Fellow Research Foundation Flanders at the University of Antwerp.

In the case of Mansur Yalçın v. Turkey, 14 Turkish nationals living in Istanbul who are adherents of the Alevi faith, complained before the Court that the way in which the religion and ethics class – a compulsory subject in primary and secondary public education under article 24 of the Turkish Constitution – was taught, violated Article 2 of Protocol No. 1. In this connection, they moreover put forward a violation of Articles 9 and 14 of the Convention. Continue reading

S.A.S. v. France as a problematic precedent

As this blog already features an excellent post on SAS v France, this is a brief contribution, with a specific focus, namely SAS v France as a problematic precedent beyond the issue of the face veil and even beyond religious freedom cases. I shall focus on two problematic aspects of the judgment: its acceptance of the promotion of ‘living together’ as a legitimate ground for the restriction of fundamental rights, coupled with a wide margin of appreciation; and the way it assesses the seriousness of the interference. Continue reading

S.A.S. v. France: Missed Opportunity to Do Full Justice to Women Wearing a Face Veil

By Saïla Ouald Chaib and Lourdes Peroni

This week, the Grand Chamber of the European Court of Human Rights published its long-expected judgment in S.A.S. v. France. The case concerns a ban on the wearing of face veils in the public space. Although the outcome of such highly debated cases is always unpredictable, we hoped that the Court would take this opportunity to bring procedural and substantive justice to the women wearing a face veil in Europe.[1] Alas, the Court disappointingly decided the case by granting a wide margin of appreciation to France and by consequently not finding a violation of any of the ECHR provisions invoked, in particular freedom of religion, the right to private life and non-discrimination. At the same time, however, the judgment contains some positive aspects, namely respect for several requirements of what is known as “procedural justice” and departure from previous case law portraying Muslim women as oppressed. In this post, we share our first impressions on what we think are some positive and negative aspects of the Court’s reasoning. Continue reading

Fernández Martínez v. Spain: The Grand Chamber Putting the Brakes on the ‘Ministerial Exception’ for Europe?

Recently, the Grand Chamber of the European Court of Human Rights delivered its eagerly awaited judgment in Fernández Martínez v. Spain. The case concerned the refusal to renew the contract of a teacher of Catholic religion and ethics in a public secondary school, because he had allegedly caused a “scandal” when his situation of ‘married priest’ and his membership of the Movement for Optional Celibacy of priests became public knowledge. By a narrow 9-8 split decision, the Grand Chamber ruled that the applicant’s right to private life had not been violated.

Before the judgment came out, I was fairly confident that it would affirm what I have termed the ‘ministerial exception for Europe’ in an earlier post. Now that the judgment is out, I am forced to come to the opposite conclusion. Instead of confirming the reasoning of the Third Section, the Grand Chamber in Fernández Martínez appears to hark back to the reasoning in earlier cases, such as Obst v. Germany and Schüth v. Germany.

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A missed opportunity: how the Court’s judgment is commendable for seeking to protect religious minorities but nevertheless wide of the mark

This guest post was written by Lieselot Verdonck. Lieselot is a Ph.D. Candidate at the Human Rights Centre, Faculty of Law of Ghent University. More information on the author can be found here.

The relationship between State and Church has always drawn much interest. It constitutes an inherently sensitive and political issue, which touches upon one of the foundations of a democratic society and concerns any member of that society, whether religious, atheist or agnostic. Accordingly, the European Court of Human Rights inevitably has to face cases concerning the foundational issue of Church-State relations, such as in Magyar Keresztény Mennonita Egyház & Others v. Hungary. The Court’s decision in this case is, however, remarkable for its general and far-reaching statements that leave not only scholars but also governments guessing about their future application. Continue reading

In the Footsteps of Jakóbski v. Poland but Adding Obstacles to the Road: Vartic v. Romania

When it comes to the accommodation of religious dietary requirements of detainees, it is clear that the European Court of Human Rights is adopting an inclusive approach. The case of Jakóbski v. Poland (2010) was considered a landmark case in this sense and the recent case of Vartic v. Romania proves that this assumption was correct. What distinguishes Vartic from Jakobski is the fact that the Court was confronted with the significant disadvantage criterion, which was introduced by protocol 14.

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