April 12, 2010
Once more, the Court has been called to decide on a case concerning the public manifestation of beliefs through religious attire, this time in the open public square (Ahmet Arslan et Autres c. Turquie). The outcome is certainly positive. However, prospects for the wearing of religious garment inside public institutions are far from clear.
The case concerns the criminal conviction of members of a religious group for wearing their religious attire in public, on occasion of a ceremony held at a mosque in Ankara. After touring the streets of the city while wearing their distinctive clothing, and following various incidents, they were arrested and placed in police custody. Criminal proceedings under anti-terrorism laws followed. The day of the hearing, applicants appeared in court wearing their religious garments, including a turban which some of them refused to remove when asked to by the court. In the end, they were all convicted for violating Act 671 of 28 November 1925, which abolishes the use of religious headgear (except for religious officials who are authorized) and Act 2596 of 3 December 1934, which imposes a ban on wearing religious attire other than in places of worship or at religious ceremonies.
The Court held that the interference with the applicants’ freedom to manifest their convictions had not been based on sufficient reasons and found a violation of article 9. First, it concluded that the applicants were actually convicted for wearing their religious attire in the open public square rather than for refusing to remove their turbans in court. Therefore, the Court’s analysis focused only on the former. Second, the Court noticed that the applicants were not state officials acting in their official capacity but simple citizens with no obligation of discretion in the public expression of their religious convictions. Third, the Court emphasized that this case concerned the criminalization for wearing religious garment in public areas open to all, and not, as in previous cases, the regulation of the wearing of religious symbols in public establishments, where religious neutrality might take precedence over the right to manifest one’s religion. Last, the Court concluded that the applicants expressed their religious convictions in a way that could not be regarded as a threat to public order. Furthermore, no evidence of proselytizing was found.
At first, one feels reassured with the outcome of this case: religious manifestations in the open public square seem to be protected. This is good news, especially in the face of current discussions in Belgium and France to possibly ban the niqab from the public space, although the latter has apparently ruled out the possibility of banning it from the streets. It is not however clear from the reasoning whether individuals can freely wear their religious attire on the premises of public institutions where the Court understands respect for neutrality might take precedence. If this is the case, the argument may be setting not exactly a good precedent for citizens who, despite not even holding the status of public official, might be prevented from wearing their religious clothing inside public institutions. Neutrality as state equidistance vis-à-vis different faiths as well as religion and non-religion thus seems to be mistakenly equated with purging public institutions of individuals’ religious expressions. In any event, the Court’s argument might be only circumscribed to public education establishments, and might not be including all public institutions. The reference to Leyla Sahin v. Turkey in the following sentence seems to suggest this.
It is unfortunate that the Court did not get to decide on the wearing of religious clothing in court. On November 11, 2009, the Spanish paper, EL PAIS, reported a Muslim lawyer in Spain was expelled from the courtroom for wearing the headscarf. I am afraid this is not an isolated example in Europe. It is then yet to be seen whether the court will ever grant exemptions from generally applicable laws that disproportionately and unfairly burden religious minorities (e.g., dress-codes in courtrooms). Examples of exemptions of such nature could already be found in the United States in the 18th century in North Carolina and Maryland. As Martha Nussbaum recounts in her book “Liberty of Conscience,” Quakers were exempted from the requirement to remove their hats in court. I wonder what the European Court of Human Rights would have decided in the 21st century, had it addressed applicants’ refusal to remove their turbans in court. Judging by its precedents, a fortunate outcome would have not seemed likely.