November 27, 2015
By Eva Brems
On 26 November, the Court added a new chapter to its ‘headscarf’ jurisprudence, upholding the non-renewal of a contract in a public hospital on the ground of the applicant’s refusal to take off her headscarf.
The case in brief
15 years ago, in December 2000, the applicant, who had been working for 15 months with a temporary contract as a social assistant in the psychiatric wing of a public hospital in the Paris area, was informed that her contract would not be renewed. This was a disciplinary measure as a result of her refusing to stop wearing an Islamic headscarf, which had given rise to complaints from both patients and colleagues. The applicant challenged this in court. Her long journey through the French court system ended in 2011, the French courts having ruled that the hospital was allowed to refuse renewal of her contract on this ground, on the basis of the principle of ‘laïcité’ of the French State, as well as the neutrality of public service. The public service is understood in this context in a broad sense, including individuals employed on a contractual basis, and including also private organizations delivering public services.
She then turned to the European Court of Human Rights, which ruled against her with 6 votes to 1. In its reasoning, the Court strongly relies on its previous case law on headscarf bans, in particular the Grand Chamber judgment of Leyla Şahin, and the inadmissibility decision in Kurtulmuş. Central features of its reasoning are a wide margin of appreciation of the States Parties, and a confirmation of the acceptability of a system that elevates secularism to a constitutional principle and uses it as a basis for restricting individual expressions of religion by persons associated with the state. Judge O’Leary wrote a very well argued and strongly critical concurring opinion, yet voted with the majority. Judge De Gaetano is the lone dissenter in this case.
Was the outcome of this judgment predictable in the light of the Court’s previous case law? Yes and no.
Yes, because the Court has consistently upheld headscarf bans for both teachers and pupils in public education. In states that ban individual expressions of religion in the name of government neutrality, public servants are the first target, as they are the persons through whom the State addresses the public, and as some of them are in a position to exercise power over members of the public, a role in which perceptions of impartiality are crucial. Pupils are a completely different matter, as they do neither represent the State, nor exercise any power. By validating headscarf bans for pupils on grounds of neutrality, the Court has accepted very far-reaching restrictive consequences of a neutrality policy. In that line, it seems that a fortiori it had to accept a ban for agents of a public service.
And yet, as pointed out in the opinion of Judge O’Leary, in most of this previous case law, which concerns the context of public education, the reference to the general neutrality rationale is combined with reasoning that is specific to the educational context. Only in the inadmissibility decision of Kurtulmuş has the Court explicitly situated the ban for teachers in the context of a general ban applying to all civil servants, and implicitly legitimized the latter. The Court in Ebrahimian does not dwell on the extension of the impact of its case law from the educational context to the entire public service, referring simply to the rationale of the French system, which it says it is not its role to assess as such (para. 68).
It is worth considering the implications of this extension though. The number of jobs in French public service is around 5,6 million while the number of people in France who have a job is around 26 million. Hence the French exclude Muslim women who wear a headscarf (as well as Sikh men who wear a turban and Jewish men who wear a kippah) from more than 21% of all potential jobs that they might aspire to in France. It seems that the Court might usefully have taken aboard this factor in its proportionality analysis. The broad interpretation by the French courts of a general neutrality principle in the applicant’s case, affected not only the renewal of her contract with that specific hospital, but her chances of employment in the entire public sector. In its breakthrough Eweida judgment on religion at work, the Court specifically suggested that ‘the possibility of changing job’ was a factor that should be accounted for in the proportionality assessment (para. 83). Moreover, it is submitted that when the Court, as in this case, accepts a blanket restriction, the motivation of which might not be fully applicable to the applicant, it should not do so without assessing the proportionality of the measure as a whole, beyond the applicant’s case.
The Court’s proportionality analysis in this case is a bit confusing. The Court seems to hesitate between, (or in Judge O’Leary’s words, to ‘mix’) two approaches, one very abstract, another more concrete. This appears to result in part from a difference in approach between the French administrative authorities, who took the initial decision on the basis of more concrete arguments, and the French courts, who reasoned on the basis of abstract principles. With respect to both lines of reasoning, the Court takes some distance, in light of the wide margin of appreciation that it recognizes. Hence, it does not really undertake its own autonomous assessment of the proportionality of the interference, but rather examines whether the national authorities have adopted an acceptable approach. This style might be called quasi-procedural, as it remains limited to examining the types of arguments that were taken into account, without critically examining their relevance in the concrete case.
The more concrete line of reasoning mentions approvingly that the administration’s assessment of the need for a neutral appearance in this case referred to the fact that the applicant had contact with patients and that there had been some difficulties in her functioning (para. 69). At the same time however, the Court explicitly states that there had been no claim that the applicant’s behaviour would have been in any way problematic: there had been no pressure, no provocation nor proselytism vis-à-vis patients or colleagues (para. 62). The Court moreover stated that the administration’s argument about difficulties in the applicant’s functioning ‘would have deserved to be developed further’ (para. 69).
This is a far cry from the reasoning in Eweida that required ‘evidence of any real encroachment on the interests of others’ (para. 95). It is submitted that it is never justified to do away with evidence requirements for the substantiation of arguments justifying human rights restrictions. Yet in a context that is polluted by Islamophobia, this is even more problematic. Is it not vital for the Court to assess whether the ‘problems’ the applicant experienced with patients and colleagues were in any way attributable to her behaviour, or whether they were instead more adequately labeled as Islamophobic reactions? The Court stated that France was entitled to consider that the neutrality of the public hospital service was linked to the attitude of its agents, and could therefore require ‘that patients could not doubt their impartiality’ (para. 69). In this manner, the Court echoes the concept of ‘objective impartiality of the judge’ under article 6 ECHR. It should be reminded though that in that context the Court consistently requires an objective verification of a perception of lack of impartiality: ‘in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified’ (Grand Chamber, Micallef v Malta, para 96). By foregoing this objectivity check in the present context, the Court fails to offer guarantees against anti-minority prejudice.
At the same time the abstract line of reasoning appears to be turning in circles: the applicant could be refused a contract renewal solely on account of her headgear, because this is the way in which France organizes secularism, and the Court should not question this French system as such (para. 68). What is more, the Court has in previous case law already accepted strict enforcement of such a system (para. 67). Hence the Court does not seem to consider itself entitled to even assess whether the blanket nature of the ban can be justified by the invoked principles. The main contributions of this line of reasoning appear to be the references to a wide margin of appreciation and to the weight of precedent.
As a matter of fact, if the Court had been open to circumventing the weight of precedent and finding a violation in this case, it could have done so on the basis of legality, without having to engage in the proportionality analysis. The applicant argued that the ban was without a legal basis. Indeed, at the time, the extension of a duty to abstain from religious expression at work to all civil servants was based only on a single sentence in an opinion of the Conseil d’Etat about teachers in public schools. What is more, that opinion had been adopted only a few months before the facts in this case occurred. In the words of O’Leary, ‘it is questionable whether, in 1999, when the applicant was first employed, or in 2000, when her contract was not renewed, the prohibition at issue here was accessible and foreseeable within the meaning of the Court’s case-law.’
Once more, the European Court of Human Rights is showing signs of looking at Europe through the windows of its host country. Here is what I see: After decades in which headscarf bans seemed to spread like oil stains in several European countries, a counter-movement seems to be on the rise. Both in Germany (Constitutional Court judgment of 27 January 2015) and Belgium (Council of State judgment of 14 October 2014), Courts have rejected abstract principles and speculations as a basis for headscarf bans, and limited the justifiability of such bans instead to situations in which there is evidence of concrete risks for neutrality or the rights of others. In a context in which social cohesion within multi-religious societies is back as a priority concern in Europe, it is widely agreed that these nuanced approaches deserve to be encouraged. The European Court of Human Rights however does not appear to think so.