December 11, 2017
In Hamidović v Bosnia and Herzegovina (5 December 2017), the Fourth Section of the Court found a violation of articles 9 and 14 ECHR on account of the punishment of a witness for wearing an Islamic skullcap in the courtroom. As almost all claims for accommodation of Islamic religious practice have failed before the Court, this is an important case. The Court reaffirms member states’ wide margin of appreciation in this field, yet this judgment makes clear that such a margin is nevertheless not unlimited.
Facts of the case
Islam is the majority religion in Bosnia and Herzegovina, with Muslims making up almost 51 % of the population. The applicant however belongs to a community of Salafist Muslims, a minority practicing an orthodox interpretation of Islam. Their religious practice includes the wearing of a skullcap by men. In 2012, the applicant was summoned to appear as a witness in a criminal trial concerning a terrorist attack on the US Embassy in Sarajevo. He appeared, but when the President of the trial chamber ordered him to remove his skullcap, he refused to do so. He was then expelled from the courtroom, convicted for contempt of court and sentenced to a fine. An appeals chamber of the same court upheld the decision, but reduced the fine. As the applicant did not pay the fine, it was converted into 30 days of imprisonment. The applicant served this sentence. In 2015, the Constitutional Court of Bosnia and Herzegovina found no breach of articles 9 and 14 ECHR. It did however find a violation of article 6 ECHR on account of the automatic conversion of the fine into imprisonment.
Two elements in the background of this case are particularly salient. The first is when the trial judge linked the applicant’s behaviour to that of other members of the Salafist community who had appeared before the same court, and in addition to refusing to take off their skullcaps, had publicly expressed that they did not recognize that court.
The second was that the wearing of religious symbols in Bosnian courts has been the subject of a heated debate since at least 2015, when the High Judicial and Prosecutorial Council issued a circular stating that judges, prosecutors and court officers are forbidden to wear such symbols in the course of their duties. This affected one judge and approximately ten court officers who were wearing headscarves. The circular was condemned by several important domestic actors, notably the Islamic Community, the House of Representatives, two Cantonal Assemblies and the Agency for Gender Equality. On other persons, such as parties or witnesses, who are present in the courtroom, the circular states that they may be ordered to remove a religious symbol if it is considered justified by a judge in a given case.
As concerns the European context, the Court ordered a comparative study of the legislation of 38 States Parties. It found that none of them regulate the wearing of religious symbols in the courtroom by private citizens. However, four states require private citizens to uncover their head in the courtroom. Only in one of these states, Belgium, this rule is applied to religious headgear (albeit by a minority of judges only).
Judgment and analysis
The finding of a violation (with a six to one majority) is based on the proportionality analysis. Nevertheless, the concurring opinion of Judge De Gaetano rightly argues that the fulfilment of the ‘legality’ and ‘legitimate aim’ conditions is not straightforward in this case. There was no statutory provision banning the wearing of religious symbols in the courtroom. Instead, the ban was issued from a broad power of the trial judge to regulate the conduct of proceedings. Arguably, the restriction of a human right requires a clearer and more explicit legal basis. As for the legitimate aim requirement, the Court refers to the judgments in Leyla Şahin (para. 99) and Ahmet Arslan a.o. (para. 43) to state that ‘an aim to uphold secular and democratic values can be linked to the legitimate aim of the ‘protection of the rights and freedoms of others’ (para. 35). In both of these named cases, that link was less explicitly made though. This statement, that is likely to be quoted in future cases, is in my opinion rather too categorical. In that respect, it is interesting that De Gaetano in his concurring opinion objects that secularism falls within the ambit of ‘protecting the rights and freedoms of others’ ‘only in exceptional cases, such as when the principle of secularism is embedded in the constitution of a country or where there is a long historical tradition of secularism’.
In assessing the proportionality of the ban, the Court first confirms the wide margin of appreciation of states in this sphere (para. 38). It then distinguishes the case from other cases concerning the wearing of religious symbols by public officials, ‘who may be put under a duty of discretion, neutrality and impartiality, including a duty not to wear such symbols and clothing while exercising official authority’ (para. 40). The Court adds that ‘In democratic societies, private citizens, such as the applicant, are normally not under such a duty’ (para. 40, in fine).
The Court grants that ‘there may be cases when it is justified to order a witness to remove a religious symbol’ (para. 41), referring to the face veil. Yet in the central paragraph 41 of its brief motivation, the Court then makes a number of principled statements: ‘the Court would emphasize that the authorities must not neglect the specific features of different religions’.
Although this is not further developed, it can be read as a warning to not interpret religious freedom through a Christian lens. In particular, I read it as a caution to take seriously the protection of religious praxis and public manifestations of religion in a context in which some European states have a tendency to want to restrict religious freedom to the forum internum. The importance of religious expression is further emphasized with a reference to Eweida (para. 81):
‘Freedom to manifest one’s religion is a fundamental right: not only because a healthy democratic society needs to tolerate and sustain pluralism and diversity, but also because of the importance to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others’
From SAS (para. 127-128), the Court distils the final principle:
‘democracy does not simply mean that the views of a majority must always prevail. The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.’
In addition, the Court considers it relevant that the applicant had not shown a disrespectful attitude (para. 42) or that he had ‘any hidden agenda to make a mockery of the trial, incite others to reject secular and democratic values or cause a disturbance’ (para. 41).
Considering that the domestic authorities had exceeded their wide margin of appreciation, the Court found a violation of article 9, and on the same grounds, a violation of article 14. The sole dissenter, Judge Ranzoni (judge for Liechtenstein), emphasized the subsidiary role of the Court. In his opinion, the Court should have restricted itself to a procedural control of the assessment made by the national courts.
Although the comparative research conducted by the Court does not cover all State parties, it suggests that the immediate impact of this judgment is limited to Bosnia and Herzegovina and Belgium. In fact, a Belgian case, Lachiri, concerning the obligation for a civil party in a criminal trial to take off her headscarf, is currently pending before the Court. The situation of a witness and that of a civil party are not identical. Indeed, as the Court emphasizes (para. 37), a witness has ‘no choice but to appear before the court’, as failure to appear may lead to a fine or arrest. This does not apply to a civil party, yet after Hamidovic, and given the Court’s proportionality reasoning, it is safe to assume that witnesses and members of the audience should also be allowed to wear religious symbols in the courtroom. Given that the Court’s exception for ‘the workplace’ in para. 40 focuses strongly on public officials, it seems likely that the same applies to attorneys appearing in court. Yet for the sake of the law school graduates who are denied access to the bar on account of their headscarves (notably in Belgium), it would have been so much better had the Court included an obiter dictum clarifying this matter.
Yet the importance of the Hamidovic judgment transcends the courtroom environment. Upon reading the press release, my first – admittedly cynical – reaction was: ‘so Muslims have rights after all’. And indeed, the Court has to date rejected ALL article 9 accommodation claims of Muslims in states where Islam is a minority religion. After Ahmet Arslan a.o., Hamidovic is only the second successful claim for accommodation of Islamic religious practice. Remarkably, both cases concern internal minorities in a Muslim majority context. In all other cases, the wide margin of appreciation gave a licence for the restriction of Muslim practices. In our third party intervention in Lachiri, we argued – in the context of bans on religious dress – that the current state of the case law makes it very hard to tell what are the limits – if any – to the states’ margin of appreciation in this field: what are the contexts in which the Court would not tolerate a ban. Yet such guidance is dearly needed.
Despite the principled statements cited above, the Hamidovic judgment still leaves this question largely open. Too many Strasbourg judgments have given the impression of a carte blanche for restrictions on minority religious practice. Religious minorities across Europe – and Muslim minorities in particular – would welcome a judgment that would include clear criteria that determine the limits of the margin of appreciation in this field, and that would emphasize and clarify the room that does exist in Europe for the public expression of religious practice.