By Julie Ringelheim, researcher with the FRS-FNRS and Professor at Louvain University.
In Lachiri v. Belgium, decided on 18 September 2018, the European Court of Human Rights held that excluding a woman from the courtroom, who was a civil party to the case, on the ground that she wore an ‘Islamic headscarf’ (hijab) amounted to a breach of religious freedom protected by Article 9 ECHR. This judgment is especially noteworthy in view of the rise of prohibitions on wearing the headscarf, or religious symbols generally, in a number of areas in Belgium and France. So far, applicants contesting this sort of measures have rarely been successful in Strasbourg. On three occasions, however, the Court had found that a prohibition on the wearing of religious symbols or clothing lacked adequate justification: in Ahmet Arslan and others v. Turkey (members of a religious groups sanctioned for touring the streets while wearing the distinctive dress of their group); in Eweida and others v. United Kingdom (a British Airways employee was forbidden from wearing a cross necklace outside her clothes while working); and in Hamidović v. Bosnia Herzegovina (a witness in a criminal trial was summoned to remove the skullcap he wore as a member of the Salafist Muslim community). But with Lachiri, the Court for the first time, finds a violation in a case where the wearing of a headscarf by a Muslim woman was at stake. Importantly, this judgment highlights that there are limits to the margin of appreciation states enjoy when regulating the wearing of religious dress. Yet the judgment includes some ambiguous statements that undermine its potential for clarifying the principles applicable to religious symbols regulations.
The applicant, Mrs Lachiri, as well as other members of her family, was a civil party in the criminal case concerning the violent death of her brother. On 20 January 2007, she came to the Court of Appeal of Brussels to participate in a hearing before the Indictments Division. She wore a headscarf. The court usher informed her, on behalf of the president of the chamber, that she would not be allowed in the courtroom unless she removed her headscarf. She refused to comply and was forbidden to enter. In response to the request of explanation submitted by her lawyer, the president of the chamber stated that this decision was based on Article 759 of the Belgian judicial code, which lays down that:
“The person who assists to a hearing stands uncovered (découvert), respectful and quiet: all that the judge orders to maintain order is enforced punctually and instantly.” (my translation)
The lawyer contested the legality of this order. In its judgement, the Indictments Division responded that the lawyer’s arguments on this point were underdeveloped and that the challenged decision was based on Article 759 of the judicial code. Mrs Lachiri and the other civil parties filed an appeal before the Court of Cassation. This appeal was declared inadmissible.
Some interesting background information is provided by the Human Rights Centre of Ghent University, which was authorized to submit a third party intervention. The Centre explains that Article 759 of the judicial code was borrowed from the former judicial code written in the 19th century, a time where it was customary to remove one’s headgear upon entering a Church or a house in sign of respect for the institution or the host. Moreover, the Centre carried out a survey in 2016 among judges of the Flemish and Brussels’ Regions (255 Dutch speaking judges and 263 French speaking judges): a majority of respondents (76,5% of the Dutch speaking judges and 62,2% of their French speaking colleagues) said they had never asked a person to remove their (religious or non-religious) headgear based on this provision. Among those who had done it, the majority explained that they had only used this possibility in case of troublesome behaviours. Besides, only 20% of the Dutch speaking judges and 21% of the French speaking magistrates stated that they had asked a person, attending a hearing, a civil party or a witness, to take off religious headgear. The Centre highlights that this data reveals some confusion and diverging practices among judges as to the application of Article 759. Based on this data, the Human Rights Centre argued in its third party intervention that a restriction to the wearing of a religious sign based on this provision cannot be considered to be “prescribed by law” within the meaning of Article 9(2) ECHR.
The Court has no difficulty finding that the exclusion of Mrs Lachiri from the courtroom on the grounds that she wore a headscarf amounts to a restriction on the exercise of her right to manifest her religion. Previous case law already established that wearing the headscarf can be regarded as an act “motivated or inspired by a religion or religious belief” (e.g. Leyla Şahin v. Turkey, § 78). Regarding the Convention requirement that a restriction must be “prescribed by law”, the Court expresses doubts as to whether this condition is fulfilled in this case. This expression in the Convention not only requires that the impugned measure should have a legal basis in domestic law but also that the law in question should be accessible to the person concerned and foreseeable as to its effects. The Court notes that an “uncertainty, leading to legal insecurity, exists as to the application of the contentious provision by Belgian judges” (§ 35, my translation). However, it decides not to settle the issue whether Article 759 of the judicial code is sufficiently foreseeable because it finds that the infringement of Mrs Lachiri’s rights violates the Convention for another reason: it cannot be deemed necessary in a democratic society.
The Court notes that contrary to most other cases relating to a restriction on the wearing of a religious symbol, the government here does not claim that the measure was aimed at preserving secular (laïc) and democratic values. Instead, the obligation to stand “uncovered” before a judge, applied in the present case, was meant to prevent behaviours that are disrespectful towards the judiciary or disruptive to the smooth running of the hearings. Thus, the legitimate objective pursued by public authorities in this context was the “protection of public order”. The Court observes that Mrs Lachiri’s attitude has not been disrespectful or posed any threat to the proper conduct of the hearing. She is moreover a mere citizen: “she is not a representative of the state engaged in the exercise of a public office and could not therefore be bound, on account of any official status, by a duty of discretion in the public expression of her religious beliefs” (§ 44, my translation). Accordingly, in the Court’s view, the restriction on her right to manifest her religious beliefs was not justified in a democratic society.
The Court’s finding in this case may seem to state the obvious. It is difficult to see how the mere presence, in a courtroom, among the civil parties, of a woman wearing a headscarf could be considered as disturbing the running of the hearing or as constituting a sign of disrespect towards the judges. Yet, previous case law has given the impression to leave member states such a large leeway to regulate the wearing of religious symbols, and especially the Islamic headscarf, that this judgment is of particular significance. The Court here indicates that headscarf prohibitions cannot be justified under any circumstance under the Convention. It reminds member states that such a measure does constitute an infringement on the right to religious freedom and, as such, is not compatible with the Convention unless it is shown to be necessary in a democratic society to achieve one of the legitimate aims listed in Article 9(2).
However, some obiter dictum observations obscure the message of the Court. The applicant, in order to support her claim that she could not be subjected to a duty of discretion in the expression of her religious beliefs, argued not only that she was a mere citizen but also that courtrooms are public spaces open to all. The Court discards this argument, saying that whilst a court could be part of the “public arena”, it was not a “public place” comparable to a public street or square. And it adds: “A court is indeed a “public” institution in which respect for neutrality towards beliefs could prevail over the free exercise of the right to manifest one’s religion, like public educational establishments” (§45). In support of this observation, it refers to Leyla Şahin v. Turkey where it was held that a headscarf ban in Turkish universities could be deemed necessary to the protection of the rights of others through the preservation of the principle of secularism (laïcité). The Court, however, specifies immediately that since in Lachiri, the prohibition was only aimed at the protection of public order, it will not examine whether it could have been justified by the objective of “maintaining the neutrality of the public arena.” (§46)
The Court thereby suggests that had the exclusion of Mrs Lachiri from the courtroom been justified by this latter objective, it might have been deemed compatible with the Convention. This ambiguity is highly regrettable. For it is more than doubtful that the Court could have reasonably justified such a finding.
Certainly, the Court is right when it says that a courtroom is not comparable to a public street or square. It is a public institution where one of the most fundamental missions of the state is fulfilled, namely administering justice. Private citizens who enter such a place can legitimately be required to respect certain rules to ensure that justice is delivered in adequate conditions, like the obligation to maintain a respectful and quiet attitude. But it does not follow that they are bound by a duty of neutrality just because they find themselves in the court’s building.
A few words of explanation about the principle of “neutrality” are useful here. What is at stake in this context is the obligation of the state and its institutions, like courts, to be religiously neutral. This obligation entails that civil servants, such as judges, who personify these institutions, must themselves be neutral. This duty of neutrality concerns primarily the action of civil servants: they are required first and foremost to act neutrally, meaning that they cannot favour some citizens over others for religious reasons nor promote a certain faith while performing their duties. Some states like France, however, go further than this: they impose on their civil servants an obligation to be neutral in their appearance, and not merely in their action, thus precluding them from wearing any sign that would reveal to the public that they believe in a certain faith. The Court has accepted that such a restriction to the right to manifest one’s religion – usually justified by reference to the concept of laïcité, which implies an extensive conception of state neutrality – is compatible with the Convention, at least for what regards school teachers (Dahlab v. Switzerland), university professors (Kurtulmuş v. Turkey) or a social worker employed in the psychiatric wing of a public hospital (Ebrahimian v. France). Now, in the case of judges, the duty of neutrality is especially strict. Given the special sensitivity of their mission, it is admitted that they shall not undermine, by their attitude, the public’s confidence in the ability of the judiciary to render justice independently and impartially. Accordingly, a good case can be made that an extensive duty of religious neutrality, as including an obligation to be neutral in their appearance, is justified with respect to judges. It can be surmised that the Court would consider such a measure as being in accordance with the Convention.
However, a private person who enters a courtroom to assist a hearing or participate in it as a witness or a civil party does not exercise any official function. Nor do they hold any deciding power. It is thus hard to see how the fact that their clothing reveals that they have certain religious beliefs could generate, among some persons, the fear that their case would not be judged impartially. The idea that the mere presence of a person in the premises of a court is a sufficient reason to forbid them from wearing a religious symbol in order to safeguard the court’s neutrality disregards the very rationale of the neutrality principle, that is, to guarantee that all individuals are treated objectively and impartially by the judiciary.
It is interesting to compare the remark made by the Court in Lachiri about the potential relevance of the neutrality argument with its judgment in Hamidović v. Bosnia Herzegovina, concerning the sanctions imposed on a man of Muslim faith for having refused to remove his religious headgear when appearing as a witness before a court. In this latter case, the government did argue that this measure was aimed at safeguarding the rights and freedoms of others through the preservation of secularism as well as at protecting the authority and impartiality of the judiciary. The Court, nonetheless, found a breach of religious freedom. It thus held that such a measure could not be deemed necessary to preserve secularism.
In short, the Court’s ruling in Lachiri is to be welcome for its main finding, namely that prohibiting a private person from wearing a religious dress in a courtroom cannot be justified by the protection of public order and violates the right to religious freedom. However, this judgment remains focused on the specificities of the case and does little to clarify to what extent and in what circumstances religious dress prohibition may be deemed compatible with the Convention in other situations.
 On the distinction between “neutrality of action” and “neutrality of appearance”, see S. Van Drooghenbroeck, “Les transformations du concept de neutralité de l’Etat. Quelques réflexions provocatrices,“ in Le droit belge face à la diversité culturelle (Bruylant, 2011) 75.
 On the concept of religious neutrality in the Court’s case law, see J. Ringelheim, “State Religious Neutrality as a Common European Standard? Reappraising the European Court of Human Rights Approach,” Oxford Journal of Law and Religion (2017) 6(1) doi 10.1093/ojlr/Rww060.