Mikyas v. Belgium: one more ‘headscarf case’ that manifestly fails to acknowledge applicants’ concerns

By Saïla Ouald-Chaib

“Les droits de l’homme n’existent pas. Ce sont les droits de l’homme blanc”

These are the words of a young French Muslim girl whom I met when I was still in law school. She spoke those words when she learned I was studying human rights law. Her words stuck with me during my entire young career. Not necessarily because I thought she was right, but because it motivated me (maybe naively) through my doctoral research and also in my later work to try to find ways of how courts could make sure that people need not question the legitimacy of the human rights system and the value of their fundamental rights.

When I read the recent decision in the case of Mikyas v. Belgium, these words came again to my mind. In fact, the young girl I met at the time, was one of the pupils who, every day she went to school, was faced with the French general ban on the wearing of religious dress. Every day again she removed her headscarf at the gates of the school. Every day again, she felt humiliated and hurt. For many, Mikyas v. Belgium might be one more headscarf case, but for many others, this case represents their daily struggle, also in Belgium. In the past decade, I have met many of them and I have heard this concern about the universality of human rights many times. The Court, however, manifestly fails to recognize their struggle.

When expressing my disappointment with this decision to colleagues, I received the question whether I expected anything else than the European Court of Human Rights not finding a violation in this case.  Frankly, in light of the Court’s track record of decisions in education cases, I did not. However, in the past years, I noticed a trend in the Court’s reasoning where although the outcome was not always in favor of the applicant, at least, the Court recognized the applicants’ arguments, concerns and viewpoints. This is what is considered to be procedural justice, next to substantive justice. In short, procedural justice refers to the principle that not only the outcome in a case is important, but also the way this outcome is reached. According to Tom Tyler, this principle entails that, in dealing with a case, judges should take the viewpoint of the applicants into account, treat them with respect, be neutral and trustworthy. One example of a case where procedural justice was, in my opinion taken into account, is S.A.S. v. France, on which I commented here and here. Although that judgment was problematic in many ways, it was somehow also a victory for the recognition of minority voices including a recognition of the Islamophobic context in Europe. The Court, however, manifestly failed to recognize this context in the case of Mikyas in different ways.

Without entering in the endless debate on neutrality which could use an entire separate post, I will discuss some aspects of the decision which are problematic from the perspective of the applicants. 

A manifestly one-sided decision

The so-called freedom to attend another school

A striking paragraph in the reasoning is where the Court observers that

Basically, what the Court is saying here is that the applicants freely chose the school and freely chose to be submitted to the rules. Indirectly the Court is saying that they are free to choose another school. As we mentioned in our third party intervention in the case, the majority of the schools in Flanders are banning religious dress and the headscarf in particular. This was confirmed by a recent study we have conducted in which we observed that indeed the majority of secondary schools in Flanders ban the wearing of the headscarf, although this is not always explicitly stipulated in the school regulation. Of the 134 schools (situated in major Flemish cities) that responded to our interviews, 81,29% (113 schools), clearly stated that they prohibit the wearing of the headscarf and only 17,14% (24 schools) who responded to our inquiries, stated that in their school the wearing of the headscarf is allowed.[1] The options to attend other schools are therefore limited for the applicants. This does not only apply to public schools such as the school Mikyas attended, but also private schools, most of which are catholic schools. In recent years, though, the director of the network of Catholic schools openly voiced his opposition towards headscarf bans. However, he clarified that if headscarf bans would be abolished in the Catholic schools, this needs to happen at the same time in all school networks, ‘otherwise it would create a “suction effect” to the schools that allow the headscarf’. Hence, in practice, the ban still exists in the majority of schools.

This reasoning of the Court, the freedom to choose another school, reminds of the ‘freedom to resign’ line of reasoning, which the Court stepped away from after the judgment Eweida a.o. v. UK. Indeed for many years, the (at that time) European Commission of Human Rights stated in several cases that applicants were free to resign if they were not able to exercise their freedom of religion at work (e.g. Konttinen v. Finland and Stedman v. the UK). In Eweida a.o. v. UK, however, the Court stated that:

The fact that the options for the applicants to find another school without a ban were limited, if not almost impossible, was however not taken into account by the Court. Stating that attending a school banning the headscarf is a matter of choice is therefore incorrect and insensitive, to say the least, which is problematic from a procedural justice perspective.

The protection of the rights of others

The main aim invoked by the school network is to protect the rights and freedoms of others, in particular by avoiding pressure and proselytism. In this regard the Court states:

Contrary to the Belgian Council of State and the UN Human Rights Committee, the European Court of Human Rights does not find it necessary that proof is provided of a problematic situation in the school, before interfering with pupils’ fundamental rights. Although pressure on others is used as a main argument for introducing a ban, no proof of pressure on other pupils needs to be shown. From a fundamental rights perspective, this is unthinkable if other human rights would be involved. This line of reasoning does not balance the different interests and rights at stake in a proportionality analysis, but just accepts the invoked legitimate aim as being sufficient to legitimize the interference with the applicants’ rights, all the while granting a wide margin of appreciation to the state. This is highly problematic, not only from the perspective of the applicants who’s perspective is, as a result, not taken into account, but also from the perspective of applying the fundamental right to freedom of religion which is being hollowed out in this way.  

Furthermore, the Court contrasts the position of teachers as opposed to pupils and observes that

Not only is it contradictory that compared to the teachers for whom the Court considers a ban to be self-evident, the Court still chooses to apply a ban to students as well, with reference to ‘a greater degree of vulnerability’. The Court negates as such the possibility of self-determination by the students. It does this with respect to both the ones who wish to wear religious dress and those who are confronted with teenage students who wear religious dress. Ironically, this line of reasoning speaks only of protecting the rights of others, but does not protect the rights of those applicants who address the Court because they want their fundamental human rights protected. The perspective of the applicants is again not taken into account, while the rights of ‘others’ are.

A blind eye to the daily lives of Muslim women

The fact that the Court denies the societal context in which Muslim girls and women are disproportionately affected by such bans is also problematic. As put forward in our third party intervention, the school context is only one, and maybe the first context where Muslim girls are confronted with limitations in their daily life. After leaving secondary school, they might be confronted with difficulties finding internship places and work opportunities or they might just be discriminated against when they want to participate in sports activities or want to enjoy a nice meal in a restaurant. When the Court states that all the religious signs are prohibited and not only the headscarf (para. 71), or that ‘[i]n any case, it has not been established that the disputed ban was inspired by any form of hostility towards people of the Muslim faith’(para. 75), this entails an entire denial of the context in which Muslim girls and women need to navigate their daily lives. In fact, our research reveals the contrary. Of the 113 Flemish secondary schools who responded to our phone calls and who prohibit the wearing of the headscarf, a majority of them (61 of the 113) stated that they do allow the wearing of crosses, although they prohibit other religious signs such as the headscarf. Although 48 of these schools are Catholic schools, the remaining 13 are public schools. During the interviews, this difference in treatment was often justified by the respondent as ‘they are not visible’, ‘they don’t have a religious meaning’, a combination of both or no motivation as to why crosses are allowed. Interestingly one respondent stated that their school only prohibits the headscarf but allows other religious signs. One school even stated that ‘A visible cross or yarmulke is no problem, in fact everything is allowed except the headscarf’. Denying the Islamophobic context and the fact that the bans and the debates on banning religious signs specifically target Muslim women who wear the headscarf is again a manifest failure of the Court to acknowledge the daily context in which the applicants live.

A decision that should manifestly have been a judgment

Although the points made in the previous section concern substantive parts of the Court’s reasoning, several questions remain unanswered with regard to the procedural aspect of this decision: why is this case decided upon in a decision and not in a judgment? How can it be that the Court barely conducts a proportionality analysis and still decides that a case is manifestly ill-founded? The case was not decided upon anonymously, but by a majority. How many judges dissented? What were their arguments? What would the Grand Chamber decide if the applicants would like to bring further the case? We will never know. Because the Court decided to take over the arguments of the state/school network and to ignore the complaints and the rights of the applicants. How do you explain this to the applicants or to students who, in less than two months, will stand again before the gates of their school and know that they have no choice but to comply with whatever rule is imposed on them? How do you explain to them that the Court is there to protect their rights as well and not only ‘les droits de l’homme blanc’? I can only wish that the judges of the Court have a manifestly clear answer to that question.

[1] Saïla Ouald-Chaib, Corinne Torrekens, Neira Sabanovic, Mohamed Rahal, Raoul Rombouts, and Alice Rouckhout ‘Discrimination through headscarf bans against Muslim Women in Belgian Education’, 2022, unpublished report. (Available with the author)