December 03, 2024
by Timothy Roes
It was supposed to be a welcome clarification on religious neutrality in public spaces. Instead, the application by two Muslim women banned from wearing full body swimwear in a public swimming pool was declared inadmissible, calling into question longstanding wisdom and causing considerable uncertainty.
Departing from well-established case law on Article 35 § 1 of the Convention, the Court, in Missaoui and Akhandaf v Belgium, held that the Belgian applicants had not exhausted all national remedies by forgoing an appeal limited to points of law at the Belgian Court of Cassation after a negative opinion from a lawyer at the Court of Cassation.
Although the Court spends considerable energy justifying this decision as a continuation of earlier case law, the bewilderment among Belgian and French lawyers is indicative of a marked caesura. Quite rightly so. Before this decision, a negative opinion all but guaranteed that a Belgian application would clear the Article 35 § 1 hurdle. For the moment, following this decision, only a judgment by the Court of Cassation will offer similar reassurance.
Although the Court did not reach the merits, one would be remiss for skimming over the facts of the case for they may help to explain why the Court chose this case to abandon its relaxed interpretation of Article 35 § 1 in the Belgian context – as we will discuss further below.
The application was brought by two women who, in the winter of 2017, were refused access to an indoor public swimming pool for wanting to wear full coverage swimming gear (‘burkini’). The public swimming pool, which is run by the City of Antwerp, referred to the local police code to justify a prohibition on this type of swimming gear. Said police code generally requires all bathers, in the interest of ‘water quality standards as well as bathers’ safety’, to wear ‘snug-fitting clothing made specifically of cloth designed for swimming’ and specifies that women must wear ‘a bathing suit or bikini’ (see Article 416, § 1, in Dutch).
The lower courts in Antwerp upheld what has since become known as the ‘burkini ban’.
Although city officials have publicly declared that the measure aims to prohibit full body swimming gear mainly because it is the product of oppressive religious views, the national courts deemed the measure justified to ensure public safety and hygiene. Newspapers have reported that the women purported to wear loosely fitting, layered clothing with a headscarf made from regular fabric sown on to it. According to the Court of First Instance as well as the Court of Appeals, the City could reasonably consider that such clothing represented a safety risk, since it could get stuck under water or render rescue more difficult.
After the judgment of the Antwerp Court of Appeal of 23 November 2020, the applicants decided not to pursue an appeal limited to points of law at the Court of Cassation, Belgium’s highest court. In civil matters, such an appeal may only be lodged by a specialized avocat à la Cour de Cassation or cassation lawyer for short (Article 478 of the Judiciary Code). Having sought the advice of one such lawyer on the viability of a cassation appeal, the applicants obtained a twelve-page legal opinion counselling against it. Based on the Court’s prior case law, the applicants assumed that this negative opinion was sufficient to clear the Article 35 § 1 hurdle.
To their surprise, the Belgian government argued that the application had to be declared inadmissible for failure to exhaust domestic remedies: the applicants should have lodged an appeal to the court of cassation. The Belgian government emphasized that the Court of Cassation had never had the opportunity to pronounce itself on the issue, even though the lower courts seemed to be divided on the matter. Moreover, the applicants were not bound by the (negative) opinion of a cassation lawyer. Indeed, not only could they have insisted that the lawyer lodge an appeal anyway, they could also have sought the opinion of another lawyer. Finally, the Belgian government distinguished the case from Chapman v Belgium, where the Court had clearly accepted a similar negative opinion as sufficient, by pointing out that the defendant had not raised a plea of inadmissibility in that case.
From their side, the applicants argued that the negative opinion proved conclusively that an appeal to the Court of Cassation was bound to fail, in which case the Court typically accepted that the applicant has done everything that could be reasonably be expected of him to exhaust domestic remedies. Requiring further proof from an applicant would be tantamount to undermining the special role that cassation lawyers fulfil as a filtering mechanism. Finally, the applicants distinguished their case from Van Oosterwijck v Belgium, based on the fact that they had obtained the negative opinion in good time, that is, well before the time limit for bringing a cassation appeal ended.
The Court set out by recalling that its case law requires that the national courts have pronounced themselves on the asserted violations – a requirement stemming from the subsidiary nature of the Court’s review (§ 40).
Turning subsequently to the burden of proof the Court remarks that it is up to the defendant who raises the plea of inadmissibility to demonstrate that a domestic remedy was available and would have been effective under the circumstances. Yet, once that threshold has been crossed, it is up to the applicant to prove that it has made use of that remedy or, when he has not, that this remedy would not have been adequate or effective under the circumstances (§ 41). Therefore, the Court forewarns, merely raising doubts on the viability of a remedy is not sufficient. The applicant must conclusively show, notably through national case law, that an appeal is bound to fail (§ 42).
Prior to applying these principles to the case at hand, the Court insists on clarifying its Article 35 § 1 case law when the applicant foregoes an appeal at the Court of Cassation after a negative opinion by a cassation lawyer (§§ 43-44).
In Van Oosterwijck, the negative opinions were not sufficient to cross the Article 35 § 1 threshold because (1) they had not been obtained in good time, rendering a cassation appeal impossible and (2) they had not examined the issue from all angles, including the Convention. Additionally (3) the Court of Cassation had not pronounced itself on the legal issue at hand and therefore there was no case law that the applicant could rely on to demonstrate that a cassation appeal was bound to fail.
In Chapman, by contrast, the (1) negative opinion had been obtained in good time and (2) contained an examination in light of the Convention, observing that lower court judgments correctly applying the Convention were not annulled in cassation. For these reasons the applicant had done everything that could reasonably be expected of him to exhaust domestic remedies. Moreover, (3) the defendant, i.e. the Belgian government, had not raised a plea of inadmissibility in that case.
Turning then to the case at hand, the Court starts off by emphasising that, unlike in Chapman and many other cases against Belgium, the Belgian government did raise a plea of inadmissibility here (§§ 46-48). In the absence of such a plea, the Court deems that it lacks the power to raise the failure to exhaust domestic remedies of its own motion and presumes the defendant to renounce the argument. Here, however, the Belgian government argued that the applicant could and should have sought a second opinion. If that were negative also, he could have insisted to the cassation lawyer that the appeal be brought ‘on the applicant’s request’ (‘sur réquisition’).
Whether a negative opinion by a cassation lawyer suffices to exhaust domestic remedies must be decided starting from the established principle that the Belgian cassation appeal is part of the domestic remedies that must be exhausted before the Court may exercise its subsidiary role – a point the Court supports with a reference to the judgment in Van Oosterwijck and a decision in Jans v Belgium.
While the Court appreciates that the Belgian cassation lawyer has a role in filtering applications to the Court of Cassation, his legal opinion cannot be equated to the decision of a court or tribunal (§ 53). Following the arguments of the Belgian government, the Court confirms that a negative opinion by a cassation lawyer does not automatically establish that a cassation appeal is bound to fail. To determine whether a cassation appeal is bound to fail with regard to the pleas based on the Convention, the regard must be had to the “content” of the cassation lawyer’s opinion, as well as to “the object of the legal question at hand, taking into account the context in which it is raised” (§ 53).
The Court rules that, in the case at hand, neither the negative opinion nor the applicants themselves demonstrate, based on national case law or other elements, that a cassation appeal was bound to fail. An important factor in that regard is the fact that the Court of Cassation has never pronounced itself on the wearing of the burkini in a public swimming pool, either in light of the Convention or analogous national or international norms. What is more, lower national courts appear to be divided on the issue, since the Ghent Court of Appeals has ruled, in 2021, that a provision prohibiting the wearing of the burkini was discriminatory on the basis of religion.
This decision causes considerable uncertainty about the admissibility of pending and future applications originating in Belgium. Prior to this decision, it was generally accepted that the exhaustion of domestic remedies required, as a baseline, that a Belgian applicant had obtained a negative opinion from a cassation lawyer in good time and that the violation of the Convention (or analogous rights) had been raised in national court. The negative opinion was seen as conclusive proof that lodging a cassation appeal was bound to fail.
This decision heralds a stricter approach. While it always fell to the applicant to demonstrate that lodging a cassation appeal would have been futile, a negative opinion of a cassation lawyer now is no longer conclusive. The Court will have to examine its content, though it gives little guidance on the criteria that it will apply (§ 53). It appears to be important that the opinion discusses the Court of Cassation’s stance on the violation of the relevant Convention rights. If the Court of Cassation has never pronounced itself on the issue, the admissibility of the application is particularly unlikely.
The upshot is that, with the likely exception of issues on which a clear line of case law by the Court of Cassation exists, a diligent lawyer will have to advise his client to lodge a cassation appeal over and against the misgivings of one or more (see §§ 56-57) cassation lawyers. In the fairly common scenario in which the Court of Cassation has not yet pronounced itself on the substantive issue yet and the cassation lawyer indicates that the case escapes that court’s jurisdiction because the judgment under appeal is couched as a factual assessment, the applicant must go through the effort of bringing the appeal anyway.
For this reason, there is no doubt that this change in the Court’s position undermines the role of the cassation lawyer as a filtering mechanism in the Belgian (and French) judicial system. Unlike in certain other Member States, a petitioner to the Belgian and French supreme court does not have to obtain leave to appeal, be it from the high court itself, like in Sweden, or from the lower court whose decision is being challenged, like in the United Kingdom. Yet, in practice, the preliminary opinion of the cassation lawyer performs a similar function in that it weeds out potential petitions that have little chance of success.
This filtering mechanism requires, of course, that potential litigants abstain from a cassation appeal when faced with a negative opinion. In Chapman v Belgium (§ 33), the Court still acknowledged this ‘preventive role’ of the cassation lawyer and cited with approval the Constitutional Court’s view that this role was ‘in the interest both of that court and of the potential litigants’. But the Court did more than paying lip service. By recognising the authority of the cassation lawyer’s opinions, litigants could safely adhere to them without jeopardising a subsequent application to the Strasbourg Court. Now that this is no longer guaranteed, the Court of Cassation will likely have to brace itself for a significant increase in its case load.
What motivated this momentous shift? Clearly the shift was prepared over a longer period, because there were warning signs. In Mikyas and Others v Belgium (2024), which also concerned the prohibition of religious symbols in public spaces, the Belgian government had similarly raised the inadmissibility of the case based on the failure to exhaust local remedies. In that case, the Court conspicuously declined to say whether the negative opinion on which the applicants relied was sufficient to dispel any concerns arising from Article 35 § 1. Because it ultimately decided that the case was inadmissible due to being manifestly ill-founded, the Court could avoid answering that question. Considering the present decision, the refusal to confirm the governing understanding of Chapman v Belgium now makes sense.
As far as the Court’s motivation goes, the subsidiary nature of the Convention machinery looms large in the decision. As Andreas von Staden has written, the requirement to exhaust local remedies expresses not only the duty of domestic institutions to try to remedy alleged violations, but also their right to do so in accordance with their domestic arrangements (ICON (2012), 1036).
By itself, this reference to subsidiarity is nothing new in cases involving the exhaustion of domestic remedies. The Court has said before that national courts should initially have the opportunity to decide on the compatibility of domestic law with the Convention but also that it should have ‘the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries’ (see e.g. Perelman v Germany, § 20). Given the sensitivity of the legal question that was presented to the Court, it was perhaps primarily this last sentiment that prevailed here.
Indeed, behind the abstract subsidiarity language may well loom a growing unwillingness to allow the Court of Cassation to outsource controversial questions to Strasbourg. The public display of religious symbols, notably those demonstrating adherence to the Islamic faith, is a highly contentious subject in Belgian society. It has repeatedly led government officials openly to disregard court decisions. Deciding such cases is challenging for a court’s legitimacy and so delegating the decision to avoid, shift or obfuscate blame is an attractive strategy for national courts. The present decision, much like the CJEU’s decision in OP v Commune d’Ans, suggests that international courts are loath to play along.
For Belgian applications, the decision in Missaoui and Akhandaf v Belgium brings a major change in the way in which the exhaustion of domestic remedies requirement of Article 35 §1 is applied. Only in exceptional cases will the applicant be able to meet that requirement only by relying on a negative opinion of a lawyer at the Court of Cassation. For pending cases, it may be wise to supplement the case file with a brief providing additional reasons why a cassation appeal was bound to fail.
This shift in the case law appears to be motivated by a concern for subsidiarity. Politically sensitive decisions such as the wearing of religious symbols in public spaces, ought not to be outsourced to the Strasbourg court but deserve to be treated first by the State’s highest court. The present decision will likely lead to a significant decrease in the Court’s case load but ironically achieves this by radically undermining a longstanding domestic procedural arrangement, namely the filtering role of the cassation lawyer.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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