Skullcap in the Courtroom: A rare case of mandatory accommodation of Islamic religious practice

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. Continue reading

New publication: Procedural Review in European Fundamental Rights Cases

I am happy to present a new book, Procedural Review in European Fundamental Rights Cases, which is a joint edition of prof Janneke Gerards (Utrecht University) and myself. It originated in an expert seminar we hosted jointly at Ghent University in 2015. We will be addressing this topic also in a panel at the next ICON-S conference in Copenhagen.

This is the abstract and table of contents: Continue reading

Trivializing anti-personnel mines and ignoring childness: Sarıhan v Turkey

In an astonishingly laconic judgment (available only in French), the Court found no violation in the case of a 12-year old who was wounded by an anti-personnel mine while herding his sheep.

Facts and Ruling

The facts in this case date back to the summer of 2003, in a Kurdish village in East Turkey, not far from the borders with Armenia and Iran. 12-year old Erkan Sarıhan was herding his sheep in a minefield, situated at 150 metres from his village. He was playing with an anti-personnel mine when it exploded, causing severe injuries to his face, hands and chest. The minefield, which belonged to an army post situated 200 metres further, was surrounded with barbed wire and warning signs. There was also a watch post manned by two soldiers, who however did not have a view of the entire terrain and as a result had not seen the child enter. The inquiry into the accident showed that through the village mayor, the inhabitants of the village had regularly been warned about the dangers of the minefield. The report concluded that the child’s parents were responsible for the accident. It also held that it was necessary, in order to prevent similar accidents, to move the watch post so that it would overview the entire terrain, and to install specific warning signs for illiterate persons.

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ECJ headscarf series (5): The Field in which Achbita will Land – A Brief Sketch of Headscarf Persecution in Belgium

By Eva Brems

What is at Stake? The Hijab Wearer as an Outlaw

The corporate anti-headscarf policy that is challenged in the Achbita case has to be situated in the context of a country that has seen headscarf bans expand like an oil stain from one sector to the next. This results in a situation which can, without exaggeration, be termed ‘headscarf persecution’. Bans that affect mainly the Muslim headscarf are popping up in all sorts of environments, to the effect that the headscarf itself is de-normalized and is almost automatically problematized. In any context whatsoever, a real risk exists that someone will question whether the headscarf can be allowed, and a real risk exists that the answer to such a question will be negative. As a result, Muslim women who wear a headscarf in Belgium gradually become outlaws.

Belgian courts do not necessarily protect against headscarf-based discrimination, and when they do, their judgments have more than once remained without implementation. The stakes of Achbita for hijab wearers in Belgium are clear: can the expansion of the oil stain be stopped or not? Is there or is there not a limit to the activities or places from which headscarf wearers can be excluded, and to the grounds that can be invoked in support of such exclusion?

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Headscarves in Luxembourg – A blog series on the contrasting Opinions of AG Kokott and AG Sharpston

By Eva Brems

The Kokott-Sharpston Standoff at the Threshold to the Summer of Shame

In France and Belgium, the summer of 2016 will be remembered as the summer of the burkini debates. Numerous French municipalities banned Islamic swimgear that covers the body, and in Belgium, majority politicians called for a similar ‘burkini’ ban. The world watched with disbelief as French police chased Muslim women wearing body-covering swimwear from public beaches, or even forced them to undress in public. After the Council of State suspended such a measure in one municipality, the French Prime Minister did not hesitate to publicly criticise the highest administrative court. For those committed to combating minority discrimination, this debate was a turning point, as many proponents of a ban no longer bothered to dress it up as a measure protecting values such as neutrality, the protection of vulnerable people, gender equality or even the notoriously vague concept of ‘living together’. Many of the participants in the burkini debates felt no longer inhibited from publicly saying what it was really about for them: a dislike of Islam, and the desire not to be confronted with it. For Muslim women in both countries, this honesty about the underlying motives is probably all that distinguishes burkini bans from the bans on other types of female Islamic dress (mainly hijab and niqab bans) that they have been confronted with for decades. Yet for many observers who may not have reacted to such previous bans, the French burkini campaign was a step too far. The need for clear limits to admissible restrictions on Islamic dress has thus become keenly felt.

Shortly before the burkini row kicked off, two Advocate Generals of the European Court of Justice issued their opinions in two parallel cases of alleged headscarf discrimination. Both a Belgian and a French court asked the ECJ for guidance, through a preliminary ruling, on whether the dismissal of an employee by a private employer on grounds of her wearing an Islamic headscarf, against the employer’s dress policy, violates EU antidiscrimination law. The Opinions of AG Kokott in the Achbita case and of AG Sharpston in the Bougnaoui case reach opposite conclusions: for Kokott, there is no discrimination, for Sharpston there is. Underlying the difference in outcomes are numerous important differences in the interpretation of the Employment Equality Directive. These differences of interpretation, in turn, betray widely divergent views on the protection of the fundamental rights of minorities in Europe.

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Sakir v Greece: Racist violence against an undocumented migrant

By Eva Brems

In a recent case, the Court found a violation of article 3 ECHR on account of the defective investigation into a serious incident of racist violence that occurred in Athens in 2009. In addition, the detention conditions imposed upon the victim (sic!) also violated article 3. The judgment explicitly recognizes the structural character of the problem of racist violence in Athens and expects the Greek authorities to do the same. However, when it comes to structural solutions, an obvious one is overlooked.

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Face veils in Strasbourg (bis): the Belgian cases

By Eva Brems

In the Grand Chamber judgment of SAS v France (2014) the European Court of Human Rights held that France’s ban on face covering in public could be justified under article 9 ECHR as a proportionate measure for the aim of guaranteeing ‘le vivre ensemble’ (living together). Given the storm of protest that this judgment raised among human rights scholars and activists, it may be of interest to note that the second section of the Court recently communicated two applications against the Belgian face covering ban. Indeed, about one year after France adopted its ban, Belgium did the same. Belgium and France are the only two countries that have adopted a general ban on face covering in public (local or regional bans exist in the Netherlands, Spain, Italy and Switzerland). In Belgium, the nationwide ban was preceded by municipal bans, that continue to be enforced alongside the criminal ban.

While it is unlikely that the Court would overrule a recent and unanimous Grand Chamber judgment, it is not excluded that it might take this opportunity to explain and possibly nuance some of the statements it made in SAS.

The Human Rights Centre of Ghent University submitted a third party intervention in one of the Belgian cases.

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Ebrahimian v France: headscarf ban upheld for entire public sector

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. Continue reading

Moving away from N v UK – Interesting tracks in a dissenting opinion (Tatar v Switzerland)

By Eva Brems

The Court’s case law on the expulsion of very ill persons to their country of origin bothers many. The standard  of ‘very exceptional circumstances’ set in N v United Kingdom (2008) is so high that no applicant to date has passed it. The only individual who has won a case of this type is the applicant in D v United Kingdom in 1997, who was in the final stages of a terminal illness and had no prospect of medical care or family support on expulsion to his home country. As was noted by a recent blogger, many people, both inside the Court and among academic commentators, are of the opinion that this standard should be adjusted.   Continue reading

S.A.S. v. France as a problematic precedent

As this blog already features an excellent post on SAS v France, this is a brief contribution, with a specific focus, namely SAS v France as a problematic precedent beyond the issue of the face veil and even beyond religious freedom cases. I shall focus on two problematic aspects of the judgment: its acceptance of the promotion of ‘living together’ as a legitimate ground for the restriction of fundamental rights, coupled with a wide margin of appreciation; and the way it assesses the seriousness of the interference. Continue reading

Thank you, Justice Tulkens: A comment on the dissent in N v UK

According to HUDOC, Judge Tulkens sat on the panel of 1843 ECtHR judgments, amongst which 217 Grand Chamber judgments. The same source lists as her oldest judgment the article 6 case of Van Pelt v. France on 23 May 2000. As HUDOC – however wonderful – has its imperfections, we cannot know  for certain whether this was actually her first judgment. Yet it would be suitable if it were so, as this judgment already has a (partly) dissenting opinion by Françoise Tulkens, written jointly with Sir Nicolas Bratza. Contrary to the majority, they thought that a violation of the reasonable term requirement should have been found.  So for those who were wondering: yes, she has been this formidable judge from the very beginning: never just following the flow of the majority opinion (whether the majority in the Court or that in society), always checking the case at hand against the fundamentals of what human rights protection is supposed to be about: justice, equality, freedom.  That is why many of us – who consider it our jobs to critically scrutinize the Court’s work for sloppiness on those same fundamentals – so often find ourselves agreeing with her separate opinions.

For this blogging tribute, I chose to discuss a case in which the fundamentals of human rights protection are a lot more prominent than in the above-mentioned reasonable term judgment. It is the Grand Chamber case of N v UK of 27 May 2008, in which the 9 page-long reasoning of the majority is followed by a 12 page dissent, co-authored by Judges Tulkens, Bonello and Spielmann.

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‘Not a violation, because it works’ – A dangerous line of reasoning in Colon v. the Netherlands (adm.)

Can efficiency for the realization of a public good justify a rights-restrictive measure? Of course not. Human rights protect not only from governments or individuals with bad intentions, they also foreclose certain courses of action for the well-intended.  That torture works to elicit confessions, is an argument often made by  those who practice it, yet which the human rights community has rightly set aside as irrelevant . That the death penalty works against recidivism is clear yet also irrelevant. This is not because the goals –respectively making suspects confess to any crimes they may have committed  and preventing recidivism – are not considered very important, but because these goals can and therefore must be pursued through other means.

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Belgium votes ‘burqa’ ban

Today, the Belgian Chamber of Representatives voted a ‘burqa ban’. It did the same thing a year ago, but the unexpected fall of the government prevented the law from entering into force then, as the bill had been evoked by the Senate. This time, it is for real.

The text introduces in the criminal code a new provision, article 563bis, creating a new offence:

“Will be punished with a fine of 15 to 25 Euro and/or detention of 1 to 7 days, those who, except for contrary legal provisions, are present in places that are accessible to the public with their faces completely or partially covered or hidden, such as not to be recognizable.”

Exceptions are added for workplace regulations and police regulations regarding festivities.

The fines in the criminal code currently have to be multiplied by a factor that is currently 5,5, hence the maximum fine is 137,5 Euro.

I am a member of the Belgian Chamber of Representatives and the only Deputy (out of 150)  to vote against the bill (2 Deputies abstained).

While for all government-initiated bills the advice of the legislative section of the Council of State (regarding amongst others the conformity with the Constitution and international law) is mandatory, this is optional for bills tabled by members of parliament; the request for a referral to the Council of State was rejected by all but one parliamentary group (note: in France, the Council of State issued a very critical advice on the ‘burqa ban’)

Similarly, a request by Amnesty International and two women’s rights organizations to organize hearings with civil society, obtained the support of only one group.

It is to be expected that the law will be challenged before Belgium’s Constitutional Court.

For an analysis of the ban from an ECHR perspective, see the previous post “Would a Niqab and Burqa ban pass the Strasbourg test?” written by my research team members Lourdes, Stijn and Saïla.

Forced exposure to passive smoking violates human rights

Does exposure to smoking by other people violate human rights? This is a question that merits serious consideration. One context in which it has been raised is smoking in the presence of children (see the campaign of the Flemish Anti-Cancer League on this subject, with a link to my presentation on the subject). This raises obvious issues with respect to children’s right to health. I have argued that we might even consider smoking in front of children as a ‘harmful cultural practice’ from the perspective of children’s health, obliging states to take steps (for example through awareness raising) towards its abolition.

The right to health of course does not figure in the European Convention on Human Rights. Yet health-related issues may be addressed in the context of other provisions, in particular articles 3 and 8. In the recent case of Florea v Romania the European Court suggests that forced exposure to passive smoking violates article 3.

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‘Strong women don’t need asylum’ (the European Court on FGM)

Summertime in rainy Belgium! Relaxed after a sunny family holiday abroad, with no lectures or meetings on the agenda, I finally find some time to write a blog entry.  Only to realize that it is August, and that the judges at the European Court of Human Rights are also entitled to their holidays.  This means: no new cases. And among the nearly 200 judgments the Court delivered in July, the other Strasbourg Observers bloggers have already discussed the most interesting ones.

That is why I take the liberty to discuss a 2007 case. I happened to be going through all article 3 cases since 2005, for the update of an ECHR Commentary .

By the way, this is not a an exercise I recommend to anyone. The article 3 case law, especially on prison conditions, is a true cabinet of horrors. It makes one despair of whether there might ever be something like ‘European civilization’. ..

Anyway, I came across the inadmissibility decision in the case of Collins and Akaziebie v. Sweden, which I had never thoroughly read before. Continue reading

Admitting a wrong to avoid having to repair it? (That’s not how it works, says the Court in Hakimi v. Belgium)

Obviously, all governments hate it  when an important criminal who after a long investigation and trial has been convicted, finds a violation of his article 6 rights that necessitates a retrial. The Belgian government thought they had found a way around this, but it didn’t work. Continue reading

Zubczewski v Sweden: margin of appreciation as a blank check

An observer of the Strasbourg case-law should always remember to include the inadmissibility decisions in her research. The changes in the Court’s procedures, introducing committees of three judges and judges sitting alone, have made this more difficult (those decisions are not on HUDOC), yet at the same time have resulted in a situation in which the inadmissibility decisions that figure on HUDOC are already a selection, since the most interesting ones are still likely to be dealt with by a chamber of seven. Inadmissibility decisions can be frustrating , because the Court’s reasoning in such cases tends to be quite succinct. This is particularly the case if you do not agree with the Court’s finding that a case is ‘manifestly ill-founded’.

This was my experience recently with the case of Zubczewski v Sweden. As a result of his marriage at the age of 63, this gentleman found his pension reduced with approximately 50 Euros per month. The reasoning behind this is the idea that persons who live together have lower expenses per head than persons living alone. Yet as Zubczewski’s wife did not have any income, this reasoning did not apply to his case. Total expenses of the household had increased while the pension had decreased. He claimed that the lack of an exception for his situation was discriminatory.

I do not spontaneously sympathize with men who invoke the economic dependency of their wives as a source of discrimination. Yet the Court’s reasoning in this case left me unsatisfied.

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