Author: Saïla Ouald Chaib

Blog Symposium “Strasbourg Observers turn ten” (6): S.A.S. v. France: an ongoing learning experience

Saïla Ouald Chaib Anniversary Symposium, S.A.S. v. France

In February, not long before we all went in lockdown, I attended an event with civil society organisations in Brussels concerning litigation and advocacy strategies. One of the organizers approached me as she recognized my name from the Strasbourg Observers blog and she explained how the series we published on the case of S.A.S. v. France helped her to understand the case more deeply. Little did my colleagues and I realize, I thought, how broad our readership would become, when we enthusiastically founded the Strasbourg Observers blog 10 years ago. A readership, which includes scholars, practitioners and civil society organisations. I am very grateful for that and for the work of my colleagues who are keeping the blog going these days.

Not long after that encounter, I was asked by my colleague Claire Poppelwell to write a reflection on the post I co-authored with dr. Lourdes Peroni on the S.A.S. case back in 2014. This commitment took me on a trip down memory lane Continue reading →

Škorjanec v Croatia: victims of racist hate-crime “by association” protected by ECHR

Saïla Ouald Chaib Prohibition of Degrading Treatment, Prohibition of Discrimination, Racism

When criminal offences are committed out of hate towards people with a particular skin color, gender, religion, sexual orientation, etc; this hate component is often considered to be an aggravating factor leading to a higher penalization of the crime. The primary victims of these hate crimes are the people who actually possess one those characteristics. Hate however often extends to people who do not have any connections with these characteristics, but who are perceived as belonging to a group having these characteristics. An example is Sikhs who are perceived as Muslims and as a consequence have been victim to islamophobia. A third group of potential victims of hate crimes are people who are associated or affiliated with others who actually or presumably possess (one of) these characteristics. This could for example be through family ties, friendship, membership to some organisations etc. In the case of Skorjanec v. Croatia, the European Court of Human Rights is confronted with this last category of hate crimes This case concerns in particular a possible racist hate crime by association.     Continue reading →

European Court of Justice keeps the door to religious discrimination in the private workplace opened. The European Court of Human Rights could close it.

Saïla Ouald Chaib Business and human rights, Case C-157/15 (CJEU), Case C-188/15 (CJEU), European Court of Human Rights, Eweida and Others v. the United Kingdom, Freedom of Religion, Prohibition of Discrimination, Uncategorized

By Saïla Ouald-Chaib and Valeska David

On 14 March 2017, the European Court of Justice issued two judgments, in the cases of Achbita and Bougnaoui concerning the manifestation of beliefs in the private workplace. From the perspective of inclusion and human rights law, the judgments are very disappointing. They basically legitimize and even provide a recipe for discrimination of employees on the basis of their religious or other convictions. Continue reading →

ECJ headscarf series (6): The vicious circle of prejudices against Muslim women

Saïla Ouald Chaib Case C-157/15 (CJEU), Case C-188/15 (CJEU), Freedom of Religion

By Saïla Ouald Chaib

The day the opinion of Advocate General Kokott in the case of Achbita v. G4S came out, my phone did not stop ringing. The press wanted to know if this opinion really meant that employers could refuse to hire women wearing a hijab. The fact that even journalists sounded surprised speaks for itself. Friends and organizations called me to know my view as a lawyer about this development in the case-law. “How can this be justified from a human rights perspective?” “What can we do to stop this?” And also: “how will I ever find a job if even a European Court backs this kind of discrimination?” These are only a few of the questions I received.

There are many aspects of these opinions that I would like to discuss. However, in light of the previous blog posts in this series, in which a technical legal analysis has already been undertaken from different angles, I will, within the limits of a short post, focus on one particular aspect, namely the perspective of the applicants and with them that of many other Muslim women, in particular in Belgium where the facts of the case of Achbita took place and where our Human Rights Centre is also based. Indeed, in complement to a strictly legal debate, it is important to understand the situation on the ground. This post should therefore be read as a companion piece to the previous post in this series written by Eva Brems, in which she gave an overview of the limiting regulations affecting Muslim women in Belgium.

Continue reading →

Research methodology for case law analysis: An appeal for openness

Saïla Ouald Chaib Uncategorized

By Saïla Ouald Chaib

The enrolment as a PhD student does not come with a handbook. Consequently, you are somewhat forced from the start to reflect not only about the research subject, but also on the methodology you will use. In my case indeed, I spent some time not only doing research on the substantive part of my dissertation topic, but also doing research on doing research. My dissertation focused on the right to freedom of religion in the jurisprudence of the Strasbourg Court and case law analysis occupied therefore a central position in my work. Very soon I was confronted with a lot of questions. Do I first dive into the literature on the subject or do I first analyse the case law? Which cases should I read and how many? How should I approach the case law? This blogpost does not intend to draw a roadmap of how to conduct case law analysis. In fact, there is no such thing as one case-law analysis method. Instead, I want to share one of the ways I analysed the case-law and how methodologies from outside the legal sciences inspired me in the process. Continue reading →

Religious signs in public schools: Belgian Council of State shows judicial bravery

Saïla Ouald Chaib Freedom of Religion, Right to Education

Co-authored by Yousra Benfquih* and Saïla Ouald Chaib**

As in many other countries in Europe, the wearing of religious signs has been the topic of heated debate in Belgium. This has been the case for public servants, teachers, employees in private firms and the wearing of religious signs by pupils in school. It is the latter issue that was the subject of two recent judgments of the Belgian Council of State (Conseil d’Etat, Belgium’s highest administrative court), judgments that might prove to mark a watershed in the Belgian discourse on headscarf bans, freedom of religion and the right to education of pupils. (The judgments are in Dutch and can be found here and here)[1] The judgments are furthermore interesting because of their inclusive comprehension of neutrality through systematic reference to the case law of the European Court of Human Rights. This post will start by briefly shedding light on the structure of the Belgian education system and the implementation of a ban on religious signs in Flanders. We will subsequently highlight the crucial parts of the judgments of the Council of State (hereafter ‘the Council’) and conclude with some reflections.

Continue reading →

NEW BOOK: “The Experiences of Face Veil Wearers in Europe and the Law” (E. Brems ed.)

Saïla Ouald Chaib Burqa ban, S.A.S. v. France

cover book

We are happy to announce the publication of a new book entitled “The Experiences of Face Veil Wearers in Europe and the Law” edited by prof. Eva Brems and published by Cambridge University Press.

This book, unique in its kind, unites empirical research on women wearing face veils in Europe and commentary of scholars of different disciplines on this research and on face veil bans. People who have been following the case of SAS v. France, might be particularly interested in the in-depth analysis that this book provides of the empirical research several third parties referred to in the case. Continue reading →

S.A.S. v. France: Missed Opportunity to Do Full Justice to Women Wearing a Face Veil

Saïla Ouald Chaib Burqa ban, Freedom of Religion, Minority Rights, Procedural Justice, Prohibition of Discrimination, Right to Private Life, S.A.S. v. France, Stereotypes, Vulnerability, Women's Rights

By Saïla Ouald Chaib and Lourdes Peroni

This week, the Grand Chamber of the European Court of Human Rights published its long-expected judgment in S.A.S. v. France. The case concerns a ban on the wearing of face veils in the public space. Although the outcome of such highly debated cases is always unpredictable, we hoped that the Court would take this opportunity to bring procedural and substantive justice to the women wearing a face veil in Europe.[1] Alas, the Court disappointingly decided the case by granting a wide margin of appreciation to France and by consequently not finding a violation of any of the ECHR provisions invoked, in particular freedom of religion, the right to private life and non-discrimination. At the same time, however, the judgment contains some positive aspects, namely respect for several requirements of what is known as “procedural justice” and departure from previous case law portraying Muslim women as oppressed. In this post, we share our first impressions on what we think are some positive and negative aspects of the Court’s reasoning. Continue reading →

In the Footsteps of Jakóbski v. Poland but Adding Obstacles to the Road: Vartic v. Romania

Saïla Ouald Chaib Freedom of Religion, Significant disadvantage

When it comes to the accommodation of religious dietary requirements of detainees, it is clear that the European Court of Human Rights is adopting an inclusive approach. The case of Jakóbski v. Poland (2010) was considered a landmark case in this sense and the recent case of Vartic v. Romania proves that this assumption was correct. What distinguishes Vartic from Jakobski is the fact that the Court was confronted with the significant disadvantage criterion, which was introduced by protocol 14.

Continue reading →

Seminar Announcement: Normative Dimensions of Procedural Justice in Courts

Saïla Ouald Chaib Procedural Justice, Seminar

On Friday 17 January 2014, the Human Rights Centre of Ghent University organizes a seminar on normative dimensions of Procedural Justice in Courts.

In the Human Rights Centre, Prof. dr. Eva Brems and her team conducted research building on the procedural justice research of Prof. dr. Tom Tyler, applying it in a normative way to fundamental rights case-law and to the process of law-making affecting fundamental rights. This expert seminar aims at bringing together academic experts in the field of Procedural Justice as well as practitioners, i.e. judges of different courts, to reflect on this normative approach and to think about how this concept of procedural justice can be translated into practice.

A detailed program of the seminar and more practical information on the registration procedure can be found here.

 

S.A.S. v. France: A short summary of an interesting hearing

Saïla Ouald Chaib Amicus Brief, Burqa ban, Freedom of Religion, Grand Chamber, Margin of Appreciation, Minority Rights, Prohibition of Discrimination, S.A.S. v. France, Stereotypes, Vulnerability, Women's Rights

On Wednesday, our research team attended the Grand Chamber hearing at the European Court of Human Rights in the case of S.A.S. v. France, in which we submitted a third party intervention on behalf of the Ghent University Human Rights Centre. The case concerns the French law banning the face veil, a highly debated piece of legislation, which was also obvious from the amount of international press covering the hearing. I will first briefly discuss the content of our third-party intervention and then turn to a summary of the hearing which left a positive impression on us.

Continue reading →

Mann Singh wins turban case in Geneva after losing in Strasbourg

Saïla Ouald Chaib Freedom of Religion, Mann Singh v. France, Margin of Appreciation, Minority Rights, Reasonable accommodation

The name Mann Singh will probably ring a bell with those who are familiar with the case law of the European Court of Human Rights. In Mann Singh v. France (ECHR, 13/11/2008/, no 4479/07), the Strasbourg Court was confronted with the question whether the French obligation to appear bareheaded on photographs on identity documents was compatible with the rights protected by the European Convention on Human Rights. In the case discussed in this post, the same applicant is involved, however, this time he made a claim concerning the prohibition to wear a turban on the photograph on his passport (instead of his driver’s license) and more importantly, he brought his claim in front of the UN Human Rights Committee (hereafter HRC). The same applicant going with almost the same claim to different human rights bodies is quite an exceptional situation. Continue reading →

Mehmet Şentürk and Bekir Şentürk v. Turkey: The Court could have shown more empathy

Saïla Ouald Chaib Prohibition of Inhuman Treatment

Fellow observers of the Strasbourg case law will probably agree with me: when you systematically go through the Court’s case law you’re confronted with the most extraordinary facts that you would never have imagined. Horrible prison circumstances, ill-treatment and torture are sometimes described into utmost details.

One can also not remain untouched by cases concerning child abductions and other family dramas. One recent example is the sad story of the family Şentürk in the recent case of Mehmet Şentürk and Bekir Şentürk v. Turkey. The applicants respectively lost their wife and mother who died due to pregnancy complications. Mrs. Menekse Şentürk who was 8 months pregnant spent the last day of her life, the 11th of March 2000, running from one hospital to the other in search for help. Continue reading →

New Publication: “Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe”

Saïla Ouald Chaib Amicus Brief, Burqa ban, Freedom of Religion, Publication

Eva Brems and I are happy to announce the publication of our article entitled “Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe” in the Journal of Muslims in Europe. In this article we examine the bans on face veils (better known as ‘Burqa bans’) from a procedural justice perspective. This piece also gave us an excellent opportunity to reflect on how the European Court of Human Rights might deal with this matter of face veil bans in a procedurally just way.[1] One case in which the Court will have to face the issue of a face veil ban is in the case of S.A.S. v. France. The Human Rights Centre of Ghent University submitted a third party intervention in this case last year, in which we  advocated inter alia for a procedural justice approach.

The full reference of the article is Saïla Ouald Chaib and Eva Brems, “Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe”, Journal of Muslims in Europe 2 (2013), 1-26. Please find the abstract bellow.

The French and Belgian bans on face veils in public places have been subjected to strong substantive human rights critiques. This article takes a complementary approach, examining the bans from the perspective of procedural fairness.
Indeed, the French and Belgian bans are extreme examples of legislative
processes taking place above the heads of the people concerned, neglecting
the ban’s possible human rights impact. After exploring what the social
psychology notion of procedural fairness entails for the judiciary and the
legislator, especially in a multicultural context, this article details procedural fairness shortcomings with respect to the face veil ban in France and Belgium. Subsequently, the article sets out how the European Court of Human Rights might compensate for these shortcomings.

[1] For a general exploration of the concept of procedural justice in the context of the jurisprudence of the ECtHR, see also the recent publication by Eva Brems and Laurens Lavrysen: https://strasbourgobservers.com/2013/02/12/procedural-justice-in-human-rights-adjudication-the-european-court-of-human-rights/

Freedom of Religion in Public Schools: Strasbourg Court v. UN Human Rights Committee

Saïla Ouald Chaib Freedom of Religion, Margin of Appreciation, Minority Rights, Prohibition of Discrimination

In a recent decision, the Human Rights Committee of the UN found a violation of the right to freedom of religion in a case concerning the famous and highly debated French law of 2004 that prohibits the wearing of religious garment in public schools. Accordingly the UN Committee called upon France to revisit its legislation. This UN Committee’s decision is remarkable, especially since the European Court of Human Rights was also confronted with the same question —whether expulsing pupils from school because of their wearing of religious garment is violating fundamental rights such as the freedom of religion and the prohibition of discrimination—, but contrary to the UN jurisdiction, the ECtHR declared the claims manifestly ill-founded. This recent development is also relevant for the Belgian context, where the debate on headscarves in public schools has been reopened after the Flemish board of public schools announced two weeks ago that they will implement a general ban on religious “signs” for pupils and members of personnel. In this post, I will first summarize the UN decision and subsequently compare it to the Strasbourg case law.

Continue reading →

Belgian Constitutional Court says Ban on Face Coverings does not violate Human Rights

Saïla Ouald Chaib Burqa ban, Freedom of Religion

Last week the Belgian Constitutional Court rejected a claim to annul the ban on face coverings, better known as ‘burqa ban’.  This ban prohibits the wearing of clothing that covers the face, or a large part of it, in the public space.  The Constitutional Court (hereinafter the “CC”) concluded that the ban does not violate fundamental rights such as the right to freedom of religion, the right to freedom of expression and the right to private life, provided that the ban is not interpreted in such a way that it also covers places of worship. Continue reading →

NEW BOOK: Diversity and European Human Rights: rewriting judgments of the ECHR

Saïla Ouald Chaib Uncategorized

Our research team is delighted to announce the publication of our book “Diversity and European Human Rights: rewriting judgments of the ECHR” edited by prof. dr. Eva Brems and published by Cambridge University Press. This book is the fruit of the conference “Mainstreaming Diversity: Rewriting Judgments of the European Court of Human Rights” that we organized in the premises of the Strasbourg Court in February 2011. Continue reading →

Ghent seminar on empirical face veil research (May 9)

Saïla Ouald Chaib Burqa ban, Freedom of Religion, S.A.S. v. France

The European Court of Human Rights has recently communicated the case of S.A.S. v. France, concerning a French woman challenging the French ban on face coverings. She alleges a violation of several Convention rights amongst which her freedom of religion, her right to private life and her right not to be discriminated against. This case will surely be intensively followed throughout Europe, as the debate on the so-called burqa bans is raging. Therefore, we thought that readers of this blog might be interested to know that we (the Human Rights Centre of Ghent University) are organizing a seminar on empirical research on face veils. Continue reading →

Francesco Sessa v. Italy: A Dilemma Majority Religion Members Will Probably Not Face

Saïla Ouald Chaib Francesco Sessa v. Italy, Freedom of Religion, Minority Rights, Prohibition of Discrimination, Reasonable accommodation, Uncategorized

This post was co-authored by Saïla Ouald Chaib and Lourdes Peroni

This week, in a 4-3 judgment, the Court ruled against a violation of the freedom of religion of Mr. Sessa, a lawyer and member of the Jewish faith, unable to attend a court hearing scheduled on Yom Kippur. The case is Francesco Sessa v. Italy. After two recent steps forward in freedom of religion cases (see here and here), the Court with this case takes several steps back. Fortunately, the dissenting opinion leaves the door open for future reasonable accommodation cases.

Continue reading →

Gatis Kovalkovs v. Latvia: The Strasbourg Court keeps the door to reasonable accommodation open

Saïla Ouald Chaib Freedom of Religion, Gatis Kovalkovs v. Latvia, Jakόbski v. Poland, Reasonable accommodation

In an earlier post, Lourdes and I were wondering whether the Court was opening the door to the concept of reasonable accommodation in freedom of religion cases with the judgment of Jakόbski v. Poland. With the recent case of Gatis Kovalkovs v. Latvia – well-hidden in the archives of inadmissibility decisions – it can be concluded that, at least, even though the door to reasonable accommodation might not be wide open yet, the Court is moving in that direction. In Gatis Kovalkovs v. Latvia, a detainee who wants to practice his religion in prison once more confronts the Court with a reasonable-accommodation type of claim.

Continue reading →

Ranjit Singh v. France: The UN Committee asks the questions the Strasbourg Court didn’t ask in turban case

Saïla Ouald Chaib Freedom of Religion, Ranjit Singh v. France

In January this year the organization United Sikhs held a press conference about the decision in the case Ranjit Singh v. France brought by them before the UN Human Rights Committee. This decision about the wearing of a Sikh turban on an identity document is more than interesting from the perspective of Strasbourg jurisprudence since the European Court of Human Rights dealt with exactly the same issue concerning the same country some years ago in the case of Mann Singh v. France. Yet, both decisions are completely opposite to each other. In the case of Ranjit Singh v. France the UN Human Rights Committee concluded to a violation of the freedom of religion of the applicant, whereas the European Court of Human Rights declared the similar case of Mann Singh v. France manifestly ill-founded and thus inadmissible.

Continue reading →

The Strasbourg Court and the Arab Spring

Saïla Ouald Chaib Al Hanchi v. Bosnia and Herzegovina, Asylum Seekers, Non-refoulement, Prohibition of Inhuman Treatment

International politics are never far away in cases dealing with the extradition of individuals to third countries. In the case of Al Hanchi v. Bosnia and Herzegovina the European Court of Human Rights was confronted with an extradition of a so-called foreign mujahedin to Tunisia. Until now, the Court had a clear stance. The deportation of individuals with such a profile to Tunisia entails a risk of ill-treatment. (see e.g.  Saadi v. Italy)  In the aftermath of the Arab Spring the Court is however reconsidering this position. Continue reading →

Immigration, education and integration. A cloudy combination. (Anatoliy Ponomaryov and Vitaliy Ponomaryov v. Bulgaria)

Saïla Ouald Chaib Anatoliy Ponomaryov v. Bulgaria, Prohibition of Discrimination, Right to Education

Immigration was a challenge in the past, is still a challenge now and will probably remain a challenge in the future for policy makers as well as for judges. Especially when it comes to public services for individuals staying irregularly in a country, this issue becomes more difficult. Can the regular or irregular stay of an individual in a country justify a differential treatment in access to basic services such as health care and education? In Bulgaria, individuals who do not have a permanent residence permit have to pay a school fee while Bulgarian citizens and individuals having such a permit enjoy education free of charge. This was the issue the European Court of Human Rights was confronted with in the recent case of Anatoliy Ponomaryov and Vitaliy Ponomaryov v. Bulgaria. Continue reading →

Happy anniversary!

Saïla Ouald Chaib Uncategorized

Dear blog visitor,

This month, it is a year ago that the blog gave birth to its first posts. 102 posts later, here we are! When we started this blog, we could only dream of the current results. 32,407 views in 2010 and already 22,504 for the first part of 2011. While in 2010 we reached an average of 128 views a day, in 2011 this average increased to 194 and we hope that our readership continues to grow!

On behalf of our team, we warmly thank you for your interest in our blog. You supported us and encouraged us to be creative. We also want to thank all the guest bloggers who contributed to the blog; your expertise and enthusiasm was not only appreciated by us, but also by the readers. Also thanks to the commentators; your critical reflections are essential to keep the debate alive.

Please join us for a second year of blogging!

The Strasbourg Observers

Freedom of religion in conflict: Siebenhaar v. Germany

Saïla Ouald Chaib Freedom of Religion

With the case of Siebenhaar v. Germany, the European Court of Human Rights is confronted for the third time in less than half a year with a case against Germany where one of the concerned parties is a church in the capacity of employer. The two previous cases are Obst v. Germany and Shüth v. Germany. All three cases concern a dispute resulting from the dismissal of an employee working for a church. Obst and Shüth were dismissed by the Mormon Church and the Catholic Church, respectively, for having external marital relationships. In the case of Siebenhaar, the applicant was dismissed because of her membership to and engagement in a religious group different from her employer’s. Continue reading →

Local ‘burqa ban’ violates human rights (according to Belgian judge)

Saïla Ouald Chaib Burqa ban, Freedom of Religion

Although Belgium does not have a general ban on face covering veils like France, a lot of cities do already ban it in practice. This happens through local regulations that sometimes prohibit face-hiding masks, make-up or the like in the public space. An exception to this rule is accorded for the periods of the festivities of carnival.

The municipality of Etterbeek, like most of the municipalities of Brussels, bans the face veil under this “carnival regulation”. In 2009 a Muslim woman wearing a niqab (a veil that leaves only the eyes uncovered) was stopped twice by the police while bringing her children to school. The authorities claimed that a hidden face in the public space could lead to security problems since the identification of a person can only happen via an individual control. The first time the applicant was fined 35 euro and the second time 200 euro, an amount which she refused to pay. She issued proceedings against the municipality of Etterbeek alleging a violation of her right to freedom of religion, especially her freedom to manifest her religion. The applicant won her case in front of a Belgian lower court (Tribunal de Police de Bruxelles, 26 January 2011) which found a violation of article 9 of the ECHR. The municipality of Etterbeek is appealing against the judgment. Continue reading →

Meet the Strasbourg Observers! We are organizing a conference on “Mainstreaming Diversity” in Strasbourg

Saïla Ouald Chaib Uncategorized

On February 3 and 4, you can meet us in Strasbourg where we organize the conference: “Mainstreaming Diversity: Rewriting Judgments of the European Court of Human Rights”

The conference wants to suggest ways in which the European Court of Human Rights might improve its mainstreaming of diversity concerns. The conference is organized in six panels, respectively dealing with gender, cultural minorities, religious minorities, children, disability and sexual orientation.

In each panel, three persons will propose a new draft of some crucial passages in a judgment of the European Court of Human Rights, in order to improve its accommodation of minority concerns. Judges of the European Court of Human Rights and NGO-representatives will comment on the proposals.

On our blog we are constantly commenting on the case law of the European Court of Human Rights. Now, with this conference we aim to bridge the gap between academic analysis and judicial practice. Academics are invited to move one step further compared to what we usually do, i.e. analyze and criticize a judgment. Instead of standing at the sidelines, academics are invited to roll up their sleeves and do the arduous work of drafting a judgment themselves.

We warmly invite all our readers to participate in this conference! Attendance is free.

For more detailed information and registration please visit the website: http://www.mainstreamingdiversity.com/

We look forward to meeting you!

The Strasbourg Observers

Jakόbski v. Poland: Is the Court opening the door to reasonable accommodation?

Saïla Ouald Chaib Freedom of Religion, Jakόbski v. Poland

By Saïla Ouald-Chaib and Lourdes Peroni

In a previous post, I said I would give the European Court of Human Rights a standing ovation the day it adopted a more open stance in freedom of religion cases. The time has come for such ovation. And the opportunity has been provided by what may well be a landmark decision: Jakόbski v. Poland. In this post, Lourdes and I discuss the causes for celebration.

Mr. Jakόbski, currently detained in a Polish prison, submits that he is a Buddhist. This is the reason why on several occasions he asked to be served meat-free meals to be able to follow the religious dietary rules required by Mahayana Buddhism.  The prison authorities provided him with a ‘PK diet’ – which is a diet that contains no pork – but did not provide him with a complete meat-free diet. The applicant complained about a violation of his freedom of religion. Continue reading →

Şerife Yiğit v. Turkey: The Court did it again!

Saïla Ouald Chaib Freedom of Religion, Munoz Diaz v. Spain, Right to Property, Serife Yigit v. Turkey

The first post I wrote for our blog was titled: “Is a more inclusive wind blowing through the Court?”. In this post I discussed the case of Muñoz Díaz v. Spain that came out atthe end of 2009, about the non-entitlement to a widow pension by a women who was married for 29 years, but whose marriage was not seen as legally binding since it was solemnized according to Roma rites. I concluded my post by questioning whether the judgment in Muñoz Díaz  “represents a new wind through the jurisprudence of the court towards minority issues and especially towards legal pluralism” and “if this new wind exists, the question arises whether it will also reach Şerife Yiğit’s case that is still pending before the Grand Chamber”. This case is very similar to Muñoz Díaz, with the difference that here it concerns the non-entitlement of a widow pension to a woman who was only religiously married in Turkey and another difference is that the applicant does not belong to a minority in Turkey. We have been waiting one year in suspense for the answer to the last question. The answer the judges of the Grand Chamber unanimously gave last week was –again- a clear no. Continue reading →

Konstantin Markin: One more applause to the Court. This time from a perspective of religious minority rights

Saïla Ouald Chaib Freedom of Religion, Konstantin Markin v. Russia, Minority Rights

The case Konstantin Markin v. Russia was already discussed in a previous post written by my colleague Alexandra who, from a gender perspective, found it a very interesting case, worth applauding on several points.

I want to add an additional point from the perspective of religious minority rights. When reading the case I was surprised by the irony of the following statement made by the Court in paragraph 58: Continue reading →

In a school ALL pupils should be king! An example of segregation in a Belgian school.

Saïla Ouald Chaib Children's Rights, Minority Rights, Prohibition of Discrimination, Stereotypes, Uncategorized

From a minority perspective, this week was not a good week in Belgium. On Wednesday, a television broadcast proved that employment agencies cooperate actively with employers who don’t want to hire people with a foreign background (in Belgium the so-called “allochtonen”). An undercover journalist who posed as an employer searching for new employees, asked the agencies not to select people from a foreign background. Out of the 8 agencies, 6 admitted not having any problem with this question, even if it is unlawful. One of them literally said: “the client is king”!
Today was another sad day. A Belgian school, in the city of Lokeren, divides its children depending of their being “autochtoon” or “allochtoon” (this is how persons from respectively Belgian and immigrant roots are named in Belgium ). Continue reading →

Jehovah’s Witnesses of Moscow v. Russia: Strange considerations, but good conclusion

Saïla Ouald Chaib Freedom of Religion, Jehovah’s Witnesses of Moscow v. Russia

On the 10th of June, the ECtHR issued a judgment about the religious community of Jehovah’s Witnesses of Moscow. In this case, the applicants firstly complained of a breach of article 9 of the Convention since the religious community was dissolved and its activities were permanently banned. The dissolution was ordered following allegations for luring minors into religious associations against their will and without the consent of their parents and for coercing persons into destroying the family, infringing the personality, rights and freedoms of citizens; inflicting harm on the health of citizens; encouraging suicide or refusing on religious grounds medical assistance to persons in life- or health-threatening conditions; and inciting citizens to refuse to fulfil their civil duties. The District Court found that the applicant community violated the right to freedom to choose one’s religion by resorting to active proselytising and “mind control”. The second complaint of the applicants was that the refusal for their re-registration constituted a breach or article 11 ECHR. The Court unanimously found a violation on both complaints.

Although I agree with the outcome in this case I find some parts of the reasoning very disturbing. Continue reading →

About crucifixes and headscarves in Dutch jurisprudence. Is there a difference between both?

Saïla Ouald Chaib Freedom of Religion

The Appeal Court of Amsterdam (Gerechtshof Amsterdam) issued on the 15th of June an interesting judgment concerning the wearing of crucifixes by the personnel of a private company that provides public transport services. The personnel of the company GVB must wear a uniform during working hours. The wearing of ornaments on their uniform such as a necklace or a brooch is forbidden. This judgment provoked a little discussion in our team. Bellow you will find a short summary of the case and several comments of some team members.

Continue reading →

“I swear I am not an Orthodox Christian!” Oath taking rules in Greek penal law: Dimitras v. Greece

Saïla Ouald Chaib Dimitras v. Greece, Freedom of Religion

The general rule in the Greek penal law requires witnesses to take an oath on the Gospels. Accordingly witnesses are a priori considered to be of the Orthodox Christian faith. Individuals who have another religion or who do not have a religion must declare this explicitly to the judge during the hearing. When the witness follows a religion which is recognized or tolerated by the state, he or she can follow the oath taking rules of this religion. When the religion of the witness has no oath taking rules or when the witness has no religion a solemn declaration is sufficient.

In Dimitras v. Greece the Court examines whether the Greek legislator gives the possibility to witnesses to opt for the solemn declaration instead  of taking the oath, taking into account the negative aspect of the religious freedom protected by article 9 ECHR.

Continue reading →

Mustafa and Armağan Akin v. Turkey: Not above children’s heads!

Saïla Ouald Chaib Children's Rights, Mustafa and Amargan Akin v. Turkey

The bulk of the cases appearing before the European Court of Human Rights concern length of proceeding cases that might not always be interesting for the public because of their technical character. However in a lot of other cases, the Court is  confronted with very shocking facts. Cases of torture by public authorities, but also cases concerning everyday problems, like divorcing couples and consequently the custody of the children. This is also the case in Mustafa and Amargan Akin v. Turkey. Continue reading →

Are some expressions more equal than others?

Saïla Ouald Chaib Freedom of Expression

Exactly one week ago, a lecture was organized at the Belgian University of Antwerp with the following title: “(long) live God, away with Allah”. A group of fanatic Muslims were not pleased about this title and they called their members to attend the lecture. When the speaker started his lecture, the followers from the Islamic group started to disturb it by screaming slogans and insulting the speaker. Subsequently, everybody was asked to leave the room and the lecture was cancelled. This incident caused a lot of heated discussions in the Belgian press and at the political level. The mayor of Antwerp for example declared that he will sue the responsible people into court arguing that the city can not accept the right to freedom of expression to be undermined, asking a damage of 25,000 euro’s each time this right would be violated. Moreover the “community of the moderate Muslims” were asked by i.a. the minister of integration to openly and explicitly distance themselves from this incident. A week and a lot of news articles later, the discussion is still going on, but the peace is more or less restored. This is the right moment to shortly address this issue from a human rights perspective, bearing in mind the jurisprudence of the European Court of Human rights. Continue reading →

Is a more inclusive wind blowing through the Court?

Saïla Ouald Chaib Minority Rights, Munoz Diaz v. Spain

Recently the European Court of Human Rights issued an interesting judgment in a case concerning a Roma Marriage. (Muñoz Diaz v. Spain, 8 December 2009) Muñoz Diaz and M.D. married in 1971 according to Roma traditions. This marriage was recognized by the Roma community. When her husband died, Muñoz Diaz applied for a survivor’s pension, but this request was denied on the ground that she “was not and had never been the wife of the deceased prior to the date of death” as she never solemnized her marriage under Civil law. However, the husband of Muñoz Diaz had been working as a builder for more than 19 years and he contributed to the social security during the same period. These contributions were supporting his wife and six children as his dependants. His 6 children were also registered in the family record book issued to the couple by the Spanish civil registration authorities and the family was granted ‘first-category large-family status’.

Continue reading →

“What’s in a – Kurdish – name?”

Saïla Ouald Chaib Kemal Taskin e.a. c. la Turquie, Minority Rights

One of the consequences of Kemal Attaturk’s reforms was that Kurdish people in Turkey were not able to speak their own language and consequently they were not able to carry own Kurdish names. Recently this changed. However, the Kurds still face problems with the registration of their names, as they are bound to the Turkish alphabet for the spelling of it. Contrary to the Kurdish alphabet, the Turkish alphabet does not contain the letters W, Q and X.

The Turkish authorities consequently refuse to register names with the above mentioned letters. In the case Kemal Taskin et autres c. la Turquie, the European Court of Human Rights had to answer the question whether this refusal consists a breach of article 8 of the convention. Moreover, the Court also had to deal with the question whether or not the refusal to register these names is discriminatory as Turkish people with a double nationality who are registered in a third country and who wish to register in Turkey can keep the spelling of their names including the letter W, Q or X.

Continue reading →

R.C. v. Sweden: the burden of proof in asylum cases

Saïla Ouald Chaib Asylum Seekers, Prohibition of Torture, R.C. v. Sweden

Sweden is recently convicted by the European Court of Human Rights in the CASE OF R.C v. SWEDEN concerning an Iranian asylum seeker. On 9 march 2010 the Court issued a judgment where it held by six votes to one that the deportation of the applicant to Iran would consist a violation of article 3 ECHR. Judge Fura expressed a dissenting opinion.

R.C. submitted to have participated in a demonstration in 2001 against the Iranian regime following which he had been arrested and tortured and detained for fourteen months. Although he had never been formally tried, he appeared several times before a revolutionary court, where a decision had to be made about the maintenance of his detention. During one of these religious hearings, the applicant managed to escape with the help of a friend. The applicant submitted also that he had been subjected to torture during his detention. He provided a medical certificate of February 2005 carrying the doctor’s conclusion that the injuries found on his body could well originate from torture. When R.C. arrived in Sweden in 2003 he immediately requested asylum near the Swedish Migration Board. This request was refused as the national authorities doubted the credibility of his account of events underlining that revolutionary courts were generally not open to the public, that the applicant had not substantiated his allegations and found that there was no proof that he would be tortured or ill treated if he returned to Iran. The appellate courts also rejected his asylum request.

Continue reading →