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
By Marcella Ferri, Adjunct Professor of International Human Rights Law – ASERI, Catholic University of the Sacred Heart, Milan (Italy), and Adjunct Professor of Institutions of Comparative and European Law – module of European Law – University of Bergamo, Bergamo (Italy)
On 11 July 2017, the European Court of Human Rights delivered two similar judgments in the Belkacemi and Oussar v. Belgium and Dakir v. Belgium cases, both concerning the Belgian burqa ban. On 1 June 2011, the Belgian Chamber of Representatives approved a Law criminalising the wearing in public spaces of clothing which partially or totally covers the face. Before the adoption of this Law, the wearing of full-face veils was prohibited by several municipal bans, imposing administrative fines, which have been kept in place by the national ban. Continue reading
By Fabienne Bretscher, PhD Student at the University of Zurich, Visiting Researcher at the Erasmus School of Law Rotterdam
In a recent judgment, the ECtHR found that the refusal to grant Muslim students exemption from mandatory swimming classes in Swiss public schools did not amount to a violation of the right to freedom of religion guaranteed by Article 9 ECHR. In its decision, the ECtHR emphasised the important role of public schools in the process of social integration into local customs and way of life. After giving an overview of the facts of the case as well as the ECtHR’s judgment, the present post sheds some light on the background of the issue of Muslim students’ participation in mandatory swimming classes in Switzerland and argues that, with its decision, the ECtHR is (again) reinforcing and legitimising intolerance against Muslims. Continue reading
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
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.
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?
The Achbita and the Bougnaoui cases give a first opportunity to the European Court of Justice to address religious discrimination. Since the adoption of the anti-discrimination directives after the Amsterdam treaty, the Court ruled on a significant number of cases, mostly on discrimination based on age or gender, but also on sexual orientation, disability, race and ethnicity. Religion was not in the picture so far. As if national courts kept the issue for themselves, apart for a few cases making their way to the European Court of Human Rights.
A first opportunity that resembles a poisoned gift. Two high-profile cases, brought by the Supreme Courts of the judiciary (Cour de cassation) in Belgium and in France, which fall in ‘the Islamic veil conundrum’ that started in the late 1980s in both countries. Two countries where the principle of neutrality (or laïcité) is increasingly brandished like a flag with uncertain colours by strange bedfellows and not only as a key organizing principle of a democratic State attached to the Rule of law. Two countries severely hit by terrorist attacks made in the name of Islam and where social and political tensions are sour. And two Advocates General who have different views on some fundamental legal concepts of anti-discrimination law.