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Home Human Rights Archive for category "Freedom of Religion"

The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

Published on January 3, 2019        Author: 

It is perhaps unsurprising to observers of the UN Human Rights Committee’s (HRC) jurisprudence that in the recent decisions of Yaker v France and Hebbadi v France, the HRC came to the opposite conclusion to the European Court of Human Rights (ECtHR) regarding the compatibility of the so-called ‘French burqa ban’ with the right to manifest religion. In SAS v France, the ECtHR had found that although the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’) interfered with the right to manifest religion, it did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it pursued the legitimate aim of ‘living together’ and fell within the State’s margin of appreciation (see my earlier post on this case). In contrast, in Yaker and Hebaddi, the HRC found that the same law violated not only article 18, the right to thought, conscience and religion, but also article 26 of the International Covenant on Civil and Political Rights (ICCPR), the right to equality before the law.

The HRC’s freedom of religion or belief jurisprudence has consistently diverged from that of the ECtHR when the right to manifest religion by wearing religious clothing is at issue. Both bodies have heard directly analogous cases, but while the HRC has found that restrictions on religious clothing justified by reference to either secularism or public order violate article 18 ICCPR, the ECtHR has deferred to the State’s margin of appreciation and declined to find a violation (see my earlier post on this blog). As a result, the HRC’s decisions in Yaker and Hebbadi were not entirely unexpected, especially as in its Concluding Observations on the fifth periodic report of France in 2015, the HRC had expressed ‘the view that these laws [including the burqa ban] infringe the freedom to express one’s religion or belief and that they have a disproportionate impact on members of specific religions and on girls’ (para 22). However, its decision in these cases remains noteworthy as a result of: its consideration of ‘living together’ as a legitimate aim under the article 18(3) ICCPR limitations clause; the HRC’s recognition that the burqa ban constituted intersectional discrimination; and the nuanced approach adopted to the gender equality argument. The analysis here will focus on Yaker, although the HRC’s reasoning in both cases is identical. Read the rest of this entry…

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Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgment in E.S. v. Austria

Published on October 29, 2018        Author: 

This past weekend Irish voters decided, by an overwhelming majority, to amend the Irish Constitution so as to decriminalize blasphemy. Just a few days before this referendum, however, a unanimous Chamber of the European Court of Human Rights gave its blessing to the criminalization of blasphemy, in all but name, in its judgment in E.S. v. Austria, no. 38450/12.

I have now read this judgment several times. Each time I read it I was left more disturbed. It applies the Court’s previous troubling precedents in this context – such as the notorious judgment in Otto-Preminger-Institut v. Austria – wholly uncritically, while even going beyond them in policing offensive speech. It unpersuasively tries to draw a distinction between blasphemy laws, which categorically impermissibly infringe on the freedom of speech, and the Austrian law at issue, as interpreted and applied by Austrian courts, which according to the Court strikes the right balance between the freedom of speech and the freedom of religion. As I will explain, the Court’s distinctions are essentially meaningless and incapable of being applied in any non-arbitrary way, leading us not to a slippery slope of a further erosion of free speech, but to a cliff. Its reasoning lacks rigour and fetishizes the national margin of appreciation. Worst of all, the judgment will likely do nothing to promote religious tolerance in Europe, but will only help to further the narrative of Islamophobic closet neo-Nazis (who are, by the way, already in power in Austria, and not for the first time) that they are free speech martyrs , victimized in their own country by horrible minorities, elites and human rights lawyers.

Read the rest of this entry…

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De-humanisation? CJEU, Liga van Moskeeën en islamitische Organisaties Provincie Antwerpen on Religious Slaughter

Published on June 26, 2018        Author: 

Introduction

In Case C-426/16, Liga van Moskeeën en islamitische Organisaties Provincie Antwerpen et al v. Vlaams Gewest, the Court of Justice of the European Union (Grand Chamber) in its judgment of 29th May 2018 decided that the EU law provision allowing religious slaughter without stunning the animal only in slaughterhouses (Art. 4(4) of Regulation No 1099/2009) is valid. It does not violate primary law: neither the freedom of religion as guaranteed in Art. 10 of the European Charter of Fundamental Rights, nor the animal welfare mainstreaming clause of Art. 13 TFEU.

Two weeks earlier, US President Donald Trump spoke about migrants:

We have people coming into the country, or trying to come in — and we’re stopping a lot of them — but we’re taking people out of the country. You wouldn’t believe how bad these people are. These aren’t people. These are animals. And we’re taking them out of the country at a level and at a rate that’s never happened before. And because of the weak laws, they come in fast, we get them, we release them, we get them again, we bring them out. It’s crazy. (The White House, Remarks by President Trump at a California Sanctuary State Roundtable, May 16, 2018 (emphasis added)).

Do both incidents have something in common? Both concern migrants, directly or at least indirectly. While President Trump’s statement is openly humiliating and racist, the EU regulation and its strict application by Flemish authorities that led to the CJEU judgment is not. Still, we might ask (what the Court did not) whether the Flemish case involves indirect discrimination against Muslims. I find that neither EU law nor its application violate fundamental rights. However, we need to remain vigilant because, speaking with Theodor Adorno, vilifying human and non-human animals might, in psychological and ethical terms, be related and even intertwined. Read the rest of this entry…

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Je Suis Achbita!

Published on February 19, 2018        Author: 

Achbita, decided in March 2017 is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name of a neutrality policy of the Company that she may not wear the hijab (a head scarf) to work, and thus she lost her job. I think it is a fair reading of the ruling sent back to the referring Belgian Court that other than checking that the company, without overly burdening itself, could not find a place for Achbita in a back office which would not bring her into contact with the public, the Court had no major problems with the company’s policy compliance with the specific Directive bringing the case within the jurisdiction of European Law and the overriding human rights controlling norms such as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly different factual matrix.

Chaya Levi lives in Antwerp. She is part of the large Jewish Hassidic community in that town. She, like other members of that community, follows the strict norms of Orthodox Judaism. Some refer to them as Ultra-Orthodox. She works as a receptionist in a general services company which, inter alia, offers reception services to customers in the private and public sectors. As a receptionist she comes into contact with customers. No fault is found with her job performance. Chaya Levi falls in love and marries Moses Cohen of her community. Under Jewish law she now must wear a scarf covering her hair, not unlike the Islamic headscarf. In Antwerp this is an immediate tell-tale sign that she is an observant Jewess. Read the rest of this entry…

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A Critical Commentary on the ECJ’s Judgment in G4S v Achbita

Published on April 5, 2017        Author: 

In March of this year (23/3), Solon Solomon noted here on EJIL:Talk!, that the recent judgment rendered by the European Court of Justice (ECJ) in G4S v Achbita, seems to have given private companies in the EU the green light to indirectly discriminate against certain religious minorities, so long as they put in place general bans on religious attributes that are visible to external customers. While that commentary offered interesting and important reflections on the legal and socio-political context of the ECJ judgment and similar ones previously established by the European Court of Human Rights (ECoHR), this analysis brings forth a somewhat different critique, focusing more closely on the (lack of) motivations behind the Court’s conclusions.

First, to be clear, that indirect discrimination can sometimes be excused is neither what is new nor controversial about the case. According to the Council Directive (2000/78/EC) cited in the Court’s judgment, as well as the applicable international and European human rights law, indirect discrimination can be justified, but only on the condition of a “legitimate aim”. That aim must then (i) be prescribed by law, (ii) respect the essence of the fundamental rights and freedoms of others, and may (iii) only be pursued through measures that are appropriate, necessary and proportionate to achieve the aim (see art. 18 para 3 of the ICCPR; art. 9 para 2 of the ECHR; art. 52 of the EU Charter; Neptune Distribution SNC v. Ministre de l’Économie et des Finances).

Thus what is new and controversial is the Court’s interpretation of what may constitute a legitimate aim with regard to the imposition of limits to the freedom of religion. According to the Court’s decision, the:

“desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate” (para 37).

This, the Court declared, relates to the freedom to conduct a business, which is recognized in article 16 of the EU Charter. The Court then proceeded with its assessment of whether the general ban on visible religious attributes was appropriate and necessary to uphold the supposedly legitimate aim of neutrality. It is these sections of the judgment that expose the Court’s apparent failure to account for the principles governing the rights and conflicting interests at stake. Read the rest of this entry…

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The Right to Religious Freedom and the Threat to the Established Order as a Restriction Ground: Some Thoughts on Account of the Achbita Case

Published on March 23, 2017        Author: 

On March 15, 2016, the European Court of Justice (ECJ) heard two different cases, the case of Achbita and that of Bougnaoui. As noted here, while both cases had the wearing of the Islamic headscarf at work as a common factual background, the legal questions asked were different. The Achbita case, referred to the ECJ by the Belgian Cour de Cassation, concerned Achbita’s dismissal from work as a receptionist. The dismissal took place after she refused to comply with a prohibition to wear the Islamic headscarf when dealing with customers. The Bougnaoui case, referred by the French Cour de Cassation, focused on a similar dismissal after she refused to abide by her boss’ demands and take off her Islamic headscarf, following the relevant wishes expressed by one of the enterprise’s clients. Nevertheless, the two courts brought different questions before the ECJ for a preliminary ruling. The Belgian supreme administrative court asked the ECJ whether such a ban from wearing the headscarf at work constituted direct discrimination. Its French counterpart focused on the client and whether his will not to have services provided by an employee wearing a visible religious symbol or attire contravened EU law.

On Mach 14, 2017, almost a year after the hearing of the cases, the ECJ issued its judgments (here and here). In the case of Achbita, the ECJ ruled that employers, coming to pursue a policy of political, philosophical and religious neutrality, have the right to prohibit their workers from adhering to a specific religious dress code or from wearing at work visible religious symbols. On the contrary, in the Bougnaoui case, the court’s holding was that employers cannot discriminate between employees who wear religious symbols and those who do not, due to a customer’s demand. Accordingly, while the Bougnaoui judgment closes the door to any potential restricton of religious expression at work, this is not the case with the Achbita one. The latter can be seen as introducing a possible infringement on religious freedom even if the Court ruled that employers have the option and not the obligation to impose such a ban on visible religious symbols. Through the granting of such an option, the ECJ sends the message that an individual cannot cite religious beliefs in order not to comply with generally set applicable norms.

This has been palpably demonstrated in domestic jurisprudence on both sides of the Atlantic. For example, in the Employment Division v. Smith, the U.S. Supreme Court held that two Native Americans had been justifiably dismissed from their work after the ingestion of peyote, a powerful entheogen. The fact that their religious beliefs sanctioned such an ingestion was not a valid ground for them to contravene the laws of the State of Oregon which prohibited possession and use of the particular substance. Similarly, in the case of Bull v. Hall, the UK Supreme Court held that the religious beliefs of a hotel keeper could not justify discrimination against same-sex couples and justify a policy according to which the hotel suites destined for married couples would be given only to heterosexuals. Read the rest of this entry…

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Headscarves and the Court of Justice of the European Union: Two Opposing Opinions

Published on August 1, 2016        Author: 

The Court of Justice of the European Union (CJEU) has to decide on two cases on the wearing of Islamic headscarves at work. Both concern headscarves, which cover the hair and neck, but which leave the face free. The cases were heard together on the 15 March 2016 and the Advocate General’s (AG’s) opinions have been issued, so now it is up to the CJEU to decide. But this is not made easier because the two opinions (one by AG Kokott and the other by AG Sharpston) seem to contradict each other in a number of ways. This post will consider the difference in the interpretation of ‘genuine and determining occupational requirements’. Both cases concern discrimination on the grounds of religion or belief contrary to Directive 78/2000/EC. Article 4(1) of this Directive determines that:

Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

This article thus creates an exception to the prohibition of discrimination in situations where having a protected characteristic is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. For example, a Catholic school can require a teacher of religious studies to be Catholic.

The first case (Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV), referred by the Court of Cassation in Belgium, concerns a Muslim woman, who worked for G4S as a receptionist and who was permanently contracted out to a third party. She informed G4S that she wanted to start wearing an Islamic headscarf and was told that this was against the employer’s strict neutrality rule in the workplace. When she refused to take off her headscarf at work, she was dismissed. Read the rest of this entry…

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S.A.S. v France: Living Together or Increased Social Division?

Published on July 7, 2014        Author: 

On 1 July, the European Court of Human Rights (ECtHR) has delivered, in a public hearing, its judgment in the case of S.A.S. v France. This case is a challenge of the French legislation prohibiting the wearing of face-covering clothing in all public spaces. In a post on this blog, Stephanie Berry discusses the case and points out a number of positive developments, including the balanced and well-reasoned nature of the judgment, the rejection of the gender equality and human dignity arguments for the burqaban, as she refers to the French law, and the consideration that this ban was not necessary for public safety in the absence of concrete evidence. However, Berry criticises the ECtHR for accepting that the ban pursues the legitimate aim of ‘living together’ under the ‘protection of the rights and freedoms of others’. Berry points out that this concept pursues a distinctly assimilationist agenda. I agree with Berry that this is a worrying development. In this post, I examine this concept of ‘living together’ in more detail and explain why this is such a worrying development. I will not discuss other aspects of the judgment.

First of all, what does this concept mean? The ECtHR mentions that the ‘Report on the wearing of the full-face veil on national territory’ criticises the wearing of the full-face veil as ‘a practice at odds with the values of the Republic’ and as ‘a denial of fraternity, constituting a negation of contact with others and a flagrant infringement of the French principle of living together’ (para. 17). It also refers to the explanatory memorandum to the relevant law, which states that ‘the wearing of the full veil is the sectarian manifestation of a rejection of the values of the Republic’; that ‘the voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of “living together” in French society’; and, that it ‘falls short of the minimum requirement of civility necessary for social interaction’ (para. 25). The French Government stated that one of the aims of the law was the observance of the minimum requirements of life in society because the face plays a significant role in human interaction, and the effect of concealing one’s face in public places is to break the social tie and to manifest a refusal of the principle of ‘living together’ (para 82, and for a similar argument from the Belgian government: para. 87).

Read the rest of this entry…

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SAS v France: Does Anything Remain of the Right to Manifest Religion?

Published on July 2, 2014        Author: 

Niqab23The finding by the European Court of Human Rights (ECtHR) in SAS v France that the so-called ‘French burqa ban’ did not violate the European Convention on Human Rights (ECHR) will not surprise many in the field of human rights. However, the judgment itself contains a number of developments and departures from the Court’s previous jurisprudence that warrant further consideration. In particular, the conclusion that the right to manifest religion may be restricted on the ground of ‘living together’ presents a worrying development, if this right is to have any practical meaning. (photo credit)

In SAS v France, the applicant challenged the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’), which prohibits the covering of the face in public. The case differs from previous cases concerning the right of Muslim women to manifest religion by wearing religious attire, as the law imposed a blanket ban which extended to the social sphere. The applicant argued that by preventing her from wearing the burqa the ban violated her rights under articles 3, 8, 9, 10, 11 and 14 ECHR. The ECtHR completely dismissed her claims under articles 3, 10 and 11 ECHR, and focused its attention on articles 8, 9 and 14 ECHR, with a notable emphasis on article 9, the right to freedom of religion or belief.

The ECtHR’s judgment in SAS v France, for the most part, is balanced, well-reasoned and provides a thorough consideration of the French government’s justifications for the restriction of the applicant’s right to manifest her religion: public safety and ‘respect for the minimum set of values of an open and democratic society’. The latter category comprises three separate elements: gender equality, human dignity and ‘respect for the minimum requirements of life in society’ or ‘living together’. Whilst public safety is found within articles 8(2) and 9(2) ECHR, as noted by the ECtHR,  ‘respect for the minimum set of values of an open and democratic society’ does not correspond with any of the permissible limitations on article 8 and 9 ECHR (paras 116-7). Consequently, the ECtHR interpreted this justification as falling with the broad ‘protection of the rights and freedoms of others’ (para 117).

While the ECtHR established that the ‘burqa ban’ was prescribed by law (para 112), it did not accept that the ban pursued the ‘legitimate aims’ of gender equality and human dignity (paras 119-120). Specifically, in the context of gender equality, the ECtHR took ‘the view, … that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions’ (para 119). This marks a significant departure from the ECtHR’s jurisprudence in the hijab cases. InDahlab v Switzerlandthe ECtHR had held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality’ . However, this approach was the subject of criticism, most notably by Judge Tulkens in her dissenting opinion in Leyla Şahın v Turkey:

It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. (para 12)

Read the rest of this entry…

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Eroding Religious Freedom Step by Step: France and the Baby Loup Case

Published on July 1, 2014        Author: 

cour de cassationLast Wednesday, the French Cour de Cassation (pictured left), in the Baby Loup case, permitted yet another restriction to be placed on the right to manifest religion in France.  The applicant had been fired from her job at Baby Loup, a private crèche and nursery, for violating the organisation’s rules of procedure. By wearing the hijab, the applicant purportedly breached the rule that

the principle of freedom of conscience and of religion of each staff member may not impede respect for the principles of laïcité [secularism] and neutrality that apply in the exercise of developmental activities, either on the premises of the crèche or during outside activities in which staff accompany children enrolled in the crèche.

The applicant will now take the case to the European Court of Human Rights (ECtHR). The decision of the Cour de Cassation in Baby Loup is made all the more significant by the pending judgment in SAS v France, due to be handed down by the ECtHR today. Will the ECtHR continue to permit the creeping erosion of the right to manifest religion (article 9 European Convention of Human Rights (ECHR)) by deferring to the State’s margin of appreciation?

The decision of the Cour de Cassation was based on Articles L. 1121-1 and L. 1321-3 of France’s Labour Code, which require any restrictions on an employee’s freedom of religion to be proportionate and justified by the nature of the employment. The Courtfound that the private nursery could not justify the restriction of the freedom of religion of the employee by direct reference to the principle of laïcité, as the principle applies only to public bodies. Nonetheless, it was willing to accept that the adoption of the principle of laïcité in the organisation’s rules of procedure was designed to protect children and to promote gender equality, rather than promoting and defending laïcité as a religious, political or philosophical belief. Consequently, the Cour de Cassation found that the restriction on the applicant’s freedom of religion was permissible.

The ECtHR is also likely to consider whether the freedom of religion of the applicant in Baby Loup can be justified by either the principle of secularism or ‘the rights and freedoms of others’ (article 9(2) ECHR). The recent cases of Ahmet Arslan and others v Turkey and Eweida and others v United Kingdom are directly relevantas previous ECtHR cases addressing the restriction of the right to manifest religion in the private sphere.

Ahmet Arslan concerned the arrest of members of the Aczimendi tankaı religious community for wearing religious clothing in public. The ECtHR found that the restrictions placed on the community by the authorities could not be justified by reference to the principle of secularism as the applicants were not State officials (para 48) and were not wearing religious clothing in a State institution such as a State school (para 49). Thus, Ahmet Arslan limits the circumstances in which States may justify the restriction of freedom of religion on the grounds of the principle of secularism to public officials and institutions. Consequently, it seems unlikely that France will be able to rely on the principle of laïcité in the Baby Loup case, as the nursery was a private organisation. Read the rest of this entry…

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