Religious freedom and the ECHR: a brief overview and the example of the headscarf ban

Dionysios Dragonas, Editor in Chief

Religious freedom and its constraints

Religious freedom is a right with a strong historical, political and social background, that always stays contemporary and worthy of public dialogue. At a European level, although this right has a long history and analysis, there are still confrontations and cases that reach either the ECHR or national courts, which in many cases ask for the opinion of the Court of Justice of the European Union under the relevant procedure, so as not to violate this fundamental right and in order to intemperate it according to the principles of the European legislative system. 

The European Convention on Human Rights (ECHR) guarantees certain rights that are subject to limitations, such as freedom of speech or the right to privacy. However, there are also rights that are considered absolute and do not have constraints, such as the right to life (Article 2 ECHR), which is a fundamental principle and value of the entire European legislative system. Initially, the legislator correctly decided to guarantee the right to freedom of thought, conscience, and religion, but also imposed certain constraints. These restrictions are typically aimed at protecting public legal goods, in contrast to rights like the right to life, which protect individual legal goods.

First of all, freedom of conscience is the possibility granted to a person in order to decide in which religion, doctrine, or sect to believe. Freedom of religion is based on the freedom of conscience, which is not manifested, while freedom of religion gives the ability to the holder of the right to express their religion. Expression may consist in specific clothing, public prayer, teaching, publishing articles about religion in a newspaper and living, as defined by each religion. So, the above mention contains the contents of forum internum and forum externum.

The European legislator, however, granted national legislators the authority to limit this right not to diminish the role of religion, but to safeguard the entire society and other rights that might be infringed upon. According to the second paragraph of Article 9, there are three conditions for such restrictions: a) the restriction must be prescribed by law, b) it must pursue a legitimate purpose, such as the protection of public safety, order, health, and morals, and c) the restrictions must be necessary in a democratic society.

Private interest

Apart from the constraints related to public interest that we frequently encounter, let's now shift our focus to private interest. Private interest arises within the realm of religious freedom when an individual perceives that their own freedom or vested rights are being restricted. Thus, a restriction on religious freedom occurs when the religious freedom of one person is curtailed due to specific circumstances, which should be alleviated so that the affected individual can regain their freedom.

Such situations may arise in cases where there exists a hierarchical relationship, with a person in a superior position consistently seeking not only the adherence of the subordinate to a particular religion but also attempting to alter the latter's beliefs, such as religious beliefs. In fact, in these scenarios, we may even encounter coercion, as the subordinate may act out of fear of potential repercussions from their superior if they do not comply with their demands.

Headscarf and the ECHR

In the cases regarding the banning of the Islamic (black) female΄s headscarf in public places, the ECHR (General Chamber) included, as a component of the rights of thirds, the concept of "we live together", that is, the French version of the secular state; given that the face has a significant effect on human behavior, its covering by some women undermines the desire of the other inhabitants to live together, behaving comfortably.

More analytically, the ECHR came to the opposite conclusion regarding the (white) headscarf of male Muslims in Bosnia-Herzegovina; the refusal of a witness to remove the headscarf in court is in direct line with the secular state and the rights of others, but the restriction was unanimously deemed disproportionate in a democratic society because, otherwise, the claimant showed adherence to the rules of conduct in the courtroom.

However, the most well-known decision in which the European court discussed the issue of the Islamic headscarf is Leyla Sahin v. Turkey. In this case, the headscarf ban had been imposed on a student at the University of Constantinople. The Enlarged Chamber of the ECHR held that the restriction was in accordance with Article 9(2), since it sought by legitimate means the defense of public order and the protection of the rights of others. In particular, the ECHR highlighted the symbolic role of the headscarf as a timeless means of women's oppression in Islamic societies.

Conclusion

In conclusion, the freedom of religion is not violated when uniform instructions are applied in the workplace to all individuals, even if these instructions include prohibitions on displaying religious symbols or expressions, provided that such restrictions do not directly impact an individual's beliefs or religious practices. This approach ensures equality and fairness in the workplace environment while respecting the diverse religious beliefs and practices of employees.

Main literature:

• George I. Androutsopoulos, Article 9 of the E.C.H.R. in light of newer findings of the case law of the E.C.H.R. during the years 2018-2023, Stato, Chiese e pluralismo confessionale, 1/2024, p. 1- 14.
• Gülalp Haldun, Religion, Law and Politics: the "Trickle-Down" Effects of ECtHR Judgments on Turkey's Headscarf Battles, Religion and human rights, 2019-12, Vol.14 (3), p.135-168.