Authored By: Sophia Haley
University of Manchester
This article will examine the issues arising under Article 9[1] of the European Court of Human Rights (ECHR), arguing that its interpretation regarding ‘manifestation of belief’ may reflect an inherently Westernised framework. This article will explore this by first explaining what Article 9 consists of including its limitations. Additionally, it will then focus on two key cases that may indicate preferential treatment of certain religious symbols over others. Finally, the article will explore the ECHR’s flawed interpretation of democratic values within the context of its justification for limiting the manifestation of religious belief under the legitimate aims of Article 9(2)[2].
Article 9; an overview
Article 9 of the ECHR is the right to freedom of thought, conscience and religion. Within this Article, there exists absolute and qualified rights. An absolute right is one that cannot be limited under any circumstances; however, a qualified right is a right that is subject to limitations. The Absolute right under Article 9 is the right to hold a belief. However, the manifestation of such a belief is a right that is qualified. The manifestation of a belief is subject to limitations as are ’prescribed by law’ and ‘necessary in a democratic society’ this includes in the interests of; public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others. However, Academic scholars such as Baldi have argued that Western legal frameworks have used the limitations under the manifestation of a belief to enforce conformity against minority groups[3].
Dahlab v Switzerland versus Lautsi v Italy
The contrasting judgements in Dahlab v Switzerland[4] (Dahlab) and Lautsi v Italy[5] (Lautsi) highlight how the ECHR appears to treat manifestations of minority religions. In Dahlab, the court upheld that a primary school teacher could not wear an Islamic headscarf at work, finding the ban proportionate to the legitimate aim of maintaining secularism and the rights of others, arguing that it may have a proselytising effect on children. However, in Lautsi, it was upheld by the court that a crucifix in a public school could be allowed. The court dismissed concerns about indoctrination in this case with no real explanation, instead stating that the presence of crucifixes “is not in itself sufficient to denote a process of indoctrination”[6]. Both cases concern similar circumstances however their differential outcomes highlight arbitrary treatment on certain religious symbols, implying some symbols are “more neutral than others”[7]. The banning of the hijab is not just seen in Dahlab, but other cases such as Leyla Sahin v Turkey [8] and SAS v France[9] which reveals, as Ati contends, a “global trend of state restrictions on the freedom of Muslim women to wear the hijab”[10]. Indeed, when comparing such cases with Lautsi, it becomes problematic that hijabs can be seen as a proselytising symbol, but crucifixes were not seen as significant enough to hold such an effect. This suggests as Gupta contends “indirect discrimination” [11]from the ECHR and shows the courts failure to consider distinctions in visibility for religious symbols, privileging “certain forms of religious expression over others”[12] and leading to insufficient protection for minority religions.
A ‘flawed’ interpretation of democratic values
Many of the justifications for restricting the wearing of the hijab in ECHR case law are based on legitimate aims as outlined in Article 9(2) of the European Convention on Human Rights. These include aims such as being “necessary in a democratic society” and protecting the “rights and freedoms of others”. The Court has consistently accepted state arguments that such restrictions pursue important societal goals, including secularism, public order, gender equality, and the neutrality of public institutions. However, there is often an inherently flawed Western-centric interpretation by the ECHR of these democratic values. A “democratic society” is one where fundamental rights like freedom of speech, religion, and equality are upheld; however, it seems that certain religious values are viewed as incompatible with such principles by the ECHR. This seems contradictory, as pluralism and tolerance are also fundamental pillars of democracy. Different religious and non-religious values should co-exist together in harmony, and the freedom to manifest your own belief should be tolerated. However, many outcomes specifically concerning minority religions show otherwise, displaying, as Denli suggests, “favouring certain norms of religions over others.”[13] Moreover, there is a misguided Western-centric perception that the hijab is inherently a symbol of oppression[14]. Indeed, there are many countries in which women are forced to wear the hijab; however, the ECHR fails to recognise a woman’s autonomous choice to wear such a religious symbol, consequently insufficiently protecting such a woman’s own free choice in the false lens of equality. In Sahin, for example, the ban of the hijab was intended to preserve ‘gender equality’; however, as Judge Tulkens pointed out in her dissent, wearing a hijab is not always oppression, recognising that many women autonomously choose to wear a hijab[15]. This reveals the Court’s flawed view on gender equality. Interestingly, the ban on the hijab arguably increases oppression towards Muslim women, opposing the legitimate aim of ‘equality’. As Gusic contends, “prohibition practices should never be seen as a step toward the liberation of women but as a continuation of long-standing patriarchal traditions that dictate how women should dress.”[16]
Conclusion
To conclude, cases concerning Article 9 reveal a Western central rhetoric embedded within the framework of the ECHR. This article has highlighted the ECHRs inconsistent protection of minority religions as opposed to cases involving symbols of dominant Western religions. The Court has failed to provide a clear or principled justification for why certain religious symbols are deemed more “passive” or acceptable than others, indicating potential preferential treatment for certain religions. Moreover, this essay has exposed the ECHRS flawed interpretation of democratic values within the framework of legitimate aims under Article 9, failing to recognise that the wearing of religious symbols in society can itself be an expression of democratic values such as pluralism, freedom, and individual autonomy. However, the European Court of Human Rights tends to adopt a Western-centric interpretation of democratic values such as autonomy and equality, often overlooking the fact that the hijab can serve as a powerful expression of personal autonomy when worn because of a woman’s free and informed choice. Ultimately, the inadequate safeguarding of minority religious practices under Article 9 suggests that the ECHR may be an inherently Western framework[17], failing to fully accommodate the diverse expressions of belief found within a multicultural society.
Bibliography
Ati,A ‘The Post-9/11 Securitisation of the Hijab and International Human Rights Law: the Strasbourg Court, Article 9 and Hijab Restrictions’ (2019) 5(1) Queen Mary Human Rights Law Review
Baldi, G. From Text to Meaning: Unpacking the Semiotics of Article 9 of the European Convention on Human Rights. Int J Semiot Law (Springer nature 2024)
Denli, O‘Between Laicist State Ideology and Modern Public Religion: The Head-Cover Controversy in Contemporary Turkey’ in W. Cole Durham and others (eds), Facilitating Freedom of Religion or Belief: A Deskbook (2004) (Springer 2004)
Gupta,S ‘ECtHR’s Veil of Ignorance: Intersectionality and Indirect Discrimination in the Belgian Headscarf Ban in School’ (EJIL: Talk!, 13 September 2024)
Salihović‑Gušić, A ‘The Hijab Ban and Human Rights of Muslim Women in Europe’ (GC Human Rights Preparedness, 27 April 2023)
Cases
Dahlab v Switzerland App no. 42393/98 (ECtHR, 2001)
Lautsi and othersi v Italy, Merits, App no 30814/06, IHRL 3688 (ECHR 2011)
Leyla Sahin v Turkey App no. 44774/98 (ECtHR, 10 November 2008)
S.A.S v France App no. 43835/11 (1 July 2014)
[1] European Convention on Human Rights Article 9
[2] European Convention on Human Rights Article 9 (2)
[3] Giorgia Baldi. From Text to Meaning: Unpacking the Semiotics of Article 9 of the European Convention on Human Rights. Int J Semiot Law Springer nature (2024) P.1287
[4] Dahlab v Switzerland App no. 42393/98 (ECtHR, 2001)
[5] Lautsi and othersi v Italy, Merits, App no 30814/06, IHRL 3688 (ECtHR 2011)
[6] Lautsi and othersi v Italy, Merits, App no 30814/06, IHRL 3688 (ECtHR 2011)
[7] Aymen Ati, ‘The Post-9/11 Securitisation of the Hijab and International Human Rights Law: the Strasbourg Court, Article 9 and Hijab Restrictions’ (2019) 5(1) Queen Mary Human Rights Law Review p.19
[8] Leyla Sahin v Turkey App no. 44774/98 (ECtHR, 10 November 2008)
[9] S.A.S v France App no. 43835/11 (1 July 2014)
[10] Aymen Ati, ‘The Post-9/11 Securitisation of the Hijab and International Human Rights Law: the Strasbourg Court, Article 9 and Hijab Restrictions’ (2019) 5(1) Queen Mary Human Rights Law Review p.1
[11] Sarthak Gupta, ‘ECtHR’s Veil of Ignorance: Intersectionality and Indirect Discrimination in the Belgian Headscarf Ban in School’ (EJIL: Talk!, 13 September 2024)
[12] Aymen Ati, ‘The Post-9/11 Securitisation of the Hijab and International Human Rights Law: the Strasbourg Court, Article 9 and Hijab Restrictions’ (2019) 5(1) Queen Mary Human Rights Law Review p.10
[13] Özlem Denli, ‘Between Laicist State Ideology and Modern Public Religion: The Head-Cover Controversy in Contemporary Turkey’ in W. Cole Durham and others (eds), Facilitating Freedom of Religion or Belief: A Deskbook (2004) Springer , p. 511
[14] Aymen Ati, ‘The Post-9/11 Securitisation of the Hijab and International Human Rights Law: the Strasbourg Court, Article 9 and Hijab Restrictions’ (2019) 5(1) Queen Mary Human Rights Law Review p.19
[15] Ibid (n7) (Dissenting Opinion of Judge Tulkens) [11]
[16] Aida Salihović‑Gušić, ‘The Hijab Ban and Human Rights of Muslim Women in Europe’ (GC Human Rights Preparedness, 27 April 2023) https://www.gchumanrights.org/preparedness/the-hijab-ban-and-human-rights-of-muslim-women-in-europe
[17] Janne Mende Are human rights western—And why does it matter? A perspective from international political theory, (2021), Journal of Human rights 17 38 p.3
