ReligionandHumanRights

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Is it fair to argue that the European Court has interpreted Article9

ECHR too narrowly?
Discuss with specific reference to its jurisprudence on Islamic
headscarves and religious symbols.

Freedom of thought, of conscience, as falling within our 'innermost' is considered as

a kind of absolute and inalienable right. On the ability to think given to human beings relies
that right to believe, to have a personal opinion; religious belief is one of these opinions that
remains personal. Thus, if freedom of religion is firmly enshrined in international law,
defining the scope of this right has given rise to heated debates especially with regards to
the European Court of Human Right's (ECtHR) judgments in that field. Even though the
Strasbourg Court assessed that freedom of thought, religion and belief is 'one of the
foundations of a "democratic society" within the meaning of the Convention'1, the case law
in this area it is often of some complexity. The provision setting freedom of religion and
belief is contained in Article 9 of the European Convention on Human Rights (ECHR), which
provides that:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance.
2. Freedom to manifest ones religion or beliefs shall be subject only to such limitations as
are prescribed by law and are necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or the protection of the rights
and freedoms of others.

From this definition, the ECHR has considered that religious freedom comprises two
dimensions to which the same protection is not given. While the internal dimension,
scholarly referred as the 'forum internum' or the freedom of choice given to individuals
regarding one's religion or belief is absolute; the external dimension on the other hand, or
'forum externum' encompassing the manifestation of this religion or belief can be regulated

Kokkinakis v Greece (App. No. 14307/88) (1993) ECHR 20, para 31.

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and limited on the grounds specified by Article 9(2). But if freedom of choice is absolute,
religious identity is more than a sole affiliation to a religion or a community; a religion
comes with a set of practices, and this affiliation will eventually show in one's appearance or
personal choices. In this context the debate about religious symbols in the Public Space, is
one of significant importance. Indeed, the wearing of the Islamic headscarf has for instance
been extensively covered by the medias and the judgments of the Court have become more
and more controversial. In fact, as rights are to be restricted when they conflict with others,
the issue at stake is to determine how far the restriction can go. Courts' judgments are
more than significant in establishing a balance between conflicting interests. However, with
respect to freedom of religion the threshold for finding interference seems to be rather high
and therefore raises the question of the possible narrowness of the Court's interpretation of
Article 9.3 What does case law tell us about the ECtHR's vision on religious symbols? By
looking at case law on that controversial issue and showing how the Court gives a significant
power to the State to regulate the display of religious symbols, this essay will try to assess
the legitimacy of the restrictions by the Court of individuals' religious freedom.

I. Article 9 and the right to 'manifest a religion or belief' in the light of the
controversial issue of religious symbols, the necessary balance between individual
rights and democratic needs

A. The wearing of religious symbols in the public space: a non-absolute right while
conflicting with other rights and interests

If we get back to the text of Article 9, we can see as mentioned before, two

Javier Martinez-Torron, 'The (Un)Protection Of Individual Religious Identity In The Strasbourg Case Law' (2012)
The Oxford Journal of Law and Religion 1-25, 3.
3
Nicholas Gibson, 'Faith In The Courts: Religious Dress And Human Rights' (2007) The Cambridge Law Journal,
657-697, 661.

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dimensions. Indeed, the forum internum, this inviolable realm of our 'inner conviction'

seems to be protected as far as it does not cross the line of another forum, the forum
externum, or Public Space. Here, the second part of Article 9(1) will be activated, to deal
with the fact that individuals may want to act upon what they understand as being the
tenants of their belief or religion.5 While acknowledging that there is a right to 'manifest'
one's religion or belief, 9(2) poses the limits to that non-absolute right which may be
restricted only in specified ways. As Carolyn Evans explains it, the wearing of headscarves
for instance almost certainly falls into the category of 'practice' but this category is not
really well defined considering that the Court will often say that it is assuming a breach of
Article 9 and move to 9(2) limitations without discussing in any detail the claims of the
particular practice to the protection of art 9(1).6 This is precisely the approach taken by the
ECtHR in two major cases relating to the headscarf issue namely Dahlab7 and Sahin.8 While
in Dahlab, the Court simply ruled on the assumption that wearing religious clothing was
covered by art 9(1),9 in Sahin it went a bit further by mentioning the motivation of the
applicant who believed that she was wearing the headscarf in obedience to a religious
precept.10 Hence, the applicant's decision was 'regarded as motivated or inspired by her
religious belief'.11 This simple mention is nevertheless important if we consider that the term
'practice' does not, according to the Court, 'cover any act which is motivated or influenced
by a religion or belief', and one does not necessarily have the right 'to behave in the public
sphere in a manner dictated by a religion or a conviction.'12

4
Malcolm D. Evans, Manual On The Wearing Of Religious Symbols In Public Areas, (Editions du Conseil de lEurope,
May 2009), 8.
5
Ibid
6
Carolyn Evans, 'The Islamic Scarf In The European Court Of Human Rights' (2006) Melbourne Journal of
International Law 5274, 55.
7
Dahlab v Switzerland, (App.no. 42393/98) (2001) ECHR 2001-V
8
Leyla Sahin v Turkey, (App No. 44774/98) (2007) 44 EHRR 5
9
Dahlab supra note 7: " While Religious Freedom Is Primarily A Matter Of Individual Conscience, It Also Implies
Freedom To Manifest Ones Religion."
10
Sahin supra note 8
11
Ibid
12
Valsamis v Greece, (App. No. 21787/93) (1997) 24 EHRR 294, 307

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This is why, while assessing the violation of one's right to manifest a belief, the courts
generally follow a common frame in a more or less comprehensive way: (1) Is the alleged
violation concerning a protected 'belief'? (2) If it is the case, can the act in question be
considered as a 'manifestation' of that belief? (3) If so, does the alleged violation 'interfere'
with that person's manifestation of his belief? (4) And finally is this restriction falling within
the category of 'justified' interferences listed in 9(2)?13 In the case of religious symbols and
especially the headscarf, the Sikh turban or the Christian cross, the first two questions are
easily answered but issues often arise when restrictions are imposed on these religious
practices.

B. The right to manifest one's Religion, a right subject to lawful restrictions in a

'democratic society'

There are several justifications of interference with religious freedom precisely listed
in Article9. Any interference has to be prescribed by law, necessary in a 'democratic society'
and directed at a legitimate aim (public safety, the protection of public order, health or
morals, or the protection of the rights and freedoms of others). From these requirements,
the 'prescribed by law' one is almost always fulfilled, the sole prerequisite being that "the
law in question must be both adequately accessible to the individual and formulated with
sufficient precision to enable him to regulate his conduct".14 As for the two others, namely
necessary in a 'democratic society' and pursuing a legitimate aim, they are most of the time
interrelated and surround two key notions: State neutrality and the margin of appreciation.

1. Religious symbols in the context of Church-State relations, the importance

given to State Neutrality and negative freedom of religion
Numerous cases regarding religious symbols end up asking the very state-centered

13

By reference to Lord Walker's typology in application of Art 9 in Williamson (2005)

Larissis v Greece, (Apps. Nos. 23372/94, 26377/95, 26378/94) (1999) 27 EHRR 329, para 40; citing The Sunday
Times V. The United Kingdom, (App. No. 6538/74) (1979) 2 EHRR 245, para 49.

14

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question of the attitude states have to adopt toward Religion. Indeed, especially in the
educational field where most of the mediatic cases arose, State neutrality appears to be
mandatory because of the special status given to Education. As the ECtHR held in the first
stage of the Lautsi 15 case about the symbolic power of crucifixes displayed in Italian
classrooms, the State cannot but adopt an attitude of neutrality and impartiality towards
Religion. According to the judges it was impossible not to notice the cross, whose religious
meaning was necessarily predominant; as such they considered that it might be perceived
as a 'powerful' religious symbol,16 and easily lead students to conclude that they were being
educated 'in a school environment characterized by a specific religion'.17 In sum, considering
the cross as part of the Italian culture or not, the State had a compelling obligation to
remain completely neutral when manifesting itself upon particularly impressionable youth
who in addition were compelled to attend public schools. As Jeroen Temperman brings it
forward, Human Rights law stresses on the fact that 'no one shall be subject to coercion',
and therefore prohibits any kind of compulsive measures that would have an impact on
ones freedom to choose a religion or belief.18 Hence, the right to freedom of religion or
belief includes a negative component with the right not to believe.19

This was also the perspective adopted by the Strasbourg Court in the Dahlab case
mentioned above. Indeed, In Dahlab, the ECtHR refused the application of a public primary
school teacher, who decided to wear the headscarf as a religious prescription after
converting to Islam, and had been prohibited from doing so while teaching, in application of
a law aiming to keep public schools secular. While recognizing that because the application
of the law entailed a restriction upon her right to religious freedom Article 9(2) required an

15

Lautsi v Italy, (App. No. 30814/06) (2009), Grand Chamber

Reference To Dahlab supra note 7.
17
Lautsi v Italy, para 55.
18
Jeroen Temperman, 'State Neutrality In Public School Education: An Analysis Of The Interplay Between The
Neutrality Principle, The Right To Adequate Education, Children's Right To Freedom Of Religion Or Belief, Parental
Liberties, And The Position Of Teachers' (2010) Human Rights Quarterly 865-897, 866.
19
UNCHR 'General Comment 22' (1993) UN Doc CCPR/C/21/Rev.1/Add.4, para 2.
16

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effective justification from the State, the Court embraced the vision of the national court on
the outcome of the neutrality principle. The applicant's status was also of significant
importance considering that this principle implied some restrictions on public teachers'
rights to manifest their religion or belief, taking into account

the very nature of the profession of State school teachers, who were both participants in
the exercise of educational authority and representatives of the State, and in doing so
weighed the protection of the legitimate aim of ensuring the neutrality of the State
education system against the freedom to manifest ones religion.20

In addition, while in Lautsi, the crucifixes could be considered as 'passive' religious

symbols, the headscarf on the other hand constituted a more active and coercive symbol,
allowing the Court to attribute what Paolo Ronchi calls a sort of 'presumption of
indoctrination'21 to such a 'powerful external symbol'.22

However, the most important case on the field of State neutrality vis--vis the
individual use of religious symbols arose few years after Dahlab, the Sahin case.

Leyla

Sahin, a Muslim medical student who was wearing the headscarf during her first four years
of study in a Turkish university, was prohibited to do so after moving to the Istanbul one.
The ban was a result of laws prohibiting headscarves to guarantee the secular atmosphere
of the Public University. What was a mere statement in the Dahlab case was turned into a
general rule in the Sahin judgment: "it is the principle of secularism, as elucidated by the
Constitutional Court [of Turkey]...which is the paramount consideration underlying the ban
on the wearing of religious symbols in universities.23Furthermore, the Court acknowledged
the particularism of the Turkish definition of secularism as being in accordance with the
requirements of the Convention:

20

Dahlab supra note 7, 15.

Paolo Ronchi, 'Crucifixes, Margin Of Appreciation And Consensus: The Grand Chamber Ruling In Lautsi V Italy'
(2011) Ecclesiastical Law Journal 287-298, 294.
22
Dahlab supra note 7.
23
Sahin supra note 8, para 116.
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This notion of secularism appears to the Court to be consistent with the values
underpinning the Convention and it accepts that upholding that principle may be regarded
as necessary for the protection of the democratic system in Turkey.24

As J Martinez-Torron mentions, the reasoning of the Sahin case has been

subsequently used by the Court in other cases involving Islamic headscarves at school in
Turkey25 but also in France, where the policies on religious clothing in public schools were
enshrined in the law in 2004.26 The rationale of the Court27 following the Sahin reasoning
highlighted the importance of the principle of secularism (laicit) in France - as in Turkey to expand on the necessity of preserving an atmosphere of neutrality at school.28 Article
9(2) was becoming more a way to protect the State from Religion than a mean to uphold
individual rights to religious freedom.
But beyond the importance given to the neutrality principle through secularism is
also the role attributed by the Court to the State as the "neutral and impartial organiser of
the exercise of various religions"29 and the margin of appreciation awarded to it to carry out
its mission.

2. The State's margin of appreciation in application of the 'necessity' principle in

the context of the amorphous nature of 'democratic' societies

The recognised legitimate interests in Article 9(2) 'the interests of public safety, for
the protection of public order, health and morals, or for the rights and freedoms of others'
do not really pose any difficulty for respondent states as it most of the time is possible for
them to show that the interference has been used to further at least one of these listed
interests.30 As Kathryn Boustead advances, the state does not really bear a heavy burden in

24

Ibid, para 106.

Kse And 93 Other Applicants v Turkey (App. no. 26625/02) (2006).
26
Loi N 2008-224, 15 March 2004.
27
Dogru v France And Kervanci v France (Apps. Nos. 27058/05,31645/04) (2008) 49 EHRR 8 280.
28
Javier Martinez-Torron, 'The (Un)Protection Of Individual Religious Identity In The Strasbourg Case Law' (2012)
The Oxford Journal of Law and Religion 1-25, 18.
29
Sahin, supra note 8, para 107 (emphasis Added).
30
See For Instance The Admissibility Of The Aims Of Protection Of The Rights Of Others And The Public Order With
Regards To The Headscarf Issues In Dahlab Or Sahin.

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this area considering that the majority of the laws are at least ostensibly enacted to serve
the public good.

31

In addition, determining whether a measure is necessary and

proportionate cannot be a merely mechanical exercise and there is always a kind of value
judgment that has to be made to answer the question regarding the necessity of a practice
in a democratic society. That is why, at the Strasbourg Court level, any assessment of the
necessity of an interference with Article 9 rights is associated with the issue of subsidiarity
of the European protection system, the primary responsibility for ensuring that Convention
rights are effective, being that of the states. To this end, the ECtHR accords states a certain
'margin of appreciation'. Hence, because in the field of freedom of religion "it is not possible
to discern throughout Europe a uniform conception of the significance of religion in
society",32 in this area, the Court is more likely to broader the margin particularly when the
justification advanced by the state is public safety 33 or the need to prevent certain
fundamentalist religious movements from exerting pressure on others.34 This is particularly
apparent in the Sahin case in which the Court ruled that the interference in question had
been both justified in principle and proportionate to the aims pursued, taking into account
the states 'margin of appreciation' in such cases
Where questions concerning the relationship between State and religions are at stake, on
which opinion in a democratic society may reasonably differ widely, the role of the national
decision- making body must be given special importance. This will notably be the case when
it comes to regulating the wearing of religious symbols in educational institutions,
especially... in view of the diversity of the approaches taken by national authorities on the
issue. It is not possible to discern throughout Europe a uniform conception of the
significance of religion in society and the meaning or impact of the public expression of a
religious belief will differ according to time and context. Rules in this sphere will
consequently vary from one country to another according to national traditions and the
requirements imposed by the need to protect the rights and freedoms of others and to
maintain public order. Accordingly, the choice of the extent and form such regulations
should take must inevitably be left up to a point to the State concerned, as it will depend on
the domestic context concerned.35

31

Kathryn Boustead, 'The French Headscarf Law Before The European Court Of Human Rights' (2007) Journal of
Transnational Law & Policy 167-196, 177.
32
Otto-Preminger-Institut v Austria (App. No.13470/87) (1994) 19 EHRR 34.
33
E.G Phull v France (App. No. 35753/03) (2005) ECHR 2005-I; Requirement To Remove Turban During Airport
Security Screening: Inadmissible.
34
See the Sahin Case for instance.
35
Ibid, para

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Consequently, in the Sahin judgment, the Court justifies its deference to national
institutions and standards on a number of bases.36 Considering the diversity of national
approaches on religious symbols, as C. Evans notes, the ECtHR leaves to the State the
mission to choose the appropriate one and therefore reaches the conclusion that states are
in a better position to determine how best to protect the rights and freedoms of others and
public order when making determinations on these issues.37 Of some importance in this
decision were the principles of secularism and equality at the heart of the Turkish
Constitution. The constitutional court had determined that freedom to manifest ones
religion could be restricted in order to defend the role played by secularism as the guarantor
of democratic values in the state. Indeed, secularism also helped in the Turkish context to
protect individuals from external pressure exercised by extremist movements. This role of
the State as independent arbiter was perfectly consistent with the supervising mission
attributed to it by the Strasbourg Court.

II. The question of the legitimacy of the jurisprudence of the Strasbourg Court in
relation to religious symbols

A. From State Neutrality to State Partiality, an interpretation of Article 9 in favor

of a State regulation of Religion

1. The misleading idea of religious symbols' incompatibility with State Neutrality

Neutrality of the State is often considered as "the counterpart to that freedom of thought,
conscience and religion of citizen".38 The State can more effectively carry out this mission if
it stays neutral in religious matters. However, it is arguable that State neutrality commands
the disappearance of religious symbols from the Public Space and especially schools. As

36

Carolyn Evans, supra note 6, 58.

Ibid
38
Niraj Nathwani, 'Islamic Headscarves And Human Rights: A Critical Analysis Of The Relevant Case Law Of The
European Court Of Human Rights' (2007) Netherlands Quarterly of Human Rights 221-254, 228.

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Nathwani recalls it in his article, the Ludin

39

case sheds some light on this issue by offering

two meanings for State neutrality. On one hand, State neutrality could mean 'inclusive
neutrality, suggesting that all religious symbols are equally allowed in schools, the State
encouraging and ensuring tolerance among pupils. On the other hand, neutrality could
mean separation, 'irreligious neutrality' trying to create two different spheres to impeach
any clash between State and Religion. While the former is really protective of one's right to
freedom or religion, the latter is more restrictive but as Nathwani rightly says it, "it is not
clear in which sense neutrality requires a ban of religious symbols from schools which is
necessary in a democratic society". Furthermore, if the options are equivalent, the principle
of proportionality, and the necessary fair balance of interests applicable to the ECHR
imposes to the Court to choose an option which is respectful of a human right rather than
one which limits it.40

In addition, the core of the neutrality argument relies on the fact that states have to
refrain from any kind of proselytism; in the specific context of the Education system, this
duty takes bigger proportions. However, if the presence of crucifixes on walls could be
considered as a result of State's instructions on public schools' environment, it is hard to
determine whether a piece of fabric worn by a school teacher as a personal choice can
reasonably be attributed to the State. Indeed, even as a teacher, Ms. Dahlabs connection
with governmental authority also remains distant.41 In this sense, it is even more difficult to
admit the use of State neutrality argument when students, or pupils are concerned. In fact,
since there is no plausible way an individual's behavior can be the mirror of the State's view
on any matter, a student wearing a headscarf or a turban cannot put doubt on the neutrality
of the State. In the Sahin Case, the Turkish Government considered the 'sphere of State

39

Ludin Case, (App. No. 2 BvR 1436/02) (2003), German Constitutional Court (Bundesverfassunggericht).
Ibid, 229
41
Nicholas Gibson, 'Faith In The Courts: Religious Dress And Human Rights' (2007) The Cambridge Law Journal 657
- 697, 690.
40

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education' as a 'public service' and therefore extended the application of the secularism
principle there as well. But as Nicholas Gibson rightly argues, this reference to 'public
service' is misleading. If the Public Sphere is not delimited by reference to any kind of state
position or related duty, the boundaries become blurry and Article 9, which was considered
as a mean to ensure State neutrality may help 'purging religion from society'.42

Finally, State neutrality implies a duty for the State to refrain from modeling the content
of religious practices and the European Court has ruled in this sense that The Convention
rules out any appreciation by the state of the legitimacy of religious beliefs or the manner in
which these are expressed.43 Similarly if value judgments about religious practices are to
be avoided by states, the same is required from the ECHR institutions. Yet the ECtHR prima
facie considers the Islamic headscarf as a 'powerful external symbol', which 'appeared to be
imposed on women by a religious precept that was hard to reconcile with the principle of
gender equality' and that such practice could difficultly be 'reconciled with the message of
tolerance, respect for others and, above all, equality and non-discrimination that all
teachers in a democratic society should convey to their pupils'.44 This clearly shows how the
Court is narrowing its application of Article 9 with the help of value judgments and this not a
common view the Court can use while needed. As Nathwani rightly mentions, the German
Constitutional Court for instance considers that the wearing of headscarves cannot be
assimilated as a mere symbol of female submission.45 Courts and States should refrain from
giving a partial meaning to a religious practice that can have many significations; by doing
so they end up imposing their view on an applicant narrowing his rights in a discriminatory
way.46

42

Ibid
Metropolitan Church of Bessarabia v Moldova (App. No. 45701/99) (2001) 35 EHRR 306, para 117.
44
Nathwani supra note 34, 231 (citing Leyla Sahin v Turkey, para 111).
45
German Constitutional Court (Bundesverfassungsgericht) (2003) 2 BvR 1436/02, 13.
46
Leyla Sahin v Turkey, supra note 8, Judge Tulkens in her dissenting opinion para 12.
43

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2. The paramount importance given to negative freedom of religion and belief

Another key feature of the neutrality argument is the fact that Article 9(2) refers
principally to 'protection of rights and freedoms of others'. In this regard, there is a kind of
focus on the freedom of religion and belief of others, and precisely the right to be free from
religion. Pupils in state schools have the right to be free from pressures, and the proselyting
power of religious symbols is, as mentioned before, of significant importance. However, if
we take the Dahlab case for instance, more than the facts of the case, the use of the
proselytism argument is weakened by the Court's own jurisprudence regarding the issue.
Indeed, in Kokkinakis v Greece the ECtHR has ruled that trying actively to convince people
that your religion is true and therefore trying to convert them is protected as an Article 9
manifestation of religious freedom. 47 The only thing being able to subject this kind of
proselytism to restrictions being the use of 'improper' means such as coercive or subversive
measures. No such acts were involved in the Dahlab case, and the Court's decision stays
speculative.

By pointing that "it is very difficult to assess the impact" of Ms. Dahlabs

headscarf, it lacks any substantive evidence and ends up justifying its decision saying that
"it cannot be denied outright that the wearing of a headscarf might have some kind of
proselytizing effect". Is that mere possibility of interference with alleged pupils' rights not to
be proselytized sufficient to justify such a narrow interpretation of Article9 with regards to
Mrs. Dahlab's freedom of religion?

Judge Tulkens notes that only accurate facts and

arguments whose legitimacy cannot be doubted, not mere fears can justify to interfere with
a fundamental right, and the jurisprudence of the ECtHR is clear on that point, assertions
are not sufficient they must be heavily supported.48

If we look at the Sahin case, as Gibson rightly argues, Turkeys case is built on blunt

47
48

Kokkinakis v Greece, supra note 1.

Sahin v Turkey, supra note 8, Judge Tulkens in her dissenting opinion, para 5.

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assertions. The prohibition is considered necessary to support secularism and gender

equality. If in principle, these aims are part of Article 9(2) objectives, there is no evidence in
the judgment of substantial link between Ms. Sahins wearing of the headscarf and these
concerns. The problem seems to rely on the fact that the Court because of the sensibility of
the matter does not appear critical about the Turkish Government's interpretation on the
headscarf and therefore endorses it.49 The Court eventually uses a 'precautionary principle',
qualifying the prohibition as a 'preventive measure'50 to the detriment to individual rights
negated by an unsubstantiated risk. As N. Gibson observes by reference to case-law, the
principle of proportionality requires "a reasonable relationship between the means employed
and the end to be achieved, a fair balance between the benefit to the community and the
detriment to the individual, and (arguably) that no less intrusive means might have
achieved the same end". 51 If the threat is the fundamentalism of some extremist
movements trying to uphold a Sharia law system, a blanket ban on headscarves for
university students regardless of their motivation, paralyzing their right to manifest their
religion under Article 9 does not seem proportionate.52

B. The drawbacks of the State Margin of appreciation

1. A 'Margin of abdication' for the Strasbourg Court?

States have a better insight of some national issues since they are aware of what
constitutes their ethos, and in this regard, a margin of appreciation on these controversial
issues is welcome. Yet, as Gibson notes, in Sahin, the Court misapplies this principle by
giving Turkey a way to wide margin and by shutting its own supervisory responsibility. The
width of the margin relies on different elements, including the existence of a consensus on a
particular issue. While focusing on the question of religious dress in schools, Gibson

49

Nicholas Gibson, supra note 38, 671.

Sahin v Turkey, supra note 8, para 96.
51
Nicholas Gibson, supra note 38, 672.
52
Ibid, 673.

50

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advances that its primary concern appears to be the broader issue of religions relationship
with the state. The delimitation of the issue affects the outcome of the case since it allows
the ECtHR to reach the conclusion that there is no European consensus on the question.
However, while religious symbols are not treated in the same way in schools there is kind of
a consensus concerning Universities.53 Moreover, The Court in Sahin does not look further
into the nature of the secular regime in Turkey, nor consider the possibility that secularism
may prejudice believers.54 It gives Turkey a wide margin of appreciation considering that
the "notion of secularism ... is undoubtedly one of the fundamental principles of the Turkish
State which are in harmony with the rule of law and respect for human rights".55

More than the power given to states, what lacks in Sahin is the use by the Court of
its supervisory role. The Court acknowledges its responsibility by assessing that State's
margin of appreciation "goes hand in hand with" European supervision, even referring as
Gibson rightly highlights to its obligation to "determine whether the measures taken ... were
justified in principle and proportionate".56 Yet in the judgment this it clearly not carries out
its mission; "the Court applies a "margin of abdication": (ab)using the doctrine to justify its
failure to scrutinize the Turkish authorities actions properly".57

2. The broader the margin, the narrower the rights

By blurring the different issues at stake and giving too much discretion to the State in
handling controversial issues, the Court weakens, as Gibson notes, both its status and the
protection of individual's freedom of religion. In addition, the failure to reconcile individual
and community interests has repercussions not only for rights holders but all those under

53
54
55
56
57

Ibid
Nicholas Gibson, supra note 38, 682.
Sahin, supra note 8, para 114.
Ibid, para 110.
Nicholas Gibson, supra note 38, 683.

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the Courts jurisdiction.

58

The headscarf ban in Turkey was given the mission to impeach the

rise of a militant Islamism and to uphold gender equality. However as Gibson notes, the
approach endorsed by the Court may ironically produce the contrary result in each case.
Denying women wearing the headscarf access to education is not the better way to uphold
gender equality. The thresholds of both proportionality and necessity test are put so high
with a minimal - even inexistent - supervision, that "it is questionable whether the Court, or
indeed the Convention, is adequate to the task of securing respect for minority traditions in
a multicultural Europe".59In many of the judgments, particularly those dealing with Muslim
applicants, there is an underlying sense that religion is more of a threat than an asset - a
problem to be contained rather than something of inherent value".60

This essay has reached the conclusion that the interpretation of the ECtHR of Article
9 is clearly narrow. Indeed, as far as the wearing of religious symbols is concerned, the
Strasbourg court seems to accord more credit to the alleged fear that the wearing of such
'powerful religious symbol' might indoctrinate others than to the protection given by Article
9 to this aspect of individual privacy. In addition, as developed earlier, the Court is more
likely to show deference towards national traditions by waving the flag of States margin of
appreciation and by doing so, is often undermining the broader rights granted by the
Convention. This 'margin of abdication' of the ECtHR in a Europe characterized by religious
diversity is clearly a threat to the actual protection of freedom of religion. Furthermore,
prohibition of religious symbols such as the Islamic headscarf in situations where individuals
are not given any other solution than to choose between their 'public' life and their religious
beliefs, can raise even more complex issues with regards to Human Rights protection since
it impacts the enjoyment of many other rights such as for instance the right to privacy,

58

Ibid, 694.
Ibid, 694-695.
60
Carolyn Evans, 'Individual and Group Religious Freedom In The European Court Of Human Rights: Cracks In The
Intellectual Architecture' (2010-2011), Journal of Law & Religion 321-343, 341.

59

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AtkaVASRAM

education or non-discrimination. In that sense, it is fundamental for the Court to take its
supervision role more actively in adopting at least some minimum standards of protection
going beyond national characteristics and thus to grant every individual the benefit of such
an important right in a consistent way.
Bibliography:

Books:

Evans MD, Manual On The Wearing Of Religious Symbols In Public Areas, (Editions
du Conseil de lEurope, May 2009)
McGoldrick D, Human Rights and Religion The Islamic Headscarf Debate in Europe,
(Hart Publishing, 2006)

Articles:

Boustead K, 'The French Headscarf Law Before The European Court Of Human Rights'
(2007) Journal of Transnational Law & Policy 167-196
Evans C, 'The Islamic Scarf In The European Court Of Human Rights' (2006)
Melbourne Journal of International Law 5274
Evans C, 'Individual and Group Religious Freedom In The European Court Of Human
Rights: Cracks In The Intellectual Architecture' (2010-2011), Journal of Law &
Religion 321-343
Gibson N, 'Faith In The Courts: Religious Dress And Human Rights' (2007) The
Cambridge Law Journal 657-697
Kooner B, 'The veil of ignorance: a critical analysis of the French ban on religious
symbols in the context of the application of Article9 of the ECHR' (2008) Mountbatten
Journal of Legal Studies 23-71
Martinez-Torron J, 'The (Un)Protection Of Individual Religious Identity In The
Strasbourg Case Law' (2012) The Oxford Journal of Law and Religion 1-25
Nathwani N, 'Islamic Headscarves And Human Rights: A Critical Analysis Of The
Relevant Case Law Of The European Court Of Human Rights' (2007) Netherlands
Quarterly of Human Rights 221-254
Ronchi P, 'Crucifixes, Margin Of Appreciation And Consensus: The Grand Chamber
Ruling In Lautsi V Italy' (2011) Ecclesiastical Law Journal 287-298
Temperman J, 'State Neutrality In Public School Education: An Analysis Of The
Interplay Between The Neutrality Principle, The Right To Adequate Education,
Children's Right To Freedom Of Religion Or Belief, Parental Liberties, And The
Position Of Teachers' (2010) Human Rights Quarterly 865-897

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